THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable

CASE NO: 580/04

In the matter between :

THE MEMBER OF THE EXECUTIVE COUNCIL FOR
THE DEPARTMENT OF WELFARE
Appellant

- and -

NONTEMBISO NORAH KATE
Respondent
________________________________________________________________________
Before:

HOWIE P, STREICHER, CAMERON, MTHIYANE & NUGENT
JJA
Heard:

2 MARCH 2006
Delivered:
30 MARCH 2006
Summary:
Constitutional right to social assistance – denial of by
unreasonable delay – whether an award of damages an
appropriate remedy.

Neutral citation:
This judgment may be referred to as Member of the Executive
Council: Welfare v Kate [2006] SCA 46 (RSA)

________________________________________________________________________

J U D G M E N T
________________________________________________________________________

NUGENT JA

NUGENT JA:
[1] Section 27 of the Constitution obliges the state to achieve the progressive
realisation of the right that everyone has to social security – including, if they
are unable to support themselves and their dependants, appropriate social
assistance – by taking reasonable legislative and other measures within its
available resources towards that end.

[2] On 1 March 1996 the Social Assistance Act 59 of 1992 was brought into
effect. The administration of the Act, appropriately adapted, was simultaneously
assigned to the provincial governments in terms of s 235(8) of the interim
Constitution.1 Presumably the President and the Premier of the Eastern Cape
Province were satisfied that the government of that province had the
administrative capacity to administer the Act because the assignment was
permitted only if that capacity existed.2 The Act, as adapted for purposes of the
assignment, obliges the provincial government (subject to the provisions of the
Act and the concurrence of the Member of the Executive Council responsible for
the provincial budget) to make social grants to disabled persons, amongst others,
out of moneys appropriated by the provincial legislature for that purpose.3 The
MEC has indeed concurred in the making of social grants by the government of
the Eastern Cape and moneys have been duly appropriated.

[3] The establishment by the state of a legislative and administrative structure
for the making of social grants and the appropriation of moneys for that purpose
together go a long way to fulfilling the state’s constitutional obligation but by
themselves they are not enough. What is required in addition are reasonable

1 Constitution of the Republic of South Africa, 1993. The assignment, with effect from the date that the Act
came into operation, was effected by Proclamation R.7 published in Government Gazette 16992 dated 23
February 1996. On 6 September 2004 the proclamation was declared to be invalid in Mashavha v President of
the Republic of South Africa 2005 (2) SA 476 (CC) but the order of invalidity was suspended until 6 March
2006.
2 Section 235(8) of the interim Constitution.
3 Section 2(a) of the Act read with the assigning proclamation.

measures to make the system effective. On that score there has been
conspicuous and endemic failure in the Eastern Cape for a considerable time.4

[4] Why that has been so is not altogether clear because the government has
failed to explain it at all in the present case. But the result has been a plethora of
litigation in the High Court between the poor of that province and the provincial
administration. In some cases the failure of the administration lies in not
expeditiously considering applications for social grants. In other cases it lies in
not paying what is due to beneficiaries once their applications have been
approved. At times it lies even in disregard of court orders for the payment of
moneys that are due. (One such case – Jayiya v Member of the Executive
Council for Welfare, Eastern Cape5 – ultimately reached this court and I will
refer to it again later in this judgment.)

[5] What is particularly distressing is that there seems to be no end in sight.
An affidavit deposed to by the attorney for the Black Sash (which was admitted
as amicus curiae in the present appeal) records that in a period of six weeks
during the latter part of 2005 there were almost 2 000 such cases on the roll of
the High Court. On one occasion Plasket J noted that there were 102 cases
relating to social assistance on his motion court roll for that week and he went
on to say the following:
‘If this volume of social assistance cases had been unique to one week’s motion court
roll, it would have been cause for concern. Unfortunately, it is a phenomenon that is now
common: the judges of this division, as well as those in the other two divisions in the Eastern
Cape, have grown accustomed to the depressing tales of misery and privation contained in an
ever-increasing volume of cases that clog their motion court rolls in which applicants
complain about administrative torpor in the processing of their applications for social

4 The endemic nature of the failure appears from the judgments in a number of cases that have been decided in
the high court of that province and is commented upon more generally by Clive Plasket ‘The Exhaustion of
Internal Remedies and Section 7(2) of the Promotion of Administrative Justice Act 3 of 2000’ 2002 (119) SALJ
50.
5 2004 (2) SA 611 (SCA).

assistance. To make matters worse, this situation is not new. Over the last four or five years,
judges have commented, often in strident terms, about the unsatisfactory performance of the
respondent’s department in the administration of the social assistance system in the province.’

