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[2011] ZAECMHC 17
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Macici v South African Social Security Agency (2234/09) [2011] ZAECMHC 17 (13 October 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE HIGH COURT, MTHATHA
CASE NO: 2234/09
In
the matter between :
ZWELIBALELE
MACICI
…............................................................................
Appellant
and
THE
SOUTH AFRICAN SOCIAL SECURITY AGENCY
…...........................
Respondent
FULL COURT APPEAL
JUDGMENT
STRETCH AJ
[1] During December 2009 the
appellant brought a threefold application in this Court:
[1.1] For the respondent’s
decision to terminate the appellant’s disability grant to be
declared invalid, of no force
and effect, and to be set aside;
[1.2] For the respondent to
be directed to reinstate the appellant’s disability grant
within 21 days from the date of the
order sought and that the
respondent be directed to continue paying this grant until the grant
is “lawfully terminated”.
[1.3] That the appellant be
declared to be “entitled” to payment of all arrears owing
to him as a result of the unlawful
termination of his disability
grant and that such payments “be” with effect from the
date of termination to the date
of payment.
[1.4] That the respondent be
directed to pay interest on the arrears amount at the rate of 15,5%
per annum calculated from the date
of default to the date of payment.
[1.5] That the respondent be
directed to pay the costs of the application on the scale as between
attorney and client.
[2] The application was heard
by Ndzondo AJ on 1 June 2010.
[3] On 5 August 2010 Ndzondo
AJ dismissed the application and directed Mr Zono (hereinafter
referred to as the appellant’s
attorney) to pay the
respondent’s costs
de bonis propriis
on the scale as
between attorney and client.
[4] On 19 August 2010 Caps
Pangwa Attorneys delivered a notice of application for leave to
appeal followed by the withdrawal of
attorneys A S Zono and
Associates on 15 September 2010.
[5] On 12 November 2010
Ndzondo AJ granted the appellant leave to appeal to the Full Court of
this Division. The leave to appeal
was granted with respect to the
whole of the judgement.
[6] It is common cause that
the appellant applied for and was granted a disability grant for a
certain period.
[7] The crisp issues for
determination are the following :
[7.1] Whether the Court a quo
erred in finding that the respondent’s agency had duly complied
with the provisions of item
13 of the regulations promulgated in
terms of section 32 of the Social Assistance Act 13 of 2004 (“the
Act”) which
read as follows :
“
NOTIFICATION
OF OUTCOME
(1) The agency must,
within three months of the date of the application for a social grant
notify the applicant of the approval
or rejection of the application
for the social grant.
(2) A notification
contemplated in sub-regulation (1) must be delivered to the applicant
by-
(a) hand, against
signature by the applicant, or at the address furnished by the
applicant at the time of application; or
(b) pre-paid registered
post to the address furnished by the applicant at the time of
application.
(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.
”
[7.2] Whether the Court
a
quo erred in finding that the respondent had substantially
complied with its undertaking in terms of the grant.
COMPLIANCE
WITH THE REGULATIONS
[8] The appellant admits that
:
[8.1] He made an application
for a disability grant on 1 December 2008.
[8.2] This application was
considered and approved with effect from December 2008.
[8.3] He received the first
payment of R1 920-00 (which was made up of R960-00 for December
2008 and R960-00 for January 2009)
during January 2009, and he
received his last payment during October 2009.
[9] He contends however that
the information about the duration of the disability grant (12
months) was not “imparted”
to him. This information is
set forth in a typed document which the respondent has annexed to its
answering papers, marked “MM1”.
[11] When this matter was
argued before us, the appellant’s counsel (correctly in my
view) abandoned any further reliance
on the following :
[11.1] That the appellant had
a legitimate expectation of a permanent grant.
[11.2] That the appellant’s
temporary disability grant was terminated by way of administrative
action. It is now common cause
that the grant lapsed by the efluxion
of
time.
[12] In this regard I refer
to
MEC for Social Development v Mdodisa
2010 (6) SA 415
SCA at 419
G – H
where the following is stated :
“
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.
However, the decision to make a grant a temporary grant is
administrative action and once that decision was made the appellant
then had the right to receive notification of the decision
and to
make representations through an appeal procedure. She was denied
these rights.
”
[13] The appellant, in his
grounds of appeal says that the Court below ought to have found that
the respondent failed to draw the
appellant’s attention to the
contents of “MM1” when the appellant placed his
thumbprint on this document on 1
December 2008.
