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[2010] ZAWCHC 172
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Ngomana v CEO, South African Social Security Agency (23036/09) [2010] ZAWCHC 172 (13 September 2010)
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
In the matter between:
1. NOKUZOLA NGOMANA CASE NO:
23036/09
2. ZOLANI VIVIAN MAJALAMBA CASE
NO: 23037/09
3. NONTOMBISE NTSHOLO CASE NO:
23039/09
4. NOKUZOLA SYLVIA MBALI CASE NO:
23040/09
5. FRANCIS TSALISWA MAMKELI CASE
NO: 23045/09
6. KUTALA MTHAMBEKA CASE NO:
23048/09
7. XOLISWA ZENANI CASE NO:
24310/09
8. VELEKA ZWENANI CASE NO:
24336/09
9. MONICA NTOMBENTSHA
BENTELE CASE NO: 24337/09
10. LUBABALO CHINTSO CASE NO:
24338/09
11. NOZIPHO REGINA PAMLA CASE NO:
24339/09
12. NOMSEBENZI ELINA TENJWAYO CASE
NO: 24340/09
13. ZAMA PLAATYI CASE NO:
23041/09
14. TEBELLO RICHARD SIDLAYIYA CASE
NO: 24342/09
15. NXOLO ALICE SABANE CASE NO:
24343/09
16. NOMANEJI MTHINE CASE NO:
24344/09
17. NTOMBOXOLO NAKE CASE NO:
24345/09
18. BULELANI SAMSON NTYAMBA CASE
NO: 24351/09
19. BULELWA MATISO CASE NO:
24352/09
20. PATRIC THOBANI GWILI CASE NO:
24403/09
21. NOLWAZI MAVIS TYO CASE NO:
24404/09
Applicants
and
THE CHIEF EXECUTIVE OFFICER OF THE
SOUTH AFRICAN SOCIAL SECURITY
AGENCY Respondent
JUDGMENT DELIVERED: 13 SEPTEMBER
2010
_____________________________________________________________________
BINNS-WARD J:
Introduction
Twenty one applications
involving relief sought against the Chief Executive Officer of the
South African Security Agency (‘the
Agency’) were
allocated for hearing together before me. The applicants were all
represented by a single firm of attorneys.
In all but two of the
applications the relief sought is an order directing that the
respondent consider and determine the applicant’s
application
for social assistance and advise the applicant’s attorney in
writing of such determination within 15 days.
In the other two
applications, the relief sought is for an order compelling the
respondent to furnish full written reasons for
the refusal of those
applicants’ applications for social assistance. In some of
the cases constitutional damages are claimed
on the basis recognised
in
MEC, Department of Welfare, Eastern Cape v Kate
[2006] ZASCA 49
;
2006 (4)
SA 478
(SCA) ([2006]
2 All SA 455).
The applications were
heard together because they are believed to be the first of this
nature brought before this court. Fifteen
of them had first come
before me on a single day during the last week of the
December-January court recess and the other six
had been set down
for hearing on a single day during the following week. It is
evident from the experience in certain of the
High Courts elsewhere
in the country that inefficiencies in the administration of social
assistance have the potential to give
rise to what Wallis J, in
analogous circumstances, described as ‘a cottage industry’
for agents and attorneys.
1
The resultant litigation clogs the court rolls and leads to very
substantial costs being incurred (unnecessarily, more often
than
not) by the Agency; no doubt to the detriment of the State’s
ability to better fulfil its relevant obligations in
terms of s 27
of the Constitution to provide access to social security.
The volume of social
assistance application related cases in the KwaZulu-Natal and
Eastern Cape High Courts has resulted in the
institution in both
those jurisdictions of a special practice regime directed at
facilitating the resolution, without resort
to litigation, of the
issues that typically give rise to applications like those now
before this court.
2
The extent of the problem and its peculiar characteristics are
discussed at length and with helpful insight in
Cele
v
South
African Social Security Agency and 22 Related Cases
2009 (5) SA 105
(KZP);
2008 (7) BCLR 734.
3
It would be a supererogation to rehearse them. Suffice it to say
that as a result of our consideration of that judgment it
was
directed by the Acting Judge President that the current matters
should be argued together with a view to providing the court
with a
basis to seek to avert at the outset the occurrence in this
jurisdiction of the problems that have beset the courts elsewhere
in
the country in like cases. It is appropriate to draw on the
experience of those courts in devising appropriate remedial
measures.
4
A consideration of these made it apparent that the assistance of
the State Attorney’s office would need to be invoked.
The
applications were therefore postponed for hearing on appropriate
directions. I express my gratitude for the constructive
approach by
counsel in response to these directions; and in particular to the
State Attorney’s office in Cape Town, which
agreed to
undertake a fundamentally important role in terms of the draft
practice note that the respondent’s counsel put
in for
consideration by the Judge President and other judges of this Court.
In the course of such
consideration, because of concerns by the judges of this court as to
whether it lies within the power of
the court to lay down, or
regulate pre-litigation procedures, it has been decided not to
publish a practice note as initially
contemplated. It is, however,
accepted that it would be beneficial for all concerned, including
the court, if the Department,
the Agency and the State Attorney were
nevertheless to proceed voluntarily with the implementation of the
scheme proposed in
the draft practice note, as they obviously may.
The aforementioned organs of state are therefore requested to
proceed forthwith,
in accordance with their indicated intention at
the hearing, with the institution in the Western Cape of a system
based broadly
on the KZN High Court practice note. A consideration
of the current matters and of historical experience in other High
Court
jurisdictions suggests that the institution of such a scheme
would largely eliminate the need for litigation in cases such as
this. To assist in that object I shall set out below, for
information, the basis upon which such scheme is intended to
operate.
The content is drawn from the draft practice note put in
by the respondent’s counsel, but with some changes to the
suggested
timelines to meet certain of the concerns expressed by the
applicants’ counsel.
The scheme will operate
as follows:
(a) Before the
institution of any proceedings against the Minister of Social
Development and/or the South African Social Security
Agency in which
orders are sought for the consideration and determination by the
Minister and/or the Agency of any appeal, or any
application for a
social assistance grant under the Social Assistance Act, or for the
furnishing of reasons for any determination
of any such appeal or
application, or in any matter arising from the withdrawal or
discontinuance of a social grant, the legal
representative of the
claimant is advised to address a letter of demand complying with the
requirements set out in paragraph (b),
below, by registered post:
in matters in which
the Minister would be cited as the respondent, to-
The Minister of Social
Development
Private Bag X9001
Pretoria
0001
Attention: The
Independent Tribunal
in matters in which
the Agency, or any of its executive officers would be cited as the
respondent, to-
The Regional Executive
Manager
South African Social
Security Agency
Private Bag X9189
Cape Town
8000
Attention: Ms S. Lioma
or by receipted hand
delivery to -
The Regional Executive
Manager
South African Social
Security Agency
20
th
Floor
Golden Acre Building
Adderley Street
Cape Town
Attention: Ms S. Lioma
The letter of demand
should provide the following information:
the full names and
identity number of the applicant, and in matters in which the
social grant in issue is in respect of a person
other than the
applicant (for example, in the case of a child support grant) also
the name and identity number (if applicable)
of such other person
together with a succinct description of the basis upon which the
applicant is acting on behalf of such
other person.
The type of social
grant that had been applied for, or is in issue.
A succinct statement of
the nature of the complaint giving rise to the letter of demand and
the relief that is sought.
Particulars of the
administrative centre where the application for the social grant
was lodged and of the date upon which the
application was lodged,
supported, if possible, by a copy of the receipt issued by the
Agency in respect of the lodgement of
the application
issued
to the applicant in terms of
Regulation
8(3)(b)
of
the Regulations in GN R418, or, failing that, supported by
such other information as will enable the State Attorney
to
identify the application in the records of the Agency;
alternatively
,
in matters in which the complaint pertains to an appeal that has
been lodged in terms of the Social Assistance Act, a copy
of the
notice of appeal should be enclosed and full particulars furnished
as to how, when and where the appeal was lodged.
Full particulars of the
name, postal address, telefax number, telephone number and email
address of the attorney representing
the applicant.
The aforementioned
letter of demand should be accompanied by a written authority by the
applicant confirming that information
concerning the applicant or
the application for a social grant or appeal, as the case might be,
may be released to the attorney
concerned.
The Minister, or the
Agency, as the case might be, will endeavour to furnish a reasoned
response to the letter of demand within
20 working days of the
postage of the aforementioned letter of demand, or, if it that is
not possible, furnish a response stating
its requirement for further
time (not exceeding 10 working days beyond the expiry of the
aforementioned period of 20 days) within
which to furnish a reasoned
reply to the letter of demand.
In the event of there
being no response, alternatively a response considered by the
applicant to be so unsatisfactory as to give
rise to a need for
litigation, one month’s written notice of the intention to
litigate should be given by registered post,
or by hand delivery to
the office of the State Attorney, Cape Town, before process
commencing proceedings is submitted by or
on behalf of the applicant
to the Registrar of the High Court to be issued. The notice of
intention to litigate should set forth
the nature of the relief to
be sought in the intended litigation and should be accompanied by a
copy of the letter of demand
referred to in paragraph (a), above.
In the event that the Minister, or the Agency has responded to the
letter of demand, a
copy of such response should also be attached to
the notice of intention to litigate given to the State Attorney.
On receipt of a notice
of intention to litigate as provided in paragraph (d), the State
Attorney will record the particulars thereof
in a register and
allocate a reference number to the matter, and advise the claimant’s
legal representative thereof. The
State Attorney shall thereafter,
in liaison with the Agency or the Independent Tribunal, as the case
might be, endeavour to dispose
of the complaint within the period of
one month referred to in paragraph (d) so as, if possible, to avoid
or limit the ambit
of litigious proceedings.
The scheme is intended
primarily to operate in matters in which the aggrieved applicants
for social assistance are legally represented;
although, of course,
it would be beneficial for unrepresented claimants also to make use
of it. I am authorised by the Judge
President and the other judges
of this court to make it known that in matters amenable to the
scheme an unreasonable failure
by legally represented claimants to
avail of its provisions before the institution of litigation will be
taken into account in
the determination of costs.
In terms of the KZN
practice note the State Attorney in that jurisdiction was directed
to report to the Judge President on the
operation of the system
introduced there in terms of the practice note. It will clearly be
of assistance if the judges of this
court were to be similarly
apprised of the effects, beneficial or otherwise, of the
implementation and operation of the aforementioned
scheme in this
jurisdiction. The State Attorney is therefore requested to submit
written reports to the Judge President in that
regard at such
intervals as she deems useful and expedient.
