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[2024] ZAMPMBHC 4
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Afriforum NPC and Another v Member of the Executive Council, Department of Social Department, Mpumalanga and Others (3935/2020) [2024] ZAMPMBHC 4 (24 January 2024)
FLYNOTES:
CONSTITUTION – Social security –
Welfare
organisations
–
Government
subsidies for care of physically and intellectually disabled
persons – Subsidy not taking inflation into
account and
remaining the same for 15 years – Cogent facts through
annual reports showing that increase in subsidy
would be
justified, possible and sustainable – Constitutional and
statutory duty to care of patients – Dignity
of most
vulnerable people, the patients, of paramount importance –
Order made for amount of future subsidy payments
and for annual
increase to be budgeted for by considering CPI or agreed
percentage – Constitution, s 27.
IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
CASE NO: 3935/
2020
(1)
Reportable:
Yes
/No
(2)
Of Interest To Other Judges:
Yes
/No
(3)
Revised:
Yes
/No
Date: 24 January 2024
Signature
In
the matter between:-
AFRIFORUM
NPC
First Applicant
SUNFIELD
HOME (FORTUNA) NPC
Second Applicant
and
THE
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF SOCIAL DEPARTMENT,
MPUMALANGA
First Respondent
THE
HEAD OF DEPARTMENT OF SOCIAL
DEVELOPMENT,
MPUMALANGA
Second Respondent
NICOLAAS
JOHANNES DU PLESSIS N.O.
Third Respondent
JUDGMENT
Mazibuko
AJ
Introduction
1.
The applicants seek an order
declaring that the
first and second respondents have failed to sufficiently budget in
that they did not take into account inflationary
increases during the
past fifteen years for subsidies of thirty-six (36) state-subsidised
residents residing with the second applicant
and for those with same
or similar circumstances as those housed with the second applicant in
the Mpumalanga Province.
2.
Further, the baseline for the calculation of the 2024/2025 financial
year subsidy
to be paid by the first and second respondents to the 36
state-subsidised residents housed with the second applicant and all
other
persons with the same or similar circumstances to the
state-subsidised residents housed with the second applicant in the
Mpumalanga
Province be calculated by increasing the current subsidy
by the consumer price index (CPI) published by Statistics South
Africa,
with specific percentage increases outlined for each year
from 2008 to 2023.
3.
They further seek an order for the first and second respondents to
take reasonable
measures (including interim steps) by budgeting
sufficiently, taking into account inflation in terms of the CPI for
subsidies of
any state-subsidised resident residing at the second
applicant, and, all other persons with the same or similar
circumstances to
the state-subsidised residents housed with the
second applicant in the Mpumalanga Province for the 2024/2025
financial year and
subsequent financial years.
4.
The applicants further seek an order directing:
4.1.
The first and second respondents to, within twelve months of the date
of this order, deliver
to the applicants and file at this court a
report, under oath, on their implementation of sufficient budgeting.
Such a report may
deal with any relevant matter the respondents wish
to raise or report. In addition, it will set out the details of what
steps they
have taken and are still to take to sufficiently budget,
as well as when they will take each further step to sufficiently
budget.
4.2.
The applicants are to deliver their commentary under oath on the said
report within one month
after service upon it of the said report.
4.3.
Within two weeks after service upon them of the applicants’
commentary, the respondents
will deliver their reply under oath to
the commentary.
4.4.
The applicants, if so wish, to enrol the matter for hearing after
that to determine whether the
first and second respondents have
sufficiently budgeted and for such other relief as the applicants may
seek in the light of the
information exchange.
5.
The first applicant
(
hereinafter
referred to as ‘Afriforum’
)
is a
non-profit
company registered as such in terms of the company laws of the
Republic of South Africa. The second applicant (
hereinafter
referred to as ‘Sunfield’
)
is a non-profit company registered as a welfare organisation in terms
of the provisions of section 13 of the National Welfare
Act
[1]
,
located in Balfour, Mpumalanga. It accommodates and cares for about
sixty-seven (67) physically and intellectually disabled persons.
36
are state-subsidised by the Department of Social Development
(
hereinafter
referred to as ‘
DSD’).
6.
The first respondent is a Member of the Executive Council of the
Mpumalanga Department
of Social Development (
hereinafter referred
to as ‘the MEC’
). The second respondent is the head
of the Department of Social Development (
hereinafter referred to
as ‘the HOD’
). DSD is Constitutionally obligated to,
among other things, care or cause to care for people who are
physically and intellectually
disabled.
7.
The third respondent is the Curator
ad litem
(hereinafter
referred to as ‘the curator’) appointed to investigate
and report back to court the conditions of the
36 state-subsidised
persons housed at Sunfield (
hereinafter referred to as ‘the
patients’
).
Background
8.
A service level agreement (
SLA)
was concluded between DSD and
Sunfield regulating
the rights and obligations of
DSD and Sunfield when patients are placed with Sunfield for care by
DSD.
The dispute between Sunfield and DSD
concerns the non-increase of the subsidy it receives for caring for
the patients. A new SLA
was due to be entered into after the existing
SLA had expired on 31 March 2022. To date, it has yet to be signed.