[6] The litigation that has been spawned by this administrative failure, with
adverse implications for the public purse, ought to be capable of being avoided
in most cases at least, because the rights that are in issue are usually not in
dispute. Typically what seems to be occurring is that when a demand upon the
administration is ignored an application to court spews from a word processor,
with adaptations to meet the particular case, which then induces the
administration to do something, probably through the intervention of the State
Attorney. The administration then does what it ought to have done at the outset
leaving it for the court merely to order the government to pay costs that were
avoidable.6 Another consequence of litigation on that scale – which has a
bearing on the case that is now before us – is that cases are often commenced
without adequate thought being given to the formulation of the claim. Instead a
burst of shrapnel is fired in the general direction of the government in the hope
that somewhere something will strike home.7

[7] The case that is now before us is but one in that war of attrition. Mrs Kate
lives in the Govan Mbeki settlement near Port Elizabeth. She was 54 years old
and disabled when the Act came into operation and it is evident that she had no
means of support. Quite how she survived is not apparent from the record but it
is safe to assume that she lived in poverty. On 16 April 1996, soon after the Act
came into operation, she applied for a disability grant.

6 Examples are Ndevu v Member of the Executive Council: Welfare SECLD Case No. 597/02 undated; Sikutshwa
v Member of the Executive Council: Social Development SECLD Case No 847/04 dated 12 May 2005.
7 Examples are Mfubu v Member of the Executive Council of the Department of Welfare, Eastern Cape Province
SECLD Case No 3900/04 dated 3 March 2005; Nyumbana v Member of the Executive Council: Welfare SECLD
Case No 3902/04 dated 3 March 2005; Makalima v Member of the Executive Council: Welfare SECLD Case No.
1601/03 dated 27 January 2005.

[8] A person who desires social assistance must apply for it to the Director-
General of the Department of Welfare8 in the manner prescribed by regulation.
If the Director-General is satisfied that the applicant is disabled then the
applicant is entitled to a disability grant,9 and the provincial government is
obliged to make the grant from the funds that have been appropriated for that
purpose.10

[9] Regulations were promulgated on the day that the Act came into operation
(the 1996 regulations).11 The 1996 regulations required an applicant for a grant
to complete and sign an application form in the presence of an attesting officer,12
and the date upon which that was done was deemed to be the date upon which
the application was made.13 If an application for a disability grant was approved
it accrued from the date of attestation (Regulation 10(1)). The 1996 regulations
were replaced on 1 March 1998 (the 1998 regulations).14 The 1998 Regulations
are material only in so far as Regulation 11 purported to change the date of
accrual of an approved grant from the date of attestation of the application to the
date of approval.15 That regulation, and the purported repeal of the earlier
Regulation 10, were declared to be invalid and were set aside by the High Court
at Pretoria with the consent of the Minister, and regulation 11(1) of the 1998
regulations was subsequently amended to restore the earlier position.16 Thus at
all times that are material to this appeal Kate’s disability grant, once approved,
accrued from 16 April 1996.

8 That official, and the relevant department, are referred to throughout this judgment by their nomenclature at the
time the Act was assigned.
9 Section 3.
10 Section 2.
11 Regulations Regarding Grants, Social Relief Of Distress And Financial Awards In Terms Of The Social
Assistance Act, 1992, promulgated under Government Notice R.373 in Gazette No. 17016 dated 1 March 1996.
12 Regulation 8 of the 1996 regulations.
13 Regulation 9 of the 1996 regulations.
14 Regulations Regarding Grants And Financial Awards To Welfare Organisations And To Persons In Need Of
Social Relief Of Distress In Terms Of The Social Assistance Act, 1992, promulgated under Government Notice
R.418 in Gazette No. 18771 dated 31 March 1998.
15 Regulation 11 of the 1998 regulations.
16 Government Notice R.1233 published in Gazette No. 22852 dated 23 November 2001.

