Permanent Secretary, Department of Welfare, Eastern Cape, and Another v Ngxuza and Others

• Jurisdiction: South Africa
• Judge: Hefer ACJ, Harms JA, Streicher JA, Cameron JA and Mpati JA
• Judgment Date: 31 August 2001
• Docket Number: 493/2000
• Hearing Date: 15 August 2001
• Counsel: M J Lowe SC (with S V Notshe) for the appellants (the heads were drawn partly by M T K Moerane SC (with S V Notshe). J G van der Riet SC (with Z Camroodien) for the respondents.
• Court: Supreme Court of Appeal

Cameron JA:

[1] 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 J

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Cape Division of the High Court four individual applicants, assisted by the Legal Resources Centre, brought motion proceedings A 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 B 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 C 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 D public-interest proceedings in terms of s 38(b), (c) and (d) of the Constitution of the Republic of South Africa Act 108 of 1996. [2] Froneman J, in a judgment now reported, [3] granted them leave to proceed. [4]

[2] The applicants decided to proceed with a class action under s 38(c), with the result that the order as to the other E 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 F

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Province whose disability grants were between specified dates cancelled or suspended by or on A 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 B 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. C

[3] 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 D 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 E 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 F 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.

[4] In the type of class action at issue in this case, one or G 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 H 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

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them by compliance with the formalities of joinder. [7] The difficulties the traditional A approach to participation in legal process create 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 60 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 B 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. C

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]

[5] 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 D 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 E 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 F

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which individually they are in a poor position to seek legal redress, either because they do not know enough or because such A 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]

[6] 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 B 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] C

[7] 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 D 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 E 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. F

[8] 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 G 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 H Cape. The Legal Resources Centre played a central part in co-ordinating these entreaties and in the negotiations that resulted from...