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[2013] ZAECMHC 26
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Nqukuthu v The Minister of Social Develpoment and Others (2465/2012) [2013] ZAECMHC 26 (26 September 2013)
1
IN THE HIGH COURT OF SOUTH
AFRICA
EASTERN CAPE HIGH COURT :
MTHATHA
NOT REPORTABLE
CASE NO: 2465/2012
In the matter between :
KROMZA NQUKUTHU
....................................................................................
APPLICANT
and
THE MINISTER OF SOCIAL
DEVELOPMENT
..........................................
1
ST
RESPONDENT
THE CHAIRPERSON ON THE
INDEPENDENT TRIBUNAL
FOR SOCIAL ASSISTANCE
APPEALS (P.P TSOMELE)
..........................
2
ND
RESPONDENT
SOUTH AFRICAN SOCIAL
SECURITY AGENCY
(SASSA)
...............................................................................................
3
RD
RESPONDENT
REASONS
FOR DISMISSAL OF APPLICATION
DAWOOD J :
1.
This Application came before me and was dismissed with each party to
pay their own costs save that the Respondent was directed
to pay the
reserved costs in respect of the matter being enrolled on the
uncontested opposed roll on the 14
th
of February 2013.
2.
The Applicant sought reasons for the dismissal of the Application. I
shall briefly set out the reasons for the dismissal.
3.
FACTUAL BACKGROUND
3.1.
The Applicant herein sought the following relief as set out in the
notice of motion:-
The applicant’s failure to institute these
proceedings within a reasonable period of time be and is hereby
condoned in the
interests of justice.
The 1
st
and 2
nd
respondents be
and are hereby called upon to show cause why the said respondents’
administrative action of awarding applicants’
social
disability grant as a six month temporary disability grant cannot be
corrected, reviewed and set aside.
That the 1
st
and 2
nd
respondents be and are hereby directed to approve applicant’s
disability grant as a 12 month temporary disability grant
with an
appropriate back pay of all the monthly disability grant monies with
effect from the 21 February 2011 until the grant
of the orders
sought herein.
In the alternative, that the 1
st
and 2
nd
respondents be and are hereby directed to award applicant a six
month temporary disability grant, it being a difference from
the six
month disability grant that was not paid to her.
That the respondents be and are hereby directed to
effect payment of applicant’s six month disability grant
monies within
one month from the grant of the orders sought herein.
The 1
st
and 2
nd
respondents be
and are hereby directed to advise applicant’s attorneys when
they have complied with the order sought in
the preceding paragraph
and to do so in writing within 15 days of having complied with the
above orders.
7) That the 1
st
and 2
nd
respondents be and are hereby directed to pay the costs of this
application jointly and severally the one paying for the other
to be
absolved with the 3
rd
respondent paying costs hereof only
in the event of opposing the grant of the relief sought herein.
8) That the Honourable Court grants such further
and/or alternative relief.”
3.2. The Applicant inter alia made the following averments in his
affidavit in support of the relief sought:-
That he is a semi-literate adult male whose highest level of
education is standard 2.
He is disabled with the meaning of the Act in that he is suffering
from HIV/AIDS and various other opportunistic diseases, however
no
support for this averment with regard to opportunistic diseases is
found in his medical records.
He is physically weak and cannot engage in any kind of manual labour
in order to produce an income for him and those whom are
dependant
on him.
He has sought employment from different places but due to his
condition it has not been offered to him.
All employers have stated that there is absolutely nothing he can do
in their places of employment on account of his disability,
mo
supporting affidavits have been filed by any person purporting to be
a prospective employer that he approached to confirm
this
allegation.
He accordingly submitted that owing to his disability he is
unemployed.
Owing to his disability and the fact that he is poor he has no means
to support himself and has dependants and accordingly applied
for
social assistance with the local office of the 3
rd
respondent.
He applied for a social grant on the 21
st
of February
2011 at Port Saint Johns and the same was refused.
