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[2008] ZANCHC 74
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Mweza v Member of the Executive Council Department of Social Services and Population Development (Northern Cape), Barense v Member of the Executive Council Department of Social Services and Population Development (Northern Cape) (367/06, 368/06) [2008] ZANCHC 74 (12 December 2008)
Reportable: Yes / No
Circulate to Judges:
Yes / No
Circulate to
Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
Case
no: 367/06 and 368/06
Date
heard: 2008-12-08
Date
delivered: 2008-12-12
In
the matter of
:
NONZAME
ELSIE MWEZA
APPLICANT
IN CASE 367/06
ABRAHAM
BARENDSE APPLICANT IN CASE 368/06
versus
THE
MEMBER OF THE EXECUTIVE COUNCIL
DEPARTMENT OF SOCIAL SERVICES
AND
POPULATION DEVELOPMENT
(NORTHERN CAPE) FIRST RESPONDENT
THE
DISASTER RELIEF FUND SECOND APPLICANT
UPPER
KAROO ADVICE AND
DEVELOPMENT AGENCIES THIRD RESPONDENT
Coram:
MAJIEDT
J et WILLIAMS J
JUDG
MENT
MAJIEDT J:
These
two
unopposed
applications were set down together and before two Judges by
direction of the then Acting Judge President. The reasons
for that
will appear shortly. Although notices of opposition were filed in
both applications by the State Attorney on behalf
of the First
Respondent, no answering affidavits were ever filed.
There are a number of
similarities in the applications, but also certain differences. For
the sake of expediency, I deal with
the similar facts first.
In
both applications the Applicants seek relief in terms of the
provisions of the Promotion of Administrative Justice Act, 8 of
2000
(“
PAJA”
).
Both applications have as their background the provisions contained
in s(5)(2) of the Social Assistance Act, 59 of 1992 (“
the
Act”
)
which reads as follows:
“
2. The
Director-General may, subject to the provisions of this Act, make a
financial award to a person if he or she is satisfied
that such
person is in need of social relief of distress.”
In the
Mweza-matter
the Applicant had applied to the authorities for drought relief,
while in the
Barendse-matter
the Applicant had applied for “
emergency
relief”
in respect of hurricane storm damage.
These applications are
regarded as test cases for a host of others, awaiting hearing in this
Division.
Both
matters have been characterised by inordinate delays. In
Mweza
the Applicant sought drought relief at the community hall in her
home town, Hanover, on 15 May 2004. The Third Respondent, a
non-governmental organization known as “
Ukada
”,
was tasked with assisting Applicant with registration in terms of
the provisions of the Act. The Second Respondent has
been
established in terms of s16 of the Fundraising Act, 107 of 1978,
(“
the
Fundraising Act&rdquo
;)
with the objective of rendering to persons, organizations and bodies
who or which suffered damages or loss caused by a disaster,
such
assistance as the Board may deem fair and reasonable.
On 23
January 2004 the President declared certain areas in the Northern
Cape
Province
as disaster areas in Government Gazette no 25940 in accordance with
s26
of the
Fundraising Act. A
similar proclamation was published in
Government Gazette no 27349 of 3 March 2005. The town of Hanover,
in which Ms Mweza is
resident, falls in the declared areas in
respect of both the aforementioned proclamations. Ms Mweza
explained in her founding
affidavit, as supplemented later in a
supplementary affidavit, that she is functionally illiterate and
completely dependent on
social welfare grants. Her only additional
income was from a very modest vegetable and maize farming business
which she conducted
on a small scale from her home. She clearly
falls within the designated group envisaged in s5(2) of the Act and
in
s18(a)
of the
Fundraising Act. Having
lodged her application for
drought relief on 15 May 2004 at Hanover community hall with
employees of the Third Respondent, Ms
Mweza was not issued with a
receipt in respect of her aforementioned application. Although she
was advised by the Third Respondent’s
officials who received
her application that it would take approximately three months to
process, she had no response thereto.
