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[2001] ZASCA 85
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Permanent Secretary Department of Welfare, Eastern Cape Provincial Government and Another v Ngxuza and Others (493/2000) [2001] ZASCA 85; 2001 (4) SA 1184 (SCA); 2001 (10) BCLR 1039 (A) (31 August 2001)

IN THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
REPORTABLE
CASE NO: 493/2000
In the matter between:
THE PERMANENT SECRETARY, DEPARTMENT OF
WELFARE,
EASTERN CAPE PROVINCIAL GOVERNMENT
First
Appellant
MEMBER OF THE EXECUTIVE COUNCIL FOR WELFARE, EASTERN CAPE
PROVINCIAL GOVERNMENT
Second
appellant
and
MN NGXUZA
First
Respondent
NM MELTAFA
Second Respondent
S MBOYIYA
Third
Respondent
BEFORE:
Hefer ACJ, Harms, Streicher, Cameron and Mpati
JJA
HEARD:
15 August 2001
DELIVERED:
31 August
2001
Class action under
Constitution — quintessential requisites for action and requirements for
definition of class set out —
Jurisdiction — inclusion of class
members outside jurisdiction of forum court cannot impede progress of action
— Provincial
government’s conduct of litigation
criticised
JUDGMENT
CAMERON JA:
[] The law is a scarce resource in
South Africa. This case shows that justice is even harder to come by. It
concerns the ways in
which the poorest in our country are to be permitted access
to both. In the Eastern Cape Division of the High Court four individual
applicants, assisted by the Legal Resources Centre, brought motion proceedings
against the Eastern Cape provincial government (represented
by respectively the
departmental and political heads of provincial welfare, who are the first and
second appellants). They sought
two-fold relief. The first portion was to
reinstate the disability grants they had been receiving under the Social
Assistance Act,
[1]
which the province
had without notice to them terminated. The province conceded the claims of
three of the applicants, with payment
of arrears and interest. They are the
respondents in the appeal (I refer to them as “the applicants”). A
fourth applicant
failed, and he plays no further part in the proceedings in
which the contested issue is the immensely more expansive, second portion
of the
relief the applicants sought. That concerned the plight of many tens of
thousands of Eastern Cape disability grantees they
alleged were in a similar
predicament to themselves, in that they, too, had had their grants unfairly and
unlawfully terminated.
On their behalf, aiming to secure the reinstatement
en masse
of their cancelled pensions, the applicants sought to institute
representative, class action and public interest proceedings in terms
of s
38(b), (c) and (d) of the
Constitution.
[2]
(e) an association
acting in the interest of its members. Froneman J, in a judgment now
reported,
[3]
granted them leave to
proceed.
[4]
[] The applicants
decided to proceed with a class action under s 38(c), with the result that the
order as to the other bases of standing
is not at issue before us. The order
has three essential features. First, it permitted the applicants, assisted by
the Legal Resources
Centre, to litigate as representatives on behalf of anyone
in the whole of the Eastern Cape Province whose disability grants were
between
specified dates cancelled or suspended by or on behalf of the Eastern Cape
government (“the class definition”).
Associated with this was an
order requiring the Eastern Cape government to provide the Legal Resources
Centre with the details of
the members of the class kept on computer or physical
file in governmental records (“the disclosure order”). The order
lastly required the applicants to disseminate through various print and radio
media in the Eastern Cape and (with the assistance
of the provincial government)
by notices at pension pay points information about the class action (“the
publication order”).
The object of publication was to give members of the
class the opportunity if they wished to opt out of the proceedings envisaged
on
their behalf.
[] In the appeal, brought with the leave of Froneman J (who
ordered in terms of rule 49(11) of the Uniform Rules of Court that the
disclosure and publication orders be implemented pending the appeal), the
Eastern Cape government attacked both the grant of leave
to institute the class
action and the disclosure order. The original grounds of attack were expressed
in far-ranging terms. Senior
counsel who appeared for the province at the
hearing of the appeal, who did not draw the written argument, told us that he
was not
instructed to abandon all the original grounds of attack, but he
refrained from advancing submissions in support of them. Given
the
ill-considered nature of many of them, to which I return later, this was a
prudent approach. What he relied on was two contentions:
(i) that the order
did not adequately define the class; and (ii) that it wrongly and without
jurisdictional warrant included in
the class residents of the Eastern Cape
province outside the domain of the Eastern Cape Division of the High Court.
Counsel rightly
conceded that the disclosure order — in effect a form of
discovery adjunct to, and necessary for, the applicants’ claim
to relief
— was an inevitable concomitant of the class definition order. The
critical question before us is therefore the
terms of that order.
