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[2013] ZAECMHC 4
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Ngalo v South African Social Security Agency (SASSA) (2740/11) [2013] ZAECMHC 4; [2013] 2 All SA 347 (ECM) (14 February 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION: MTHATHA)
REPORTABLE
CASE NO: 2740/11
In the matter between:
ZUKISWA NGALO
.........................................................................
APPLICANT
And
THE SOUTH AFRICAN SOCIAL SECURITY
AGENCY (SASSA)
.......................................................................
RESPONDENT
JUDGMENT
PAKADE
ADJP
:
INTRODUCTION
[1] An important feature of the Constitution is the
express recognition of socio-economic rights in a justiciable Bill of
Rights.
These include the right to basic education, access to
adequate shelter and housing, adequate health care services, the
right to
sufficient food, water and social security.
1
As Albie Sachs once said:
“
It is no accident that constitutions usually
come into being as a result of bad rather than good experiences.
Their text or subject
is almost invariably: “never again”.
In the case of South Africa the new constitution arises out of the
need to escape
the profound humiliation and oppressions created by
apartheid. Through the constitution we affirm something from our
dolorous history.
It is worth repeating: all constitutions are based on
mistrust. If we could trust our rulers, our parties, ourselves, we
would not
need constitutions.
Power not only corrupts, it intoxicates, it confuses.
Like nature it abhores vacuum, like water it follows the path of
least resistance.
Oppression is oppression but in some ways
oppression in the name of the good is worse than oppression in
defence of the bad, since
it tarnishes the very ideas it seeks to
protect and deprives people even of the image of a better society”
2
[2] The concern of the public is how these rights can be
converted from paper guarantees to reality. Herein below this
judgment
will try to show the continual commitment of the Eastern
Cape High Courts to vindicate the constitutional rights of the
indigent
applicants for social security and thus protecting
socio-economic rights.
APPLICANT’S CASE
[3] In this application, the Applicant seeks to
vindicate her constitutional right of assess to social security which
is guaranteed
by section 27(1) (c) of the Constitution
3
.
[4] Section 27(2) of the Constitution enjoins the state
to take reasonable legislative and other measures within its
available resources
to achieve the progressive realization of this
right. In conformity with this Constitutional obligation, the state
promulgated
the
Social Assistance Act, No.13 of 2004
on 05 June 2004,
which came into operation on 01 April 2006 (the Act) and the
regulations, published in Government Notice No. 162
dated 22 February
2005 which repealed the Social Assistance Act No. 59 of 1992 and its
regulations.
[5] The objects of the Act are to provide the
administration of social assistance and payment of social grants;
make provision for
social assistance; determine the qualification
requirement thereof and to ensure that minimum norms and standards
are prescribed
for the delivery of Social Assistance
4
. The South African Social Security Agency `(SASSA) (the
Respondent) was established by the
South African Social Security
Agency Act 9 of 2004
5
,
to ensure the efficient and effective management, administration and
payment of social assistance. The Social Assistance Act assigns
to
the Agency a duty to make available, out of monies appropriated by
parliament, a child support grant; a care dependency grant;
a foster
child grant; a disability grant; an older persons grant; a war
veterans grant; and a grant in aid
6
.
[6] The socio-economic rights in our
Constitution are closely related to the founding values of human
dignity, equality and freedom
7
.
This view was fortified by Yacoob J in
Government
of the Republic of South Africa and others v Grootboom and others
8
that the Constitution obliges the state to act
positively to ameliorate the plight of the hundreds of people living
in deplorable
conditions throughout the country. It must provide
access to housing, health care, sufficient food and water, and social
security
to those who are unable to support themselves and their
dependents. Yacoob J further stressed that all the rights in the Bill
of
Rights are interrelated and mutually supporting. With regard to
the Constitutional requirement of legislative measures, Yacoob J
opined that by themselves they are not enough to achieve
constitutional compliance. The state must act to achieve the intended
result. The legislative measures have to be supported by appropriate
well-directed policies and programs implemented by the Executive.
