REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Case No:2025-230965
In the matter between:
RATA SOCIAL SERVICES NPC, KLERKSDORP 1
st Respondent
SAVF RUSTENBURG 2nd Respondent
SAVF NORTH WEST 3rd Respondent
SAVF POTCHEFSTROOM 4th Respondent
SAVF ZEERUST 5th Respondent
SAVF KLERKSDORP 6th Respondent
SAVF LICHTENBURG 7th Respondent
CHILD AND FAMILY WELFARE, POTCHEFSTROOM 8th Respondent
CHILDLINE, NORTH WEST PROVINCE 9th Respondent
and
MEMBER OF THE EXECUTIVE COUNCIL FOR SOCIAL
DEVELOPMENT, NORTH WEST PROVINCE Respondent
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
2
This judgment was handed down electronically by circulation to the parties’
representatives and by uploading the judgment on Caselines. The date of the
handing down of the judgment is deemed to be 9 February 2026.
ORDER
a. The decision of the Department for Social Development not to fund the
applicants for the 2025/2026 financial year is reviewed and set aside.
b. The respondent is directed to conclude service-level agreements with
the applicants, taking into consideration its policies, all requisite
prescripts, and the applicants’ applications for the 2025/2026 financial
year within 10 days of this order.
c. The respondent’s failure to make decisions in terms of section 107 of the
Children’s Act 38 of 2005 is reviewed and set aside.
d. The respondent is directed to issue certificates of designation to the
applicants within 10 days of this or der, subject to the provisions of
section 107 of the Children’s Act 38 of 2005 . and the Non-Profit
Organisations Act 71 of 1997.
e. The respondent is ordered to pay the costs of the application, inclusive
of costs of senior counsel, taxed on scale C.
3
JUDGMENT
Mfenyana J:
Introduction
[1] The applicants are non-profit organisations (NPOs) registered in terms of
the Non -Profit Organisations Act
1. They all operate in the North West
province, providing social and child protection services to children in need.
They seek an order reviewing and setting aside the respondent's decision,
taken by the Department of Social Development (the Department), denying
them funding.
[1] The applicants further seek an order directing the respondent to conclude
service-level agreements (SLAs) with the applicants and to issue
certificates of designation to the applicants in accordance with section 107
of the Children’s Act
2.
[2] The respondent opposes the application.
1 Act 71 of 1997.
2 Act 38 of 2005.
4
Factual matrix
[3] The dispute between the parties emanates from a decision taken by the
Department declining the applicants’ applications for funding for the
2025/6 financial year. For some time prior to the impugned decision, the
applicants were receiving subsidies from the Department. To that end, the
applicants and the Department would conclude SLAs to regulate their
relationship. The process leading up to the conclusion of the SLA is that
the applicants would apply to the Department in the format prescribed by
the Department, submit business plans and demonstrate alignment with
departmental priorities, including social welfare. A panel from the
Department would then review the applications and make a decision. SLAs
would then be concluded with the successful NPOs.
[4] For the 2025/6 financial year, the applicants made applications to the
Department. In a letter dated 22 July 2025, the Department declined the
applications, citing the unavailability of funds and non-compliance with
funding legislative prescripts . On 26 August 2025, the applicants lodged
appeals against the decision. This was followed by another letter dated 10
September 2025, reiterating the applicants’ appeal.
[5] When the Department failed to respond to the appeal, on 2 October 2025,
the applicants’ attorneys addressed a letter to the attention of the
respondent, raising concerns about the decision to discontinue their
5
funding, citing the welfare of the beneficiaries as their key concern. The
letter further records that the applicants would institute urgent proceedings
if the matter was not resolved and no undertaking was received by 3
October 2025 that funding would continue and that the NPOs would be
registered in terms of the Children’s Act.
[6] On 8 October 2025, the Department acknowledged receipt of the appeal,
indicating that the appeal process would be finalised before the end of
October 2025.