9.
On 30 May 2021, the Sunfield board of directors addressed a letter to
the MEC
calling upon DSD to increase the subsidy amount for its
patients, indicating that Sunfield could not continue operating
sustainably
with insufficient subsidies received. In the past 15
years, the subsidy amount has not been increased in terms of the
annual CPI
inflation rates. Further, the letter recorded
[2]
.
10.
In response, DSD, on 13 July 2021, proposed a meeting with Sunfield’s
Board and management
for 26 July 2021. On 15 July 2021, Sunfield
received a written notice in terms of the SLA stating that DSD would
make funds available
in the amount of R2 169.19 per each of the
36 patients per month.
11.
On 26 July 2022, the proposed meeting about the inadequate funding
was held. DSD responded
that Sunfield should sign a further SLA with
them. After that, they would review the funding and decide on the
increase request.
Sunfield board of directors did not agree as they
believed that would result in a breach of their fiduciary duties. The
meeting
agreed that Sunfield would sign an SLA expiring on 30
September 2022 to facilitate the due and owed payments to them.
12.
DSD indicated that they would remove the patients by no later than 30
September 2022. On
16 and 17 August 2022, two DSD officials visited
Sunfield to determine where the patients could be placed.
13.
Hurter Spies Attorneys (HS Attorneys), on behalf of the applicants,
dispatched a letter
dated 23 August 2022 to the MEC informing her
that Sunfield would be amenable to extending the SLA beyond September
2022, provided
a new SLA was provided to Sunfield, making a provision
for an increase in subsidy that is equal to the fees paid by Sunfield
home’s
private residents. Also, if DSD did not, by no later
than 31 August 2022, reconsider and review its decision to relocate
the patients
and increase Sunfield’s subsidies, their
instructions were to approach the court for appropriate relief,
including punitive
costs.
14.
DSD invited Sunfield’s board for a meeting on 1 September 2022.
They stated they consulted
with all relevant authorities to find a
possible solution.
15.
On 2 September 2022, through their attorneys, the applicants informed
her that they were
unavailable on 1 September but on 6 or 8
September. The MEC indicated her unavailability on 6 and 8 September
2022 and said she
would revert with further dates.
16.
On 8 September, HS Attorneys wrote to the MEC seeking an undertaking
by close of business
day on 9 September 2022 that the 36 patients
would be kept from being relocated pending the dispute's final
resolution concerning
the subsidy increase. Further, DSD would
continue to pay the R1 984 per patient per month pending
resolution of the matter.
On 9 September 2022, DSD proposed a meeting
with Sunfield’s board for 20 September 2022.
17.
On 12 September 2022, HS Attorneys informed DSD that they were
amenable to that meeting.
However, they held an instruction to
prepare an urgent application following DSD’s failure to
provide a written undertaking
as requested and that such an
application would be served on DSD on 14 September 2023. They asked
for an undertaking on the same
basis by 9H00 on 14 September 2022.
18.
On 15 September 2022, an urgent application was lodged for an order
preventing DSD from
removing the 36 patients from Sunfield and
directing DSD to pay Sunfield an amount of R1 984 per patient
per month, pending
the institution and finalisation of the
application.
19.
The application was heard as urgent.
Rule nisi
was issued in
favour of the applicants on 27 September 2022, among others, calling
upon DSD to file a report on affidavit, followed
by the South African
Human Rights Commission (SAHRC), whose views the court decided should
be considered. The court also believed
that the applicants and the
SAHRC had no authority to represent the patients in then and future
litigation. It determined that
only the
curator ad litem,
who
was properly appointed, would have such powers and authority.
20.
DSD did not oppose the application. The rule nisi was confirmed on 14
November 2022. To comply
with the court order, in November 2022, DSD filed their report. The
SAHRC filed its report in December
2022, whilst the curator filed his
in May 2023.
Issues
21.
The determination to be made is whether the applicants have made a
case for the orders they
sought and whether condoning the late filing
of DSD’s report is in the interest of justice.
Condonation
22.
According to the 27 September 2022 confirmed on 10 October 2022 Rule
nisi
, DSD was ordered to, by no later than 30 calendar days of
the order, compile and deliver a report to the applicants, SAHRC and
the curator,
investigate and report to this court
on affidavit (including such submissions they intend to make) over
the:
(a)Physical, mental, social and
economic circumstances of each one of the state residents;
(b)The alternative residence that is contemplated
for of each of the state residents and
(c)
What measures the first and second respondents intend to take to
secure the continued overall well-being of the State residents.
23.
DSD requested the court to condone the late filing of its report. Its
report was due to
be filed on 28 October 2022. However, it was filed
twenty days later. In Van Wyk v Unitas Hospital (Open Democratic
Advice Centre
as Amicus Curiae)
[3]
,
it was stated: “
This
court has held that the standard for considering an application for
condonation is the interest of justice. Whether it is in
the interest
of justice to
grant
condonation
depends upon the facts and circumstances of each case. Factors that
are relevant to this inquiry include but are not
limited to the
nature of the relief sought, the extent and cause of the delay, the
effect of the delay on the administration of
justice and other
litigants, the reasonableness of the explanation for the delay, the
importance of the i
ssue
to be
raised in the intended appeal and the prospects of success.”