The written reasons for the refusal were that it was rejected
because it “
was not recommended by Medical
doctor. Your retroviral disease is treatable and can be controlled
on regular medication”.
Doctor Bara
noted the following when he examined the
Applicant on 26
th
of January 2011, in the medical report
for Disability Grant Application. He noted that the Applicant had a
standard 2 level of
education and that he
never worked.
He noted further that:-
“
The
findings clinical examination was known HIV/AIDS stage IV patient on
ART.
Fairly stable, weak and needs nutritional support.
Test results – CD 4 – 66 on 22 November 2010.
His diagnosis was HIV/AIDS, Stage IV, very weak to function
Treatment ART
His suggestion for further investigation/treatment/management
was:-
Alleviate poverty
He indicated that the chronic condition was
severe
because
it was
difficult
to
treat
without food
.”
The Independent Appeal Tribunal set aside the decision of SASSA
declining the Applicant’s Application and awarded him a
Temporary Disability grant for 6 months on the basis that the
medical officer confirmed that he has a medical condition:
“
Retroviral Disease, complications of his
medical condition were however, found to be of a temporary nature
and therefore rendered
him disabled only for a temporary stipulated
duration…”
He was informed further in the letter dated the 9
th
of
May 2012 by the chairperson that should there be any significant
changes in his medical condition he should approach his nearest
SASSA local office with comprehensive and recent medical reports to
re-apply for social assistance, in this regard.
3.3. The applicant alleged further that the awarding of the 6 month
disability grant constitutes
unfair discrimination and is
condemned by the constitution,
for the following reasons:-
a) A female person Nondima Bukiwe applied for social assistance on
the 29
th
of July 2010 and was refused and on appeal she
was she was awarded a 12 month temporary disability grant on the 29
th
of July 2011.
b) She had also gone for a medical assessment to DR Bara on the
24
th
of June 2010.
c) He noted that she had a standard 2 level of education and that she
was
not working.
Hhe
noted under clinical findings:-
HIV/AIDS
Previous
PTB
Known
as HIV/AIDS patient in Stage 4 with previous history of
PTB looks
chronically ill, emaciated and weak, under nourished.
CD4=
251
on 04 August 2008
Diagnosis
HIV/AIDS
Stage
4
Very
weak
Treatment
ART reg Ib(b)
Previous
treatment efforts TB
Suggestions
Alleviate
poverty
Needs
nutritional support
Illiterate
and unskilled
Chronic
condition severe – improve food security”
d) According to the applicant the said Nondima Bukiwe was found to
suffer from HIV/AIDS and previously had pulmonary tuberculosis.
e) According to him they were similarly situated and the Constitution
requires them to be treated similarly.
f) He further alleged that the 1
st
and 2
nd
Respondents failed to keep up this standard by allowing the Appeal of
Bukiwe as a 12 month temporary grant and allowing him a 6
months
disability grant when
their medical condition are the same
.
g) He alleged that there are no
reasonable basis
that can
result in his appeal being awarded as a six months disability grant
when that of Bukiwe was awarded as a 12 month disability
grant.
h) He alleged it is the
degree
of
disability
and
not
the
type
of
ailment
which should determine whether
one qualifies for a grant or not.
i) The 1
st
and 2
nd
Respondents have failed to
keep up with
consistency
and
proportionality
in their
determinations and in the circumstances their decision is
unconstitutional
and falls to be reviewed.
j) The first and second Respondent were
biased or reasonably
suspected of bias
in their decision in that a
female
person who was found to be
similarly situated
with him was
awarded a 12 month grant on appeal whilst he was awarded a 6 month
grant.
k) Consequently the action purportedly taken by the first and second
Respondents is
unreasonable
to an
extent
that no
reasonable person
could have so exercised the power or so
performed
the function
.
l) The action at issue aims to differentiate between people or
categories of people of
same circumstances
on
unfair
grounds.
m) The differentiation does not bear a
rational connection
to
a
legitimate government purpose.
