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[2019] ZAKZPHC 74
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Khanyile v South African Social Security Agency (SASSA) and Others (8695/2017) [2019] ZAKZPHC 74 (18 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO. 8695/2017
In
the matter between:
WILSON BUSIZWE
KHANYILE
APPLICANT
And
THE SOUTH AFRICAN
SOCIAL SECURITY AGENCY (SASSA) 1
ST
RESPONDENT
CASH PAYMASTER
SERVICES (PTY) LTD
2
ND
RESPONDENT
GRINDROD BANK LTD
3
RD
RESPONDENT
REASONS
FOR JUDGMENT
CHETTY J:
1.
The applicant, a disability grantee in terms of the Social
Assistance
Act 13 of 2004 (the Act), brought an application so that the first,
second and third respondents cease making deductions
from his
disability grant with immediate effect, and to refrain from doing so
in the future. In addition, he sought repayment of
the sum of
R1125.00 which he contended was unlawfully deducted from the account
into which his disability grant was paid, together
with the
transactional fees amounting to R40,50 flowing from the deduction,
which amounts were debited from his account.
2.
It is not disputed that the applicant is the recipient of
a
disability grant, with grant number 243590772-9 allocated to him by
the Department of Social Welfare and Development (the Department).
The Department engaged Cash Paymaster Services (CPS) as its agent to
register grantees. CPS engaged the services of the third respondent,
Grindrod Bank, who was able to provide banking services at affordable
rates to the recipients of the social welfare grants.
3.
The case of the applicant is that from 1 April 2017 he noticed
that
instead of receiving the full payment of his grant in the amount of
R1600.00 the amount which he received into his account
was reduced as
a result of two deductions totalling R225.00. These comprised a
purchase of prepaid electricity for R200.00 and
prepaid cellular
phone airtime to the value of R25.00 These deductions occurred for
the period April to July 2017.
4.
The applicant’s contention is that Regulation 26(A) to
the Act
provides that no deduction is permitted from the disability grant
paid to a recipient except those which are made on the
written
instruction of the beneficiary. The only exception permitted is for a
funeral policy, and this occurs where specific instruction
has been
given to make such deduction.
5.
The applicant denies granting the respondents any such permission
to
effect deductions on his account and therefore contends that such
deductions are unlawful and demands that he be compensated
for such
amounts.
6.
The application was opposed by all three respondents. After
receipt
of the answering affidavits from the second and third respondents,
the applicant’s attorneys took a decision to withdraw
their
application against those respondents, leaving the first respondent,
the South African Social Security Agency (‘SASSA’),
as
the sole party opposing the relief before this court.
7.
CPS, in its answering affidavit, confirmed that it was contracted
by
SASSA and its obligation was to enrol all eligible social welfare
grant beneficiaries. Where an instruction is received from
SASSA to
process a deduction in accordance with Regulation 26A, this is done
before the beneficiary’s grant is paid into
his or her bank
account. Once this is done, according to CPS, it has no control over
what is done or deducted from the beneficiary’s
bank account.
8.
CPS categorically stated that it neither sells airtime nor
electricity to grant beneficiaries or to account holders, but that
this particular service is offered by Grindrod Bank, using a
platform
called Manje Mobile Electronic Payment Services. When the applicant’s
claim came to the attention of the owners
of Manje Mobile, a
multinational consortium called Net1 UEPS Logistics Inc., the latter
offered to reimburse the applicant whatever
amounts had been deducted
from his account. In this regard, a letter was addressed by NET1 on
behalf of Grindrod Bank dated 10
October 2017, stating the following:
‘In
an attempt to resolve the matter amicably, we are prepared to
reimburse Mr Khanyile the amount of R1125.00 for airtime
and
electricity purchases debited against his account. We make this offer
without admission of liability and in a full and final
settlement of
any claims your client has against us.’
The company requested an affidavit from the applicant confirming that
he did not purchase any prepaid airtime or electricity using
his
SASSA card or bank account, nor did he authorise any third parties to
do so.
9.
In response, the applicant’s attorneys undertook to release
the
third respondent from the application, provided Grindrod Bank
attached a copy of the above letter to an affidavit.