Her attorneys of record
sought information on 29 August 2005 in respect of her application
in terms of PAJA. Thereafter several
meetings between her attorney
and a member of the Secretariat of the Second Respondent and
correspondence between them followed.
All these yielded no positive
results, hence the present application. Ms Mweza’s
application was for compensation in
the paltry sum of R900.00 (nine
hundred Rand) which appears to be the amount of compensation which
the authorities had fixed.
I now
turn to set out the facts and
ensuing
events in the
Barendse
matter
.
Mr. Barendse applied for emergency relief, due to a hurricane
having wreaked havoc to his home at 17 Van der Walt Street,
Noupoort. Mr. Barendse owns two homes, but he has in fact already
been compensated for the damage to the other one. The present
application therefore only concerns the damage at 17 Van der Walt
Street. During September 2004 extensive storm damage was caused
at
Noupoort to the homes of several residents due to the aforementioned
hurricane. In the course of November 2004 officials
of the First
Respondent’s office convened a meeting to register victims of
the storm. This registration was done by officials
of the First
Respondent as well as those of the Third Respondent. At the said
meeting, according to Mr. Barendse, storm victims
were advised by
the said officials to apply for emergency relief funds and that an
amount of R900,00 (nine hundred Rand) will
be paid to every
household as compensation for damage that was caused by the storm.
They also indicated that the amount of R900,00
would be paid out at
pension pay points within 3 months of the date of application. The
reason why Mr. Barendse was compensated
in respect of one of his
properties only, was because he was handed one application form
only. He was unable to fill in a form
in respect of the property at
17 Van der Walt Street, because there was a shortage of application
forms and he did not receive
one in respect of that property.
Officials present there undertook to have more application forms
distributed at a future date,
but according to Mr. Barendse, this
has not happened at all.
Mr.
Barendse consulted for the first time on 6 June 2005 with his
attorneys
,
who thereafter addressed a letter of demand to the Regional Office
of the First Respondent. Several letters followed between
the First
Respondent’s legal advisors and Mr. Barendse’s
attorneys, but the matter was not resolved. Mr. Barendse
accordingly launched the present application during the course of
2006.
Several
aspects which are common to the two applications emerge, namely:
a) Both these Applicants
are in my view entitled to assistance in terms of s5(2) of the Act.
b) Both
Applicants are extremely poor and are dependent on social welfare
grants.
c) In
both instances they sought relief along the proper channels as
envisaged in the Act, and, in the case of Ms Mweza, in accordance
with the declaration of,
inter
alia
,
Hanover as a drought disaster area, thereby qualifying for drought
disaster relief.
d) In both these
instances the Applicants have been shunted from pillar to post and
have been waiting for a very long time for assistance
from the
relevant authorities.
e) In
both applications the Applicants have been compelled to engage the
services of a firm of attorneys who also achieved no success
in
pursuing the matters on their behalf.
In
both these cases a curious eventuality which had occurred is a
so-called “
settlement
agreement
”
which is attached to the papers. Both “
settlement
agreements
”
were signed on 15 May 2008. The Applicant, Mr. Barendse, signed his
agreement together with two witnesses. An unknown
person signed for
the First Respondent and also signed on behalf of the Second
Respondent. Ms Mweza’s “
settlement
agreement
”
was also concluded at Noupoort and was signed by an unknown person
for both the First and Second Respondents. The document
contains
her thumbprint (it will be recalled that she is functionally
illiterate) and is signed by two witnesses. Both these
“
settlement
agreements”
purport to record the following:
a) It
contains an acknowledgement that the First Respondent was incorrectly
cited, because he has nothing to do with the administration
of
emergency relief funds which are in fact administered by the Second
Respondent. It consequently records that the Applicant
withdraws
his/her claim against the First Respondent with each party to bear
its own costs.
b) The
Second Respondent, without admission of liability, offered payment of
the sum of R900,00 in full and final settlement of
the Applicants’
claims. As a
quid
pro quo
,
the Applicants would withdraw their applications with each party to
pay its own costs.
c) It
was recorded that the parties are in agreement that the clauses
relating to payment
and
the concomitant withdrawal of the applications were subject to the
approval of the National Department of Social Development
(thus a
suspensive condition).
d) It
was also agreed between the parties that the settlement amount of
R900
,00
will be paid directly into the respective Applicants’ bank
accounts on or before 30 June 2008.
e) Finally
and in conclusion it was agreed that the said “
settlement
agreements
”
constitute full and final settlement of the respective Applicants’
claims.