24.
DSD stated that they assessed Sunfield on 19 to 21 October 2022. The
teams
were divided into two
from DSD and DOH. No details were provided as to the reasons for the
late filing of its report. The applicants
did not oppose the late
filing. However, they viewed the report as inconsequential as it was
filed after the confirmation of the
rule
nisi.
25.
The issues dealt with in the DSD’s report are of importance as
they relate to the
welfare of the vulnerable patients of Sunfield,
both physically and intellectually
disabled. DSD bears both
statutory and constitutional duties to care for the patients. Their
contribution to the welfare of the
patients is of utmost importance
and value. Condoning the late filing of their report will be in the
interest of justice.
Legal principles
26.
The High Court may grant a declaratory order without any
consequential relief sought
[4]
.
When
considering the grant of declaratory relief, the court will not grant
such an order where the issue raised before it is hypothetical,
abstract and academic or where the legal position is clearly defined
by statute.
27.
The
requirements in respect of the granting of a declaratory order are
two-fold:
“
A
declaratory order is an order by which a dispute over the existence
of a legal right is resolved, which right can be existing,
prospective or contingent. [11] To obtain a declaratory order, the
following requirements must be met- (a) The court must be satisfied
that the applicant has an interest in an existing, future, or
contingent right, and (b) Once the court is satisfied, it must be
considered whether or not the order should be granted.
’
See Cordiant Trading CC v
Daimler Chrysler Financial Services (Pty) Ltd
[5]
.
28.
Issuing the rule nisi, the court considered section 38 of the
Constitution
[6]
and concluded
that Sunfield and Afriforum, as well as SAHRC, had no power and
authority to act on
behalf of the patients. Subsequently, the curator was appointed. The
curator compiled a report and made recommendations.
The
application is supported
by Sunfield’s affidavit deposed to by one of its directors, NZ
Mthembu (herein referred to as ‘Mthembu’).
29.
Section 38 of the Constitution provides that:
‘
Anyone listed
in this section has the right to approach a competent court, alleging
that a right in the Bill of Rights has been
infringed or threatened,
and a Court may grant appropriate relief, including a declaration of
rights. The persons who may approach
a Court are:- a. Anyone
acting in their own interest, b. Anyone acting on behalf of
another person who cannot act in
their own name, c. Anyone
acting as a member of, or in the interests of, a group or class of
persons; d. Anyone acting in
the public interest, and e. Association
acting in the interests of its members.’
30.
In determining whether the order should be granted, the object of a
mandamus must be considered.
The object of mandamus “…
is to
compel an administrative organ to perform some or other statutory
duty. The remedy is somewhat limited because the administration
cannot be compelled to do anything it is not obliged to do under the
enabling statute.”
[7]
31.
A
mandamus is an order that a court issues directing a party to either
do something or refrain from doing something. It is
a remedy
against the effects of an unlawful action that has taken place. It
may be granted where there is a clear duty to perform
the act
ordered. To grant a mandamus, the following requirements must be
proved- (a) A clear right, (b) An injury actually
committed or
reasonably apprehended, and (c) The absence of similar
protection by any other ordinary remedy. [10] A declaratory
order is
a flexible remedy which may be accompanied by other forms of relief,
including a mandatory order. It is valuable in a
constitutional
democracy.
’
[8]
32.
It is not a requirement that a Constitutional right should have been
actually violated.
All that needs to be shown is that a right is
under threat and that there is, therefore, a reasonable probability
of an infringement
of that right
[9]
.
A right is said to
have been infringed or threatened if the conduct is objectively
inconsistent with a right contained in the Bill
of Rights
[10]
.
Discussion
Declaratory
orders
33.
The applicants seek an order declaring that the
first and second respondents have failed to take reasonable measures
to make provision
for the needs of the thirty-six (36)
state-subsidised residents residing with the second applicant,
specifically by not taking
into account inflationary increases during
the past 15 years in budgeting for the subsidies payable to the
second applicant. Also,
for those with the same or similar
circumstances as the state-subsidised residents housed with the
second applicant in the Mpumalanga
Province.
34.
Also, the baseline for the calculation of the 2024/2025 subsidy to be
paid by the first
and second respondents to the 36 state-subsidised
residents housed with the second applicant and all other persons with
the same
or similar circumstances to the state-subsidised residents
housed with the second applicant in the Mpumalanga Province be
calculated
by increasing the current subsidy by the consumer price
index (CPI) published by Statistics South Africa, with specific
percentage
increases outlined for each year from 2008 to 2023.
35.
At
the centre of this application is the best interest of the
patients residing at Sunfield and those housed in facilities same or
similar to Sunfield across the Mpumalanga province. The 36 patients
at Sunfield have an interest in their rights in terms of the
Welfare
Act and the Constitution, and such rights must be respected and
protected.
36.