[7] On 21 October 2025, the Department responded to the applicants,
refusing the appeal and citing mismanagement of funds by the NPO and
non- availability of funds. The present application was instituted following
that refusal.
Urgency
[8] The applicants contend that the application is urgent because they face
imminent closure, which would result in the termination of services to
thousands of vulnerable persons, especially children, due to the
withdrawal of funding. The applicants detail specific child protection cases
they are currently handling, which are at risk due to a lack of funding.
These cases involve children from 18 months to 16 years, adults who
receive assistance with food, clothing or basic needs, abandoned children
who cannot be placed, some without birth certificates.
6
[9] Notably, the applicants aver that the withdrawal of funding by the
Department has resulted in disruptions in case management, inability to
provide statutory services, trauma and uncertainty among both the staff
and beneficiaries, among others.
[10] The applicants further aver that the first applicant was requested by the
Department to take over three additional statutory cases previously
managed by the Child & Family Welfare (CFW), Potchefstroom, which they
are unable to do, as the CFW’s CPO certificates have not been issued.
[11] Other complaints relate to administrative issues in the Department’s
referral system. There are specific instances cited by the applicants of
various requests for assistance for vulnerable people directed to them
between October 2025 and November 2025. In all the instances, the
applicants aver that they could not assist the needy, reportedly due to lack
of funds.
[12] In essence, the applicants contend that they cannot provide the services
they were established to provide without funding from the respondent.
They conclude that the respondent’s neglect threatens both the
respondent's survival and the beneficiaries' rights. Importantly, they assert
that the application is instituted in their own interests and in the interests
of the beneficiaries of their services, in terms of section 38 of the
7
Constitution and is necessary to vindicate constitutional and statutory
obligations.
[13] The respondent, on the other hand, avers that the matter is not urgent and
constitutes an abuse of the urgent court process, as the urgency is self-
created. In this regard, the respondent avers that the applicants dragged
their feet, having been aware of the decision not to continue funding them
since September 2025. They point out that as long ago as 1 October 2025,
the applicants, through their attorney of record, threatened to institute this
urgent application, which was, however, only instituted at the end of
November 2025. They further argue that the applicants do not provide any
explanation for the delay, nor do they address why they would not be
afforded substantial redress in the ordinary course.
[14] The respondent assails the applicants’ reference to the specific child-
protection and other cases, which the applicants contend are threatened
by the respondent’s decision, on the basis that it is the Department’s
responsibility to deal with the cases if the applicants can no longer do so.
The deponent to the answering affidavit, Mr Mosieleng asserts that the
Department has the capacity to handle the cases, an assertion which is
vehemently denied by the applicants.
[15] According to the respondent, the children’s rights are not at risk, as it is
not anything new for the Department to take over from the NPOS. Mr
8
Mosieleng refers to a letter from the third applicant, attached to the
answering affidavit, in which the third applicant notified the respondent of
its closure from 31 October 2025, providing a detailed handover report and
an update on all pending matters. As such, the respondent concludes that
urgency cannot be justified on that basis.
[16] Rule 6(12), which governs urgent applications, allows an applicant to bring
an application on expedited timeframes. It allows a party, on good grounds,
to ‘jump the queue’ and deviate from the strict timelines stipulated in the
Rules. It requires an applicant to set out explicitly the grounds which render
the matter urgent and why they would not be afforded substantial redress
at a hearing in due course.
[17] The applicants contend that since March 2025, they have been providing
services to their beneficiaries without any funding from the respondent.
They further aver that there is imminent danger to the beneficiaries as the
Department has no plan to assist the children. Ms de Vos conceded on
behalf of the applicants that, on their own, the applicants have no right to
protect but are doing so on behalf of the children they provide services to,
who need care and protection. She added that if the court finds that the
children are not in danger, then the application should fail. However, the
applicants are adamant that the Department has not done anything to
assist the children, some of whom face abuse at their homes and are at
risk of being returned to such abusive environments.
