Njongi v Member of the Executive Council, Department of Welfare, Eastern Cape (CCT 37/07) [2008] ZACC 4; 2008 (6) BCLR 571 (CC); 2008 (4) SA 237 (CC) (28 March 2008)

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Njongi v Member of the Executive Council, Department of Welfare, Eastern Cape (CCT 37/07) [2008] ZACC 4; 2008 (6) BCLR 571 (CC); 2008 (4) SA 237 (CC) (28 March 2008)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 37/07
[2008]
ZACC 4
DELIWE MURIEL NJONGI                                                                                   Â
Applicant
versus
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT OF WELFARE, EASTERN CAPE                                             Respondent
Heard on         :           6 November
2007
Decided on     :           28 March 2008
JUDGMENT
YACOOB J:
Introduction
[1]
This application for leave to appeal is
concerned with the right to receive a disability grant within the context of
the socio-economic
rights embraced by our Constitution.  In particular it
concerns the right of grant receivers to lawful administrative action when

social grants are cancelled, as well as whether the State can rely on extinctive
prescription of its obligation in order to avoid
paying these grants.
[2]
The specific question raised in the application
for leave to appeal is whether prescription runs in favour of a provincial government

against a person entitled to claim arrear disability grant payments during the
period when an unlawful administrative decision
that the grant should not be
paid remains in existence and is not disavowed by the State.  The Eastern Cape
Provincial Government
(the Provincial Government), the effective respondent
represented by the Member of the Executive Council for Welfare, claims that

prescription can run against a person with disability entitled to payment of
arrears in these circumstances.  The South Eastern
Cape High Court (the High
Court) concluded that prescription did not run so long as the administrative
action that resulted in
the termination of the disability grant remained.
[1]
But a Full Court of the Eastern
Cape High Court (the Full Court) on appeal by the Provincial Government
concluded that it did.
[2]
Â
Mrs Njongi, the applicant, having been refused leave to appeal by the Supreme
Court of Appeal, seeks to challenge the correctness
of the decision of the Full Court.
[3]
A second perhaps more important dimension of the
case emerged during the hearing.  It concerns whether and the circumstances in

which the State can legitimately decide to avail itself of the defence of
prescription.  This question is significant because
courts cannot invoke
prescription of their own accord.  They may decide whether a claim is
prescribed only if the debtor (the
State in this case) expressly and properly
raises it.  If it is competent for the State to raise prescription as a defence
the
more specific question concerns the factors that the State must consider
when deciding whether to deprive the disability pensioner
of her right to
receive disability grant arrears owed to her by pleading prescription.
The facts
[4]
The facts are relatively straight-forward.  Mrs
Njongi, the applicant, was in receipt of a disability grant from 1989 until
November
1997 when the payment of the grant inexplicably ceased.  The
provincial departmental official consulted by the applicant gave no
explanation
for the stoppage of her grant and simply asked her to re-apply.  Regrettably
Mrs Njongi was not the only victim compelled
mercilessly to suffer the pain,
misery and indignity of non-payment.  There were literally tens of thousands of
others.
[5]
Mrs Njongi’s re-application was successful in
the sense that the Provincial Government resumed payment of the grant during
July
2000.  At that time she was paid what was referred to as “back-pay” in the
sum of R1 100,00.  During May 2004 she brought
proceedings in the High Court
for the setting aside of the administrative action terminating her disability
grant.  She consequentially
claimed payment of the amount of R15 200,00, which,
according to her, was due as arrear payments for November 1997 to July 2000.Â