The applicants relied on the DSD’s annual reports for financial
years 2020/2021 and
2021/2022, arguing that DSD can provide an
adequate subsidy for Sunfield and other facilities of the same or
similar circumstances
to that of Sunfield. They submitted that for
the 2020/2021
financial year
,
DSD budgeted for R625 708 000
for
transfers and subsidies
, with an
expenditure
of
R580 163 000, whilst
underspending
an amount of R45 500 000.
Regarding
the financial year 2021/2022, it was averred that the DSD annual
report reflected a surplus of R58 500 000.
37.
In their report, DSD stated that they had been unable to meet
Sunfield's
demands to increase the
funding since the programme for persons with disabilities has not
increased the subsidy for the past 15
years. The decision not to
increase the subsidy is based on the budget allocated by the
Treasury, notwithstanding that DSD continued
to present the Treasury
with shortfalls and budget pressures to secure additional funding.
38.
Compelling facts need to be placed before the
court, establishing that DSD failed to provide the increase in their
budgeting preparations
in the past 15 years. Also, grounds upon which
to direct DSD to make a provision in their 2024/ 2025 financial year
budgets to
cater for the past 15 years (from 2008 to 2023).
39.
In the case of Rail Commuters
[11]
,
the Constitutional court stated: ‘
A
final consideration will be the relevant human and financial resource
constraints that may hamper the organ of state in meeting
its
obligation. This last criterion will require careful
consideration when raised. In particular, an organ of state
will not be held to have reasonably performed a duty simply on the
basis of a bald assertion of resource constraints. Details
of
the precise character of the resource constraints, whether human or
financial, in the context of the overall resourcing of the
organ of
state, will need to be provided. The standard of reasonableness so
understood conforms to the
constitutional
principles of accountability, on the one hand, in that it requires
decision-makers to disclose their reasons for
their conduct, and the
principle of effectiveness on the other, for it does not unduly
hamper the decision-makers’ authority
to determine what are
reasonable and appropriate measures in the overall context of their
activities.”
40.
When granting the rule
nisi
, the court was specific in its
order as to what the DSD report needed to cover. It would not be
proper to expect DSD’s report
to have covered the details of
their resource constraints that caused them not to cater for the
increase in the subsidy budget
in the years between 2008 and 2023.
Absent the cogent facts showing the DSD’s failure to budget
sufficiently for subsidies
by accounting for inflation over the past
15 years, the court is not justified in granting such a declaratory
order.
41.
DSD’s report indicated that the decision not to increase the
subsidy was due to the
budget allocated by the Treasury, even though
they continued to present the Treasury with shortfalls and budget
pressures to secure
additional funding. DSD did not provide any proof
in the form of documentation or correspondence between them and the
Treasury.
However, I could not find any grounds not to accept their
explanation.
42.
On reading the note relating to the 2020/21
financial year under expenditure, as referred to by the applicants,
the annual report
stated, ‘
Underspending
recorded under transfers and subsidies item relate to Presidential
Employment Initiative funding which was additional
funds received
during adjustment appropriation in November 2020. The funds could not
be spent wholly owing to the longer than anticipated
logistical
process of advertisement to call for interested ECD centres to apply
for this funding and the verification process required
to ascertain
eligibility for funding all applications are received.’ (sic).
43.
Regarding the 2021/2022 financial year annual report, it is noted:
“
Underspending on this item is in relation to Presidential
Employment Initiative of ECD employee stimulus package. This is
attributed
to significant errors and complexities in the applications
received from NPOs that have resulted in consequential delays of
payment
of claims.”
44.
Further, under social welfare services, an entry is made: “
Under
expenditure in this programme is recorded largely from additional
funds which were appropriated during adjustment appropriation
in
November 2021 in relation to Presidential Employment Initiative
stimulus package for early childhood development centres employees.
This is attributed to significant errors and complexities in the
applications received from NPOs that have resulted in consequential
delays of payment of claims.”
45.
Given the preceding,
the underspent of
R45 545 000 by DSD for the financial year 2020/2021 and the
surplus of R58 500 000 for the
2021/2022 financial year are
accounted for in the notes of the annual reports, respectively. In my
view, the subsidy is budgeted
for together with the increase;
however, the provision for an increment thereof is not received from
the Treasury.
46.
The fact that DSD underspent for the financial years 2020/2021 and
2021/2022 does not mean
that they did not make provision for the
increase in the subsidy for the years from 2008. It also cannot be
the grounds for granting
an order for DSD’s calculation of the
financial year 2024/2025 subsidy to be paid by DSD to Sunfield and
other homes or facilities
with the same or similar circumstances to
be calculated by increasing the current subsidy by the CPI index
published by Statistics
South Africa, with specific percentage
increases outlined for each year from 2008 to 2023. Consequently, the
declaratory order
application stands to fail.
47.
It is common cause that the subsidy has remained the same since 2008.
What the facts need to establish
is that DSD failed to specifically
account for inflationary increases when budgeting for the subsidies
over the past 15 years.
The applicants should have presented
persuasive facts to support their averments that the non-increase in
the subsidy was due to
the failure of DSD. These averments,
therefore, remain a bare statement with no proof.
