Free State High Court orders Soc Dev to pay NPOs One Hundred and Twenty Million Rand

While the rest of the country launched 16 days of activism against women and children abuse, the Free State Department of Social Development could not launch like others, on time.

According to the official invite the launch was meant to take place in Bloemfontein’s well known Ilanga Estate on 26 November 2021, but got postponed to 30 November 2021.

The theme for 2021 is “The year of Charlotte Mannya Maxeke: 16 Days of Activism – moving from awareness to accountability.”

Its not clear what accountability will be addressed considering that almost a year later Free Social Development still cant conclude disciplinary hearings of staff members who are implicated in the R2.3 million that was meant for those in need.

If that’s not enough Step Up SA News has learned NPOs succeeded in their litigation amounting to R120million.

Background

ln 2010, 1400 NPOs took the Department to court due to the following:
• Late payments of transfers;
• Inadequate funding of NPO’s leading to inadequate services to be rendered to the communities and closure of NPO’s
• Lack of scientific method of determining the appropriate amount of funding.

There were four judgements in total but the first judgement paints a glaring picture in the sense that:

• Social Department allocates R5 000 per month per child for one of the homes that it runs itself,
• R6 750 per month per child for the other home that it runs,
• In contrast, the subsidy paid to NPOs is only about R2 000 per month per child,
• The judgement notes that this means that NPOs are expected to provide three meals per day for each child for only R11,84.
• The judgement gives similarly worrying estimates in respect of shelters for children living and working on the streets. Here the Department pays the NPOs a subsidy of between R400 to R500 per child per month yet acknowledges that at least R2000 per child per month is needed.
• The judgement notes that this situation violates the rights of children and other vulnerable groups that are laid down in the Constitution and in other legislation such as the Children’s Act and Older Persons Act.
• The judge ordered the Department to revise its policy on financial awards to NPOs, because the Department had failed even to pay the already allocated subsidies, and because there were other indications that the “department lacked leadership and/or capacity” the judge decided to impose a structural interdict which meant that the Court would supervise to ensure that the court order was implemented by the Department.

The Second Judgement concluded that the Department should be given 90 days to consult with NAWONGO and their policy be revised so that it meets the requirements of the judgement and order which dated to 5 August 2010. The Department revised the policy and filed it on 7 September 2012 respectively.

Step Up SA News has it in authority that in 2013 a third court order was granted, a question raised as to whether the second revised policy from 7 September 2012 complies with the respondents constitutional obligations as expounded in the first and second judgement.

About 2019 ENGO and other Non-Profit Organizations filed a court and sought an order declaring:

• Failure by Minister of Social Development, Free State MEC of Social Development and Free State HOD of Social Development to implement 2014 policy in respect of social services delivery approved as constitutionally complaint by the Free State High Court on 28 August 2014,
• Payment by second and third respondents, jointly and severally.

The court made the following order:

• Declared that failure by the first, second and third respondents, to implement the 2014 policy in respect of social services delivery approved as constitutionally complaint by the Free State High Court on the 28 August 2014 is unlawful and invalid,

• Payment by the second and third respondents jointly and severally;
 To the first applicant in the amount of R60 696 176.98
 To the second applicant in the amount of R50 238 097.76
 To the third applicant in the amount of R9 298 636.98

Free State Social Development acting HOD Adv TJ Phahlo, said “There is no litigation by ENGO and therefore there is nothing to defend by the department.”

He said this despite internal document from a meeting where he attended which indicates a legal opinion was sought and advised not to review the judgement as there were no prospects of success to defend R120 million litigation.

Marjorie Van Schalkwyk representing applicants confirmed the judgement.

“We can confirm that the matter is finalized – there is a court judgement. The matter has not been closed – they have not complied with the order. They have made partial payments, but all have paid in full.”

Again this will hurt service delivery at Social Development.