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South Africa: Eastern Cape High Court, Mthatha
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[2016] ZAECMHC 46
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L v South African Social Security Agency (1547/16) [2016] ZAECMHC 46 (27 September 2016)
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IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION :
MTHATHA
CASE NO. 1547/16
In the
matter between:
N. E.
L.
Applicant
and
THE
SOUTH AFRICAN SOCIAL SECURITY
AGENCY
Respondent
JUDGMENT
GRIFFITHS,
J.:
[1] This
is the second application brought by the applicant relating to a
social assistance grant for a minor child. Both cases
served before
me as opposed motions this morning and I have prepared a judgment in
first matter. This matter must, accordingly,
be read therewith as the
facts are much the same save that this matter relates to her other
child.
[2] In
this case, the applicant alleges that she was refused a grant for the
second minor child because of the fact that the dispute
relating to
the termination of the other minor child's grant was still in
ongoing. In this case however the applicant seeks a declaratory
order
to the effect that the "respondent's refusal or denial to have
the applicant apply or register for a child support grant"
be
declared unlawful, unconstitutional and invalid. She has also sought
ancillary relief in the form of a mandamus directing the
respondent
to, in effect, allow the applicant to register or apply for the child
support grant in respect of her second minor child:
S. F..
[3] In
essence, the respondent has raised the same form of opposition as in
the previous matter, by way of a Rule 6(5)(d)(iii) notice.
It is
contended, in a nutshell, that the applicant has failed to follow the
mandatory steps which an applicant or a social assistance
grant
recipient who is not satisfied with, or who disagrees with, a
decision made by the respondent is obliged in terms of the
Social
Assistance Act (3 of 2004) to follow. Such steps are an application
for reconsideration and, thereafter, an appeal. Neither
of these
steps appear to have been followed although the applicant did attempt
to persuade the Minister, by way of a letter from
her attorney, that
he should intervene and, in effect, ensure that the proper procedure
for an application for such a grant is
followed.
[4] The
applicant maintained however that this matter does not fall under the
Promotion of Administrative Justice Act (No 3 of 2000)
as all the
applicant is seeking is a declaratory order and, together therewith,
a mandamus compelling the functionaries to carry
out their duties in
terms of the Act. In my view, there are indeed no internal remedies
for the applicant to exhaust in the circumstances.
[5] As I
understand the applicant's contentions, she has attended at the
relevant office on a number of occasions requesting that
she be
allowed to make application for a social grant relating to the second
child, but that she has on all occasions been frustrated
due to the
fact that the first child's grant was terminated and, because there
has been in existence a dispute relating thereto,
she is not able to
make application for a grant in respect of the second child. The
factual contentions are not contested by the
respondent who has not
filed an answering affidavit and has contented itself with the filing
of the aforesaid notice. Accordingly,
I must accept the applicant's
contentions as being factually correct.
[6] This
being so, it seems to me that the respondent has indeed not carried
out its duties pursuant to the Act, and the regulations
framed
thereunder. In regard to the regulations, regulation 10 sets out the
procedure to be followed in an application for a social
grant. This
includes,
inter alia
, the completion of the relevant
application forms in the presence of a designated officer.
Furthermore, the agency must assist
a person in completing the
application form if he or she is, for whatever reason, unable to do
so. It seems to me that what the
applicant is contending is that
these, and various other, obligations resting upon the respondent
were not carried out as she was
simply told that she could not do
anything in view of the dispute relating to the other minor child.
This refusal to carry out
the duties imposed on it by the respondent
through its designated officials, must be unlawful. The only
contention apparently made
by such officials is that the existence of
a dispute relating to the other child bars such an application for
the second child.
Such an argument has not been pursued by way of an
affidavit in these proceedings to explain precisely why such should
be the situation.
Indeed, I cannot conceive as to why a grant cannot
be pursued relating to a completely independent minor child because
its sibling
happens to have a dispute with regard to its social
grant.
[7] In
the circumstances, in my view the applicant has made out a case for
the relief sought such being a declaratory order and
the mandamus to
which I have referred.
[8] In
the circumstances, I grant the following orders:
1.
The respondent's refusal to allow the applicant to apply or
register for a child support grant is hereby declared unlawful and
invalid;
2.
The respondent is ordered to allow the applicant to register
or apply for a child support grant in respect of her minor child, S.
F.;
3.
In doing so, the respondent is directed to comply fully with
its obligations in assisting the applicant to make such an
application
as prescribed in the Social Assistance Act (No 13 of
2004) and the regulations promulgated thereunder;
4.
The respondent is ordered to pay the costs of this
application.
R E
GRIFFITHS
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPLICANT
:
Mr Matotie
INSTRUCTED
BY
: SR Mhlawuli &
Associates
COUNSEL
FOR RESPONDENT
:
Mr Zilwa Sc
INSTRUCTED
BY
: State Attorney
HEARD
ON
:
22 SEPTEMBER 2016
DELIVERED
ON :
27 SEPTEMBER 2016