The
programs must be reasonably implemented
9
.
[7] This application concerns the enforcement of these
interrelated rights, in particular, the right to social security.
[8] The applicant, Ms Zukiswa Ngalo is the mother of
Inathi Duba, a disabled minor child born on 21 July 2002. Ms Ngalo is
a semi-illiterate
unemployed South African Citizen. Inathi is
suffering from septic arthritis and hip deformity which resulted in
her leg being shorter
than the other. As a result of her deformity,
she walks with a noticeable limp although she uses crushes and
orthopedic shoe. The
doctor who examined her on the 27 September 2010
in Nelson Mandela Academic hospital opined that Inathi “
qualified
for a care dependency grant because she will have a long term
disability”.
[9] Section 7 of the Act provides that a
person is eligible for a care dependency grant if he or she is a
parent, primary care giver
or foster parent of a child who requires
and receives permanent care or support services due to his or her
physical or mental disability.
Section 6(1) of the regulations
provides that “
a parent, primary care
giver, or foster parent is eligible for a care dependency grant in
respect of a care dependant child if a
medical officer certifies the
child as a care dependent child as defined in the Act”
.
A care dependent child is a child who requires and receives care due
to his or her severe mental or physical disability. The South
African
Oxford Dictionary
10
defines the operative word “disability” as a
person who is made to be unable to do something because of illness or
injury.
No doubt Inathi falls in the category of disabled person and
is entitled to a grant in terms of the Social Assistance Act.
[10] On the 27 January 2009, Miss Zukiswa Ngalo applied,
on behalf of Inathi, for a care dependency grant to the South African
Security
Agency. A year lapsed without a response to that
application. She again made another application for care dependency
grant on 20
January 2011 but still no response came from the South
African Social Security Agency. She then resorted to the machinery of
the
law and on 01 September 2011 her Attorneys wrote a letter to the
Regional Executive Manager of SASSA requesting the outcome of the
application. There was no response received from SASSA.
[11] Finally on 04 November 2011 Miss Ngalo brought this
application seeking a
mandamus
directing the Respondent to
consider and decide the application for a care dependency grant and
that having so decided, to inform
the Applicant’s Attorneys of
the outcome thereof within 15 days from the date of the decision but
also to furnish reasons
for refusing the grant in the event of such a
refusal.
[12] The application papers were served on the State
Attorney in Mthatha on the 7 November 2011 at 08h40.
THE RESPONDENT’S CASE
[13] On the 17 November 2011 the Respondent filed a
notice to oppose the relief sought by the Applicant. Thereafter the
answering
affidavit was filed on the 08 December 2011 together with a
letter to the Applicant’s Attorneys dated 22 November 2011 from
“
the reconsiderator
” of the Respondent. The letter
informed the Applicant’s Attorneys that Miss Zukiswa Ngalo’s
“application
for a reconsideration of the agent’s
decision is upheld”. In my view, the matter collapsed at that
stage, namely, on
the date the Respondent informed the Applicant of
the outcome of her application.
The issue that remains for consideration is one of costs
on which my discretion has to be informed by the merits of the
application
and the law.
[14] The letter of approval was written on the 22
November 2011 when the litigation was already in progress, having
been commenced
with on the 04 November 2011. The Respondent conceded
in the answering affidavit that the approval of the grant was
communicated
to the Applicant on the 22 November 2011.
[15] The only basis on which the Respondent resists the
payment of costs is that the application was instituted prematurely
before
the expiry of the ninety day period. The Respondent further
contends that the approval of the application was communicated to the
applicant before the expiry of ninety days from the date of the
Applicant’s letter requesting the outcome of the application.
There was no reason for the Applicant to launch the application
before the expiry of ninety days from 01 September 2011, so avers
the
Respondent. The Respondent denies that there had been an undue delay
in the processing of the application. The Respondent has,
however,
not referred to any authority in support of the contention relating
to the alleged ninety day period which had to be given
or allowed for
the processing of an application for a grant after requesting an
outcome of the application.
