Johannesburg — EASTERN Cape social development MEC Sam Kwelita does not believe that his conduct, or that of officials in his department, can be described as frivolous and vexatious.

Kwelita was responding to directions from Chief Justice Pius Langa, who asked him to show cause why, irrespective of the outcome of the application by a woman whose grant was terminated without notice, he should not be ordered to pay the woman's legal costs out of his own pocket.

The Constitutional Court, during the hearing of the case of Deliwe Njongi, questioned the Eastern Cape government's spending of millions in taxpayers' money to oppose a R5000 claim. Njongi's disability grant payments were stopped in November 1997 and reinstated in July 2000 after she was told to reapply.

Njongi instituted proceedings in the Port Elizabeth High Court in 2005 and the court ordered that the department reinstate her social grant during the period November 1997 to July 2000. However, the full bench in the Grahamstown High Court upheld an appeal by the department and said Njongi should have issued a summons for the payment of the monies due .

Kwelita said he was advised that a court would consider granting a punitive costs order against a litigant on an attorney and client scale, in circumstances where the defence of the application was frivolous and vexatious. He said a court would x consider granting an order that a litigant acting in a fiduciary capacity like himself, pay the costs of the proceedings de bonis propriis (out of his own goods or pocket) as a mark of the court's disapproval only in circumstances where the person suing or being sued had acted in bad faith, unreasonably or recklessly.

"I respectfully submit... neither my conduct, nor the conduct in my department, can be categorised as falling within the type of the conduct described," Kwelita said in an affidavit filed with the court.

Kwelita said the upholding of the department's appeal by the full bench of the high court and the dismissal of Njongi's application for leave to appeal to the Supreme Court of Appeal had fortified him that Njongi's application was ill-conceived.

"I submit that... where five judges concluded that (Njongi's) application was bad, it cannot be said that either my officials in my department, I or my predecessors had acted frivolously, vexatiously, mala fide, unreasonably or recklessly," Kwelita said.