An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
The judges of the
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
Like thousands of other people in the
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
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
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
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
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.BACK TO TOP