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[2018] ZAECMHC 16
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Mwelase v Minister of Social Development and Others (CA74/16) [2018] ZAECMHC 16 (22 March 2018)

IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
Case No: CA 74/16
REPORTABLE
In
the matter between:
NOKHOLEKILE
MWELASE
Appellant
and
THE
MINISTER OF SOCIAL DEVELOPMENT
First
Respondent
THE
CHAIRPERSON OF THE INDEPENDENT
TRIBUNAL
FOR SOCIAL ASSISTANCE
APPEALS
Second
Respondent
SOUTH
AFRICAN SOCIAL SECURITY
AGENCY
(SASSA)
Third
Respondent
JUDGMENT
TOKOTA
J:
[1]
Section 27 of the Constitution of the Republic of South Africa Act
1996 (the Constitution) provides that;
1.1
everyone has the right to have access to sufficient food and water
(s.27 (1) (b));
1.2
everyone has the right to social security, including, if they are
unable to support themselves and their dependants,
appropriate social
assistance (s.27 (1) (c));
1.3
the State must take reasonable legislative and other measures, within
its available resources, to achieve
the progressive realisation of
each of these rights(s.27(2)).
[2]
In order to fulfil its Constitutional obligation to assist in
securing the well-being of the people of the Republic and to provide

effective, transparent, accountable and coherent government in
respect of social assistance for the Republic as a whole Parliament

enacted the Social Assistance Act No.13 of 2004(the Act) which
commenced on 1 April 2006.
[3]
Prior to the commencement of the Act the appellant applied, and, was
granted a social assistance grant for permanent disability
in terms
of the then Social Assistance Act No. 59 of 1992. She enjoyed the
benefit of the grant until May 2012.
[4]
In February 2012 appellant was invited via an undated letter to
present herself for medical assessment at Libode clinic/hospital
on
24 February 2012 and to complete medical review documents on or
before the 29
th
of February 2012. She attended the assessment
where
she met a medical doctor. She alleges that the medical doctor did not
examine her but simply looked at her and informed her
that there was
no reason for her to receive the grant as she ‘looked healthy’.
The doctor remarked that people who
got grants in 2002 through a
certain
doctor
Mafanya got it fraudulently.
[5]
Subsequent to the review referred to above she was personally served
with an undated letter notifying her that in view thereof
that it has
been found that she no longer qualified for the disability grant her
social grant would be suspended within 90 days
from the date of the
letter. In this letter she was advised that she had a right to make
representations in person, within 30 days
from the date thereof, at
her local SASSA office giving reasons as to why the suspension should
not be implemented. She was further
advised that if she failed to
make such representations within the stipulated time frame her social
grant would be suspended on
17 April 2012.
[6]
The appellant did not make representations as advised. The grant was
then suspended. According to the assessment report of the
second
respondent, which is not challenged,
the
appellant received payment of the grant until May 2012 and the grant
was cancelled in June 2012. When
the
grant was
stopped
the appellant approached the office of the third respondent to
enquire as to what was happening. She was advised to re-apply
for the
restoration of the grant. Instead of re-applying she approached
lawyers to attend to her complaint. Her lawyers made representations