She was paid a further sum of R9 400,00 after proceedings were instituted.  As
I have already said, the High Court rejected the
contention of the Provincial
Government that the debt had prescribed but the Full Court upheld the
prescription argument and non-suited
the applicant.
[6]
Two observations must be made at this early
stage.  One would have expected Mrs Njongi’s application to have been finalised
with
the utmost urgency bearing in mind that Mrs Njongi was obviously a poor
woman with little education.  Moreover she had, by the
time she re-applied, already
been without a disability grant for more than a year.  Far from it.  The
disability grant was approved
only after 18 months.
[3]
  Secondly the amount of
back-pay was small.  This payment must be evaluated against the background of
the legal developments
that had taken place while Mrs Njongi waited.
[7]
It will be convenient to set out the High Court
order before describing this background—
“1.        The administrative action of the respondent in stopping
or suspending payment of the applicant’s social grant
during the period
November 1997 to July 2000 is declared to be inconsistent with the Constitution
and invalid, and is set aside.
2.         The respondent is directed to reinstate the applicant’s
social grant during the period November 1997 to July
2000 by paying the amount
of R5 800-00 to the applicant.
3.         The respondent is directed to pay interest on each
monthly amount that the applicant should have been paid (making
up the total of
R15 200-00) at the prescribed rate of 15.5% per annum calculated from the date
each payment should have been to
the date of payment, the calculation of such
interest to take into account the payment of R9 400-00 made on 10 March 2005.
4.         The respondent is directed to advise the applicant’s
attorneys in writing of the above payment when it is made.
5.         The respondent is ordered to pay
the applicant’s costs.
6.         The applicant may in terms of rule 4(9) serve this order
on the respondent at the offices of the State Attorney
in Port Elizabeth.”
The social and legal context
[8]
It is necessary first to look broadly at the
problem of the unlawful termination of grants in the Eastern Cape, the attitude
of
the Provincial Government and the approach of the courts before the High
Court decided Mrs Njongi’s application.  It is only
in that context that the
position taken by the State in Mrs Njongi’s case can be properly evaluated.
[9]
I can best describe the surrounding
circumstances and the extent and cause of this disaster by repeating what was
said by our courts
in two cases.  The first, which may be referred to as the
Ngxuza
High Court judgment,
[4]
was concerned with an application by the Legal Resources Centre for leave to
commence a class action in order to ensure that people
who had lost their grants
in the way in which Mrs Njongi had lost hers received their grants again as
soon as practicably possible.Â
The High Court said—
“At the end of 1996 a meeting was held
between the then incumbent MEC for welfare in the Eastern Cape Province,
representatives
of the Grahamstown Black Sash Advice Office and representatives
of the Legal Resources Centre (the LRC).  In a memorandum the deficiencies
in
the procedure then routinely followed in the cancellation of welfare payments
were pertinently drawn to the MEC’s attention.Â
The welfare department agreed
to implement a number of measures to improve the efficiency of the system.  The
office of the ‘Pensioner’s
Friend’ was created to provide quick and easy
redress for welfare grievances.
Prior to 1994 six different administrations
had been responsible for social grants in the province.  Different Acts and
regulations
applied to the different administrations. Legislative consolidation
came in the form of the Social Assistance Act 59 of 1992 (the
Act), which repealed
the previous separate Acts.  This was accompanied by the amalgamation of the
previously fragmented databases
into a unified national database known as the
SOCPEN 5 system.  The objective was to achieve amalgamation during the first
quarter
of 1996, but in the Eastern Cape this was achieved only by the first
quarter of 1997.  The amalgamation process showed that the
information on
record for many of the beneficiaries was incomplete, that there was duplication
of payments and that the eligibility
of many beneficiaries for grants was
suspect.  The welfare department accordingly embarked on a process to verify
and update the
particulars of all beneficiaries.
This was done by effectively requiring each
beneficiary to re-apply for grants in accordance with prescribed formalities.Â
This
process has since been repeated on three occasions in respect of
beneficiaries in the three categories of old age, disability and
child
support.  The re-registration process was accompanied by the imposition of a
moratorium on the processing of new applications
and the processing of arrear
payments to welfare beneficiaries.
These measures resulted in increasing
numbers of people reporting to advice offices, churches, social organisations
and the LRC
that their grants have been terminated.  The LRC at first attempted
to deal with these problems in co-operation and agreement with
the welfare
department.  In September 1997 a meeting was held with the then MEC, who gave a
number of undertakings to redress
the situation.  An essential feature of the
undertakings was the allocation of extra staff to deal with the backlog and the
appointment
of a senior staff member to liaise with advice offices and to
communicate decisions taken by department officials.  This task was
similar to
that of the by now defunct Pensioner’s Friend.  This initiative failed because
the officials were never appointed.
When attempted co-operation proved
fruitless the LRC turned to litigation.  During the first quarter of 1998 a
number of successful
individual applications were launched against the MEC, 43
in number.  Most related to excessive delays in obtaining decisions on,
and
payment of, social grants.  Three applications related to the review of
cancelled social grants.  The litigation campaign
was interrupted when the
acting permanent secretary of the welfare department requested the regional
director of the LRC in Grahamstown
to attend a meeting in an attempt to resolve
the remaining applications against the department.  The meeting was held in
April
1998.  A minute of the meeting reveals that the necessity for a fair
procedure to be followed when reviewing social grants was
again brought to the
department’s attention.  Since August 1998 the details of approximately 2000
