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[2019] ZAECMHC 69
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Mxego v South African Social Security Agency and Another (3719/2016) [2019] ZAECMHC 69 (5 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE NO.
3719/2016
Heard on:
24 October 2019
Delivered: 05 November
2019
In
the matter between:
THEMBINKOSI
MXEGO
Applicant
And
THE
SOUTH AFRICAN SOCIAL SECURITY AGENCY
1
st
Respondent
THE
MINISTER OF SOCIAL DEVELOPMENT
2
nd
Respondent
JUDGMENT
ZONO AJ
[1]
The applicant launched this application in terms of Rule 53 of the
Uniform Rules of
this court in terms of which he sought the following
relief:
(1)
The 1
st
respondent’s administrative action or
decision of refusing or dismissing the applicant’s disability
grant application
be and is hereby reviewed corrected and set aside.
(2)
The first respondent be and is hereby directed to approve the
applicant’s disability
grant application with a temporary
status and pay the applicant’s social grant for a period of six
months commencing on 24
June 2015.
(3)
The first respondent be and is hereby directed to, within one month
of the grant of this
order, effect payment of the applicant’s
back pay amount for a period of six months aforesaid or to pay the
applicant’s
grant monies on a monthly basis for a period of six
months and to advise the applicant’s attorneys in writing that
it has
done so.
(4)
In the alternative, the applicant’s application aforesaid be
and is hereby remitted
to the first respondent for reconsideration
with or without directions.
(5)
The applicant be and is hereby exempted from the obligation to
exhaust the internal remedies
as laid out in any other law.
(6)
The applicant be and is hereby condoned for the late lodging of this
application, should
it be necessary.
(7)
The first respondent be and is hereby directed to pay costs of this
application with the
second respondent paying costs hereof only in
the event of opposing the grant of the relief sought herein.
(8)
That the Honourable Court grants such further and/or alternative
relief.
[2]
Only first respondent apposed the application. The first
respondent filed its
Notice to oppose, followed by a Notice in terms
of Rule 6(5) (d)(iii) of the Uniform Rules. No answering
affidavit was filed
by the first respondent to meet applicant’s
factual allegations contained in applicant’s founding
affidavit.
The meaty part of the Rule 6(5)(d)(iii) Notice is
found at paragraph 2 there which reads as follows:
2.1
The application is mainly premised on the contention that the
applicant is disabled as envisaged
in the
Social Assistance Act 13 of
2004
. The alleged disability is purportedly based on an alleged
medical assessment and report by a Dr BJ Mankanku, which is allegedly
attached to the applicant’s application papers as annexure A.
22.
Contrary to applicant’s contention, annexure A is neither a
medical report by Dr Mankanku nor
confirmation or declaration of
applicant’s alleged disability. It is a report by a Dr
Mantlaka which specially certifies
that the applicant is in fact
according to his assessment not disabled. The finding that the
applicant is not disabled and
does not qualify for a disability grant
as envisaged in the Act is further confirmed by a Dr Lokwe whose
finding is also annexed
in the application papers.
2.3
In the circumstances no proper basis has been laid on these papers
for challenging the 1
st
respondent’s rejection of
applicant’s disability grant application. Such rejection
is fully consonant with all
the medical reports on record. The
decision is not liable to attack on any of the review ground cited by
the applicant in
the application.
[3]
Reference to Dr Mankanku in the founding affidavit has since been
corrected and explained in the
supplementary affidavit delivered on 9
November 2018 to be a reference to Dr Mantlaka. The matter came
for argument on the
understanding that the report referred to in the
applicant’s papers is that of Dr Mantlaka dated 19 February
2014 marked
as annexure “A’ annexed to the founding
affidavit.
[4]
The applicant alleges that on 24 June 2014 he applied for a
disability grant with
the first respondent and in the process of
doing that he underwent medical assessment as envisaged in the
Relevant Regulations
promulgated in terms of the
Social Assistance
Act. He
alleges that he was medically assessed on 14 January
2014 and as a result of that the Medical Assessment: Disability Grant
Form
was completed by Dr Mantlaka and his findings were recorded in
the form. Applicant describes the form as a “foregoing
form.” The applicant categorically state as follows:
“
subsequent the
foregoing assessment
my application for the grant was considered by the
assessment panel of the Agency
”. Applicant’s
application for disability grant was refused by the Agency on the
same date of application, namely
24 June 2014. Reasons for
rejection of the disability are set out in the letter of rejection as
follows: “
your retro viral disease is treatable and can be
controlled on regular medication, causing little, if any, permanent
functional
impairment
”.