[] In
the type of class action at issue in this case, one or more claimants litigate
against a defendant not only on their own behalf
but on behalf of all other
similar claimants.
[5]
The most
important feature of the class action is that other members of the class,
although not formally and individually joined,
benefit from, and are bound by,
the outcome of the litigation unless they invoke prescribed procedures to opt
out of it. The class
action was until 1994 unknown to our
law,
[6]
where the individual
litigant’s personal and direct interest in litigation defined the
boundaries of the court’s powers
in it. If a claimant wished to
participate in existing court proceedings, he or she had to become formally
associated with them
by compliance with the formalities of
joinder.
[7]
The difficulties the
traditional approach to participation in legal process creates are well
described in an analysis that appeared
after the class action was nationally
regularised in the United States through a federal rule of
court
[8]
more than sixty years
ago:
“The cardinal difficulty with joinder ... is that it presupposes the
prospective plaintiffs’ advancing en masse on the
courts. In most
situations such spontaneity cannot arise either because the various parties who
have the common interest are isolated,
scattered and utter strangers to each
other. Thus while the necessity for group action through joinder clearly
exists, the conditions
for it do not. It may not be enough for society simply
to set up courts and wait for litigants to bring their complaints —
they
may never come.
What is needed, then, is something over and above the possibility of joinder.
There must be some affirmative technique for bringing
everyone into the case and
for making recovery available to all. It is not so much a matter of permitting
joinder as of ensuring
it.”
[9]
[] The
class action cuts through these complexities. The issue between the members of
the class and the defendant is tried once.
The judgment binds all, and the
benefits of its ruling accrue to all. The procedure has particular utility
where a large group
of plaintiffs each has a small claim that may be difficult
or impossible to pursue individually. The mechanism is employed not only
in its
country of origin, the United States of America, where detailed rules governing
its use have developed,
[10]
but in
other countries as well.
[11]
The
reason the procedure is invoked so frequently lies in the complexity of modern
social structures, and the attendant cost of
legal proceedings:
“Modern society seems increasingly to expose men to such group injuries
for which individually they are in a poor position
to seek legal redress, either
because they do not know enough or because such redress is disproportionately
expensive. If each is
left to assert his rights alone if and when he can, there
will at best be a random and fragmentary enforcement, if there is any at
all.”
[12]
[] It
is precisely because so many in our country are in a “poor position to
seek legal redress”, and because the technicalities
of legal procedure,
including joinder, may unduly complicate the attainment of justice, that both
the interim Constitution
[13]
and the
Constitution
[14]
created the express
entitlement that “anyone” asserting a right in the Bill of Rights
could litigate “as a member
of, or in the interest of, a group or class of
persons”.
[15]
[] All
this bears directly on the case before us. The background is set out in the
judgment of Froneman J.
[16]
It is
not in issue before us and need not be repeated. The main points are these.
The provincial authorities in the Eastern Cape
decided to revoke the welfare
benefits of various groups of persons receiving social assistance. They did so
unilaterally and without
notice to those concerned. The applicants do not
contend that the authorities’ motives were bad. It is notorious that
inaccurate
claimant records — including large numbers of “ghost
pensioners” — cost the province tens of millions of
rands every
month. The problem is a relic of the fragmented governance in the Eastern Cape
Province that preceded the democratic
transition in 1994, where no fewer than
six different administrations were responsible for social grants. But the
method the authorities
chose to deal with the situation was extreme, and the
consequences for large numbers of needy people savage. They failed to
differentiate
between the fraudulent and undeserving and unentitled on the one
hand, and on the other the truly disabled. These latter were manifestly
not
ghosts, and the mechanism employed left them destitute.
[] All without
distinction were required to re-apply for their existing entitlements. But the
bureaucratic structures and personnel
required to expedite the process were
lacking, and repeated promises by officials and politicians to improve them
failed to materialise.
While re-applications clogged the existing structures, a
moratorium was placed on both new applications and on processing arrear
payments
to those entitled to them. The papers before us recount a pitiable saga of
correspondence, meetings, calls, appeals, entreaties,
demands and pleas by
public interest organisations, advice offices, district surgeons, public health
and welfare organisations and
branches of the African National Congress itself,
which is the governing party in the Eastern Cape. The Legal Resources Centre
played
a central part in coordinating these entreaties and in the negotiations
that resulted from them. But their efforts were unavailing.
