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[2011] ZAECMHC 4
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Lunyawo v South African Social Security Agency (SASSA) (1685/2010) [2011] ZAECMHC 4 (7 April 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
REPORTABLE
D.
VAN ZYL
Date:
Case no: 1685/2010
In
the matter between:
NOBONGILE
LUNYAWO
…...............................................................
Applicant
and
SOUTH
AFRICAN SOCIAL SECURITY
AGENCY
(SASSA)
….........................................................................
Respondent
JUDGMENT
D.
VAN ZYL J:
This matter concerns the provisions of the Social
Assistance Act (the “Act”)
1
and the regulations issued pursuant thereto.
2
The applicant was the recipient, or as described in the
Act, the beneficiary of a disability grant (the “grant”)
in
terms of section 9 of the Act. In September 2009 payment of the
grant stopped and the applicant approached this Court for assistance
by way of motion proceedings. The applicant contended that the
payment of the grant was terminated unlawfully in that the decision
of the applicant to discontinue payment infringed upon her right to
fair administrative action. The reason, according to her,
was the
respondent’s failure to apply a fair procedure by failing to
advise her of the intention to cancel the grant and
to afford her an
opportunity to make representations. In short, her case was that she
was not given an opportunity to influence
the respondent before it
took a decision to terminate the grant.
The respondent’s answer was that the application
is ill-conceived in that the applicant was awarded a temporary grant
which
had lapsed and that there was as a consequence no decision
taken to terminate the grant which can be reviewed. As I shall
explain
more fully hereinunder
3
,
a temporary grant is terminated when the period of disability had
lapsed. The applicant in reply denied that she was informed
that
what she was awarded was a temporary grant. It is this denial that
became the focus in argument. For reasons that will appear
more
fully later in this judgment, the main issue which arose for
determination was the nature of the legal consequences which
flowed
from a failure of the respondent to notify a successful applicant
for a social grant of the approval of his or her application
in the
manner as envisaged in regulation 13(3). This regulation reads as
follows:
“
(3) Upon approval of an application for a social grant, the
Agency must inform the applicant in writing of such approval and
(a) of the payment details;
(b) of the obligations of the applicant to notify the Agency of a
change in circumstances;
(c) in the case of refugees, the date of lapsing of the social
grant; and
(d) in the case of a temporary disability grant, the reasons
therefore, the duration of the social grant and the date upon which
it lapses”
It was contended in argument on behalf of the applicant
by her attorney Mr Zono, that the failure of the respondent to
advise
an applicant for a grant, not only that he or she was awarded
a temporary grant as opposed to a permanent grant, but also of the
other matters contemplated in regulation 13(3), creates a legitimate
expectation with the applicant concerned that he or she
will
continue to receive payment of the grant until such time as it has
been lawfully
“
reviewed”
.
Accordingly, so it was argued, it was not open to the respondent to
contend that, because the applicant was awarded a temporary
grant,
it lapsed by the effluxion of time, and that there was consequently
no decision that is capable of being reviewed.
At first glance this proposition may appear rather
surprising. The reason for saying this is twofold: firstly, it
implies that
the payment of a grant for a period of time coupled
with the failure of the respondent to notify the applicant as
contemplated
in regulation 13(3)(d) may create a substantive
legitimate expectation, that is, an expectation to, as of right,
receive the
payment of a grant
4
,
as opposed to a legitimate expectation, the purpose of which is to
afford no more than a right to a fair hearing before an adverse
decision is taken
5
.
Secondly, somehow an application for the review of a decision to
terminate the payment of a permanent grant is in reply converted
into an application for the review of a decision to award the
applicant a temporary grant.
However, Mr Zono did not find himself without authority
for his submission. Support for it can be found in the case of
Joni
v The Member of the Executive Council for Social Development,
Eastern Cape
6
(
“
Joni”
)
wherein the Court, relying on an earlier judgment in
Mdodisa
v The Member of the Executive Council of Social Development
7
(
“
Mdodisa”
)
and an article by N. de Villiers entitled
“
Social
Grants and the Promotion of Administrative Justice Act”
8
,
said the following:
“
However, the learned judge went on to hold that a decision
to make a grant a temporary one amounts to an administrative action
and
once that decision was made the applicant then had the right to
receive notification of the decision and to make representations
through an appeal procedure. Accordingly, the learned judge continued
and held that the recipient of a grant in those circumstances
has a
legitimate expectation that there would be a proper review and
hearing before the payments of the grant were stopped. Thus
when no
such review took place it is not open to the MEC to rely on or invoke
the automatic lapsing provision of Regulation 24(1)(c).”
9
On a reading of the judgment in
Mdodisa
,
it becomes clear that the Court in turn, for the passage relied on
in the
Joni
case,
placed reliance on a judgment of the Witwatersrand Local Division in
Mpofu v The Member of the Executive Committee
for the Department of Welfare and Population Development in the
Gauteng Provincial
Government
10
(
“
Mpofu”
)
and on the article of N. de Villiers referred to earlier.
The matter is however not as straightforward as it may
appear to be. On a closer examination of the judgments of this Court
where
this issue was raised and decided, a conflict of views are
revealed, and there exists, what may be described as two schools of
thought. These differences in approach were dealt with by Alkema J
in a judgment delivered in an application for leave to appeal
in
Nyanisa v The Member of the Executive Council
for Social Development, Eastern Cape
11
.
He explained it as follows:
“
On
[the]
one hand, it is often held that even
accepting the applicant was not informed that her grant was
temporary, it does not distract
from the nature of the grant –
it remains a temporary grant which lapses by effluxion of time. On
the other hand, the second
approach suggests that the failure to
inform the application that her grant is only of temporary nature,
creates a legitimate expectation
by her that the grant is of
permanent nature. On this basis, so it is said, the review
application of the decision to terminate
payment of the grant may be
treated as a review application of the decision to grant only a
temporary disability grant, and not
a permanent grant. For this
proposition reliance is always put on N. de Villiers,
Social
Grants and the promotion of Administrative Justice Act
,
SAJHR, Vol. 18 (Part 3) 2002 at 338.
[6] Following the second line of cases, the decision to grant a
temporary grant is then reviewed and set aside, together with further
orders which effectively have the result that the grant is changed to
a permanent grant coupled with an order to make payment under
the
(new) permanent grant. Such an order is made nothwithstanding that it
is not the relief claimed, or that the issues of temporary
grant
versus
permanent grant have not been canvassed
or argued.”
12
In his judgment the learned Judge also referred to
another aspect, namely the different manner in which factual disputes
regarding
the issue whether the provisions of regulation 13(3) have
been complied with, have been dealt with.
13
For reasons that will be more fully explained later,
this is an aspect that did not arise in the present matter and it is
consequently
not necessary to deal therewith in this judgment.
At the risk of adding a third approach to the issue
raised I propose to examine and test the validity of the submission
that the
Mdodisa
judgment is authority for the proposition
put forward on behalf of the applicant, and if so, whether the
authorities referred
to in that judgment and in subsequent judgments
can lend support thereto. However, before doing so, and in order to
place the
whole enquiry in its proper context, it is necessary to
examine more closely the applicant’s case as pleaded in the
papers
filed on her behalf, to set out the essential facts of the
matter, and to define the issues that arise therefrom.
The facts as set out in the applicant’s founding
affidavit upon which she placed reliance for the relief sought are
briefly
the following: She made application for the payment of a
disability grant in 2004 at Mqanduli. The application was approved
and
she started receiving payment in 2004. She continued to receive
payment of the grant every month thereafter until September 2009
when she was advised by an official at the relevant pay-point that
the grant had been terminated. She then approached the respondent’s
office in Mqanduli where she was similarly advised that the grant
had been terminated. She was not given any reason why the grant
was
terminated.
