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[2016] ZAECMHC 47
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L v South African Social Security Agency (1094/16) [2016] ZAECMHC 47 (27 September 2016)
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Certain
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IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION :
MTHATHA
CASE NO. 1094/16
In the
matter between:
N. E.
L.
Applicant
And
THE
SOUTH AFRICAN SOCIAL SECURITY
AGENCY
Respondent
JUDGMENT
GRIFFITHS,
J.:
[1] The
applicant seeks an order reviewing the decision of the first
respondent to terminate a child support grant which was terminated
during August 2013. In apparent response to an application for
reconsideration of such termination, and during the course of this
application, the second respondent addressed a letter (dated 30 May
2016) to the applicant indicating that the grant would be reinstated
in the amount of R350 per month. That letter furthermore made
reference to a "First Amount Payable" of R3688, which
appears, although it is not at all clear, to be an attempt to pay the
arrears spanning the period from the time when the grant ceased,
to
the date of the letter.
[2]
Applicant's case is, essentially, that the grant was unlawfully
terminated and that it should be reinstated. The applicant has
furthermore indicated that she has not only this child but another
one to support and that she is indigent and the subject of abject
poverty. The result of this is that the termination of the grant has
plunged her into further straits of desperation. She has had
to
resort to begging on the street in order to support the children who,
on some days, go without food. All these factors are not
contested by
the respondents who have simply filed a notice pursuant to the
provisions of Rule 6(5)(d)(iii). Therein, the respondents
have
pointed to the fact that the applicant has not exhausted her internal
remedies. In this regard they have pointed to the fact
that the
applicant has, such being common cause, made application for
reconsideration. Such application was sent to the Minister
on 16th
February 2016 and the application was launched on 1 April 2016. This
is within the 90 day period which is prescribed by
the regulations
under the Social Assistance Act (No 13 of 2004) which period the
Minister is given to consider and advise on the
outcome. The
respondents have, accordingly, contended that the application was
premature in that the Minister had not yet had the
full 90 days
within which to make his decision before the application was
launched.
[3] The
respondents have furthermore pointed to the fact that the applicant’s
attorneys were advised, in writing, of the fact
that this point would
be raised in this application and that costs de
bonis propriis
would be sought against them should they proceed with the
application. Notwithstanding, the applicant has proceeded.
[4] The
applicant has attempted to argue that this matter falls outside the
provisions of the Promotion of Administrative Justice
Act (No 3 of
2000 – "PAJA") which provides, at section 7(2), that
no administrative decision may be reviewed until
such time as all
internal remedies have been exhausted. In terms of section 7(2)(c) of
the Act:
“
A
court
or tribunal may, in exceptional circumstances and on application by
the person concerned, exempt such person from the obligation
to
exhaust any internal remedy if the court or tribunal deems it in the
interest of justice."
[5] The
applicant’s argument in this regard is based on the contention
that she has chosen to go to the Constitution directly,
as opposed to
framing her judicial review under PAJA. This argument is, in my view,
entirely misconceived. There are numerous cases
which make it clear
that where legislation has been passed pursuant to a right, or rights
created by the Constitution, that legislation
is the vehicle in terms
of which relief must be sought and only if such legislation is set
aside as being unconstitutional, can
direct resort be had to the
Constitution itself. In this regard, one merely needs to look at the
case of
Batho Star Fishing (PTY) LTD v Minister of Environmental
Affairs and Tourism and others
[2004] ZACC 15
;
(2004 (4) SA 490
(CC) at paragraphs 22
– 26.).
Furthermore, even if the applicant were so entitled
the common law requires that she first exhaust her internal remedies.
[6] Mr.
Zilwa, who has appeared on behalf of the respondents, has further
argued that in view of the fact that the grant has been
reinstated,
the only remaining question is that of who should pay the costs. This
is not so. It is clear from the letter sent by
the first respondent
in terms of which the grant was reinstated that an attempt was made
to pay some of the arrears. However, it
is quite clear that the
amount offered cannot cover the full amount of the arrears
outstanding since the time when the grant was
terminated. Indeed, in
prayer five the applicant has sought payment of such arrears.
[7] The
only question which remains in my view therefore is whether or not
the applicant has established "exceptional circumstances"
for the purposes of the exemption in terms of section 7(2)(c), and
whether it would be in the interests of justice to grant such.
On the
one hand, there appear to be strong circumstances personal to the
applicant relating to her abject poverty which are compelling.
As I
have indicated, the applicant has two children, has relied
extensively on the grant in order to provide food for her children
and has been unable to obtain any form of employment. She is clearly
a rural, uneducated person who has little or no knowledge
of the ways
and workings of the respondent or, indeed, of any government
institution. She was forced to rely, entirely, on the
officials of
the first respondent in dealing with this matter which came to
naught. All these circumstances cumulatively are, in
my view, most
compelling.
[8] In
addition to this it cannot be forgotten that the respondents, in
response to the application for reconsideration, did indeed
reinstate
the grant. There has been no answering affidavit put up on behalf of
the respondents to explain precisely what the position
is in this
regard but one can only assume that they accepted the unlawfulness of
the termination of the grant and accordingly reinstated
it. The
attempt at "salving" the wounded by way of an offer of some
money presumably in the form of arrears is a further
indication that
this is so. This is an additional factor which to my mind indicates
that there are exceptional circumstances in
this case and that it
would be in the interests of justice to grant the exemption from
exhausting internal remedies, as applied
for in the notice of motion
pursuant to section 7(2)(c).
[9] On
the other hand there is the fact that the respondent took since
August, 2013, until 16 February 2016 to bring the application
for
reconsideration. In my view however, in view of her abject poverty,
her illiterate background and her extremely difficult circumstances
in trying to support two young children with no help whatsoever, this
pales into insignificance.
[10] As
regards the question of costs, in my view the applicant is
substantially successful. Accordingly, costs must follow the
result.
[11] In
the circumstances I make the following order:
1.
The applicant is exempted, in the interests of justice and
pursuant to the provisions of section 7(2)(c) of Act 3 of 2000, from
exhausting any internal remedies which may have been available to
her;
2.
The
respondent is ordered to, forthwith, account to the applicant for the
arrear payments of the child grant from the time of its
termination
in August 2013 until it was reinstated and to pay to the applicant
the balance outstanding;
3.
The
respondent is ordered to pay the costs of this application.
R E
GRIFFITHS
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPLICANT :
Mr Hobbs
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