OPINION: Failure to comply with court orders should concern us all

The Gauteng provincial government department’s failure to comply with court orders should be of concern to anyone who cares about our constitutional democracy and the rule of law.

The essence of the issue is as follows. According to reports, several non-governmental organisations (NGOs) have not been paid despite having signed contracts with the Gauteng Department of Social Development. Other organisations are still waiting for the outcome of applications for funding for the financial year which began in April 2024. Still, others have only been paid for the fourth quarter of the year, despite providing services since the start of the year.

The organisations affected are those working to assist some of the most vulnerable and marginalised people in society, making the dereliction by the Gauteng Department of Health even more egregious. One of the organisations reported to be affected is a network dealing with homelessness, which is reported to be on the brink of collapse due to the lack of funding, and is unable to provide support to the homeless.

In an effort to address this crisis, the Gauteng Care Crisis Committee, on behalf of a number of non-profit organisations funded by the Department, obtained three court orders against the Department from the Gauteng High Court, Johannesburg. These orders were not fully complied with. In court documents filed in December, the head of department apologised for not complying with aspects of previous court orders and requested more time to produce a report on the status of funding for non-profit organisations. Premier Panyaza Lesufi and Social Development MEC Faith Mazibuko, who were required by the court to show why they were not complicit in possible contempt of court, also apologised for “shortcomings” in the Department’s compliance with court orders.

But apologies and requests for extensions alone are not sufficient. Failure to implement court orders is a fundamental violation of the rule of law. And this is not an abstract concern. As is evident from the types of organisations affected, this failure to follow court orders directly impacts the welfare and the rights of those in society who most need support and assistance.

South Africa has a rich and extensive history of court judgments applying and enforcing the socio-economic rights provisions in the Constitution to provide relief to people in need, where otherwise there might be none. One thinks, for example, of the important TAC judgment, where the Constitutional court ordered the government to remove restrictions on the provision of antiretroviral treatment to pregnant women and their newborn children, thereby ensuring access to health services to a particularly vulnerable group in society. And of the celebrated Grootboom case, where the court ensured that the government’s housing programme provided relief for those in “desperate need.”

Courts have great power under our constitutional system. But ultimately, they are dependent on other branches of government respecting their role in that system and implementing what the court orders. For this reason, we need to be vigilant to ensure that court orders are indeed respected and obeyed. If not, even in apparently small instances, the system is ultimately undermined. As a former Chief Justice, the late Ismail Mahomed memorably cautioned:

“Unlike Parliament or the executive, the court does not have the power of the purse or the army or the police to execute its will. …. [The courts] would be impotent to protect the Constitution if the agencies of the state which control the mighty physical and financial resources of the state refused to command those resources to enforce the orders of the courts. The courts could be reduced to paper tigers with a ferocious capacity to roar and to snarl but no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship.”

We must be vigilant to avoid this situation becoming normalised. As citizens, we need to place pressure on the government and demand that they comply with court orders. The work done by the Gauteng Care Crisis Committee is important and deserving of support. The media and civil society should continue to monitor the issue and continue to draw attention to further non-compliance. As citizens, we can lobby the government to demand they implement court orders – and ultimately, this is a factor we should take into account when we make our voting choices come election time. If court orders are not followed, the consequences can be catastrophic, as the results of the Gauteng Department of Social Development’s non-compliance demonstrate.