erstwhile beneficiaries, all
of whom alleged that their grants were terminated
without observance of administrative fairness, have been sent to the
department.Â
Barely one third of these cases elicited any response from the
department.  Of these people approximately 20% were re-instated.Â
For more than
1000 no response has been forthcoming.  A further meeting was held with
officials of the department in November
1999 to discuss the department’s poor
performance in rectifying matters.  It was reiterated that the procedure for
the cancellation
of grants was defective.  Further suggestions were made by LRC
lawyers to expedite and alleviate matters.  Nothing came of it.”
[5]
[10]
The Eastern Cape High Court granted an order
authorising a class action but the State appealed to the Supreme Court of
Appeal.Â
The judgment of the Supreme Court of Appeal (the
Ngxuza
appeal
judgment)
[6]
evaluated the approach of the Eastern Cape authorities in relation to the
cancellation of grants in the following way—
“The provincial authorities in the Eastern Cape decided to revoke the welfare benefits of various groups of persons receiving
social
assistance.  They did so unilaterally and without notice to those
concerned.  . . . [T]he method the authorities chose to deal
with the situation
was extreme and the consequences for large numbers of needy people savage.Â
They failed to differentiate between
the fraudulent and undeserving and
unentitled on the one hand, and on the other the truly disabled.  These latter
were manifestly
not ghosts and the mechanism employed left them destitute.
All without distinction were required to
re-apply for their existing entitlements.  But the bureaucratic structures and
personnel
required to expedite the process were lacking, and repeated promises
by officials and politicians to improve them failed to materialise.
 . . . The
papers before us recount a pitiable saga of correspondence, meetings, calls,
appeals, entreaties, demands and pleas
by public interest organisations, advice
offices, district surgeons, public health and welfare organisations and
branches of the
African National Congress itself, which is the governing party
in the Eastern Cape.  The Legal Resources Centre played a central
part in
co-ordinating these entreaties and in the negotiations that resulted from
them.  But their efforts were unavailing.Â
The response of the provincial
authorities as reflected in the papers included unfulfilled undertakings,
broken promises, missed
meetings, administrative buck-passing, manifest lack of
capacity and at times gross ineptitude.”
[7]
[11]
It has not been possible to establish the
circumstances of the three cases that arose out of cancellation of social
grants mentioned
by the Eastern Cape High Court in
Ngxuza
.
[8]
  The first case concerning
cancelled grants that we do know about is that of
Bushula
,
[9]
decided about six months before
Mrs Njongi received the disability grant for which she had re-applied.  When Mr
Bushula
“went to collect his disability grant in
June 1997, he [like Mrs Njongi] was verbally advised by the welfare clerk that his
grant
had been cancelled.  His attempts thereafter to have his grant reinstated
proved fruitless.”
[10]
Since the applicant places
substantial reliance on
Bushula
, it is appropriate to set out the
reasoning in some detail.  Mr Bushula, like Mrs Njongi relied on certain of the
Regulations
promulgated in terms of the Social Assistance Act
[11]
(the Act) which provided—
[12]
“21 (2)  The Director-General shall review a grant annually and,
taking the circumstances of each case into consideration, increase,
decrease or
suspend 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 the
application for the
restoration of the grant.
 . . . .
21 (6)   If an application is made for the restoration of a grant,
the Director-General may restore the grant with effect from
the date on which
the grant was suspended: Provided that the application for restoration is made
within 90 days of suspension.”
[13]
[12]
It was held that the cancellation of the
disability grant had been prejudicial to Mr Bushula and that it was necessary
for him to
be heard before an appropriate decision in relation to cancellation
was made.
[14]
Â
The Provincial Government contended that disability grant recipients were
indeed informed that their social grants would be reviewed
annually and that
the reviews would start during 1996.  This the Government did en masse by
pamphlets distributed at district
offices and payout points, through the print
media, radio and through certain welfare forums.  Mr Bushula was not aware of
this.
[15]
Â
The Court held that this “generalised notice procedure” could not be considered
as the giving of proper notice.
[16]
Â
It was further held that the completion of the application form and the medical
report form handed to Mr Bushula by the welfare
clerk could not be regarded as
conveying to him that there had been an enquiry concerning the continuation of
his disability grant.Â
Mr Bushula had a right to be heard in that regard.
[17]
[13]
The Court found that Regulation 21(2) had not
been complied with either.  No notice of the suspension of his grant and of the
opportunity
to make representations within a period of 90 days had been given
to Mr Bushula.  In the circumstances the administrative decision
cancelling the
grant had to be set aside and the grant reinstated.  The detail of the
reinstatement of the grant ordered by the
Court
[18]
accords with common sense and
fairness.  It required that all money that would have been paid to Mr Bushula
had the unlawful cancellation
not occurred should be paid to him.
[14]
There was no appeal against this judgment.  It
follows that the Provincial Government accepted the reasoning and conclusion in
it.
[15]
Three important implications of the
Bushula
judgment must be underlined at this stage.  The first arises from the fact that
the cancellation of the disability grants of Mr
Bushula and Mrs Njongi took
place at about the same time and in about the same way.  The Provincial
Government could not therefore
be in any better position in relation to the
applicant in this case than in Mr Bushula’s case.  Secondly, at best for the
Provincial
Government, the communication of information at a generalised level
taken together with the filling in of the review forms were
the only
communication elements in the review process; no specific notice was given to
an individual.  The same probably happened
with Mrs Njongi too.  Lastly, the judgment
in
Bushula
called for full reinstatement as an inevitable remedy for all
improper cancellations of disability grants in the provincial governmental