9
[18] The record indicates that the outcome of the appeal was issued on 21
October 2025, while the application itself was filed on 27 November 2025.
Given the nature of the applicants and the fact that there are many
involved, a delay of one month is not unreasonably long.
[19] The applicants were required to exhaust all internal remedies before
approaching the court. In addition , urgency must be evaluated within a
specific context, and the circumstances surrounding the case play a crucial
role in that assessment. This matter holds significant public importance, as
it affects not only the current beneficiaries but also has implications for
future users of the social welfare services provided by the Department and
the applicants.
[20] As long as there is a reasonable fear of harm as described by the
applicants, the court must intervene to address the situation. There can be
no substantial redress to the beneficiaries (should they succeed on the
merits) if the matter is heard in the ordinary course. For those reasons, I
consider the matter to be urgent.
10
Applicants’ submissions
[21] The applicants rely on section 28 of the Constitution,
3 which guarantees
every child the right to ‘family care or parental care, or to appropriate
alternative care when removed from the family environment; the right to
basic nutrition, shelter, basic health care services and social services; the
right to be protected from maltreatment, neglect, abuse’, and their
wellbeing, education, physical or mental health, spiritual, moral or social
development must not be placed at risk. The applicants argue that these
rights cannot be progressively realised, but are guaranteed in the
Constitution, and the state has a duty to provide these services and protect
the vulnerable from the harm envisaged in section 28.
[22] They further rely on the Children’s Act, which places a statutory obligation
on the respondent to respect, promote and protect the rights enshrined in
the Constitution. The applicants add that the state has a duty to ensure the
provision of basic socio-economic services for children who lack family
3 Constitution of the Republic of South Africa, 1996.Section 28 states: (1) Every child has the right
–
(a) To a name and a nationality from birth;
(b) To family care or parental care, or to appropriate alternative care when
Removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social services;
(d) to be protected from maltreatment, neglect, abuse or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide services that –
(i) are inappropriate for a person of that child’s age; or
(ii) place at risk the child’s wellbeing, education, physical or mental health or
Spiritual, moral or social development.
(g) …, (h)… (i)
(2) A child’s best interests are of paramount importance in every matter concerning the
child.
11
care, and to provide those children with the rights and protection set out in
section 28.4 They state further that the realisation of these rights is not
limited by the availability of resources.5 The applicants contend that these
rights cannot be constrained by budgetary limitations; the real issue is
whether the state followed proper planning and budgeting processes to
comply with its constitutional obligations. The applicants contend that the
respondent has not followed proper planning procedures in this regard.
[23] Importantly, the applicants argue that the respondent has not provided any
evidence of the unavailability of funds, as they allege, and no information
about its budgeting and planning processes regarding the funds it received
from Treasury.
[24] The applicants reject the respondent’s claim that there has been any non-
compliance on their part or that the decision not to fund them was based
on previous conduct of serious financial non-compliance with the Public
Finance Management Act (PFMA).
[25] The applicants further deny that the respondent is capable of assuming
the statutory functions that the nine applicants have performed for several
years and note that the respondent has provided no evidence to support
this claim. According to the applicants, this will lead to a complete collapse
of the system, which would negatively affect the beneficiaries of the
4 Centre for Child Law v Minister of Home Affairs and Others [2005] (6) SA 50 (T) para 17.
5 ENGO and Others v Premier of Free State Province ZAFSHC 163.
12
services. They state that the Department is unable to take over the
services and has relied on the applicants to provide them in certain service
areas. They contend that the respondent would need to employ additional
social workers, but has provided no evidence of this.
[26] Regarding the respondent’s failure to provide some of the applicants with
CPO designation certificates in terms of section 107 of the Children’s Act,
the applicants contend that the application in this regard, particularly in
respect of the seventh applicant, was submitted in February 2025. Despite
enquiries, the respondent has to issue the said certificates. The applicants
aver that this decision also falls to be reviewed and set aside.