It is necessary that the
existence of the scheme to be put into effect, as described above,
be drawn to the attention of interested
parties. With that
objective in mind, I shall issue a direction at the conclusion of
this judgment that notice of this judgment,
together with a copy of
the text of paragraphs Error: Reference source not found - hereof,
shall be circulated by the Registrar
to the Cape Bar Council, the
Law Society of the Cape of Good Hope, the Independent
Advocates Association of South Africa
and the National Forum of
Advocates. The Registrar will also be directed to similarly inform
the Minister and the Cape Town
regional office of the Agency in
writing at the addresses given in paragraph (a)(i) and (ii),
above. The State Attorney
is furthermore requested to draw the
information to the attention of the attorneys of record for the
claimants in all proceedings
in matters currently pending of the
nature described in paragraph (a) in which process has been served
on the office of the State
Attorney.
The applicable
statutory framework
Before turning to deal
with the applications individually, it is convenient to outline the
applicable statutory framework. The
Agency is a public entity
established in terms of
s 2
of the
South African Social
Security Agency Act 9 of 2004
. The principal function of the Agency
is to administer social assistance in terms of Chapter 3 of the
Social Assistance Act 13 of 2004
. The term ‘social
assistance’ relates to the provision of a variety of social
grants, as described in Chapter 2
of the
Social Assistance Act; for
example, child support grants, disability grants and older person’s
grants. In terms of
s 14(1)
of the
Social Assistance Act, any
person who wishes to apply for social assistance must do so ‘in
the prescribed manner’.
The Agency is required
on receipt of such an application to conduct an investigation into
its merits and if it is satisfied that
the applicant qualifies for
social assistance it must render the relevant assistance.
5
Section 14(3)(b)
of the
Social Assistance Act provides
that if the
applicant does not qualify for social assistance the Agency must, in
writing, at the applicant's address or other
point of contact stated
in the application, inform the applicant (i) that he or she
does not qualify for social assistance
in terms of this Act; (ii) of
the reasons why he or she does not qualify; and (iii) of his or
her right of appeal in
terms of
s 18
of the Act, with details
of how the applicant may exercise that right.
The administration of
the
Social Assistance Act thus
far has occurred under three
successively applicable sets of regulations. In terms of the
transitional arrangements provided
in terms of
s 33(2)
and (3)
of the Act, the regulations in place in respect of the
administration of the repealed 1992 Act were deemed to have been
made under the corresponding provisions of the 2004 Act. The
relevant regulations were those set out in GNR 417 of 1998,
published
in Government Gazette 18771, dated 31 March 1998. Those
regulations thus applied with effect from the commencement of the
2004
Act on 1 April 2006.
A set of regulations
which appeared to repeal the 1998 regulations was published,
purportedly in terms of s 32 of the 2004
Social Assistance Act,
in
GNR 162 in Government Gazette 27316 of 22 February 2005. A
so-called ‘clarification’, published in Government
Notice R1280 in Government Gazette 29471 on 11 December 2006,
explained that the regulations published in February 2005
were not
in force and had been published only for public comment. The
clarification notice was published to address the apparent
perception that the 2005 regulations were in force. On 11 April
2008, the Minister of Social Development withdrew the clarification
notice and announced that the regulations published in GNR 162 of
22 February 2005 ‘are in force’.
The February 2005
regulations were then repealed in terms of
regulation 38
of the
Regulations Relating to the Application for and Payment of Social
Assistance and the Requirements or Conditions in respect
of
Eligibility for Social Assistance. The repeal was published in GNR
898 of 22 August 2008 published in Government Gazette
31356 of
that date, and was of immediate effect.
Counsel were agreed,
correctly so in my judgment, that the effect of the aforegoing was
that the 1998 regulations applied until
10 April 2008; the 2005
regulations applied from 11 April to 21 August 2008; and
the 2008 regulations have applied
since 22 August 2008.
Only one of the
applicants in the matters before me submitted the relevant
application for social assistance during the period
that the 1998
regulations were in effect. Four of the applicants’
applications for social assistance were submitted during
the short
time that the 2005 regulations applied; and the remaining sixteen
applicants’ applications were submitted after
the August 2008
regulations had come into effect.
Identification of
legal issues common to many of the applications
It is appropriate at the
outset also to address certain issues which arise in, or are common
to, a number of the applications.
These issues are (i) the
nature of communication by the Agency to applicants for social
assistance; in particular whether
the duty to inform such applicants
of the outcome of their applications is fulfilled only if the Agency
is able to prove that
the applicant actually received the relevant
notification, whether under
s 14(3)(b)
of the
Social Assistance
Act, or
regulation 13
of the August 2008 regulations; (ii) whether
applications of the nature currently before the court are subject to
the provisions
of the Promotion of Administrative Justice Act 3 of
2000 (‘PAJA’), and therefore subject to the time limits
prescribed
in terms of s 7(1) of PAJA for the institution of
review proceedings; (iii) the applicability of the Institution
of
Legal Proceedings against Certain Organs of State Act 40 of 2002
to the claims for constitutional damages; and (iv) whether
written notice informing applicants who have applied unsuccessfully
for disability grants that their application has been unsuccessful
because it was not supported by the required medical report provides
sufficient in the way of reasons for the decision to comply
with the
requirements of
s 14(3)(b)(ii)
of the
Social Assistance Act
read
with the applicable regulations.
The ambit of the
Agency’s duty to inform an applicant for a social grant of the
outcome of the application
Section 14(3)(b)
of the
Social Assistance Act provides
:
If the applicant does not
qualify for social assistance in terms of this Act, the Agency must
in writing at the applicant's address
or other point of contact
stated in the application,
inform
the applicant-
(i) that he or she does
not qualify for social assistance in terms of this Act;
(ii) [of] the reasons why
he or she does not qualify; and
of his or her right of
appeal contemplated in section 18 and of the mechanism and procedure
to invoke that right.
(Underlining provided for
emphasis.)
Regulation 13 of the
August 2008 regulations goes as follows, insofar as currently
relevant:
13
Notification
of
Outcome
(1) The Agency must,
within three months of the date of the application for a social grant
notify
the applicant of the approval or rejection of the
application for the social grant.
(2) A
notification
contemplated in subregulation (1) must be delivered to the applicant
by-
(a) hand, against
signature by the applicant, or at the address furnished by the
applicant at the time of application; or
(b) pre-paid registered
post to the address furnished by the applicant at the time of the
application.
(3) ….
(4) Upon refusal of a
social grant application, the Agency must
inform
the applicant
in writing of such refusal and of-
(a) the reasons for such
refusal; and
(b) the applicant’s
right to appeal the decision and the mechanism and procedure to lodge
an appeal.
6
(Underlining provided for
emphasis.)
The applicants’
counsel relied heavily on the judgment of Pistor AJ in the
North West High Court in the matter
Mokaimang
David Senatle v The Chief Executive Officer of the South African
Social Security Agency,
(case
number 1471/08, 30 April 2009),
7
in which a distinction was drawn between the import of the word
‘inform’ and that of the word ‘notify’,
to
argue that where the requirement is that the applicant be ‘informed’
the onus is on the Agency to prove that the
relevant information has
actually been imparted to the applicant and that it is not
sufficient for it to prove that the information
was sent by post to
the applicant. The Social Assistance Act itself expressly requires
an applicant to be ‘informed’
of the result of an
application for social assistance only in the event of the Agency
concluding that the applicant does not
qualify for social assistance
in terms of the Act.
As
apparent from the provisions, quoted above, the Act and the 2008
regulations do not deal consistently with what must be done
by the
Agency after an application for social assistance has been
determined. The regulations provide that the applicant must
be
notified of the outcome of the application and provides in
sub-regulation 13(2) how that is to be done. Sub-regulation 13(4)
prescribes what the notification to an unsuccessful applicant must
contain by way of information. In this regard it should be
noted
that the only applicant that, in law, can be unsuccessful is one who
does not qualify for social assistance. This follows
because the
Agency is under an obligation to render social assistance to
everyone who qualifies for it. Can it be that the legislation
contemplates two notices, or letters to the unsuccessful applicant;
one
notifying
him/her of the result and the other
informing
him/her of the matters prescribed in terms of s 14(3)(b) of the
Act and sub-regulation 13(4) of the 2008 regulations? That
seems
inherently improbable. Does the use of the word ‘inform’
denote something essentially different from ‘notify’,
as
held by the North West High Court in relation to the 1998 and the
2005 regulations? The answer must be sought in the contextual
construction of the Act and regulations. It is trite that it is
generally futile to define the meaning of words in a statutory
or
contractual document in isolation from their employment in the
particular context.
In
Senatle
,
the learned acting judge expressed the view that ‘it is well
settled in our law that when the term “inform”
is used
in any statutory provision, it implies that the person who has the
duty to inform has to ensure that the person who has
to be informed
receives
8
the relevant information. Until the required information has been
received by the person who is supposed to receive same, that
person
has not been “informed” and the person who has the duty
to inform, has not discharged such duty’. The
dicta
of Cloete J (as he then was) in
Marques
v Unibank Ltd
2001 (1) SA 145
(W) at 156J and of C J Claassen J in
Van
Niekerk and Another v Favel and Another
[2006] ZAGPHC 24
;
2006 (4) SA 548
(W) at 563-4 were cited in support of this view.
It is
evident, however, if the judgment in
Marques
is read as whole, that Cloete J did not purport to offer a
generally applicable definition of the word ‘inform’
in
all legislation. In
Van Niekerk
,
C J Claassen J merely agreed with Cloete J’s
construction of
s 19
of the
Alienation of Land Act, 1981
. The
exercise of interpretation undertaken by both judges took into
account, in the usual manner, the context in which the word
was
used, including the wider context of the relevant legislative
history and the indications of legislative intent that could
be
inferred from certain amendments. Indeed, as appears from those
judgments, it was acknowledged that the words ‘notify’
and ‘inform’ can be synonymous.
As far as I could
determine, the word ‘inform’ is used 15 times in the
Social Assistance Act. In
many instances the statute expressly
enjoins the Agency to inform the party concerned, in writing, by
registered mail. In s 16(7)(b)
of the Act, for example, the
Agency is enjoined to inform the beneficiary ‘in writing by
registered mail at the last known
address of that beneficiary in the
Republic’. See also s 20(2) of the Act. In these
instances it appears to me that
the Agency’s duty would be
discharged by posting the notice by registered mail to the
beneficiary at the given address.
It would not be necessary to
prove that the beneficiary had actually received it. The imposition
of the duty to do the informing
by means of registered mail is
because the legislature is aware that the chances of registered post
going astray are markedly
less than in the case of ordinary mail.
The legislature must also be taken to have been conscious of s 7
of the Interpretation
Act 33 of 1957 when it formulated the
requirement that the applicants be informed by registered post.
Section 7 of the Interpretation
Act provides:
Where any law authorizes
or requires any document to be served by post, whether the expression
'serve", or 'give", or
'send", or any other expression
is used, then, unless the contrary intention appears, the service
shall be deemed to be effected
by properly addressing, prepaying, and
posting a registered letter containing the document, and, unless the
contrary is proved,
to have been effected at the time at which the
letter would be delivered in the ordinary course of post.