In
both instances the Applicants filed supplementary affidavits in
which they declared that the true nature and objective of the
“
settlement
agreements”
were never explained to them by the officials who had approached
them and who appeared to be from the office of the State Attorney.
They also indicated that they were not aware of the fact that they
were required to withdraw the applications and to bear their
own
legal costs. Both Applicants pointed out that at that stage the
matters were still pending and enrolment dates had indeed
been
obtained for the hearing of both matters in this Court.
Mr.
Dutton
for both Applicants has submitted that on the probabilities these
explanations are to be accepted. I agree. It seems
curious that
such “
settlement
agreements”
would be concluded in the midst of litigation. This curiosity is
compounded further by the fact that in both instances the Applicants
purport to waive any claim that they may have had in respect of
their legal costs. I have already indicated that Ms Mweza is
functionally illiterate. In Mr. Barendse’s instance he too is
virtually functionally illiterate having only attended school
until
standard 1. He has never had permanent employment and has been
employed as a farm labourer from time to time. He subsists
by
reason of social grants and benefits and also in addition receives a
small rental income from the second property, to which
I have
already alluded. In the premises I accept on the probabilities that
these Applicants were not fully conversant with the
import and
meaning of the terms in the settlement agreements. I am of the view
that these agreements are not valid and enforceable
and in any event
have been repudiated under oath by the Applicants to the extent that
they may have some validity. This repudiation
is acceptable, given
the fact that these Applicants were not fully aware of what they
were signing. Moreover and in any event,
there is no indication at
all in the papers as to whether the suspensive condition set out in
par. 9(c) above, had been fulfilled.
It is
most unusual and quite unacceptable for settlement agreements to be
foisted
upon functionally illiterate litigants who are in any event, to the
knowledge of the State Attorney and the various Respondents,
represented by a firm of attorneys. I take a grave view of the
matter and believe that this ought to be investigated further.
Like
Mr. Barendse, Ms Mweza has applied for compensation in the paltry
sum of R900,00. The fact that now, some 4 of 5 years down
the line,
no payment has been forthcoming and these Applicants have been
treated in the most unsympathetic manner imaginable
by the
authorities, is an indictment on the authorities charged by
legislation with the rendering of social assistance and relief
to
the poor and to those in distress.
Section
27(1)(c) of the Constitution, Act 108 of 1996 (“
the
Constitution”
)
guarantees to every citizen the right to have access to social
security including the right to appropriate social assistance.
Section 10 of the
Constitution enshrines every individual’s fundamental right to
human dignity.
Section
7(2) of the Constitution guarantees an individual’s right to
have the State respect, protect, promote and
fulfil
the rights as enshrined in the Bill of Rights.
Section 194 of the
Constitution safeguards an individual’s right to fair and just
public administration.
Section
33 of the
Constitution
guarantees to an individual the right to administrative action that
is lawful, reasonable and procedurally fair.
Section
237 of the Constitution requires that all constitutional obligations
be performed
diligently
and without delay.
Section
32(1) guarantees
to
everyone the right of access to information held by the State.
The
Applicants have been denied the plethora of rights in each and every
instance set out above. This has occurred due to the
absolute
inertia of the institutions charged with the duties to ensure that
needy persons be granted the relief which they are
entitled to in
terms of
legislation
and policy. In
MEC,
Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478
(SCA)
at
493I, Nugent JA had the following to say in respect of the
ineptitude and incompetence of the welfare officials in that
instance:
“
To be held
in poverty is a cursed condition. Quite apart from the physical
discomfort of deprivation, it reduces a human in his
or her dignity.