n) The 1
st
and 2
nd
Respondents are not at
liberty to determine appeals ‘willy nilly’ and without
having recourse to the impact of their
decisions on those that will
be affected.
o) He has a right to
equal treatment
and
equality
before the law and that right may not be infringed without
justifiable reasons.
p) The conduct of the 1
st
and 2
nd
Respondents
unjustifiably infringes
section 9
of the
Constitution
and falls foul of the standards set out in
section 6
of the
Promotion of Administrative Justice Act 3 of 2000
(PAJA)
and is therefore
unconstitutional and unlawful
.
q) Had the Respondent properly taken into account the provisions of
section 9
of the constitution when making their determination,
his appeal would have been allowed as a 12 month grant and he would
have been
awarded a 12 month social disability grant.
r) The decision should be revised because it was
improper,
irregular, unfair, unconstitutional, unreasonable, not rationally
connected to the information before the administrator
at the
time
of taking the decision
,
irrelevant
considerations were
taken into account and
relevant considerations
were not taken
into account when the same was
arrived at.
s) The evidence shows that he is an eligible candidate for a 12 month
grant.
t) The Respondent
failed
to properly
apply
their minds
to the
facts presented
and they
discriminated against him
unfairly
.
u) It is clear that he was differentiated from a person of
identical
medical conditions in terms of degree of disability as envisaged
in the regulations.
3.4. The third respondent filed a notice to abide by the decision of
the court.
3.5. An affidavit was filed by a
Doctor Jan Harm Olivier
on
behalf of the 1
st
and 2
nd
Respondents, wherein
he stated inter alia that:-
a) He was the medically qualified member of the 2
nd
Respondent panel that considered the Applicant’s Appeal.
b) He denied that the medical report annexed to the Applicant’s
application papers showed that the Applicant was disabled
to the
extent of entitling him to a 12 month temporary disability grant.
c) According to him he had perused the report of Dr Bara and J.B
Mkwanazi as well as the various clinical outpatient records that
were
filed with the Applicant’s appeal papers and it became clear to
him that there was no
indication that the Applicant was in fact
disabled to the extent of qualifying for a 12 months temporary
disability grant
, the Applicant has only annexed Dr Bara’s
report to these papers.
d) According to him the antiretroviral treatment was initiated from
30 December 2010 and the medical examination took place on
26
th
January 2011 showing the Applicant as being
stable
but still
weak and unable to function and in need of nutritional support.
e) According to him this made it obvious to him that the applicant
was at that stage too weak to function in the open labour market
and
that a temporary disability grant of 6 months duration was
appropriate.
f) The applicant was already on anti-retrovirals at that stage and
with the necessary nutritional support, it was reasonably expected
that the applicant would return to normal functional activity within
a period of 6 months.
g) This took into account the fact that the examining doctor had
found that applicant to be “fairly stable” on
examination.
h) He indicated that from his extensive experience the above
prognosis held true for the majority of cases, hence his
recommendation
to the second respondent tribunal that a temporary
disability grant of 6 months duration was indicated.
i) In any event, the appellant always had the option of reapplying
for a further disability grant in the unlikely event that 6
months
duration proved inadequate.
j) He accordingly denied that the medical reports referred to
shows any disability on his part that warranted a disability grant
in
excess of the 6 months duration.
k) He stated with regard to the alleged discrimination that the
applicant is
comparing two different scenarios
.
l) Each situation has to be
adjudged and determined on its own
merits.
m) The situation from that in the Nondima report is different from
that in the applicants report.
n) A mere reading and comparison of the two reports show that.
o) In any event the medical officer in Nondima’s appeal
tribunal did not recommend a disability grant in her case but the
chairperson, of that tribunal, Mr M Malabye, decided that a temporary
grant should be awarded to enable the Appellant to recover
and look
for employment to earn income.
p) The medical report annexed to the Applicant’s papers
does
not disclose that he is disabled
and
such disability has
resulted in the applicant not being capable of engaging in gainful
employment
to
provide for his own living
for longer than 6
months
, hence the 6 months temporary disability grant was
properly awarded.
q) There is no basis for the court to interfere with such outcome.
r) The alleged discrimination against the Applicant is also without
basis or merit.