review process.  Mrs Njongi was at least morally entitled to full
reinstatement.
[16]
I would not have been surprised at all, bearing
in mind that there had been no appeal against the judgment in
Bushula
, if
the Provincial Government had accepted both that their procedure had been wrong
and that all grants improperly cancelled ought
to be fully reinstated in the
sense ordered in
Bushula
.  All affected people ought to have been placed
in the position in which they would have been absent the unlawful
administrative
decision.  Indeed, the Provincial Government should have taken
proactive measures to fully reinstate every improperly cancelled
social grant.Â
This is a necessary consequence of the duty of every organ of State to “assist
and protect the courts to ensure
the . . . dignity . . . and effectiveness of
the courts.”
[19]
Â
It would also be mandated by the constitutional injunction that an order of
court binds all organs of State to which it applies.Â
The Provincial Government
had every right to appeal the order in
Bushula
.  Once it did not do so
however, it had the duty in my view to ensure full redress for every person in
the position of Mr Bushula.Â
Nothing less would have been acceptable.
[17]
This duty to fully reinstate everyone affected is
not merely a function of the relationship between the Government and the
courts.Â
The vast majority of people who were deprived of their disability
grants as a result of the bewildering conduct of the Provincial
Government are
the poorest people in our society.  Sadly they eked out a miserable existence
and the unlawful denial of their
grants was unthinkably cruel and utterly at
odds with the constitutional vision to the achievement of which that Government
ought
to have been committed.  We remind ourselves that the Constitution in its
preamble looks to the improvement of the quality of life
of all citizens and
that the foundational values of our Constitution revolve around “human dignity,
the achievement of equality
and the advancement of human rights and freedoms.”
[20]
[18]
But the Provincial Government failed dismally in
its constitutional obligations.  The Legal Resources Centre then launched the
Ngxuza
[21]
application in the High Court
for leave to institute a class action.  The Provincial Government vigorously
opposed the application.Â
Its response to the
Bushula
judgment is summed
up in the following passage from the
Ngxuza
High Court judgment—
“The applicants allege that this process is
unlawful for want of compliance with the basic principle that they should be
afforded
a hearing.  The respondents do not contend otherwise.  The applicants
also allege that this unlawful procedure was applied to
all suspensions or
cancellations of social grants since March 1996.  The respondents do not
expressly deny the various assertions
to this effect made in the founding
papers.  Nor do they set out exactly what procedure has been followed since the
Bushula
judgment.  The closest they come to this is to state that the
department has taken note of the judgment and the valuable guidance
given in it
in respect of the suspension and/or cancellation of disability grants.Â
Department officials ‘have been instructed
to act accordingly’.”
[22]
[19]
As I have already said, the High Court in
Ngxuza
authorised the class action but the Provincial Government took the case on
appeal to the Supreme Court of Appeal.  Once again,
that Government in effect
refused to undertake to act in accordance with the judgment in
Bushula
.Â
The Supreme Court of Appeal judgment says in this regard—
“That the method the province chose to
verify and update its pensioner records was not just undifferentiatingly harsh,
but also
unlawful, was undisputed in these proceedings.  That much was
established [in the
Bushula
case].  In its answering affidavit in the
present matter the province says that it ‘took note’ of the judgment ‘and the
valuable
guidance it has given in respect of the suspension and/or cancellation
of disability grants’.  Its officials have, it says, ‘been
instructed to act
accordingly’.
The affidavit says no more.  Its silence is
expressive.  At best the statement that officials have been ‘instructed’ to act

