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[2013] ZAECMHC 10
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Putululu v Minister of Social Development and Others (2469/12) [2013] ZAECMHC 10 (28 June 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE HIGH COURT-MTHATHA
Case
No: 2469/12
Date
heard: 28 February 2013
Judgment
Delivered: 28 June 2013
In
the matter between:
MGQOBOKA
PUTULULU
.................................................................................
Applicant
and
THE
MINISTER OF SOCIAL DEVELOPMENT
........................................
1
st
respondent
THE
CHAIRPERSON OF THE INDEPENDENT TRIBUNAL
FOR
SOCIAL ASSISTANCE APPEALS (PR NANDAN)
........................
2
nd
respondent
THE SOUTH AFRICAN SOCIAL SECURITY
AGENCY
..........................
3
rd
respondent
JUDGMENT
DUKADA
J:
[1] On the 28 February 2013 I made an
order dismissing the application in this matter with each party to
pay its own costs. Here
are the reasons for the said order.
[2] The facts are briefly as follows:-
The applicant applied for a social
grant to the office of the third respondent at Nqamakwe and the
application was refused on the
25 March 2010. The reason for the
refusal was given as follows:-
“
You have recovered well
after being treated for early controlled chronic medication
condition.
YOU HAVE RECOVERED WELL AFTER BEING
TREATED FOR TPD”.
Applicant had been medically assessed
by Dr Mbelebane on the 3 February 2010. He diagnosed the applicant to
have a special condition
he described as “EX-PTB”. He
also ticked on the form a remark that applicant has “
little
medical impediment present, however, due to poor social economic
circumstances and lack of employment opportunities applicant
is
destitute
.”
Applicant appealed against the
decision refusing his application to second respondent. Second
respondent advised the applicant per
his letter dated 19 May 2011
that his appeal to the first respondent was unsuccessful because
applicant’s medical condition
was cured pulmonary tuberculosis
and that the medical condition was found not to render him disabled
and therefore does not affect
his functioning to such a degree that
he cannot obtain the means to provide for his maintenance.
[3] The applicant has now applied to
this Court for the review of the said appeal decision. The applicant
in support of his applicaton
is making use of the case of one
Sinolwethu Bulu whose appeal to the second respondent was successful.
Second respondent gave reasons
for her decision on appeal as:-
“
That the medical officer
confirmed that you do have a medical condition: Mental retardation.
This medical assessment, however confirmed
evidence of a disability
which renders you temporarily unable to enter the open labour market
or be gainfully employed.”
On scrutinizing the medical report on
Sinolwethu I could not find a remark that his disability render him
temporarily unable to
enter the open labour market.
The remark by the doctor which I could
find in his medical report is “
minimal impairment present
affecting ability to work
.”
However, on closer examination of
applicant’s medical condition and comparing it with that of
Sinolwethu, I do not find the
two comparable. Applicant’s
condition is a cured pulmonary tuberculosis, whereas the other has a
mental retardation.
[4] A further point for consideration
are the requirements for eligibility for a disability grant. Section
9 of the
Social Assistance Act 13 of 2004
provides:-
“
A person is, subject to
section 5
, eligible for a disability if he or she-------
has attained the prescribed age;
and
is, owing to a physical or mental
disability, unfit to obtain by virtue of any service, employment or
profession the means needed
to enable him or her to provide for his
or her maintenance.”
In his case the applicant, as required
by
section 9
(b) in order to be eligible for the disability grant,
has, to show that owing to a physical disability, he is unfit to
obtain by
virtue of any service, employment or profession the means
needed to enable him to provide for his maintenance. The medical
report
in respect of the applicant does not say that his physical
condition causes him to be unfit to obtain by virtue of service,
employment
or profession, the means needed to enable him to provide
for his maintenance.
In my view the applicant should have
first made a good case in his situation for his eligibility for a
disability grant, and only
thereafter he could, if legally necessary,
make a comparison with the other case.
In my view, applicant’s case
does not satisfy the requirements of
Section 9
of the
Social
Assistance Act.
[5
] The applicant alleges that first
and second respondents were biased or reasonably suspected of bias in
their decision. This allegation
is not supported by any facts and
consequently it falls to be rejected. The facts which satisfy the
requirements of the “
reasonable suspicion of bias
”
(See
BTR Industries SA (Pty) Ltd v Metal & Allied Workers
Union
[1992] ZASCA 85
;
1992 (3) SA 673
at 696 i-j)
.
[6] Applicant further alleges that the
decision made the first and second respondents is so unreasonable to
an extent that no reasonable
person could have so excused the power
or so perform the function.
Again this allegation is not supported
by any facts. As analysed above, these is a factual foundation for
the decision refusing
the application for a disability ground.
[7] The applicant also alleges that
the differentiation between his case and that of Sinolwethu does not
bear a rational connection
to a legitimate government purpose. I have
already analysed the attempt compare these two cases and I my view
the comparison is
not well-founded and has no merit at all.
[8] In the circumstances I found that
the application has no merit and I therefore dismissed it with costs.
As far as costs are
concerned I found no reason justifying a
departure from the usual rule that costs follow the event.
_______________________
D.Z. DUKADA
JUDGE OF THE HIGH COURT
Appearences
For the applicant : Adv Mtshabe
Instructed By Khaya Nondabula
Attorneys
MTHATHA
For the 1
st
and 2
nd
Respondent: : Adv Bhodlani
Instructed by the State Attorney
MTHATHA
3