48.
I could not find that DSD has not previously made
recommendations for the increase. In their report, DSD stated that
they had previously
requested the same from the Treasury with no
success. I, therefore, found no convincing facts that DSD has
neglected or failed
in its budgeting for the subsidy for Sunfield and
other homes or facilities with the same or similar circumstances to
request the
increase as indicated.
49.
Further, there is no justification to grant a declaratory order
that
the baseline for the calculation of the financial year 2024/2025
subsidy to be paid by DSD to the patients housed with Sunfield
and
all other persons with the same or similar circumstances to those of
Sunfield in the Mpumalanga Province be calculated
by increasing
the current subsidy by the CPI published by Statistics South Africa,
with specific percentage increases outlined
for each year from 2008
to 2023.
Other Relief
50.
The applicants, through their counsel, submitted
that DSD needed to be ordered to take reasonable measures (including
interim steps)
by budgeting sufficiently, taking into account
inflation in terms of the CPI for subsidies of the patients and all
other patients
with the same or similar circumstances to those of
Sunfield in the Mpumalanga Province for the 2024/2025 financial year
and subsequent
financial years.
51.
Sunfield averred that its monthly operating expense per
patient is R7 637.23. It is common cause that
DSD
provides a subsidy of R1 984 per month. Each patient receives a
monthly social grant of R1 990, which is paid directly
to
Sunfield. The subsidy is not sufficient. DSD pays R3 974 per
month for each patient's care, with a shortfall of about R3 663.23
to meet a monthly patient’s expense at Sunfield.
52.
The SLA between DSD and Sunfield expired on 31 March 2022. Sunfield
continued to house and
care for the patients. DSD continued to pay
the subsidy. On 15 June 2022, in terms of clause 5 of the SLA, DSD
issued a notice
where they would appropriate and make payment of
R2 169.19 instead of R1 990 per patient per month. DSD
considered and effected
an increase in the subsidy, though the
increased amount was never paid.
53.
On 26 July 2022, DSD and Sunfield’s negotiations about the
increased subsidy amount
failed. Subsequently, in August 2022, DSD
assessed Sunfield to relocate the patients. The culmination of these
events contributed
to the lodging of this application.
54.
Outside the SLA, before the court issued the rule
nisi
, the
parties continued as if the SLA still existed. I do not find Sunfield
unreasonable in requesting an increase in the subsidy.
In terms of
all the reports, there is an apparent shortfall.
55.
In their affidavit, the applicants’ reasons for the
increase that necessitated the court to intervene are that there was
a
shortfall after balancing the money received for the residents with
the operating expenses. Sunfield did not elaborate on any specific
reasons and justification for the need for increased funding.
SAHRC noted that though Sunfield did not give a breakdown of
their expenses, it was clear there was a shortfall.
56.
The curator also recommended that
DSD should
approach the Treasury to reconsider the current subsidies paid to
non-profit organisations with a request to increase
such.
Some
of the Sunfield board members have their children residing in
Sunfield. They informed him that the subsidy paid in other provinces
is much higher than that paid in Mpumalanga. Not much detail was
provided in this regard.
57.
The report further stated that DSD concluded an SLA with Baneng
for the intake of
30 patients, lapsing in August 2024 at R500 per
patient per day. Baneng is a for-profit organisation. It is fully
equipped to cater
for mentally ill and cerebral palsy patients. It
has 545 beds. It consists of an in-house pharmacy, kitchen and
laundry. It is
located close to hospitals in the event of
emergencies. It was hygienic and well-managed. Men and women
are separated. Patients
who require 24-hour care have their separate
sections. Baneng would need four to eight weeks to make the necessary
preparations
to cater for the individual patients’ needs.
58.
Rail Commuters
[12]
, stated
that ‘
the
relevant human and financial resource constraints will require
careful consideration when raised. The organ of state will not
be
held to have reasonably performed a duty simply on the basis of a
bald assertion of resource constraints.’
59.
The two DSD annual reports referred to by the applicants revealed
that in the 2020/2021
and 2021/2022 financial years, DSD underspent
in millions of rands. DSD did not resist the application for the
increased subsidy.
What they raised as the hindrance to the
non-increase is that the Treasury allocation of the budget has never
provided sufficient
funding.
60.
Considering the under-expenditure in the 2020/2021 financial year and
surplus in the 2021/2022
financial year, it can be concluded that DSD
can make an adequate provision for the increase in the subsidy for
the patients in
Sunfield and for the same or similar facilities to
Sunfield in the Mpumalanga province from the financial year 2024/2025
and onwards.
61.
I find that DSD has available resources to
provide
adequate subsidies to organisations which take care of persons with
physical and intellectual disabilities, enabling them
to have
sufficient facilities and care thereof, hire adequate staff and
provide them with proper remuneration, and provide adequate
transport. Cogent facts, through the annual reports were placed
before the court, showing that the increase in the subsidy would
be
justified, possible and sustainable when regard is had to the two
annual reports of previous financial years.
62.
