The Gauteng Care Crisis Committee (GCCC) has scored a victory in its legal battle against the provincial department of social development over the crisis caused by funding delays.
The committee, which represents 62 social care nonprofit organisations (NPOs), turned to the Johannesburg high court on Wednesday to seek an order compelling the department to “conclude the adjudication of applications submitted” by the NPOs and inform the successful ones of its decision no later than seven days after the order.
The committee also sought an order compelling the department to finalise the service level agreements (SLAs) with them by no later than May 31.
They also wanted the department to “be ordered to compile and furnish a report to the applicant setting out which [NPOs] were granted funding and the value of the funding thereof, and in the instances of NPOs refused funding, the reasons for such refusal”.
Judge Ingrid Opperman ruled in favour of the GCCC, giving the department until Friday to conclude the adjudication of applications.
“Subsequent to the conclusion of the adjudication of applications referred to above, the department is required to issue draft service level agreements to the successful [social work organisations] SWOs by May 30 2024 and seek to finalise the conclusion of the [SLAs] as soon as reasonably possible,” Opperman said in her order.
The department was also given seven days within the finalisation of these SLAs to pay out the necessary funding.
Opperman also gave the department a deadline of June 7 to send a report to the GCCC providing a list of all the organisations approved for funding in the 2024/25 financial year, reasons for those who have been declined funding, the amount allocated to approved NPOs as well as a list of those organisations who have finalised their SLAs and the date on which payment was or will be made.
The committee's chairperson, Lisa Vetten, said on the first part of the order: “It's very important to get decisions for this group because when the (Gauteng) premier (Panyaza Lesufi) spoke last week, he was talking about funding only to organisations who've already been approved and have already signed SLAs.”
On the order to report to the GCCC, Vetten said this portion was focused on bringing “transparency and accountability” in the entire funding process.
Vetten said the court decision was a “victory for transparency and accountability”.
“It really just makes it clear to everybody as to how public money [is to] be spent on vulnerable populations in Gauteng and people can also judge for themselves if it is being well spent. So it really is a good way of holding the department to account,” she said.
Vetten, in the GCCC founding affidavit filed a day before the court hearing, detailed the history of the NPOs' relationship with the department and the funding model that existed before 2023.
“Before 2023, NPOs submitted business plans for different social care service programmes to the department for approval on an annual basis. In 2018, the department invited many SWOs to submit business plans on a three-year basis.
“Typically, officials in the department's regional offices would contact NPOs and remind them of the closing date for submitting business plans. This reflects the department's understanding that they were in partnership with the NPOs to provide services to vulnerable people within the province.”
This changed in October 2023 when NPOs were told, among other things, that their three-year agreements would be terminated and that they should start “compiling their proposed business plans, as strict compliance is required because the application proceedings would now be akin to tender applications”.
This also affected NPOs which had already signed the existing SLAs. The call to submit proposals opened on November 1 2023 until the 20th of the same month, according to Vetten.
The department’s neglect to finalise the adjudication of applications in a timely manner has already had devastating consequences on SWOs and beneficiaries. To the date of this affidavit's deposition, SWOs have continued operations without funding from the department for two months.
“What ensued thereafter was a set of events that caused confusion and uncertainty among SWOs as the department made various decisions that impacted the application procedure.”
This included changes to the template used to submit their business plans as well in the address for the submission of applications.
According to the GCCC, the process was meant to be concluded in February, to allow organisations to receive their funding for 2024/25 in time, but it has yet to be concluded as “to the best of my knowledge, only a limited number of SWOs have been informed that their funding applications have been successful”.
“The department’s neglect to finalise the adjudication of applications in a timely manner has already had devastating consequences on SWOs and beneficiaries. To the date of this affidavit's deposition, SWOs have continued operations without funding from the department for two months.
“The department's failure to finalise the adjudication by March 2024 is grossly prejudicial to NPOs and may cause certain NPOs to terminate their operations.”
Vettel said the present circumstances had caused extreme uncertainty among NPOs, making necessary financial planning difficult, if not impossible.
“Several NPOs are on the verge of terminating the services they render permanently, while some are considering retrenching their staff. It is not possible for them to provide social care services without funding.”
The department, in its reply opposing the application, denied allegations that there had been unreasonable delays in processing applications and in making the payments to approved NPOs.
Acting head of department (HOD) Bongani Ngomane said the process had been hampered by the “administrative challenges” within the department, which also include the recent departure of its former HOD.
“That said, the processing of applications for funding is being undertaken urgently, and the department anticipates having completed it on or before May 24, and to have informed all applicants of the outcome of their applications by that date.”
Ngomane also said the process of paying approved NPOs relied on the existence of an SLA between that organisation and the department, but these had been difficult to conclude as some organisations had instructed their attorneys to “scrutinise these agreements and raise all sorts of, often, meritless objections to the SLAs”.
The department also provided background on the lead up to the current crisis, saying it was sparked by findings of maladministration in the funding process by various regulatory bodies, including the auditor-general (AG), and which required rectification by the department.
He also said the funding process had historically lacked internal controls, creating a “fertile environment for maladministration and fraud”.
“The adjudication panel consisting predominantly of social workers, not only adjudicated and evaluated the proposals submitted by NPOs, but also signed off on legally binding documentation such as SLAs with the NPOs to the exclusion of the department's legal unit.
“The findings of the AG concluded that some of the SLAs concluded contained the approval of large payments, in excess of R1m, by officials not authorised to sign off such large amounts and that those approvals were in contravention of the National Treasury's regulations.”
Ngomane confirmed that the adjudication used to take place at a regional and provincial level but was centralised after a decision by the department.
The department said it had made significant progress in finalising the SLAs, saying that 1,311 agreements had been created out of 1,723 applications received. Additionally, payments had commenced on May 13 and support had been requested from the provincial treasury to expedite this, according to the department.
Ngomane, in his submission, said the application was not urgent as it did not meet the requirements for urgency.
The department asked that the application be struck off the roll “for lack of urgency” or be dismissed with no order when it comes to costs.