[10] What constitutes a reasonable time for an administrator to process and
approve or reject an application – whether for a social grant or otherwise – is
necessarily relative. Much will depend upon the nature of the particular
application, the enquiries that need to be made, the volume of similar
applications that need to be dealt with, the administrative capacity that is
available for processing such applications, and other matters of that nature. It
would be unrealistic to expect the ideal from an administration that is no doubt
confronted with complex administrative problems inherited from the fractured
administrative history of the Eastern Cape, while simultaneously being called
upon to administer a vast new system of social assistance. A court is bound to
take account of those realities when determining what ought reasonably to be
expected of the administration. But what is expected of an administration that
has justifiable reasons for what appears to be unacceptable delay in carrying out
its functions are full and frank explanations that will enable a court to assess
their adequacy when determining whether the administration has acted
reasonably. In the case that is now before us there has been no explanation at all
for the delay in considering Kate’s application. On the contrary, it was not
disputed that it ought reasonably to have taken no more than three months. Yet it
took forty months before Kate was advised in August 1999 that her application
had been approved, with no explanation at all for the thirty seven month delay.

[11] Once Kate was notified in August 1999 that her grant had been approved
it was thereafter paid to her monthly.17 By that date an amount had accrued to
her from the date of her application. Simultaneously with her first monthly
payment Kate received part of that accrual – R6 000 – leaving a balance that

17 We were advised by counsel for the appellant that the grant was approved on 25 February 1999 though Kate
was only advised of this in August 1999. Counsel were agreed that on a proper construction of the regulations
the date upon which the grant accrued to Kate was the date that she was notified that it had been approved, rather
than on the date that it was approved, and I have accepted for purposes of this appeal that that is correct, without
deciding the question. The precise date upon which she was notified of the approval does not appear from the
record and I have assumed in favour of the appellant that she was notified on 31 August 1999.

was payable. No explanation has ever been given for why that shortfall was not
paid.

[12] It was only in March 2003 – after she consulted an advice office of the
Centre for Human Rights and was referred to her present attorney – that Kate
became aware that she had been underpaid. On 19 March 2003 her attorney
wrote to the Regional Director of the Department of Welfare drawing attention
to the shortfall and demanding its payment together with interest on the accrual
from 16 April 1996 to date of payment. Receipt of the demand was formally
acknowledged but there was no further response.

[13] On 15 October 2003 an application was launched in the High Court at
Port Elizabeth in which declaratory relief was sought together with orders for
the recovery of the balance of the accrual (the amount claimed was erroneous)
and interest on that amount. No purpose is served by repeating the bewildering
formulation of the interest claim. What was meant to be conveyed by the claim
(and by the order that was made, the terms of which are capable of being
misunderstood) – and that is the basis upon which the matter was argued in this
court – was that Kate should be paid an amount equivalent to interest at the
prescribed rate of 15,5 per cent per annum on each monthly amount that accrued
to her once the application was approved, calculated in each case from the date
that the particular amount accrued, and on the assumption that the first monthly
grant accrued on 15 April 1996, the second on 15 May 1996, and so forth, until
the relevant amount was paid.

[14] In December 2003 the State Attorney wrote to Kate’s attorneys advising
that the outstanding balance of the accrual was R13 015 and that it would be
paid to her when next she collected her monthly grant. (The outstanding balance
was indeed paid to her the following month and it was accepted before us that

the accrual was thereby discharged.) She was also invited to withdraw the
application but she declined to do so. Thus the principal issue that remained in
dispute when the matter came before the court below was whether Kate was
entitled to the interest that she had claimed on the accrual.

