Brief Summary

Administrative Law — Social Security — Appeal against refusal of disability grant — Respondent applied for disability grant which was refused by SASSA; subsequent application for reconsideration dismissed as late — Respondent appealed to Minister of Social Development, alleging delay in decision — Court a quo found that Minister did not take a decision on the appeal — Appellants contended that a letter from a department employee constituted a decision — Legal issue whether the Minister had taken a decision as required by the Social Security Act — Held, the letter did not represent a decision of the Minister; Minister must personally exercise the power conferred by the legislation and cannot delegate this responsibility to subordinates.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an appeal to the Eastern Cape Local Division, Mthatha, against an order granted in motion proceedings in the court a quo. The proceedings arose from a dispute about the processing of an internal statutory appeal relating to social assistance, specifically an application for a disability grant.

The appellants were the Minister of Social Development (first appellant) and the Independent Tribunal for Social Assistance Appeals (second appellant). The respondent was Makehle Mpayipheli, an applicant for a disability grant whose application had been refused by the South African Social Security Agency (SASSA).

Procedurally, the respondent’s disability grant application was refused by SASSA. He then sought reconsideration in terms of the governing statute, and thereafter lodged an appeal to the Minister. When he contended that there had been an undue delay (and, in substance, a failure) by the Minister to decide that appeal, he approached the High Court (court a quo) for relief directing the Minister to take and communicate a decision. The court a quo held that the Minister had not taken a decision on the statutory appeal, and granted an order compelling consideration and decision within specified time periods, with costs.

The present appeal, brought with leave of the court a quo, was directed against the whole of that judgment and order. The appeal turned on a narrow question: whether the Minister had in fact taken a decision on the respondent’s statutory appeal, as contemplated by the empowering provision.

2. Material Facts

The respondent applied for a disability grant at a SASSA office on 28 August 2014. SASSA rejected the application in a letter dated 15 October 2014, stating that the respondent did not qualify because the loss of one eye did not significantly impair his ability to obtain work. The respondent was advised of his right to seek reconsideration within 90 days.

On 15 October 2014, the respondent submitted an application for reconsideration. SASSA dismissed that reconsideration request on the basis that it was lodged outside the prescribed 90-day period and that the legislation did not allow condonation of the late submission. The dismissal document recorded that the reconsideration application was deemed invalid and would not be considered, and it informed the respondent that he could appeal to the National Minister of Social Development within 90 days of notification.

The respondent then lodged a written appeal to the Minister in terms of section 18(1A) of the relevant Act. The appeal was delivered on 1 June 2015. Thereafter, on 29 June 2015, an Acting Chief Director in the Department of Social Development requested, with reference to regulation 14(2), that the respondent’s attorneys provide certain documents, including the SASSA rejection letter, the respondent’s identity document, and the reconsideration outcome. The respondent’s attorneys furnished the requested documents on 15 July 2015.

After receiving no outcome, the respondent’s attorneys addressed correspondence on 8 October 2015 to the department, complaining that no outcome had been provided and seeking a response. On 13 October 2015, an email was sent by Khomotso Tefu, described as a Legal Admin Officer in the department. The email advised that the reconsideration outcomes were lodged with SASSA outside the 90-day period and that the “clients” were advised to reapply for the grant because “SASSA’s legislation does not condone late reconsideration applications.” The email had the effect, in practical terms, of conveying that the appeal would not succeed because the reconsideration was late.

In the litigation, the dispute was narrowed to whether the Minister had taken a decision on the respondent’s appeal. The appellants contended that the 13 October 2015 email constituted a Ministerial decision. The respondent’s case was that no decision by the Minister had been taken or communicated.

The answering affidavit for the appellants was deposed to by an official in the department, who did not positively state that the Minister had taken a decision on the appeal. Where the respondent alleged that no outcome had been forthcoming from the Minister, the deponent did not deny this on the merits, but stated that the allegation was “noted,” while disputing receipt of the 8 October letter.

