About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2015
>>
[2015] ZAECMHC 52
|
|
Botiyana v Minister of Social Development (1679/14) [2015] ZAECMHC 52 (23 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO: 1679/14
In
the matter between:
NONGCINUMZI
TRYPHINA
BOTIYANA
..........................................................................
Applicant
And
THE
MINISTER OF SOCIAL
DEVELOPMENT
.............................................................
Respondent
JUDGMENT
PAKADE
J:-
[1]
This is yet another application seeking to enforce a person' s right
to social security brought under section 27(1)(c) and (2)
of the
Constitution of the Republic of South Africa
[1]
.
The relevant part of this section provides that:
"
Everyone has the right to have access to - social security ,
including , if they are unable to support themselves
and
their dependents, appropriate social assistance ".
[2]
The State is enjoined to take reasonable legislative and other
measures within its available resources to achieve the progressive
realisation of the rights enshrined in section 27(1)(c)
[2]
. In compliance with this constitutional principle, the Legislature
enacted
Social Assistance Act, 13 of 2004
together with regulations
to regulate the grant and payment thereof to deserving qualifying
persons. The purpose of the
Social Assistance Act (the
Act) is to
enhance the effective provisioning of social assistance by providing
norms and standards, standardised delivery mechanisms
and a national
policy to the efficient, economic and effective use of the limited
resources available for social assistance and
for the promotion of
equal access to government services.
[3]
[3]
The Courts have had occasion to interpret
s 27(1)(c)
in line with the
Constitution
[4]
and have
observed that the socio -economic rights are closely related to the
founding values of human dignity , equality and freedom
[5]
,
referred to by Justice Mokgoro in
Khosa
& Others v Minister of Social Development & Others....];
Mahlaule and Another v Minister of Social Development
[6]
.
[4]
The applicant, an indegent person who is also semi illiterate with
poor socio economic status, applied for disability grant
to the third
respondent on 23 October 2013. She completed the prescribed form duly
assisted by the officials of the third respondent.
Her application
complied with the provisions of the
Social Assistance Act, No. 13 of
2004
.
[5]
She was then subjected to medical assessment by a doctor who
diagnosed her to be suffering from diabetes (but was non- insulin
dependent), high blood pressure and surgical hernia. The doctor
opined that she was disabled as a result of which she could not
enter
open labour market. He opined that the applicant qualifies for a
temporary disability grant for a period of twelve months.
[6]
Subsequent to medical assessment, the third respondent conveyed its
decision to the applicant by letter (dated 24 October 2013)
informing
her of the rejection of her application with the following reasons:
"
.......... Require a detailed Specialist Report as well as Further
Management /Treatment for your no recommendation Treating
Physician".
The
third respondent further apprised her of a right to appeal the
decision to the Minister (first respondent) within ninety days
from
the date of the letter. The applicant exercised her right of appeal
but the Appeal Tribunal appointed by the first respondent
heard the
appeal and dismissed it, thus confirming the decision of the third
respondent.
[7]
In this application, which is a sequel to the adverse decision of the
third respondent, confirmed by the second respondent,
the appeal
tribunal, the applicant seeks review of the decision of the appeal
tribunal together with ancillary relief. She has
advanced the
following grounds:
(a)
The appeal tribunal failed to apply its mind, alternatively, it
misconstrued the law and the facts of the matter ;(b) It failed
to
comply with the mandatory procedural provisions of the empowering
legislation, being that for one to qualify for disability
grant, one
must undergo an assessment to establish whether the disability is
permanent or temporal and that if disabled whether
or not she can
enter the labour market.
[8]
At the commencement of the hearing of this matter I raised
mero
motu
,
a point as to whether or not the review should not have been directed
at the decision of the third respondent instead of at the
appeal
decision of the second respondent. Mr Mhlawuli who appeared for the
applicant and Ms Ali who appeared for the respondents
were
ad
idem
that the review was sought correctly against the appeal decision of
the second respondent. Mr Mhlawuli cited the judgment of the
Constitutional Court in
Bato
Star Fishing (Pty) Ltd v Environmental Affairs and Tourism and
Others
[7]
.