The inevitable result of being unlawfully deprived of a grant that is
required for daily sustenance is the unnecessary
further endurance of
that condition for so long as the unlawfulness continues.:
The
same can be said of their failure in the present case to pay to these
deserving Applicants the
paltry
sum of R900,00.
In an
earlier judgment, Cameron JA was even more strident in his
criticism of the w
elfare
officials in that case, particularly regarding their conduct of the
litigation.
See:
Permanent
Secretary, Department of Welfare, Eastern Cape and another v Ngxuza
and others 2001 (4) SA 1184(SCA)
at par [15], 1197 C-F:
“
[15] All
this speaks of a contempt for people and process that does not befit
an organ of governme
nt
under our constitutional dispensation. It is not the function of the
courts to criticise government's decisions in the area of
social
policy. But when an organ of government invokes legal processes to
impede the rightful claims of its citizens, it not only
defies the
Constitution, which commands all organs of State to be loyal to the
Constitution and requires that public administration
be conducted on
the basis that 'people's needs must be responded to'. It also misuses
the mechanisms of the law, which it is the
responsibility of the
courts to safeguard. The province's approach to these proceedings was
contradictory, cynical, expedient and
obstructionist. It conducted
the case as though it were at war with its own citizens, the more
shamefully because those it was
combatting were in terms of secular
hierarchies and affluence and power the least in its sphere. We were
told, in extenuation,
that unentitled claimants were costing the
province R65 million per month. That misses the point, which is the
cost the province's
remedy exacted in human suffering on those who
were entitled to benefits. What is more, the extravagant cost of
'ghost' claimants
would seem to justify the expense of imperative
administrative measures to remedy the problem by singling out the
bogus - something
the province conspicuously failed to do. It cannot
warrant unlawful action against the entitled. “
The
remarks there are to some exte
nt
apposite to the present case as well.
The
Applicants are clearly entitled to the relief sought in the Amended
Notice of Motion in the respective cases.
In the
Mweza
matter
I propose shortening the time periods, given the lengthy delays
herein. They seek a
mandamus
directing
the First and Second Respondents to process their applications and,
should same be refused, to furnish reasons therefor.
These are, as
I have said at the commencement of the judgment, to be regarded as
test cases for a number of other cases which
are awaiting hearing in
this Division. I therefore propose having this judgment forwarded
to all the Respondents, even though
the matters are at this stage
unopposed. The matter has been set down before two Judges, due to
the fact that it has important
implications in respect of the
rendering of social assistance in this province. In addition
thereto, as I have stated, these
are to be regarded as test cases.
I would also request an investigation and report by the State
Attorney’s office into
the conclusion of the “
settlement
agreements”
.
Finally, I must
emphasize that, henceforth, all similar matters which are unopposed
and which are presently awaiting to be enrolled
in anticipation of
this judgment, can be enrolled in the Motion Court.
I
need to comment
briefly
on two aspects raised in the papers.
[
16.1] First,
the Applicants seek orders extending the 180 day period envisaged in
s7(1) of PAJA and exemption to exhaust internal
remedies in terms of
s7(2)(c) of PAJA. Section 7(1) of PAJA reads as follows:
“
(1) Any proceedings for
judicial review in terms of section 6 (1) must be instituted without
unreasonable delay and not later than
180 days after the date-
(a) subject to subsection (2) (c), on
which any proceedings instituted in terms of internal remedies as
contemplated in subsection
(2) (a) have been concluded; or
(b) where no such remedies exist, on
which the person concerned was informed of the administrative action,
became aware of the
action and the reasons for it or might reasonably
have been expected to have become aware of the action and the
reasons.
Section 7(2) of PAJA in
turn provides that:
“
2)(a) Subject to paragraph (c),
no court or tribunal shall review an administrative action in terms
of this Act unless any internal
remedy provided for in any other law
has first been exhausted.