10. During the course
of argument, I enquired from Mr Moodley who appeared for
the
applicant, why the offer was not accepted, as to do so would have
effectively disposed of the issue on which the applicant
had come to
court. Counsel properly pointed out however, that acceptance of the
offer would have disposed of only part of the relief
sought, that
pertaining to the repayment of unlawful deductions. It would have
provided no relief for the applicant to protect
him from unlawful
deductions from his account in the future. I was satisfied with the
explanation provided.
11. While the
applicant had withdrawn its case against the second and third
respondents,
it bears noting that in the affidavit of the first
respondent, it is contended that SASSA, in terms of its arrangement
with CPS,
is obliged to pay the full amount of the grant due to a
beneficiary. In turn, CPS would deposit such monies into the account
of
Grindrod Bank, from which beneficiaries could access their monies.
SASSA however, contended that it was not responsible for any
deductions incurred by grant beneficiaries and that either CPS or
Grindrod were responsible for the unlawful deductions.
12. The contention of
the applicant is that SASSA, in terms of Regulation 26A(1),
may only
allow deductions where the deduction is authorised in writing by the
beneficiary. The applicant gave no such authority
and for that
reason, he contended, that SASSA impermissibly carried out the
deductions from his account. In the absence of any
authority, in
writing, neither SASSA nor its agents CPS or Grindrod, would have
been in a position to give effect to this deduction.
13.
Irrespective of whether there was an offer to compensate the
applicant by Grindrod,
SASSA is ultimately liable on the basis that
it is the entity that is statutorily charged with the payment of the
full amount of
a beneficiary’s social welfare or disability
grant. SASSA was challenged to produce any proof that the applicant
authorised
a deduction. It did not responded to the challenge.
Instead, it chose to oppose the relief sought by the applicant on the
basis
of a technicality - that the applicant failed to comply with
the provisions of the KZN Practice Directive 30 (the Directive) which
was issued to regulate the deluge of litigation that arose around the
refusal to award applicants social welfare grants. It is
no secret
that many unscrupulous practitioners sought to develop this into a
cottage industry, running up unnecessary costs by
dragging the
defendant to court for matters that could easily be resolved through
administrative channels. In the same way that
the Directive has
managed the litigation in relation to social welfare grants, so too
has this Division regulated the litigation
in relation to matters
concerning the Road Accident Fund.
14. Flowing from the
decision of Wallis J in
P. N. Cele v The South African Social
Security Agency and Others
, Case No 7940/2007, delivered on 28
May 2009, the following previous directive has emerged:
‘(a) Before there is any contemplation of litigation an
appropriate letter of demand should be addressed either to SASSA
or
to the Minister of Social Development depending upon the nature of
the claim. That letter of demand must set out the identity
of the
claimant and the basis of the claim and provide sufficient
information to enable the claim to be investigated and dealt
with
appropriately.’
15. Mr
Khuzwayo
,
who appeared for the first respondent, SASSA, confirmed upon my
enquiry that his argument went no further than the procedural
non-compliance with the Directive. The stance of the applicant was
that the said Directive did not apply to this application as,
properly interpreted, the Directive was intended for those applying
for social welfare grants or who wished to appeal against the
decision of the department. The applicant’s attorney wrote to
all three respondents setting out precisely the basis of the
applicant’s claim. There was no favourable response to that
demand. The applicant’s attorney was of the view that he
was
not bound to comply with the Directive. In this regard, it is
important to have regard to the following provisions of item
30.2 of
the Directive which states:
‘If
no satisfactory response follows from the letter of demand so that
there is a need to contemplate litigation, before an
applicant may
issue application papers out of the Registrar’s office
in
an application seeking relief relating to or arising from an
application for a social assistance grant
. . . ’
16. I am in agreement
with counsel for the applicant that the Directive relates
to
applications for grants, or appeals against a decision of the
department. The present application falls into neither category.
The
applicant is an existing beneficiary of a social welfare grant. His
complaint relates to unlawful deductions, in addition to
which he is,
in essence, seeking interdictory relief against the first respondent
from effecting any deductions from his grant
in the future, other
than those which he has authorised in writing.
