IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO: 493/2000
In the matter between:
THE PERMANENT SECRETARY, DEPARTMENT OF WELFARE,
EASTERN CAPE PROVINCIAL GOVERNMENT
First Appellant
MEMBER OF THE EXECUTIVE COUNCIL FOR WELFARE, EASTERN
CAPE
PROVINCIAL GOVERNMENT
Second appellant
and
MN NGXUZA
First Respondent
NM MELTAFA
Second Respondent
S MBOYIYA
Third Respondent
BEFORE:
Hefer ACJ, Harms, Streicher, Cameron and Mpati JJA
HEARD:
15 August 2001
DELIVERED:
31 August 2001
Class action under Constitution — quintessential requisites for action
and requirements for definition of class set out — Jurisdiction —
inclusion of class members outside jurisdiction of forum court cannot
impede progress of action — Provincial government’s conduct of
litigation criticised
JUDGMENT

CAMERON JA:
1 []
The law is a scarce resource in South Africa.  This case shows
that justice is even harder to come by.  It concerns the ways in which the
poorest in our country are to be permitted access to both.  In the Eastern
Cape Division of the High Court four individual applicants, assisted by
the Legal Resources Centre, brought motion proceedings against the
Eastern Cape provincial government (represented by respectively the
departmental and political heads of provincial welfare, who are the first
and second appellants).  They sought two-fold relief.  The first portion
was to reinstate the disability grants they had been receiving under the
Social Assistance Act,1 which the province had without notice to them
terminated.  The province conceded the claims of three of the
applicants, with payment of arrears and interest.  They are the
respondents in the appeal (I refer to them as “the applicants”).  A fourth
applicant failed, and he plays no further part in the proceedings in which
the contested issue is the immensely more expansive, second portion of
the relief the applicants sought.  That concerned the plight of many tens
of thousands of Eastern Cape disability grantees they alleged were in a
similar predicament to themselves, in that they, too, had had their grants
unfairly and unlawfully terminated.  On their behalf, aiming to secure the
reinstatement en masse of their cancelled pensions, the applicants
sought to institute representative, class action and public interest

1 Act 59 of 1992, sections 2(a), 3(a).  The Act’s reference to “social grants to ... disabled persons” has been
popularised to “disability grant”.  The Act requires the Minister for Welfare and Population Development amongst
other things (with the concurrence of the Minister of Finance) to make disability grants out of moneys
appropriated by the Provincial Legislature (section 2(a)).  Section 3(a) creates an entitlement to such a grant if
the Director-General of Welfare is satisfied as to conditions specified in the Act and the regulations.  The
functions of the Director-General were in terms of Proclamation R7, Regulation Gazette 5643 of 23 February
1996 assigned to the Permanent Secretary: hence the first appellant.

proceedings in terms of s 38(b), (c) and (d) of the Constitution.2 (e)
an
association acting in the interest of its members.  Froneman J, in a judgment now
reported,3 granted them leave to proceed.4
3 []
The applicants decided to proceed with a class action under s
38(c), with the result that the order as to the other bases of standing is
not at issue before us.  The order has three essential features.  First, it
permitted the applicants, assisted by the Legal Resources Centre, to
litigate as representatives on behalf of anyone in the whole of the
Eastern Cape Province whose disability grants were between specified
dates cancelled or suspended by or on behalf of the Eastern Cape
government (“the class definition”).  Associated with this was an order
requiring the Eastern Cape government to provide the Legal Resources
Centre with the details of the members of the class kept on computer or
physical file in governmental records (“the disclosure order”).  The order
lastly required the applicants to disseminate through various print and
radio media in the Eastern Cape and (with the assistance of the
provincial government) by notices at pension pay points information
about the class action (“the publication order”).  The object of publication
was to give members of the class the opportunity if they wished to opt
out of the proceedings envisaged on their behalf.

2 Section 38 provides:
Enforcement of rights
Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill
of Rights has been infringed or threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach a court are —
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
3 Ngxuza and others v Permanent Secretary, Department of Welfare, Eastern Cape, and others 2001 (2) SA 609
(E)
4 The terms of the order, as amended on the return day, are reported at 2001 (2) SA 633-4.