[15] The court below (Froneman J) granted certain declaratory relief and also
ordered the appellant to pay the interest that had been claimed.18 (A further order
for payment to Kate of R805 was erroneously sought and granted and has now
been abandoned.) This appeal against those orders is before us with the leave of
that court.

[16] It is not disputed that the declaratory order was properly made and I need
say no more about it. It is also not disputed that Kate became entitled to interest
at the prescribed rate on the amount of the accrual, calculated from the date that
it became payable (which I have accepted for present purposes was the date that
Kate was notified that the grant had been approved)19 in accordance with
ordinary principles relating to unpaid debts. The submission on behalf of the
appellant in that regard was that the claim for payment of the accrual, and for
interest on it from the date that it became payable, ought to have been pursued
by ordinary action in the magistrates’ courts and not by review proceedings in
the High Court.20 Those claims could indeed have been pursued and recovered
in that manner, and were not properly susceptible to proceedings for review, but
the allegations that were made in the founding affidavit were nonetheless
sufficient for that relief to have been granted on ordinary principles of law. The
court below had concurrent jurisdiction with the magistrates’ court to entertain
and to grant that claim and there are no grounds for us to interfere with the order
that it made in that regard.

18 Reported as Kate v MEC for the Department of Welfare, Eastern Cape 2005 (1) SA 141 (SECLD).
19 See footnote 17.
20 Cf Makalima v Member of the Executive Council: Welfare SECLD Case No 1601/03 delivered on 27 January
2005 paras 18 and 19.

[17] The real dispute in the present appeal – which the parties regard as a test
case – relates to the remainder of the interest that was awarded by the court
below i.e. interest during the period from the date the application was made to
the date that Kate was notified that it had been approved. (During that period
interest did not accrue to Kate on ordinary principles because the debt was not
yet payable.) Interest during that period was claimed and awarded as a measure
of constitutional damages for the unreasonable delay that Kate was constrained
to endure. Kate’s case, put simply, is that the unreasonable delay in considering
her application deprived her during that period of her constitutional right to
receive a social grant, and for that deprivation she ought to be recompensed by
an order for damages.

[18] The judgment of the court below is mainly a riposte to this court’s
judgment in Jayiya and traverses issues that did not arise in the case that was
before it, which the learned judge freely acknowledged. He said that he felt
compelled to traverse those issues because, he said, this court itself went beyond
the issues that were before it in Jayiya, with the result that doubt and confusion
has been thrown on what until then had been incremental and cautious progress
by the High Court in what he described as ‘a kind of dialogue’ between it and
the provincial government to find a way out of the impasse. Indeed, one of the
reasons that he granted leave to appeal was ‘to allow for the widest
consideration of all the issues raised in the judgment [in Jayiya]’.

[19] Much of what was said in Jayiya was indeed obiter and the ratio in that
case was decidedly narrow. Jayiya decided only that a money judgment given
against a provincial government (which is the construction that was placed upon
the relevant order)21 is not enforceable by incarcerating for contempt a defendant

21 Paras 5 and 15 read in the context of the relevant order.

who has been cited nominally for the government if the government fails to
comply with the order. (The Permanent-Secretary: Welfare, formerly known as
the Director-General, was construed as having been cited nominally for the
government, although incorrectly.)22  But I do not think we should accept the
invitation extended by the court below to reconsider that decision or what was
said in the course of deciding it where it is not material to the case that is now
before us. To add to the non-binding statements that were made in that case and
in the court below will only add to any uncertainty.

[20] To the extent that the court below dealt in its judgment with the question
that is now in issue – whether Kate became entitled to ‘constitutional damages’
– the learned judge followed earlier decisions of that court (Leach J) in
Mahambehlala23 and Mbanga.24 (Those two cases were heard simultaneously.)
Mahambehlala’s case was materially on all fours with the present case. In that
case it took the administration nine months to approve Ms Mahambehlala’s
application for a social grant when it ought reasonably to have taken no more
than three. As in the present case the grant, once approved, accrued to
Mahambehlala from the date of the application, but became payable only on the
date of approval. Holding that the delay ‘resulted in an unlawful and
unreasonable infringement of [Mahambehlala’s] fundamental right to just
administrative action as set out in s 33(1) of the Constitution’25 Leach J awarded
damages equivalent to interest for the period of the delay, after saying the
following:26