The applicant stated that she was not given prior
notification of the termination of the grant nor was she given an
opportunity
to make representations to the respondent before such a
decision was taken. The applicant also contended that she
“
legitimately expected that I would receive my
disability grant until properly reviewed”
.
She submitted that in these circumstances the termination of her
grant was unreasonable, without just cause and infringed upon
her
constitutionally entrenched rights.
According to the respondent the applicant made
application in June 2004 at Ngqeleni, (as opposed to Mqanduli), for
a disability
grant which application was approved for a period of
twelve months. The said grant lapsed after the expiry of that period
and
the last payment received by the applicant was during March
2005. Thereafter, in November 2005 and again in August 2006 the
applicant
made two further applications for a disability grant. Both
these applications were refused.
The applicant then in September 2008 at Ngqeleni once
again made application for a disability grant. This application was
approved
for a period of twelve months with effect from September
2008. The applicant was notified of this decision by way of a letter
handed to her by an employee of the respondent, a certain Ms
Plaatjie. The applicant acknowledged receipt of this letter by
appending her thumb print thereto. The said letter was annexed to
the respondent’s answering affidavit as annexure “MM1”.
From the contents of the letter it is evident that it was intended
to advise the applicant that a temporary grant for a period
of
twelve months was approved, the reason therefor, and the amounts
which were to be paid to her during the existence of the
grant.
As stated earlier, in her replying affidavit the
applicant denied that she was handed a letter informing her that her
application
had been approved for a period of twelve months only.
Her contention was that she was only verbally advised that her
application
had been approved. She explained that her thumb print on
annexure “MM1” was appended because she was asked to
place
her thumb print on a number of documents on that particular
day.
After it was initially in the heads of argument filed
on the applicant’s behalf contended that she had made out a
case for
the relief sought and that the matter should be determined
on the papers, in further heads of argument filed shortly before the
hearing of the matter, it was submitted that there exists a serious
dispute of fact incapable of resolution on the papers. The
result of
this is that Mr Zono, and in my view quite correctly so, accepted
that the respondent’s allegations and denials
of the
applicant’s averments cannot be said to consist of bold or
uncreditworthy denials, or raising fictitious disputes
of fact, or
are palpably implausible, far-fetched or are clearly untenable that
the Court is justified in simply rejecting them
on the papers
14
.
According to Mr Zono, the dispute that arises on the
papers is confined to two issues. The first is the applicant’s
submission
that the respondent failed to notify her of the
termination of her disability grant during September 2009. Mr Zono
explained
the issue in his heads of argument as
“
The
respondent’s failure to communicate
(its)
decision to
terminate applicant’s disability grant is the one being
challenged.”
The second issue relates to the
applicant’s denial of the respondent’s contention that
she was notified of the temporary
nature of the disability grant
awarded to her in September 2008. The submission is accordingly that
these two issues should be
resolved by the hearing of oral evidence
and that this Court should make an order to that effect.
In terms of Rule 6 (5)(g) of the Uniform Rules of
Court, where an application cannot properly be decided on affidavit,
the Court
“
may dismiss the application or make such
order as it seems meet with the view to ensuring a
just and
expeditious decision”
. Even before any
assessment is undertaken of the probabilities or the prospect of
viva voce
evidence
tilting the probabilities in favour of the party bearing the
onus
15
,
the question which immediately arises in the context of the present
matter is whether a resolution of the two factual disputes
in favour
of the applicant, would result in a just and expeditious decision of
the issues legitimately raised in the application.
In order to decide this question it is necessary to
examine more carefully the legal nature of the applicant’s
case as set
out in the papers filed in support of the application.
Before doing so it may be convenient to state some of the rules or
principles
applicable to motion proceedings and which may be
relevant in the context of the present matter. Of particular
importance is
that the applicant’s affidavits take the place
not only of the pleadings, but also of the essential evidence. This
is not
only for the benefit of the Court, but primarily for the
parties. The respondent must know the case that must be met and in
respect
of which evidence must be adduced in the answering
affidavits. An applicant in motion proceedings is therefore required
to define
the relevant issues, make sufficient allegations to
establish his or her right, and to set out the evidence upon which
he or
she relies upon in support of the cause of action on which the
relief that is being sought is based.
16
Generally speaking, an applicant must stand or fall by
his or her founding affidavit and the facts alleged therein, and
although
it is sometimes permissible to supplement the allegations
relied on, the main foundation of the application are still the
allegations
of fact in the founding papers.
17
Where facts alleged in the respondent’s answering
affidavit reveal the existence of a further ground for relief the
Court
would more readily allow an applicant in his or her replying
affidavit to utilize it and to set up such additional ground for
relief as might arise therefrom.
18
However, new matter will not be allowed if the
introduction thereof would amount to an abandonment of the existing
claim and the
substitution therefor of a fresh and completely
different claim based on a different cause of action.
19
An applicant will also not be allowed to make out a
case in reply where none existed in the founding papers.
20
Further, an allegation which amounts to a conclusion of
law must be supported by allegations of fact on which it depends. In
the
absence of such allegations of fact as would be necessary for a
determination of the issue raised, an objection that it does not
support the relief claimed may be upheld.
21
Turning to the nature of the applicant’s case in
the present proceedings, it is clear from a reading of the notice of
motion
and the founding papers that it constitutes review
proceedings in terms of the provisions of the Promotion of
Administrative
Justice Act
22
(“PAJA”). The applicant seeks the setting
aside of
“…
the respondent’s action of
terminating the payment of applicant’s disability grant…”
and
“…
to
re-instate the
applicant’s disability grant and
to continue until the
grant is lawfully terminated.”
23
The applicant’s case was therefore that the
decision to terminate the grant constituted administrative action
which is capable
of review in terms of PAJA. Mr Zono quite correctly
in argument accepted this to be the position.
I agree with the submission advanced by counsel for the
respondent, Mr Bloem, that on a reading of the applicant’s
papers
it is evident that her case was based on the premise that
what she received from 2004 until October 2009 was a permanent
disability
grant, that she was entitled to continue to receive
payment thereof, and that the respondent’s decision to
terminate her
grant was unlawful. That this is so, is clear from the
nature of the relief sought in the notice of motion and the
averments
made in support thereof. This however did not remain to be
the position. The reason is that the applicant effectively in reply
abandoned any reliance on her assertion that she was awarded a
permanent grant. As stated earlier, in answer to the applicant’s
averments in her founding affidavit and the issues raised thereby,
the respondent stated that after the applicant’s unsuccessful
applications for a grant in 2005 and 2006 the applicant once again
lodged an application in September 2008. That application
was
approved for the period of twelve months with effect from September
2008 whereafter it lapsed in September 2009 due to the
effluxion of
time.
24
The respondent accordingly disputed that the applicant
received a permanent disability grant in 2004 and that she continued
to
receive payment of the grant awarded to her in that year until
September 2009.
In her replying affidavit the applicant found herself
unable to deny these allegations. Some of the respondent’s
averments
were admitted while others were not addressed or were
simply
“
noted”.
It must
accordingly be accepted that the applicant was not in the position
to dispute the correctness thereof. That being the
position, the
respondent’s allegations as to the nature of the grant awarded
to the applicant in September 2008 must be
taken as having been
admitted.
25
Accordingly, it must be accepted that the applicant was
not given a permanent disability grant in 2004, that it was a
temporary
grant which lapsed after twelve months, that the applicant
subsequently on three occasions again applied for a disability
grant,
and that her application for a grant in September 2009 was
approved on the basis that it would also be temporary grant.
Mr Bloem is correct in submitting that it is clearly
unsatisfactory that no attempt was made by the applicant in reply to
explain
why she had claimed in her founding affidavit to have
received continues payment from 2004 until 2009 in support of her
case
that she was awarded a permanent disability grant in 2004.