5 []
In the appeal, brought with the leave of Froneman J (who ordered
in terms of rule 49(11) of the Uniform Rules of Court that the disclosure
and publication orders be implemented pending the appeal), the Eastern
Cape government attacked both the grant of leave to institute the class
action and the disclosure order.  The original grounds of attack were
expressed in far-ranging terms.  Senior counsel who appeared for the
province at the hearing of the appeal, who did not draw the written
argument, told us that he was not instructed to abandon all the original
grounds of attack, but he refrained from advancing submissions in
support of them.  Given the ill-considered nature of many of them, to
which I return later, this was a prudent approach.  What he relied on was
two contentions:  (i) that the order did not adequately define the class;
and (ii) that it wrongly and without jurisdictional warrant included in the
class residents of the Eastern Cape province outside the domain of the
Eastern Cape Division of the High Court.  Counsel rightly conceded that
the disclosure order — in effect a form of discovery adjunct to, and
necessary for, the applicants’ claim to relief — was an inevitable
concomitant of the class definition order.  The critical question before us
is therefore the terms of that order.
7 []
In the type of class action at issue in this case, one or more
claimants litigate against a defendant not only on their own behalf but on
behalf of all other similar claimants.5  The most important feature of the
class action is that other members of the class, although not formally
and individually joined, benefit from, and are bound by, the outcome of
the litigation unless they invoke prescribed procedures to opt out of it.

5 Defendants may also be sued as members of a class.

The class action was until 1994 unknown to our law,6 where the
individual litigant’s personal and direct interest in litigation defined the
boundaries of the court’s powers in it.  If a claimant wished to participate
in existing court proceedings, he or she had to become formally
associated with them by compliance with the formalities of joinder.7  The
difficulties the traditional approach to participation in legal process
creates are well described in an analysis that appeared after the class
action was nationally regularised in the United States through a federal
rule of court8 more than sixty years ago:
“The cardinal difficulty with joinder ... is that it presupposes the prospective plaintiffs’
advancing en masse on the courts.  In most situations such spontaneity cannot arise either
because the various parties who have the common interest are isolated, scattered and utter
strangers to each other.  Thus while the necessity for group action through joinder clearly
exists, the conditions for it do not.  It may not be enough for society simply to set up courts
and wait for litigants to bring their complaints — they may never come.
What is needed, then, is something over and above the possibility of joinder.  There must be
some affirmative technique for bringing everyone into the case and for making recovery
available to all.  It is not so much a matter of permitting joinder as of ensuring it.”9
1 []
The class action cuts through these complexities.  The issue
between the members of the class and the defendant is tried once.  The
judgment binds all, and the benefits of its ruling accrue to all.  The
procedure has particular utility where a large group of plaintiffs each has

6 South African Law Commission Report on the Recognition of Class Actions and Public Interest Actions in South
African Law (Project 88, August 1998) para 1.2; H Erasmus Superior Court Practice A2-4H;  G Budlender “The
Accessibility of Administrative Justice” 1994 Acta Juridica 128; E Hurter “The draft legislation concerning public
interest and class actions: the answer to all class ills?” (1997) XXX Cilsa 304.
7 LTC Harms Civil Procedure in the Supreme Court par C1
8 Rule 23 of the Federal Rules of Civil Procedure, “Class Actions”, introduced in 1938: see Sunderland, “The New
Federal Rules”, (1938) 45 West Virginia Law Quarterly 5.  Rule 23 (a), “Prerequisites to a Class Action”, provides
that one or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the
class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common
to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the
class, and (4) the representative parties will fairly and adequately protect the interests of the class.”  The
requirements of this rule are reflected and elaborated in many state rules, for instance New York State
Consolidated Laws — Civil Practice Law and Rules Article 9 “Class Actions”.
9 H Kalven, Jr and M Rosenfield “The Contemporary Function of Class Suit” (1941) University of Chicago Law
Review 684 at 687-8.  To similar effect is H Erasmus Superior Court Practice A2-4J: The traditional rules
governing joinder “are impractical where the number of applicants is large and/or all the potential applicants have
yet to be identified.”

a small claim that may be difficult or impossible to pursue individually.
The mechanism is employed not only in its country of origin, the United
States of America, where detailed rules governing its use have
developed,10 but in other countries as well.11  The reason the procedure
is invoked so frequently lies in the complexity of modern social
structures, and the attendant cost of legal proceedings:
“Modern society seems increasingly to expose men to such group injuries for which
individually they are in a poor position to seek legal redress, either because they do not know
enough or because such redress is disproportionately expensive.  If each is left to assert his
rights alone if and when he can, there will at best be a random and fragmentary enforcement,
if there is any at all.”12
1 []
It is precisely because so many in our country are in a “poor
position to seek legal redress”, and because the technicalities of legal
procedure, including joinder, may unduly complicate the attainment of
justice, that both the interim Constitution13 and the Constitution14 created
the express entitlement that “anyone” asserting a right in the Bill of
Rights could litigate “as a member of, or in the interest of, a group or
class of persons”.15
3 []
All this bears directly on the case before us.  The background is
set out in the judgment of Froneman J.16  It is not in issue before us and