22 Para 16: ‘The person against whom no ‘attachment or like process shall be issued’ is, of course, the nominal
defendant.’ Para 18: ‘The State Liability Act outlaws the ‘attachment’ of the nominal defendant or respondent in
proceedings against a government department. There is nothing that any evolution of the common law can do
about that.’   The court also observed, incidentally, that the citation of the Permanent-Secretary was in any event
irregular, in that the only nominal defendant permitted by the State Liability Act was the relevant Member of the
Executive Committee.
23 2002 (1) SA 342 (SE).
24 2002 (1) SA 359 (SE).
25 At 353D-E.
26 At 357G-I.

‘…[I]t seems to me that, in order to attempt to place the applicant in the position in
which she would have been had her constitutional rights not been breached by the tardy
manner in which her application for a social grant was processed, it is appropriate to order the
respondents to pay interest on the amounts that she should have been paid as a social grant
had it been approved with effect from 7 June 2000 [three months after the application was
made] until date of payment. It was common cause during argument that if interest was to be
awarded, it should be at the current prescribed rate of 15,5 % per annum. It will be so
ordered.’
A similar order was made in Mbanga on the same grounds.

[21] In Jayiya Conradie JA commented disapprovingly on the decision in
Mahambehlala, though he made it clear that the matter had not been argued and
his views were no more than tentative.27 (The comments were also obiter,
directed as they were at the order that had been made by Moodley AJ, which
was not the order that was on appeal.) Conradie JA was of the view that the
appellant in Mahambehlala should have sought her remedy in the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) rather than in the Constitution,28
and he was also of the view that PAJA does not allow for the recovery of
constitutional damages.29  It is not necessary to consider the correctness of those
tentative views in the present case because it is common cause that PAJA has no
application. (Although reliance was placed on PAJA in the founding affidavit
that was no doubt because the relevant word-processor was not aware that it
only came into operation long after the material events had occurred.)30 But the
shrapnel that founded the case encompassed far more than that and included
allegations that were sufficient to dispose of this case on the grounds to which I
now turn.

27 Para 8.
28 PAJA came into operation on 30 November 2000. Whether it was applicable to events that had occurred
before then was not pertinently considered in Jayiya.
29 Jayiya, para 9.
30 PAJA came into operation on 30 November 2000.

[22] In the case that is now before us, following Mahambehlala and Mbanga,
the constitutional breach was held to lie in the denial to Kate of the process that
is promised by s 33(1) of the Constitution31 and was promised before that by s
24 of the interim Constitution.32 In my view that is to approach the matter too
narrowly. The realisation of substantive rights is usually dependant upon an
administrative process. Rights that protect that process, like those that are
embodied in s 33(1) and s 23733 of the Constitution and in PAJA, are essentially
ancillary to the realisation of those substantive rights. For without protection
being given to the process the substantive rights are capable of being denied.
Where, as in this case, the realisation of the substantive right to social assistance
is dependant upon lawful and procedurally fair administrative action, and the
diligent and prompt performance by the state of its constitutional obligations, the
failure to meet those process obligations denies to the beneficiary his or her
substantive right to social assistance. What has been denied to Kate is not
merely the enjoyment of a process in the abstract, but through denial of that
process she has been denied her right to social assistance, which is dependant for
its realisation upon an effective process. It is the denial of that substantive right
that lies at the centre of her claim.