The response of
the provincial authorities as reflected in the papers included unfulfilled
undertakings, broken promises, missed
meetings, administrative buck-passing,
manifest lack of capacity and at times gross ineptitude.
[] That the
method the province chose to verify and update its pensioner records was not
just undifferentiatingly harsh, but also
unlawful, was undisputed in these
proceedings. That much was established by
Bushula and others v Permanent
Secretary, Department of Welfare, Eastern Cape and
another
.
[17]
In its answering
affidavit in the present matter the province says that it “took
note” of the judgment “and the
valuable guidance it has given in
respect of the suspension and/or cancellation of disability grants”. Its
officials have,
it says, “been instructed to act accordingly”.
[] The affidavit says no more. Its silence is expressive. At best
the statement that officials have been “instructed”
to act “in
accordance with”
Bushula
implies that the province will not in
future unlawfully terminate disability grantees’ benefits. What it omits
to say is more
pertinent, which is whether
Bushula
will in fact be
implemented for grantees already removed unprocedurally from the system. Though
counsel assured us from the Bar
that the province has reinstated and is paying
so far as possible the categories of claimants at issue in
Bushula
, the
province’s papers contain no undertaking that the destitute deserving will
be reinstated to their lawful entitlements.
Without such an undertaking members
of the class remain at risk.
[] It is against a background of such
circumstances that the Legal Resources Centre decided that its only recourse was
to institute
a class action on behalf of the region’s wronged disability
pensioners. The situation seemed pattern-made for class proceedings.
The class
the applicants represent is drawn from the very poorest within our society
— those in need of statutory social assistance.
They also have the least
chance of vindicating their rights through the legal process. Their individual
claims are small: the
value of the social assistance they receive — a few
hundred rands every month — would secure them hardly a single hour’s
consultation at current rates with most urban lawyers. They are scattered
throughout the Eastern Cape Province, many of them in
small towns and remote
rural areas. What they have in common is that they are victims of official
excess, bureaucratic misdirection
and unlawful administrative
methods.
[] It is the needs of such persons, who are most lacking in
protective and assertive armour, that the Constitutional Court has repeatedly
emphasised must animate our understanding of the Constitution’s
provisions.
[18]
And it is against
the background of their constitutional entitlements that we must interpret the
class action provision in the Bill
of Rights. Though expressly creating that
action the Constitution does not state how it is to be developed and
implemented. This
it leaves to courts, which s 39(2) enjoins to promote the
spirit, purport and object of the Bill of Rights when developing the common
law,
and upon which s 173 confers inherent power “to develop the common law,
taking into account the interests of justice.”
[] The
Constitutional Court has not dealt with the class action specifically. But it
has pronounced pertinently on the ambit to be
accorded all the standing
provisions of the interim Constitution, which in material respects are identical
to those of the
Constitution.
[19]
(v) a person
acting in the public interest.” In
Ferreira v Levin NO and
others
[20]
the majority held
that these provisions must be interpreted generously and expansively,
consistently with the mandate given to the
courts to uphold the Constitution,
thus ensuring that the rights in the Constitution enjoy the full measure of
protection to which
they are
entitled.
[21]
[] The
circumstances of this particular case — unlawful conduct by a party
against a disparate body of claimants lacking access
to individualised legal
services, with small claims unsuitable for if not incapable of enforcement in
isolation — should have
led to the conclusion, in short order, that the
applicants’ assertion of authority to institute class action proceedings
was
unassailable. But assail their claim the province did. It did so by
recourse to every stratagem and device and obstruction, every
legal argument and
non-argument that it thought lay to hand. While offering no undertaking to
implement
Bushula
in relation to the applicant class, it asserted that
because of the decision the relief sought was moot. It then contended,
contradictorily,
that the applicants’ claim was not yet ripe for
adjudication. It tendered no evidence to refute the mass of indicia the
applicants
placed before the Court that showed unlawful conduct against huge
numbers of disability pensioners, yet argued that the applicants’
evidence
was inadmissible hearsay. It obstructed the applicant class’s
entitlement to be spared physical destitution, yet
invoked their privacy rights
in contending that the disclosure order should not have been granted. It did
not flinch even from deriding
the first applicant, who adhered to the founding
papers with his thumb-print. Its deponent thought fit to record his doubt that
Mr Ngxuza had read the media articles appended to the papers (a claim the first
applicant did not make), while the written argument
stated that it
“boggles the mind” that “a man who never attended school and
is presently illiterate” is able
to make “learned
submissions”.
[] All this speaks of a contempt for people and
process that does not befit an organ of government 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,
[22]
and requires that
public administration be conducted on the basis that “people’s needs
must be responded to”.