4. ISSUES TO BE DETERMINED
4.1. The issues here are:-
a) Did the Respondent’s conduct fall foul of the provisions of
section 9 of the Constitution, that is, was the Applicant
discriminated against on the basis of gender when he was awarded a 6
months grant whereas a female person was awarded a 12 month
temporary
disability grant.
b) Did the Respondents fail to comply with the provisions of PAJA
4.2.
VIOLATION OF RIGHTS
(i) The Applicant alleges that the Respondents have breached Section
9 of the Constitution
1
and Section 6 of PAJA
2
has not been complied with.
(ii) An examination of the relevant provisions and the legal position
pertaining to the actions of the Respondents is necessary
to
determinE whether or not the Applicant has established that these
rights have indeed been violated.
(iii) Under the new constitutional order the control of public power
is always a Constitutional matter. The Court’s power
to review
administrative action no longer flows from common law but from the
Promotion of Administrative Justice Act and
the Constitution itself.
(iv)
Section
9 of
the Constitution reads as follows:-
“
(1) Everyone is equal before the law and has
the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of
all rights and freedoms. To promote the achievement of equality,
legislative
and other measures designed to protect or advance
persons, or categories of persons, disadvantaged by unfair
discrimination may
be taken.
(3) The state may not unfairly discriminate directly
or indirectly against anyone on one or more grounds, including race,
gender,
sex, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth.
(4) No person may unfairly discriminate directly or
indirectly against anyone on one or more grounds in terms of
subsection (3).
National legislation must be enacted to prevent or
prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds
listed in subsection (3) is unfair unless it is established that the
discrimination
is fair.
(v) Section 33 of the Constitution
3
read as follows:
(1) “
Everyone has the right to administrative
action that
is lawful, reasonable
and procedurally fair.
(2) Everyone whose rights have been adversely
affected by administrative action has the right to be given written
reasons.
(3) ……”
(vi) Section 6 of PAJA
identified the circumstances in which
the review of an administrative action might take place. The said
provisions divulge a clear
purpose to codify the grounds of judicial
review of administrative action.
(vii) Section 6 of PAJA reads as follows:-
“
Judicial review of administrative action
(1) Any person may institute proceedings in a court
or a tribunal for the judicial review of an administrative action.
(2) A court or tribunal has the power to judicially
review an administrative action if-
a) the administrator who took it-
i) was not authorised to do so by the empowering
provision;
ii) acted
under a delegation of power which was not authorised by the
empowering provision; or
iii)
was
biased or reasonably suspected of bias;
(b) a mandatory
and material procedure or condition prescribed by an empowering
provision was not complied with;
(c) the action was
procedurally unfair;
(d) the action
was materially influenced by an error of law;
(e) the action
was taken-
(i)
for a reason not authorised by the empowering provision;
(ii) for
an
ulterior purpose or motive
;
(iii) because
irrelevant considerations were taken into account or relevant
considerations were not considered;
(iv) because of
the unauthorised or unwarranted dictates of another person or body;
(v)
in bad faith; or
(vi)
arbitrarily or capriciously;
(f) the action
itself-
(i)
contravenes a law or is not authorised by the empowering provision;
or
(ii)
is
not rationally connected to
-
(aa) the purpose
for which it was taken;
(bb) the purpose of the
empowering provision;
(cc) the
information before the administrator; or
(dd) the reasons
given for it by the administrator;
(g) the action
concerned consists of a failure to take a decision;
(h) the exercise
of the power or the performance of the function authorised by the
empowering provision, in pursuance
of which the administrative action
was purportedly taken, is so
unreasonable
that no reasonable person could have so exercised the power or
performed the function; or
(i) the action is
otherwise
unconstitutional or unlawful
.”