[23] That the administration of the welfare department of the Eastern Cape
Government acted in breach of its constitutional obligations and thereby denied
to Kate her right to social assistance is not contentious. What is contentious is
only whether an award of monetary damages is an appropriate remedy for the
admitted constitutional breach. Fose v Minister of Safety and Security34
recognised that in principle monetary damages are capable of being awarded for

31 Section 33(1) of the Constitution, which came into operation on 4 February 1997, read together with s 23(2)(b)
of the Sixth Schedule, conferred on every person the right to lawful and procedurally fair administrative action.
32 Section 24 of the interim Constitution conferred the same rights on every person.
33 Section 237: ‘All constitutional obligations must be performed diligently and without delay.’
34 1997 (3) SA 786 (CC).

a constitutional breach. In that case Ackerman J made the following general but
important observation in the context of the interim Constitution:35
‘I have no doubt that this Court has a particular duty to ensure that, within the bounds
of the Constitution, effective relief be granted for the infringement of any of the rights
entrenched in it. In our context an appropriate remedy must mean an effective remedy, for
without effective remedies for breach, the values underlying and the right entrenched in the
Constitution cannot properly be upheld or enhanced. Particularly in a country where so few
have the means to enforce their rights through the courts, it is essential that on those occasions
when the legal process does establish that an infringement of an entrenched right has
occurred, it be effectively vindicated. The courts have a particular responsibility in this regard
and are obliged to “forge new tools” and shape innovative remedies, if needs be, to achieve
this goal.’
Earlier the learned judge said the following:36
‘It seems to me that there is no reason in principle why “appropriate relief” should not
include an award of damages, where such an award is necessary to protect and enforce chap 3
rights. Such awards are made to compensate persons who have suffered loss as a result of the
breach of a statutory right if, on a proper construction of the statute in question, it was the
Legislature’s intention that such damages should be payable, and it would be strange if
damages could not be claimed for, at least, loss occasioned by the breach of a right vested in
the claimant by the supreme law. When it would be appropriate to do so, and what the
measure of damages should be will depend on the circumstances of each case and the
particular right which has been infringed.’

[24] Monetary damages for a constitutional breach have since been awarded by
this court, and endorsed by the Constitutional Court, in President of the Republic
of South Africa v Modderklip Boerdery (Pty) Ltd).37 In the decision of this court
Harms JA said the following:38
‘Courts should not be overawed by practical problems. They should ‘attempt to
synchronise the real world with the ideal construct of a constitutional world’ and they have a

35 Para 69.
36 Para 60.
37 2004 (6) SA 40 (SCA) para 43; 2005 (5) SA 3 (CC) paras 65 and 66.
38 Para 42.

duty to mould an order that will provide effective relief to those affected by a constitutional
breach.’

[25] In Fose the Constitutional Court emphasised that it was ‘not required to
answer the question…whether an action for damages in the nature of
constitutional damages exists in law, nor whether an order for the payment of
damages qualifies as appropriate relief…in respect of a threat to or infringement
of any of the rights in chap 3’ but was concerned only with the much narrower
task of deciding whether an award of damages was appropriate in relation to the
particular breach that was there in issue.39 Similarly in this case we are not
called upon to answer those questions broadly and in the abstract – and I do not
do so – but only to decide whether the particular breach that is now in issue is
deserving of relief in the form of the monetary damages that are now claimed.
Whether relief in that form is appropriate in a particular case must necessarily be
determined casuistically with due regard to, amongst other things, the nature and
relative importance of the rights that are in issue, the alternative remedies that
might be available to assert and vindicate them, and the consequences of the
breach for the claimant concerned.

[26] Counsel for the appellant submitted that Kate has delictual remedies that
are sufficiently restorative of any loss that was caused to her by the failure of the
administration to perform its constitutional duties and that in those
circumstances a remedy of constitutional damages is not required, a submission
foreshadowed in the following observation by Ackerman J in Fose:40
‘The South African common law of delict is flexible and under s 35(3) of the interim
Constitution should be developed by the Courts with ‘due regard to the spirit, purport and
objects’ of chap 3. In many cases the common law will be broad enough to provide all the
relief that would be ‘appropriate’ for a breach of constitutional rights. That will of course
depend on the circumstances of each particular case.’