[5]
These facts are common cause. The assessment report by Dr
Mantlaka preceded
the application and its purpose was to inform by
way of recommendation an outcome of disability. It is a common
cause that
that document is with the first respondent. The
applicant makes this pertinent allegation in paragraph 30 of his
founding
affidavit “
I was not physically examined by another
doctor. Doctor Mankanku (referring to Dr Mantlaka) is the only
medical doctor nominated
by the Agency who saw me and made his
findings sequel the actual medical assessment or examination”
.
The applicant makes this assertion after having made reference to the
medical assessment report by Dr Mantlaka annexed as
Annexure A to the
papers. This put paid to any suggestion that there might have
been another report that might have probably
been with the first
respondent when the disability grant in question was being
considered. I say this because a lot of argument
on behalf of
the first respondent sought to suggest that there might have been
another report that might have been obtained when
the applicant was
in the process of making the application. Part of the basis for
that argument was that Dr Mantlaka’s
report was made long
before the application was made and it was referred to as an old
report. That was a speculative argument
not based on any
version of fact.
[6]
A failure by a party to deny an allegation was aptly dealt with in
the Case of
Makhuva and others v Lukoto Bus Service (Pty) Ltd and
Others 1987(3) SA 376 (V) at 386
the learned Judge placed
reliance on the Case
of Mc Williams v First Consolidated
Holdings (Pty) Ltd
1982(2) SA 1(A) at 10E
stated as follows: “
where it is stated that whilst
quiescence is not necessarily acquiescence; a party who does not make
a firm repudiation of
an allegation when bound to do so incurs
the risk of an adverse inference being drawn against him. As
the admissions, denials,
confessions and avoidance in pleadings, see
Rules 22(2)
and
25
(1) and as to affidavits in Motion proceedings, see
Rule 6(4)(d)
and
6
(4)(e). it is clear that affidavits really
constitute both pleadings and the evidence in support of the
allegations made and
the rules as to pleadings should, to that
extent, be applied to affidavit
.
I respectfully agree
with the learned Judge that a reply of noting the contents is an
admission thereof. Where a litigant
wishes to dispute a fact
alleged he is under a duty to deny it.”
The first
respondent had no evidence nor pleading to gainsay what has
pertinently been alleged in the applicant’s founding
affidavit,
accordingly the argument about a possible report that might have been
in the possession of the first respondent, when
applicant’s
application was considered, other than the one of Dr Mantlaka,
is bereft of any merit. To the contrary
it was submitted on
behalf of the applicant that Dr Mantlaka’s assessment report
was the only report used to support applicant’s
application for
disability grant made on 24 June 2014.
[7]
In any event if there was any other information or evidence that was
in the possession
of the Agency when applicant’s application
for a grant was being considered, it was the duty of the Agency to
bring that
information or evidence to the court so that the
rationality of its decision may be viewed against what was considered
at the time
of taking the decision. I find support for this
proposition in the case of
Kalil NO and Others v Mangaung
Metropolitan
Municipality and Others 2014(5) SA 123
(SCA) Para 30
where Leach JA had this to say “….
This is public interest litigation in the sense that it examines
the lawfulness of the exercise by public officials of the obligations
imposed upon them by the constitution and National legislation.
The function of public servants and government officials
at national,
provincial and municipal levels is to serve the public and the
community at large has the right to insist upon them
acting lawfully
and within the bounds of their authority. Thus where, as here,
the legality of their action is at stake,
it is crucial for public
servants to neither be coy nor to play fast and loose with the
true. On the contrary, it is their duty to take the court into
their confidence and fully explain the facts so that an informed
decision can be taken in the interest of the public and good
governance. As this court stressed in
Gauteng Gabling
Board and Another v MEC for Economic Development, Gauteng
,
(Footnote omitted) our present Constitutional Order imposes a duty
upon state officials not to frustrate the enforcement by Courts
of
Constitutional rights.”