THE LEGAL POSITION
[16] It is crucial at this stage to consider the
provisions of the Act and regulations pertaining to the processing
and notification
of the outcome of the application for a grant.
Regulation 12 deals with the obligation of the Agency to notify the
Applicant of
the outcome of the application. The full text of the
regulation reads as follows:
“
12(1) The Agency must, on approval of a grant
application, inform the applicant in writing in the language of
preference of the
applicant, of such approval and the date on which
such approval was made .
(2) The Agency must, upon refusal of a grant, or
within a reasonable period thereafter, inform the applicant of such
refusal in
writing and in the language of preference of the
applicant, and give reasons for such refusal.
(3) The Agency must, when informing the applicant of
refusal of a grant application, also inform the applicant of his or
her right
to lodge an appeal in terms of section 18 of the Act.
(4) Whenever the Agency informs the applicant of an
outcome of an application, the Agency must ensure that the applicant
fully understands
the decision of the Agency, the reasons thereof and
the procedures to be followed thereafter.”
[17] Clause 12(1) imposes a duty on the
Agency to notify the Applicant of the approval of his/her application
for a grant
11
every
time there is such an approval. There is no time frame prescribed in
the regulation nor in the Act. If a statute proclaims
that something
should be done without providing time frame within which it has to be
done, the courts usually interpret such a
provision to mean that it
has to be done within a reasonable time
12
.
In
S v Mohammed
13
the court had to consider whether the application for
leave to appeal was made timeously having regard to the fact that
section
21(2) (a) of the Supreme Court Act 59 of 1959 did not, before
its amendment, prescribe time limits for bringing an application for
leave to appeal to the then Appellant Division. Trollip JA reasoned
that in the absence of a prescribed time limit, the applicant
had to
apply for leave to appeal within a reasonable time after the judgment
or order. Again,
section 15(2)
of the
Prescription Act 68 of 1969
provides that the running of prescription shall not be deemed to have
been interrupted if the creditor does not successfully prosecute
his
claim under the process in question to final judgment, without
specifying a time limit within which a claim has to be prosecuted.
Munnick CJ, in Titus v Union & SWA Insurance Co Ltd
14
,
dealt with this problem and said at 740 F-H:
“
It is not unreasonable to assume that what the
Legislature had in mind was the following: It is necessary that there
should be finality
in litigation. The plaintiff is given a reasonable
time within which to institute his action thereafter he is in the
hands of the
administration of the Courts.”
This dictum was applied by Harms DP in
Cadac (Pty) Ltd v Weber Stephen Products Co and others
15
.
[18] I therefore find that the Respondent was obliged to
notify the Applicant of the outcome of her application for care
dependency
grant within a reasonable time from the date of its
approval. This brings me to the next issue namely, whether the
notification
was made within a reasonable time from the date of its
approval or not.
[19] I have already said above that while the
application was made on the 27 January 2009 and again on the 20
January 2011, the
notification of its outcome was delivered to the
Applicant’s Attorneys on the 22 November 2011. There is no
indication, however,
in the notification document when the approval
was made. But what is patently clear from this document is that it is
an approval
of an application for a reconsideration for a care
dependency grant which was never made because, as said by the
Applicant, a second
application had to be made on the 20 January 2011
after SASSA had failed to process the first application and had also
failed to
notify the applicant of the outcome thereof.
[20] In
Mbanga v MEC
for Welfare and Another
16
it
was held that it was reasonable for a decision on an application for
a social grant to be taken within three months and that
it was
unreasonable for SASSA to have taken thirty two months to approve the
application. Accordingly Leach J held that failure
to take a decision
on a social grant application constitute an infringement of the
applicant’s constitutional right to lawful
and just
administrative action (see also
Mahambehlala v
The MEC for Welfare, Eastern Cape Provincial Government and
Another
17
).