(viii) In
Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and
Others
4
,
O’ Regan J, remarks as follows:
“
The court’s power to
review administrative action no longer flows directly from the common
law but from PAJA and the Constitution
itself. The grundnorm of
administrative law is to be found in the first place not in the
doctrine of ultra vires, nor in the doctrine
of parliamentary
sovereignty, nor in the common law itself, but in the principles of
our Constitution. The common law informs the
provisions of PAJA and
the Constitution, it derives its force from the latter. The extent to
which the common law remains relevant
to administrative law will have
to be developed on a case-by-case basis as courts interpret and apply
the provisions of PAJA and
the Constitution.
The learned Judge went further at page 705, para [25]:
“
The provisions of section 6
[PAJA] divulge a clear purpose to codify the grounds of judicial
review of administrative action as
defined in PAJA. The cause of
action for the judicial review of administrative action now
ordinarily arises from PAJA, not from
common law as in the past.”
Skweyiya J in
Joseph v City of Johannesburg
5
held that: -
“
The
right to administrative justice is fundamental to the realisation of
these constitutional values, and is at the heart of our
transition to
a constitutional democracy. The scope of the s 33 right to just
administrative action and the associated constitutional
values, as
given effect to under PAJA, must cover the field of public
administration and bureaucratic practice in order properly
to
instrumentalise principles of good governance. It is plain that the
reach of administrative law would be unjustifiably curtailed
if it
did not regulate administrative decisions which affect the enjoyment
of rights, properly understood, at least for the purposes
of
procedural fairness.”
(x) The Applicant in this case has alleged that he has been
discriminated against because a female Appellant was granted a 12
month temporary disability grant whereas he was granted a 6 months
disability grant despite their circumstances being the same or
at
very least similar.
(xi) The Applicant makes this allegation of being discriminated
against, despite the following factors:-
a) that the decision made in respect of Nondima was not, or rather it
is not alleged that it was, before this tribunal when they
considered
his appeal;
b) That it was made by a differently constituted Tribunal;
c) That Nondima’s decision was made a year prior to his and
based on facts peculiar to her case which even on the face of
the
medical report, even to a non-medical person like myself, appears to
be different from that of the Applicant, having regard
to the
following:-
(i) Her condition just on the face of the medical records were not
the same, she is described as
emaciated
, which means according
to the shorter oxford dictionary “become abnormally thin or
wasted”;
(ii) Nondima had had pulmonary tuberculosis;
(iii) She is described as
very weak
and chronically ill;
d) That someone who is chronically wasting away and very weak and
already had an opportunistic disease of TB attack her would be
regarded as more serious than someone who is fairly stable but weak
and needs nutritional support and does not appear to have any
complications or attacks from any opportunistic diseases.
e) That the degree of her disability appears to be far more severe
despite the fact that they both have the same aliment, HIV/AIDS,
having regard to the impact it has on her physical body.
f) That Nondima’s CD4 count was reflected as 251 as at
04
August 2008
almost
2 years
prior to her examination by the
Doctor on 24 June 2010. That most certainly could not have been a
factor that would have determined
her Appeal since it could not have
been a proper reflection of her CD4 count at the time of her
examination.
g) The Applicant’s CD4 count of 66 was taken on 22 November
2010 closer to the examination on 26 January 2011 but there is
also
no indication what his CD4 count was at the time of the examination
and whether or not his commencement of ARV treatment in
December had
improved his CD4 count, or not.
The Applicant accordingly cannot rely on the differences in their
CD4 count to aver that he was weaker than her since it is
unclear
what her CD4 count actually was at the time of the examination, or
in that year even. The allegation that he was weaker
based on their
respective CD4 counts accordingly is untenable in the circumstances
of this case.
The Applicant’s condition clearly is
not
the same as
that of Nondima.
The Doctor who formed part of the panel which dealt with the
Applicant’s appeal explained his reasons for arriving at
their decision and there is nothing in his explanation that can be
construed as
improper, biased, irregular or unreasonable
nor
did he appear to have considered
irrelevant factors
or
failed to take into account relevant factors peculiar to the
Applicant’s case.