The curator recommended that
it would be in
the best interest of the patients that they remain at Sunfield until
a proper classification of the patients has
been concluded, and the
funding issue has been adequately addressed.
Sunfield
and its Board applied to DOH to be registered as a facility that may
accommodate mental health users.
63.
In February 2023, the curator visited Sunfield, where they
interviewed Sunfield’s
directors, personnel and the relevant
state residents. Among others, at Sunfield, the curator was presented
with admission files,
Cardex cards comprising of reports by care
workers, communication books, medical files, incident forms,
disciplinary register and
evaluation files.
64.
The curator stated that not all patients were assisted by caregivers.
They were
encouraged to be visited
by family. Of the 36 patients, only 15 have families
that can visit and
contact. The other 15 have family members who seldom make contact,
and six do not have any family. They confirmed
being in the process
of registering with the DOH, though they are still waiting for the
required occupational and rezoning certificate
from the Municipality
to do so.
65.
Since the placement of the 36 patients, neither DSD nor DOH objected
to their placement.
Sunfield denied that 95% of the 36 patients had a
mental health condition. Sunfield and DSD have no Standard Operating
Procedures
for transferring a private patient to a state patient.
66.
Sunfield hosts various fundraisers and receives support from the
community, which donates
food and other goods. They confirmed that on
one occasion, they took the patients to DSD’s office ‘
(after
explaining to the patients that they were going on a joyride since
Eskom bills had to be paid and DSD did not effect payment)’
to put pressure on DSD to effect payment. The report revealed that
taking the patients to DSD’s office was merely a desperate
attempt to have DSD consider an increased subsidy and not transfer
the patients to another facility.
67.
SAHRC
also investigated
and concluded that there was a lack of oversight by DSD. It is the
same with DOH regarding monitoring or inspection
and auditing to
ensure compliance with the norms and standards required by DOH.
Sunfield was not qualified and capacitated as it
was not licensed to
accommodate people with mental and intellectual disabilities, which
may pose a serious risk to those with mental
disability as opposed to
their relocation.
68.
SAHRC
disagreed with Sunfield that
retaining the patients with Sunfield is the better option. It relied
on the fact that DSD informed
that they had a transitional plan with
timelines to ensure ease of relocation of the patients, though with
few details. The safety
of patients needed to be prioritised. The
relocation should be timely. There must be piloting and due diligence
conducted by the
relevant stakeholders, including experts in the
medical sector, in planning and implementing the relocation.
69.
DSD’s report indicated that
Sunfield had
been a home for most patients, and relocation might frustrate their
physical and mental well-being. However, they were
concerned each
time there were disagreements with Sunfield regarding delays in
subsidy payments, Sunfield would threaten them or,
at times, present
the patients to the local DSD offices.
70.
To avoid the recurrence of removal and bringing the patients to DSD's
offices in case of
disagreements on the subsidy increase. DSD found
an alternative placement option at Baneng. Further, they have a
transitional plan
that would encourage the involvement of the
patients’ families to manage the transition properly and ensure
that the families
can cope and provide the necessary support to the
patients.
71.
In compliance with section 7(2) of the Constitution, the state must
respect, protect, promote
and fulfil the rights enshrined in the Bill
of Rights. In terms of section 27(2) of the Constitution, ‘
the
state must take reasonable legislative and other measures within its
available resources to achieve the progressive realisation
of the
right of the people of South Africa to have access to health care
services, including reproductive health care’.
In terms of
section 24(a) of the Constitution, ‘
everyone has the right
to an environment that is not harmful to their health or well-being.’
72.
In terms of
the
Mental Health Care Act
[13]
,
‘
Anyone
who wishes to operate a residential and or a daycare facility which
provides care treatment and rehabilitation for five or
more persons
with mental illness and or severe or profound intellectual
disabilities should be designated and licensed by the relevant
head
of the Department of Health in terms of the Mental healthcare act.
Further, before a license is granted, an inspection team
of the
Department of Health must conduct a physical inspection of the
relevant facility and record the outcome regarding the norms
and
standards for licensing of residential and daycare facilities.
Once a license is
issued, an inspection or monitoring team must conduct quarterly
inspections to monitor facility compliance with
all the relevant
prescripts. The Provincial DOH must also conduct monthly audits in
the facility and record the outcome in the
assessment and compliance
report for residential and daycare facilities, as well as make
recommendations that would be
considered
when the license renewal is being considered.’
73.
The reports of SAHRC and the curator both raised a concern, though
according to the curator,
DSD and DOH were aware and did nothing of
the fact that Sunfield housed patients with intellectual disabilities
with no licence.
SAHRC concluded that
Sunfield was not qualified and capacitated as it is not licensed,
skilled and competent
to accommodate people
with mental and intellectual disabilities, which may pose a serious
risk to those with mental disability as
opposed to their relocation.
74.
Where DSD or DOH delegate their duties to a welfare home,
organisation or facility to care
for the patients, they are not
relieved of their obligations. Their statutory and constitutional
obligations to care for patients
continue. To
give
effect to the right to receive appropriate social assistance, t
he
subsidy must be appropriate for DSD to have fulfilled its
obligations. At the facilities where they are cared for, the patients
should enjoy a complete and decent life in a conducive environment
that ensures their dignity, promotes self-reliance, and facilitates
active participation in the community. Such should be done within the
DSD and DOH available resources.