[27] The applicants aver that the Department’s decision is unlawful and
irrational because it infringes the rights and interests of the affected
children and causes the State to fail to fulfil its constitutional mandate.
[28] While the applicants acknowledge that the court will not interfere with the
exercise of administrative power in line with the doctrine of separation of
powers, they contend that the court will review and set aside a decision
which falls foul of just administrative action in terms of the Promotion of
Administrative Justice Act (PAJA) and substitute the decision of the
administrator with its own.
13
Respondent’s submissions
In limine
[29] In opposing the application, the respondent raises two points in limine. The
first is that the matter is not urgent. I have already ruled that the matter is
urgent.
[30] The second point in limine is that the deponent to the founding affidavit
lacks the necessary standing to institute these proceedings on behalf of
the second to ninth applicants and has not provided a resolution
authorising such action. However, in its notice in terms of rule 7(1), the
respondent challenges the authority of the applicants’ attorneys to act, and
calls for a resolution from all the applicants.
[31] The applicants have resolved the issue of their attorneys’ authority by filing
resolutions authorising them to act. The first applicant has also filed a
resolution authorising the deponent, Ms Cordier, to institute legal
proceedings and sign all necessary documents.
[32] The second aspect of the point in limine concerns the first applicant’s
authority to act on behalf of the second to ninth applicants. The second to
ninth applicants have, through their agents, filed confirmatory affidavits
supporting the averments in the founding affidavit.
[33] From the reading of the papers, it would appear to me that the
respondent’s real challenge is the first applicant’s authority to institute the
14
proceedings as stated above, rather than its locus standi. Locus standi
relates to a person’s interest in the subject matter, whereas authority
relates to the applicant’s authority to inst itute t he application. The first
applicant has a direct and substantial interest in the outcome of this
application. This point of law must also fail.
On the merits
[34] The respondent contends that the applicants do not have an automatic
right to funding and thus no clear right has been established. This is fatal
to the applicants’ case, particularly the relief that the court should order the
Department to conclude SLAs with the applicants, the respondent further
avers. In this regard, the respondent asserts that courts are generally slow
to interfere in the powers of the executive, in view of the doctrine of
separation of powers.
[35] The respondent further assails the approach adopted by the applicants in
not bringing the review under Rule 53. In any case, the respondent denies
that the decision is irrational or that it was made for inexplicable reasons.
[36] She denies having any knowledge that the applicants relied solely on state
funding and further contends that they were aware that they would not
receive funding every year and were expected to become self-sustainable.
The respondent notes that the SLA clearly states funding will be made
available to organisations only if sufficient means, resources, and budget
15
appropriations exist, and that any funding granted does not create a right
or entitlement to future funding. Accordingly, there can be no legitimate
expectation that funding would be provided annually, the respondent
continues. The respondent objects to the applicants’ failure to disclose the
provisions of the SLA to the court and argues that this warrants a negative
inference.
[37] Interestingly, the respondent avers that the reasons why the applicants
have not been funded are that “ either some of the applicants did not
comply alternatively, due to budget constraints or the applicants could not
be accommodated for the year 2025/2026, due to the respondent’s
budgetary constraints.” (sic)
[38] The respondent denies that it lacks the capacity to provide all the child
protection services it is constitutionally mandated to provide and states
that the Department is prepared to take over the services currently
rendered by the applicants. Importantly, the respondent asserts that no
children’s rights will be affected.
[39] The respondent notes that two of the first applicant’s three branches
received subsidies from the Department, and only the Rustenburg branch
did not. The respondent maintains that it did everything possible to
accommodate the first applicant, despite its budgetary constraints , an
16
averment which is challenged by the applicants, who contend that the
respondent has flatly refused to engage.
[40] Concerning the issuing of CPO certificates, the respondent concedes that
the applicants are entitled to review and set aside the decision, provided
they comply with Rule 53.