The Applicant failed to elicit any facts that demonstrate that
Nondima being female was the reason that she got a 12 months
disability grant whereas him being male caused him to be awarded a
6 months disability grant because their situations are not
the
same, especially in circumstances where the decision of her matter
was not even before this tribunal for them to even distinguish
or
discriminate between the two of them.
On the face of her medical reports her condition appears to
demonstrate that the disease had a more serious impact upon her
functionality and caused additional complications for her, that is,
her being emaciated, in a very weak state and the attack
of the
opportunistic disease TB.
The Applicant has failed to adduce any cogent facts or reasons to
support his allegation of discrimination, of violation of
his
section 9 rights, presumably based on gender. The difference, in
the awards, even though Nondima’s case was not before
this
tribunal, appears to be justifiable and reasonable.
The Applicant accordingly has failed to establish that he has been
discriminated against and accordingly that his Constitutional
rights as set out in Section 9 have been infringed.
4.3. Failure to comply with PAJA.
(i) The Applicant has further alleged that the Respondents have not
compiled with their obligations in terms of Section 6 of PAJA
and is
thus reviewable.
a) In
Bangtoo Bros and Others v National Transport Commission
and Others
6
,
the Court held that:
'It is clear from the cases that a body constituted
by statute is obliged
''honestly to
apply its mind to the matter''
for
decision. I am for the moment concerned with what is meant by the
expression ''apply its mind to the matter'', certain aspects
of which
have already been covered by this judgment. It seems to me essential
that the tribunal is essentially obliged to
consider
all relevant and material information placed before it
.
To pay mere lip-service to this obligation is not sufficient, just as
it would be a dereliction of duty to hear representations
which are
pertinent, and then to ignore them. The problem arises whether the
Court is concerned with the degree of importance which
the tribunal
attaches, in the exercise of an honest judgment, to the relevant
considerations. Take a case, for example, where a
factor which is
obviously of paramount importance is relegated to one of
insignificance, and another factor, though relevant, is
given weight
far in excess of its true value. Accepting that the tribunal is the
sole judge of the facts,
can it be said
that it has in the circumstances postulated properly applied its mind
to the matter in the sense required by law?
After much anxious consideration I have come to the conclusion that
the answer must be in the negative.'
b) In
Makhanya NO and another v Goede Wellington Boerdery (Pty)
Ltd
7
Erasmus
AJA held that section 6(2)(h) of PAJA requires a
simple test:
“
an administrative decision will be reviewable
if it is one a reasonable
decision-maker could not reach.
In the instant case, where the administrator was faced with a balance
to be struck, it is constitutionally endorsed and opportune
to ask:
did the administrator strike a balance fairly and reasonably open to
him?”
c) In
Pharmaceutical Manufacturers Association of SA and
Another: In re Ex parte President of the Republic of South Africa and
Others
8
,
Chalskalson P instructively expounded the rationality requirement in
the following terms at paragraphs [85] and [90]: D
'[85] It is a requirement of the rule of law that the
exercise of public power by the Executive and other functionaries
should not
be arbitrary. Decisions
must be rationally related to
the purpose
for which the
power was given
, otherwise they
are in effect arbitrary and inconsistent with this requirement. It
follows that in order to pass constitutional
scrutiny the
exercise of public power by the Executive and other functionaries
must, at least, comply with this requirement. If
it does not it falls
short of the standards demanded by our Constitution. . .
