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[2013] ZAECMHC 24
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Geledwana v Minister of Social Development and Others (1678/12) [2013] ZAECMHC 24 (26 September 2013)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE HIGH COURT: MTHATHA
CASE NO: 1678/12
Heard on: 13/08/13
Delivered on: 26/09/13
NOT REPORTABLE
In the matter between:
NTOMBESIZWE GELEDWANA
............................................................
Applicant
and
MINISTER OF SOCIAL DEVELOPMENT
....................................
1
st
Respondent
THE CHAIRPERSON OF THE INDEPENDENT
TRIBUNAL FOR SOCIAL ASSISTANCE
APPEALS
.........................................................................................
2
nd
Respondent
SOUTH AFRICAN SOCIAL SECURITY AGENCY
......................
3
rd
Respondent
_____________________________________________________________
JUDGMENT
____________________________________________________________
NHLANGULELA J:
[1] These are administrative review proceeding in which
the applicant seeks a relief, slightly in an amended form that the
one originally
set out in the notice of motion, that the decision of
the second respondent in refusing to grant a permanent physical
disability
grant in favour of the applicant be declared to be a
violation of s 6(2)(e)(iii)and (iv) of PAJA, corrected, altered
and/or set
aside with costs.
[2] The court urged to grant such an order is empowered
under s 8(1) of PAJA to,
inter alia,
set aside the
administrative action and remit the matter back to the administrator
for re-consideration with or without directions.
The applicant was
well advised not to seek an exceptional order substituting the
decision of the respondent with the one that the
court deems
appropriate.
[3] The dispute between the parties arises from the
following circumstances: In July 2008 and in Mthatha, the applicant,
a woman,
applied for a permanent disability grant in terms of s 9 of
the Social Assistance Act 13 of 2004 (the Act), which provides that
a
person is eligible for a disability grant if he/she has attained the
prescribed age and is, owing to physical or mental disability
is
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. Further, Regulation 3 of the regulations published under
GN R898 in GG 31356 of 22 August 2008 framed under
the Act provides
that an eligible person must have attained the age of 18 years,
his/her disability must be confirmed by an assessment
which indicates
whether the disability is permanent or temporary and he/she is unable
to enter the open labour market or to support
himself/herself.
[3] On 24 July 2008 the applicant was subjected to
medical examination for the purposes of medical assessment by Dr B.
J. Mankanku
acting on behalf of the first respondent. A medical
report was submitted to the third respondent, a duly appointed Agent
of the
first respondent, for consideration in the application for
disability grant. On 15 September 2008 the third respondent addresses
a letter (annexure “NB1”) to the applicant rejecting the
application in the following terms:
“Your early controlled chronic medical condition is
controllable with regular medication from the clinic.
Your epilepsy is treatable and can be well controlled on regular
medication, causing any permanent functional impairment. Take
serial
blood levels.”
[4] On 06 September 2010 the applicant appealed the
decision of the third respondent, as advised to do so if aggrieved,
to the second
respondent (the Independent Appeal Tribunal appointed
to assist the first respondent in terms of the Act). The second
respondent
sat to entertain the appeal on 21 October 2011 and
decided, after deliberations based on the medical report of Dr
Mankanku, that
the appeal succeeds, the decision of the third
respondent is set aside and replaced with a new decision granting her
a disability
grant for a period of 12 months. The applicant was
aggrieved by the appeal decision. It appears from the record that the
main reason
for her dissatisfaction lies in the contents of the
medical report by Dr Mankanku in which the doctor found that the
applicant
was an epileptic patient with severe and frequent seizures;
and that she had received anti-convulsant agents and symptomatic
management.
The doctor concluded that the applicant has a severe
permanent impairment which would require her to work, if at all, in a
protected
and safe environment. The case put forward to the
respondents based on Dr Mankanku’s report is that she is
eligible for a
permanent physical disability grant as envisaged in s
9 of the Act read with Regulation 3.
[5] The documents discovered by the respondents are a
source of contradiction between the findings and recommendations made
by Dr
Mankanku and those of one Dr Ngwilimeni Aaron Funyufunyu on
which the appeal decision is based. Dr Funyufunyu is a qualified
general
medical practitioner who served as a panelist in the
independent appeal tribunal and issued an opinion that led to the
award of
disability grant for 12 months. The doctor gives a summary
of medical assessment of the applicant on affidavit. The thrust of
his
assessment is that the medical report compiled by Dr Mankanku did
not meet certain medical guidelines, which I paraphrase below.
[6] Dr Funyufunyu states that the conclusion drawn by Dr
Mankanku that the applicant is permanently physically disabled is not
predicated
on adequate clinical evidence of occasional
hospitalization to stabilize the patient’s convulsions; the
applicant did not
complain about frequent convulsions; the taking of
blood levels to test the efficacy of drugs administered to the
applicant and
therapeutic blood level achieved was not done; it was
not ascertained if blood levels were adequate and seizures persist
with the
result that it cannot be determined if the applicant may be
referred for specialist treatment, EEG scan and CT scan; it cannot be
determined if further treatment options including general add-on
drugs at state formulary can be recommended; no tests have been
provided on blood drug levels; and there is no evidence of strict
treatment regime for continued frequent seizures having been
done and
optimal treatment having been given. The doctor also expressed the
opinion that there is no evidence of the applicant
having associated
medical retardation, psychotic behavior and physical abnormality to
support the conclusion that the applicant
was permanently impaired.