The provisions of
s 14(3)(b)
of the
Social Assistance Act are
less onerous than
those other provisions of the Act to which I have drawn attention,
in which notice in writing by registered
post is the prescribed
means of discharging the duty to inform. Section 14(3)(b)
merely prescribes that the unsuccessful
applicant must be informed
in writing, which would suggest that notification by ordinary post
to the addressee at the given address
or contact point would
suffice. It is the provisions of regulation 13 of the 2008
regulations that direct that the written notice
may be given by
hand, against the recipient’s signature, or by registered
post. I accept that the regulation was competently
made because it
appears to me that the prescription contained therein was made
pursuant to the Minister’s power, in terms
of s 32 of the
Act, to make regulations, amongst other matters, providing for
‘uniform norms and standards for service
delivery’ and
‘any other matter which it is necessary to prescribe for the
proper administration or implementation
of [the] Act’.
Furthermore, because I cannot conceive that the applicable
administrative regime in terms of the Act read
with the regulations
requires two notices in respect of the outcome of applications for
social assistance, I also accept that
in the case of an unsuccessful
application the notification required in terms of sub-regulation
13(1) read with sub-regulation
13(2) must contain the information
required by s 14(3)(b) of the Act and sub-regulation 13(4).
In the result I hold
that the Agency will be held to have discharged the duties placed
upon it in terms of
s 14
of the
Social Assistance Act and
regulation 13
of the 2008 regulations upon proof by it that it has
posted the relevant notification to the applicant by registered mail
to
the given address, or, if applicable, hand delivered it in the
manner provided in sub-regulation 13(2)(a). Where notification
is
effected by registered post in the manner permitted, it is not
incumbent on the Agency to prove actual receipt by the applicant
of
the written notification.
In
Senatle
,
supra, Pistor AJ held, however, with reference to the
provisions of
regulation 12(4)
of the 2005 regulations, that the
presumptions in s 7 of the Interpretation Act did not act to
assist the Agency’s
discharge of its duty to inform applicants
for social assistance. Regulation 12(4) of the 2005 regulations
stated that ‘
whenever
the Agency informs an Applicant of the outcome of an application,
the Agency must ensure that the Applicant fully understands
the
decision of the Agency, the reasons thereof and the procedures to be
followed thereafter’. Pistor AJ inferred
from the
imposition of a duty on the Agency to ensure that the applicant
understood the various matters described in the sub-regulation
that
the Agency was thereby burdened with an onus to prove actual
communication with the applicant.
9
I consider that it is necessary to consider s 7 of the
Interpretation Act (quoted above
10
)
to determine whether this is really so. I do not agree that the
provision of the 2005 regulations evinces a ‘contrary
intention’ within the meaning of s 7 of the
Interpretation Act
11
serving to displace the presumption created by that provision, as
the learned acting judge must be taken to have implied.
In my
view the obligation imposed in terms of regulation 12(4) of the 2005
regulations was no more than an iteration of the duty
of the Agency
to ensure that its notice informing an applicant of the outcome of
an application was formulated so as to, in a
readily comprehensible
form, advise the applicant of the decision of the Agency, the
reasons therefor and the procedures available
by way of possible
response by the applicant to the decision.
12
In related vein I should also state that I am not persuaded by the
argument advanced by the applicants’ counsel that there
was no
authorisation, as contemplated by s 7 of the Interpretation
Act, of the giving of notice by post of the outcome of
applications
for social assistance before the introduction of the 2008
regulations. The wording of s 7 of the Interpretation
Act
makes it clear that the statutory authorisation of notice by post
does not have to be express for the presumptions created
by the
section to apply. Section 7 enjoins a consideration of the
language used in the statute and a determination whether
that
language, contextually construed, authorises or requires any
document to be transmitted by post. In my view,
s 14(3)(b)
of
the
Social Assistance Act, by
authorising notice in writing to be
given to the address provided by the applicant in his/her
application, impliedly mandates
the posting of the notice to such
address.
13
Section 14(1)
of the
Social Assistance Act and
the regulations made to give effect
thereto, by prescribing the manner in which applications for social
assistance are to be
made, support the conclusion reached by me in
the preceding paragraphs. The applicable regulations are set out in
Chapter 2
of the 2008 regulations. In summary they provide that the
applicant or his/her ‘procurator’ have to present
themselves
in person at an office of the Agency or other designated
place to complete the relevant application form in writing in the
presence
of a designated officer. It follows from
regulation 13
,
quoted above,
14
which is one of the regulations in Chapter 2 of the 2008
regulations, that the applicant or procurator is required to furnish
an address at the time of the application. The evident purpose of
the furnishing of this address is to enable the Agency to
communicate with the applicant in writing by post or by physical
delivery at the furnished address. Various provisions in the
Act
and in the regulations that provide for communications with
applicants and beneficiaries at their ‘last known address’
or ‘address …stated in the application’ are also
indications that there is a duty on applicants to keep the
Agency
advised of their whereabouts and that the Agency’s duty is
fulfilled by communication in writing by registered post
to the
given address. The deeming provisions of s 7 of the
Interpretation Act connote that the risk of non-receipt of such
communications is on the applicant, or beneficiary, as the case
might be.
The applicability of
PAJA
It was common ground
between the parties that the granting or refusal of applications for
social assistance constitutes administrative
action. Counsel for
the applicants however resisted the correctness of the suggestion
made by me during argument that the applications
therefore fell
properly to be brought in terms of s 6 of PAJA. Cf.
Cele
supra
at para.s [47]-[49]. The argument was that the applicants in all
but two of the 21 cases sought mandatory interdicts compelling
the
respondent to disclose the outcome of their applications for social
assistance and certain relief ancillary thereto, whereas
in the
other two matters the applicants sought a mandamus compelling the
respondent to furnish full written reasons for the decision
of the
Agency to refuse their applications for social assistance.
Ms
Zwiegelaar
,
who appeared for the applicants (together with Mr
Wilkin
),
argued that the applicants were not seeking a review of the
respondent’s failure to consider their applications and notify
them of the outcome within three months as required by the
legislation, or of the alleged failure of the respondent to furnish
two of the applicants with adequate reasons for the refusal of their
applications. Ms
Zwiegelaar
also submitted that the SCA had held in
Kate
’s
case (supra) that PAJA was not applicable.
In my view there is no
merit in the applicants’ counsel’s attempt to
distinguish the current applications in a manner
that would place
them beyond the purview of PAJA. There is no disguising that the
relief sought, however formulated, is directed
at the achievement by
the applicants of their right to administrative justice in terms of
s 33 of the Constitution. PAJA
is the legislation enacted in
fulfilment of the obligation placed on the legislature in terms of
s 33(3) of the Constitution
to give effect to the rights
afforded in terms of s 33(1) and (2) thereof.
15
The bases provided for judicial review in terms of s 6 of
PAJA, read with the wide range of the non-exclusively identified
remedies described in s 8 of the statute, make it evident that
the term ‘judicial review’ as it is used in PAJA
is much
wider than the import of that expression in respect of
administrative action under the common law. Judicial review under
PAJA is not limited to the review and setting aside or correction of
decisions. The remedies described in s 8 include mandatory
relief, whether by orders directing the administrator to act in a
manner required by the court, or to give reasons for a decision.
In
exceptional cases an order for the payment of compensation can be
made on judicial review under PAJA.
The reliance by the
applicants’ counsel on
Kate
’s
case in this respect was misplaced. The issue in
Kate
’s
case was the existence of a right of an applicant for social
assistance to claim constitutional damages in a situation
in which
such applicant’s rights had been infringed by the delayed
processing of the application in breach of the applicant’s
right to administrative justice. It was common cause between the
parties in that matter that PAJA did not apply. PAJA had in
fact
only come into operation ‘long after the material events’
in
Kate
’s
case had occurred.
16
It is now established that PAJA does not have retrospective
effect.
17
In
Kate
’s
case the principal relief sought was in any event directed at
obtaining compensation in respect of the consequences of
the
respondent’s failure to determine the applicant’s
application for social assistance within a reasonable time,
whereas
in the current applications the principal relief sought is directed
at the implementation of the administrative process.
In
Kate
’s
case the administrative process had run its course and nothing about
it was being impugned in the proceedings on any
of the grounds set
out in s 6(2) of PAJA. By contrast, the claims for
constitutional damages in some of the current applications
are
incidental to the principal relief sought by way of judicial review
as contemplated by PAJA. Assuming for present purposes
that PAJA is
not applicable to claims for constitutional damages, save where such
damages are sought incidental to the judicial
review of
administrative action, the SCA judgment in
Kate
’s
case does not afford any authority for the contention that an
application for declaratory or mandatory relief in connection
with
administrative action, as defined in PAJA, and based on any of the
grounds set out in s 6(2) of the statute, does not
have to be
brought under the aegis of that Act.
The applicants’
counsel’s concern about the application of PAJA to the current
applications was focussed on the possibly
exclusionary effect of the
time limits referred to in s 7(1) of the Act.
18
The 180 day outer time limit prescribed in terms of s 7(1) of
PAJA does not, however, appear to me to be applicable to
applications for review based on the ground of review in terms of
s 6(2)(g) of the statute; viz. on the grounds of the
administrator’s failure to take a decision. The 180 day limit
falls to be calculated with reference to the considerations
in
paragraphs (a) and (b) of s 7(1) of PAJA, neither of which will
be present in the ordinary case in which the complaint
is that no
decision had been made. Thus, in respect of judicial review
applications founded on s 6(2)(g) of PAJA, the requirement
will
ordinarily be simply that such applications must be brought within a
reasonable time. What constitutes a reasonable time
is a question
of fact to be determined with regard to the circumstances of the
given case.
The applicability of
the Institution of Legal Proceedings against Certain Organs of State
Act 40 of 2002 (‘the Legal Proceedings
Act’)
Section 14 of the South
African Social Security Agency Act provides:
(a) Any legal proceedings
against the Agency must be instituted in accordance with the
lnstitution of Legal Proceedings against
Certain Organs of State Act,
2002 (Act No. 40 of 2002).
(b)
The
Agency is, for purposes of paragraph
(a),
deemed
to be an organ of state contemplated in paragraph
(c)
of
the definition thereof in section 1 of the above Act.
19
The question of the
applicability of the Legal Proceedings Act arises in some of the
current matters because the claims for constitutional
damages were
not preceded by any notice as required in terms of s 3 of the
Legal Proceedings Act. Whether such notice was
in fact required
depends on whether a claim for the payment of constitutional damages
is properly characterised as a claim for
payment of ‘a debt’
as defined in the Act. In terms of s 1(1)(iii) of the Legal
Proceedings Act:
“
debt
”
means any debt arising from any cause of action -
(a) which arises from
delictual, contractual or any other liability, including a cause of
action which relates to or arises from
any-
(i) act performed under
or in terms of any law; or
(ii) omission to do
anything which should have been done under or in terms of any law;
and
(b) for which an organ of
state is liable for payment of damages,
whether such debt became
due before or after the fixed date
I find myself in
respectful agreement with the interpretational analysis by Wallis AJ
(as he then was) at paragraph [44]
of the judgment in
Cele
,
supra.