10 See especially the decision of the United States Supreme Court in Phillips Petroleum Co v Shutts et al 472 US
797 (1985) (Rehnquist J).
11 India: S P Gupta v Union of India (1982) 2 SCR 365, AIR 1982 SC 149, J Cassels “Judicial Activism and Public
Interest Litigation in India: Attempting the Impossible” (1989) 37 American Journal of Comparative Law 495.  For
an overview of the European position regarding class actions, see P H Lindblom “Individual Litigation and Mass
Justice: A Swedish Perspective and Proposal on Group Actions in Civil Procedure” (1997) 45 American Journal
of Comparative Law 805.
12 H Kalven, Jr and M Rosenfield “The Contemporary Function of Class Suit” (1941) University of Chicago Law
Review 684 at 686.
13 Act 200 of 1993, section 7(4)(b)(iv).
14 Section 38(c).
15 H Erasmus Superior Court Practice, commentary on Constitution s 38, A2-4H—4L.
16 2001 (2) SA 609 (E) 615F-618D.

need not be repeated.  The main points are these.  The provincial
authorities in the Eastern Cape decided to revoke the welfare benefits of
various groups of persons receiving social assistance.  They did so
unilaterally and without notice to those concerned.  The applicants do
not contend that the authorities’ motives were bad.  It is notorious that
inaccurate claimant records — including large numbers of “ghost
pensioners” — cost the province tens of millions of rands every month.
The problem is a relic of the  fragmented governance in the Eastern
Cape Province that preceded the democratic transition in 1994, where
no fewer than six different administrations were responsible for social
grants.  But the method the authorities chose to deal with the situation
was extreme, and the consequences for large numbers of needy people
savage.  They failed to differentiate between the fraudulent and
undeserving and unentitled on the one hand, and on the other the truly
disabled.  These latter were manifestly not ghosts, and the mechanism
employed left them destitute.
5 []
All without distinction were required to re-apply for their existing
entitlements.  But the bureaucratic structures and personnel required to
expedite the process were lacking, and repeated promises by officials
and politicians to improve them failed to materialise.  While re-
applications clogged the existing structures, a moratorium was placed on
both new applications and on processing arrear payments to those
entitled to them.  The papers before us recount a pitiable saga of
correspondence, meetings, calls, appeals, entreaties, demands and
pleas by public interest organisations, advice offices, district surgeons,
public health and welfare organisations and branches of the African
National Congress itself, which is the governing party in the Eastern
Cape.  The Legal Resources Centre played a central part in coordinating

these entreaties and in the negotiations that resulted from them.  But
their efforts were unavailing.  The response of the provincial authorities
as reflected in the papers included unfulfilled undertakings, broken
promises, missed meetings, administrative buck-passing, manifest lack
of capacity and at times gross ineptitude.
7 []
That the method the province chose to verify and update its
pensioner records was not just undifferentiatingly harsh, but also
unlawful, was undisputed in these proceedings.  That much was
established by Bushula and others v Permanent Secretary, Department
of Welfare, Eastern Cape and another.17  In its answering affidavit in the
present matter the province says that it “took note” of the judgment “and
the valuable guidance it has given in respect of the suspension and/or
cancellation of disability grants”.  Its officials have, it says, “been
instructed to act accordingly”.
9 []
The affidavit says no more.  Its silence is expressive.    At best the
statement that officials have been “instructed” to act “in accordance with”
Bushula implies that the province will not in future unlawfully terminate
disability grantees’ benefits.  What it omits to say is more pertinent,
which is whether Bushula will in fact be implemented for grantees
already removed unprocedurally from the system.  Though counsel
assured us from the Bar that the province has reinstated and is paying
so far as possible the categories of claimants at issue in Bushula, the
province’s papers contain no undertaking that the destitute deserving will
be reinstated to their lawful entitlements.  Without such an undertaking
members of the class remain at risk.

17 2000 (2) SA 849 (E) (van Rensburg J).  To the same effect is Rangani v Superintendent-General, Department
of Health and Welfare, Northern Province 1999 (4) SA 385 (T) (Kirk-Cohen J).

