MEC, Department of Welfare, Eastern Cape v Kate

• Jurisdiction: South Africa
• Citation: 2006 (4) SA 478 (SCA)

MEC, Department of Welfare, Eastern Cape v Kate
2006 (4) SA 478 (SCA)

2006 (4) SA p478

Citation	2006 (4) SA 478 (SCA)
Case No	580/04
Court	Supreme Court of Appeal
Judge	Howie P, Streicher JA, Cameron JA, Mthiyane JA and Nugent JA
Heard	March 2, 2006
Judgment	March 30, 2006
Counsel	M Donen SC for the appellant.; W Trengove SC (with B Hartle) for the respondent.; G Budlender for the Amicus Curiae.

Flynote : Sleutelwoorde B

Constitutional law — Constitutional damages — Award of — Appropriateness of — Unreasonable delay in considering claimant's application for disability grant resulting in denial of claimant's right to social assistance during period of C delay — Problem of unreasonable delays in administration of social grants having become endemic — Determination of appropriate relief — In light of direct breach of claimant's substantive constitutional right and endemic breach of such rights, constitutional remedy appropriate — Award of constitutional damages most appropriate remedy in circumstances — Constitutional damages equivalent to interest payable on amount accruing to claimant during period of delay D awarded.

Headnote : Kopnota

On 16 April 1996 the respondent applied to the Eastern Cape Department of Welfare for a disability grant. Some 40 months later, in August 1999, she was notified that her application had been approved. The appellant did not dispute that consideration of the E respondent's application ought to have taken no longer than three months. In terms of the regulations to the Social Assistance Act 59 of 1992, the respondent's grant, once approved, accrued to her retrospectively, from the date of submission of her application, although the accrual became payable to her only on the date on which she received notification that her application had been approved. Consequently, an amount of approximately R19 000 had accrued to her by F 1 September 1999. Simultaneously with her first monthly payment, she received payment of R6 000 of that accrual. In proceedings in the High Court she sought payment of the outstanding balance of her accrual, namely, approximately R13 000 plus interest thereon at the rate of 15,5% per annum. The appellant duly paid the capital amount claimed, but denied liability for interest on the capital. After G hearing the matter the Court ordered the appellant to pay interest on the outstanding accrual from 16 April 1996 to date of payment. The interest ordered payable in respect of the period 16 April 1996 to 31 August 1999 was awarded as a measure of constitutional damages for the appellant's unreasonable delay in considering the respondent's application, which had resulted in the respondent's being deprived, during that period, of her constitutional right to receive a social grant, and for which she was H entitled to be recompensed.

Held, that where, as in the present case, the realisation of the substantive right to social assistance was dependent on lawfully and procedurally fair administrative action and the diligent and prompt performance by the State of its constitutional obligations, the failure to meet those process obligations denied the beneficiary his or her substantive right to social assistance. Through denial to the respondent of that process, she had been denied her right to I social assistance. (Paragraph [22] at 489E - F/G.)

Held, further, that the SCA had to determine whether the High Court's award of constitutional damages was an appropriate remedy for the appellant's (admitted) constitutional breach. Whether relief in that form was appropriate had to be determined casuistically, with due regard to, inter alia, the J

2006 (4) SA p479

nature and relative importance of the rights that were in issue, the alternative A remedies that might be available to vindicate them, and the consequences for the claimant of the breach concerned. (Paragraphs [23] and [25] at 489G/H and 491B - C.)

Held, further, that there were two reasons why a constitutional remedy was appropriate in the present case: first, there was no reason why a direct breach of a substantive constitutional right should not be remedied directly; and, second, the fact that endemic B breaches of the rights in issue were taking place in the Eastern Cape called for the clear assertion of their independent existence. (Paragraph [27] at 491G - 492A.)

Held, further, as to the form of constitutional remedy which was appropriate, that, in light of the plethora of pronouncements by the High Court to the effect that the respondent concerned had been C constitutionally wronged, there was no purpose in yet another pronouncement to that effect. (Paragraph [29] at 492D - E.)

