Constitutional Court almost becomes really brave….

The judges of the Constitutional Court are usually rather tame in their criticism of the government. Although they have made some brave decisions, they have been criticised in the past (sometimes – but not always – unfairly, in my opinion) for giving government officials and Ministers the benefit of the doubt – even when this might seem wildly optimistic or even a bit Pollyanna-ish.

For example, when the Treatment Action Campaign (TAC) took the Minister of Health (she of the watches and whiskey bottles) to court for not implementing an HIV mother-to-child prevention programme, the Court said that there was no reason to believe that the order forcing her to implement such a programme would not be carried out – despite the fact that Manto Tshabalala Msimang had told the SABC news a few months earlier that she would refuse to obey such an order.

Given this history, the judgment of the Constitutional Court in Njongi v MEC, Department of Welfare of the Eastern Cape handed down last Friday seems like another missed opportunity. The case highlights the appalling way in which officials in the Eastern Cape have treated poor black recipients of welfare grants and shines a light on the way in which every legal avenue have been used by these officials to frustrate attempts of bona fide social grant claimants to get the money owed to them.

Like thousands of other people in the Eastern Cape. Mrs Njongi’s disability grant was unlawfully canceled by the Eastern Cape government in the late 1990s. Even after the grant was reinstated, and after several court judgments – one of the Supreme Court of Appeal – had made it clear that the action was unlawful, officials refused to admit that it had acted wrongly and then refused to pay Mrs Njongi the full amount owed to her.

Even worse, when she eventually got lawyers to take up her case, the officials raised the argument that she could not claim the full amount owed to her by the state as her claim was a debt against the state and had been instituted too late and had thus prescribed. The outstanding amount in question – which had prompted Eastern Cape officials to appeal all the way to the Constitutional Court at great expense to the taxpayer – was for a paltry R5800.

The judgment by Justice Zack Yacoob, writing for a unanimous court, relates this sorry saga which – in uncharacteristically strong language – he calls a “disaster” before rejecting the prescription argument of the Eastern Cape lawyers with thinly veiled contempt.

The judgment is shot through with direct and indirect criticism of the officials and politicians in the Eastern Cape who had acted in such a heartless fashion to deny a poor, black woman who was 100% disabled what was rightfully her due. But despite the strong language used and the obvious shock and exasperation of the judges of the Constitutional Court at this turn of events, the Court failed to fully grasp the chance to put a stop to this kind of outrage for once and for all.

After conclusion of oral argument the Chief Justice had directed the MEC and anyone else involved in the decision to oppose the application of Mrs Njongi to show cause why they should not personally be ordered to pay the cost of the application on the scale as between attorney and client. However, in the end the Court decided not to make such a drastic order against the political head of the Department of Welfare in the Eastern Cape or his predecessor or any of the officials without really giving cogent reasons for being so kind to those officials and politicians involved.

This is perplexing, given the very strong language used by Justice Yacoob in rejecting the reasons given by the MEC and his officials for opposing the application. For example, the Court notes dryly that this case would never have come to court if the officials had paid heed to the relevant judgments already handed down about this issue:

In particular, it must be said that judgments of courts in relation to Provincial Government conduct are not meant simply to be filed away without being read. They contain important information that has a bearing on the conduct of the Provincial Government in issue. It is probable that the legal advisors to the Provincial Government did not read the various judgments which are referred to in this judgment with sufficient care. If they did read them however their conduct is worse. Court judgments were ignored by these lawyers. This is unsatisfactory.

The Court also called the decision to oppose the application by Mrs Njongi “unconscionable” and was obviously outraged by the characterisation of the case by one of the legal advisors [a Mr Basson] as a case dealing with “the social issue of making payment of the balance of the [a]pplicant’s claim”, calling it a “grossly insulting understatement of the nature of the problem”.

The court also characterised the attitude of the Department as “a cynical position devoid of humanity”. In the end Justice Yacoob ordered the Department to pay the cost of the application – which means that we the tax payers will again be forking out money for this heartless action by officials and politicians.

This is – to use an understated phrase deployed more than once in this judgment – regrettable. Although I am of the opinion that the Constitutional Court has mostly been quite wise in the way it has dealt with the problems of the separation of powers and that (given our history and the danger of appearing to second-guess every decision of the newly elected government) it has often shown the appropriate respect for the other branches of government, in this case it failed Mrs Njongi and all the other claimants in the Eastern Cape who have suffered at the hands of these bureaucrats.

Sadly, it failed to hold the MEC and his officials personally responsible for this fiasco, so who knows whether they will not act in a similar fashion in future. After all, we already know they do not read the judgments of the court and even if they do, often ignore them. The only way to get these peoples’ attention is to hit them where it hurts – the pocket.

Maybe when next such a case comes to the Court the judges will finally develop the backbone to say “enough is enough” and will hold the MEC and his officials personally liable for the waste of money and, worse, for the total disregard for the rights and dignity of just another ordinary South African.

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