on her behalf seeking the reconsideration of the decision to
terminate her grant.
[7]
It is not clear from the papers as to when exactly all these events
took place and the application for reconsideration has not
been
attached to the papers. After considering the representations the
third respondent dismissed the application for reconsideration
of its
earlier decision to terminate the grant on 14 November 2012. The
outcome is recorded in the application form for reconsideration
dated
14 November 2012.  In this form the appellant was advised of her
right to appeal to the first respondent within 90 days
of receipt
thereof.
[8]
On 18 March 2013, outside the 90 day period, she lodged an appeal to
the first respondent in terms of section 18(1A) of the
Act against
the refusal of the application for reconsideration. The first
respondent appointed an Independent Appeal Tribunal,
of which the
second respondent was the chairperson, to hear the appeal in terms of
section 18(2)(b) of the Act. Henceforth the
second respondent will be
referred to as the Tribunal.
[9]
The Tribunal considered the appeal and decided to dismiss it on the
grounds set out hereunder as contained in a letter dated
16 August
2013. These were the grounds.
“
1
The medical officer confirmed that you do have the following medical
condition(s) Hypertension.
Arthritis and Peptic Ulcer.
2
On the basis of medical records available it was found that you are
able to enter the open
labour market and to be gainfully employed
3
Procedure followed by SASSA during the review and suspension of your
grant was found to be
within the parameters of the Regulations.”
The
manner in which the appeal was considered and the documents which
were before it are recorded in its Appeal Adjudication and
Finding
report. For the assessment of the medical condition of the appellant
the Tribunal relied on the findings of the Tribunal
Medical
Practitioner (as per medical assessment report and supporting medical
evidence and records).
[10]
The appellant approached the court
a
quo
seeking
an order reviewing and setting aside the decision of the Tribunal in
dismissing her appeal. The Court
a
quo,
per Griffiths J, dismissed the application with costs. This appeal is
with leave of the Supreme Court of Appeal.
[11]
It was submitted at the hearing of this appeal by Mr Matoti, who
appeared for the appellant, that the review was directed at
the
procedure followed by the third respondent. He submitted
that
the letter which invited the appellant to attend medical assessment
on
24 February 2012, which was the same day that she received it, did
not give her enough opportunity to prepare for the review.
The review
in the Court
a
quo
was
pegged on this letter principally on two grounds. First, it was
argued that
the
letter gave the appellant a short notice and for this reason the
appellant was not afforded sufficient opportunity to prepare
herself
for the examination by the doctor. Second, the letter was written in
English, a language which was not understood by the
appellant.
[12]
During the debate at the hearing of this appeal Mr Matoti had
difficulty in explaining what preparations were needed for the
person
to present herself for medical examination. He contended that the
appellant had to prepare medical documentation. The letter,
which is
the subject of complaint, was not attached to the founding affidavit.
It was pointed out to him,
however,
that
according to the assessment report of the Tribunal the letter
recorded that
the
appellant had a week within which to prepare the documents in that
she had to submit them on or before the 29
th
of February 2012. He correctly conceded that in the light thereof it
cannot be said that she did not have sufficient opportunity
to
prepare the documentation, if she so wished. That then takes care of
the insufficient time.
[13]
Mr Matoti argued further that, as the letter explaining her right to
make representations was written in English, the appellant
could not
understand the contents thereof. Accordingly, so the argument ran,
the Tribunal ought to have found that the process
was irregular.
Again, during the debate, Mr Matoti was constrained to concede that
there is no averment in the record that this
was ever raised with the
Tribunal or that the Tribunal was advised of the appellant’s
inability to understand English. The
record did not contain the
document which contained the grounds of appeal and for this reason he
could not argue that the Tribunal
had a duty to consider this
complaint. He conceded that this point also fell into the cracks of
the first point and therefore he
could not persist with it.
[14]
A further problem that the appellant had was that the process that
was challenged was done by the third respondent. In the
founding
affidavit the appellant expressly disavowed any relief against the
third respondent. For this reason the third respondent
was not part
of the proceedings as it elected, quite correctly, in the light of
the stance of the appellant, to abide the decision
of the Court.
[15]
In the light of the above the appeal collapsed at the debate stage as
no blame could be placed at the door of the Tribunal.
In any event,
as I see it, this letter, which was the subject of the complaint, was
a preliminary step taken to review the grant
in order to ascertain
whether or not the continuation thereof was still warranted.
[1]
This invitation was made by the third respondent and not by the
Tribunal. When the appellant was told by the doctor that she ‘looked

healthy’ and therefore did not deserve the grant she ought to
have been worried immediately. She did nothing about it. Thereafter,

she received a letter informing her that her grant was likely to be
suspended within 30 days unless she made representations within
30
days. A man whose rights are threatened should act swiftly to protect
them and not wait for others to do so for himself/herself.
[2]
[16]
In the undated letter that was handed to her she was informed that
her grant was going to be suspended on 17 April 2012 should
she fail
to make representations. The letter was given to her in person. She
signed for it by affixing her thumb print. It is highly
improbable
that when she was handed the same no explanation was made about it.
However, her case is not concerned about this letter
as highlighted
above.
[17]
If regard is had to the record, the Tribunal considered all the
information that was placed before it including the medical
report
made by Dr Mzamane relating to the disability of the appellant.
Procedurally and legally I find no fault on the part of
the Tribunal.
[18]
Although, in the light of the above concessions it is not necessary
to deal with the complaint relating to the language of
the letter I
deem it expedient to express my view about it. I will also deal
briefly with the procedure because it seems to me
that there was
confusion in the founding affidavit. The appellant made submissions
that she was not given sufficient opportunity
to make
representations.
[19]
As far as I am aware in terms of the Constitution it is the accused
person in a criminal trial who has a right to be tried
in a language
that he/she understands or, if that is not practicable, to have the
proceedings interpreted in that language. Without
saying it should
not be done, in my opinion it would be onerous to require the State
whenever it writes correspondence to members
of the public to check
which language the person understands. The appellant, according to
her, is illiterate and cannot read any
language. She would therefore
require somebody in any event to read the letter for her.
[20]
Furthermore in my view as far as the procedure relating to sufficient
opportunity is concerned, a routine review of the grant
is not
necessarily a threat to the rights of the beneficiary of a grant as
this is a normal review in terms of regulation 27 of
the regulations
published under the Act. It is the letter which was handed to her
inviting her to make representations to show
cause why the grant
should not be suspended which was likely to affect her rights
adversely. This letter informs her of the likelihood
of a suspension
and invites her to make representations as to why this should not be
done. She is given thirty days to do so.
[21]
Once it becomes apparent from the review assessment that the grant
may be cancelled the person to be affected by that decision
must be
afforded a procedurally fair process. The procedure for suspension or
cancellation is set out in regulation 29. The regulation
is quoted
hereunder in full because in my view this is where the process which
requires procedural fairness begins before a grant
can be suspended
or cancelled.
“
29.
Procedure to be followed for suspension or cancellation of social
assistance
(1)
The Agency may suspend or cancel social assistance if the social
assistance was-
(a)
obtained fraudulently or through misrepresentation by any person
contemplated in section 21 of the Act;
or
(b)
approved and granted in error.
(2)
Except for the circumstances contemplated in subregulation 1(a) the
Agency must before suspending or
cancelling social assistance give a
beneficiary 90 days written notice of its intention to suspend or
cancel the social assistance,
and provide the beneficiary with the
following information-
(a)
the effective date of the intended suspension or cancellation;
(b)
the reasons for the intended suspension or cancellation;
(c)
the right to make a representation contemplated in sub regulation
(5); and
(d)
the right and procedure for appealing against the decision of the
Agency.
(3)
The notice of suspension or cancellation of social assistance
contemplated in sub regulation (2) must
be delivered to the
beneficiary or the procurator by hand or sent by registered post to
the last known address of the beneficiary
or procurator.
(4)
The Agency must, prior to suspending or cancelling any social
assistance, investigate, obtain and verify
all the facts and
circumstances surrounding the social assistance.
(5)
The Agency must afford a beneficiary an
opportunity to show cause why the social assistance should not be

