As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Yesterday the Constitutional Court heard arguments in the case of Njongi v Member of the Executive Council Department of Welfare Eastern Cape Province. According to news reports the judges were rather upset with the Department of Welfare for spending millions of Rands of taxpayers money to oppose a R5000 claim from a disabled woman whose grant was terminated without notice.
The case is now fought on a technicality – whether the money owed to her was a debt in the ordinary sense and could therefore prescribe like other debts – but it touches on a far broader issue, namely the heartless and callous way in which she was treated by officials of the Eastern Cape Department of Welfare.
Like so many other poor people dependent on social grants in the Eastern Cape, her grant was terminated without any reason and without any notice and when she queried this, the officials used tax payers money to fight the matter despite the fact of clearly being in the wrong. As Judge Zak Jacoob told the lawyers yesterday:
“The attitude of every official involved in this affair has been unjustified from day one. No explanation was given as to why the grant was terminated. Millions of rand were spent defending a case that was indefensible. You are spending huge taxpayers’ money defending a R5000 claim.”
Added Judge Sandile Ngcobo:
“We are left to speculate because no one knows why payments were stopped. It seems to me there is something wrong where government says nothing and uses that silence … as a basis to defend itself. You are using your unlawfulness as a defence.”
Section 195 of the Constitution states that the public service must be governed by the democratic values and principles enshrined in the Constitution, and requires a high standard of professional ethics, efficient and economic use of resources, putting peoples needs first and fostering transparency. The Eastern Cape Department of Welfare has made a mockery of these principles for many years now.
Of course the political head of the Department, the Eastern Cape social development MEC Sam Kwelita, is supposed to take responsibility for this mess. In a fully functioning democracy Mr Kwelita would long have been fired to give effect to the many ringing declarations of President Thabo Mbeki about the need to put people first (Batophele) and the need to eradicate inefficiency and corruption from the system.
But of course, Mr. Mbeki needs the support of people like Mr. Kwelita at the upcoming Limpopo conference, so he will be allowed to sit there and make more absurdly callous decisions like this one, and in a year or two we will have another case in which the government spends millions to oppose the payment of R5000 to a poor disabled woman on a technicality when the woman should in fact be entitled to the money.
We can argue that this is an aberration – after all, once the ANC President is elected the normal rules can apply again – but the problem is that there are no normal rules. There will always be another person whose loyalty is needed and another official whose support must be bought, which means officials and politicians who feel nothing for the poor people they are supposed to serve (and if you believe that the ANC is the vanguard of the national democratic revolution, to lead) will get away with the most callous and heartless actions.
This will only end when such callousness on the part of officials lead to revolution in the streets or at the ballot box. The sad fact is that South Africa never had a real revolution in which the old guard and the old attitudes were swept out. Instead the old guard of apartheid officials were merely replaced with a new non-racial “old guard”, with the same values, the same lack of decency and respect for ordinary people, showed by the previous lot. The only difference is that white people have now mostly opted out of the system and do not have to bear the brunt of this callousness.
It is unclear what the Constitutional Court can do or say to change this state of affairs. Even if they find in favour of Mrs Njongi, the same officials will still be in power and the same politicians will be ruling the roost. What we need is another kind of revolution – but no matter who is elected as ANC President in Polokwane, that revolution will not come from him or her. It will only come when people decide to abandon the ANC – the question is, will the ANC let them.BACK TO TOP