However, what is important in the context of the present enquiry is
that the applicant accepted in reply that she was given a temporary
disability grant in 2004 and once again in 2008. The applicant
however instead sought to place in dispute the respondent’s
contention that she was advised of the temporary nature of
the
disability grant in compliance with regulation 13(3)(d) when it was
approved in September 2008.
Once it is accepted that the temporary nature of the
grant awarded to the applicant in September 2008 is no longer in
dispute,
then the factual dispute relating to the applicant’s
allegation that the respondent failed to communicate to her the
decision
to terminate the grant must fall away. The reason for this
is to be found in the provisions of the regulations. A disabled
person
is defined in section 9(b) of the Act as a person who 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.”
Further, in addition
to the requirements of section 9:
“…
a person is eligible for a disability grant if he
or she is a disabled person who has attained the age of 18 years and-
(a) …
(b) the disability is confirmed by an assessment which indicates
whether
the disability is-
i permanent, .. or
ii temporary, …”
26
The respondent is accordingly authorised to make one of
two decisions, namely that an applicant for a grant is either
permanently
disabled, or that his or her disability is of a temporary
nature. According to regulation 3(b)(i) a disability is permanent if
“
that
disability will continue for a period of
more than 12 months”
. It is temporary in terms
of sub-paragraph (b)(i) if the disability
“
will
continue for a continuous period of not less than 6 months or for a
continuous period of not more than 12 months as the case may be”
.
Sub-paragraph (b)(i) provides for a minimum and a maximum period,
that is, it may not be for less than six months, but not more
than
twelve months. In terms of regulation 28(1)(d) a temporary disability
grant lapses
“
when the period of temporary disability
has expired…”
. A permanent grant by
contrast continues until it is reviewed. Regulation 27 (8)(a)
inter
alia
authorises the respondent to conduct
a review of a social grant
“
where
evidence exists that changes in the medical or financial
circumstances of a permanently disabled person have or may have
occurred…”
A review is defined in
Regulation 1 as meaning
“…
to verify whether or
not a grant recipient still complies with the requirements for social
assistance.”
What the respondent is therefore instructed and
authorised to do by the regulations is firstly to determine whether
the person
concerned suffers from a disability. Secondly, the
respondent must determine the period of the disability, ie. whether
it is
permanent or temporary, and thirdly, if the disability is to
continue for a period of twelve months or less, the maximum period
of its duration after which the grant is to lapse in terms of
regulation 28(1)(d). This regulation is clearly capable of only
one
meaning, and that is that a temporary grant is terminated without
the necessity to take a decision to that effect.
“
A
temporary grant lapses by operation of law as it is subject to a
resolutive condition. Such lapsing is therefore not brought
about by
an
administrative action and is therefore not subject to
review.”
27
As opposed to a permanent grant where a decision is
necessary to terminate its payment, a temporary grant therefore
simply lapses
by the effluxion of time. That this is the legal
effect of a temporary grant was in my view correctly accepted in all
the cases
which followed on
Mdodisa
28
.
In the present case, on the respondent’s version
as accepted by the applicant, her temporary grant lapsed in
September 2009.
Accordingly, having effectively abandoned in reply
any reliance on a permanent grant as contended in the founding
affidavit,
the dispute relating to the question whether the
applicant was notified of a decision to terminate the grant is
irrelevant and
the determination thereof is no longer necessary to
reach a decision in the matter. Mr Zono found himself unable to
argue to
the contrary.
Insofar as the second dispute of fact is concerned, a
resolution by way of the hearing of oral evidence would in my view,
on the
papers as they stand, similarly not contribute anything to a
resolution of the issues raised by the applicant in her application.
The reason is simply that what the applicant was effectively seeking
to do was to make out a new case in reply which she was
not entitled
to do. As stated earlier, the applicant’s cause of action,
having regard to the relief claimed in the notice
of motion and the
allegations contained in her founding affidavit, was that she was
awarded a permanent disability grant and
that a decision was taken
to terminate it. The relief claimed was aimed at a setting aside of
that decision and re-instating
the grant as a permanent disability
grant. The dispute of fact as to whether or not annexure “MM1”
was handed to
the applicant is in the context of it being accepted
that what the applicant was awarded in September 2008 was a
temporary grant.
As stated earlier, by reason of the fact that a
temporary grant lapses by operation of law as opposed to a permanent
grant, where
a decision is necessary to bring about its termination,
the second dispute of fact can only be relevant with regard to the
lawfulness
of the administrative action taken by the respondent in
deciding to make the grant a temporary grant and not a permanent
grant.
It is evident from the relief claimed in the notice of motion
that the applicant was not seeking to review the respondent’s
decision to make the grant a temporary grant.
The applicant elected to bring review proceedings by
way of notice of motion under Rule 6 as opposed to review
proceedings in
terms of Rule 53 of the Uniform Rules of Court. The
applicant was fully entitled to do so.
29
The result of this is however that the applicant was
not in a position, at least not without the leave of this Court, to
make
use of the provisions of rule 53 (4) to,
“…
by
delivery of a
notice and accompanying affidavit, amend,
add to or vary the terms of his notice of motion and supplement the
supporting affidavit.”
No such application
was made. Accordingly, the relief claimed in the notice of motion is
incompatible with the case which the
applicant sought to make out in
the replying affidavit in response to, and on an acceptance of the
respondent’s allegations
that the disability grant awarded in
2004 lapsed in the following year and that the applicant then
re-applied in 2008 when she
was once again awarded a temporary
grant. The issues raised by the applicant in reply are confined to
the application for, and
the decision to award a temporary grant in
2008. It clearly constituted a new cause of action, the
determination of which would
not entitle the applicant to the relief
claimed in the notice of motion.
I now turn to consider the remaining question, namely
whether the
Mdodisa
and
Joni
judgments and the
authorities referred to therein lend support to the submission that
the applicant is entitled to the relief
claimed. Mr Zono’s
submission is that in these two cases the Court granted relief
similar to what is claimed by the present
applicant on the basis
that, if there is no proof that the respondent gave notice as
contemplated in regulation 13(3)(d), the
person concerned has a
legitimate expectation that there would be a review accompanied by a
hearing before payment of the grant
was stopped. Failing a review,
he argued that the respondent is not entitled to rely on the
automatic lapsing provisions of regulation
28(1)(d).
Mr Zono is quite correct in saying that an order as
prayed for in the present matter was granted in the
Joni
case on the basis as contended. The same
however does not in my view apply to the
Mdodisa
judgment. Reliance on that judgment in
Joni
as authority for such relief
data
venia
is misplaced and based on an incorrect
reading of the
Mdodisa
judgment.
It is clear from a reading of the latter judgment, and of the
judgment of the Supreme Court of Appeal in
MEC
for Social Development v Mdodisa
,
30
that the matter was determined and the relief claimed
in the notice of motion was granted, on the version as contended by
the
applicant (the respondent in the appeal) in her founding
affidavit. The case of the applicant was that she believed that the
grant she had been awarded was a permanent grant and placed reliance
on the fact that she received, which included back payments,
twenty
nine monthly payments before it was stopped. The respondent denied
this stating that it was a temporary grant.
Both Miller J in the Court
a quo
and Navsa JA in the Supreme Court of Appeal
were quite clearly not impressed with the respondent’s version
of it being a
temporary grant on the accepted facts. Navsa JA
described the affidavit of the appellant’s deponent as
“
singularly unenlightening, contradictory and
confusing”
and failing to provide an
acceptable explanation why the grant, if temporary, continued long
after it was suppose to have lapsed.
31
The Court held that in those circumstances Miller J was
quite correct in finding that the respondent was made to believe
that
she was awarded a permanent grant subject only to statutory
review.