[9]
Although this judgment of the Constitutional Court was
orbiter
on this point I agree that the provision of the
Social Assistance Act
in
permitting internal appeal to the Minister intends to replace the
decision of the decision maker in the department to be that of
the
Minister so that it becomes the final decision of the Minister’
s appeal tribunal that is appealable .
[10]
It is therefore the decision of the Minister which is appealable
under the Promotion of Administrative Justice Act 3 of 2000
(PAJA).
It is desirable for litigants who seek review of an administrative
action to identify clearly both the facts upon which
they base their
cause of action, and the legal basis of their cause of action. Those
grounds are set out in paragraph [7] above.
[11]
The applicant relies on the assessment report marked NB2 to the
founding affidavit which discloses that she is a known diabetic
non-insulin dependent patient with high blood pressure and surgical
henia. But that assessment, save for making a finding of disability,
does not go further to analyze the extent of disability so as to find
that the applicant cannot enter the open labour market. The
finding
made by the doctor that she cannot enter the open labour market has
been made in the abstract without supporting jurisdictional
facts.
[12]
In my view the third respondent could not have been able to make a
decision rejecting the application on that assessment report.
The
reasons given by the third respondent point at the direction the
second respondent should have taken, namely, to refer the
applicant
to a second and independent medical examination to obtain an informed
opinion. Section 18(1) of the Regulations are permissible
in this
respect. It provides that the tribunal must, where it is unable
to make a decision due to insufficiency, inconclusiveness
or
contradictory nature of the information contained in a medical report
provided by the Agency on the applicant, beneficiary or
a person
acting on his or her behalf, refer the applicant, beneficiary or a
person acting on his or her behalf to a second and
independent
medical examination or opinion. It is clear in my view that the
second respondent overlooked this regulation thus making
its decision
reviewable under section 6 (2)(a) of PAJA. This provision empowers
the court to judicially review an administrative
action if the
administrator who took it was not authorised by the empowering
provision or acted under a delegation of power which
was not
authorised by the empowering provision ; was biased or reasonably
suspected of bias ; a mandatory and material procedure
or condition
prescribed by an empowering provision was not complied with; the
action was procedurally unfair; because irrelevant
considerations
were taken into account or relevant considerations were not
considered - the list is not exhaustive . The provisions
of
regulation (18(2) were not considered by the second respondent.
[13]
In my respectful view and as already alluded to above, the decision
of the second respondent is reviewable in terms of the
Promotion of
Administrative Justice Act, No. 3 of 2000
.
[14]
In the circumstances, the following order is made:
(a)
That the decision of the appeal tribunal in applicant’s
disability conveyed to the applicant by letter dated 13 May 2013
confirming the decision of the third respondent is hereby reviewed
and set aside as invalid.
(b)
That the applicant' s appeal is referred back to the appeal
tribunal with directions that it must act in accordance with
the
provisions of
section 18
of the Regulations of 19 September 2011 and
apply insofar as is applicable the whole of the
regulation 18(1)
to
18
(10).
(c)
That the second respondent must order that the applicant be referred
by the third respondent, to a second and independent medical
examination or opinion as contemplated in those regulations.
(d)
That on receipt of the medical report on the second and independent
medical examination, the second respondent must consider
anew the
appeal and finalise it.
(e)
That the respondents are to pay the applicant's costs jointly and
severally the one paying the others to be absolved.
_________________
LP
PAKADE
JUDGE
OF THE HIGH COURT
For
the Applicant: Mr Mhlawuli
Instructed
by: SR MHLAWULI & ASSOCIATES
Applicants
Attorney
Suites
318 & 325; 3
rd
Floor
ECDC
Building
Mthatha
For
the Respondent: Mrs Ali
Instructed
by: The State Attorney
Respondents
Attorney
No.94
Lower Sisson Street
Fortgale
Mthatha
Date
heard : 14 April 2015
Date
delivered
: 23 April 2015
[1]
Act
108 of 1996
[2]
S
2 of the Constitution
[3]
Preamble
to the
Social Assistance Act 13 of 2004
[4]
Ngalo
v South African Social Security Agency 2013 [2] SA 347 (ECM)
[5]
S
1 of the Constitution
[6]
2004(6)
SA 505 (CC)
[7]
2004(4)SA
490(CC); 2004(7)SA BCLR 687 (CC)