39 Para 20.
40 Para 58. See, too, the observations of Kriegler J at para 98.

[27] The question that submission raises is not so much whether the remedy
that is now proposed is an appropriate one to remedy Kate’s loss but rather
whether a constitutional remedy should be granted at all. No doubt the infusion
of constitutional normative values into delictual principles itself plays a role in
protecting constitutional rights, albeit indirectly.41 And no doubt delictual
principles are capable of being extended to encompass state liability for the
breach of constitutional obligations. But the relief that is permitted by s 38 of the
Constitution is not a remedy of last resort, to be looked to only when there is no
alternative – and indirect – means of asserting and vindicating constitutional
rights. While that possibility is a consideration to be borne in mind in
determining whether to grant or to withhold a direct s 38 remedy it is by no
means decisive, for there will be cases in which the direct assertion and
vindication of constitutional rights is required. Where that is so the further
question is what form of remedy would be appropriate to remedy the breach. In
my view the breach in the present case warrants being vindicated directly for
two reasons in particular. First, I see no reason why a direct breach of a
substantive constitutional right (as opposed to merely a deviation from a
constitutionally normative standard) should be remedied indirectly. Secondly,
the endemic breach of the rights that are now in issue justifies – indeed, it calls
out for – the clear assertion of their independent existence.

[28] With regard to the form of remedy, counsel for the appellant urged us to
confine it to a declaration that Kate has been constitutionally wronged. A
declaration of rights is essentially remedial and corrective and it is most
appropriate where ‘it would serve a useful purpose in clarifying and settling the

41 Cf. Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para 17; Minister of Safety and
Security v Carmichele 2004 (3) SA 305 (SCA) para 34 and 37.

legal relations in issue.’42 As pointed out by Kent Roach:43 ‘[D]eclarations are
well-suited to provide legal and practical guidance to resolve an underlying
dispute and to prevent new ones from arising’44, and ‘can promote a non-
coercive dialogue between courts and government’45 in preference to an
injunction. But he adds the following important reservation:46
‘An important limitation, however, is that they will only be successful in obtaining
compliance with the Constitution if governments and officials comply with them voluntarily,
promptly and in good faith.’

[29] There is not, and never has been, any doubt that the conduct of the
administration that is now complained of is constitutionally unlawful, and the
High Court has all but exhausted its lexicon of epithets in its attempts to drive
that point home so that the impasse can be ended. I see no purpose in yet another
pronouncement to that effect.

[30] What does warrant serious consideration is whether the remedy of
mandamus, which was available to Kate to avoid the delay occurring at all, was
sufficient to protect her rights. Section 6 of the Act properly construed, read
together with the procedural guarantees in ss 33(1) and 237 of the Constitution,
obliges the Director General to consider and decide upon an application for a
social grant, and to do so lawfully, procedurally fairly, and with due diligence
and promptitude. It goes without saying that a public functionary who fails to
fulfil an obligation that is imposed upon him or her by law is open to
proceedings for a mandamus compelling him or her to do so. That remedy lies
against the functionary upon whom the statute imposes the obligation, and not
against the provincial government. If Jayiya has been construed as meaning that

42 Edward Borchard Declaratory Judgments 2 ed 299 quoted in Kent Roach Constitutional Remedies in Canada
12-3.
43 Kent Roach Constitutional Remedies in Canada.
44 Roach, footnote 29, 12-11.
45 Roach, above, 12-20.
46 Roach, above, 29, 12-5.

the remedy lies against the political head of the government department, as
suggested by the court below, then that construction is clearly not correct. The
remarks that were made in Jayiya47 related to claims that lie against the state, for
which the political head of the relevant department may for convenience be cited
nominally in terms of s 2 of the State Liability Act 20 of 1957, though it is well
established that the government might be cited instead.48 Moreover, there ought
to be no doubt that a public official who is ordered by a court to do or to refrain
from doing a particular act and fails to do so is liable to be committed for
contempt in accordance with ordinary principles and there is nothing in Jayiya
that suggests the contrary.