[90] Rationality in this sense is a minimum threshold
requirement applicable to the exercise of all public power by members
of the
Executive and other functionaries. Action that fails to pass
this threshold is inconsistent with the requirements of our
Constitution and therefore unlawful. The setting of this standard
does not mean that the Courts can or should substitute their opinions
as to what is appropriate for the opinions of those in whom the power
has been vested. As long as the purpose sought to be achieved
by the
exercise of the power is within the authority of the functionary, and
as
long as the functionary's decision
,
viewed objectively, is rational
,
a Court
cannot interfere with the
decision
simply because it disagrees
with it or considers that the power was exercised inappropriately.'
d) Whether the decision of a tribunal will be reviewable will depend
on whether the decision is lawful, complies with the principle
of
legality is fair and reasonable. In order to see whether it meets
these requirements the Court will evaluate the reasoning of
the
Tribunal to determine how it arrived at the decision and whether the
decision maker properly exercised the powers entrusted
to him or her,
and duly applied its mind to the matter, not whether or not it has
followed the decision of another independently
constituted tribunal
in a different matter pertaining to that matter.
e) In this case the Applicant has failed to advance any cogent facts
that demonstrates bias or reasonable suspicion of bias on
the part of
the Respondent.
f) The Applicant seeks to demonstrate that the Respondents was biased
in circumstances where that they were not even aware of the
existence
of Nondima or what was held in her Appeal or how it is relevant to
the Applicant’s Appeal.
g) Having regard to the facts of this case no bias has been
established nor can a reasonable suspicion o bias be inferred.
h) The Applicant has failed to demonstrate that the decision of the
Respondent in awarding the Applicant a 6 months temporary grant
was
unreasonable or irrational or that they did not apply their minds
appropriately.
i) The Applicant has failed to demonstrate on their papers why the
Applicant is or was a candidate for a 12 month temporary grant.
j) The doctor, who deposed to the affidavit on behalf of the
Respondent, has set out his reasons for them granting the Applicant
a
6 months temporary grant, and their decision as appears from the
papers does not appear to be arbitrary or irrational and objectively
viewed appears to have been properly exercised in terms of the
purpose for which the power was given.
k) In applying the trite legal position when considering applications
I am inclined to accept the doctor’s reasons and the
Applicant
in any event has not been able to gainsay it in any meaningful
manner.
l) The Tribunal accordingly, objectively viewed, appears to have duly
considered the merits and demerits of the facts peculiar
to the
Applicant and arrived at a decision after honestly and properly
applying its mind to all the relevant and material information
before
it prior to arriving at its decision.
m) I am accordingly satisfied that the Tribunal discharged its
obligation and properly exercised the power entrusted to them and
have accordingly complied with the provisions of section 6 of PAJA,
in the circumstances of this case and properly exercised its
powers.
4.3) The Tribunal appears to have discharged its obligations both in
terms of the constitutional imperative and the provisions
of PAJA in
dealing with the Applicant’s Appeal.
4.4) There is in light of the aforegoing no need to in any detail
address the unreasonableness, let alone practical difficulties
and
delays of expecting a tribunal to consider the decisions of every
other Tribunal, which is based on the facts peculiar to that
particular Appellant, in considering the merits or demerits of the
Appeal of the person whose appeal it is considering, particularly
in
this case having regard to the following:-
a) The Applicant sought to rely on a decision taken by the
Respondent, a year earlier where they had accorded a female candidate
a temporary grant of 1 year.
b) The information given does not illustrate
What factors were considered by that Tribunal;
Whether this Tribunal was even aware of that decision;
Whether the facts of that Appellant were placed before this Tribunal
or whether or why it needed to be;
Why the Tribunal had to have regard to Nondima’s decision,
whose circumstances just on the reading of the report were not
the
same as that of the Appellants when determining the merits or
demerits of his Appeal;
How an unrelated case, which was not considered by the members
constituting this panel, can possibly be seen to justify reviewing
their decision or saying that it was improperly arrived at.
How the decisions of previous tribunals who have dealt with facts
peculiar to those Appellants, can be said to be binding on
this
Tribunal dealing with the Appellant where they are required to apply
their minds to the facts and in the circumstances of
the Appellant
in this case in determining whether or not he is eligible for a
grant and if he is for what duration.
Where the facts of the two Appellants distinguishable even on the
face of the doctor’s report.
Where their specific mandate appears to be to consider the merits or
demerits of the Appeal before them and the circumstances
of that
Appellant.