Discussion
[41] It is necessary to first deal with the respondent’s contention that in initiating
these proceedings, the applicants ought to have followed Rule 53 and that
the application cannot be entertained in the absence thereof. The law is
settled in this regard. There is no obligation on litigants to bring review
proceedings in terms of Rule 53.
6
[42] Section 38 of the Constitution grants any person, including those who act
in the public interest, or on behalf of others who cannot act for themselves,
the right to approach a court of competent jurisdiction, alleging that a right
in the Bill of Rights is threatened or has been infringed. The broader
purpose of section 38 is to ensure that the Bill of Rights is not just a list of
ideals, but legally enforceable protections. Section 38 provides a departure
from the common law by granting standing to certain groups of people
6 Mamadi and Another v Premier of Limpopo Province and Others [2022] ZACC 26.
17
even if they do not have a direct interest. That being the case, the
applicants are covered in terms of section 38(d).
[43] Any review application is grounded in section 33 of the Constitution, which
guarantees everyone the right to lawful, reasonable, and procedurally fair
administrative action. Section 6 of PAJA gives effect to this right. The
relevant provisions state that:
(1) Any person may institute proceedings in a court or a tribunal for
the judicial review of an administrative action.
(2) (d) A court has the power to review an administrative action if the action
was materially influenced by an error of law.
[44] The reasonableness or otherwise of a decision depends on the specific
circumstances of each case. In Bato Star,
7 O’ Regan J noted that:
“ Factors relevant to determining whether a decision is reasonable or not
will include the nature of the decision, the identity and expertise of the
decision-maker, the range of factors relevant to the decision, the reasons
given for the decision, the nature of the competing interests involved and
the impact of the decision on the lives and well -being of those
affected. Although the review functions of the court now have a substantive
as well as a procedural ingredient, the distinction between appeals and
reviews continues to be significant. The court should take care not to usurp
the functions of administrative agencie s. Its task is to ensure that the
decisions taken by administrative agencies fall within the bounds of
reasonableness as required by the Constitution.”8
7 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others (CCT
27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004).
8 Para 45.
18
[45] The respondent states that there are no funds available and that some
applicants may not have fulfilled the requirements. However, the
respondent does not clarify what these requirements are, how they were
not met, or which specific applicants were affected.
[46] The applicants assert that the decision in question is unlawful, as a lack of
funding does not qualify as a legitimate basis for denying the provision of
child protection services.
[47] Our jurisprudence is awash with authorities in this regard 9. In ENGO10, a
judgment which was relied on by the applicants, the court noted that the
State has an obligation to budget properly to ensure that it stays within its
financial means. The court added that while there may be “an argument to
say that there is no money to provide for certain services, … the real
question to be considered is whether proper planning and budgeting
processes were followed in an attempt by the State to comply with its
constitutional obligations.”
11
[48] With reference to section 195 of the Constitution, the court cautioned that
the “effective use of resources must be promoted, services must be
provided impartially, fairly, equitably and without bias, peoples’ needs must
9 See in this regard: Centre for Child Law and Another v Minister of Home Affairs and Others 2005
(6) SA 50 (T) para 17; see also: Centre for Child Law and Others v MEC for Education, Gauteng
and Others 2008 (1) SA 223 (T) para 227; also: ENGO, ibid.
10 Ibid n.5.
11 Para 54.
19
be responded to, the administration must be accountable and
transparency must be fostered by providing the public with timely,
accessible and accurate information.”
12 The court also noted that section
237 of the Constitution mandates that all constitutional obligations must be
fulfilled diligently and without delay.
[49] Regarding the non-compliance alleged by the respondent, the applicants
argue that each branch of the first applicant submitted an individual
business plan and assert that all branches are integral components of the
same organisation. As such, the applicants argue that the respondent’s
assertion that one of its branches could not be accommodated renders the
decision irrational and unreasonable. They deny that there is any provision
in the policy or elsewhere which prohibits the NPOs from obtaining
overdrafts. This issue, in any event, only affects the seventh applicant.
