High court slams state s subsidy ’ freeze on NGOs

The Eastern Cape social development department has been ordered to pay R1.5m in subsidies it owes to 25 organisations involved in caring for the elderly, whose funding it unilaterally slashed at the height of the devastating Covid19 pandemic.

While the high court judgment concerns just these 25 organisations, it will have a farreaching effect as the department in April simultaneously slashed funding to hundreds of non-profit organisations that support the vulnerable.

It has service level agreements (SLAs) with all these organisations in terms of which the department undertakes to pay them for services that it is not in a position to provide itself.

Those whose funding was slashed included organisations providing care and support services to the elderly, disabled and sick as well as early childhood development, childcare and protection services, substance abuse and gender-based violence.

The umbrella body for the 25 organisations, Imbumba Association for the Aged, last week went to court on an urgent basis to challenge the decision and to force the department to heed the terms of their SLAs.

The high court sitting in Makhanda found the department’s decision to stop subsidising the 25 organisations an unlawful repudiation of their SLAs. Judge Judith Roberson gave the department until mid-October to pay six month’s worth of subsidies, with interest, to the 25 organisations.

A tone of outrage runs through the judgment.

Roberson cites a 2001 Supreme Court of Appeal judgment in which that court found the social development department had conducted itself as though “at war with its own vulnerable citizens” when it fought litigation to force it to pay disability grants it had unilaterally cancelled.

Similarly, in this case, Roberson slams as “regrettable ” the department’s opposition to paying the subsidies, especially as it involved the “needs of older people and their constitutional right to social services and dignity, and even the right to life”.

The department advanced several technical points including that the high court application was not urgent. Roberson said this was a vexatious and futile point as the matter dealt with “the welfare of people in need during a life-threatening pandemic”.

The 25 organisations had continued to provide some 1,000 elderly people, most of whom live in impoverished rural former Ciskei, with food and other vital support services during lockdown.

In a letter to the organisations in June, the department indicated that the prohibition on movement of the elderly and these caregiver organisations meant they were not legally able to provide services and the department therefore no longer intended to fund them despite contracts in place.

By then the department had already not paid the April, May or June subsidies. It said it would provide a stipend for organisations ’ caregivers but admitted that it had not even done this.

Each organisation provides food, nursing and enrichment programmes daily to elderly people at day care centres.

When the lockdown was announced, these organisations shifted their daily care model to home-based care where they would instead visit those who usually attended the centres and feed, bathe and care for them. The department said it would not pay for this as they were acting outside their mandate and the lockdown regu Department head Ntombi Baart said to pay for this would constitute wasteful expenditure.

The department had not responded to a request for comment by Thursday’s deadline.