11 []
It is against a background of such circumstances that the Legal
Resources Centre decided that its only recourse was to institute a class
action on behalf of the region’s wronged disability pensioners.  The
situation seemed pattern-made for class proceedings.  The class the
applicants represent is drawn from the very poorest within our society —
those in need of statutory social assistance.  They also have the least
chance of vindicating their rights through the legal process.  Their
individual claims are small:  the value of the social assistance they
receive — a few hundred rands every month — would secure them
hardly a single hour’s consultation at current rates with most urban
lawyers.  They are scattered throughout the Eastern Cape Province,
many of them in small towns and remote rural areas.  What they have in
common is that they are victims of official excess, bureaucratic
misdirection and unlawful administrative methods.
13 []
It is the needs of such persons, who are most lacking in protective
and assertive armour, that the Constitutional Court has repeatedly
emphasised must animate our understanding of the Constitution’s
provisions.18  And it is against the background of their constitutional
entitlements that we must interpret the class action provision in the Bill of
Rights.  Though expressly creating that action the Constitution does not
state how it is to be developed and implemented.  This it leaves to
courts, which s 39(2) enjoins to promote the spirit, purport and object of
the Bill of Rights when developing the common law, and upon which s
173 confers inherent power “to develop the common law, taking into

18Bernstein and others v Bester and others NNO 1996 (2) SA 751 (CC) par 149 (O’Regan J); Mohlomi v Minister
of Defence 1997 (1) SA 124 (CC) par 14 (Didcott J); Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1)
SA 765 (CC) par 8 (Chaskalson P); Government of the Republic of South Africa and others v Grootboom and
others 2001 (1) SA 46 par 25 (Yacoob J).

account the interests of justice.”
15 []
The Constitutional Court has not dealt with the class action
specifically.  But it has pronounced pertinently on the ambit to be
accorded all the standing provisions of the interim Constitution, which in
material respects are identical to those of the Constitution.19
(v) a person
acting in the public interest.”  In Ferreira v Levin NO and others20 the majority held
that these provisions must be interpreted generously and expansively,
consistently with the mandate given to the courts to uphold the
Constitution, thus ensuring that the rights in the Constitution enjoy the
full measure of protection to which they are entitled.21
17 []
The circumstances of this particular case — unlawful conduct by a
party against a disparate body of claimants lacking access to
individualised legal services, with small claims unsuitable for if not
incapable of enforcement in isolation — should have led to the
conclusion, in short  order, that the applicants’ assertion of authority to
institute class action proceedings was unassailable.  But assail their
claim the province did.  It did so by recourse to every stratagem and
device and obstruction, every legal argument and non-argument that it
thought lay to hand.  While offering no undertaking to implement

19 Section 7(4) of the interim Constitution, Act 200 of 1993, provided:
“(a) When an infringement of or threat to any right entrenched in this chapter is  alleged, any person
referred to in para (b) shall be entitled to apply to a competent court of law for appropriate relief, which
may include a declaration of rights.
(b) The relief referred to in para (a) may be sought by -
(i)  a person acting in his or her own interest;
(ii) an association acting in the interest of its members;

(iii) a person acting on behalf of another person who is not in a position to seek such relief in his or her
own name;
(iv) a person acting as a member of or in the interest of a group or class of persons; or
201996 (1) SA 984 (CC).
21 Ferreira v Levin NO and others 1996 (1) SA 984 (CC) par 165 (Chaskalson P); par 229 (O’Regan J).

Bushula in relation to the applicant class, it asserted that because of the
decision the relief sought was moot.  It then contended, contradictorily,
that the applicants’ claim was not yet ripe for adjudication.  It tendered
no evidence to refute the mass of indicia the applicants placed before
the Court that showed unlawful conduct against huge numbers of
disability pensioners, yet argued that the applicants’ evidence was
inadmissible hearsay.   It obstructed the applicant class’s entitlement to
be spared physical destitution, yet invoked their privacy rights in
contending that the disclosure order should not have been granted.  It
did not flinch even from deriding the first applicant, who adhered to the
founding papers with his thumb-print.  Its deponent thought fit to record
his doubt that Mr Ngxuza had read the media articles appended to the
papers (a claim the first applicant did not make), while the written
argument stated that it “boggles the mind” that “a man who never
attended school and is presently illiterate” is able to make “learned
submissions”.
19 []
All this speaks of a contempt for people and process that does not
befit an organ of government under our constitutional dispensation.  It is
not the function of the courts to criticise government’s decisions in the
area of social policy.  But when an organ of government invokes legal
processes to impede the rightful claims of its citizens, it not only defies
the Constitution, which commands all organs of state to be loyal to the
Constitution,22 and requires that public administration be conducted on
the basis that “people’s needs must be responded to”.23  It also misuses
the mechanisms of the law, which it is the responsibility of the courts to

