Kate v MEC for the Department of Welfare, Eastern Cape

• Jurisdiction: South Africa
• Judgment Date: 21 July 2004
• Citation: 2005 (1) SA 141 (SE)

Kate v MEC for the Department of Welfare, Eastern Cape
2005 (1) SA 141 (SE)

2005 (1) SA p141

Citation	2005 (1) SA 141 (SE)
Case No	1907/03
Court	South Eastern Cape Local Division
Judge	Froneman J
Heard	June 3, 2004
Judgment	July 21, 2004
Counsel	B C Hartle for the applicant.; O H Ronaasen for the respondent.

Flynote : Sleutelwoorde F

Constitutional law — Common law — Development of — Duty of Courts — Courts to devise means of protecting and G enforcing fundamental rights not recognised under common law — Courts to keep in mind that new Executive and administration carrying greater burden than the old to provide for such rights — Though Courts to be aware of practical difficulties experienced by new administration and wary of moving into H areas falling outside their domain, such complications no excuse for failing to fashion new remedies with view to ensuring effective realisation of constitutional rights — Such remedies including financial redress of wrongs flowing from improper exercise of public powers by State officials, and enforcement of court orders made in that regard. I

Constitutional law — Duties of State — Efficient and accountable public administration — Failure to pay social grants — Remedies of individual — Declarations of contempt of court (without criminal sanction) and other methods of compelling State functionaries to comply with court orders — Provisions of s 3 of State Liability Act 20 of 1957 not prohibiting such J

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declarations as this would effectively render s 3 unconstitutional as being in conflict A with s 165(4) and (5) of the Constitution.

Constitutional law — Human rights — Right to administrative justice — Breach of — Remedies for — Constitutional damages — Sections 8(1) and 8(2) of Promotion of Administrative Justice Act 3 of 2000 providing that court may in proceedings for judicial review direct administrator or any other party to proceedings to pay compensation in exceptional circumstances (s B 8(1)(c)(ii)(bb)) — Improper exercise of public powers by State officials constituting exceptional circumstance — PAJA not precluding award of damages in such cases.

Constitutional law — Separation of powers — Courts — Powers of — Power to enforce State compliance with Court orders — One thing for State to refuse to comply with C Court order, quite another for Courts to fail to devise methods to ensure such compliance — In former case State putting itself outside ambit of constitutional government, and in latter Courts aiding and abetting unconstitutional government.

Contempt of court — Failure to comply with Court order — Application for committal for contempt of High D Court order — Applicant having applied for permanent disability grant but having received no decision from Department of Welfare — Applicant seeking order reviewing her application and communication of decision to her, as well as payment of 'back pay' with interest — Declarations of contempt of Court (without criminal sanction) and other methods of compelling State functionaries to comply with Court orders — Provisions of E s 3 of State Liability Act 20 of 1957 not prohibiting such declarations as this would effectively render s 3 unconstitutional as being in conflict with s 165(4) and (5) of the Constitution.

Practice — Applications and motions — When application procedure permissible — Applicant bringing claim for financial compensation in an application for F review — Judicial irritation at the use of proceedings not customarily geared to such ends having to give way to the fact that it had been proven to be a relatively cheap and efficient way of finalising litigation — Where factual disputes arose, use of application proceedings becoming inappropriate, but this not position in casu. G

Headnote : Kopnota

The applicant was a 62-year-old woman who suffered from arthritis. She applied for a social grant under the Social Assistance Act 59 of 1992 (as amended by the Welfare Laws Amendment Act 106 of 1997). The application was approved some three years later and she started receiving regular payments. She also received payment of R6 000 for what was described as 'back pay'. When the applicant consulted attorneys in March 2003 she discovered that she was entitled to H R19 120 in respect of back pay. Her attorneys made demand for the payment but received no response. They then brought the present application in which they sought payment of the amount of R13 120 being the difference between what the applicant was paid and what she ought to have been paid and interest on the amount. The relief the applicant sought was fourfold in nature: (i) an extension of the 180 day period within which she had to bring the application under s 7(1) I of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and an exemption under s 7(2)(c) of that Act from exhausting internal remedies under the Social Assistance Act; (ii) the judicial review of the respondent's delay in processing her application for a grant from 1996 to 1999, the failure to make full payment of the outstanding amount when the grant was finally J