I agree.
[21] Therefore a reasonable time within which an
application for social grant is to be processed and the Applicant
informed of the
outcome thereof is three months. It is wholly
unreasonable and unacceptable for such an approval and notification
thereof, as in
this case, to take a period of two years.
[22] The individual’s entitlement to
enforce the social security rights was confirmed by Chetty J in
January v MEC for Welfare, Eastern Cape
Provincial Government and Another
18
when he stated:
“
It is common cause that when the applicant
attained the age of sixty, she qualified for a social grant for the
aged popularly referred
to as an old age pension in terms of the
Social Assistance Act 59 of 1992. The applicant nonetheless, only
applied for such grant
when she reached the age of 64. She forwarded
her application to the department. It is not in issue that she
qualified for assistance
under the Act and that her application
complied fully with the terms of the Act and the regulations
promulgated thereunder.
Three years elapsed. During that period the applicant
made regular enquiries concerning the fate of her application. Her
efforts
produced no tangible results. She was ultimately compelled to
employ the machinery of the law to enforce her constitutionally
entrenched
rights”
[23] The authorities are legion on the
unreasonable delay in the processing of social grant applications and
failure to comply with
court orders in the Dept of Welfare in the
Eastern Cape Provincial Government. In
Mbanga
v MEC for Welfare
19
and
Nomala v Permanent Secretary
Dept of Welfare
20
the court emphasized that state provided social
assistance grant must be made within a reasonable time of
application. In other
cases
21
the courts also emphasized that the unilateral
suspension or termination of grants without proper adherence to the
administrative
law principles of natural justice and the rights which
accrued in terms of the statute, is unlawful and invalid.
[24] In
Mahambehlala
v MEC for Welfare,
Leach J opined that the
applicant should be entitled to a constitutional relief where common
law relief of an award of damages will
be insufficient to remedy
effects of unreasonable delay in the processing of the application
for social grant. For such violation
of a person’s right to
social security, C. Plasket
22
suggests that the Courts should consider awarding
punitive orders against public officials, not in their public
capacity but in
their personal capacity. This suggestion followed the
judgment of
Njongo Booi and others v Nomsa
Jajula & others
23
in which the Member of Executive Council for Welfare was
cited personally for contempt of Court together with her Permanent
Secretary
and two officials. This prompted an urgent response from
that Department which led to the settlement of the orders which have
remained
outstanding for 14 months. I agree that punitive orders
should be extended to unreasonably delayed outcomes of applications
for
a social grant.
[25] In the present application, the delay of over two
years in processing the application is unacceptable as it prejudices
the
Applicant. As alluded to above, the Applicant was notified of the
outcome of her application on 22 November 2011 for an application
which was made on the 27 January 2009. The notification does not
indicate the date of the approval of the grant as required by
regulation 12(1). Regulation 13(1) provides that a grant, if
approved, must be paid from the date on which the application is
deemed to have been made in terms of regulation 10. The applicant’s
care dependency grant was therefore approved with effect
from the 27
January 2009, the date when the application was launched to the
Respondent and she is entitled to payment with effect
from that date.
The approval was notified on the 22 November 2011 when the litigation
was already serving in this Court. There
is no explanation for the
delay. All that is apparent from the answering affidavit is a
misconceived blatant denial of the delay.
[26] Treating human beings with dignity
requires of the state to act in a reasonable manner towards those
claiming social security
rights, such as the right to social grant.
Human dignity, as a fundamental constitutional value and a
fundamental right enshrined
in the Bill of Rights, is an important
catalyst to alleviate poverty of the historically deprived. Hence
Chaskalson J said in
Soobramoney v Minister of
Health, KwaZulu- Natal
24
,
“
We live in a society in which there are great
disparities in wealth. Millions of people are living in deplorable
conditions and
in great poverty. There is a high level of
unemployment, inadequate social security and many do not have access
to clean water
or to adequate health services. These conditions
already existed when the constitution was adopted and a commitment to
address
them and to transform our society into one in which there
will be human dignity, freedom and equality, lies at the heart of our
new constitutional order.