[14] What follows here, is a
reproduction of the transcript of “MM1”, the original of
which also bears a signature and
a thumbprint at the foot thereof :
ANNEXURE “MM1”
Reference
Ref No 1684115
Verwysings Nr
NAME macici,
dalton zwelibalele
ID NUMBER
7902215572082
ADDRESS
MAMPONDOMISENI A/A
box 46
NGQELENI
5140
RE APPROVAL OF
YOUR TEMPORARY DISABILITY GRANT APPLICATION
With reference
to your disability grant application dated 12/1/2008. Your
application has been approved for a period of 12 months
from 12/2008
until 12/2009 for the following reasons:
FOR ASSISTANCE
DURING INTRODUCTION TO ARVS.
The amount
payable and paypoint details are as follows:
FIRST PAYMENT
DUE DURING: January 2008 PAYPOINT:
FIRST AMOUNT
PAYABLE: R 1,920.00 BANK DETAILS:
MONTHLY AMOUNT:
R 960.00
You are required
to inform your local office of any changes of your and/or your
spouse’s general, medical and/or financial
circumstances. Any
person who provides information which is to his/her knowledge untrue
in order to obtain a grant makes himself/herself
guilty of an
offence. Any person convicted of such an offence will be liable to a
fine or to imprisonment, or to both a fine and
imprisonment. Failure
to adhere to the requirements of the Act may lead to the lapsing of
your grant. If you fail to collect
If you wish to
appeal against the above decision, you may appeal to the NATIONAL
MINISTER: SOCIAL DEVELOPMENT in writing against
such a decision
within ninety (90) days after the date on which you were notified of
the decision. The appeal may be sent to:
NATIONAL
MINISTER: DEPARTMENT OF SOCIAL DEVELOPMENT
PRIVATE BAG X901
PRETORIA
0001
CHIEF EXECUTIVE
OFFICER
SOUTH AFRICAN
SOCIAL SECURITY AGENCY
DATE 12/1/2008
[15] The appellant does not
dispute having received this document nor does he deny that he
affixed his right hand thumbprint thereon.
[16] The appellant also
admits the following with respect to this document :
[16.1] That he made his
application for a disability grant on 1 December 2008 (the date
reflected on “MM1”), which application
was considered and
approved on that same day with effect from December 2008.
[16.2] That the first payment
was made to him during January
2009 (by logical inference
the appellant then admits that the “January 2008”
reflected at annexure “MM1”
is clearly a typographical
error and should read 2009).
[16.3] That he received his
last emolument in October 2009.
[17] The respondent alleges
that this document was given to the appellant on 1 December 2008. The
appellant says that he did not
only place his thumbprint on a one
page document on 1 December 2008. He says the following :
“
There
were voluminous documents presented to me for the right thumbprint
not
only one page
as
it appears in ‘MM1’”.
[18] It was submitted on the
appellant’s behalf in the Court
a quo
that the
aforegoing did not present a genuine dispute of fact. The appellant
also did not argue that the matter should be referred
to oral
evidence. Indeed, the appellant himself annexed a letter from the
respondent to his founding papers wherein the respondent
confirms
that the applicant not only placed his thumbprint on annexure “MM1”
in acknowledgement of receipt, but that
he was also advised of the
contents of “MM1” on the same day.
[19] The purpose of
regulation 13 is to ensure that the applicant is given notice
(written notice suffices) of the nature of and
the extent of the
grant and to advise him of his options if aggrieved.
[20] The record being silent
on whether the appellant only placed his thumbprint on the
respondent’s copy or whether he was
also given his own notice,
the Court below did not err in any event in applying the principles
laid down in
Plascon-Evans Paints Limited v Van Riebeeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
A
.
[21] A proper application of
these principles caused the Court below to conclude (correctly in my
view), that :
[21.1] A copy of annexure
“MM1” was hand-delivered to the appellant on 1 December
2008 as attested to by the respondent’s
representative;
[21.2] The document (annexure
“MM1”) annexed to the respondent’s affidavit is a
duplicate of the document which
was hand-delivered to the appellant;
[21.3] The appellant
acknowledged receipt and notification by hand delivery by affixing
his thumbprint to the respondent’s
copy.
[21.4] The respondent
subsequently confirmed that the appellant had received “MM1”
on 1 December 2008 and that the contents
thereof was explained to
him.
[22] Annexure “MM1”
also notified the appellant of his right to internally appeal the
decision contained therein within
90 days after the date on which he
was “notified” of the decision.
[23] The relevant section of
the Act dealing with appeals reads as follows :
“
18.
APPEALS
(1)
If an appellant
disagrees with the decision made by the agency with respect to a
matter that is regulated by this Act, that person
or a person acting
on his/her behalf may, within
90 days of his/her gaining
knowledge of the 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.