75.
Of paramount importance and centre of this application is the dignity
of the most vulnerable
people, the patients. Both DSD and Sunfield
failed to resolve the issue of the subsidy increase. Sunfield went as
far as taking
the patients to DSD’s offices ‘
after
explaining that they were going on a joyride, as Eskom bills needed
to be paid, and DSD did not effect payment.’
They were used
as a negotiation tool to put pressure upon DSD to increase the
subsidy.
76.
I found Sunfield's conduct to be a serious violation of the patients’
rights to dignity.
The patients with their different disabilities,
physical and intellectual, were taken to an office where the
officials and other
people (the public) could not have been aware of
the patients' sickness or condition. The public’s reaction to
seeing the
patients from Sunfield to the DSD’s office and back
is safer left to the imagination.
77.
Conversely, some patients might be unaware of their surroundings. It
is disappointing that
the patients were exposed to such treatment by
Sunfield, the facility acting instead of DSD or delegated by DSD to
care for these
patients. A human being cannot be used as a tool to
put pressure or for negotiation. It does not matter under what
circumstances
they find themselves, be it sickness, a condition, or a
lack of basic needs.
78.
Noting Sunfield’s conduct, DSD ought to have realised then that
the patients’
welfare at Sunfield was no longer secured and
protected, necessitating prompt removal and placement of the patients
in the facility
where they would be treated with respect and dignity.
DSD and DOH are responsible for avoiding a situation or state of
affairs
that endangers life or health or that adversely affects the
well-being of the patients.
79.
Section 27 provides that everyone can access health care, food,
water, social security,
and social assistance if they cannot support
themselves and their dependents. The state must take reasonable
legislative and other
measures within its available resources to
ensure the progressive realisation of these rights. These rights
apply to all persons,
including those with disabilities and DSD and
DOH are responsible.
80.
Whilst guarded and appreciating that the grant of a structural
interdict might amount to
an interference with the authority and
discretion of the executive arm of the government.
In the
circumstances, persuasive facts and details warrant granting the
declaratory order for
the safety and welfare of
the patients. Such relates to DSD and DOH re-screening all patients
in Sunfield and other similar facilities
in the Mpumalanga province
to ensure their proper classification and that they are accommodated
in the correct facility.
81.
The court is justified to direct DSD and DOH or any other office of
interest to parade respect
and protection of the patients’
rights in Sunfield and other facilities of the same or similar
circumstances to Sunfield
in the Mpumalanga province. Such exhibition
is purposed to ensure that the state-subsidised residents in these
facilities are not
marginalised, ignored and stigmatised.
82.
The question of inequality cannot arise from what is said or heard
but from cogent facts
with details placed before the court for the
court to decide. DSD did not deny that the other facilities are not
receiving adequate
subsidies. In responding to Sunfield’s
demand, they said that if they increase Sunfield’s subsidy
towards the patients,
they would have to do the same for the other
facilities.
83.
It is necessary for the court to interfere with
DSD
and DOH’s authority and discretion for them to be directed to
remove and place the patients in the correct facility as
soon as
possible. Whilst such arrangements are made, it will be proper for
Sunfield to continue to care for the patients and DSD
to continue to
pay Sunfield until the said patients are removed and relocated.
Alternatively, until a new SLA has been agreed upon
between DSD and
Sunfield.
84.
The grant of such relief might amount to an interference with the
authority and discretion
of the executive arm of the government. The
court wishes to refrain from stipulating to DSD and DOH how the
departments discharge
their duties and obligations to the patients in
the province and the details of what steps to be taken concerning
their budgeting
process and the increase, as well as other related
matters thereof. However, this is an appropriate matter for granting
a structural
interdict. Such relief has been granted on numerous
occasions and is suitable.
85.
DSD owes a Constitutional and statutory duty to care for the
patients of Mpumalanga province. So is DOH for persons with
intellectual
disability. They have a responsibility to take
reasonable steps to settle any disputes with its service providers
like Sunfield,
mainly where such deadlock affects the care of one of
society's most vulnerable groups.
86.
The applicants further sought an order directing DSD to deliver to
the applicants and file
a report, under oath, as to their
implementation of sufficient budgeting. Such a report may deal with
any relevant matter the respondents
wish to raise or report. In
addition, it will set out the details of what steps they have taken
and are still to take to sufficiently
budget, as well as when they
will take each further step to sufficiently budget. The applicants
are to deliver their commentary
under oath on the said report
87.
Based on the DSD annual reports relating to the underspent and the
surplus in the previous
financial years, I have already found that
DSD has available resources to adequately subsidise facilities like
Sunfield and others
same or with similar circumstances as Sunfield in
the Mpumalanga province. There are no grounds for the court to grant
an order
directing DSD to present its budget and other related steps
relating to proper funding of facilities like Sunfield in the
Mpumalanga
province. Sunfield stated how much they needed to cope
with the patients’ expenses. DSD did not in any way resist.