[23]
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 was 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.
[] It remains to deal with the two arguments
in which counsel for the province persisted. Neither has substance and can be
disposed
of briefly. The complaint that the class was not adequately defined in
the order of the court below is difficult to appreciate.
There can be no
conceptual complaint about the clarity of the group’s
definition.
[24]
From the point of
view of practical definition, it is beyond dispute that (1) the class is so
numerous that joinder of all its members
is impracticable; (2) there are
questions of law and fact common to the class; (3) the claims of the applicants
representing the
class are typical of the claims of the rest; and (4) the
applicants through their legal representatives, the Legal Resources Centre,
will
fairly and adequately protect the interests of the class. The quintessential
requisites for a class action are therefore present.
[] That the
applicants’ averments about the predicament of other members of the class
to some extent rest on hearsay evidence
is obvious. Few class actions could be
maintained without some element of hearsay. Indeed, if first-hand evidence
could be obtained
from all those sought to be included, they could as readily be
joined, and the need for class proceedings would fall away. Hearsay
evidence in
any event varies in its import and quality. That produced in this case —
from district surgeons, advice offices,
civic and political organisations and
public authorities — left little doubt that the province’s methods
were causing
widespread misery and
injustice.
[25]
Even assuming that
the hearsay evidence was inadmissible, sufficient admissible evidence to define
the class was tendered.
[] It is in any event clear from the judgment of
Froneman J that the class definition encompasses only those whose social
benefits
have been unlawfully discontinued in the same manner as those of the
applicants.
[26]
It is equally clear
that temporary grantees, whose entitlements have lapsed with time, are not
included. Counsel for the province,
as a last resort, suggested an amendment to
the order granted to make clear that temporary grantees whose entitlements have
expired
and those whose grants were cancelled without procedural impropriety are
excluded. But the Eastern Cape government retains against
all members of the
class any defences it might have to their claims. The court below did not
purport to pronounce upon those. There
can in my view therefore be no complaint
about the manner in which the order defines the class.
[] In so far as
the judgments in
Lifestyle Amusement Centre (Pty) Ltd and others v The
Minister of Justice and
others
[27]
and
Maluleke v
MEC, Health and Welfare, Northern
Province
[28]
may question the
availability of the class action in our law, or suggest different criteria for
constituting and defining a class
for the purposes of a class action, I am
unable to agree with them, and to the extent that they are inconsistent with
this judgment
they must be regarded as over-ruled.
[] The complaint about
extra-jurisdictional applicants has more superficial warrant. The original
applicants were entitled to sue
the province in the Eastern Cape Division, which
has its seat at Grahamstown, since they received their disability pensions
within
the domain of that court. Such intra-jurisdictional receipt of a pension
created a similar jurisdictional tie (
ratio jurisdictionis
) between a
significant portion of the envisaged class and the provincial government.
However, non-residents of the Eastern Cape
Division’s jurisdictional area
could not ordinarily have sued the provincial government in that Division, since
the seat of
government is at Bisho, within the jurisdiction of the Ciskei High
Court. Between such non-residents and the Eastern Cape Division
there would be
no jurisdictional tie.
[] There are two reasons, however, why the
provincial government’s complaint about jurisdiction is unpersuasive.
Before referring
to them, it is necessary to observe that the objection to which
the province has taken recourse is itself a relic of the pre-transitional
past,
in which High Courts situated at Grahamstown, Bisho and Umtata still have
jurisdiction over fragmented portions of the Eastern
Cape Province. Though the
Constitution empowered all courts to continue to function with their existing
jurisdiction,
[29]
that was subject
to amendment or repeal of the relevant legislation, and to the requirement of
consistency with the Constitution,
which specifies that “as soon as
practical” all courts, including their jurisdiction, should be
rationalised “with
a view to establishing a judicial system suited to the
requirements of the new
Constitution”.
[30]
The
situation the province invokes is precisely the sort of anomaly that these
provisions required to be eliminated. That the
necessary rationalisation has
not yet occurred within the Eastern Cape Province can hardly be laid at the door
of the applicants
or the class they seek to represent. That the province should
seek to exploit the situation is a further miserable reflection on
the way it
has conducted itself in this litigation.
[] The objection in any event
has no substance. First, this is no ordinary litigation. It is a class action.
It is an innovation
expressly mandated by the Constitution. We are enjoined by
the Constitution to interpret the Bill of Rights, including its standing
provisions, so as to “promote the values that underlie an open and
democratic society based on human dignity, equality and
freedom”.