[8]
The Agency is doing exactly what it is eschewed from doing. It
does not explain
anything to the court and its failure to take this
court into its confidence is sought to be justified by the fact that
it is the
applicant who must prove its case. The Agency does
not care about proper adjudication of this matter and the search for
finding
truth. All what appear to be its concern is the
dismissal on technical grounds of the case and frustration of the
enforcement
of a constitutional right enshrined in Section27(c) of
the Constitution. The Agency is quite oblivious of the
heightened
duty it has to this court, that of fair adjudication of
cases to ensure proper service to the public. The stance taken
by
and the manner in which the Agency has dealt with this matter
simply shows a lack of appreciation of the values and principles
governing public administration.
Section
195 of the Constitution
obliges the public administration to be accountable and to act
transparently. That is the responsibility the respondent has
failed to shoulder. Every organ of state is obliged to assist
and protect the courts to ensure, inter alia, accessibility
and
effectiveness of the courts.
[1]
The effectiveness of the courts can mostly be achieved with the
assistance of the organs of state, like the Agency.
[2]
It is unacceptable that an organ of state, especially if it a party
in litigation, can be at large to frustrate the attainment
of the
justice and access to court contrary to what
Section
165(4) read with Section 34 of the Constitution
are enjoining it to do.
[9]
Allied to the above is the nature of the proceedings. The
applicant invoked
Provisions of Rule 53 of the Uniform Rules for the
Agency to dispatch within the stated time record of proceedings and
reasons
that might possibly underpin the decision. No record of
proceedings nor reasons were given by and or on behalf of the
Agency.
Suggestions that there might have been another medical
report other than that of Dr Mantlaka is disingenuous and cannot lie
on
the mouth of the Agency to say that as it is the custodian of the
documents relating to social grant applications. In
Hellen
Suzman Foundation v Judicial Service Commission
[3]
the majority observed that:
(i)
“
the filing of the full record furthers an applicant’s
rights of access to court by ensuring both that the court has the
relevant
information before it and that there is equality of arms
between the person challenging a decision and the decision maker;
(ii)
a Rule 53 record is an invaluable tool in the review process which
may help (a) to
shed light on what happened and why;(b) to give the
lie to unfounded ex post facto justification of the decision under
review;
(c) in the substantiation of as yet not fully substantiated
ground of review; (d) in giving support to the decision- maker’s
stance; and (E) in the performance of the reviewing court’s
function
.”
Agency’s failure to file record and reasons thwarts the
objective of Rule 53 mechanism. Elsewhere in
the judgment the
majority
[4]
held that “
our
courts have recognised that rule 53 plays a vital role in enabling a
court to perform its constitutionally entrenched review
function,
with the result that a litigant’s right in terms of Section 34
of the Constitution to have a justifiable dispute
decided in a fair
public hearing before a court with all the issues being ventilated
would be infringed
.”
In the light of the aforesaid there can be no dispute that Agency’s
effort is contrary to the aspirations of
the constitution
[5]
.
The Agency is definitely playing coy or fast and loose with the
truth. The Agency has failed in its duty to make available
to
the court all the documents that might have been used in the
application for social grant and is therefore estopped from relying
on that failure to succeed in this case.
[10]
That having been said I now turn to deal with Annexure A which
appears to be the sole substantial
document before the Agency at the
stage of the application for disability grant. Part C of the
medical assessment form deals
with history and confirmation of
impairment. The doctor records that the applicant is receiving
treatment from clinic.
Part D discloses that the applicant is
suffering from Retro viral disease on HAART. It further appears
that there were old
clinic cards before the doctor. Undisclosed
comments on referral clinical findings were agreed to by the doctor.
Part
E contains recommendation where severity of impairment is
recorded to be none. Under certification the assessing doctor
certifies
the applicant not disabled. Under Social Assistance /
Grants Recommended; Temporary Disability Grant was recommended for a
period of six months.
[11]
Faced with this medical assessment report the Agency, without any
recommendation from the expert,
rejects the application on the basis
that his Retro viral disease is treatable and can be well controlled
on regular medication.
There is no rational connection between
the recommendation and the decision. But there is connection
between the certification
and the decision. The question that
arises is whether it is acceptable to choose a part of a
contradictory report, and not
the other. The answer depends on
the powers the Agency reposes.