‘in accordance with’
Bushula
implies that the province will not in
future unlawfully terminate disability grantees’ benefits.  What it omits to
say is more
pertinent, which is whether
Bushula
will in fact be
implemented for grantees already removed unprocedurally from the system.Â
Though counsel assured us from the Bar
that the province has reinstated and is
paying so far as possible the categories of claimants at issue in
Bushula
,
the province’s papers contain no undertaking that the destitute deserving will
be reinstated to their lawful entitlements.Â
Without such an undertaking
members of the class remain at risk.”
[23]
[20]
The Supreme Court of Appeal was justifiably also
critical of the attitude and approach of the Provincial Government in the class

action case in the following terms—
“The circumstances of this particular case
– unlawful conduct by a party against a disparate body of claimants lacking
access
to individualised legal services, with small claims unsuitable for if
not incapable of enforcement in isolation – should have
led to the conclusion,
in short order, that the applicants’ assertion of authority to institute
class-action proceedings was
unassailable.  But assail their claim the province
did.  It did so by recourse to every stratagem and device and obstruction,

every legal argument and non-argument that it thought lay to hand.  While
offering no undertaking to implement
Bushula
in relation to the
applicant class, it asserted that because of the decision the relief sought was
moot.  It then contended, contradictorily,
that the applicants’ claim was not
yet ripe for adjudication.  It tendered no evidence to refute the mass of
indicia
the applicants placed before the Court that showed unlawful conduct against
huge numbers of disability pensioners, yet argued that
the applicants’ evidence
was inadmissible hearsay.  It obstructed the applicant class’s entitlement to
be spared physical
destitution, yet invoked their privacy rights in contending
that the disclosure order should not have been granted.  It did not
flinch even
from deriding the first applicant, who adhered to the founding papers with his thumb-print.Â
Its deponent thought
fit to record his doubt that Mr Ngxuza had read the media
articles appended to the papers (a claim the first applicant did not make),

while the written argument stated that it ‘boggles the mind’ that ‘a man who
never attended school and is presently illiterate’
is able to make ‘learned
submissions’.
All this speaks of a contempt for people
and process that does not befit an organ of government under our constitutional
dispensation.Â
It is not the function of the courts to criticise government’s
decisions in the area of social policy.  But when an organ of
government
invokes legal processes to impede the rightful claims of its citizens, it not
only defies the Constitution, which commands
all organs of State to be loyal to
the Constitution and requires that public administration be conducted on the
basis that ‘people’s
needs must be responded to’.  It also misuses the
mechanisms of the law, which it is the responsibility of the courts to
safeguard.Â
The province’s approach to these proceedings was contradictory,
cynical, expedient and obstructionist.  It conducted the case
as though it were
at war with its own citizens, the more shamefully because those it was
combatting were in terms of secular hierarchies
and affluence and power the
least in its sphere.  We were told, in extenuation, that unentitled claimants
were costing the province
R65 million per month.  That misses the point, which
is the cost the province’s remedy exacted in human suffering on those who
were
entitled to benefits.  What is more, the extravagant cost of ‘ghost’ claimants
would seem to justify the expense of imperative
administrative measures to
remedy the problem by singling out the bogus – something the province
conspicuously failed to do.Â
It cannot warrant unlawful action against the
entitled.”
[24]
  (Footnotes
omitted.)
[21]
It must be emphasised that counsel had assured
the Supreme Court of Appeal from the Bar that the Province “has reinstated and
is paying so far as possible the categories of claimants at issue in
Bushula
”.
[25]
  Anyone who had read the
Supreme Court of Appeal judgment in
Ngxuza
would have had, I think, no
doubt whatever that the judgment would have been drawn to the attention of the Provincial
Government,
that the Government would have understood the concerns of the
Supreme Court of Appeal and that the undertaking by counsel to the
Supreme
Court of Appeal would have been honoured.  The judgment in
Bushula
was
delivered on 17 December 1999.  It will be recalled that it was during July
2000, more than six months after the judgment
in
Bushula
, that Mrs
Njongi began to receive her disability grant consequent upon re-application.
[22]
She received an amount of R1 100,00 in back-pay.Â
The instruction to counsel in
Ngxuza
that the Provincial Government had
reinstated the grants of the categories of people contemplated in
Bushula
was patently incorrect.  Mrs Njongi’s grant had not been fully reinstated.  She
had not been placed in the position in which
she would have been absent the
Provincial Government’s unlawful conduct.  If this had been done, she would at
the very least
have received payment of the sum of R16 300,00
[26]
as claimed.  If the members of
the public service concerned had regarded the application as a new application,
the Provincial
Government would have had to pay to Mrs Njongi grant back-pay
from the date of her application, 12 January 1999, until the date
of approval
of the grant, July 2000.
[27]
Â
The amount of R1 100,00 paid to Mrs Njongi is a pittance even in relation to
that lesser entitlement.
[23]
All the cases discussed so far are in one
important respect different from the case with which we are concerned here.Â
The earlier
cases were, like this one, about the unlawful termination of social
grants in substantially the same way as the disability grant
was terminated in
Mrs Njongi’s case.  The important difference is this:  the cases referred to
earlier are concerned with people
who had not yet received any grant after
termination.  So their claims were simply for reinstatement.  They would, as a
consequence,
have to be placed in the same position as they would have been in
had the social grant not been cancelled.  Mrs Njongi on the other
hand has had
her grant “partially reinstated” only in the sense that she does now receive her
grant monthly and that she has
received some back-pay.  I may mention here that
two months before her case was heard in the High Court and 10 months after the