3. Legal Issues

The central legal question was whether there had been a decision by the Minister in terms of section 18(1A) of the Act on the respondent’s statutory appeal, and whether the court a quo was correct in concluding that the Minister had failed to take a decision.

This question primarily concerned the application of law to fact. The court was required to evaluate the legal character of the 13 October 2015 email and the affidavits, and determine whether these established that a decision had been taken by the lawful repository of power (the Minister) or a lawful delegate, as required by the statutory scheme and legality principles.

A subsidiary issue raised in argument was whether the respondent ought instead to have pursued a review remedy under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) on the basis of a failure to take a decision. The court addressed this as an argument about remedial choice and litigation framing, rather than as the primary determinative issue.

4. Court’s Reasoning

The court began with the statutory framework. It set out section 18(1A) of the Act, which provides for an appeal to the Minister against a reconsidered decision by SASSA, and section 18(2), which empowers the Minister either to decide the appeal (confirm, vary, or set aside SASSA’s decision) or to appoint an independent tribunal to consider the appeal in the prescribed manner. The court emphasised that the statutory power to determine such appeals is conferred on the Minister, who is expressly defined in the Act.

Applying that framework, the court held that what was required was not that the Minister personally draft correspondence, but that she take the decision on the appeal herself, or through lawful delegation or the appointment of the tribunal where permitted. The court rejected the submission that insisting upon a Ministerial decision amounted to elevating form over substance; it treated the question as one of lawful exercise of a statutory power, not the mechanics of communicating the outcome.

The court then dealt with the appellants’ attempt to avoid the existence of an appealable decision by arguing that, because the reconsideration was late and treated as invalid, there was no decision capable of appeal. The court rejected this as inconsistent with the recorded reconsideration outcome itself, which expressly stated that the reconsideration application was dismissed and explicitly informed the respondent of a right to appeal to the Minister within 90 days. On the court’s reading, SASSA had made a decision (a dismissal), and the statutory appeal process was thus engaged.

On the key question—whether a Ministerial decision existed—the court found that the papers contained no indication that the Minister had ever taken a decision on the respondent’s appeal. The email of 13 October 2015 was decisive against the appellants for two related reasons. First, it did not purport on its face to have been written on the Minister’s instructions, nor did it convey that the Minister had considered and determined the appeal. Second, it also did not purport to be a decision of the tribunal. In the court’s assessment, it was therefore not evidence of a decision taken by the lawful decision-maker identified in the statute.

The court grounded this conclusion in principles of administrative law and legality. It stated that a functionary on whom legislation confers a power must exercise it personally unless it has been lawfully delegated, and that the power may not be abdicated to another functionary. It accepted that the Minister may consult advisers and act on advice, but held that the final decision must still be that of the Minister, and correspondence from an official must convey the Minister’s decision if such decision has been taken.

The court also drew adverse consequences from the manner in which the appellants answered the respondent’s allegation that no decision had been communicated. It held that where an affidavit fails to admit, deny, or confess-and-avoid an allegation, and merely “notes” it, the court is entitled to treat the allegation as not genuinely disputed. Relying on authority, it endorsed the proposition that “noting” an allegation in circumstances where a denial is required may amount to an admission, or at least exposes the party to adverse inference.

In addressing the PAJA-related submission, the court held that the argument that the respondent should have proceeded by review was without merit on the basis stated: where a party has alternative remedies and is not obliged to exhaust one route, the litigant may choose the cause of action and define the issues for determination, and the court must decide the dispute on the pleaded facts.

Finally, the court linked the unlawfulness to constitutional norms governing public administration. It reiterated that the exercise of public power is constrained by the principle of legality, and that an official may not arrogate to themselves powers not conferred by law. It invoked section 195 of the Constitution to underscore accountability, responsiveness, and transparency in public administration, and treated the Minister’s failure to take a decision as a failure to fulfil obligations under the Act and the Constitution. On this basis, it held that the Minister’s failure to decide was unlawful, and that the purported “decision” communicated by the Legal Admin Officer was unlawful because the Act conferred no authority on that official to determine the appeal.

