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[2015] ZAECBHC 4
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T.M.M v Member of the Executive Council for Social Development and Social Programmes, Eastern Cape and Others (253/2013) [2015] ZAECBHC 4 (10 March 2015)
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IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE, BHISHO
Case no:
253/2013
REPORTABLE / NOT
REPORTABLE
In the matter between:
T
[…] M[…] M[…]
Applicant
vs
MEMBER
OF THE EXECUTIVE COUNCIL FOR SOCIAL
DEVELOPMENT
AND SOCIAL PROGRAMMES, EASTERN CAPE
First
Respondent
THE
DIRECTOR-GENERAL OF THE DEPARTMENT
OF
SOCIAL DEVELOPMENT AND SOCIAL
PROGRAMMES,
EASTERN CAPE
Second
Respondent
THE
DESIGNATED SOCIAL DEVELOPMENT
AND
SOCIAL PROGRAMMES
Third
Respondent
Date heard:
4
th
December 2014
Date delivered: 10
th
March 2015
JUDGMENT
MALUSI AJ:
[1]
This is an application to compel the respondents to process a social
grant application.
[2]
The applicant is the grandmother to a minor child. The child’s
mother,
Z[…] M[…]
died on 12 May 2011.
During her lifetime she lived with the minor child in Klerksdorp in
Gauteng. After her demise,
the applicant took custody of the
minor child. The applicant is a pensioner and indigent.
[3]
It is common cause that the applicant approached the respondents’
Mdantsane offices to apply
for a foster care grant. It is
further common cause that the applicant was asked to provide details
of the minor child’s
biological father. The applicant
avers that the biological father’s details are unknown to her
as the minor child never
had any relationship with his father.
[4]
The applicant avers that after submitting the required documentation,
she was informed a social
worker would visit her to conduct an
assessment. No such visit took place causing her to approach
her attorney of record.
The attorney wrote an ordinary letter
of demand to the respondents which did not elicit a reply. This
application was thereafter
lodged.
[5]
In the answering affidavit, the respondents took issue with their
incorrect citation. They
further denied that the applicant
visited their Mdantsane office on the date alleged by the applicant.
The respondents avered
that on an alternate date, the applicant was
interviewed by a social worker during a preliminary interview.
It transpired
the biological father is alive and gainfully employed
but his particulars were not in applicant’s possession at the
time.
A further appointment was arranged for the applicant to
provide the required particulars. The applicant did not honour
the
appointment which resulted in the application not being
processed.
[6]
The application was initially set down for hearing on the 20
th
November 2014. The hearing did not proceed as there was no
appearance for the applicant. Her attorney of record had
withdrawn on the 24
th
October 2014. The notice of
withdrawal did not comply with the joint rules of practice of this
Court. The matter was
postponed to the 4
th
December
2014 to allow the attorney to file a proper notice of withdrawal and
file an affidavit giving reasons why costs
de bonis propiis
should not be ordered against him. The reasons for the
postponement were brought to the applicant’s attorney attention
by the assistant State Attorney who filed an explanatory affidavit on
this aspect. The applicant filed an explanatory affidavit
dealing with the affidavit that had earlier been filed by the
respondents’ on her behalf disavowing the mandate to her
attorney
of record.
[7]
At the hearing of this application I was informed that the
application for a foster care grant
application had been processed by
the respondents. The only outstanding issue for adjudication
was the costs of the application.
[8]
Mr Klaas,
who appeared for the applicant, highlighted what he
argued was a delay by the respondents to process the application for
the grant.
The delay was compounded by the failure of the
respondents to reply to the letter of demand so it was argued.
[9]
Mr Poswa
, who appeared for the respondents, submitted that the
applicant had not complied with a number of practice rules.
Consequently,
even if the main relief had not been settled, the
applicant would not have been successful.
[10]
The joint rules of practice for this division provide a comprehensive
procedure in applications for social
grants. The provision is
peremptory for such applications. Rule 21(a)(ii) provides that
an applicant must provide proof
of the original application for the
grant with specified details. If no such proof is available
then an explanatory affidavit
must be filed. The applicant
failed to comply with rule 21(a)(ii).
[11]
The applicant is required to deliver a letter of demand to the
authority where the original application was
made in terms of rule
21(a)(iii). The applicant did not comply with this provision
and no explanation has been provided.
[12]
Rule 21(b)(i)-(iii) sets out a procedure for the State Attorney and
the applicant to follow to obtain instructions
and hold a
conference. This is to ensure that the parties explore
settlement before setting down the application for a hearing.
The applicant simply ignored the procedure and proceeded to set down
the matter for hearing.
[13] It
is clear from the above that the application was not properly before
Court due to failure of the applicant
to comply with practice rule
21. I enquired from
Mr Klaas
the reason for the
non-compliance. He submitted that it was due to the
respondents’ failure to acknowledge the application
and the
letter of demand. There is no merit in this submission.
Whatever the respondents’ conduct it does not
absolve the
applicant of her obligation to comply with the Court rules.
[14] It
is unnecessary to consider the prospects of success on the merits of
either party in any detail in view
of the non-compliance outlined
above. It suffices to state that even on the merits the
applicant would not have been successful
due to the factual
inaccuracies in her affidavit.
[15] I
have given the matter anxious consideration. It appears to me
that the application would have failed
principally due to the manner
in which the applicant’s attorney handled the matter. The
drawing of the affidavit leaves
much to be desired. It is
riddled with numerous errors. On the very first paragraph of
the affidavit, the applicant
is described as a “male person”
when her names and appearance on the attached identity document
clearly indicate she
is a female person. The affidavit does not
improve from that only getting worse with numerous other errors.
I gained
the distinct impression that the affidavit was prepared
using a template, the so-called cut and paste job. I have
earlier
dealt at length with the non-compliance with rule 21 which
also can only be blamed on the applicant’s attorney. The
applicant cannot be blamed for this lapse as it is clear from her
explanatory affidavit that she cannot read English and requires
translation of documents. Neither could the apparent negligence
of her attorney be imputed on her. I am satisfied that
it is
only fair and just that she is not mulcated with costs in these
circumstances.
[16]
The other aspect that needs consideration are the wasted costs
occasioned by the postponement of the 20
th
November 2014.
The matter was postponed to afford the applicant’s attorney an
opportunity to give reasons why he should
not be held liable for the
costs. He has spurned that opportunity. Instead, the
applicant has filed an affidavit clarifying
that she had always
instructed her attorney and repudiating an earlier affidavit.
She does not deal with the late notice
of withdrawal nor why
the notice does not comply with practice rule 7. The
applicant’s attorney appears not to be aware
that the
explanation was required from him personally as provided in practice
rule 7. In the absence of the explanation it
follows that in
view of the flagrant disregard of the provisions of practice rule 7,
the applicant’s attorney must be ordered
to pay the wasted
costs.
[17] In
the circumstances and for the above reasons it is ordered:
[17.1] Each party is
to pay its own costs.
[17.2] Attorney
Mcebisi Templeton Klaas is to pay the wasted costs occasioned by the
postponement on 20 November 2014
de bonis propriis.
T. MALUSI
ACTING JUDGE OF THE
HIGH COURT
For
the applicant:
Mr
Klaas
Instructed
by:
M.T.
Klaas Attorneys
c/o
Potelwa Attorneys
KING
WILLIAMS TOWN
For
the respondents:
Mr
Poswa
Instructed
by:
State
Attorneys
c/o
Shared Legal Services
KING
WILLIAMS TOWN
Ref:
366/13-P11