20
At paragraphs [45] and [46] of the judgment, Wallis AJ
expressed the opinion, albeit
obiter
,
that the Legal Proceedings Act does apply to claims for the payment
of constitutional damages arising out of non-compliance
by the
Agency with its obligations under the Act. I am also in agreement
with that conclusion; it seems to me to be four square
in line with
the plain wording of
s 14
of the
South African Social Security
Agency Act, read
with the definition of ‘debt’ in the
Legal Proceedings Act. The result is that any claim against the
Agency for
constitutional damages of the nature acknowledged in
Kate
,
supra, is subject to compliance with the formalities prescribed in
terms of s 3 of the Legal Proceedings Act; or failing
that, and
if the respondent relies on the claimant’s failure to give
notice as required in terms of s 3(1) and (2),
the granting of
condonation for non-compliance as contemplated in terms of s 3(4)
of the Act.
In the current matters
the respondent took what might fairly be termed a shot-gun range of
objections to the applications. While
the answering affidavits did
not refer in terms to the Legal Proceedings Act, the deponent did
complain in general terms about
the applicants’ failure to
comply with the ‘guidelines’ provided in Wallis AJ’s
judgment in
Cele
,
supra. In
Cele
,
the learned judge concluded his
obiter
remarks on the application of the Legal Proceedings Act to claims
for constitutional damages in the context of matters of this
nature
by stating ‘…it is unnecessary for me to express a
final conclusion on this question. I mention it, however,
as it
will need to be considered if these, or similar, claims are pursued
without such notice having been given.’
21
In the current matters I
am prepared to assume in the applicants’ favour that the
widely cast and non-specifically framed
objections by the respondent
to the applications did not include a reliance on the failure of the
applicants to give notice in
terms of the Legal Proceedings Act.
Certainly, it is desirable, in my view, that, if an organ of state
wishes to raise such
an objection, it should do so with specificity.
Apart from any other consideration a specifically raised objection
will alert
the claimant in such matters to the need to give
consideration to an application for condonation.
22
The award of
constitutional damages is, however, discretionary. The purpose of
constitutional damages is not primarily to compensate
for financial
prejudice or patrimonial loss; it is rather a means by which the
courts may seek by surrogate relief to give expression
to the
fulfilment or realisation of a claimant’s abrogated
constitutional rights by way of an award in monetary compensation
–
in other words to afford ‘appropriate relief’ within the
meaning of s 38 of the Constitution. As stated
in
Kate
,
supra, at para. [25], ‘Whether relief in that form is
appropriate in a particular case must necessarily be determined
casuistically, with due regard to, among other things, the nature
and relative importance of the rights that are in issue, the
alternative remedies that might be available to assert and vindicate
them, and the consequences of the breach for the claimant
concerned.’
There is no doubt that
for the applicants in the current matters the rights entailed are of
great importance. The means qualifications
for social assistance
connote that it is only the poor who are eligible to receive it.
Any unwarranted delay in the provision
of such assistance in cases
in which an entitlement to it is established will therefore
undoubtedly have an acutely felt detrimental
effect on the person
requiring such assistance.
When it comes to the
question of alternative remedies, consideration must be given to the
extent to which the applicants might
have obtained administrative
redress without resort to litigation. In this regard, the
descriptions by the applicants who are
claiming constitutional
damages of their attempts to pursue their claims at the offices of
the Agency were notably lacking in
corroborative detail and
expressed in such general terms as to be beyond a meaningful
response by the respondent.
A further factor to be
taken into account in this respect is that what Nugent JA referred
to in
Kate
as the word-processor spewn allegations
23
that characterised all of the applications were often demonstrably
inaccurate and unreliable. I have also taken into account
that the
letters of demand that preceded the institution of proceedings were
inappropriately addressed to a Khayelitsha address,
rather than to
the respondent at the Agency’s national or regional
headquarters, which would, one suspects, have been more
effective;
and which would have been required if there had been compliance with
the Legal Proceedings Act.
24
Had the applicants been acting without representation in this
regard, I should probably have taken a different view on this
aspect. In the circumstances that actually obtain, I cannot
overlook that the formal demands made as a precursor to litigation
were thus addressed on the applicant’s behalf by a remunerated
agent with an apparent interest in conducting profitable
business in
what, as previously mentioned, is something that in other
jurisdictions has grown into something of a cottage industry.
Another matter that has
weighed with me in considering the constitutional damages claims is
that the endemic disregard for the
claimants’ constitutional
rights that characterised the administration of the social
assistance system by certain provincial
administrations under the
previous legislation, and which gave rise to justifiable expressions
of outrage and the award of constitutional
damages in numerous
matters, including
Kate
,
is not established on the papers in the current matters.
Sufficiency of reasons
for refusal of applications for disability grants
As mentioned earlier,
one of the issues common to a number of the applications before the
court is whether written notice informing
applicants who had applied
unsuccessfully for disability grants that their application had been
unsuccessful because it was not
supported by the required medical
report provided sufficient in the way of reasons for the refusal to
comply with the requirements
of
s 14(3)(b)(ii)
of the
Social
Assistance Act.
Some
of the relevant
provisions in the Act and the regulations have been set out in
paragraphs and of this judgment. It is necessary
also to have
regard to the requirements with which any application for a
disability grant must comply.
In the 2005 regulations,
regulation 3(1)(b) provided, insofar as is relevant, that a person
was eligible for a disability grant
if ‘the disability is
confirmed by a valid medical report of a medical officer and the
report specifies whether the disability
is permanent or temporary…’.
In terms of regulation 10(2) of the 2005 regulations, an
application for a disability
grant had to be accompanied, amongst
other things, by a report from a medical officer.
Regulation 3 of the 2008
regulations essentially reiterates the requirements of regulation
3(1)(b) of the 2005 regulations. Regulation
11(2)(b) of the 2008
regulations essentially repeats the requirements of regulation 10(2)
of the 2005 regulations.
When these requirements,
whether under the 2005 or the 2008 regulations, are considered
together it is evident that an application
for a disability grant
that was accompanied by a medical report (or ‘assessment’
as it is referred to in the 2005
regulations) that did not confirm
the existence of a disability was bound to be unsuccessful. Such an
application would fail
to establish the applicant’s
eligibility for the grant. The remedy of an applicant who took
issue with the medical report
furnished by a medical officer would
be to seek to obtain an improved report, or to otherwise seek to
impugn the report that
had been furnished; it would not be to
challenge or query the Agency’s refusal to approve a grant
application that self-evidently
did not satisfy the eligibility
requirements.
In my judgment
therefore, a notification to an applicant who had submitted an
application for a disability grant that was not
supported by a
medical report confirming the disability, or was accompanied by a
medical report negating the existence of a disability,
which gave as
a reason for the refusal of the application that it was not
supported by the content of the submitted medical report
would
comply adequately with the requirement of
s 14(3)(b)(ii)
of the
Social Assistance Act. It
is not required of the Agency to
interrogate a medical report submitted by the applicant that does
not support the application.
It is the duty of the applicant for a
disability grant, alternatively that of such applicant’s
procurator, to procure
and submit a medical report which, on its
face, does support of the application. An applicant cannot expect
the Agency to explain
why the medical officer to whom the applicant
has presented him/herself for confirmation of the existence of a
disability finds
that there is no disability. If the applicant has
a complaint against the medical officer’s findings, or wishes
to obtain
reasons for such findings, that is a matter to be pursued
with the medical officer concerned, or with the medical officer’s
professional body or, if applicable, institutional employer. It
might be that a failure by a medical officer to properly discharge
his/her functions in preparing an assessment in terms of the
regulations arguably might give rise to judicial review, but, if
so,
the administrative decision impugned would be the findings of the
medical officer; and not the decision of the Agency to
refuse a
non-compliant application for a disability grant.
The Agency is required
to give reasons for the refusal of an application. In cases in
which the application for a disability
grant is not accompanied by a
medical report confirming the existence of the disability, the
Agency has no authority to grant
the application. In those
circumstances pointing out, or identifying the nature of the
non-compliance of the application with
the requirements for approval
is an adequate explanation of the reason for the refusal of the
application. It seems to me, with
respect, that the judgments cited
to me in argument by the applicant’s counsel in which it has
been held that there is
a duty on the Agency to give reasons for the
medical officer’s findings that the applicant is not disabled
25
have overlooked the discrete nature of the decisions in issue (viz.
(i) the medical determination of the existence and nature
of
the alleged disability and (ii) the determination of the
eligibility of an applicant for the award in terms of the
legislation administered by the Agency) and also the discreteness of
the functions of the functionaries charged with making them.
The
first decision, namely that of the medical officer, is separate from
and antecedent to any consideration by the Agency of
the application
for a social grant. The reasons for the second decision, namely
whether or not to approve the application, bear
reference to the
first decision, but they do not include revisiting the merits of the
first decision. In furnishing its reasons
in compliance with
s 14(3)(b)
of the
Social Assistance Act, the
Agency is required
to give the reasons for the second decision, as aforementioned; not
the first.
Having addressed the
identified issues common to a number of the applications it is now
time to deal with each of the applications,
individually.
The application of
Nokuzola Sylvia Mbali
In proceedings
instituted on 30 October 2009, the applicant sought orders
directing the respondent to consider and decide
her application for
a disability grant and to advise her in writing of his decision
within 15 days, with reasons for refusal
should the application be
refused. In the event of the application for social assistance
being granted, the applicant sought
compensation for the non-receipt
of assistance that she alleges she should have received had her
application been decided timeously,
together with constitutional
damages in an amount equivalent to
mora
interest on the amounts that should have been paid to the applicant
earlier.
The application for a
disability grant was submitted on 26 March 2008. In my view
the institution of proceedings more than
18 months after the
submission of the relevant application for social assistance was
unreasonably delayed; and in the absence
of an application to
condone the delay, this afforded good grounds for the refusal by
this court to entertain the application.
I shall proceed, however,
to deal with the matter on its merits to show that on any approach
it falls to be dismissed.
The date of submission
meant that the application for social assistance was subject to the
1998 regulations. The
Social Assistance Act provides
that a person
is eligible for a disability grant if, amongst other matters, he or
she is, owing to a physical or mental disability,
unfit to obtain by
virtue of any service, employment or profession the means needed to
enable him or her to provide for his or
her maintenance.
26
The 1998 regulations provided that an application for a disability
grant was required to be supported by a medical assessment
confirming the existence of the disability. This was an ‘additional
requirement’ for eligibility imposed by the
Minister in terms
of
s 5(2)
, read with
s 33(2)
, of the
Social Assistance
Act.