32
Importantly however, is that the reasoning of the Court
a quo
with regard to
the legal nature of temporary grants, relied upon in the
Joni
case, was found by Navsa JA to be
“
not
contentious but … not entirely relevant.”
33
It was therefore not necessary for a determination of
the matter to deal with the issues relating to a temporary grant
because
the applicant’s version that she was awarded a
permanent grant was accepted on the papers.
What is in my view clear from the aforegoing is that
the
Mdodisa
case was
not determined in the basis as contended for by Mr Zono, but rather
on an application of the exception to the
Plascon-Evans
34
rule, namely that an applicant who seeks final relief
on motion must, in the event of a conflict, accept the version set
up by
his or her opponent,
unless the
latter’s allegations are, in the opinion of the Court, not
such as to raise a real, genuine or
bona
fide
dispute of fact or are so
far-fetched or clearly untenable that the Court is justified in
rejecting them merely on the papers.
35
The judgment of Marais J in the
Mpofu
case similarly cannot lend support to the
contention that a determination of the second dispute of fact in
favour of the applicant
would entitle her to the relief claimed in
the notice of motion. In that case the Court dealt with a disability
pension awarded
to the applicant therein in 1992 under the
provisions of the Social Pensions Act of 1973.
36
That Act was replaced in 1996 by the Social Assistance
Act of 1992.
37
Otherwise than the regulations promulgated in terms of
the
1992 Act
38
and the present Act, the applicable regulations
promulgated under the 1973 Act provided that no person shall qualify
for a disability
pension
“
If the degree of
disability has been certified as less than 50% in the open labour
market.”
39
It further determined
that no
pension was payable in respect of disability of a temporary nature
“
unless the disability has been certified for a
period of not less than 12 months.”
Nothing
in the 1973 Act or its regulations provided for the automatic
termination of a pension for a disability of a temporary
nature. It
also did not authorise the relevant authority to determine a maximum
period of validity of such a pension. The only
requirement was that
the disability had to be certified for a minimum period of twelve
months. The only relevant provision relevant
to the termination of
grants generally was by way of a
“
review”
of
“
any social pension”
at
minimum intervals
“
from time to time”
.
40
In 1998 the Gauteng Department of Welfare and
Population Development cancelled the applicant’s disability
pension and placed
reliance for doing so on the provisions of
regulations 23(2) and 24(1)(c) promulgated in terms of the 1992 Act.
Regulation 23(2)
provided for the review of a grant at times and
intervals determined by the relevant authority.
41
Regulation 24(1)(c) in turn dealt with the lapsing of a
temporary grant.
42
The issue considered by the Court in
Mpofu
was accordingly whether the said Department
could lawfully cancel the applicant’s pension awarded to him
under a previous
dispensation by utilizing the provisions of the
1992 Act and its regulations.
The Court considered the provisions of the 1973 Act and
the regulations issued in terms thereof and found that
“
on
a fair reading of the regulations and the affidavits and reasons of
the respondents that the 12 month disability period was
not an
expiry or guillotine date which determined the date on which the
pension lapsed. It was a date on or after which it was
up to the
respondents’ officials to review the pension. That was clearly
the effect of the regulations, that was the only
possible reason for
the strange practice of permanently disabled person being classified
as temporarily disabled and it was what
the respondents’
officials intended to be the effect of their actions. In short the
officials fixed not a termination or
lapsing date but a date for a
further review process. The regulations only authorized the relevant
officials to cancel a pension
after review. They did not provide for
automatic lapsing
of any pension.”
43
Marais J found that the 1992 Act and its regulations
could not assist the said Department. The reason was simply that if
the lapsing
provisions of regulation 24(1)(c) issued under the 1992
Act were to apply to a grant issued in terms of the 1973 Act, that
“
would mean that the regulations (not the Act) have
retrospective effect and can retrospectively mean that persons have
for years
been receiving grants now declared to have lapsed. That
would be so unreasonable that such regulation could not be upheld.
Furthermore
the regulation does not clearly indicate that it is
intended to have retrospective application and in the absence of
such clear
indication the regulation will always be interpreted as
not being retrospective. For these reasons alone I am of the view
that
the regulation does not have application to events which
occurred in 1992 and 1993.
”
44
The learned Judge concluded by saying that
“
In
my view and for the reasons given in much detail in discussing the
1973 Act and regulations thereunder Regulation 24(1)(c)
can have no
application to the present situation as there has been no lapsing of
“the period of temporarily disability”
.
45
It was
accordingly held that the
lapsing provisions of regulation 24(1)(c) of the 1998 regulations
did not find application and that
the only procedure open to the
said Department, if it wished to cancel or suspend the pension, was
to conduct a review of the
pension as authorised in terms of
Regulation 23(2) of the 1998 regulations. As no such review had
taken place the decision to
cancel the grant accordingly had to be
reviewed and set aside.
The learned Judge however did not stop there. He added
a second reason why the decision to cancel the grant had to be set
aside.
He proceeded to hold that for, what he described as a
completely different set of circumstances, the relevant department
was
not entitled, before the enactment of the 1998 regulations, to
cancel or suspend the disability pension of the beneficiary
concerned.
46
He held that in the circumstances of the case the
beneficiary had a legitimate expectation that before his pension was
taken away
he would be informed thereof and he would be afforded the
benefit of the
audi alteram partem
principle
“
The reason is simply one of fairness and natural
justice
.
”
47
and
“
In short I find as a fact that not
only was there a legitimate expectation that the applicant would be
given a proper review hearing
but it was the office practice of the
Department to conduct such review and the very object of the
determination of the applicant’s
disability as being temporary
for 12 months was to determine when the necessary review was to take
place. I deem my view to be
in accordance with that of Kirk-Cohen J
in
Rangani v Superintendent General, Department of Health
and Welfare
1999 (4) SA 385
at 392F – 393A and
394F-H and the principles laid down by Corbett CJ in
Administrator,
Transvaal and Others v Traub and Others
[1989] ZASCA 90
;
1989 (4) SA 731
(A) at 756 E-H. In the circumstances of this case the doctrine of
legitimate expectation and natural justice therefore require
that
the Department should not have terminated the applicant’s
pension without informing him as above, inviting the applicant
to be
heard and conducting a proper review.”
48
For this further or alternative reason the Court found
that the decision to cancel the disability pension had to be set
aside.
A third reason was added which is not relevant for purposes
of the present enquiry.
On a reading of the judgment in
Mpofu
it is evident that it must be distinguished
from the present matter. As stated, the applicant therein acquired
the right to the
payment of a disability pension in terms of the
1973 Act. Otherwise than in regulation 28(1)(a) promulgated in terms
of the 2004
Act, which Act and its regulations it is common cause
apply to the grant awarded to the applicant
in
casu
,
the
pension was not subject to an automatic lapsing provision. Payment
thereof was subject only to a minimum period which meant
that it
continued to be in force until it was reviewed as provided for in
the relevant regulations.
49
The beneficiary thereof consequently acquired
“…
a substantive benefit or advantage or privilege which the person
concerned could reasonably expect to acquire or retain and which
it
would be unfair to deny such person without prior consultation or a
prior hearing.”
50
Further, the respondent in
Mpofu
acknowledged on its own version that the
pension received by the applicant therein was subject to a review
after twelve months
and that he was not given notice of such review.
In those circumstances, where the said applicant was medically
certified to
be permanently disabled and there was no change in his
status, he was classified as temporarily disabled for twelve months
for
administrative reasons only and by virtue of a rule of thumb,
and he continued to receive his pension for more than five years,
the Court held that
“…
not only was there a
legitimate expectation that the applicant would be given a proper
review hearing but it was the office practice
of the Department to
conduct such review and the very object of the determination of the
applicant’s disability as being
temporary for 12 months was to
determine when the necessary review was to take place.”