22 Section 41(1)(d).
23 Section 195(1)(e).

safeguard.  The province’s approach to these proceedings was
contradictory, cynical, expedient and obstructionist.  It conducted the
case as though it was at war with its own citizens, the more shamefully
because those it was combatting were in terms of secular hierarchies
and affluence and power the least in its sphere.  We were told, in
extenuation, that unentitled claimants were costing the province R65
million per month.  That misses the point, which is the cost the
province’s remedy exacted in human suffering on those who were
entitled to benefits.  What is more, the extravagant cost of “ghost”
claimants would seem to justify the expense of imperative administrative
measures to remedy the problem by singling out the bogus — something
the province conspicuously failed to do.  It cannot warrant unlawful
action against the entitled.
21 []
It remains to deal with the two arguments in which counsel for the
province persisted.  Neither has substance and can be disposed of
briefly.  The complaint that the class was not adequately defined in the
order of the court below is difficult to appreciate.  There can be no
conceptual complaint about the clarity of the group’s definition.24  From
the point of view of practical definition, it is beyond dispute that (1) the
class is so numerous that joinder of all its members is impracticable;  (2)
there are questions of law and fact common to the class;  (3) the claims
of the applicants representing the class are typical of the claims of the
rest;  and (4) the applicants through their legal representatives, the Legal
Resources Centre, will fairly and adequately protect the interests of the
class.  The quintessential requisites for a class action are therefore
present.

24 The group as defined in the order constitutes what Honoré refers to as a “secondary group”: Tony Honoré
Making Laws Bind (1987), chapter 3 “What is a Group?” at pages 54-55.

23 []
That the applicants’ averments about the predicament of other
members of the class to some extent rest on hearsay evidence is
obvious.  Few class actions could be maintained without some element
of hearsay.  Indeed, if first-hand evidence could be obtained from all
those sought to be included, they could as readily be joined, and the
need for class proceedings would fall away.  Hearsay evidence in any
event varies in its import and quality.  That produced in this case — from
district surgeons, advice offices, civic and political organisations and
public authorities — left little doubt that the province’s methods were
causing widespread misery and injustice.25  Even assuming that the

25 A report written during the latter half of 1998 by the chairman of the municipal clinics in the town of Stutterheim,
Dr A P Cole,  attached to the founding papers, in not untypical:
“URGENT CASES WHO HAVE HAD DISABILITY GRANTS WITHDRAWN
The following are urgent cases which have been brought to my attention.  These individuals have like
many others in the Eastern Cape had their disability grants summarily stopped, and have been informed
that they are fit to work.
1.  MABUZA GWABILE: ID 4512315295
Diagnosis:  Ankylosing Spondylitis.  This 53 year old man has been attending this surgery with his spinal
problem for the 15 years that I have been here.  He is a regular attender, and has remained on his anti-
inflammatories which he requires daily for his pain.
On examination he is clinically severely disabled with his spine in fixed lumbar flexion on 90 degrees.
He is, in other words unable to walk in an erect position.  This is an incurable and permanent disability.
This man requires a walking aid at all times.
2. LINDIWE NAKI. ID 5103050327086
Diagnosis: Kyphoscoliosis – Old Tuberculosis of the spine.  This 48 year old woman has been severely
disabled for 30 years with a marked orthopaedic deformity of the spine.  She has constant pain in her
thoracic spine, which radiologically shows collapse of dorsal vertebrae 6,7 and 8.
Her spinal deformity has led to considerable respiratory compromise and consequent right sided heart
failure.  This a  permanent disability, and this patient is severely compromised.
3.  MABOYI BLANTI. ID 4608305389088
Diagnosis: Kyphoscoliosis – Old tuberculosis of the spine.  This gentleman is 51 years old, has not been
able to work for his entire adult life, and now finds himself, with a severely deformed spine, and a letter
declaring him fit for employment.  He, too, has significant cardiovascular restriction as a result of his
compromised chest cavity and has a very limited effort tolerance.
This is a permanent disability.
4.  ANGELA WRIGHT.  ID 5908130235087
Diagnosis: High thoracic spinal cord injury, with permanent paralysis of the trunk.  Involved in a motor
vehicle accident 4 years ago, this woman has a T6/T7 permanent injury to her spinaI cord. She is
paraplegic and confined to a wheelchair.  She is totally incontinent and must catheterize herself as well
as administer enemas and laxatives twice weekly.  She is, without doubt, totally and permanently
disabled.
5. JOHNSON MAMBUKWE. ID 4210015431084.
Diagnosis:  Severe emphysema and chronic bronchitis.  This 55 year old man is 1,80m tall and weighs
41 kg.  He is, therefore, emaciated and weak, with clubbing of his fingernails.  He is a severe respiratory
cripple with very limited effort tolerance.