suspended or cancelled by-
(a)
requiring the beneficiary to appear in person before the Agency or a
person designated by the Agency;
(b)
requiring the beneficiary to submit any reports or certificates as
the Agency may direct; and
(c
)
ensuring that the beneficiary obtains the necessary assistance to
make representations to the Agency including,
but not limited to,
referring the beneficiary to any organisation or institution that may
assist the beneficiary to make representations.”
[22]
It is clear from the above that the process of suspension or
cancellation commences at the time when the beneficiary is called

upon to make representations as to why the grant should not be
suspended or cancelled. The question that arises now is whether
or
not the third respondent complied with regulation 29 before the grant
was cancelled. If it did not comply, it failed to comply
with a
mandatory legislation. On the other hand if it complied with the
procedure set out in the regulation, then the process was
lawful
cadit
quaestio
.
However the grounds of review were not based on failure to comply
with these regulations.
[23]
It has been held that not every step in the decision making process
need be communicated to the person to be affected by the
final
decision.
[3]
The administration
cannot be expected to share with the individual every phase of its
final decision-making process.
[4]
In
any event in this case I find that the intention to suspend only came
to light when the third respondent became aware that the
appellant no
longer qualified for the grant. Before that, suspension or
cancellation could not have been contemplated.
[24]
Accordingly, it seems to me that even if the review was directed at
the decision of the third respondent, without reference
to the
Tribunal, the likelihood is that it would have failed. Judicial
review is concerned with determining whether the impugned
acts were
made within the ambit of the empowering legislation, and in
accordance with the precepts of such law, in particular,
and the
Constitution, in general. The merits are only relevant to the extent
that they establish procedural failure. It is immaterial
whether or
not the decision was wrong.
[5]
In
my view the third respondent complied with the regulation.
[25]
The primary function of the Courts is to ensure that those who are
charged with the duty to perform public functions in terms
of
legislation act within the parameters of the law.
Baxter
Administrative law
p. 305 puts it thus: “
Without
statutory authority, the court may not venture to question the merits
or wisdom of any administrative decision that may
be in dispute. If
the court were to do this, it would be usurping the authority that
has been entrusted to the administrative body
by the empowering
legislation.”
[6]
Mr
Matoti did not contend that the Tribunal acted outside the law or
that its decision was procedurally unfair. It was only the
actions of
the third respondent that were impugned.
[26]
The Tribunal dismissed the appeal on the basis that the procedure
followed by the third respondent was lawful and that on the
records
available it was found that the appellant was able to enter the open
labour market and to be gainfully employed. I am unable
to find fault
in the Tribunal’s decision. I also agree with the Learned Judge
in the Court
a
quo
that the procedure which was followed by the third respondent was
fair.
[27]
In conclusion there is one aspect which calls for comment. This
relates to the manner in which the papers were drawn by both
parties.
There was a tendency to leap-frog the facts. What was predominant was
the presentation of argument in the founding and
the answering
affidavits as well as a farrago of unnecessary annexures. In the
founding affidavit six pages were dedicated to legal
submissions. In
the answering affidavit no less than six pages are dedicated in
setting out the legal framework of the Act and
the PAJA quoting in
full certain sections and regulations. This approach in drafting
papers tends to obfuscate the real issues
rather than to put a true
picture of the events.
[28]
Drafting papers is a matter of style. However, each party is expected
to draw papers in such a manner that they afford easy
reading and
understanding of its case and/or defence. Authorities in support of a
party’s case are usually reserved for inclusion
in the heads of
argument.
The
legal conclusions, set out in the founding affidavit, were in the
nature of arguments which may be addressed in the heads of
argument.
They do not set out clearly and concisely the elements of her cause
of action. Nor do they adequately draw conclusions
of law from the
facts.
[29]
In motion proceedings affidavits constitute evidence in support of
the relief sought and/or the defence raised. They form the
foundation
upon which each cause of action or defence is anchored. The
affidavits must therefore include;
(a)
full description and the identity of the applicant clearly
establishing his/her
locus standi
to bring the application;
(b)
facts from which a cause of action can be gleaned in a clear, concise
and chronological manner;
(c)