It
is evident that the
application for a disability grant in issue in the current matter
was not the first such application submitted
by the applicant. An
application submitted by her in 2007 was refused because her claim
to be disabled by reason of tuberculosis
and high blood pressure was
not supported by the results of a medical assessment. It is
apparent from the respondent’s
answering affidavit that the
application submitted by the applicant in 2008 was also not
supported by a medical assessment confirming
her alleged disability.
In the circumstances it is apparent that the applicant did not
submit an application complying with
the requirements of the
legislation and that it should have been apparent to her when she
made the application that she did not
comply with the eligibility
requirements.
The applicant failed to
disclose in her founding papers that her claim to be suffering from
tuberculosis and a disabling degree
of high blood pressure had been
previously refuted on medical examination and that the application
submitted by her in 2008 was
also not supported by the accompanying
medical report. She also failed to disclose that her 2007
application had resulted in
her receiving a grant for temporary
disability based on her having been diagnosed as asthmatic.
The respondent alleges
that the application was refused (as it had to be) and that the
applicant was informed of this in a letter
dated 15 April 2008
addressed to an address at which the applicant appears to have
received previous communications. A
copy of the letter, which was
introduced in evidence, explains that the applicant did not qualify
for a disability grant in the
light of the medical assessment.
There is however no proof that the letter was addressed to the
applicant by registered post.
The applicant alleges
that she was not in receipt of the letter from the Agency advising
her of the refusal of her application.
In the circumstances it
is apparent that the applicant is now aware of the refusal of her
application and of the reason for that
refusal. It is also evident
that her application failed on its face to satisfy the eligibility
requirements and should in fact
never have been submitted. The
allegation in her founding affidavit that she had ‘satisfied
the requirements of
s 9
and s 5 of the Act and complied
with the prescribed conditions of the Act’ was just untrue.
In all the circumstances
no case for any of the relief sought is made out. It is only
because I accept that the applicant’s
omissions and
misdirections may well have been as a consequence of ignorance,
rather than deceitfulness or wilful obtuseness,
that I have desisted
from dismissing the application with an adverse costs order.
In this matter therefore
there will be an order dismissing the application, with no order as
to costs.
The application of
Francis Tsaliswa Mamkeli
In this matter, in which
proceedings were launched on 2 November 2009, the applicant
sought orders directing the respondent
to consider and determine an
application for a disability grant submitted by her on 4 July
2006. The further relief sought
was essentially in the same vein as
that described in respect of the Mbali application in paragraph ,
above. For the same reason
as that mentioned in paragraph ,
above, the application to court was amenable to dismissal on account
of the unreasonable
delay in the institution of proceedings.
I do not intend to
discuss this matter in any detail. Suffice it to say that, as in
the previous case, the respondent produced
a response that had
allegedly been sent to the applicant in August 2006 informing her of
the refusal of the application because
it was not supported by the
accompanying medical assessment. Also, as in the previous case,
there is no proof that the notification
of the refusal of the
application was sent by registered post, or that it in fact came to
her notice.
The applicant in the
current case also failed to fully set out the history of her
interaction with the Agency; and, as in the
Mbali matter dealt with
earlier, the averment in her founding papers that she satisfied the
requirements of s 9 and s 5
of the Act and complied with
the prescribed conditions of the Act was untrue. The medical
assessment submitted in support of
her application for a disability
grant did not confirm that she had either a permanent or temporary
disability rendering her
eligible for a grant.
For the same reasons as
in the previous matter, this application is dismissed, with no order
as to costs.
The application of
Kutala Mthambeka
In this matter, the
applicant sought an order directing the respondent to supply full
written reasons for the Agency’s refusal
of her application
for a disability grant.
The applicant had been
informed by the respondent that her application, which had been
submitted in July 2009, was unsuccessful
because ‘in the light
of [the accompanying medical] assessment [she] did not qualify for a
disability grant’.
The respondent’s
answering affidavit and the annexures thereto reveal that the
applicant had made an application for a disability
grant in 2008 and
that this had been unsuccessful because the application had not been
supported by the accompanying medical
assessment. The answering
affidavit does not, however, deal with the application made by the
applicant in 2009 and appears to
confuse that application with the
one submitted by the applicant in 2008.
In the answering
affidavit, the deponent makes the following self-contradictory
statement on behalf of the respondent: ‘The
Agency has no
record that the applicant has filed such an appeal [i.e. an appeal
in terms of
s 18
of the
Social Assistance Act]. According
to
our records, she noted an appeal. This has been forwarded to the
Appeal Tribunal, and is being processed.’
There is no copy of the
medical assessment, or of the appeal (if there was one) in the
papers. However, having regard to the
considerations discussed in
paragraphs -, above, it is apparent that an applicant for a
disability grant should not submit an
application for social
assistance if the medical assessment submitted in support of such
application does not confirm the alleged
disability on which the
application is founded. If the medical assessment is understood by
the applicant to have confirmed the
disability and the Agency takes
a different view, then the resultant issue is one of the proper
construction of the assessment
report. That sort of issue is
pre-eminently one that falls to be determined on appeal, where, once
again, the determination
will be made on the basis of the appellate
tribunal’s reading of the medical assessment report. The
meaning of the assessment
report is an objective issue, which,
because of the requirements of the legislation, discussed above,
falls to be determined
by the content of the report itself. If the
report, objectively considered, does not confirm the disability, the
applicant is
ineligible.
In the circumstances I
am not persuaded that the further reasons sought by the applicant
are reasonably required. It must be
remembered that the remedy in
respect of the requesting of reasons afforded in terms of
s 5(1)
of the
Promotion of Administrative Justice Act is
available to a
person who has not been given reasons for the action. In the
current case the Agency has given the applicant
the reason for the
refusal of her application. In my view, for all the reasons
mentioned above, the reason furnished by the
Agency is an adequate
one. It might be that the applicant did not retain a copy of her
application, or a copy of the medical
assessment report, and that
she would therefore need those documents to be able to assess the
cogency of the reason given so
as to decide whether to lodge an
appeal against the decision. If so, her remedy is to request copies
of those documents; not
further reasons.
27
Indeed, the Agency would be well advised in cases where its reason
for refusing an application for a disability grant is that
the
medical assessment does not confirm the existence of the disability
to attach a copy of the assessment to its letter advising
the
applicant of the outcome of the application.
The application will
therefore be dismissed. As discussed above, my approach in this
respect represents a departure from the
approach of a number of
judgments in some of the other High Courts. In the context of the
existence of those judgments, I do
not regard the institution of the
current application, albeit that it proved unsuccessful, to have
been unreasonable. With regard
to that consideration and the fact
that the peculiar social utility represented by the Agency makes it
in some senses not an
ordinary litigant, I have determined that the
appropriate order as to the costs of the application would be to
make no order
as to costs. The application is dismissed with no
order as to costs.
The application of
Nontombise Ntsholo
The applicant applied
for a disability grant on 20 August 2008. Alleging that she
had not been informed of the outcome of
that application, the
applicant applied in these proceedings, instituted on 30 October
2009, for relief of the nature sought
in the Mbali matter (see
paragraph , supra).
In the respondent’s
answering affidavit it is averred that the applicant’s
application was refused because the accompanying
medical assessment
report did not confirm the existence of any disability. A copy of
the medical report, dated 8 August
2008, attached to the
affidavit confirms that the medical officer expressed the opinion
therein that the applicant did not qualify
for a disability grant.
The respondent also annexed a letter, dated 5 November 2008, which
purports to note a statutory appeal
on the applicant’s behalf
against the refusal of her application for a grant. The respondent
indicates that there is a
significant backlog in the determination
of appeals and that the appeal is therefore still pending. The
affidavit seeks to explain
the reasons for the delay in the
determination of appeals. The explanation makes it apparent that
the Department of Social Services
has been lacking in the putting
into place of the necessary infrastructure for the proper
administration of this aspect of the
Social Assistance Act. This
is
unfortunate, to say the least. Hopefully, the default has now been
addressed and such problems will not arise again in the
future.
The applicant’s
counsel requested a postponement of this application so that the
applicant could file a replying affidavit.
No adequate reason for a
postponement has been made out. It is not acceptable for a litigant
to launch an application for urgent
relief and then to put herself
out of contactable reach of her legal representatives for an
indefinite period;
a fortiori
when the institution of
proceedings had been unreasonably tardy in the first place. In the
context of the documentary evidence
attached to the respondent’s
affidavit, it is difficult to imagine in any event what purpose
would be served by a postponement.
In the circumstances the
application for a postponement is refused and the principal
application is dismissed. For similar reasons
to those given in
paragraph , above, there will be no order as to costs.
The application of
Zolani Vivian Majalamba
In this matter the
applicant sought relief of an essentially identical nature as that
described in paragraph , above, with reference
to the Mbali matter,
save that the nature of the social assistance in issue in this
matter was a child support grant. It appears
that the applicant had
been registered for and in receipt of such assistance in the Eastern
Cape. There was no record by the
Agency of the relocation of the
applicant to the Western Cape. The applicant had made a fresh
application for social assistance
in the Western Cape on 25 March
2009. She alleged that she had not been informed of the result of
that application by the
time she deposed to her founding affidavit
on 31 October 2009.
The respondent alleges
that it informed the applicant of the positive result of her
application by letter dated 3 July 2009.
In her founding
affidavit the applicant gives her address as ‘House number
32325 Further Crescent, Khayelitsha’.
The Agency’s
response to the application was addressed to ’31 325 Futha
Street, Makhaza, Khayelitsha’, which
the deponent to the
answering affidavit avers was the address furnished by the applicant
in her application. A copy of the application
which was included in
the file of original documents handed up during argument by the
respondent’s counsel, without objection,
confirms the
correctness of the averment made by the deponent to the answering
affidavit. The applicant confirmed in reply that
her address was
indeed Futha Street and apologised for the incorrect averment in her
founding affidavit. In the absence of proof
of postage by
registered post of the Agency’s response, I have no reason not
to accept the applicant’s averment that
she did not receive
the advice.
The applicant’s
child support allowance has, however, in any event been re-instated
and there seems to be no practical need
remaining for any relief.
The applicant averred in reply that the payments which the
respondent averred had been paid into her
account had not been
received. I have no basis for resolving the resultant factual
dispute on paper. The issue of payment is
clearly one that should
be resolved administratively. With the information provided in the
papers that should not prove difficult.
Having regard to the
considerations mentioned earlier,
28
and taking into account that the respondent’s evidence that
notice of the outcome of the application was sent in July 2009,
albeit not by registered post, I do not consider that it would be
appropriate to make an award of constitutional damages.