For as long
as these conditions continue to exist that aspiration will have a
hollow ring
’
(emphasis
supplied)
COSTS
[27] In the circumstances the view I hold
is that the Applicant is entitled to the costs of the application.
The Applicant has,
understandably so, urged the Court to award costs
against the Respondent on an attorney and client scale. This is the
example of
such a case suggested by C. Plasket
25
as deserving punitive costs.
[28] The Applicant has not only achieved substantial
success but has been successful in the present application in that
the Respondent
was moved, upon service of the application papers, to
process and approve the grant.
ORDER
[29] In the circumstances, the Respondent is directed to
pay the costs of the application and such costs to be taxed on the
scale
applicable between Attorney and own Client.
_____________
LP Pakade
ACTING DEPUTY JUDGE PRESIDENT
For the Applicant : Mr Mtshabe
Instructed by : Manitshana, Tshozi Attorneys
c/o: L.G Nogaga Attorneys
Suite 125 & 126
First Floor
ECDC Building
For the Respondent : Adv Zilwa
Instructed by : State Attorney
No. 94 Sission Street
Broadcast House
Fort Gale
Heard on : 15 June 2012
Delivered : 14 February 2013
1
Act
108 of 1996
2
A
Sachs: The Constitution is Natural Justice Writ Large in H. Corder
and Mc Lennan (eds) Controlling Public Power (Dept of Public
Law,
UCT: Cape Town 1995) 51
3
S
27 (1)(c) of Act 108 of 1996 provides that everyone has a right to
have access to -social security, including, if they are unable
to
support themselves and their dependants, appropriate social
assistance.
4
Section
3 of Act 13 of 2004
5
Section
2 of the South African Security Agency Act 9 of 2004
6
Section
4 of Act 13 of 2004
7
Section
1 of the Constitution, referred to by Justice Mokgoro in Khoza and
others v Minister of Social Development and Others
2004(6) SA 504
(CC) at paragraph[40]
8
2001(1)
SA 46 (CC)
9
Footnote
8
10
The
South African Shorter Oxford English Dictionary on historical
principles, Sixth Edition Volume 1 at par [42]
11
Section
10 of the Interpretation Act, 33 of 1957
12
S
v Mohammed 1977(2) SA 531 (A)
13
1977(2)SA
531 (A)
14
1980(2)SA
701 (TKS)
15
2011(3)
SA 570 (SCA); See also Camps Bay Rate Payers President Association &
Others v Minister of Planning, Culture &
Administration, Western
Cape & Others 2001(4) SA 294 (c) 306 H- 307 G
16
2001
(8) BCLR 821
(SE)
17
SECLD
Case no:2127/00
18
[
2002]
4 ALLSA 606
SE at par 3
19
(2001)8
BCLR 821 (SE)
20
(2001)
8 BCLR 844
(E)
21
Mbanga
v MEC fro Welfare
(2001) 8 BCLR 821
(SE). Nomala v Permanent
Secretary, Dept of Welfare
(2001) 8 BCLR 844
(E); Mahambehlala v The
MEC for Welfare, E/C Provincial Govt & Another, SELD Case No:
2127/00; January v MEC for Welfare
E/C Provincial Govt
[2002] 4 All
SA 606
(SE); Mjeni v Minister of Health & Welfare 2000(4) SA 446
(Tk); Ngxuza & Others v Permanent Secretary, Dept of Welfare,
E/C Provincial Govt & Another 2000(12) BCLR1322(E)
22
Protecting
the Public Purse: Appropriate Relief and Court Orders against
officials (2000)117 SALJ 151, now Plasket J
23
ECD
Case no. 431&433/99
24
1998(1)
SA 765 (CC)
25
Protecting
the Public Purse: Appropriate Relief and Court Orders against
officials (2000)117 SALJ 151