the basis upon which it is claimed that the Court
has jurisdiction to entertain the matter; and,
(d)
if the cause of action is based purely on
statutory provisions, a reference to such specific statutory
provision,
without presenting argument. This is necessary in order to
enable the other party and the Court to know precisely what case is
the respondent expected to answer;
(e)
Before the respondent can respondent to the allegations in the
founding affidavit paragraph by paragraph
it must,
mutatis
mutandis,
follow the above chronology and set out clearly the basis of defence.
If the background facts have not been accurately stated by
the
applicant it must set out those facts.
[30]
The above scenario is not intended to say that argument may not be
advanced in the affidavit but this must be kept to the minimum
and be
preserved for inclusion in the heads of argument. Both the founding
affidavit and the answering affidavits in this case
were replete with
legal argument. Affidavits should not be unnecessarily burdened by
legal argument.
[7]
The deponent
is merely a witness. Witnesses are not required to argue the case but
simply to adduce evidence in support of a party’s
case.
[31]
While it is sometimes necessary to refer to the legal position and/or
statutory provision in order to make a particular point
or factual
assertion, an affidavit should not be used to advance argument which
rightfully belongs to heads of argument. Speaking
for myself I think
it is not unfair to say Judges have easy access to the South African
law reports and legislation.
[32]
In this case there were gaps in the affidavits which left more
questions than answers.
The
review was brought under Rule 53 and the Tribunal duly delivered the
record of their proceedings to the Registrar.  The
appellant
elected not to include this record in her papers thus giving rise to
the gaps. The grounds of appeal to the Tribunal
were not stated in
the founding affidavit. There was no document reflecting them
attached to the papers. The dates on which events
leading to the
appeal took place were not clearly stated. The list is not
exhaustive.
[33]
The purpose of Rule 53 is to facilitate access to records of the
proceedings of the impugned decision. A litigant who chooses
to bring
a review under Rule 6 loses this opportunity.
In
Democratic Alliance and Others v Acting National Director of Public
Prosecutions and Others
[8]
it
was stated:
'Without
the record a court cannot perform its constitutionally entrenched
review function, with the result that a litigant's right
in terms of
s 34 of the Constitution to have a justiciable dispute decided in a
fair public hearing before a court with all the
issues being
ventilated, would be infringed.'
[34]
Furthermore, the replying affidavit dealt with virtually all the
paragraphs of the answering affidavit in some cases by simply

admitting or denying the allegations. The purpose of the replying
affidavit is primarily to deal with new matters that have arisen
in
the answering affidavit or to clarify those assertions in the
founding affidavit which might have been misunderstood by the

respondent. Where the respondent simply denies the allegation it is
not necessary to respond thereto by another denial or repetition
of
what was said in the founding affidavit.
In
Minister of Environmental Affairs and Tourism and Others v
Phambili Fisheries (Pty) Ltd; Minister of Environmental Affairs and
Tourism
and Others v Bato Star Fishing (Pty) Ltd
2003 (6) SA 407
(SCA) ([2003]
2 All SA 616)
at 439G - H Schutz JA
remarked:
'There
is one other matter that I am compelled to mention -replying
affidavits. In the great majority of cases the replying affidavit

should be by far the shortest. But in practice it is very often by
far the longest - and the most valueless. It was so in these
reviews.
The respondents, who were the applicants below, filed replying
affidavits of inordinate length. Being forced to wade through
their
almost endless repetition when the pleading of the case is all but
over brings about irritation, not persuasion. It is time
that the
courts declare war on unnecessarily prolix replying affidavits and
upon those who inflate them.'
[9]
[35]
The papers were also unnecessarily prolix as a result of annexures
attached to the affidavits. There is a plethora of authorities
to the
effect that parties should make specific references to the portions
of annexures attached on which reliance is placed for
their
respective cases.
[10]
The
respondent raised a point
in
limine
and attached the notice of motion and founding affidavit of a
different case without reference to any portion thereof as supporting

its defence. There was in my view no need to attach this application.
A reference to a case number would have served the purpose.
That
application concerned a
mandamus
compelling the Tribunal to attend to the appeal. It was contended
that the review application was premature in that the earlier

application had not been disposed of. The
mandamus
application was unrelated to the review application and therefore
attaching such application in these proceedings was unnecessary.