case had been started, an additional R9 400,00 was paid to her without any
explanation.  Mrs Njongi’s complaint is that the
administrative action
cancelling her grant has not been disavowed and her grant has not yet been
fully reinstated.  She has not
yet been put back in the position in which she
would have been had the unlawful decision not been taken in the first place.
[24]
Something must be said about some of the cases
in this category that were decided in the Eastern Cape before reverting to the
case
at hand.  It will be noticed from what is said about these cases later
that each of them was brought relatively late; some time
after payment of the
social grant had been resumed.  This is understandable because the people
concerned would have been relieved
at having received their social grants and
would probably not have known that the cancellation of the grants had been unlawful
or that they were entitled to the payment of arrears.  The
Kate
case,
[28]
concerned with liability for
constitutional damages as a result of belated approval of grant applications
makes the point.  Mrs
Kate applied for her grant on 16 April 1996
[29]
and was notified that it had
been approved three years and four months later in August 1999.
[30]
  She received arrears of R6
000,00 with no explanation about the balance and why it had not been paid.  It
was only more than
three years later in March 2003 that she consulted an advice
office where the problem was discussed and she was referred to her
attorney.
[31]
[25]
The first case to which our attention was drawn was
that of
Matinise
.
[32]
Â
Ms Mileka Matinise, whose grant had been cancelled and payment of it was
resumed upon re-application, made a claim for payment
of arrears.  The grant in
that case had been terminated in November 1999 and payments resumed in October
2000 following re-application.Â
It is not clear exactly when the case was
launched but the case number shows that this happened in 2003, certainly more
than two
years after the payment.  There too, the Provincial Government tried
to evade payment.  It did so on the basis of a bald unsubstantiated
allegation
that the applicant had been informed of the suspension in writing.  The Court
rejected the contention.
[26]
The next case was that of
Ntame
,
[33]
launched in 2004.  Ms Ntame’s
disability grant had been unlawfully stopped in December 1996 and payment of
the grant had been
resumed in June 1999.  The case number shows that the case
was brought only in 2004, around five years after the payment of grant
had
resumed.  This is almost twice the prescriptive period of three years.
[27]
This is the context in which the prescription
issue must be decided.
Prescription
[28]
I have already said that—
(a)
Mrs Njongi’s disability grant was unlawfully cancelled in November
1997;
(b)
she re-applied for her grant during January 1999 upon the advice of
provincial officials;
(c)
the grant payments resumed in July 2000;
(d)
she was paid R1 100,00 back-pay in July 2000; and
(e)
she was paid a further sum of R9 400,00 in March 2005, long after
the case had started.
[29]
Mrs Njongi’s attorneys calculated that she
should have received an amount of R15 200,00 if she were to be placed in the
same position
in which she would have been had the unlawful decision to cancel
her grant not been made.  The calculation however did not take
into account any
interest.  Payment of this sum before the institution of proceedings would have
carried the necessary implication
that the cancellation had been acknowledged and
disavowed as unlawful.  The attorney required payment by letter dated 10
February
2003.  Two letters were received from the Provincial Government in
response.  The first dated 3 March 2003 was to the effect that
“the matter [was]
receiving attention and [the attorney would] be informed of the progress.”  The
second dated 5 March 2003
said in substance that the “calculation for back pay
and interest [had] been referred to [the] Bisho office . . . responsible
for
the authorisation thereof and . . . [the attorney would] be informed of the progress.”Â
No further response was received
from the Provincial Government.
[30]
I pause here to point out that, if prescription
had begun to run during July 2000, the letter of 5 March would arguably have
been
an admission of liability and served as an interruptor of prescription.Â
This is because it does not deny liability and says that
the “calculation for
back pay and interest” is the only matter requiring further attention.  In
addition, the correspondence
was followed by a further payment apparently in
response to the letters that had been sent on behalf of the applicant.  However

