The MEC for the Province of Kwazulu-Natal Responsible for Social Welfare and Development v Q T Machi and Others

Supreme Court of Appeal -333/05 Hearing date: 11 May 2006
Judgment date: 31 May 2006

Whether an order of costs de bonis propriis suspended pending the furnishing of further affidavits is appealable.

Media Summary of Judgment

The Supreme Court of Appeal today gave judgment in an appeal brought by the MEC for Social Welfare and Development, Kwazulu-Natal against an order made against him by Mr Justice JH Combrinck to pay costs de bonis propriis.

Between 2000 and March 2005 the Pietermaritzburg and Durban High Courts have dealt with over 26000 applications brought by indigent applicants for social assistance seeking relief against the appellant’s department as a result of its failure to expeditiously process their applications and appeals (where their applications have been refused) or where the beneficiaries had not been paid their grants after they had been approved. In some cases the applicant’s complaints related to arbitrary cancellation of the grants without notice or explanation. Only one of these applications was adjudicated on an apposed basis. The rest were settled or orders were granted by default in favour of the various applicants with the department consequently paying millions of rand in legal costs as it had no defence to the claims. This deluge of litigation has been tremendously disruptive to the general functioning of these courts and their ordinary roll of cases.

In a bid to resolve the crisis, JH Combrinck J considered all the applications enrolled for hearing during the period 20 to 28 January 2005 as a group and ordered the MEC to show cause why he should not pay the costs thereof de bonis propriis as he believed that the MEC had failed to comply with his statutory duties.

After the MEC and other interested parties, including the Black Sash Trust, had filed affidavits JH Combrinck concluded that the department and its functions under the Social Assistance Act 59 of 1992, which governs the administration of social grants, was being mismanaged on a gross scale, that incompetence in the department was rife and that the MEC’s conduct in the discharge of his duties was unreasonable, negligent and mala fide thus warranting a special costs order de bonis propriis. The operation of the order was however suspended pending a date on which the MEC and the other interested parties were given an opportunity to persuade the court that the backlogs in the applications and appeals (which gave rise to the litigation) had been eliminated or were substantially addressed.

The MEC however applied for and was granted leave to appeal by another judge of the division against the costs order before that date. Affidavits subsequently filed, which established that the situation had improved and showed the MEC in a positive light, could no longer be considered by JH Combrinck J on the set date as the appeal was already pending.

The Supreme Court of Appeal held that the fact that the costs order was not put to effect immediately, showed that the court below had not arrived at its final conclusion in the matter. The order could still have been re-considered and altered or withdrawn. It was therefore not final in effect and was not appealable. The appeal was accordingly struck from the roll.