51
As stated earlier, in the present matter the applicant
accepted in reply that she was awarded a temporary disability grant
in
terms of Regulation 3(b)(ii), with the result that it was to
“
continue for a continuous period of not less than 6
months or for a continuous period of not more than 12 months as the
case may
be.”
The applicant’s
disability was accordingly classified as temporary and the period of
validity thereof was determined to
be twelve months. The grant was,
otherwise than in the
Mpofu
case,
subject to a maximum period which means that it continued for twelve
months after which it lapsed automatically by operation
of law. In
contrast to
Mpofu
,
the provisions of the Act and the regulations do not
require a review of the applicant’s status before a temporary
grant
lapses. Further, there is no evidence of any practice by the
present respondent to conduct such a review as the Court in
Mpofu
held to have existed on the facts of that
matter.
The
Mpofu
case
is also certainly no authority for the proposition that a failure to
comply with the provisions of regulation 13(3)(d) relating
to
notification creates an expectation that a temporary grant will
continue until it has been terminated by a review process.
This
contention confuses the right to a hearing with the substantive
right created by the relevant Act and its regulations to
continue to
receive payment of the grant until a specified event has taken
place. In
Mpofu
the
right to a review did not arise from a failure to comply with a
legislative injunction to give notice as required in regulation
13(3)(d) of the regulations. The grant awarded to the applicant was
found, on the legislative provisions applicable to it, to
continue
until it was subjected to a review process. It could accordingly not
be cancelled or suspended until such a review had
taken place. The
right to a review and the power to cancel the pension therefore
arose from the applicable legislative provisions.
It constituted
administrative action which was subject to review. In
Rangani
v Superintendent-General, Department of Health and Welfare
52
,
a decision relied on by Marais J in
Mpofu
,
Kirk-Cohen J explained this principle as follows:
“
A
pension, once granted, confers upon the grantee a right to receive
that pension until it is terminated in terms of the provision
of the
…Act and the regulations, read with the provisions of the
Constitution of the Republic of South Africa Act 108
of 1996. That
right creates a legitimate expectation that the pension will not be
terminated otherwise than in terms of statute,
and then without a
failure by a person (such as the respondent) to observe the rules of
natural justice.”
53
The Court in
Mpofu
therefore
quite correctly found that in the circumstances of that case the
applicant had a legitimate expectation of a hearing,
ie. of
procedural fairness, before the termination of his pension was
considered by way of a review process. In other words,
the review as
authorized by the applicable regulations could not be conducted
unilaterally and without the applicant first having
been given the
opportunity to make representations with the view of influencing the
authority responsible for conducting the
review process. In the
present matter, once it is accepted that the applicant was awarded a
temporary grant, it must follow that
its termination was determined
by regulation 28(1)(d). In terms thereof it lapsed automatically
after the expiry of the maximum
period for its duration as
determined by the respondent. Because its termination occurred by
operation of law and not as a consequence
of administrative action
as defined in PAJA which presupposes the exercise of a power
54
,
the issue of procedural fairness does not arise.
That brings me to the article of de Villiers (the
“author”)
55
to which reference was made in both the
Mdodisa
and
Joni
judgments.
In his article the author deals with the provisions of the 1992 Act
and its regulations which were issued in 1998.
56
The relevant passage in the article appears under the
heading
“
The lapsing of temporary
grants”
and is preceeded by the
statement that the failure to inform a beneficiary that his or her
grant is temporary, thereby depriving
the beneficiary of an
opportunity to make representations on the finding of temporary
disability, is unfair and has certain legal
implications. These
implications, with reliance
inter alia
on
the
Mpofu
judgment,
are said to be the following:
“
First a valid determination of temporary disability is
jurisdictional event upon which the lapsing depends, and the failure
to properly
apply the regulations or to properly inform the
beneficiary of any limitation on his rights renders the entire
condition null and
void
ab initio
. A void
condition is simply no condition, and the temporary grant continues
until stopped on review. Second, in a similar vein,
where the
incorrect test to determine disability has been applied, no period of
disability as envisaged by the SAA can be defined,
and there is no
period of disability that can lapse. Third the beneficiary who has
not been told of the limitation on the grant
will have a substantive
legitimate expectation – that his or her grant will continue
until lawfully stopped.”
57
What the author proposed to consider in this passage
are the legal consequences that flow from a failure to comply with
regulation
25(1) issued in terms of the 1992 Act. Regulation 25(1)
required the relevant functionary, if an application for a grant was
approved, to inform the beneficiary in writing of the decision.
58
Although differently worded, the equivalent provision
in the current regulations, on which the applicant in the present
matter
placed reliance, is regulation 13(3). As in the case of the
current regulations, the 1998 regulations authorised the relevant
functionary to firstly determine and decide whether an applicant for
a disability grant is disabled as defined in the Act; secondly,
whether or not the disability was to continue for a period of more
than twelve months, i.e. whether it is permanent or temporary,
and
if temporary, to then determine the maximum period for which it was
to continue.
59
These decisions quite clearly constitute administrative
action within the meaning thereof and are subject to review.
Whilst the author proceeded from the correct premise,
namely that the failure to notify a beneficiary that his or her
grant is
temporary may affect the lawfulness or validity of the
decision to classify the disability as temporary, the reason
advanced
for this and the legal consequences postulated are
contra
legem
and do not pass closer scrutiny.
Insofar as the underlying reason for invalidity is concerned, if the
applicant for a grant was
not notified of the decision of temporary
disability, it may impact on the lawfulness of that decision for the
simple reason
that a dissatisfied applicant was not placed in a
position to exercise his or her right to appeal the decision.
Section 10(1)
of the 1992 Act provided that if
“…
an applicant is aggrieved by a decision of the Director-General
in the administration of this Act, such applicant may within 90
days
after the date on which he or she was notified of the decision,
appeal in writing against such decision…”
60
The reason postulated by the author for invalidity
cannot be correct as it suggests that the applicant for a grant must
be given
an opportunity to influence a decision to make a grant
temporary
after
that
decision had already been taken. It is clear from a reading of
regulation 25(1) that notification followed on the approval
or
refusal of the grant. The real reason is rather that a failure to
inform the applicant for a grant of the nature of the decision
reached may frustrate his or her right of appeal.
In dealing with the legal consequences that result from
a failure to give notice as contemplated in regulation 25(1), the
author
makes two assumptions. The first is that the provisions of
regulation 25(1) are peremptory. The relevance of this lies in the
fact that whether or not non-compliance with the provisions relating
to notification were intended to visit the decision of temporary
disability with invalidity, is dependant upon whether the said
provisions are mandatory or merely directory. Considerations that
may be relevant to this enquiry is the fact that its provisions were
created for the benefit of applicants of social grants,
and that a
failure to comply therewith may affect the exercise of the right of
a dissatisfied applicant to timeously and effectively
appeal an
adverse decision. I do not however intend to decide this issue and
shall accept for purposes of examining the correctness
of the legal
consequences postulated, that the provisions of both regulations
25(1) and 13(3) are mandatory.
The second assumption is that a failure to give notice
renders the maximum period for which the temporary grant is to
continue,
which the author terms a resolutive condition, null and
void
ab initio
.
Whilst it is correct that the determination of the maximum period
for which a temporary grant is to continue depends for its
validity
on the existence of a decision to classify an applicant’s
disability as temporary, the suggestion that a failure
to notify an
applicant of the decision would render the maximum time period a
nullity without further ado, ignores two things:
The first is that
it has been accepted that even where the formalities required by a
statutory provision are peremptory, it is
not every deviation from
literal compliance that is fatal. Even in that event, the question
remains whether, in spite of the
defects, there was substantial
compliance with the requirements of the statute.