[31]
As pointed out
earlier we are also enjoined to develop the common law — which includes
the common law of jurisdiction —
so as to “promote the spirit,
purport and objects of the Bill of
Rights”.
[32]
This Court has
in the past not been averse to developing the doctrines and principles of
jurisdiction so as to ensure rational
and equitable rules. In
Roberts
Construction Co Ltd v Willcox Bros (Pty)
Ltd
[33]
this Court held,
applying the common law doctrine of cohesion of a cause of action
(
continentia causae
), that where one court has jurisdiction over a part
of a cause, considerations of convenience, justice and good sense justify its
exercising jurisdiction over the whole cause. The partial location of the
object of a contractual performance (a bridge between
two provinces) within the
jurisdiction of one court therefore gave that court jurisdiction over the whole
cause of action. The Court
expressly left open the further development and
application of the doctrine of cohesion of
causes.
[34]
The present seems to me
a matter amply justifying its further evolution. The Eastern Cape Division has
jurisdiction over the original
applicants, and over members of the class
entitled to payment of their pensions within its domain. That in my view is
sufficient
to give it jurisdiction over the whole class, who subject to
satisfactory “opt-out” procedures will accordingly be bound
by its
judgment.
[] In any event, even if a strict approach would weigh against
permitting inclusion of extra-jurisdictional applicants in a plaintiff
class, it
is plain that the Constitution requires adjustment of the relevant rules, along
sensible and practical lines, to ensure
the efficacy of the class action
mechanism. As O’Regan J pointed out in
Ferreira v Levin NO
, the
constitutional provisions on standing are a recognition of the particular
responsibility the courts carry in a constitutional
democracy to ensure that
constitutional rights are honoured:
“This role requires that access to the courts in constitutional matters
should not be precluded by rules of standing developed
in a different
constitutional environment in which a different model of adjudication
predominated. In particular, it is important
that it is not only those with
vested interests who should be afforded standing in constitutional challenges,
where remedies may
have a wide
impact.”
[35]
[] There
can in my view be no doubt that the Constitution requires that, once an
applicant has established a jurisdictional basis
for his or her own suit, the
fact that extra-jurisdictional applicants are sought to be included in the class
cannot impede the progress
of the action. This is the position also in the
United States of America, to the laws of which, together with other foreign
countries,
the Constitution permits us to look when interpreting the Bill of
Rights.
[36]
There in a plaintiff
class action (which is in this sense materially different from a defendant class
action) the presence of a
large preponderance of out-of-state plaintiffs does
not impede the proceedings once the original litigants have established
jurisdiction
in the forum
court.
[37]
[] There is no
suggestion that the applicants were engaged in impermissible forum-shopping. It
is therefore unnecessary to consider
what effect on jurisdiction in a class
action, if any, tactical location of a suit by a litigant could have. It is
manifest that
a significant proportion of the class envisaged in fact resides
and receives pension payments within the domain of the Eastern Cape
Division.
In relation to them, the Eastern Cape Division has undoubted jurisdiction. This
is in my view sufficient warrant, from
both a common law and constitutional
point of view, to confer on that Division jurisdiction in respect of the
remaining members of
the
class.
[38]
[] A further
reason why the jurisdictional complaint is devoid of merit is its utter lack of
practical import. Counsel for the province
observed, correctly, that the
applicants were free to initiate the proceedings in the Ciskei High Court. That
undoubtedly would
have tied the entire class to the forum court through the
location or residence (
situs
) of the party against whom they were
invoking legal process. But when pressed in argument to explain why being sued
in Bisho rather
than Grahamstown (where the Legal Resources Centre is located)
would have made any difference to the legitimate interests and convenience
of
the provincial government, counsel was unable to give an answer.
[] As
was pointed out during argument, the Supreme Court
Act
[39]
provides for a matter to be
relocated from one division to another if it “may be more conveniently or
more fitly heard”
in that division. Any complaint of convenience or
fitness on the part of the province will properly be accommodated under that
provision.
The dismal truth is that the province’s objection was of a
piece with the rest of its filibustering approach to the litigation
as a whole,
and as devoid of substance.