Although the appeal has to fail the respondent must therefore be
deprived of the cost of perusing such application.
[36]
In all the circumstances, I conclude therefore that there is no merit
in the appeal.
In
the result I would make the following order.
1.
The appeal
is dismissed with costs excluding the costs of annexure
DL1
of the answering affidavit.
________________________
B
R TOKOTA
JUDGE
OF THE HIGH COURT
I
agree
_____________________
N
MSIZI
ACTING
JUDGE OF THE HIGH COURT
EKSTEEN
J:
[37]
I have had
the benefit of reading the judgment of my brother Tokota herein and I
agree entirely with the conclusion to which he
has come, however, the
judgment does not fully reflect my reasoning in arriving at the
conclusion set out therein.  For the
sake of clarity I set out
herein my approach to the matter.
[38]
The history
of the matter and the material facts leading to the application for
review are set out in paragraph 1-9 of the judgment
of my brother
Tokota and no purpose will be served in repeating the same herein.
[39]
Before I
turn to consider the merits of the appeal a few preliminary
observations which I consider to be of particular significance
in the
present matter are necessary.  Firstly, the review which forms
the subject of the present appeal is directed solely
at setting aside
the “administrative action of refusing (appellant’s)
appeal against the reconsidered decision of the
third respondent
confirming the termination of the applicant’s disability
grant”.  No relief is sought against
the third
respondent.  In these circumstances the conduct of the third
respondent in arriving at its original decision and
its reconsidered
decision are, in my view, irrelevant, save to the extent that such
conduct formed part of the appeal which served
before the Tribunal.
The decision of the Tribunal could hardly be assailed on grounds of
information which was not placed
before them and of which they had no
knowledge.
[40]
Secondly,
the review application was brought in terms of the provisions of rule
53 of the Uniform Rules of Court.  On 13 September
2013, within
the period stipulated in the notice of motion, the second respondent
duly lodged with the registrar the record of
the appeal which served
before it.  The appellant, however, did not avail herself of the
opportunity to vary the terms of
her notice of motion or to
supplement her founding affidavit as provided for in rule 53(4) of
the Uniform Rules of Court.
The appellant has accordingly not
incorporated the record filed into her case and, although the notice
of filing of the record
is included in the papers in the review
application the record itself was not placed before the court
a
quo
neither does it form part of the record in the appeal currently under
consideration.  The Tribunal has annexed portions of
the record
to its answering papers, however, as will appear later herein there
are significant documents which have not been placed
before the court
and which, in my view, present material difficulty for the appellant.
[41]
The
application for review proceeds in terms of section 6 of PAJA, the
appellant contending that:
(i)
the conduct of the Tribunal was procedurally unfair in view of the
lack of adequate
notice and an opportunity to make representations;
(ii)
the second respondent took into account irrelevant considerations in
arriving at
his decision and omitted relevant ones;
(iii)
the second respondent failed to apply his mind to the matter;
(iv)
second respondent misconstrued the facts and the law;  and
(v)
there is no rational connection between the information before the
second respondent
and the decision he reached.
[42]
The
argument in the current appeal proceeds on three legs.  Firstly,
it is contended that the notice to attend a medical review

examination was received on the same date as the examination was
conducted and in consequence thereof the appellant had insufficient