[50] In addition, the applicants aver that without alternative services in place,
the decision has a devastating effect on the poor and vulnerable children
who are beneficiaries of the affected services. Thus, they argue that the
decision is not rationally connected to the purpose for which the services
are rendered, including the respondent’s own policy.
[51] They argue that the decision violates the Constitution and the rights of the
children in need of the services, as the services can no longer be made
12 Para 47.
20
available to them, which rights cannot be taken away as they form part of
their constitutional rights.
[52] In addition to the rights enshrined in the Constitution, the legislative and
regulatory framework governing child protection mandates the respondent
to develop a provincial strategy for the delivery of social services. This
process is carried out collaboratively, requiring all stakeholders to
implement the necessary measures to ensure the protection of the
children.
[53] The respondent’s explanation for its decision leaves a lot to be desired. It
offers a vague and generalised explanation for why the nine applicants
were denied funding. Importantly, it offer s no explanation as to how it
intends to manage and provide the services previously rendered by the
applicants. All it says is that it is the constitutionally mandated provider of
these services. All this in the face of the specific cases provided by the
applicants. These cases are not presented in the abstract. They represent
children and families. Ironically, the respondent’s account is no account
at all, as it provides no specificity and no clarity to the court. It merely skims
the surface of the respondent’s admitted duty to ensure the effective
implementation, funding, and oversight of a comprehensive child
protection system in the North West Province, one of the provinces with a
high number of children in need of protection and social services.
21
[54] In utilising the NPOs, the respondent exercised a discretion. As a
repository of that discretion, the respondent has a duty to act fairly. The
applicants’ contention in this regard is that, under the applicable policy,
they are eligible to receive funding, and the requirements have not
changed, a contention to which the respondent has not provided any
reasonable answer other than that the applicants have no right to
automatic funding. I do not understand that to be the applicants’ case. The
applicants, together with all other applicants, are required to go through
the respondent’s application process. This cannot be construed as an
automatic right, and suggesting otherwise is mischievous. The applicants
are, however, in terms of section 33 of the Constit ution, entitled to
administrative action that is lawful, reasonable and procedurally fair , and
to written reasons if their rights are adversely affected.
[55] In the absence of fairness, any decision that fails to adhere to constitutional
and legislative standards is deemed irrational and should be set aside in
accordance with PAJA. Such a decision is unlawful as it is in conflict with
the provisions of the Constitution.
[56] While I do not agree with the applicants' assertion that the Department is
prohibited from appointing other NPOs based on their extensive
experience in delivering services, I must emphasise that these
appointments must be made in a coordinated manner. This approach
22
should reflect and uphold the principles enshrined in the Constitution, the
Children’s Act, and the applicable policies.
Remedies
[57] The outcome envisaged by the applicants is that the decision of the
Department not to fund them should be set aside, as it has the effect of
violating the Constitution and infringing on the rights of the vulnerable
children. They further seek an order substituting the decision of the
respondent.
[58] In terms of section 8 of PAJA, a court may grant ‘any order that is just and
equitable’, which includes a wide variety of remedies.
In exceptional circumstances, the court may go further and substitute its
own decision for that of the administrator or vary the administrative action,
correcting defects resulting from the original decision. This is expressly
permitted under section 8(1)(c)(ii)(aa) of PAJA, but is an extraordinary
remedy given the implications for separation of powers and administrative
autonomy. Substitution is thus an exception, not the rule, the general rule
being that courts should not assume the role of the administrator unless
that is clearly warranted by the circumstances of the matter.