hearsay evidence was inadmissible, sufficient admissible evidence to
define the class was tendered.
1 []
It is in any event clear from the judgment of Froneman J that the
class definition encompasses only those whose social benefits have
been unlawfully discontinued in the same manner as those of the
applicants.26 It is equally clear that temporary grantees, whose
entitlements have lapsed with time, are not included.  Counsel for the
province, as a last resort, suggested an amendment to the order granted
to make clear that temporary grantees whose entitlements have expired
and those whose grants were cancelled without procedural impropriety

He is permanently disabled, yet has been declared fit to work.
6. MONDE ADONISI.  ID 6808165561085.
Diagnosis:  Rheumatoid Arthritis.  This 39 year old gentleman is a proven case of rheumatoid arthritis,
with advanced and very active disease.  He is only able to walk with extreme difficulty, and, despite anti-
inflammatories, shows marked deterioration over the past two years.  He has now been told that he is fit
for work.  This young man is severely and irreversibly disabled.  He will never walk properly again.
7. LUMKILE DOFI.  ID 4107075427087.
Diagnosis:  Severe emphysema and chronic bronchitis.  This 56 year old gentleman suffers for
extremely poor respiratory reserve and permanent lung damage.  He is thin and weak and requires
constant medication, including cortisone, despite which he frequently visits our hospital.  He has very
limited respiratory Reserve and his long-term prognosis is very poor.  This is a permanent disability.
The above seven cases are a few examples of the many tragic cases who consult me at my rooms.
Some of them have been seeing me for 15 years now, and if anyone is in a position to express an
opinion on their fitness for employment, it must surely be me.
I am aware that many people have received grants  for no reason at all, but that is an entirely different
matter.  The point I am trying to get across is that the carte blanche cancellation of virtually all disability
grants in this community is heavy-handed and heartless, to say the least.  None of the abovementioned
are in a position to fend for themselves, and they are, without doubt, the responsibility of the East Cape
Government.
The distinct impression one gets is that pensions were stopped, not because the recipients were
receiving the grants for the wrong reason, but because already budgeted funds have been
misappropriated.
News reaches us daily of fraud, and “ghost employees”, and yet the people continue to suffer.  The
District Manager for this District, Mrs Ximiya, told us, at a meeting of the Stutterheim Co-ordinating
Committee of Health recently, that the cutting of disability grants was a fact of life which we have to face,
and that it was up to individual communities to provide suitable employment for these people.
It is well-publicised fact that Stutterheim is regarded as a shining example of how a community can help
itself.  I can assure you that we are nowhere near providing work for the thousands of able-bodied
unemployed, let alone the disabled.
Conclusion:  This letter is a frantic attempt to alert anyone and everyone of the plight of so many citizens
of our country, who sit helplessly in vain hope that the system on which they have pinned their hopes
will deliver the promised assistance.  No matter what one’s political allegiance, I think we all hoped that
new South Africa would bring prosperity to those who truly deserve it.  It seems that the prosperity is
reserved for an exclusive club to which entry is limited.  How ironic that the system which was swept
aside, was so very similar.”
26 See the report at 2001 (2) 624G.

are excluded.  But the Eastern Cape government retains against all
members of the class any defences it might have to their claims.  The
court below did not purport to pronounce upon those.  There can in my
view therefore be no complaint about the manner in which the order
defines the class.
3 []
In so far as the judgments in Lifestyle Amusement Centre (Pty)
Ltd and others v The Minister of Justice and others27 and Maluleke v
MEC, Health and Welfare, Northern Province28 may question the
availability of the class action in our law, or suggest different criteria for
constituting and defining a class for the purposes of a class action, I am
unable to agree with them, and to the extent that they are inconsistent
with this judgment they must be regarded as over-ruled.
5 []
The complaint about extra-jurisdictional applicants has more
superficial warrant.  The original applicants were entitled to sue the
province in the Eastern Cape Division, which has its seat at
Grahamstown, since they received their disability pensions within the
domain of that court.  Such intra-jurisdictional receipt of a pension
created a similar jurisdictional tie (ratio jurisdictionis) between a
significant portion of the envisaged class and the provincial government.
However, non-residents of the Eastern Cape Division’s jurisdictional
area could not ordinarily have sued the provincial government in that
Division, since the seat of government is at Bisho, within the jurisdiction
of the Ciskei High Court.  Between such non-residents and the Eastern
Cape Division there would be no jurisdictional tie.