61
The second aspect is that it ignores the fact that our
law has always recognized that even an unlawful administrative act
is capable
of producing legally valid consequences for as long as
the unlawful act is not set aside. Unless the substantive validity
of
the initial act,
in casu
the
decision to classify the applicant’s disability as temporary,
can in the context of a particular statutory instrument
be found to
be a necessary precondition for the validity of consequent acts, the
validity of consequent acts are generally
“…
dependant
on no more than the factual existence of the initial act…”
with the result that
“…
the
consequent act will have legal effect for so long as the initial act
is not set aside by a competent Court.”
62
The result of this is not only that the validity of the
relevant decision/s will only be determined once a Court of law has
concluded
that there had been non-compliance with regulation 25(1)
or 13(3), but also that the decision to classify an applicant’s
disability as temporary continue to produce legal consequences until
such time as that decision has been set aside on review.
Accordingly, if the time limit determined for the continuation of
the temporary grant has expired before a pronouncement on the
validity of the decision relating to the classification of an
applicant’s disability has been made, the effect thereof
would
be that the grant had effectively ceased to exist as it had lapsed
by operation of law. This in turn raises the question
whether any
purpose would be served in considering the validity of the said
decision, and if so what relief, if any, should be
granted.
63
For reasons stated hereinunder the relief claimed by
the applicant herein would be inappropriate.
The statement by the author, namely that the result of
a failure to give notice is that the time period no longer exists
and that
a
“
temporary grant continues until stopped
on review”
,
unfortunately
also presents its own problems. The first is that the judgment in
Mpofu
,
on
which the author placed reliance in a footnote, does not lend any
support for this proposition. As stated earlier, the finding
in
Mpofu
that the
applicant therein was entitled to continue to receive payment of the
grant until it was reviewed, was reached on the
basis of the
legislation applicable to the applicant and the grant in question.
Marais J found that the applicant’s right
to receive the grant
was regulated by the 1973 Act and not the
1992 Act.
64
As a consequence the lapsing provision in the 1992
could not apply to the applicant’s grant and it could only be
terminated
by a review process as authorized by the applicable
regulations. The judgment in
Mpofu
is
therefore no authority for the proposition that a grant awarded in
terms of the 1992 or any subsequent Act is automatically
to be dealt
with in a similar fashion. (
da mihi factum
,
dabo tibi ius
)
Secondly, in terms of the relevant legislative provisions a person
is temporary disabled if his or her disability will continue
for not
longer than twelve months.
65
The relevant authority is consequently not authorized
to extend the period of temporary disability beyond twelve months.
It is
accordingly not clear on what basis the Court would be
empowered to order that a temporary grant may continue until
reviewed.
To hold otherwise would mean that the Court would arrogate
itself authority where none exists in the empowering legislation.
This argument further seems to postulate the
continuation of a grant independently from the decision relating to
the permanent
or temporary nature of a disability. However, on a
reading of both regulation 2(3)(a) of the 1998 regulations and
regulation
3, which finds application in the present matter, it is
evident that the eligibility for a disability grant is
inter
alia
dependent upon a decision as to the
nature of the disability.
66
If a decision that an applicant’s disability is
temporary is declared to be invalid and is set aside, any order that
the
grant continues until it is reviewed, as opposed to it being
limited to a specific time period, would effectively mean that the
decision of temporary disability is substituted with a decision of
permanent disability. An order to that effect would be substantially
different from the relief claimed by the applicant in this
application. The substantive merits of the respondent’s
decision
to classify the applicant’s disability as temporary
as opposed to permanent was not been raised as an issue in these
proceedings
and it was not the case the respondent was called upon
to meet. Not only would it be prejudicial to the respondent, but
this
Court, to say the least, will be ill equipped to make that
decision on these papers and to substitute its own decision for that
of the respondent.
Similarly, the argument that the applicant for a grant
may acquire a substantive legitimate expectation that his or her
grant
will continue until lawfully stopped when not notified of the
temporary nature thereof, cannot
be sustained.
67
Firstly, the existence of a legitimate expectation that
may require a public body to confer a substantive, as opposed to a
procedural
benefit, has not as yet been recognised as forming part of
our law.
68
Secondly, even if it is, the mere fact that an applicant
was not advised of the limitation on the grant, cannot in my view
on
its own
form the basis of a legitimate
expectation to acquire a grant that will continue until it is
reviewed. Reliance on the doctrine
of legitimate expectation for any
purpose presupposes that the expectation is legitimate.
69
“
The requirements for the legitimacy of such expectation
have been formulated thus: (a) the representation inducing the
expectation
must be clear, unambiguous and devoid of any relevant
qualifications; (b) the expectation must have been induced by the
decision-maker;
(c) the expectation must be reasonable; (d) the
representation must be one which is competent and lawful for the
decision-maker
to make.”
70
The representation on which the author places reliance
on do not meet these requirements. Any expectation that may exist
cannot
be said to be based on a clear and unambiguous representation
which is devoid of relevant qualification. The failure to notify
a
successful applicant of the limitation on the grant is in itself not
indicative of the nature of the decision reached by the
relevant
authority. The reason is that both regulations 25(1) and 13(3)
require notification in respect of both a permanent and
a temporary
grant. Further, it is clear from the provisions of the Act and the
regulations thereto that an applicant for a disability
grant does
not apply specifically for either a permanent or a temporary grant.
Application is simply made for a disability grant
and the nature and
duration of the applicant’s disability is thereafter
determined by an assessment as envisaged in regulation
2(3)(a) of
the 1992 Act and regulation 3 of the current Act.
71
It is clear from a reading of these regulations that an
assessment may consist of either the medical examination conducted
by
a medical officer in order to determine disability, or the
subsequent evaluation of the information as contained in a medical
assessment. Accordingly, any recommendation in a medical report
relating to the extent of any disability is in itself subject
to an
assessment. An applicant for a disability grant has therefore no
guarantee that he or she will be awarded a permanent disability
grant, notwithstanding the fact that it may have been the
recommendation in a medical report which accompanied his or her
application.
The result is that an applicant cannot be said to
objectively, as opposed to subjectively, have any expectation as to
the nature
of the grant that will ultimately be awarded to him or
her. An expectation in the absence of any other relevant
representation,
will be unreasonable and consequently, not
legitimate.
To conclude, the granting of substantive relief
premised on legitimate expectation cannot arise in the present
matter. Further,
the findings in the
Mpofu
judgment cannot be
taken out of context. It must be understood against the background
of the legislative provisions that were
applicable to the applicant
therein and the disability pension that was paid to him. It
therefore does not lend support to the
statement in the article on
which reliance was placed in both the
Mdodisa
and
Joni
judgments namely that a temporary disability grant must, simply
on the basis of a failure to comply with the provisions and the
regulations relating to notice, continue until it is terminated by a
review process as contemplated in the said regulations.
Consequently
the two judgments relied on by Mr Zono cannot support his submission
that this Court would be entitled to grant
the applicant the relief
claimed in the notice of motion on the basis as contended.
For these reasons I am of the view that a determination
of the factual disputes as contended for on behalf of the applicant
would
not contribute anything to the resolution of the issues raised
by the papers as they stand. Accordingly, and in the exercise of
my
discretion in terms of Uniform Rule 6(5)(g), the request for a
referral of the disputes identified is refused. In the absence
of
such a referral, Mr Zono found himself unable to contend that the
respondent’s submissions are capable of rejection
on the
papers. In contrast to the applicant’s allegations which were
vague and lacking in detail, the respondent seriously
and
unambiguously addressed the facts said to be disputed. Accordingly,
and applying the rule in
Plascon Evans
, the application must
fail.