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approved, the failure to advise her of the insufficient payment, to give reasons for the A insufficient payment and to inform her of any appeal procedure relating thereto and the continued failure to pay her the benefits she was entitled to; (iii) for payment of R13 120; and (iv) interest on the arrears. The respondent paid the amount of R13 015 in December 2003 but refused to pay any interest or the applicant's costs.

In considering the merits, the Court had to examine the implications and effect of the judgment of the Supreme Court of Appeal in B Jayiya v Member of the Executive Council for Welfare, Eastern Cape, and Another 2004 (2) SA 611 relied upon by the respondent, who contended that the Promotion of Administrative Justice Act did not allow for the applicant's claims for back pay and interest.

The Court noted the persistent and huge problem experienced with the C administration of social grants in the Eastern Cape Province. The failure in proper administration had led to the situation where the courts had become the primary mechanism for ensuring accountability in the public administration of these grants. Numerous cases came before the Court by way of application, most of which were settled in favour of the applicants on the basis that there had been some administrative failure. The present case was apparently the first where the D respondent had adopted the stance that an applicant was not entitled to claim the arrears and interest in the High Court by way of application, and that if a valid claim existed it had to be brought in the magistrate's court by way of delictual or contractual action.

Held, that the decision in Jayiya could be interpreted as holding that State officials could not be sued in the courts in review proceedings for wrongful administrative acts; that E appropriate relief under s 38 of the Constitution was excluded by the provisions of PAJA; that back pay and interest could not be ordered under PAJA; that there was no binding obligation on the State to comply with money judgments; and that the courts could not take any steps to enforce court orders sounding in money. (Paragraph [15] at 152B - C.)

Held, further, that all courts were constitutionally enjoined to uphold the rights of all, to ensure compliance with F constitutional values and to do so by granting 'appropriate relief', 'just and equitable orders' and by developing the common law 'taking into account the interests of justice' (ss 38, 172(1)(b) and 173 of the Constitution of the Republic of South Africa Act 108 of 1996). This meant that the Courts had to devise means of protecting and enforcing fundamental rights not recognised under common law. Though G the Courts had to be aware of practical difficulties experienced by new administration and wary of moving into areas falling outside their domain, such complications were no excuse for failing to fashion new remedies with a view to ensuring the effective realisation of constitutional rights. Such remedies included the financial redress of wrongs flowing from the improper exercise of public powers by State officials, and the enforcement of court orders made in that regard. H (Paragraphs [16] and [17] at 152D/E - 153B.)

Held, further, that to read Jayiya as deciding that no one other than the political head of a government department could be cited as a party in proceedings against the State would be contrary not only to the permissive terms of s 2 of the State Liability Act 20 of 1957, but also contrary to a line of cases that held it to be a convenient way to sue the State, as well as contrary to the long established practice of citing the actual administrative I decision-maker as a party in review proceedings. (Paragraph [19] at 153H - 154B.)

Held, further, that to hold in the face of the constitutional provisions that the Bill of Rights bound all organs of State (s 8(1)); that public administration must be accountable (s 195(1)(f)); that courts had the judicial authority to apply the Constitution and the law (s 165(1) and (2)); and that an order or J

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decision issued by a court bound all organs of State to which it applied (s 165(5)) that a public State functionary exercising public A power could not be held individually accountable in a court for his or her public duties was almost inconceivable. Such an outcome could not have been intended in the Jayiya judgment. (Paragraph [19] at 154C - E.)

Held, further, that the wording of PAJA did not preclude appropriate constitutional relief in a claim for judicial review of administrative action: A court was entitled, in a case of judicial B review under s 6(1) of the Act, to grant an order directing...