On 22 September the Imbumba Association for the Aged (“Imbumba”) will apply to the High Court, Eastern Cape Division at Grahamstown, for an urgent interdict. This seeks to compel the Eastern Cape Department of Social Development to pay their member organisations the subsidies owed them in terms of the Service Level Agreements SLA) concluded with the department. These funds, which are intended to support a range of community-based services to older persons, have not been paid since 1 April 2020, according to a statement from Imbumba.
The case centres on the following, according to Imbumba:
“In mid-May the department entered into valid and binding SLAs with Imbumba’s 25 member organisations. These were backdated to 1 April, the start of the new financial year.
“Just weeks later, in a circular dated 5 June, the department unilaterally and without consultation changed the SLAs, purportedly to reflect the lockdown’s regulations. The department reasoned that because the lockdown regulations restricted the movement of older persons and prevented their attendance in person at the Service Care Centres operated by Imbumba’s members, the department no longer had an obligation to pay the members under the SLAs. The only service the department was now willing to pay for was the caregivers’ stipend.”
Imbumba said, however, that in accordance with both their moral and contractual duties, its members had been rendering a wider range of services to their beneficiaries.
“Approximately three-quarters of Imbumba’s beneficiaries are older women caring for their grandchildren,” the Association said. “They are not wealthy: their households survive on the old age and child support grants, as well as remittances from family members who have migrated in search of work.
“Some of these additional incomes were lost in the massive wave of job losses recorded at the start of the lockdown. And yet no food parcels were provided to these precarious households by the department during this time of great need.”
A number of Imbumba’s beneficiaries were also frail, the Association said. “Their grandchildren cannot reasonably be expected to nurse and otherwise care for them. Imbumba’s members thus took their services to their beneficiaries: bringing them meals; fetching medication from the clinic and providing groceries, adult nappies and linen; assisting their beneficiaries to bath and wash; cleaning their beneficiaries’ homes and doing their laundry; helping them exercise; and, where their beneficiaries live alone, ensuring they did not become isolated and lonely.
“The department refuses to recognise the humanitarian outreach work of Imbumba’s members under the extraordinary conditions imposed during the lockdown. The department’s position is that the decision by Imbumba members to render home-based care was implemented without consulting them, is unlawful and wasteful expenditure of public funds and a breach of the terms of their SLAs,” the Association said.
The department had said it would be contravening the Public Finance Management Act if it funded home-based care services different from the community care services model it has budgeted for.
Imbumba would argue that their services qualified as “essential services” in terms of the lockdown regulations and that it was legally permissible to make their services available.
“Significantly, the department issued SLAs for signature in mid-May, some six weeks into the lockdown, yet failed to provide any guidance to the care centres on how to manage the needs of vulnerable older persons,” the Association said. “The department also claims it distributed food parcels to this group of older persons, but this is strongly denied by Imbumba.”
The decision in the circular of 5 June constituted a change in policy by the Executive and failed to give effect to the constitutional right to social assistance – which rights are explicitly protected in the lockdown Regulations, the Association said.
“The legality of such an Executive decision now falls to be tested in the High Court – policy decisions cannot be adjudicated in an arbitration tribunal as the department argues.”
Imbumba would ask the court to enforce their SLAs as a matter of urgency and, in accordance with the national Department of Social Development’s Sector Financing Policy, to have interest paid on the money owed to them.
“This is a matter of significant public interest. By early July the Eastern Cape Department of Social Development had not paid a single subsidy to any NGO in the province providing social care services,” Imbumba said.
This had been reported by various media outlets, as well as a document detailing the effect of the lockdown on NGOs.
“While some payments were made by the end of July, the MEC for Social Development was still explaining away unpaid subsidies to the provincial legislature on 13 September.”
Imbumba said the department’s failure to honour their legal obligations caused hardship and suffering not only to NGO staff, but the beneficiaries of NGO services whose rights were being disregarded.
“The Imbumba matter has the potential to bring this to an end. Its decision also has implications for subsidy cuts effected by other provincial departments of social development,” the Association said.
The Imbumba Association is represented on a pro bono basis by Webber Wentzel.