it must be emphasised that whether this correspondence amounts to an
unequivocal disavowal of the cancellation of Mrs Njongi’s
grant is a wholly
different matter.
[31]
The application was served upon the Provincial
Government on 19 May 2004.  But the Government filed no papers in the case
until
February 2005
.  The Government filed,
more than nine months after the application had been served, a notice which can
generously be described
as unusual.  It took the prescription point after a
fashion.
[32]
It cannot be gainsaid that the notice which I discuss
later was inspired by the judgment in
Ntame
.
[34]
  Ms Ntame had instituted
proceedings about five years after the payment of her grant had re-started.
[35]
  Not only had the defence of
prescription not been raised but the case was unopposed.  Despite this the
judge who decided it
characterised the case as being concerned with “whether [Ms
Ntame’s claim] for the payment of a disability grant . . . [had]
prescribed”.
[36]
  In addition, the Court then
went on to conclude that the claims in all the cases before it—
[37]
“would have prescribed . . . if the
respondent had opposed and taken this point in answering papers.  That would,
ordinarily,
have rendered the relief claimed in these matters moot because,
while the applicants seek the review of the administrative action
and inaction
concerned, their purpose in doing so is, understandably, to force the respondent
to pay them what was unlawfully withheld:
if the underlying debts could not be
enforced, then the exercise of pronouncing the administrative action and
inaction . . . invalid,
would have had no practical effect and would have been
academic.”
[38]
[33]
Having pronounced on the prescription issue, the
Court went on to acknowledge that “[i]t is not open to a court to take the
point
mero motu
”
[39]
because of the Prescription Act
[40]
which provides—
“(1)      A court shall not of its own
motion take notice of prescription.
(2)        A party to litigation who invokes prescription, shall do
so in the relevant document filed of record in the proceedings:
Provided that a
court may allow prescription to be raised at any stage of the proceedings.”
The judgment also pointed out that
the relevant document in applications will usually be the respondent’s
answering affidavit.
[34]
This approach was ill-advised.  The issue of
prescription had not been raised.  Because it had not been raised, the Court
could
not be aware whether Mrs Ntame was able to raise any factual averment
concerned with the interruption of prescription
[41]
or whether she had the
necessary information that would trigger the running of prescription.
[42]
  It is wrong to suggest that a
particular issue is moot and need not be decided because the debt would have
prescribed.  This
is to put the cart before the horse.
[35]
The belated notice in this case, filed about a
month after judgment in
Ntame
,
[43]
raised prescription as a “question of law” and echoed that judgment in certain
respects.  It says—
“2.        The purpose of the Applicant in seeking a review of the
administrative action of the Respondent is to force the
Respondent to pay her
what she contends was unlawfully withheld from her, namely the sum of R15
200.00.  This represents the total
of monthly payments in respect of her
disability grant which were not paid for a period due to the stoppage or
suspension of her
disability grant.”
[44]
“3.        The debt that is central to the Applicant’s case – her
disability grant that was not paid for a period –
relates to a precisely
defined period, namely, November 1997 to July 2000, with a precisely defined
endpoint, namely July 2000
when she again started receiving regular monthly
payments in respect of her disability grant.”
[45]
“8.        Accordingly the debt underlying the alleged
administrative action of the Respondent has prescribed and can no
longer be
enforced.  As a result the exercise of setting aside the alleged administrative
action has been rendered moot and would
have no practical effect and would be
merely academic.”
[46]
[36]
Even if one assumes that prescription runs while
the unlawful administrative decision precluding payment remains effective, the notice

is irregular.  It implies that prescription is a point of law.  Prescription
raises questions of both fact and law.
[47]
Â
It is for this reason that, as pointed out by the judge in
Ntame
,
prescription must ordinarily be raised on affidavit.
[48]
  In my view the notice
incompetently raises the issue of prescription.  In addition the notice quite
improperly makes the factual
averment (facts are normally stated on affidavit)
that the circumstances that would result in the interruption or delay of
prescription
did not exist.  How the State knew so much about Mrs Njongi’s
state of knowledge is in any event beyond me.  The notice cynically
relies on
the fact that the applicant has not in her founding affidavit raised
circumstances that would result in the delay or
interruption of prescription.Â
The applicant would need to traverse the factual substratum of any claim of
prescription only if
and after prescription had been properly raised and the
facts supporting it had been put forth on affidavit.  The notice asks the
Court
not to decide the lawfulness of the administrative action on the basis that the
case had prescribed in circumstances where
the prescription was not properly
before the Court.  It must be emphasised that the Provincial Government
persisted in its denial
of the unlawfulness of the administrative action.
[37]
The High Court however considered the
prescription argument advanced by the Provincial Government and dismissed it.
[49]
  The Judge defined the
question to be answered as: “whether it is necessary, before a money claim can
arise, to declare administrative
action unjust or to set aside administrative
action which would otherwise remain effective.”
[50]
  He distinguished between the
case of
Makalima
[51]
on the one hand and those of
Ntame
[52]
and
Matinise
[53]
on the other.  The High Court reasoned that a review had not been necessary in
Makalima
but that it was necessary in
Ntame
and
Matinise
.  Accordingly,
prescription would run only if the debt had arisen and was enforceable.  This
would be the case only if the decision
not to pay was ineffective in the sense
that it did not have to be reviewed and set aside as a precondition to payment.Â
The High
Court accordingly rejected the argument of the Provincial Government
that it was unnecessary to determine the lawfulness issue because
the
Provincial Government did not contend that the decision was lawful.
[54]
  The High Court concluded that
the applicant was obliged to proceed by way of review,
[55]
rejected the prescription
argument and granted an order in Mrs Njongi’s favour.
[56]
[38]
The decision of the High Court was, however,
reversed on appeal to the Full Court
[57]
which held that prescription had continued to run against the applicant despite
the fact that the administrative action concerned
had not yet been set aside
and that the applicant’s claim had accordingly prescribed.  The Full Court concluded that the word
“debt” had to be given a wide meaning and found that the
obligation to pay a social grant was a debt within the meaning of the

