Seven years into our democracy the poor still appear to possess only the right of access to courts to ensure that the government treats them with respect. The latest illustration of this sad manifestation of our politics occurred in the case of Ngxuza and others v The Permanent Secretary, Department of Welfare, Eastern Cape Provincial Council Government.
The provincial government in the Eastern Cape had decided to revoke the welfare benefits of various groups receiving social assistance. The decision was probably motivated by the significant number of “ghost pensioners”, the claims of whom cost the provincial government millions each month. This problem had unquestionably been exacerbated by the six different administrations that had existed before the 1994 election, thanks to the creation of the make-believe worlds of the Transkei and the Ciskei.
The difficulty with this decision was, in the words of Judge Edwin Cameron, that the provincial government “failed to differentiate between the fraudulent and the undeserving and unentitled on the one hand and, on the other, the truly disabled”.
Many families who rely on these payments were left destitute and, despite meetings with officials, letters, requests and entreaties to officialdom, the authorities paid out nothing and a segment of the population was left destitute.
The claimants had no choice, as the political process had let them down, but to resort to litigation. The provincial government lost the case before Judge Johan Froneman but that did not deter it from its obstinacy. The motto appeared to be that it was better to spend millions on legal costs than on ensuring that the needy receive their legitimate social assistance. Redistribution to the Bar rather than to the poor is obviously the policy of this provincial government.
When the appeal was heard before the Supreme Court of Appeal (SCA), the government argued about the legality of a class action as had been brought on behalf of the claimants. A class action of this kind is one in which one or more claimants litigate against a defendant not only on their own behalf but on behalf of similar claimants. Consequently, other members of the class, although not formally joined before the court, benefit from and are bound by the outcome of the litigation unless they opt out. The SCA accepted that a class action could be brought in this country, itself a major development. Now a case can be brought by claimants whose claims are typical of the balance of the class that is too large to be joined in one action.
So the technical argument was rejected. The court held in effect that it did not matter that in this case all claimants for benefits had not been formally joined in an action so that the class of those denied could not benefit from the decision of the court. But the court went further. Judge Cameron observed that the obstructive attitude of the province in refusing to pay much-needed assistance to deserving and indeed desperate cases speaks of “a contempt for people and process that does not befit an organ of government under our constitutional dispensation”. The court accused the province of misusing mechanisms of law to deny desperate people their legitimate social benefits.
This remarkable judicial rebuke of the provincial authorities raises three critical points. In the first place it establishes the class action as part of our law. Secondly, it illustrates the extent to which our courts are prepared to hold the administration accountable to the Constitution. One can only hope that the relevant powers do more than was the case when the Cape High Court recently found senior prosecutors guilty of gross dishonesty. In that case the finding was effectively ignored by the government.
Finally, this decision illustrates the extent to which the SCA has embraced the principles and spirit of the Constitution. In its recognition of the class action and in the controlled anger expressed at the callous behaviour of officials to the poorest of the poor in our country, this judgement is a superb piece of judicial writing far superior to many of the long-winded “cooks tour” of the arguably relevant comparative law exhibited by the Constitutional Court.
Given the controversy surrounding tenure of Constitutional Court judges and the claim that we already have an integrated court system, is it too much to ask whether the time has not arrived to have one highest court in this country? It would solve a lot of unhappiness over the current proposal to grant Constitutional Court judges life tenure and would represent a proper integration of our Constitution into our legal system which the SCA now embraces with great skill.