17. Mr Khuzwayo
contended that the Directive applies to any and all applications
associated with a social welfare grant. In this regard, he relied on
provision 30(b)(vii) of the Directive, which provides for
the details
of a notice to be submitted to the office of the State Attorney prior
to embarking on any litigation, and in particular
the words ‘or
any other complaint’. It states:
‘the nature of the applicant’s complaint, such as that an
application has been made and not processed; an application
has been
refused and the grounds of the refusal or an appeal (or both) are
sought; or that a grant originally made has been withdrawn
and the
applicant seeks reasons for the withdrawal or the reinstatement of
the grant (or both)
or any other complaints’
(My
underlining)
18. I am not
persuaded by the argument that the words ‘or any other
compliant’
is a panacea or a catch-all for any and all disputes
relating to social welfare grants to have to comply with the
Directive. In
my view, those words are read out of context. It would
have been impossible for the Directive to have considered every
conceivable
issue that would stem from an applicant encountering
problems with his or her application for a social welfare grant. It
is for
that reason, in my view, that the words ‘or any other
complaint’ were used. If the Directive intended to apply to
each
and every application associated with social welfare grants, it
would be expressly stated. I am unable to agree with Mr
Khuzwayo
that a judgment declaring that this particular type of
application, pertaining as it does to unlawful deductions from social
welfare
grants, will ‘open the flood gates’ to litigants,
by-passing the provisions of the Directive. Apart from the obvious
cases falling within the reach of the Directive, there will be those
cases in which the court will have to scrutinise the facts
and the
relief sought to determine whether the nature of the claim warrants
that it comply with the Directive. In the result, the
opposition of
the first respondent, relying on a procedural point, had failed.
19. In so far as
costs are concerned, the general rule that costs should follow
the
result should apply. I enquired from Mr
Moodley
why this
matter did not belong in the Magistrate’s Court as the claim is
for an amount under R2000. The reason for the need
to litigate out of
this court lay in the applicant’s relief in seeking an
interdict against the first respondent that it
would not, in the
future, permit unlawful deductions from the applicant bank account. I
am satisfied that the matter was properly
before this court and I see
no reason why the applicant should not be entitled to his costs on a
party and party scale. I should
add that the applicant initially
sought attorney and client scale. In light of SASSA’s
opposition to the applicant’s
claim, I did consider granting
costs on an attorney-client scale, on further reflection and in my
discretion I saw sought no need
to make a punitive cost order. Organs
of state are duty bound to uphold the constitution and protect the
poor and vulnerable in
our society. The amount claimed by the
applicant may be considered trifling to some officials. It is,
however, an amount that allows
a fellow human being and citizen to
survive for a month, with dignity. The manner in which the officials
treated the applicant
at the Hammersdale pay-point when he attempted
to establish the basis for these unlawful deductions, displays their
scant disregard
for his rights. It is not surprising that SASSA has
no record of a complaint having been filed by the applicant with
regard to
these deductions. As Ackerman J in
Fose v Minister of
Safety & Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC), stated:
‘
Particularly
in a country where so few have the means to enforce their rights
through the courts, it is essential that on those
occasions when the
legal process does establish that an infringement of an entrenched
right has occurred, it be effectively vindicated’.
20.
For these reasons, on 13 November 2019 I issued the order below:
20.1 That the First
Respondent is ordered to cease making, or allowing to be made,
deductions
from the Disability Grant of the Applicant with immediate
effect, and to refrain from doing so until such time as the
Applicant,
in writing, requests a deduction to be made;
20.2 That the First
Respondent is ordered to repay to the Applicant the sum of R1 125-00,
which amount includes the total of all deductions made against the
Applicant’s Disability Grant to date, with interest to
be added
thereon at the prescribed rate from date of deduction to date of
payment;
20.3 That the First
Respondent is ordered to repay to the Applicant the sum of R40- 50,
which amount includes the total of all transaction fees charged
against the Applicant’s grant to date, with interest to be
added thereon at the prescribed rate from date of deduction to date
of payment;
20.4 That the First
Respondent is ordered to pay the costs of this Application, on the
Scale as between Party and Party.
CHETTY J
Appearance
For
the Applicant:
Mr S Moodley
Instructed
by:
Narain Naidoo & Associates
Address:
307 Prince Alfred Street
Pietermaritzburg
Email:
narain@narinnaidoo-assoc.co.za
For
the Respondent:
Mr T Khuzwayo
Instructed
by:
The State Attorney
c/o
Cajee Setsubi Chetty Inc
Address:
195 Boshoff Street
Pietermaritzburg
Ref:
527/000060/17/K/P39
Date of Judgment:
13 November
2019
Date of Reasons:
18 November 2019