(b) Subject to paragraph (c), a court
or tribunal must, if it is not satisfied that any internal remedy
referred to in paragraph
(a) has been exhausted, direct that the
person concerned must first exhaust such remedy before instituting
proceedings in a court
or tribunal for judicial review in terms of
this Act.
(c) A court or tribunal may, in
exceptional circumstances and on application by the person concerned,
exempt such person from the
obligation to exhaust any internal remedy
if the court or tribunal deems it in the interest of justice.”
Mr.
Dutton has submitted that, since no
decision has been taken at all in both instances by the authorities,
these provisions do not apply and no relief is necessary in
that
regard. This argument loses sight of the fact that in s1 of PAJA
“
administrative
action”
is defined as:
“
'administrative action' means
any decision taken, or any failure to take a decision, by-
(a) an organ of state, when-
(i) exercising a power in terms of the
Constitution or a provincial constitution; or
(ii) exercising a public power or
performing a public function in terms of any legislation; or
(b) a natural or juristic person,
other than an organ of state, when exercising a public power or
performing a public function in
terms of an empowering provision,
which adversely affects the rights of
any person and which has a direct, external legal effect, but does
not include-
(aa) the executive powers or functions
of the National Executive, including the powers or functions referred
to in sections 79 (1)
and (4), 84 (2) (a), (b), (c), (d), (f), (g),
(h), (i) and (k), 85 (2) (b), (c), (d) and (e), 91 (2), (3), (4) and
(5), 92 (3),
93, 97, 98, 99 and 100 of the Constitution;
(
bb) the
executive powers or functions of the Provincial Executive, including
the powers or functions referred to in sections 121
(1) and (2), 125
(2) (d), (e) and (f), 126, 127 (2), 132 (2), 133 (3) (b), 137, 138,
139 and 145 (1) of the Constitution;
(cc) the executive
powers or functions of a municipal council;
(dd) the
legislative functions of Parliament, a provincial legislature or a
municipal council;
(ee) the judicial
functions of a judicial officer of a court referred to in section 166
of the Constitution or of a Special Tribunal
established under
section 2 of the Special Investigating Units and Special Tribunals
Act, 1996 (Act 74 of 1996), and the judicial
functions of a
traditional leader under customary law or any other law;
(ff) a decision to
institute or continue a prosecution;
(gg) a decision
relating to any aspect regarding the nomination, selection or
appointment of a judicial officer or any other person,
by the
Judicial Service Commission in terms of any law;
[Para. (gg) substituted by s. 26 of
Act 55 of 2003.]
(hh) any decision
taken, or failure to take a decision, in terms of any provision of
the
Promotion of Access to Information Act, 2000
; or
(ii) any decision
taken, or failure to take a decision, in terms of
section 4
(1);”
Thus
a
failure to take a decision
is also reviewable. In the premises, such relief must be included
and was indeed sought in the Amended Notice of Motion. A case
is
indeed made out in the papers for such relief.
[16.2] Second,
the State Attorney had filed a notice in terms of
Rule 6(5)(d)(iii)
on behalf of the First Respondent on 24 July 2006. Why this was not
contained or repeated in an answering affidavit/s is beyond
me. A
number of issues are raised, but I do not deem it necessary to burden
this judgment with those matters. Suffice to state
that none of them
bear legal scrutiny. I need to refer to one of them very briefly,
however.
It is
contended that the Director-General should have been joined as a
Respondent, given the provisions contained in s5(2) of the
Act,
quoted above. It is also contended that for the same reason, there
has been fatal misjoinder of the First Respondent. Mr.
Dutton is
correct in his submission that these contentions fail to pass muster.
The Applicants have, correctly in my view, cited
the First
Respondent in his/her capacity as “
the
official who, in terms of Section 2(2) of the State Liability act, 20
of 1957 is responsible in law for the acts or omissions
of the
persons in the employ of the Department of Social Development,
Northern Cape Province.”