[31] The remedy of mandamus thus has the capacity to be effective where
there is a breach or a threatened breach by a public official of a duty that is
imposed upon him or her by a statute or by the Constitution and in most cases
that ought to be sufficient without an additional remedy in damages. But there
are two considerations in particular that militate against confining Kate to that
preventative remedy. The first is that it is a remedy that requires prompt action if
the wrong is to be averted before any loss occurs. The rights that are now in
issue are directed towards the very poorest in our society, who have little or
nothing to sustain them, and who can be expected to have little or no knowledge
of where their rights lie nor the resources readily to secure them. It is most
unlikely that Kate had the capacity or the means that were required to act swiftly
once the delay set in and it would be quite unrealistic to expect the remedy to
have been effective in her hands. The second relates to broader considerations. I
pointed out earlier in this judgment that the problem that was faced by Kate is
one that is endemic in the Eastern Cape. The pattern that emerges from cases
that have been brought in the High Court is that an application that has been

47 Para 5.
48 See, for example, de Klerk v Union Government 1958 (4) SA 496 (T); Swart v Union Government 1948 (3)
SA 149 (T); Muller NO v Government of the Republic of South Africa 1980 (3) SA 970 (T);

made by an individual and is being delayed usually rises to the surface only
when legal proceedings are brought, which must necessarily mean that at least
for the moment similar applications by others move a step down in the pile.
There is no reason to think it will be otherwise if the individuals concerned seek
to enforce their rights by proceedings for a mandamus, raising the spectre of
even more litigation, with each applicant attempting to leap-frog over others in
order to secure their benefits. Anything that is conducive to that occurring is in
my view most undesirable. There is no doubt that the proper resolution lies in
the administration getting its house in order so that all applications are dealt with
expeditiously rather than in encouraging yet more litigation.

[32] There is one further matter. It is indeed troubling, as pointed out by
counsel for the appellant, that the public purse, upon which there are many calls,
should be depleted by claims for damages. If the provincial administration must
seek further funds, in addition to those that have been appropriated for providing
social assistance, in order to meet claims for damages, hopefully its
accountability to the legislature will contribute to a proper resolution. But the
cause for that is the unlawful conduct of the provincial administration and it
does not justify withholding a remedy.

[33] In my view the only appropriate remedy in the circumstances is to award
constitutional damages to recompense Kate for the breach of her right. What
remains is how to measure that loss in monetary terms. It has not been shown
that Kate suffered direct financial loss and it is most unlikely that she did, for the
grant was destined to be consumed and not invested, but the loss was just as
real. To be held in poverty is a cursed condition. Quite apart from the physical
discomfort of deprivation it reduces a human in his or her dignity. The inevitable
result of being unlawfully deprived of a grant that is required for daily
sustenance is the unnecessary further endurance of that condition for so long as

the unlawfulness continues. That is the true nature of the loss that Kate suffered.
There is no empirical monetary standard against which to measure a loss of that
kind. Counsel for Kate submitted that in the absence of such a measure she
should be awarded an amount equivalent to the interest that is recognised in law
to be payable when money is unlawfully withheld. Counsel for the appellant was
unable to suggest any more appropriate measure and I think we ought to adopt
it. Counsel were agreed that the damages ought not to accumulate such as to
exceed the capital amount.

[34] I intend altering the order that was granted by the court below, so that the
damages will run only from the date that the unlawful delay commenced and to
remove other possible ambiguity, but Kate has been substantially successful in
resisting the appeal and is entitled to her costs.

[35] The following orders are made:
1.
Paragraph 3 of the order of the court below is deleted and the following
paragraphs are substituted:
‘3.1 The respondent is ordered to pay the applicant interest on the sum
of R13 015 at the prescribed rate of 15,5 per cent per annum
calculated from 1 September 1999 to the date that the amount was
paid, provided that the total amount of interest shall not exceed the
capital.
3.2
The respondent is ordered to pay to the applicant damages
equivalent to 15,5% per annum on the amount that had accrued to
her by 15 July 1996, and on each amount that accrued to her
monthly thereafter, calculated from the date that the respective
amounts accrued until 31 August 1999, provided that the damages
in each case shall not exceed the capital amount upon which they
are calculated.’

2.
Subject to paragraph 1 above the appeal is dismissed with costs including
the costs of two counsel.

___________________
R.NUGENT
JUDGE OF APPEAL

CONCUR:
HOWIE P)
STREICHER JA)
CAMERON JA)
MTHIYANE JA)