[7] It is common cause that the source of the
applicant’s objection to the award made on appeal lies on the
fact that, on
the one hand, Dr Mankanku’s report is the medical
assessment based on medical examination actually done and, on the
other
hand, the medical assessment by Dr Funyufunyu is not founded on
medical examination to verify his adverse findings with regard to
an
alleged non-compliance with the guidelines mentioned by him on
affidavit. In the circumstances, in my view, there is validity
in the
contention advanced on behalf of the applicant that it was improper
for the Appeal Tribunal to merely adopt the unverified
findings of Dr
Funyufunyu and ignore the medical findings by Dr Mankanku that the
applicant was permanently disabled.
[8] It would appear from the provisions of Regulation 18
of 19 September 2011 issued by the Minister in terms of the Act that
the
Appeal Tribunal should not have decided the matter before it as
it did where the medical information provided to the Agency was
deficient without referring the application to an independent doctor
for a second medical examination. Dr Funyufunyu did not utilize
this
channel which was open to the tribunal but he merely made
recommendations as evidenced in the appeal adjudication forms that
were discovered in terms of Rule 53. Those forms together with the
disability grant advisory form, completed by one Dr Giwu-Mpepo,
also
a discovered document, were not made pursuant to a fresh medical
examination, and they contain abbreviated medical opinions.
By
comparison the medical evidence contained in Dr Funyufunyu’s
affidavit is far more extensive than the notes made in the
forms. It
does not appear from the record if such medical evidence was
considered by the tribunal. It seems to me that the detailed
medical
examination of Dr Mankanku was disregarded in preference for the
scant medical assessment that was not supported by any
medical
examination. The appeal tribunal committed misdirection in this
regard. Consequently, I have no hesitation in finding that
the rights
of the applicant to a just administrative action were breached.
[9] In
Mnikelo Mnyaka v Minister of Social
Development And Others,
ECM Case No: 1637/2012 dated 30 April
2013 (unreported) Lowe J made a similar finding, as I have done, in
circumstances where the
applicant for a disability grant had been
denied an award on appeal by reason that the appeal tribunal failed
to obtain a second
medical examination to reconcile two mutually
destructive medical reports submitted before it. The learned Judge
set aside the
decision of the appeal tribunal on that basis. I had no
reason to do otherwise in this matter.
[10] The applicant also seeks a relief that her failure
to bring the application within 180 days be condoned. She has set out
facts
in the affidavits filed on her behalf that although the appeal
decision conveyed to her was made on 21 January 2011, she only became
aware of it in December 2011 whereupon she sought advice from the
O.R. Tambo Disabled Peoples’ Organization. That organization
was not of much help until she found an attorney in April 2011 to
assist her. Her relationship with the attorneys went sour, and
she
was compelled to leave them. Significantly, those attorneys informed
her that she had no prospects of success in her intended
appeal
because she had no good reasons to place before the court to justify
a long delay in challenging the appeal decision. She
had to move to
another firm of attorneys on 31 July 2012 who ultimately assisted her
to bring these proceedings on 03 August 2012.
The applicant has
pleaded poverty and ignorance of the provisions of s 7(1) of PAJA. It
was contended on her behalf during arguments
that the circumstances
placed before the court coupled with the nature of the claim brought
against the respondents puts the explanation
for delay within the
ambit of considerations as dealt with in the cases of
Ntame v MEC
for Social Development, Eastern Cape, And Two Similar Cases
2005
(6) SA 248
(ECD)
;
and
Njanjula v MEC for Social Welfare,
Eastern Cape,
SECLD Case No: 1710/2003 (unreported). It was held
in these cases that condonation will be granted under PAJA if it
appears to the
Court that a poor litigant has a least chance of
vindicating his/her constitutional right through the legal process;
and the period
of delay does not work an injustice to the respondent.
In my view a dispute about the time of delay in this matter, in the
absence
of prejudice, should not be allowed to operate as a bar to
the application for condonation being granted.
[11] In the result the following order shall issue:
The applicant’s failure to institute these proceedings
within a reasonable period of time be and is hereby condoned.
The applicant’s application for permanent disability grant
be and is hereby remitted back to the second respondent for
re-consideration
taking into account the provisions of Regulation 18
to the regulations dated 19 September 2011.
The first and second respondents to pay costs of the application
on attorney and client scale jointly and severally, the one paying
and the other being absolved from liability.
__________________________________
Z.M. NHLANGULELA
JUDGE OF THE HIGH COURT
Counsel for the applicant : Adv N. Hinana
Khaya Nondabula Attorneys
c/o L G Nogaga Attorneys
MTHATHA.
Counsel for the 1
st
and 2
nd
respondents : Adv PHS Zilwa
c/o State Attorney
MTHATHA.