Mpupa v MEC, Department of Social Development, Eastern Cape

• Jurisdiction: South Africa
• Judge: Sangoni J
• Judgment Date: 05 July 2007
• Citation: 2008 (1) SA 287 (CkH)
• Docket Number: 4023/2003
• Hearing Date: 24 April 2007
• Counsel: SA Collett for the applicant No appearance for the respondent
• Court: Ciskei High Court

Sangoni J: A

[1] This judgment concerns an application for joinder of the Permanent Secretary for the Department of Social Development, Eastern Cape Province, as second respondent. For the sake of clarity, I should mention that in the course of this judgment I will refer to two previous applications, the first one being the original application, registered under case No 831/2002, and the second one being the B contempt of court application. The relief sought in the second application is compliance with the original order.

[2] In the original application, registered under case No 831/2002, the applicant sued the Member of the Executive Council of the Department of Welfare, Eastern Cape as the first respondent and the C Permanent Secretary, Department of Welfare, Eastern Cape Province as the second respondent. The relief sought in that application appears in the court order of 13 February 2003 (original order) which reads:

1

The Second Respondent pay to the Applicant the sum of D R24 532.95, which would have been paid to him as a social grant during the period May 1996 to September 2001, in terms of the Social Assistance Act 52 of 1992.

2.

The Second Respondent pay to the Applicant, interest on the sum of R32 320.00 from the date that each amount owing to the Applicant would have been paid if his old age pension had not been E suspended during the period May 1996 to September 2001, together with interest on the sum thus capitalised, calculated to date of payment.

3.

The Second Respondent upon payment as aforesaid inform the Applicant's attorneys of record in writing of such payment.

4.

The Respondents pay the Applicant's costs jointly and severally, the one paying, the other to be absolved. F

[3] It will be noted that this order is directed against both respondents, albeit the order against the first respondent only relates to the payment of costs.

[4] When the relevant order was not honoured and on 13 January 2005 the applicant launched the contempt of court application, G registered under case No 4023/2003, against the MEC of the Department of Welfare, the first respondent in the original application, seeking an order setting in motion contempt of court proceedings to ensure compliance with the original order. The relevant part of the relief sought specifically reads: H

1.

Directing that the Respondent appear personally or by affidavit to show cause to the above Honourable Court on a date to be determined:

1.1

Why the Respondent or her duly authorised functionaries have not complied with the Order issued out of the above Honourable I Court under Case Number 831/2002 dated 13th February 2003 in terms of her constitutional obligations pursuant to the provisions of Sections 7(2), 165(4) and (5) and 237 of the Constitution Act of the Republic of South Africa, No. 108 of 1996, more particularly paragraph 1 and 2 thereof; and

1.2

When the Respondent intends complying with the Order. J

Sangoni J

2.

Sangoni JDirecting that the Applicant be entitled to approach this Honourable Court in due course, on the same A papers duly supplemented where necessary, for further relief, in the event of the Respondent failing to appear personally or failing to deliver an Affidavit as aforesaid, such relief to include an Order calling upon the Respondent to show cause on a date to be determined why she should not be held to be in contempt of this Honourable Court's Order to appear or deliver an Affidavit, as B referred to in paragraph 1 hereof, and committed to imprisonment for such contempt.

[5] The permanent secretary was not cited as a respondent in these contempt of court proceedings, but the order sought is meant to operate also against the MEC's duly authorised functionaries. One of the functionaries would obviously be the permanent secretary as, C indeed, in terms of the Social Assistance Act 59 of 1992 the permanent secretary plays a vital role in the application for social grants, and as head of the Department of Social Development...