See:
Jayiya
v MEC, Welfare Eastern Cape Provincial Government and another
[2003]
2 All SA 223
(SCA)
at
par [5], 227 e.
One
last aspect remains and that is the question of costs. Mr.
Dutton
has forcefully argued for a punitive costs order against the First
and Second Respondents. After careful consideration
and in the
exercise of my discretion, I am of the view that such an order is
justified in the circumstances of this case. The
inordinate delay
and unbelievable prevarication by officials and employees of the
First and Second Respondents require severe
sanction in the form of
a punitive costs order which I propose to make.
The following orders are
issued:
A. In the Mweza
matter:
(i)
The First and/or Second Respondents are directed to consider and
decide upon the Applicant’s application for drought
relief made
on 15 May 2004 within 15 days of this order.
(ii) In
the event of the First and/or Second Respondent finding that the
Applicant is not entitled to drought relief, the First
and/or Second
Respondent is directed to furnish written reasons for their decision
in this regard to the Applicant’s attorneys
of record within 15
days of such decision having been taken.
(iii) The
one hundred and eighty (180) day period envisaged in terms of section
7(1)
of the
Promotion of Administrative Justice Act, 3 of 2000
, is
extended to 24 March 2006.
(iv) The Applicant is
exempted in terms of the provisions of
section 7(2)(c)
of the
Promotion of Administrative Justice Act, 3 of 2000
, from the
obligation to exhaust internal remedies.
(
v) The
First and Second Respondent is ordered to pay the Applicant’s
costs on a scale as between attorney and client jointly
and
severally, the one paying the other to be absolved.
B. In the Barendse
matter:
(i) The administrative
action of the First, Second and Third Respondent in refusing the
Applicant access to social assistance in
the form of emergency relief
funds is hereby set aside.
(ii) The
First, Second and/or Third Respondents are ordered to register and
decide the Applicant’s application for emergency
relief funds
within 15 days from the date of this order.
(iii) The
one hundred and eighty (180) day period envisaged in terms of section
7(1)
of the
Promotion of Administrative Justice Act, 3 of 2000
, is
extended to 24 March 2006.
(iv) The Applicant is
exempted in terms of the provisions of
section 7(2)(c)
of the
Promotion of Administrative Justice Act, 3 of 2000
, from the
obligation to exhaust internal remedies.
(
v) In
the event of the First and/or Second Respondents finding that the
Applicant is not entitled to emergency relief funds, to
furnish
written reasons for their decision to the Applicant’s attorneys
of record within 15 days from the date of that decision.
(iv) The
First and Second Respondents are hereby ordered to pay the
Applicant’s costs on the scale as between attorney and
client
jointly and severally, the paying the other to be absolved.
C. In respect of both
matters:
(i) A copy of this
judgment is to be transmitted to:
(aa) the
office of the State Attorney, Kimberley;
(bb) the office of the
MEC for the Department of Social Services and Population Development
in Kimberley;
(cc) the
office of the Disaster Relief Fund Board at HSRC Building 134,
Pretorius Street, Pretoria.
(ii) The Head of the
office of the State Attorney in Kimberley is directed to institute an
investigation into:
(aa) how
the “
settlement
agreement”
in both these matters came to be concluded with the respective
applicants;
(bb) who signed the
said agreements on behalf of the First and Second Respondents;
(cc) why the
agreements were concluded with the applicants personally in the
absence of their legal representatives; and
(dd) generally all
matters incidental to the aforementioned three aspects.
(iii) The
Head of Office of the State Attorney in Kimberley is directed to
furnish a written report on the said investigation to
this Court
(i.e. Williams J and myself) by no later than 30 January 2009.
_____________
SA MAJIEDT
JUDGE
I CONCUR.
_______________
CC WILLIAMS
JUDGE
FOR
THE
APPLICANTS : ADV
IT DUTTON
INSTRUCTED
BY
: TOWELL
AND GROENEWALD ATTORNEYS
FOR
THE RESPONDENTS :
NO
APPEARANCE FOR THE RESPONDENTS