The respondent contended
that the institution of the application had been reckless and that
the applicant should be ordered to
pay the costs. While it does
appear that the proceedings were unnecessary, the Agency was not
blameless in this regard. Had
more conscientious attention been
given to responding to the applicant’s letter of demand,
proceedings would have been
avoided. The current case affords an
excellent example of the need for the introduction of and availment
by applicants of the
litigation avoidance mechanism mentioned
earlier.
In my judgment the
application in the current matter was justified. Although there is
no longer any need for the relief sought,
the respondent must pay
the applicant’s costs of suit because of its failure to
properly comply with
regulation 13(2)
of the 2008 regulations. An
order will therefore issue noting that the applicant’s
application for social assistance has
been granted and directing the
respondent to pay the applicant’s costs of suit.
The application of
Nokuzola Ngomana
In this matter the
applicant sought relief in essentially the same terms as that sought
in the preceding case of Majalamba. She
submitted her application
for a child support grant on 14 April 2009. Having not
received a response from the Agency, notwithstanding
a letter of
demand, the current proceedings were instituted on 2 November
2009.
In the respondent’s
answering affidavit it is averred that the application was approved
and that the applicant was informed
thereof in writing on
23 November 2009. Reasons for the delay were given. These
were said to be connected with the transfer
of beneficiary
particulars from Gauteng and attending to a request to change the
form of payment of grants already being paid
in respect of the
applicant’s other children.
The Agency should have
responded to the social assistance application within the prescribed
three month period and should have
informed the applicant of the
reasons for the delay in determining her application.
In the circumstances the
appropriate order is one noting that the social assistance
application has been granted and directing
the respondent to pay the
applicant’s costs of suit.
The application of
Xoliswa Zenani
In this matter, similar
relief was sought to that in the preceding case, except this time in
respect of an application submitted
for a disability grant. The
application was submitted on 19 May 2009.
29
The applicant averred that notwithstanding the passage of more than
the three months prescribed in the regulations and despite
repeated
enquiries at the Agency’s local office she had not been
informed of the outcome of her application by the time
she deposed
to her founding affidavit on 12 November 2009. The applicant
stated that her application had been made in Khayelitsha,
but the
receipt annexed to her affidavit suggests that it must have been
made in East London in the Eastern Cape.
It further appears from
the information set out in the respondent’s answering
affidavit that the applicant was medically
assessed for the purposes
of her application on 13 August 2009, which suggests that there must
have been some interaction between
herself and the Agency in
connection with the processing of her application, which was not
disclosed in her founding papers.
The answering affidavit
states that the applicant’s application was approved in
January 2010 and she was informed accordingly.
It is not apparent
whether the letter informing the applicant of the outcome of her
application was sent by registered post,
as required in terms of the
regulations.
The letter of demand in
this matter was sent by the applicant’s attorney less than
three months after the applicant’s
medical assessment on
13 August; and proceedings were instituted only a few days
after the three month period available
to the Agency in terms of the
regulations to determine the application after it had been
supplemented by the medical assessment.
In all the circumstances it
will suffice to make an order noting that the applicant’s
application for a disability grant
has been approved, with no order
as to costs.
The application of
Veleka Zweni
In this matter the
applicant averred that she had applied on 10 March 2009 for a
child support grant. In proceedings launched
on 18 November
2009 she sought an order directing that her social assistance
application be determined within 15 days and,
in addition, if the
application were successful, an order awarding constitutional
damages.
In the answering papers
it was pointed out that the applicant had been informed on 24 March
2010 that her application had
been approved. There is no indication
of how this was done; more particularly, no proof that the
notification had been sent
by registered post. It was also averred
in the answering papers that the applicant had also applied for a
change of payment
instruction in respect of a child support grant of
which she was already in receipt and that this application had also
been approved
on 24 March.
The facts of this case
do warrant the award of constitutional damages. However, in the
absence of proof that the applicant was
effectively notified of the
outcome of the application in the manner prescribed in the
regulations, it is noted that the application
for social assistance
was approved on 24 March 2009 and the respondent is ordered to
pay the applicant’s costs of
suit.
The application of
Monica Ntombentsha Bentele
In this matter the
applicant applied for similar relief to that sought in the
immediately preceding case, save that the nature
of the social grant
in issue is a disability grant. The applicant alleged that she had
applied for a disability grant on 14 May
2008. She averred
further that she satisfied the eligibility requirements for such a
grant in terms of
ss 5
and
9
of the
Social Assistance Act. She
testified that notwithstanding numerous queries directed by her in
person to the office at which she had submitted her application,
no-one had been able to advise her of its result. She also
contingently sought an order for constitutional damages on the same
basis as it was claimed in the other matters discussed above.
In the Agency’s
answering affidavit it was averred that the applicant was notified
on 29 May 2008 that her application
had been refused on the
basis that it was not supported by the medical assessment report. A
copy of the relevant medical assessment
report, which is dated
23 April 2008, and presumably accompanied the social grant
application, states that the applicant
does not qualify for the
grant and is fit to work. The answering affidavit alleged further
that the applicant had submitted
an appeal against the refusal of
her disability grant application. A copy of the appeal, dated
11 July 2008, was annexed
to the answering affidavit. The
appeal had, however, not yet been determined when the answering
affidavit was deposed to on
15 January 2010.
In a replying affidavit,
the applicant confirmed having enlisted the assistance of the
Treatment Action Campaign (under whose
letterhead the aforementioned
appeal was submitted), but averred that she had not been aware that
that body had submitted an
appeal on her behalf.
In all the circumstances
it would appear therefore that the application should not have been
instituted in the form it was. It
is also regrettable, to say the
least, that the applicant should have averred in her founding papers
that she satisfied the eligibility
requirements under the
Social
Assistance Act when
it was clear from the content of the medical
assessment accompanying her application that this was not in fact
the case. That
said, it is inexcusable that after a delay exceeding
18 months the applicant had not been informed of the final result of
the
process and the appeal lodged on her behalf not yet determined.
Accordingly, I shall make no order as to costs.
The application is
dismissed with no order as to costs.
The application of
Lubabalo Chintso
This matter concerned an
application for a disability grant. The application was not
supported by a medical assessment that confirmed
the existence of a
qualifying disability. For similar reasons to those furnished in
respect of the Mbali application (dealt
with from paragraph ,
above), the application is dismissed, with no order as to costs.
The application of
Nozipho Regina Pamla
The applicant in this
matter has on a number of occasions during the preceding five years
applied for a disability grant. The
current proceedings have been
instituted in respect of an application for a disability grant
submitted by the applicant in April
2009. The medical assessment
report submitted by the applicant in support of her application for
a social assistance grant stated
that in the medical officer’s
opinion she did not qualify as being disabled. For similar reasons
to those furnished in
respect of the Mbali application (dealt with
from paragraph , above), the application is dismissed, with no
order as to
costs.
The application of
Nomsebenzi Elina Tenjwayo
In this matter the
applicant applied on 18 August 2009 for a disability grant.
She was advised by letter, dated 8 September
2009, that her
application had been unsuccessful because ‘in the light of
[the medical assessment submitted in support
of her application] you
do not qualify for a disability grant’. The applicant seeks
an order directing that the respondent
‘supply the Applicant’s
attorney with full written reasons for its refusal’, failing
which, granting the applicant
leave to apply on the same papers,
amplified where necessary, for an order setting aside the
respondent’s refusal of the
application for social assistance
and directing that the award of the social grant be approved.
The medical assessment
report submitted by the applicant in support of her application
stated that the applicant did not qualify
as being disabled within
the meaning of the Act as she did not suffer from any ‘disabling
medical illness’. For
similar reasons to those furnished in
respect of the Mbali application (dealt with from paragraph ,
above), there will be
an order dismissing the application, with no
order as to costs.
The application of
Nomakaziwe Pawuli (‘Zama Plaatyi’)
In this matter the
applicant had applied to the Agency in June 2009 for a disability
grant. The nature of the relief sought by
her in these proceedings
was, in essence, the same as that sought in Mbali’s case (see
paragraph , above). The notice
of motion named the applicant
as Zama Plaatyi, whereas the founding affidavit was deposed to by
Nomakaziwe Pawuli. This shoddy
lack of attention to detail is all
too liable to occur when cases of a similar nature are brought at
the same time in a large
numbers by the same legal representatives
and on the basis of founding papers which give the clear impression
of having been
prepared on a
pro forma
template. I shall
revert to this aspect later in this judgment in regard to the
taxation of costs.
It appears from the
answering affidavit that the applicant had made an earlier
application for social assistance in the Eastern
Cape. Thus, when
she submitted an application at the Agency’s Khayelitsha
office in June 2009, it was evidently necessary,
in the
circumstances, for that office to submit a ‘transfer request’
to the office in the Eastern Cape. The applicant
was advised in
December 2009 that she had been awarded a temporary disability
grant. It is, however, not apparent from the answering
papers why
the applicant’s application could not have been disposed of
within three months of its submission in June 2009,
long before the
institution of the current proceedings on 18 November 2009.
In the circumstances an
order is made noting that the applicant’s application for a
disability grant has been determined
and directing the respondent to
pay the applicant’s costs of suit. The delays involved in
this matter were relatively
short. With that consideration in mind,
as well as those discussed earlier in general terms, I am not
disposed to grant an award
of constitutional damages.
30
The application of
Tebello Richard Sidlayiya
In this matter the
applicant averred that he made application at the respondent’s
Khayelitsha office on 22 May 2009
for an older person’s
social grant. He averred that as the institution of the current
proceedings he had yet to be informed
of the outcome of his
application. Save that his application concerned a different class
of social grant, he sought an order
in essentially similar terms to
that sought in the Mbali case (described in paragraph , above).
The answering affidavit
pointed out that the application had in fact been made at the
respondent’s Eerste Rivier office.
The respondent states that
the application was in fact approved on 3 August 2009 and that
the first payment into the applicant’s
bank account in
September 2009 was returned as ‘unpaid’. It was averred
that ‘a further and fresh payment
has now been paid out to the
applicant in January 2010’. There is no indication of whether
the respondent’s advice
had been communicated to the applicant
by registered post, as required in terms of the regulations. There
is also no indication
as to what the reason was for the non-payment
of the pension attempted in September 2009.
It would appear in the
circumstances that the applicant does not require substantive
relief. I am not persuaded that an award
of constitutional damages
is justified on the peculiar facts. In the absence of any proof
that the applicant was informed of
the result of his application by
registered post, it is, however, appropriate that the respondent be
directed to pay the applicant’s
costs of suit and it is so
ordered.
The application of
Nxolo Alice Sabane
In this matter the
applicant applied for a child support grant in respect of her minor
child, Simanye. The applicant averred
that the application was
submitted on 4 March 2009 at the pension office at Makhaza
Hall, Khayelitsha. In proceedings instituted
on 18 November
2009, the applicant sought in essence the same type of relief in
relation to her aforementioned application
for social assistance as
was sought by the applicant in the Mbali case (supra, at
paragraph ).