On costs, the court applied the general principle that costs follow the result. It rejected an argument that the appellants should recover the costs of the leave to appeal application because leave had been granted, holding that those costs depended on the success or failure of the appeal itself. Since the appeal failed, the appellants were held liable for costs.

5. Outcome and Relief

The appeal was dismissed with costs. The order of the court a quo (which compelled the Minister to consider and decide the respondent’s appeal within a defined period and to inform the respondent thereafter) accordingly remained undisturbed.

The court confirmed that there was no merit in the appellants’ contention that a departmental official’s email constituted a Ministerial decision under section 18(1A), and it upheld the conclusion that the Minister had unlawfully failed to take a decision on the respondent’s statutory appeal.

Cases Cited

Makhuva and Others v Lukoto Bus Service (Pty) Ltd and Others 1987 (3) SA 376 (V)

McWilliams v First Consolidated Holdings (Pty) Ltd 1982 (2) SA 1 (A)

Jeewa v Dönges NO and Others 1950 (3) SA 414 (A)

Arun Property Development (Pty) Ltd v City of Cape Town 2015 (2) SA 584 (CC) ([2014] ZACC 37)

MEC for Education, Gauteng Province v Governing Body, Rivonia Primary School 2013 (6) SA 582 (CC) (2013 (12) BCLR 1365; [2013] ZACC 34)

Hofmeyr v Minister of Justice and Another 1992 (3) SA 108 (C)

Minister of Environmental Affairs & Tourism v Scenematic Fourteen (Pty) Ltd [2005] ZASCA 11; 2005 (6) SA 182 (SCA) ([2005] 2 All SA 239)

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458; [1998] ZACC 17)

Legislation Cited

Social Security Act No. 13 of 2004 (as referred to in the judgment), in particular section 18(1), section 18(1A), and section 18(2)

Promotion of Administrative Justice Act 3 of 2000, in particular section 6

Constitution of the Republic of South Africa, 1996, in particular section 195

Rules of Court Cited

Uniform Rules of Court, Rule 22(2)

Uniform Rules of Court, Rule 25(1)

Uniform Rules of Court, Rule 6(4)(d)

Uniform Rules of Court, Rule 6(4)(e)

Held

The court held that there was no evidence that the Minister of Social Development had taken a decision on the respondent’s statutory appeal as required by section 18(1A) of the Act. The email sent by a departmental Legal Admin Officer did not purport to record or convey a decision taken by the Minister, nor did it constitute a decision of a lawfully appointed tribunal.

The court further held that a public power conferred by statute must be exercised by the designated repository of that power (or a lawful delegate), and that the purported determination by an official lacking statutory authority was unlawful. The Minister’s failure to take a decision on the appeal was unlawful, and the appeal against the court a quo’s order compelling the Minister to decide was dismissed with costs.

LEGAL PRINCIPLES

A statutory discretionary power vested in a particular public official must be exercised by that official, or by a lawful delegate where delegation is permitted, and the official may not abdicate that discretion to subordinates or act under the dictation of others. Consultation and advice may inform the decision, but they do not replace the decision-maker’s obligation to make the final determination.

The exercise of public power is constrained by the principle of legality, which requires that officials act within the bounds of authority conferred by law. A decision made by a person who lacks statutory power to decide the matter is unlawful and of no force.

In motion proceedings, affidavits perform the role of pleadings and evidence, and where a party is required to admit or deny a factual allegation, a response that merely “notes” an allegation may justify the inference that the allegation is not genuinely disputed and may be accepted.

Public administration is constitutionally required to be accountable, responsive, and transparent. Where legislation imposes a duty on an office-bearer to consider and decide appeals, a failure to take a decision may constitute an unlawful failure to fulfil statutory and constitutional obligations.

Minister of Social Development and Another v Mpayipheli (CA135/16) [2018] ZAECMHC 31 (26 June 2018)