Costs
88.
The applicants, through their counsel, argued that they be awarded
the costs of suit. I
find no justification for that argument. It is
not sustainable with the facts and circumstances before me. It is
common cause,
DSD and the rest of the respondents did not oppose the
application.
Conclusion
89.
Having considered the facts before me and the circumstances of the
case, I conclude that
the steps shown to have been taken by DSD as a
department and Sunfield in resolving the financial support towards
the patients
are unfeasible and characterised by delays and
restrictions. The patients are entitled to the relief as such an
order is justified
in the circumstances of this case. It is in the
interest of the patients that their rights be respected and protected
by granting
the following order.
90.
I, accordingly, make the following order:
Order
1.
The late filing of the Department of Social Development report is
condoned.
2.
The state-subsidised residents (the patients) will
remain at Sunfield until a proper classification has been concluded
and the funding
issue has been appropriately addressed.
3.
Department of Social Development
will continue to
make payments of R1 984 per month per state-subsidised resident to
Sunfield until a new Service Level Agreement
(SLA) is agreed upon.
4.
In the event that the
Department of Social
Development
and Sunfield do not agree regarding
the subsidy amount or increase thereof or any matter, the
Department
of Social Development
has to remove and house the
patients in an appropriate facility within six weeks of such a
disagreement.
5.
Department of Social Development
will, with effect
from 1 April 2024, make payment to Sunfield towards the subsidy in
the amount of R7 637.23 per month per
state-subsidised resident.
An annual increase in the subsidy shall be budgeted for by
considering the CPI or agreed percentage.
6.
Department of Social Development
will, with effect
from 1 April 2024, make payment to facilities of the same or similar
circumstances to that of Sunfield in the
Mpumalanga province towards
the state-subsidised residents’ subsidy in the amount of
R7 637.23 or an agreed amount per
month per state-subsidised
resident. An annual increase in the subsidy shall be budgeted for by
considering the CPI or agreed percentage.
7.
Department of Social Development
and
Department
of Health
will re-screen all
patients in Sunfield by no later than 16 February 2024 to ensure
their proper classification, allocation and
accommodation to an
appropriate facility in terms of the Mental Health Act Guidelines.
8.
Department of Social Development
and
Department
of Health
will accommodate the
state-subsidised resident in the appropriate facility by 1 April
2024, following the classification in paragraph
7 above.
9.
Department of Social Development
and
Department
of Health
will re-screen all
state-subsidised residents in other facilities with the same or
similar circumstances as Sunfield in the Mpumalanga
province by 4 May
2024 to ensure their proper classification, allocation and
accommodation to an appropriate facility in terms
of the Mental
Health Act Guidelines.
10.
Department of Social Development
and
Department
of Health
will accommodate the
patients in the appropriate facility by 1 July 2024, following the
classification in paragraph 9 above.
11.
The
curator
ad
litem
is
to bring this order to the attention of the MEC and HOD for the
Department of Social Development, the MEC and HOD for the Department
of Health, the State Attorney, and the South African Human Rights
Commission, and/or any other person of interest, by no later
than
seven (7) calendar days of the order.
12.
No
order as to costs.
N. MAZIBUKO
Acting Judge of the High
Court of South Africa
Gauteng Division,
Johannesburg
This
judgment was handed down electronically by circulation to the
parties' representatives by email.
Representation
For
the applicant:
Mr
JHA SAUNDERS
Instructed
by:
Hurter
Spies Inc
For
the first and second respondent:
No
appearance from the State
Attorney’s
office
Curator
ad litem
:
Nicolaas
Johannes Du Plessis
Hearing
date:
27
October 2023
Delivery
date:
24
January 2024
[1]
Act
100 of 1978
[2]
The current SLA expires on 31 March 2022. Should your Department
wish to enter into a further SLA for another 3year period, the
board
of directors of Sunfield Fortuna hereby advises the Department that
it is not prepared to enter into such an SLA unless
the quarterly
subsidy per state resident is increased to an amount of 23,000 per
quarter.
Should
the Department not consider it reasonable to increase the quarterly
subsidy to the above amount, the Board of Sunfield
Fortuna will
advise the Department to withdraw all state residents on 1 April
2022 for relocation to another home for disabled
persons.’
[3]
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at 447A-B
[4]
Section
21(1)(c)
of the
Superior Courts Act, 10 of 2013
[5]
2005(6) SA 205 (SCA) paras 16-17.
[6]
Constitution of the Republic of South Africa Act 108 of 1996.
[7]
Burns & Beukes: Administrative Law under the 1996 Constitution,
3rd Edition, Lexis Nexis, at P.525.
[8]
2005(2) SA 359 (CC) para 107- 108
[9]
Geuking v President of the Republic of South Africa 2003(3) SA 34
(CC) at para [32] to [34].
[10]
Ferreira v Levin NO and Others, Vryenhoek and Others v Powell no and
others 1996(1) SA 984 (CC).
[11]
para
32 supra
[12]
Para
40
supra
[13]
Act
17 of 2002 Guidelines