27 1995 (1) BCLR 104 (C).
28 1999 (4) SA 367 (T), criticised by C Plasket “Standing, Welfare Rights and Administrative Justice: Maluleke v
MEC, Health and Welfare, Northern Province” (2000) 117 SALJ 647.

7 []
There are two reasons, however, why the provincial government’s
complaint about jurisdiction is unpersuasive.  Before referring to them, it
is necessary to observe that the objection to which the province has
taken recourse is itself a relic of the pre-transitional  past, in which High
Courts situated at Grahamstown, Bisho and Umtata still have jurisdiction
over fragmented portions of the Eastern Cape Province.  Though the
Constitution empowered all courts to continue to function with their
existing jurisdiction,29 that was subject to amendment or repeal of the
relevant legislation, and to the requirement of consistency with the
Constitution, which specifies that “as soon as practical” all courts,
including their jurisdiction, should be rationalised “with a view to
establishing a judicial system suited to the requirements of the new
Constitution”.30   The situation the province invokes is precisely the sort
of anomaly that these provisions required to be eliminated.  That the
necessary rationalisation has not yet occurred within the Eastern Cape
Province can hardly be laid at the door of the applicants or the class they
seek to represent.  That the province should seek to exploit the situation
is a further miserable reflection on the way it has conducted itself in this
litigation.
9 []
The objection in any event has no substance.  First, this is no
ordinary litigation.  It is a class action.  It is an innovation expressly
mandated by the Constitution.  We are enjoined by the Constitution to
interpret the Bill of Rights, including its standing provisions, so as to
“promote the values that underlie an open and democratic society based

29 Schedule 6, “Transitional Arrangements”, Item 16(1).
30 Item 16(6)(a).

on human dignity, equality and freedom”.31  As pointed out earlier we are
also enjoined to develop the common law — which includes the common
law of jurisdiction — so as to “promote the spirit, purport and objects of
the Bill of Rights”.32   This Court has in the past not been averse to
developing the doctrines and principles of jurisdiction so as to ensure
rational and equitable rules.  In Roberts Construction Co Ltd v Willcox
Bros
(Pty)
Ltd33

31 Section 39(1)(a).
32 Section 39(2).
33 1962 (4) SA 326 (A).

10 this Court held, applying the common law doctrine of cohesion of a
cause of action (continentia causae), that where one court has
jurisdiction over a part of a cause, considerations of convenience, justice
and good sense justify its exercising jurisdiction over the whole cause.
The partial location of the object of a contractual performance (a bridge
between two provinces) within the jurisdiction of one court therefore
gave that court jurisdiction over the whole cause of action.  The Court
expressly left open the further development and application of the
doctrine of cohesion of causes.1 The present seems to me a matter
amply justifying its further evolution.  The Eastern Cape Division has
jurisdiction over the original applicants, and over members of the class
entitled to payment of their pensions within its domain.  That in my view
is sufficient to give it jurisdiction over the whole class, who subject to
satisfactory “opt-out” procedures will accordingly be bound by its
judgment.
12 []
In any event, even if a strict approach would weigh against
permitting inclusion of extra-jurisdictional applicants in a plaintiff class, it
is plain that the Constitution requires adjustment of the relevant rules,
along sensible and practical lines, to ensure the efficacy of the class
action mechanism.  As O’Regan J pointed out in Ferreira v Levin NO,
the constitutional provisions on standing are a recognition of the
particular responsibility the courts carry in a constitutional democracy to
ensure that constitutional rights are honoured:
“This role requires that access to the courts in constitutional matters should not be precluded
by rules of standing developed in a different constitutional environment in which a different
model of adjudication predominated.  In particular, it is important that it is not only those with
vested interests who should be afforded standing in constitutional challenges, where
remedies may have a wide impact.”2

1 1962 (4) SA at 336D-E.
2 1996 (1) SA 984 (CC) par 230.