”
[24] In response to the
appellant’s attorney’s threat of High Court litigation
(should the appellant’s grant not
be reinstated on a permanent
basis), the respondent, on 2 December 2009 not only advised the
attorney that the appellant had been
notified of the nature of and
the extent of his grant when he applied on 1 December 2008, but also
repeated this information, for
the attorney’s benefit.
[25] If the appellant indeed
gained knowledge of the respondent’s decision for the first
time on 2 December 2009, his remedy
was to invoke the provisions of
section 18 of the Act instead of approaching this Court directly for
relief.
[26] The appellant has, on
either scenario, not only failed to exhaust his internal appeal
remedies, but has prematurely approached
this Court for final relief
which relief this Court can only grant if the Minister of Social
Welfare refuses to vary or set aside
the respondent’s decision,
and then only if this Court finds that the Minster’s refusal is
clearly wrong. It goes without
saying that the only other competent
ground upon which the appellant may approach this Court is to request
it to compel the Minster
to entertain the appellant’s internal
appeal once evidence has been placed before this Court that the
Minister has failed
or refused to do so. But this is not the case.
COMPLIANCE
WITH THE GRANT
[27] Again, applying the
Plascon-Evans
test together with the fact that the appellant
has been most evasive as to how much money he was paid, when the
payments were effected
and the number of instalments, the Court
a
quo
correctly accepted the respondent’s version that the 12
emoluments due were made and received as follows :
ITEM
DATE
AMOUNT
First
and Second Payments
05/01/2009
R1 920-00
(R960-00 x 2)
Third
payment
02/02/2009
R960-00
Fourth
payment
02/03/2009
R960-00
Fifth
payment
31/03/2009
R1 010-00
(increase as per GN R286 in GG 34169 of 31/03/2011 effective on
01/04/2011)
Sixth
payment
04/05/2009
R1 010-00
Seventh
Payment
01/06/2009
R1 010-00
Eighth
Payment
01/07/2009
R1 010-00
Ninth
Payment
31/07/2009
R1 010-00
Tenth
Payment
28/08/2009
R1 010-00
Eleventh
Payment
29/09/2009
R1 010-00
Twelfth
Payment
27/10/2009
R1 010-00
[28] The only other issue
which was pursued but not with any serious intent, is the suggestion
that because annexure “MM1”
appears to contradict itself
(it states that the application had been approved for a period of 12
months, but thereafter refers
to the period being from December 2008
until December 2009 being 13 months), this Court should give the
appellant the benefit of
the doubt and direct retrospective
reinstatement of the grant to terminate in December 2009.
[29] At the risk of stating
the obvious, this submission is frivolous and devoid of logical
reasoning :
[29.1] Item 3 of the
aforesaid regulations only makes provision for three categories of
grants :
[29.1.1] A temporary grant
for at least six months;
[29.1.2] A temporary grant
for a maximum period of 12 months;
[29.1.3] A permanent grant.
[29.2] Mr Tokota, for the
appellant, during the course of argument conceded that the grant was
a temporary one. A temporary grant
envisages no more than 12
consecutive emoluments calculated at the maximum amount per emolument
as determined from time to time
by the Minister of Social Development
in conjunction with the Minister of Finance.
[29.3] Annexure “MM1”
not only says that the grant is temporary but also refers to a
maximum period of 12 months to
effect these 12 payments.
[30] The somewhat sporadic
payment and collection of these 12 emoluments, resulted in the
respondent’s undertaking having
been complied with over a
period of ten calendar months.
[31] This Court is not at
liberty to direct the payment of any further emoluments. To do so
would theoretically convert a temporary
grant into a permanent one in
the absence of any justification for doing so. In the premises I am
satisfied that the Court below
did not misdirect itself in dismissing
the application.
THE
ISSUE OF COSTS
[32] In its answering
affidavit issued on 5 February 2010, the respondent gave notice to
the appellant’s attorney of its intention
to pursue a punitive
costs order against the attorney
de bonis propriis
in the
event of the application failing.
[33] In justification thereof
the respondent states that the application was instituted on 8
December 2009, despite the respondent
having advised the appellant’s
attorney in writing on 1 December 2008 that the appellant had
previously been informed in
writing that his application for a
disability grant had been approved for a temporary period of 12
months only, and that he had
acknowledged receipt of such
notification.
[34] In addressing the
respondent’s notification regarding the punitive costs order
against the appellant’s attorney,
the appellant states that the
respondent’s letter of 1 December 2008 for what it is worth, is
nothing more than a written
resistance to the appellant’s
demand for reinstatement of the disability grant.
[35] This is not correct.
[36] On the contrary, the
letter in my view reflects a
bona fide
and clearly explained
clarification of what had actually transpired, and advises the
attorney that the appellant had not only been
issued with an outcome
letter (annexure “MM1”) but that he was also advised of
its contents. Any prudent attorney would
immediately have sought a
copy of this vital document, prior to resorting to litigation,
particularly when the appellant pleads
ignorance of the contents of
the document.