[] There remains a question the Court raised
during the hearing of the appeal, namely the extensive nineteen-volume record
placed
before us. This voluminous assemblage was unnecessary to the
determination of the appeal and in ordinary circumstances I would have
been
inclined to make the party responsible for its inclusion pay the costs relating
to it. But Mr van der Riet, who appeared in
this Court and the court below on
behalf of the applicants, took personal responsibility for the length of the
record, pointing to
the tenor and ambit of the province’s objection to the
class action, which included the contention that the class had not been
sufficiently proved. This answer was not strictly adequate, but the province in
the court below undertook should it succeed in the
appeal that it would not seek
costs against the applicants. In view of this undertaking, and all the other
circumstances, I am disinclined
to punish the applicants’ legal advisors
for erroneously burdening the Court (and the taxpayer, who will eventually be
encumbered
with the costs) in this manner. It would however be appropriate to
deprive the applicants’ attorneys of their perusal fee
in respect of
three-quarters of the record.
[] The class action order is interlocutory,
and counsel informed us that since the judgment in the court below further
interlocutory
hearings have been held. There is therefore no need for this
Court to amend the dates specified in the original order. As indicated
earlier,
it requires no further consequential amendment.
[] The appeal is
dismissed with costs, including the costs of two counsel, but excluding the
attorneys’ perusal fee in respect
of three-quarters of the
record.
`
E CAMERON
JUDGE OF APPEAL
HEFER ACJ )
HARMS
JA )
STREICHER JA ) CONCUR
MPATI
JA )
[1]
Act 59 of 1992, sections 2(a),
3(a). The Act’s reference to “social grants to ... disabled
persons” has been popularised
to “disability grant”. The Act
requires the Minister for Welfare and Population Development amongst other
things (with
the concurrence of the Minister of Finance) to make disability
grants out of moneys appropriated by the Provincial Legislature (section
2(a)).
Section 3(a) creates an entitlement to such a grant if the Director-General of
Welfare is satisfied as to conditions specified
in the Act and the regulations.
The functions of the Director-General were in terms of Proclamation R7,
Regulation Gazette 5643
of 23 February 1996 assigned to the Permanent Secretary:
hence the first appellant.
[2]
Section 38 provides:
Enforcement of rights
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 the 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 interest of, a group or class of persons;
(d) anyone acting in the
public interest; and
[3]
Ngxuza and others v Permanent Secretary, Department of Welfare, Eastern Cape,
and others
2001 (2) SA 609
(E)
[4]
The terms of the order, as
amended on the return day, are reported at 2001 (2) SA 633-4.
[5]
Defendants may also be sued as
members of a class.
[6]
South
African Law Commission
Report on the Recognition of Class Actions and Public
Interest Actions in South African Law
(Project 88, August 1998) para 1.2; H
Erasmus
Superior Court Practice
A2-4H; G Budlender “The
Accessibility of Administrative Justice”
1994
Acta Juridica
128
; E
Hurter “The draft legislation concerning public interest and class
actions: the answer to all class ills?” (1997)
XXX
Cilsa
304.
[7]
LTC Harms
Civil
Procedure in the Supreme Court
par
C1
[8]
Rule 23 of the Federal Rules
of Civil Procedure, “Class Actions”, introduced in 1938: see
Sunderland, “The New
Federal Rules”, (1938) 45
West Virginia Law
Quarterly
5. Rule 23 (a), “Prerequisites to a Class Action”,
provides that one or more members of a class may sue or be sued as
representative parties on behalf of all only if (1) the class is so numerous
that joinder of all members is impracticable, (2) there
are questions of law or
fact common to the class, (3) the claims or defenses of the representative
parties are typical of the claims
or defenses of the class, and (4) the
representative parties will fairly and adequately protect the interests of the
class.”
The requirements of this rule are reflected and elaborated in
many state rules, for instance New York State Consolidated Laws —
Civil
Practice Law and Rules Article 9 “Class Actions”.
[9]
H Kalven, Jr and M Rosenfield
“The Contemporary Function of Class Suit” (1941)
University of
Chicago Law Review
684 at 687-8. To similar effect is H Erasmus
Superior
Court Practice
A2-4J: The traditional rules governing joinder “are
impractical where the number of applicants is large and/or all the potential
applicants have yet to be
identified.”
[10]
See
especially the decision of the United States Supreme Court in
Phillips
Petroleum Co v Shutts et al
[1985] USSC 170
;
472 US 797
(1985) (Rehnquist
J).
[11]
India:
S P Gupta v
Union of India
(1982) 2 SCR 365
,
AIR 1982 SC 149
, J Cassels “Judicial
Activism and Public Interest Litigation in India: Attempting the
Impossible” (1989) 37
American Journal of Comparative Law
495. For
an overview of the European position regarding class actions, see P H Lindblom
“Individual Litigation and Mass Justice:
A Swedish Perspective and
Proposal on Group Actions in Civil Procedure” (1997) 45
American
Journal of Comparative Law
805.