1 []
There can in my view be no doubt that the Constitution requires
that, once an applicant has established a jurisdictional basis for his or
her own suit, the fact that extra-jurisdictional applicants are sought to be
included in the class cannot impede the progress of the action.  This is
the position also in the United States of America, to the laws of which,
together with other foreign countries, the Constitution permits us to look
when interpreting the Bill of Rights.3  There in a plaintiff class action
(which is in this sense materially different from a defendant class action)
the presence of a large preponderance of out-of-state plaintiffs does not
impede the proceedings once the original litigants have established
jurisdiction in the forum court.4
3 []
There is no suggestion that the applicants were engaged in
impermissible forum-shopping.  It is therefore unnecessary to consider
what effect on jurisdiction in a class action, if any, tactical location of a
suit by a litigant could have.  It is manifest that a significant proportion of
the class envisaged in fact resides and receives pension payments
within the domain of the Eastern Cape Division.  In relation to them, the
Eastern Cape Division has undoubted jurisdiction.  This is in my view
sufficient warrant, from both a common law and constitutional point of
view, to confer on that Division jurisdiction in respect of the remaining
members of the class.5

3 Section 39(1)(c).
4 See the rules devised and explained in Phillips Petroleum Co v Shutts et al 472 US 797 (1985).
5 Compare section 19(1)(b) of the Supreme Court Act, 59 of 1959, which provides that —
“A provincial or local division shall also have jurisdiction over any person residing or being outside its
area of jurisdiction who is joined as a party to any cause in relation to which such provincial or local
division has jurisdiction or who in terms of a third party notice becomes a party to such a cause, if the
said person resides or is within the area of jurisdiction of any other provincial or local division.”

5 []
A further reason why the jurisdictional complaint is devoid of merit
is its utter lack of practical import.  Counsel for the province observed,
correctly, that the applicants were free to initiate the proceedings in the
Ciskei High Court.  That undoubtedly would have tied the entire class to
the forum court through the location or residence (situs) of the party
against whom they were invoking legal process.  But when pressed in
argument to explain why being sued in Bisho rather than Grahamstown
(where the Legal Resources Centre is located) would have made any
difference to the legitimate interests and convenience of the provincial
government, counsel was unable to give an answer.
7 []
As was pointed out during argument, the Supreme Court Act6
provides for a matter to be relocated from one division to another if it
“may be more conveniently or more fitly heard” in that division.  Any
complaint of convenience or fitness on the part of the province will
properly be accommodated under that provision.  The dismal truth is that
the province’s objection was of a piece with the rest of its filibustering
approach to the litigation as a whole, and as devoid of substance.

6  Section 9(1), entitled “Removal of proceedings from one division to another”, provides:
“If any civil cause, proceeding or matter has been instituted in any provincial or local division, and it is
made to appear to the court concerned that the same may be more conveniently or more fitly heard or
determined in another division, that court may, upon application by any party thereto and after hearing
all other parties thereto, order such cause, proceeding or matter to be removed to that other division.”
1 []
There remains a question the Court raised during the hearing of
the appeal, namely the extensive nineteen-volume record placed before

us.  This voluminous assemblage was unnecessary to the determination
of the appeal and in ordinary circumstances I would have been inclined
to make the party responsible for its inclusion pay the costs relating to it.
But Mr van der Riet, who appeared in this Court and the court below on
behalf of the applicants, took personal responsibility for the length of the
record, pointing to the tenor and ambit of the province’s objection to the
class action, which included the contention that the class had not been
sufficiently proved.  This answer was not strictly adequate, but the
province in the court below undertook should it succeed in the appeal
that it would not seek costs against the applicants.  In view of this
undertaking, and all the other circumstances, I am disinclined to punish
the applicants’ legal advisors for erroneously burdening the Court (and
the taxpayer, who will eventually be encumbered with the costs) in this
manner.  It would however be appropriate to deprive the applicants’
attorneys of their perusal fee in respect of three-quarters of the record.
3 []
The class action order is interlocutory, and counsel informed us
that since the judgment in the court below further interlocutory hearings
have been held.  There is therefore no need for this Court to amend the
dates specified in the original order.  As indicated earlier, it requires no
further consequential amendment.
5 []
The appeal is dismissed with costs, including the costs of two
counsel, but excluding the attorneys’ perusal fee in respect of three-
quarters of the record.
`
E CAMERON
JUDGE OF APPEAL
HEFER ACJ
)

HARMS JA
)
STREICHER JA )
CONCUR
MPATI JA
)