In so far as costs are concerned, in his heads of
argument Mr Bloem urged the Court to make a punitive costs order on
a scale
as between attorney and client. Although I agree with the
submission that there are serious shortcomings in the manner in
which
the applicant’s case was presented and that it raises
questions concerning credibility, I am not convinced that this is a
matter where a punitive costs order is called for. The applicant’s
submission that she is an unsophisticated and illiterate
person
cannot in all seriousness be placed in issue by the respondent. That
she is illiterate is evident from the fact that she
appended her
thumb print on annexure “MM1” as opposed to a signature.
It must in my view in the circumstances of
the case be accepted, not
only that the applicant was reliant on advice received from her
legal representative, but also on his
assistance in the drafting of
the papers filed in support of the application. On a reading of the
applicant’s founding
papers one is left with the impression
that the factual and legal issues that were relevant to the
application were not given
proper consideration. An adverse costs
order would therefore in my view not be in the interests of justice.
I may finally add that the order which I intend making
in this matter certainly does not mean the end of the road for the
applicant.
There is nothing in the Act or its regulations which
prevents an unsuccessful applicant from again applying for a
disability
grant. It is therefore always open to her to reapply for
a disability grant if so advised and, if dissatisfied with the
decision
of the respondent, to exercise her right of appeal in terms
of the Act and/ or to seek a review of the decision on good grounds.
In the result the application is dismissed with costs.
_______________________________
D.
VAN ZYL
JUDGE
OF THE HIGH COURT
Matter
heard on : 10 March 2011
Judgment
delivered on : 7 April 2011
Counsel
for Applicant : Mr A.S. Zono
Instructed
by : Mr A.S. Zono & Associates
Suite
319- 3
rd
Floor
ECDC
Building
MTHATHA
Counsel
for Respondent : Adv G. Bloem SC
Instructed
by : State Attorney
℅
Potelwa & Co.
43
Wesley Street
MTHATHA
1
Act
13 of 2004. The authorities responsible for the administration of
the Act (previously the Department of Welfare and Pensions
and now
the respondent herein) have in the past come under severe criticism
from the Courts in this province. Complaints from
litigants were
generally related to a failure to consider, or to timeously consider
applications for social grants. To this extent
the relevant
authority was said to suffer from inefficiency and
maladministration. (See for example
Vumazonke v MEC for Social
Development, Eastern Cape
and three similar cases
2005 (6) SA
229
(SE).) The focus has however since shifted and litigation
centers around a challenge to unfavourable decisions taken by the
respondent
in connection with applications for social grants. The
present matter, and several other cases are as a consequence now
more
concerned with the interpretation of the provisions of the Act,
the regulations promulgated in terms thereof, and the legal
consequences
that flow from its implementation. The positive aspect
to this is that it would appear that the agency created by the
present
Act (the respondent herein) to implement its provisions is
not suffering from the same malaise as its predecessor. On the down
side, the extent to which adverse decision are contested in the
Courts is probably a reflection of the level of poverty that
is
experienced generally.
2
R898
of 22 August 2008.
3
See
paras [22] and [23]
infra
.
4
See
for example Steyn “
Substantive Legitimate Expectations”
(2001) JR 244 and Devenish “
Legitimate
expectation
revisited: An apology for the recognition and application of its
independent and substantive application”
2007 De Jure 113.
5
See
for example
Administrator, Transvaal v Traub
[1989] ZASCA 90
;
1989 (4) SA 731
(A) at 758 C-G.
6
Unreported
judgment delivered on 19 November 2009 in case no. 451/2007 (ECM).
7
Unreported
judgment delivered on 16 April 2009 in case no. 1033/07 (ECM).
8
(2002)
SAJHR 320.
9
At
para [22].
10
Unreported
judgment delivered on 18 February 2000 in case no. 99/2848 (WLD).
11
Unreported
judgment delivered on 11 June 2010 in case no. 1031/07 (ECM).
12
At
paras [5] and [6].
13
“
The
one line of cases apply the
Plascon
rule. This means that unless the
facts call for one of the qualifications or exceptions under the
Plascon
rule,
the version of the Respondent is accepted and the matter is dealt
with on the basis of a temporary grant which lapses by
effluxion of
time. The other line of cases do not seem to apply the
Plascon
rule; and to the extent that they do,
they find (by implication) the absence of corroboration (such as
proof of posting) as sufficient
ground to constitute an exception to
the rule. They therefore find that the Applicant was not informed
that her disability grant
was only of temporary nature.”
(At
para [4].)
14
See
Peterson v Cuthbert & Co. Ltd
1945 AD 420
at 428-429;
Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T);
Associated South African Bakeries (Pty) Ltd v
Oryx & Vereinigte Bäckereien (Pty) Ltd en Andere
1982
(3) SA 893
(A) at 923 G-924D;
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 –
635. Also
South African Veterinary Council and Another v
Szymanski
2003 (4) 42 (SCA) at 51B;
Ripoll-Dausa v Middleton
NO and Others
[2005] ZAWCHC 6
;
2005 (3) SA 141
(CPD) at 151A-152B;
Fakie NO v
CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at para
[55]
;
Wightman t/a JW Construction v Headfour (Pty) Ltd
[2008] ZASCA 6
;
2008 (3) SA
371
(SCA) at 375E;
Malan v Law Society, Northern Provinces
[2008] ZASCA 90
;
2009
(1) SA 216
(SCA) at 222B;
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 290F;
Point 2
Point Same Day Express CC v Stewart
2009 (2) SA 414
(W) at 420F.
15
Die
Dros (Pty) Ltd and Another v Telefon Beverages CC and Others
2003
(4) SA 207
(C) at 214 D-E.
16
Hart
v Pinetown Drive-In Cinema (Pty) Ltd
1972 (1) SA 464
(D) at 469;
Shackot Investments (Pty) Ltd v Town Council of the Borough of
Stanger
1976 (2) SA 701
(D) at 704 F-H;
Director of Hospital
Services v Mistry
1979 (1) SA 626
(A) at 635 H-636F;
Die Dros
(Pty) Ltd v Telefon Beverages CC supra
at 217 A-B;
Transnet
Ltd v Rubenstein
2006 (1) SA 591
(SCA) at 600G;
Minister of
Land Affair and Agriculture v D&F Wevell Trust
2008 (2) SA
184
(SCA) at 200D-E;
17
Mauerberger
v Mauerberger
1948 (3) SA 731
(C) at 732;
Director of
Hospital Services v Mistry supra
;
Shpepherd v Mitchell Cotts
Seafright (SA) (Pty) Ltd
1984 (3) SA 202
(T) at 205 E-F;
Ferreira v Premier, Free State
2000 (1) SA 241
(O) at 254C;
Eagles Landing Body Corporate v Molewa NO
2003 (1) SA 412
(T)
at 423I;
Body Corporate Shaftesbury Sectional Title Scheme v
Rippert’s Estate
2003 (5) SA 1
(C) at 6E-F;
National
Council of Societies for the Prevention of Cruelty to Animals v
Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at 349A-B.
18
Driefontein
Consolidated GM Ltd v Schlochauer
1902 TS 33
at 38;
Registrar
of Insurance v Johannesburg Insurance Co. Ltd
(1)
1962 (4) SA
564
(W);
Kleynhans v Van der Westhuizen NO
1970 (1) SA 565
(O) at 568F;
Cohen NO v Nel
1975 (3) SA 963
(W) at 966F;
Shakot Investments (Pty) Ltd v Town Council of the Borough of
Stanger supra
;
Cowburn v Nasopie (Edms)
202 (T) at 205F;
Pienaar v Thusano Foundation
1992 (2) SA 552
(B) at 578C-D.