The respondent averred
that the applicant was already in receipt of a grant in respect of
Simanye, same having been awarded pursuant
to an application made
earlier in the Eastern Cape. The respondent averred that the
applicant had applied in January 2009 for
a transfer of the grant to
the Western Cape and that, after verification of information
processes, this had been approved; and
the applicant notified
thereof by letter, dated 28 December 2009.
The documentation
annexed to the respondent’s answering affidavit does not bear
out the averments in the body of the affidavit.
Annexure NAS1 to
the affidavit is in fact a letter, dated 28 December 2009,
which purports, according to its tenor, to
inform the applicant that
her application for a child support grant in respect of Simanye,
dated 4 March 2009, has been
approved with effect from the date
of the application. There is no explanation in the papers as to why
the applicant had not
been so informed within three months of having
submitted the application.
The administrative
process entailed in this matter was not entirely without
complication and for that reason, as well as those
generally
considered earlier,
31
I am not disposed to make an award of constitutional damages.
An order will be made
noting that the applicant’s application for social assistance
has been approved in accordance with
the content of the Agency’s
letter, dated 28 December 2009. The respondent is directed to
pay the applicant’s
costs of suit.
The application of
Nomaneji Mthini
In this matter the
applicant sought the same type of relief as that sought in the Mbali
matter (paragraph , supra). The
social assistance involved
concerned an application for a disability grant. The applicant
averred that she had submitted her
application for social assistance
on 18 February 2009.
In answer, the deponent
to the respondent’s answering affidavit averred that the
applicant had been advised by letter, dated
4 March 2009, that
her application had been unsuccessful because the supporting medical
assessment report established that
she was not disabled. It is not
established that the aforementioned communication had been sent to
the applicant by registered
post, as required in terms of the
regulations. Furthermore, the copy of the medical report attached
to the answering papers
is incomplete and this deficiency was not
cured by reference to the content of the file of original
documentation handed in by
the respondent’s counsel, without
objection from the applicants’ counsel, at the hearing.
In the circumstances no
order is made in respect of the substantive relief sought by the
applicant, but respondent is directed
to pay the applicant’s
costs of suit.
The application of
Ntomboxolo Nake
Save that the social
assistance applied for in terms of the
Social Assistance Act was
a
child support grant, the relief sought in this matter was of the
same sort as in the Mbali matter (paragraph , supra).
The
applicant averred that she had submitted the application for social
assistance on 24 June 2009.
In the answering
affidavit it was averred that the applicant had been advised by
written communication, dated 28 December
2009, that the
application had been approved. It was explained that the delay in
processing the application had been due to
the fact that the minor
child in question was not the applicant’s own child, but that
of her husband’s late wife.
A ‘verification’ and
a house visit had been necessary to determine that the minor child
lives with the applicant
and his father and that indeed care for the
child.
In the circumstances
there will be no order made in this application.
The application of
Bulelani Samson Ntyamba
This application was yet
another of those in which the relief sought was equivalent to that
applied for in the Mbali case (paragraph ,
supra). The
applicant applied for a disability grant on 11 March 2009. He
averred in his founding affidavit that his application
satisfied the
qualification criteria prescribed in the
Social Assistance Act and
stated that his disability was confirmed by the medical practitioner
who had examined him.
In response, the
respondent averred that the application for a disability grant had
been refused on 26 March 2009 due to
the fact that the
applicant did not qualify for a disability grant. The deponent to
the answering affidavit stated that a copy
of the medical assessment
report was not attached to the affidavit ‘due to the sensitive
nature of the report’, but
offered to make it available in
court if required. It was averred, however, that the report, by a
certain Dr Matjekane,
indicated that the applicant was fit for
work and therefore does not qualify for a disability grant. The
applicant did not challenge
these averments in reply, or seek to
have the medical report produced in court.
For the same reasons as
those expressed in paragraph , above, in the Mbali matter,
there will be an order dismissing the
application, with no order as
to costs.
The application of
Bulewa Matiso
In this case too, the
relief sought corresponded with that sought in the Mbali case
(paragraph , supra). The applicant in
this matter had applied
for a care dependency grant in respect of her minor child, Simo.
The application was submitted on 4 August
2008.
A care dependency grant
is given to a person if he or she is a parent, primary care giver or
foster parent of a child who requires
and receives permanent care or
support services due to his or her physical or mental disability and
such person satisfies the
eligibility requirements in terms of
s 5
of the
Social Assistance Act. In
terms of the applicable
regulations (the February 2005 regulations), the application was
required to be accompanied by a report
from a medical officer on the
prescribed form.
In the answering
affidavit, it was averred that the applicant had been informed in
writing that her application for a care dependency
grant had not
been recommended by a medical officer and that she was entitled to
appeal against the refusal of her application.
The date upon which
the aforementioned alleged communication was sent was not stated and
a copy of the letter was not attached.
The respondent averred that
a further letter was sent to the applicant on 9 December 2009
to the address indicated in her
founding affidavit.
A perusal of the
original application documentation handed up by the respondent’s
counsel at the hearing indicates that
the application submitted in
August 2008 was processed only in September 2009.
No point would be served
by making an order at this stage on the substantive relief sought by
the applicant. An order will, however,
be made directing the
respondent to pay the applicant’s costs of suit.
The application of
Patric Thobani Gwili
In this matter the
applicant applied for a disability grant on 22 October 2008.
The application was approved, but only the
basis that the applicant
was temporarily disabled. The applicant was advised thereof, and
of his right of appeal by letter
dated, 28 December 2009, after
the institution of these proceedings. In the circumstances the only
order that need issue
is one directing the respondent to pay the
applicant’s costs of suit. It is so ordered.
The application of
Nolwazi Mavis Tyu
The applicant in this
matter applied for a disability grant on 29 April 2009. On
18 November 2009, she instituted proceedings
for relief of the
same nature as that sought in the Mbali matter (paragraph ,
supra).
From the answering
affidavit filed by the respondent it would appear that at the time
the applicant submitted her application
on 29 April 2009 she
was in receipt of a temporary disability grant. The application was
unsuccessful because it was made
at a time when ‘there was a
payment in process’. It is not apparent from the answering
affidavit whether the applicant
was informed accordingly, or if so,
by what means she was so informed. It is not disputed, however,
that the applicant had submitted
a fresh application for a
disability grant on 14 October 2009. She should obviously have
disclosed this fact in her founding
papers, and also explained the
circumstances in which such fresh application came to be made. The
respondent averred that the
applicant had been informed of the
refusal of her 14 October 2009 application by letter,
dated 12 November 2009.
There is no indication that the letter
was addressed by registered post, as required in terms of the
regulations. In a replying
affidavit deposed to on 29 January
2010, the applicant stated that she had not received the
aforementioned letter of 12 November
2009.
The respondent avers
that it appears from the medical assessment report submitted in
support of the application made in October
2009 that the applicant
does not qualify for a disability grant. The copy of the assessment
report annexed to the answering
papers is incomplete, however; and
it is not possible from the part that has been attached to confirm
the relevant averment in
the answering papers.
In the context of her
submission of an application in October 2009, the proper course, if
so advised, is for the applicant to
lodge an appeal against the
refusal of that application.
In all the circumstances
the application is dismissed, with no order as to costs.
The authority of the
applicants’ attorney and related matters
Each of the applicants
in the 21 cases dealt with above was represented in the proceedings
by the same firm of attorneys. The
letters of demand that had
preceded the institution of proceedings had been addressed on each
of the applicant’s behalf
by a company, HST Administrasie
(Pty) Ltd. HST Administrasie (Pty) Ltd is not a firm of attorneys.
The company purported to
represent the respective applicants in
terms of a power of attorney executed by each applicant, which
purported, according to
its tenor, to ‘irrevocably’
appoint the company as the applicant’s agent to investigate
the circumstances of
the applicant’s application for a social
grant and appoint an attorney or counsel to institute proceedings in
the High
Court and to give such legal representatives instructions
‘without necessarily referring such matters to myself’.
The power of attorney provides further that the company shall be
entitled to be paid an administration fee of R100 once the applicant
had ‘received any money from the Department of Social
Development / SASSA’.
The content of the
aforementioned powers of attorney is objectionable on a number of
grounds, the detail of which it is unnecessary
to go into. It is
necessary to remark, however, that there would appear to be a close
connection and possible identity of interest
between the company and
the applicants’ attorney of record, Hendrik Strauss Attorney.
Various allegations, which again
I find it unnecessary to enumerate
in this judgment, were raised by the respondent and the State
Attorney concerning the propriety
of the conduct of HST
Administrasie (Pty) Ltd and its relationship with the applicant’s
attorneys of record. These were
addressed in affidavits exchanged
in connection with a so-called application in terms of
rule 7
by the respondent. I do not propose to determine the issues arising
from these allegations. It does seem to me, however, that
an
investigation into them by the Law Society would be desirable. An
order will therefore be made directing the registrar to
forward a
copy of this judgment, together with a copy of the papers in the
interlocutory application by the respondent, dated
17 February
2010 and the affidavits by Ms M.J. Luter and Ms S. Lioma,
filed in support thereof, together with
the affidavit by Mr H.J.
Strauss in response thereto, dated 22 February 2010, to the
Secretary of the Cape Law Society.
The application brought
by the respondent to challenge the authority of HST Administrasie
(Pty) Ltd was misdirected.
Rule 7
is directed at enabling a party
to litigation to challenge the authority of any person purporting,
qua
legal representative, to represent another party in those
proceedings. HST Administrasie (Pty) Ltd did not purport to act as
attorney for the applicants in these proceedings.
The respondent filed an
amended so-called application in terms of
rule 7
, three days after
the conclusion of argument in the matters. In terms of that
application sought to dispute the authority of
‘VGV Attorneys
Inc and/or Hendrik Strauss Attorney and/or HST Administrasie (Pty)
Ltd to institute proceedings and to act
for the individual
applicants herein on their behalf in these proceedings’.
Rule 7(1)
provides:
Subject to the provisions
of subrules (2) and (3) a power of attorney to act need not be filed,
but the authority of anyone acting
on behalf of a party may, within
10 days after it has come to the notice of a party that such person
is so acting, or with the
leave of the court on good cause shown at
any time before judgment, be disputed, whereafter such person may no
longer act unless
he satisfied the court that he is authorised so to
act, and to enable him to do so the court may postpone the hearing of
the action
or application.
The effect of a
challenge to authority in terms of the sub-rule is that the attorney
concerned may no longer act until s/he has
filed a power of
attorney. It seems to me that the object of the provision is
generally defeated if the request is made when
the proceedings have
almost run their course. The position might be different where the
attorney whose authority is challenged
represents a juristic person,
but it seems to me that in cases such as the present, in which the
litigants are all natural persons
who have made affidavits in
support of the relief sought in terms of the notices of motion filed
on their behalf, it would serve
no good purpose to grant the
respondent leave to pursue its challenges to authority at such a
late stage.