[37] The appellant in reply
resists a costs order against his attorney on the following grounds :
[37.1] That his legal
representative carried out his instructions with due diligence and
skill;
[37.2] That there was no
evidence of recklessness on the part of the appellant’s
attorney causing him to disregard the rules
of law;
[37.3] That the claim for
punitive costs is motivated by a personal vendetta which the
respondent’s attorneys bore against
the appellant’s
attorneys.
[38] The Court below found
that the launching of the application was unwarranted. This in itself
is not sufficient reason to grant
punitive costs against the
appellant’s attorneys.
[39] The Court below further
found that the appellant was guilty of recklessness and abuse of the
Court’s process as the application
was not only unwarranted but
meritless and/or bad in law. The Court below motivates this finding
by correctly pointing out that
the effect of the order sought by the
appellant, would be for this Court to compel the respondent to
reverse its decision and to
substitute it for an order that would
entitle the appellant to a disability grant of a permanent nature.
[40] The Court below
correctly found that it would not have been possible for it to grant
such an order on the application papers.
It correctly held that even
if the appellant had succeeded in persuading it to set aside the
respondent’s decision, the appropriate
prayer in the
circumstances should have been for the matter to be remitted for
internal remedies to be pursued.
[41] The Court found that the
appellant (“or perhaps his attorney”) had acted
recklessly and maliciously and had failed
to apply his mind in
bringing a frivolous application which was bound to fail.
[42] The Court also found
that the appellant was ill advised and that he should have applied
for another disability grant.
[43] The Court further found
that it was the appellant’s attorney who prepared the papers
and brought the application on his
behalf as the appellant describes
himself as unsophisticated and illiterate. I am of the view that not
much can be made of this
however, as the appellant elsewhere in the
same application describes himself as a literate person.
[44] I am of the view however
that the Court had sufficient information before it to support a
prima facie
view that
de bonis propriis
costs should be
awarded against the appellant’s attorney.
[45] Having formulated this
prima
facie view, the Court below thereafter should have
afforded the attorney the opportunity to show cause why this costs
order should
not be made.
[46] The failure on the part
of the Court below to afford the appellant’s attorney this
opportunity is in my view a misdirection
which compels this Court to
set aside and substitute the costs order with the usual order made on
a party and party scale when
costs follow the result.
[47] This does not of course
mean that this Court is barred from formulating and expressing its
own views regarding applications
in matters of this nature.
[48] In the matter of
Ngukela
v SASSA
(unreported judgment of Griffiths J delivered on 2
December 2010 in ECD case number 2233/09) the appellant was likewise
represented
by attorney Zono.
[49] The relief which was
sought in that application duplicates the relief which was sought in
the matter before us.
[50] What is cause for
concern is that both applicants in their founding affidavits allege
that the respondent is aware of the fact
that they are destitute,
unsophisticated and illiterate. Thereafter, both applicants in reply
on oath, state that they are surprised
that the respondent alleges
that they acknowledged receipt of these documents by using their
right hand thumbprints as they “can
read and write”.
[51] It is highly improbable
that two unrelated deponents in two separate applications would both
describe themselves in two consecutive
affidavits firstly as
illiterate and then as literate.
[52] It seems to me that the
appellant’s attorney at the very least in these two
applications has embarked on a cut and paste
exercise, the product of
which has been a standard type affidavit which fails to cater for the
independent merits of each case.
This seems to have become a practice
described by Wallis AJ (as he then was) as “indolent” in
Cele v SASSA
2009 (5) SA 105
at 115G
.
[53] This practise, if still
in use, is an indictment on the legal profession and must cease
forthwith.
[54] I accordingly propose
that the following order be made :
[a] The order made by the
Court below, dismissing the application, is confirmed.
[b] The costs order against
the appellant’s attorney is substituted with an order directing
the applicant to pay the costs
of the application.
[c] The appellant is directed
to pay the costs of the appeal.
____________________________________
I. T. STRETCH
ACTING JUDGE OF THE HIGH
COURT
I agree :
__________________________
F DAWOOD
JUDGE OF THE HIGH COURT
I agree, and it is so ordered
:
__________________________
Y EBRAHIM
JUDGE OF THE HIGH COURT
Matter heard on : 10 June
2011
Judgment delivered on :
13
October 2011
Counsel for the appellant : B
R Tokota S.C.
Z Z Matebese
Instructed by : Caps Pangwa &
Associates
Counsel for the respondent :
G H Bloem S.C.
K L Watt
Instructed by : The State
Attorney
c/o Potelwa & Company