23
[59] In Trencon Construction (Pty) Limited v Industrial Development
Corporation of South Africa Limited and Another (Trencon), 13 the
Constitutional Court considered the test that a court should apply in
establishing whether exceptional circumstances which justify a substitution
order exist. It held that section 8(1)(c)(ii)(aa) must be read within the
context of section 8(1). “Simply put, an exceptional circumstances enquiry
must take place in the context of what is just and equitable in the
circumstances
.”14
[60] In that matter, the High Court had set aside an IDC tender decision and
substituted its own award of the tender to the applicant. The Supreme
Court of Appeal disagreed, remitting the matter for reconsideration. The
Constitutional Court ultimately upheld the substitution on appeal, holding
that the administrator’s decision was a foregone conclusion and further
remittal would have been futile and inequitable, given the circumstances.
[61] Gauteng Gambling Board v Silverstar Development Ltd and Others
15
illustrates factors that courts take into consideration in exercising the
substitution remedy: whether the court is as well-placed as the
administrator to make the decision, whether the only rational outcome is
clear (foregone conclusion), whether delay would cause unjustifiable
prejudice, and whether there has been bias or incompetence by the
13 [2015] ZACC 22.
14 Ibid, para 35.
15 [2005] ZASCA 19; 2005 (4) SA 67 (SCA) (29 March 2005).
24
administrator. These factors stem from common-law principles and are
now integrated into the PAJA framework.
[62] It cannot be gainsaid in the circumstances of the present case that any
delay would cause untold prejudice to the beneficiaries. Moreover, the
respondent is adamant that, being the provider of child protection services
in terms of the Constitution, it is entitled to do as it has done without
providing any cogent reasons for its decision. That is not the case. Remittal
of the matter to the administrator is, therefore, not a viable option as the
decision appears to be a foregone conclusion.
[63] What is even more troubling about the respondent’s submissions is that
they shed no light on what will happen with the beneficiaries, particularly
those currently serviced by the applicants. The generic response that the
Department is the constitutionally mandated administrator of social
services overlooks the fact that it operates through shared responsibility
and partners.
[64] The respondent’s submissions do not assist the court in gauging its
readiness in dealing with various cases handled by the applicants. This
sort of response lends credence to the applicants’ contention that the
respondent has no plan for what will happen to the children once the
applicants discontinue all services. Some children would be returned to the
25
abusive environments from which they were removed, and will have no
access to protection services, they say.
[65] Inasmuch as the respondent contends that this is their obligation, which
they have the capacity to render the services, they failed to satisfy the court
as to where the funds will come from.
[66] In these circumstances, the court has a duty to avert a calamitous situation
resulting from the respondent’s inaction. It would therefore serve no
purpose to remit the matter to the administrator. For all these reasons, the
decision of the respondent falls to be set aside.
Costs
[67] I can find no reason to depart from the general rule that costs follow the
cause. The applicants are therefore entitled to their costs.
Order
[68] Accordingly, I make the following order:
a. The decision of the Department for Social Development not to fund the
applicants for the 2025/2026 financial year is reviewed and set aside.
b. The respondent is directed to conclude service-level agreements with
the applicants, taking into consideration its policies, all requisite
prescripts, and the applicants’ applications for the 2025/2026 financial
26
year within 10 days of this order.
c. The respondent’s failure to make decisions in terms of section 107 of the
Children’s Act 38 of 2005 is reviewed and set aside.
d. The respondent is directed to issue certificates of designation to the
applicants within 10 days of this order, subject to the provisions of
section 107 of the Children’s Act 38 of 2005 . and the Non-Profit
Organisations Act 71 of 1997.
e. The respondent is ordered to pay the costs of the application, inclusive
of costs of senior counsel, taxed on scale C.
S Mfenyana
Judge of the High Court
Northwest Division, Mahikeng
-
27
Appearances:
For the applicants:
Counsel: A de Vos SC
Instructed by: Lawyers for Human Rights
For the respondent:
Counsel: H Scholtz
Instructed by: State Attorney, Mahikeng
Date of hearing: 12 December 2025
Date of judgment: 9 February 2026