Constitutional Court gets creative with orders

The Constitution provides the Constitutional Court with extraordinary wide powers to issue orders when it deals with Constitutional matters, merely requiring such orders to be “just and equatable”. The Court has been criticized in the past for the timid way in which it has exercised these broad powers, but since the departure of the ever careful Arthur Chaskalson as Chief Justice there seems to have been a change of attitude by the Court in this regard.

Two weeks ago I wrote about the scandalous behaviour of officials and politicians in the Eastern Cape, who spent millions of Rands in legal fees to challenge the payment of R5000 to a disabled person whose grant was wrongly canceled by the Province. I bemoaned the fact that in a fully functioning democracy the MEC for Social Welfare in the province would long have been fired or otherwise held to account and wondered what could be done to make politicians and officials more responsive to the needs of ordinary poor poeple.

The Constitutional Court seemed also to have been upset by this case because in amended directions issued on 12 November 2007  the Chief Justice issued directions to Sam Kwelita, the MEC for Social Welfare in the Eastern Cape:

to show cause by affidavit why, irrespective of the outcome of the application, he should not be ordered to pay the Applicant’s costs in he application on the scale as between Attorney and Client de bonis propriis. If the Respondent’s affidavit is to the effect that decisions about opposition to the applicant’s case and the way in which the case was conducted on behalf of the province were not taken by him, but by another person or other people, each person identified in the Respondent’s affidavit must also show cause by affidavit why, irrespective of the outcome of the application, they should not be ordered to pay the applicant’s costs on the scale as between Attorney and Client de bonis propriis.

The MEC was given until today to respond. One assumes there might be some incentive for the MEC to respond because if he is ordered to pay the cost as indicated in the directions, he would be liable for far more than a million Rand in legal fees and would have to pay it from his own pocket. That is a lot of money (even judge John Hlophe would not be able to pay such an amount in one go, I presume).

The Court clearly is trying to act to stop the indifference and callousness of officialdom and is trying to punish or at least stop the cavalier way in which officials litigate against the poor for no good reason at all. If the MEC fails to respond, or if the response is inadequate, it would be interesting to see if the Constitutional Court will go as far as actually instructing payment of legal fees from his personal pocket.

If the Court does make a cost order against the MEC or any other person, it would create a huge incentive for officials not to waste taxpayers money and will send a powerful signal to them not to act in a heartless manner against the poor and destitute. The problem, however, is that it would also be politically very complicated to enforce such an order. One cannot imagine an MEC keeping quiet about such a matter and not complaining about the cheek of the Constitutional Court in making such an order. If he refuses to pay, will he really be locked up?

This is however, an extraordinary case because there has been a very long and well documented history of neglect and heartlessness on the part of Social Welfare officials and the politicians supposedly in charge of them and the Constitutional Court must have figured that something had to be done to stop this rot.

If they do issue an order to make him or any other official pay for the legal cost and anyone so ordered fails to pay, they would of course be in contempt of court and could be locked up for this.  The prospect seems rather appetizing, but I suspect the Court will really only go this route as a last, last, last resort.

These directions come on the heels of another innovative and clever move by the Court when it issued a preliminary order at the end of August in the case between the City of Johannesburg and residents of some very dangerous and dirty blocks of flats in the inner city of Johannesburg. The City wanted to evict them and they claimed this could only happen if they were provided with alternative accommodation in the inner city.

The Court obviously wanted to help the residents but were also deeply worried about the state of the buildings in which they lived (and which was earmarked for renovation by the city).  What would happen if they allowed the residents to stay and a fire broke out killing hundreds of residence living in unsafe conditions? The Court would have blood on its hands.

The court thus made an interim order in which it required the City of Johannesburg and the residents “to engage with each other meaningfully… as soon as it is possible…to resolve the differences and difficulties aired in this application in the light of the values of the Constitution, the constitutional and statutory duties of the municipality and the rights and duties of the citizens concerned.”

One may wonder why these parties would now engage in negotiations after such a long fight in which they could not reach agreement. That is why the Court added to its order that “account will be taken of the contents of the affidavits in the preparation of the judgment in this matter for the issuing of further directions, should this become necessary.”

In other words, the court told the parties to sort out their differences or else. If one party failed to play ball, this might be held against them when the court made its final order. According to one of the lawyers in the case, the parties actually managed to settle their differences and had agreed on a way forward which is very advantageous to the inner-city residents, allowing them to move to alternative accommodation in the inner city while renovations take place.

This agreement will now form part of the final order issued by the Court at the end of the case. This was an extraordinary move on the part of the Court which seemed to have paid off. It does not mean the Court will not decide the difficult legal issues raised in the case – but it does mean that the inner city dwellers would be assisted.

This kind of remedy places a very strong bargaining chip in the hands of activists taking on municipalities who wish to enact large scale evictions because it seems to suggest that the highest court in the land has now sent a clear message (first mooted in the PE Municipality case by Sachs) that some legal problems are better resolved in a non legal way through negotiations.

The residents of Joe Slovo on the N2 Gateway site will also take heart from these developments, while the Minister of Housing who has shown some intransigence to the residents, might have to rethink her strategy. She would not want to end up paying the legal bills out of her own pocket, surely?

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