[12]
Section 14(2) of
Social Assistance Act No 13 of 2004
provides
that “
in considering an application made in terms of
Subsection (1), the Agency may conduct an investigation and request
additional information.”
This power corresponds or
concurs with the power conferred in
Section 4(1)(b)
of
South
African Social Security Agency Act No.9 of 2004
(SASSA Act)
.
The section provides that “
the Agency must ……collect,
collate, maintain and administer such information as is necessary for
the payment of Social
Security…..”
What arises
immediately is the question that seeks to ask if it was possible for
the Agency to take a decision in circumstances
where a medical
assessment report was contradictory in every material respect.
It is in circumstances like those that the
two pieces of legislation
enjoins the Agency to investigate a matter. No rational
decision could have been taken where the
basic underlying document,
which is the medical assessment report, is fraught with internal
contradictions.
[13]
Section 14(2)
of
Social Assistance Act is
equipped with an internal
remedial measure. The method and manner of investigation is
provided for in the section itself,
namely, “
to request
additional information.”
The information may be
requested from any person who may assist, furnish the required
information. That is what I think is
meant by a duty to
“
collect and collate the information for the payment of
social assistance”
as envisaged in
Section 4(1)(b)
of SASSA
Act. The first person to be requested to give additional
information clarifying the glaring contradictions in the
report was
Dr Mantlaka, the assessing doctor. He should have been invited
to shed light with a view to eliminate the glaring
mutually
destructive opinions in one composite report.
[14]
Another person who should have been the primary target of request is
the applicant himself.
The reason for that is not far to seek.
Dr Mantlaka refers in his assessment report to old clinic cards.
Those cards
are in the custody and possession of the applicant.
They could offer very good information about the enduring nature of
applicant’s
medical condition. The age of the cards would
give beneficial information starting way back to the current period
and how
the applicant had been responding to the treatment.
Once that information is at the disposal of the Agency, the Agency
“
collates”
it. To collate information
involves critical examination of the information and serious
application of mind. It entails
weighing up of and comparison
between different sets of information. The aforesaid represents
the purpose of the empowering
provision, to be specific, and in
general the legislation. To this end it is safe to find that
the impugned decision was
not rationally connected to the purpose of
the empowering provision, and accordingly it is rendered assailable.
The decision
offended doctrine of legality and is therefore
irrational.
[15]
The Agency did not seek to place before this court circumstances
which confronted it which might
have caused it not to invoke the
imperative provisions of Section 14(2) of
Social Assistance Act and
Section 4(1)(b)
of SASSA Act. There is absolutely no basis for
Agency’s failure to invoke those provisions especially in
compelling
circumstances like the present.
[16]
There is no basis laid for Agency’s choice to align itself with
one part of the report
over the other. The Agency should not
have aligned itself with information under certification in Part E of
the report when
there is contradictory information under Social
Assistance / Grant recommended. It should have sought to
reconcile and eliminate
the contradiction first and there after take
a decision. That is not without statutory recognition.
Section 14(3) of
Social Assistance Act deals
exactly with that.
Section 14(3)
deals with taking of decision in favour of the
applicant
[6]
and a decision
against the granting of social grant
[7]
.
The statutory set up (sequence or chronology) suggests that Agency
must first investigate before taking the decision
[8]
.
[17]
On a conspectus of all the aforesaid I find that the Agency took the
decision arbitrarily and
or capriciously. In the light of the
Agency’s failure to observe provisions of
Section 14(2)
of
Social Assistance Act and
Section 4(1)(b) of the SASSA Act I find
that it was not authorised to take that decision by the empowering
provision. The
Agency failed to follow a mandatory, material
procedure or at least a condition prescribed by
Section 14(2)
of the
Social Assistance Act read
with
Section 4(1)
(b) of SASSA Act, where
it should have. The exercise of the power when the decision was
taken is so unreasonable that no
reasonable person could have so
exercised the power in the manner the Agency did. In the
circumstances the decision is liable
to be judicially reviewed and
set aside
[9]
.
[18]
During argument the applicant asked me to grant an order remitting
the matter to the Agency for
reconsideration with or without
directions. The relief in Paragraph 2 and 3 of the Notice of
Motion was abandoned.