5. BRIEF SUMMARY
5.1) The Applicant:-
a) Failed to establish that the Respondent’s decision fell foul
of the provisions of PAJA and the Constitution;
b) Failed to establish that he was discriminated against since his
situation:-
i) Is different from that of Nondima with regard to the effect that
HIV has had upon them, she had been attacked by an opportunistic
disease pulmonary tuberculosis whereas he had not;
ii) He was described as fairly stable whereas she was not;
iii) She was described as being emaciated and very weak whereas he
was not;
c) Cannot rely on Nondima’s CD4 count which was taken 2 years
prior to her examination as a basis to suggest he was in a
worse
position than her especially having regard to the description of her
physical condition at the time of the examination.
d) Failed to establish that the Respondent deliberately discriminated
against him by arriving at a different decision to that of
the
tribunal dealing with Nondima’s application in circumstances
where:-
(i) The tribunal dealing with this matter did not have Nondima’s
file before it when arriving at its decision.
(ii) Dealt with the merits of the Appeal on the medical information
of the Appellant before it.
(iii) Based its decision on facts and circumstances peculiar to the
Applicant and applied its mind to those facts.
(iv) The Tribunal’s decision based on the facts as set out in
the doctor’s affidavit appears to be lawful, rational,
and
reasonable and appears to have been based on relevant considerations.
e) Failed to establish any discrimination nor has he demonstrated
that there has been non-compliance with the requirements of PAJA
or
the Constitution.
f) Failed to satisfy the court that the decision of the Respondent
should be reviewed and set aside in the circumstances of this
case,
or that any cogent grounds for review exist or that there has been
any bias or reasonable suspicion of bias or any form of
discrimination.
6) It was for these reasons that the Application was dismissed.
7) I, in the exercise of my discretion, felt that it would be unjust
and inequitable to mulct the indigent Applicant in costs and
accordingly ordered each party to pay their own costs.
8) I did not know the reason for the reservation of the costs on the
uncontested opposed roll and the Respondents counsel was unable
to
advance any cogent reasons for why they should not pay those costs
when it appeared from the Applicants heads that the adjournment
was
occasioned by the Respondents failure to file their affidavit
timeously and accordingly the adjournment was sought at the instance
of the First and Second Respondents.
9) It was for that reason that I awarded the reserved costs, of the
14
th
of February 2012 when the matter was enrolled on the
uncontested opposed roll, to the Applicant.
10) ORDER
10.1) The order I made accordingly was:-
a) That the Application is dismissed;
b) Each party is to pay their own costs save that the 1
st
and 2
nd
Respondents shall pay the Applicant’s cost
of the 14
th
of February 2013 when the matter was enrolled
on the uncontested opposed roll.
_____________________________
F.B.A DAWOOD
(JUDGE OF THE EASTERN CAPE HIGH COURT)
FOR THE APPLICANT: MS NCOLA
APPLICANT ATTORNEYS: MANITSHANA, TSHOZI ATTORNEYS
c/o: L.G NOGAGA ATTORNEYS
Suites 125 & 127, first floor
ECDC building
York Road
MTHATHA
Tel: 047 531 0984
FOR THE RESPONDENT: MR MATYUMZA
RESPONDENTS ATTORNEYS: THE STATE ATTORNEY
Broadcast House
No. 94 Sisson Street
Fortgale
MTHATHA
Ref:
1428/12-A7
1
The
Constitution of RSA act no 108 of 1996
2
Act
No. 3 of 2000
3
The
Constitution of RSA Act 108 of 1996
4
[2004] ZACC 15
;
2004
(7) BCLR 687
(CC) at page 702 – 703 paragraph [22]
5
2010
(4) SA 55
(CC)
6
1973
(4) SA 667
(N)
at 685A - D
Bato Star
Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
(2004
(7) BCLR 687)
at para
[99]
7
[2013]
1 All SA 526
(SCA)
8
[2000] ZACC 1
;
2000
(2) SA 674
(CC)
(2000 (3) BCLR 241)