notification in order reasonably to prepare for the medical review.
Secondly, it is contended that the court
a
quo
erred in finding that the appellant was given a proper notice to
suspend a social grant informing the appellant of her rights to
make
representations in a language which she understood.  Thirdly,
that the court erred in finding that the appellant was
medically
examined during the medical review.  I shall deal with these
grounds of appeal and the argument advanced in respect
thereof
consecutively below.
[43]
In respect
of the first ground the appellant alleged that she received a
notification on 24 February 2012 which called upon her
to attend a
medical review which would be held on the very same day.  She
accordingly attended the medical review, albeit
unprepared.  In
respect of her lack of preparation she states that she was never
given a sufficient opportunity to prepare
herself for the review as
her disability can only be proved through adequate medical
documentation.  She was prejudiced by
the conduct of the third
respondent, so she says, by its failure to allow her sufficient time
to prepare and collate all her documents
for the review and to effect
a diligent search for all her medical documents.  Accordingly
she did not have her entire medical
file when attending the review.
[44]
Mr
Matoti
,
who appeared on behalf of the appellant, argued that the court
a
quo
clearly accepted that there had been insufficient notice for the
appellant to attend the medical review and submitted that once
the
court finds that the appellant was given insufficient notification to
attend the review it follows that the procedure employed
to cancel
the grant was improper and that she was not given an opportunity to
make representations.
[45]
It is
necessary to place these assertions in context.  The letter
calling upon the appellant to attend to the medical review
was not
annexed to the appellant’s papers, however, it is annexed to
the second respondent’s papers.  The material
portion
thereof reads:
“
The
Agency is obliged in terms of Regulation 27(1) to review the social
grants     periodically.
Subsequently,
the Agency wishes to notify you that your social grant is due for a
medical on 24/02/12 (date).  You are requested
to present
yourself at Libode, (Clinic/Hospital) for a medical assessment and
completion of the medical review documents before
29
February 2012
.
Kindly ensure that you bring the
following documentation with you to complete the medical review
process:
·
Barcoded identity document for
yourself and your spouse
·
Copies
of your recent medical records
·
Proof
of Marital status (e.g. marriage certificate/divorce
certificate/divorce
certificate) if there has been a change since your last application
or review;
·
Last
three months bank statements of all bank accounts held, including
fixed deposits;
·
Proof
of employment, earnings and date of commencement or discharge of
employment;
·
Proof
of your residential and postal address (electricity or telephone
account, letter from landlord, chief or councillor);
·
Rates
certificate of property owned by not occupied by yourself; and
·
Proof
of any other income. ...”
[46]
The
reference to regulation 27 is to the regulations published in GNR898
on 22 August 2008 relating to the application for and payment
of
social assistance and the requirements and conditions in respect of
the eligibility for social assistance.  Regulation
27(1)
requires of the third respondent to give notice to the beneficiary of
a social grant “within 90 days” of the
date on which the
social grant will be reviewed informing the beneficiary in writing of
the date of such review.  The notice
is required to be less than
ninety days by virtue of the provisions of regulation 3 which
requires a medical assessment to be not
older than 3 months at the
time when a decision is taken.  An “assessment” is
defined in regulation 1.  The
material portion of the definition
stipulates:
‘”
assessment” means-
(a)
the medical examination by a medical officer of a person … to
determine disability
… for the purposes of recommending a
finding for the awarding of a social grant, and “
assess
”
has a corresponding meaning;  or
(b)
the evaluation of information set out in a medical assessment form or
medical report
by a medical officer in the absence of the patient.”
[47]
The letter
of notification draws an unequivocal distinction between the “medical
assessment” on the one hand, which
was to be carried out on 24
February 2012, and the “completion of the medical review
documents” which was to occur
before 29 February 2012.  The
medical assessment, in the context of the letter, having regard to
the ordinary grammatical
and linguistic construction thereof, as read
together with the regulations, was clearly intended to refer to a
medical “assessment”
as set out in Part (a) of the
definition.  It entails no more than a medical examination.
It is difficult to envisage
what possible preparation could be
required for a medical examination to be carried out.  The
appellant’s complaint,
which is set out earlier, relates not to
the examination but to the collection, preparation and collation of
her documents.
What is abundantly clear from the letter is that
the review documentation had to be completed by 29 February 2012 thus
affording
the appellant five days more to obtain the documentation
required.  It is apparent from the letter itself that the
medical
assessment does not constitute the review, but that the
review is a process.  This, it seems to me, directly contradicts
the
assertions of the appellant that she was required to attend to a
“medical review” on the same day as the delivery of
the
notice.
[48]
The court
a
quo
accepted, for purposes of the judgment, that the appellant received
the notification on the same day that the medical assessment

occurred.  The judge
a
quo
proceeded to state:
“
As
I have been at pains to indicate, this was only the first step in the
procedure towards the review of the award.  By way
of two
subsequent notices the applicant was given at least 90 days within
which to deal further with the pending review or, at
the very least,
30 days to make a proper and formal approach to a local office of the
third respondent. This she did not do.”
[49]
These
notices referred to by the judge
a
quo
are
contained in two subsequent undated letters delivered personally to
the appellant and which bear her thumbprint as verification
of her
receipt thereof.  The first is headed “REVIEW OUTCOME:
SUSPENSION OF YOUR SOCIAL GRANT”.  This
letter informed
the appellant, in Xhosa, that she was no longer eligible for a social
grant as a doctor had concluded after a medical
examination that she
no longer qualified for a disability grant.  It proceeded to
inform the appellant in English that her
grant will be suspended
within ninety days from the date of the letter.  The letter
further informed the appellant that she
has the right to make
representations within thirty days of the date of the delivery of the
letter, in person, at her local SASSA
office as to why the suspension
of the grant should not be implemented.  It further advised her
that in the event that she
should fail to do so the grant will be
suspended on 17 April 2012 and that she may then apply at the local
SASSA office for the
restoration of the social grant within ninety
days of the suspension of the grant giving reasons for the
restoration.
[50]
The second
notification referred to is headed “NOTIFICATION TO SUSPEND
SOCIAL GRANT:  INELIGIBLE FOR A DISABILITY GRANT”.