19
Triomf
Kunsmis (Edms) Bpk v AE & CI Bpk
1984 (2) SA 261
(W) at
270A;
Johannesburg City Council v Bruma Thirty Two (Pty) Ltd
1984
(4) SA (T) at 91F-92F;
Lufuno Mphaphuli & Associates (Pty)
Ltd v Andrews and Another
[2007] ZASCA 143
;
2008 (2) SA 448
(SCA) at 453 D-E.
20
Poseidon
Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban)
(Pty) Ltd
1980 (1) SA 313
(D) at 316A.
21
Radebe
v Eastern Transvaal Development Board
1988 (2) SA 785
(A) at 793
D-F.
22
Act
3 of 2000.
23
The
relief claimed in paragraph (1) and (2) of the notice of motion.
24
By
virtue of the provisions of Regulation 28(1)(d). See paras [22] and
[23]
infra
.
25
Stellenbosch
Farmers’ Winery v Stellenbosch Winery (Pty) Ltd
1959 (4)
SA 234
(C) at 235 F-G.
26
Regulation
3(a).
27
Per
Miller J in the
Mdodisa
judgment
supra
at para [11].
28
See
inter alia
the
Joni
judgment
supra
and
Nyanisa
v MEC for Social Development
, unreported judgment in case no.
1031/07 (ECM).
29
See
Administrator, Natal v Sibiya
[1992] ZASCA 115
;
1992 (4) SA 532
(A) and
Jockey
Club of South Africa v Forbes
[1992] ZASCA 237
;
1993 (1) SA 649
(A).
30
2010
(6) SA 415
(SCA).
31
At
paras [7] to [15].
32
At
para [16].
33
At
para [19].
34
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd supra
.
35
See
the authorities referred to in fn 14 above.
36
Act
37 of
1973.
37
Act
59
of 1992.
38
R418
of 31 March 1998 as amended.
39
Regulation
12(g). At the time there were regulations which applied to “
Bantu
in the Republic”
and in which category the applicant in
Mpofu
fell. These regulations were contained in Government
Notice R1034 of 21 June 1974.
40
Regulation
8(e).
41
“
(1)
….
(2) The Director shall review a grant at times and
at intervals determined by him or her and, takng the circumstance of
each case
into consideration, increase, decrease or suspended a
grant from a date which he or she determines, including a date in
the past,
and inform the beneficiary of his or her reasons in
writing and inform him or her of the 90-day period referred to in
subregulation
(6) for an application for the restoration of the
grant.”
42
“
(1)
A social grant shall lapse-
(a)…
(b)…
(c)
when the period of temporary disability has lapsed in the case of a
grant to a disabled person.”
43
At
page 19 of the judgment.
44
At
page 20.
45
At
page 21.
46
At
page 29.
47
Loc
cit
.
48
At
page 31.
49
“
They
had no power in terms of the Act or the regulations to
ab
initio
determine a period of validity
for the pension.”
Per Marais J in
Mpofu
at page 19 of
the judgment.
50
Administrator,
Transvaal, and Others v Traub and Others supra
at 758 D-E.
51
At
page 29 to 31.
52
1999
(4) SA 385
(T).
53
At
392 F-G.
54
“
Administrative
action”
in section 1 of PAJA is
inter
alia
defined as any decision taken or any
failure to take a decision by an organ of State when exercising a
public power or performing
a public function in terms of any
legislation.
55
Op
cit
.
56
At
page 338.
57
Loc
cit
.
58
“
(1)
The Director-General shall if he or she approves an application for
a grant, inform the applicant in writing of such approval
and the
date on which approval was granted.
(2)
…”
59
In
regulation 2. The relevant portions thereof provided as follows:
“
(1) A person shall be eligible for a social
grant only if, I addition to being an aged person, a disabled person
or a war veteran-
…
…
…
(2)
…
(3)
A person shall be eligible for a social grant for disabled person
only if, in addition to compliance with subregulation (1)-
(a) he or she is a disabled person who has attained
the age of 18 years and whose disability is confirmed by a medical
report
of a medical officer subsequently approved by a pensions
medical officer. Provided that the report shall reflect whether,
according
to the prognosis of the medical officer and the assessment
of the medical pensions officer, the disability is-
(i) permanent; or
(ii) temporary in that it will continue for a
continuous period of not more than six months or not more than one
year, as the
case may be;”
60
Section
18 of the 2004 Act similarly provides that:
“
(1)
If an applicant disagrees with a decision made by the Agency in
respect of a matter regulated by this Act, that person or
a person
acting on his or her behalf may, within 90 days of his or her
gaining knowledge of that decision, lodge a written appeal
with the
Minister against that decision, setting out the reasons why the
Minister should vary or set aside that decision.”
61
See
for example
Maharaj and Others v Rampersad
1964 (4) SA 638
(A) at 646C-E;
Unlawful Occupiers, School Site v City of
Johannesburg
2005 (4) SA 199
(SCA)
[2005] 2 ALL SA 108
para
[22];
Moela v Shoniwe
2005 (4) SA 357
(SCA) paras [8] –
[12] ;
Merry Hill (Pty) Ltd v Engelbrecht
2008 (2) SA 544
(SCA) at para [22].
62
Per
Howie P & Nugent JA in
Oudekraal Estates (Pty) Ltd v City of
Cape Town and Others
2004 (6) SA 222
(SCA) at paras [26] and
[31]. See also
Queenstown GHS V MEC, Department of Education,
Eastern Cape
2009 (5) SA 183
(CK) at para [20] and
Offit
Enterprises v Coega Development Corporation
2009 (5) SA 661
(SECLD) at 672B-G.
63
Oude
Kraal Estates (Pty) Ltd v City of Cape Town and Others supra
at
246 C-D. See generally
Wade & Forsyth Administrative Law
7
th
ed at page 342 to 343;
Baxter Administrative Law
page 712 to
713;
Seale v Van Rooyen NO and Others
2008 (4) SA 43
(SCA) at
50 D-F and
Eskom Holdings Ltd v New Reclamation Group (Pty) Ltd
2009 (4) SA 628
(SCA) at para [11].
64
See
paras [31] to [33]
supra
.
65
Regulation
2(3)(a)(ii) of the regulations promulgated in terms of the 1992 Act
and regulation 3(b)(ii) of
the
current regulations.
66
See
para [22] and footnote 59
supra
.
67
In
footnote 75 to the article the author explains a substantive
legitimate expectation as “…
a state of mind brought
about by the prior conduct or promises of the state that create an
expectation that a person will enjoy
a benefit or privilege, and it
thereafter becomes unfair to deprive the person of that benefit or
privilege. In the same way,
the state can create an expectation that
a particular procedure (usually an opportunity to make
representations) will be provided,
and it then becomes unfair not to
follow that procedure.”
68
See
Meyer v Iscor Pension Fund
2003 (2) SA 715
(SCA) at paras
[27] and [28];
Veterinary Council and Another v Szymanski
2003
(4) BCLR 378
(SCA) at para [15] and
Duncan v Minister of
Environmental Affairs and Toursim and Another
2010 (6) SA 469
(SCA) at paras [13] and [14].
69
Duncan
v Minister of Environmental Affairs supra
at para [15].
70
National
Director of Public Prosecutions v Phillips
2002 (4) SA 60
(W) at
para [28] and
South African Veterinary Council v Szymanski supra
at para [19].
Duncan v Minister of Environmental Affairs and
Tourism and Another supra
at para [15].
71
See
footnote 59
infra
. “
Assessment”
in the
current regulations is defined to mean:
“
(a) the medical examination by a medical
officer of a person or child in order to determine disability or
care-dependency for
the purposes of recommending a finding for the
awarding of a social grant, and “assess” has a
corresponding meaning;
or
(b) the evaluation of information set out in a
medical assessment form or medical report by a medical officer in
the absence of
the patient;”