In any event I would not have had
jurisdiction to direct the Agency to approve applicant’s
disability grant, and as to when
that must be paid. That would amount
to usurping the administrative functions of the Agency, which conduct
is an offence to the
doctrine of separation of powers. The
Constitutional Court has preferred to refer to this as notion of
respect. In
Bato Start Fishing (Pty) Ltd v Minister of
Environmental Affairs 2004(4) SA 490(CC) Para 48
the
Constitutional Court remarked as follows: “
court should be
careful not to attribute to itself superior wisdom in relation to
matters entrusted to other branches of government.
A court
should thus give due weight to findings of fact and policy decisions
made by those with special expertise and experience
in the field.
A decision that requires an equilibrium to be struck between a range
of competing interests or considerations
and which is to be taken by
a person or institution with specific expertise in that area must be
shown respect by the courts.
Often a power will identify a goal
to be achieved but not dictate which route should be followed to
achieve that goal. In
such circumstances a court should pay due
respect to the route selected by the decision maker”.
Those
are matters requiring discretion of the administrative functionary.
[19]
I find that exceptional circumstances do exist to warrant exemption
of the applicant from the
obligation to exhaust internal remedies
provided for in
Section
18
of the
Social Assistance Act,
and
I find that it is in the interest of justice to do so
[10]
.
The applicant, not only that he is not sufficiently educated and
poor, he was tremendously frustrated and inconvenienced
by the
Agency. The Agency dogmatically insisted that the
applicant must apply for a new and or fresh grant instead
of pursuing
the internal remedies. That intransigent attitude of not
wanting to assist a poverty stricken citizen of our
country cannot be
tolerated and promoted in our courts. This court is for both
haves and have nots. It is a home for
all. The plight our
people are going through cannot be down played any longer. I
also find that a proper case has been
made out for condonation of
late filing of this application. There was no opposition to the
granting of the relief referred
to herein this paragraph.
[20]
Sequel to paragraph 21 above, I find that there is every reason to
remit the matter as the proceedings
before the Agency are not subject
of this review application. I have been asked only to set aside
the decision and not the
proceedings. The practical effect of
setting aside only the decision is that the proceedings are still
extant.
[11]
The danger
associated with failure to give directions lies with the possibility
that the Agency, may take for ever to consider
applicant’s
application. The Agency may stymie the finalisation of the
application for grant, regard being had to the
intransigent Stance
taken so far. It is therefore compelling to remit the matter
with directions in terms of
Section
8(1)(c)(i)
of PAJA.
[21]
In the result the following order shall issue:
(1)
the first respondent’s decision dated 24 June 2014, rejeccting
applicant’s application
for disability grant is hereby reviewed
and set aside.
(2)
applicant’s application for disability grant dated 24 June 2014
is hereby remitted
for re consideration by the first respondent.
(3)
the first respondent is hereby directed to reconsider applicant’s
application for
disability grant dated 24 June 2014 and take a
decision within 60 days of this order.
(4)
that the first respondent is ordered to pay costs of the application.
_________________________
A.S.
ZONO
JUDGE
OF THE HIGH COURT (ACTING)
APPEARANCES:
Counsel
for the applicant
:
Adv.
Matoti
Instructed
by
: SR
MHLAWULI & ASSOCIATES
MTHATHA
Counsel
for the 1
st
Respondent :
Adv. P.H. Zilwa S.C.
Instructed
by
: THE
STATE ATTORNEY
C/O POTELWA & COMPANY
MTHATHA
[1]
Section 165(4) of the Constitution.
[2]
Section 14 of
South African Social Security Agency Act No. 9 of
2004
, Section 239 of the Constitution.
[3]
2018(4) SA1 (cc) (d)10-12.
[4]
Hellen Suzman Foundation v Judicial Service Commission Para 14.
[5]
Section 34, 165(4) and 195.
[6]
Section 14(3)(a) of
Social Assistance Act
>
[7]
Section 14(3)(b)
of
Social Assistance Act.
[8
]
Section 14(2)
and (3) of
Social Assistance Act.
[9
]
Section 6(2)
(a) (1),
Section 6(2)(b)
, Section6( 2)(e)(iv) and
Section 6(
2
)(h) of PAJA.
[10]
Section 7(2)
(c) of PAJA.
[11]
Matiwane
v President of the Republic of South Africa and Others 2019(3)ALL SA
209 Para 27