This letter too is undated and it too was personally delivered to the
appellant bearing her thumbprint as verification of receipt
thereof.
This letter informed the appellant that her social grant would be
suspended within thirty days from the date of
the delivery of the
letter by virtue thereof that the medical assessment had revealed
that she was no longer disabled.
[51]
Again the
letter provided her an opportunity to make representations within
thirty days of the date of receipt of the letter, in
person, at her
local SASSA office, as to why the suspension of her social grant
should not be implemented.
[52]
All these
letters served before the Tribunal on the consideration of the appeal
before it.  All three letters were integral
to the reasoning of
the Tribunal in dismissing the appeal before them.
[53]
In
Matiwane
v President of the Republic of South Africa and Others
[2014] 2 All SA 419
(ECM) Griffiths J (who is also the judge
a
quo
)
stated at 428 para [33]:
“
Section 3(2)(a)(ii) of the
Promotion of Administrative Justice Act requires an administrator to
ensure that a reasonable opportunity
is given to make
representations, within the greater imperative to ensure procedural
fairness. The extent of this requirement has
been the subject of much
judicial debate but it seems to be clear that whether or not this
requirement has been complied with will
depend largely on the nature
of the proceedings. It is also clear that the administrator concerned
is enjoined to ensure that,
in any given context, such opportunity
must be a meaningful one and that paying mere lip service to this
requirement will not suffice.”
[54]
I agree
with these sentiments which are also contained in the judgment of the
court
a
quo
.
It seems to me that these sentiments accord with the authorities
(see
Sokhelaand
Others v MEC for Agriculture and Environmental Affairs
(Kwazulu-Natal)
2010 (5) SA 574
(KZP) at para [55
];
Hoexter
“
Administrative
Law in South Africa”
(2
nd
ed)
at pages 371-372;  and
Tetra
Mobile Radio (Pty) Ltd v MEC, Department of Works and Others
2008
(1) SA 438
(SCA) at para [15].)
[55]
In these
circumstances neither the argument that the appellant was afforded
inadequate notice to attend the medical examination
nor the argument
that she was afforded inadequate opportunity to make representations
and to collate documentation can be upheld.
Indeed Mr
Matoti
was constrained to concede that he could not persist in this leg of
the argument.
[56]
I turn to
the second leg of the argument that the appellant was not given
proper notice to suspend the social grant informing her
of her rights
to make representations in a language which is understood.  I
have set out earlier herein the extended opportunity
which was
afforded her to make representations.  The thrust of the second
argument is that all the notices given to her were
in English, a
language which she did not understand.  The appellant contended
further that the officials of the local office
of the third
respondent “did not precisely inform (her) of what she could
do” and they did not tell her that she had
a right to make
representations.
[57]
I have been
at pains to emphasise that the conduct of the Tribunal cannot be
assailed on grounds of information which was not raised
in the appeal
nor placed before it.  Neither the application for
reconsideration nor the grounds raised in the appeal are
included in
the record before us.  The appellant has been suspiciously coy
of the grounds raised in her application for reconsideration.

In the review proceedings she states only that an application for
reconsideration “with sufficient grounds” was lodged.

She does not annex the application nor does she disclose the grounds
relied upon in the application for reconsideration.
Her notice
of appeal to the Tribunal was initially contained in a letter from
her attorneys dated 18 March 2013.  The grounds
of appeal are
referred to therein as follows:
“
The procedure employed to have
her grant cancelled was improper as set out in the reconsideration
notice sent to the office of SASSA,
East London.  The said
letter is attached herewith for easy reference”.
There
is, however, no attachment to the letter contained in the record.
[58]
The
regulations published under the Act require the application for
appeal to be submitted in a prescribed form and appellant’s

attorneys were requested to resubmit their appeal in the prescribed
form.  The prescribed form provides specifically for the
reasons
for the disagreement with the decision of third respondent to be set
out therein.  While it is known that the appeal
was resubmitted
this document too is not included in the review application.
The appellant does not aver in her affidavit
that she had contended
either in the application for reconsideration or in the appeal to the
Tribunal that she did not understand
the notices given in English nor
that the staff of third respondent did not assist in explaining the
nature and content of the
notices.  There is no indication in
the papers that the issue was ever raised either in the application
for reconsideration
or in the appeal.
[59]
The court
a
quo
reasoned
that the notification to attend the medical assessment, written in
English, was handed to the appellant and she responded
appropriately
thereto.  It concluded, accordingly, that she understood such
notice albeit that it was recorded in English.
Whilst I accept
that this cannot be proof of her ability to comprehend the content of
the various letters written in English and
that her averment on oath
must prevail, I do consider that in the absence of any averment in
her affidavit to the effect that the
Tribunal was alerted to this
complaint the
prima
facie
impression
which the Tribunal would have been left with is that adequate and
effective notice was given and that she did understand
it.  For
these reasons I do not consider that the argument in respect of this
leg of the case can be sustained.  In the
circumstances Mr
Matoti
conceded, correctly in my view, that he could not argue that the
Tribunal’s decision could be impugned in any manner on this