Taxation of costs and
the use of a standard format for the drafting of the founding
affidavits
As mentioned earlier,
these applications were brought in two batches, which were
consolidated for the hearing of argument at a
single hearing. The
applicants were all represented by the same legal representatives.
The taxing master’s attention
is directed to the fact that the
founding papers in the applications gave every indication of having
been drawn on the basis
of a template, as it may have a bearing on
the taxation of costs in those of the matters in which costs have
been awarded against
the respondent.
The applicant’s
attorney sought in an affidavit filed of record to justify the use
of a standard form for the purpose of
drafting the founding papers
in these applications. The justification was flimsy and did not
bear scrutiny in the matters before
the court. Any use of a
standard form document for such purposes must be undertaken with
particular care that it does not give
rise to an inadequate regard
to the peculiar facts of each given case, resulting in deponents
being invited to sign affidavits
that are inaccurate, incomplete or
misleading. It will be apparent from some of the remarks I have
made while treating with
each of the matters individually, above,
that I consider that the use of a standard form basis in these
matters caused such unwholesome
characteristics to manifest in many
of the affidavits filed by the applicants. This is to be
deprecated. If presented with
such papers in like cases in future,
I shall give earnest consideration to depriving the attorney(s)
responsible of some or all
of their entitlement to recover any fees
from their clients for drafting the affidavits in question.
Orders
Orders will issue as
indicated in paragraphs , , , , , , , , , , , , , , , , , ,
, and , above.
The Registrar is
directed to give notice of this judgment, and to furnish a copy of
the text of paragraphs Error: Reference
source not found -
hereof, to the Cape Bar Council, the Law Society of the Cape of
Good Hope, the Independent Advocates Association
of South
Africa and the National Forum of Advocates for the information of
the members of those bodies.
The Registrar is also
directed to forward a copy of the notice and extract referred to
in paragraph 2 of this order to the
Minister of Social Services
and to the Cape Town regional office of the Social Services Agency
at the addresses given in
paragraph (a)(i) and (ii) of the
judgment.
The Registrar is
further directed to forward a copy of this judgment, together with
a copy of the papers in the interlocutory
application by the
respondent, dated 17 February 2010, and the affidavits by Ms
M.J. Luter and Ms S. Lioma, filed in
support thereof, together
with the affidavit by Mr H.J. Strauss in response thereto, dated
22 February 2010, to the
Secretary of the Cape Law Society
for consideration in terms of paragraph of the judgment.
A.G. BINNS-WARD
Judge of the High
Court
1
See
Sibiya v Director-General: Home Affairs and Others, and 55
Related Cases
2009 (5) SA 145
(KZP) at para. [63]. Having
regard to the huge number of social grants under administration (the
2007 South African Institute
of Race Relations annual survey gave
the number as nearly 11 million persons -
Cele v
South
African Social Security Agency and 22 Related Cases
2009 (5) SA
105
(KZP) at para. [26] – and the number of 13 million
was reported in the press shortly before the hearing of this
application
in February-March 2010), the extent of inefficiency in
the Agency’s offices does not need to be particularly marked
to
give rise, potentially, to a great number of litigious
complaints.
2
See Eastern Cape Rule of Practice 21 (published in Van Loggerenberg
and Farlam,
Erasmus,
Superior Court Practice
D4-8C-D [Service 34, 2009]) and KwaZulu-Natal Practice Directive 30
(Erasmus,
Superior Court
Practice
D9-14-15). The
large number of unreported judgments of the North West High Court in
regard to this type of application that
are available on the
internet suggests that in that jurisdiction too social assistance
grants are fertile ground for litigation.
In
Van
Wyk v CEO of the South African Social Security Agency and Another
(1606/2007)
[2009] ZANWHC 7
(5 March 2009)
(
http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZANWHC/2009/7.html
) at para. [29], Sibeko AJ made reference to the ‘large
number’ of such applications before that court,
which, he
observed ‘
invariably
involve the same teams of legal representatives
’.
3
See
Vumazonke v MEC for Social Development, Eastern Cape, and
Three Similar Cases
2005 (6) SA 225
(SE) for an insight into the
effect on the Eastern Cape High Court court rolls of the
administration by the provincial department
in the Eastern Cape of
social grants under the dispensation that obtained under the Social
Assistance Act 59 of 1992. See also
MEC, Department of Welfare,
Eastern Cape v Kate
supra, at para.s [6]-[7].
4
The generally beneficial results of the introduction of the practice
regime introduced in KwaZulu-Natal after the judgment in
Cele
,
supra, were recorded in a judgment by Wallis J on 28 May
2009 in an application for a review of the practice directives.
See
Cele
and Others v South African Social Security Agency
(7940/07) [2009] ZAKZDHC 16 (28 May 2009), which may be accessed at
http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZAKZD
HC/2009/16.html
.
5
Section 14(2) and 14(3)(a) of the Social Assistance Act.
6
The 2005 regulations provided (in sub-reg. 12(2)) insofar as
relevant: ‘The Agency must, upon refusal of a grant
application,
or within a reasonable period thereafter, inform the
applicant of such refusal in writing and in the language of
preference of
the applicant, and give reasons for such refusal’.
7
The judgment may be accessed on the SAFLII website at
http://www.saflii.org/za/cases/ZANWHC/2009/11.pdf
.
8
Underlining in the original.
9
See
Senatle
at para. 11.11 – 11.17.
10
See para. .
11
Compare s 1 of the Interpretation Act where the concept of
‘contrary intention’ is also referred to in a relevant
sense.
12
Cf. the statement that Jones J is reported to have made (albeit
in the context of deciding a matter to which the 1998 regulations
applied) in
Nomasami Kulati v MEC for Social Development, Eastern
Cape
(28 March 2005) unreported judgment in SECLD case no.
512/04 at para. 4 (quoted in
Sikutshwa v MEC for Social
Development, Eastern Cape and Others
2009 (3) SA 47
(TkHC) at
para. [28]): ‘
I do not think that there is any dispute that
the Director-General’s duty to inform the applicant in writing
means that
the writing must effectively bring the decision to the
applicant’s attention in clear and intelligible terms.
’
13
The position was indeed different under the 1998 regulations and the
1992 Act, which was the regime applicable to the matter
decided by
Jones J in
Kulati
, supra. The
dictum
of Jones J
at para. 4 of
Kulati
,
relied upon by the applicants’
counsel, to the effect that s 7 of the Interpretation Act was
not applicable because
notification by post was not authorised by
the statute is therefore distinguishable. The 1992 Act did not
contain a provision
equivalent to that found in s 14(3) of the
2004 Act; and although paragraph 25 of the Schedule to the 1998
regulations prescribed
that the Director General had to inform an
applicant for social assistance in writing of the outcome of the
application, there
was no provision entitling the Director-General
to direct the notice in writing to an address furnished for such
purpose by the
applicant.
14
At para. .
15
See the long title of and the preamble to PAJA.
16
See the judgment in
Kate
at para. [21].
17
Cf.
Tao Ying Metal Industry (Pty) Ltd v Pooe NO and Others
2007 (5) SA 146
(SCA) at para. [124].
18
Section 7(1) of PAJA provides:
‘
7(1) Any
proceedings for judicial review in terms of section 6 (1) must be
instituted without unreasonable delay and not later
than 180 days
after the date-
(a) subject to
subsection (2)(c), on which any proceedings instituted in terms of
internal remedies as contemplated in subsection
(2)(a) have been
concluded; or
(b) where
no such remedies exist, on which the person concerned was informed
of the administrative action, became aware of the
action and the
reasons for it or might reasonably have been expected to have become
aware of the action and the reasons.’
19
Paragraph (c) of the relevant definition defines an
‘organ of state’ as ‘any functionary or
institution exercising
a power or performing a function in terms of
the Constitution, or a provincial constitution referred to in
section 142 of the
Constitution’.
20
As pointed out by Wallis J, his construction of the effect of
s 14
of the
South African Social Security Agency Act was
consistent with that of Ndlovu J in an earlier unreported
judgment delivered in
Shandu
v MEC for Social Welfare and Population Development, KZN
[2007]
JOL 19237
(N)
21
Cele
, supra, at para. [46].
22
It is now clear that the rather obtuse language of s 3(4)(c) of
the Legal Proceedings Act does not exclude application for
condonation in terms of s 3(4)(a) after the institution of the
principal proceedings: see
Minister of Safety & Security v De
Witt
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA).
23
See
Kate
, supra, at para.s [6] and [21].
24
See s 4 of the Legal Proceedings Act.
25
Vumazanke v MEC for Social Development, Eastern Cape
and
three Similar cases
2005 (6) SA 229
(SE) at para.s [31]-[32]
with reference to para. 25(2) of the Schedule to the 1998
regulations. (The 1998 regulations required
that the disability be
confirmed by a medical report) ;
Sikutshwa v MEC for Social
Development, Eastern Cape and Others
2009 (3) SA 47
(TkHC) at
para.s [32]-35] and
Matlakala Marriam Motsage v The Chief
Executive Officer of the South African Social Security Agency,
(28 August 2008) North West High Court in case number 1026/08. In
Motsage
the passage relied upon by the applicants’
counsel (at para. 30 of the judgment) described the reason furnished
by the
Agency as follows: ‘
The reason for refusing her
application is said to be that she is not disabled. This is not a
reason. It is a conclusion.
’ The description of the
reason furnished in that case is quite distinguishable from a reason
to the effect that the application
has been refused because the
accompanying medical report does not confirm the existence of the
alleged disability. In this respect
Motsage
is
distinguishable from
Vumazonke
and
Sikutshwa
.
26
See s 5(1)(a) read with s 9 of the Social Assistance Act
27
In
Administrative Law in South Africa
(Juta) 2007, at pp.
432-433, Professor Cora Hoexter points out ‘The position is
different when reasons have in fact been
given and the complaint is
that they are inadequate. While the terms of s 8 of the PAJA
would not seem to rule out an order
directing the administrator to
furnish further or better reasons, this remedy was judged to be
inappropriate in the
Maimela
case [
Commissioner SAPS v
Maimela
2003 (5) SA 480
(T);
2004 (1) BCLR 47].
Here, following
the provision of cryptic reasons, an order had been sought for ‘full
and proper written reasons’.
A full bench took the view that
the proper course in such a situation is not to ask for better
reasons but to have the action
reviewed. As Du Plessis J
indicated [at 487C-D], a court can order reasons to be furnished
‘only if it concludes
that the decision-maker did not give
reasons at all or that what are purported to be “reasons”
do not in law constitute
reasons.’
28
At paragraphs -.
29
I have used the date stamped on the official receipt issued by the
respondent, in preference to the date of 29 May 2009
mentioned
by the applicant in the founding affidavit.
30
At paragraphs -.
31
At paragraphs -.