[12]
H Kalven, Jr and M
Rosenfield “The Contemporary Function of Class Suit” (1941)
University of Chicago Law Review
684 at
686.
[13]
Act 200 of 1993,
section 7(4)(b)(iv).
[14]
Section
38(c).
[15]
H Erasmus
Superior
Court Practice
, commentary on Constitution s 38, A2-4H—4L.
[16]
2001 (2) SA 609
(E)
615F-618D.
[17]
2000 (2) SA 849
(E) (van Rensburg J). To the same effect is
Rangani v
Superintendent-General, Department of Health and Welfare, Northern Province
1999 (4) SA 385
(T) (Kirk-Cohen J).
[18]
Bernstein and others v
Bester and others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC) par 149 (O’Regan J);
Mohlomi v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC) par 14 (Didcott
J);
Soobramoney v Minister of Health, KwaZulu-Natal
[1997] ZACC 17
;
1998 (1) SA 765
(CC)
par 8 (Chaskalson P);
Government of the Republic of South Africa and others v
Grootboom and others
2001 (1) SA 46
par 25 (Yacoob
J).
[19]
Section 7(4) of the
interim Constitution, Act 200 of 1993, provided:
“(a) When an infringement of or threat to any right entrenched in this
chapter is alleged, any person referred to in para
(b) shall be entitled to
apply to a competent court of law for appropriate relief, which may include a
declaration of rights.
(b) The relief referred to in para (a) may
be sought by -
(i) a person acting in his or her own interest;
(ii) an
association acting in the interest of its members;
(iii) a person acting on
behalf of another person who is not in a position to seek such relief in his or
her own name;
(iv) a person acting as a member of or in the interest of a
group or class of persons;
or
[20]
1996 (1) SA 984
(CC).
[21]
Ferreira v Levin NO
and others
1996 (1) SA 984
(CC) par 165 (Chaskalson P); par 229
(O’Regan J).
[22]
Section
41(1)(d).
[23]
Section
195(1)(e).
[24]
The group as
defined in the order constitutes what Honoré refers to as a
“secondary group”: Tony Honoré
Making Laws Bind
(1987), chapter 3 “What is a Group?” at pages
54-55.
[25]
A report written
during the latter half of 1998 by the chairman of the municipal clinics in the
town of Stutterheim, Dr A P Cole,
attached to the founding papers, in not
untypical:
“URGENT CASES WHO HAVE HAD DISABILITY GRANTS WITHDRAWN
The
following are urgent cases which have been brought to my attention. These
individuals have like many others in the Eastern Cape
had their disability
grants summarily stopped, and have been informed that they are fit to
work.
1. MABUZA GWABILE: ID 4512315295
Diagnosis: Ankylosing
Spondylitis. This 53 year old man has been attending this surgery with his
spinal problem for the 15 years
that I have been here. He is a regular
attender, and has remained on his anti-inflammatories which he requires daily
for his pain.
On examination he is clinically severely disabled with his
spine in fixed lumbar flexion on 90 degrees. He is, in other words unable
to
walk in an erect position. This is an incurable and permanent disability. This
man requires a walking aid at all times.
2. LINDIWE NAKI. ID 5103050327086
Diagnosis: Kyphoscoliosis
– Old Tuberculosis of the spine. This 48 year old woman has been severely
disabled for 30 years with
a marked orthopaedic deformity of the spine. She has
constant pain in her thoracic spine, which radiologically shows collapse of
dorsal vertebrae 6,7 and 8.
Her spinal deformity has led to considerable
respiratory compromise and consequent right sided heart failure. This a
permanent disability,
and this patient is severely compromised.
3. MABOYI BLANTI. ID 4608305389088
Diagnosis: Kyphoscoliosis
– Old tuberculosis of the spine. This gentleman is 51 years old, has not
been able to work for his
entire adult life, and now finds himself, with a
severely deformed spine, and a letter declaring him fit for employment. He,
too,
has significant cardiovascular restriction as a result of his compromised
chest cavity and has a very limited effort tolerance.
This is a permanent
disability.
4. ANGELA WRIGHT. ID 5908130235087
Diagnosis: High thoracic
spinal cord injury, with permanent paralysis of the trunk. Involved in a motor
vehicle accident 4 years
ago, this woman has a T6/T7 permanent injury to her
spinaI cord. She is paraplegic and confined to a wheelchair. She is totally
incontinent and must catheterize herself as well as administer enemas and
laxatives twice weekly. She is, without doubt, totally
and permanently
disabled.