ground.
[60]
I turn to
consider the third leg advanced.  The appellant contends that
when she attended the medical assessment on 24 February
2012 she was
received in a room together with a number of other people where the
medical doctor was present.  There the doctor
asked her why she
was receiving a grant to which she replied that it was in sequel to
her disabilities.  Upon this response
the doctor stated that
there was no reason for her to receive a grant and that she looks
healthy.  The third leg of the argument
therefore contends that
the doctor who was charged with the obligation to carry out the
medical assessment on 24 February 2012
had failed to examine her at
all.
[61]
The
difficulties which face the appellant in respect of this argument are
similar to those which arose in respect of the second
leg of the
argument.  Again there is no averment in the papers that she had
relied upon this allegation either in the application
for
reconsideration or in the appeal to the Tribunal.  There is no
indication in the reasons which the Tribunal have provided
for their
decision that this complaint was ever raised with them.  For
these reasons Mr
Matoti
,
again correctly in my view, was constrained to concede that the
argument was not open to the appellant.
[62]
From the
perspective of the Tribunal it is common cause that they had before
them a medical report by a doctor who purported to
have examined the
appellant on 24 February 2012.  The medical report sets out
certain personal particulars relating to the
appellant which,
prima
facie
,
could only have been obtained from the appellant.  The form
proceeds to record certain clinical findings made by the said
doctor
on examination of the appellant and it proceeds to record his
diagnosis.  At the conclusion of the report the following
is
recorded under the signature of the doctor:
“
I
hereby acknowledge that I have examined the above client.”
[63]
When the
appeal came before the Tribunal they referred the assessment by the
original doctor to a separate doctor of their own who
assessed the
findings of the original doctor and concurred with the correctness of
his conclusions.  This accords with Part
(b) of the definition
of “assessment” in regulation 1 which is set out
earlier.  In the absence of an allegation
that the grounds of
appeal submitted to the Tribunal complained of an inadequate
examination by the reviewing doctor I do not think
that the conduct
of the Tribunal can be faulted.
[64]
In all the
circumstances I consider that the court
a
quo
correctly concluded that the second respondent’s decision to
dismiss the appeal cannot in all the circumstances be found
to be
wanting.
[65]
In the
result, I agree that the appeal is to be dismissed.  I agree too
with the costs order proposed by Tokota J.  An
order is
accordingly made in the terms proposed by Tokota J.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Counsel
for the Appellant     :
Adv Matoti
Instructed
by

:
SR MHLAWULI &
ASSOCIATES
Suites 318 & 325
ECDC House
York Road
MTHATHA
Counsel
for the Respondent’s:       Adv
Notshe SC & Adv Mathaphuna
Instructed
by
STATE ATTONERY
No. 94 Sisson Street
Broadcast House
Fort Gale
MTHATHA
Date
heard

:         09 March 2018
Judgment
Delivered
:
22 March 2018
2.Regulation 27 of the regulations
published under the Act provides :
“
(1)
The Agency must, within 90 days of the date on which a social grant
will be
reviewed, inform the beneficiary in writing of the date of
such review.
(2)
The Agency must review the social grant-
(a)
at any time where it has reason to believe that changes in the
beneficiary's financial circumstances may have occurred
;
[2]
See
Cape Town Municipality v Abdulla
1974 (4) SA 428
(C) at 438
[3]
See
Minister of Environmental Affairs & Tourism v Scenematic
Fourteen (Pty) Ltd
[2005] ZASCA 11
;
2005 (6) SA 182
(SCA) para.18
[4]
Baxter Administrative Law p.548
[5]
See
MEC for Environmental Affairs & Dev Planning v Clairison's
CC
2013 (6) SA 235
(SCA) para.18; JH v Health Professions
Council of SA
2016 (2) SA 93
(WCC) para.23
[6]
National
Treasury v Opposition to Urban Tolling Alliance
2012 (6) SA 223
(CC) para.44; EFF v Speaker, NA
2016 (3) SA 580
(CC) para.92
[7]
Reynolds
NO v Mecklenberg (Pty) Ltd
1996 (1) SA 75
(W) at78I;
[8]
2012
(3) SA 486
(SCA) ([2012]
2 All SA 345
;
2012 (6) BCLR 613
;
[2012]
ZASCA 15)
para 37
[9]
See
also Van Zyl v Govt of the RSA
2008 (3) SA 294
(SCA) para.46.;
Wingaardt v Grobler
2010 (6) SA 148
(ECG) para.19
[10]
These include
Swissborough Diamond Mines (Pty) Ltd v Govt
of the RSA
1999 (2) SA 279
(T) p.324G-I; Derby-Lewis v
Chairman, Amnesty Committee of the TRC
2001 (3) SA 1033
(C);
NDPP v Zuma
2009 (2) SA 277
(SCA)
(2009 (1) SACR 361
;
2009 (4)
BCLR 393
;
[2008] 1 All SA 197
;
[2009] ZASCA 1)
; Helen Suzman
Foundation v President of the RSA
2015 (2) SA 1
(CC)
(2015 (1)
BCLR 1
;
[2014] ZACC 32)