Held, further, that while the respondent could also have sought a mandamus to compel the functionary concerned to consider her application without unreasonable delay, there were two reasons why, in the present case, the respondent should not be D confined to a mandamus: first, the remedy required prompt action, which could not practically be expected of someone in the respondent's position; and second, confining claimants in the position of the respondent to a mandamus might result in a highly undesirable increase in litigation in the Eastern Cape to secure the payment of social grants. (Paragraphs [30] and [31] at 492E - G and 493C - G.) E

Held, further, that the only appropriate remedy in the circumstances was to award the respondent constitutional damages to recompense her for the breach of her right. In the absence of an empirical monetary standard against which to measure her loss, she should be awarded an amount equivalent to the interest that was recognised in law to be payable when money was unlawfully withheld. The damages should not exceed the capital amount and would run only from F the date when the unlawful delay commenced. (Paragraphs [33] and [34] at 493I - 494A and 494C - E.)

The Court accordingly ordered: (1) That the order of the Court a quo pertaining to the payment of interest be amended as follows: (a) the appellant was ordered to pay the respondent interest on the outstanding balance of her accrual, at the rate of 15,5% per annum, from 1 September 1999 to date of G payment, provided that the total amount of interest did not exceed the capital; and (b) the appellant was ordered to pay the respondent damages equivalent to 15,5% per annum on the amount that had accrued to her by 15 July 1996, and on each amount that accrued to her monthly thereafter, calculated from the date that the respective amounts accrued until 31 August 1999, provided H that the damages in each case did not exceed the capital amount on which they were calculated. (2) That the appeal had to be dismissed, but subject to what was ordered in para (1). (Paragraph [35] at 494F - H.)

The decision in Kate v MEC for Department of Welfare, Eastern Cape 2005 (1) SA 141 (SE) ([2005] 1 All SA 745) substantially confirmed. I

Cases Considered

Annotations

Reported cases

De Klerk v Union Government 1958 (4) SA 496 (T): referred to

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 786): dicta in paras [58] and [60] applied J

2006 (4) SA p480

Jayiya v Member of the Executive Council for Welfare, Eastern Cape, and Another 2004 (2) SA 611 (SCA): referred A to

Kate v MEC for the Department of Welfare, Eastern Cape 2005 (1) SA 141 (SE) ([2005] 1 All SA 745): substantially confirmed on appeal

Mahambehlala v MEC for Welfare, Eastern Cape, and Another 2002 (1) SA 342 (SE) (2001 (9) BCLR 890): referred to B

Mashavha v President of the Republic of South Africa and Others 2005 (2) SA 476 (CC) (2004 (12) BCLR 1243): referred to

Mbanga v MEC for Welfare, Eastern Cape, and Another 2002 (1) SA 359 (SE) (2001 (8) BCLR 821): referred to

Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA) (2004 (2) BCLR 133): compared C

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA): compared

Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae); President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae) 2004 (6) SA 40 (SCA) (2004 (8) BCLR 821): D dictum in para [42] applied

Muller NO and Others v Government of the Republic of South Africa 1980 (3) SA 970 (T): referred to

President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (Agri SA and Others, Amici Curiae) 2005 (5) SA 3 (CC) (2005 (8) BCLR 786): referred to E

Swart v Union Government 1948 (3) SA 149 (T): referred to.

Unreported cases

Makalima v MEC for Welfare (SECLD case No 1601/03, 27 January 2005): compared

Mfubu v MEC for Welfare (SECLD case No 3900/04, 3 March 2005): referred to F

Ndevu v MEC for Welfare (SECLD case No 597/02, undated): referred to

Nyumbana v MEC for Welfare (SECLD case No 3902/04, 3 March 2005): referred to

Sikutshwa v MEC for Social Development (SECLD case No 847/04, 12 May 2005): referred to. G

Statutes Considered

Statutes

The Constitution of the Republic of South Africa, 1996, s 27: see Juta's Statutes of South Africa 2004/5 vol 5 at 1-139.

Case Information

Appeal from a decision of the Eastern Cape Local Division (Froneman J). The facts appear from the judgment of Nugent JA. H

M Donen SC for the appellant.

W Trengove SC (with B Hartle) for the respondent.

G Budlender for the Amicus Curiae.

In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following: I

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687) at paras [26] - [27]

Bellairs v Hodnett and Another 1978 (1) SA 1109 (A) at 1145D - H J

2006 (4) SA p481

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