5. JOHNSON MAMBUKWE. ID 4210015431084.
Diagnosis: Severe
emphysema and chronic bronchitis. This 55 year old man is 1,80m tall and weighs
41 kg. He is, therefore, emaciated
and weak, with clubbing of his fingernails.
He is a severe respiratory cripple with very limited effort tolerance.
He is
permanently disabled, yet has been declared fit to work.
6. MONDE ADONISI. ID 6808165561085.
Diagnosis: Rheumatoid
Arthritis. This 39 year old gentleman is a proven case of rheumatoid arthritis,
with advanced and very active
disease. He is only able to walk with extreme
difficulty, and, despite anti-inflammatories, shows marked deterioration over
the
past two years. He has now been told that he is fit for work. This young
man is severely and irreversibly disabled. He will never
walk properly
again.
7. LUMKILE DOFI. ID 4107075427087.
Diagnosis: Severe emphysema
and chronic bronchitis. This 56 year old gentleman suffers for extremely poor
respiratory reserve and
permanent lung damage. He is thin and weak and requires
constant medication, including cortisone, despite which he frequently visits
our
hospital. He has very limited respiratory Reserve and his long-term prognosis
is very poor. This is a permanent disability.
The above seven cases are a few examples of the many tragic cases who consult me
at my rooms. Some of them have been seeing me for
15 years now, and if anyone
is in a position to express an opinion on their fitness for employment, it must
surely be me.
I am aware that many people have received grants
for no reason at all, but that is an entirely different matter. The point I am
trying to get across is that the carte blanche cancellation of virtually all
disability grants in this community is heavy-handed
and heartless, to say the
least. None of the abovementioned are in a position to fend for themselves, and
they are, without doubt,
the responsibility of the East Cape Government.
The
distinct impression one gets is that pensions were stopped, not because the
recipients were receiving the grants for the wrong
reason, but because already
budgeted funds have been misappropriated.
News reaches us daily of fraud, and
“ghost employees”, and yet the people continue to suffer. The
District Manager for
this District, Mrs Ximiya, told us, at a meeting of the
Stutterheim Co-ordinating Committee of Health recently, that the cutting
of
disability grants was a fact of life which we have to face, and that it was up
to individual communities to provide suitable employment
for these people.
It
is well-publicised fact that Stutterheim is regarded as a shining example of how
a community can help itself. I can assure you
that we are nowhere near
providing work for the thousands of able-bodied unemployed, let alone the
disabled.
Conclusion: This letter is a frantic attempt to alert anyone and everyone of
the plight of so many citizens of our country, who
sit helplessly in vain hope
that the system on which they have pinned their hopes will deliver the promised
assistance. No matter
what one’s political allegiance, I think we all
hoped that new South Africa would bring prosperity to those who truly deserve
it. It seems that the prosperity is reserved for an exclusive club to which
entry is limited. How ironic that the system which
was swept aside, was so very
similar.”
[26]
See the report at 2001 (2)
624G.
[27]
1995 (1)
BCLR 104 (C).
[28]
1999 (4) SA
367
(T), criticised by C Plasket “Standing, Welfare Rights and
Administrative Justice:
Maluleke v MEC, Health and Welfare, Northern
Province
” (2000) 117
SALJ
647.
[29]
Schedule 6,
“Transitional Arrangements”, Item
16(1).
[30]
Item
16(6)(a).
[31]
Section
39(1)(a).
[32]
Section
39(2).
[33]
1962 (4) SA 326
(A).
[34]
1962 (4) SA at
336D-E.
[35]
1996 (1) SA 984
(CC) par
230.
[36]
Section
39(1)(c).
[37]
See the rules
devised and explained in
Phillips Petroleum Co v Shutts et al
[1985] USSC 170
;
472 US 797
(1985).
[38]
Compare section
19(1)(b) of the Supreme Court Act, 59 of 1959, which provides that —
“A provincial or local division shall also have jurisdiction over any
person residing or being outside its area of jurisdiction
who is joined as a
party to any cause in relation to which such provincial or local division has
jurisdiction or who in terms of
a third party notice becomes a party to such a
cause, if the said person resides or is within the area of jurisdiction of any
other
provincial or local
division.”
[39]
Section 9(1), entitled “Removal of proceedings from one division to
another”, provides:
“If any civil cause, proceeding or matter has been instituted in any
provincial or local division, and it is made to appear
to the court concerned
that the same may be more conveniently or more fitly heard or determined in
another division, that court may,
upon application by any party thereto and
after hearing all other parties thereto, order such cause, proceeding or matter
to be removed
to that other division.”