Prescription Act.
[58]
Â
The Court also accepted that the debt had to be immediately enforceable for
prescription to run but concluded that the debt had
always remained enforceable.
[39]
A fundamental premise in the reasoning of the Full Court towards the conclusion that the debt had remained enforceable was the “axiomatic

consequence of the principle of legality, an unlawful administrative action is
a nullity, devoid of legal effect”.
[59]
Â
Accordingly the grant remained due to Mrs Njongi and was claimable at any
stage.
[60]
Â
The judgment acknowledges however (as it had to), that if the action for
arrears had been brought in the Magistrates’ Court
and the Provincial
Government had asserted the lawfulness of the administrative action, the review
and setting aside of the administrative
action in the High Court would have
been a pre-requisite to the finalisation of the claim in the Magistrates’ Court.Â
The Full
Court was also constrained to distinguish this case from the earlier
judgment in
Matinise
.  I return to this later.
Application for leave to appeal
[40]
There is now no need for authority for the
proposition that an application for leave to appeal will be granted only if the
appeal
concerns a constitutional matter or an issue connected with a
constitutional matter and if it is in the interests of justice to
grant leave.Â
Whether the Provincial Government acted lawfully in this case is a
constitutional issue.  So too is the question
whether the Government complied
with the constitutional obligation placed on it by section 27.  This case is
concerned with the
consequences of unlawful administrative action in relation
to the administration of social grants and raises at the very least issues
connected
with constitutional matters.  It is in the interests of justice to grant leave
first because the matter is important.Â
Secondly, there are prospects of
success.  I have considered whether it will be in the interests of justice to
examine the issue
whether prescription had in any event been interrupted
[61]
or whether prescription had
been properly raised on the papers.
[62]
Â
Although these matters were argued in this Court, it is not in the interests of
justice because none of them was argued either
in the High Court or before the Full Court.
Was the Full Court correct?
[41]
Section 12(1) of the Prescription Act provides:
“Subject to the provisions of subsections (2) and (3), prescription shall
commence
to run as soon as the debt is due.”  The Full Court concluded that the
arrears owing constituted a debt within the meaning of
the Prescription Act.Â
It was contended in this Court that grant arrears could not be a debt because
the Provincial Government
had failed to perform an obligation imposed upon it
by the Constitution.  Therefore, however broadly the term might be defined,
it
is not a debt for purposes of the Prescription Act.  The argument was that an
obligation of this kind can never prescribe.Â
Debts arising from fundamental
rights are of a genre different to that envisaged by prescription legislation
which was in any event
pre-constitutional.
[42]
I have doubts whether prescription could
legitimately arise when the debt that is claimed is a social grant; where the
obligation
in respect of which performance is sought is one which the
Government is obliged to perform in terms of the Constitution; and where
the
non-performance of the Government represents conduct that is inconsistent with
the Constitution.  Despite constitutional concerns,
I reluctantly conclude that
this important issue should not be decided in this judgment.  There are two
reasons for this.  The
first is that the question was not raised before and
therefore not considered by either the High Court or the Full Court.  Secondly,

possible injustice consequent upon a successful plea of prescription can be
averted without deciding whether prescription can be
raised by the State at all
in these circumstances.  This case is decidedly not a precedent for the
proposition that the defence
of prescription is available to the State in these
circumstances.
[43]
I will therefore assume in favour of the
Provincial Government that the obligation at issue is a debt for the purposes of
the Prescription
Act.  The Full Court was correct in the conclusion that a debt
must be immediately enforceable before it can be claimed.  Accordingly,
the
only question that needs to be determined on the merits is whether the
obligation to pay the arrears had always remained immediately
enforceable, in
other words, whether it could be said to have been due.
[44]
The starting point of the judgment of the Full Court on this issue, that nullity was an axiomatic consequence of the principle of

legality, is an essentially theoretical postulate.  It is advanced by Professor
Baxter
[63]
as the second sentence of the section on the retrospectivity of unlawful
administrative action.  Immediately after this sentence
the author goes on to
say—
“Thus unlawful administrative acts are
generally said to be
‘void’
.  But the simplicity of this tautology is
upset by the complicated constitutional structure within which the principle of
legality
operates: administrative acts are usually performed by public
authorities which
appear
to possess the necessary authority; and the
authoritative determination of whether those acts are within their powers can
only
be made by a court of law.  There exists an evidential presumption of
validity expressed by the maxim
omnia praesumuntur rite esse acta
; and
until the act in question is found to be unlawful by a court, there is no certainty
that it is.  Hence it is sometimes argued
that unlawful administrative acts are
‘voidable’ because they have to be annulled.
These two perspectives on the principle of
legality – theoretical and practical – have engendered a dichotomy of opinion as
to whether unlawful administrative acts are ‘void’ or merely ‘voidable’.  In fact
this disagreement is more apparent than
real, being the result of confusion
caused by the adoption of the misleading terms ‘void’ and ‘voidable’
themselves.”
[64]
Â
(Footnotes omitted.)
[45]
I agree.  But the doctrine of nullity does have
important practical implications whenever it becomes necessary to determine the

consequences of invalidity.  The order in
Bushula
evidently required the
applicant to be put back into the position in which he would have been had the
administrative decision not
been made at all.  This is in essence the practical
application of the principle of objective invalidity or nullity.  After a

judgment setting this administrative decision aside has been given, the
administrative decision is certainly regarded as having
been
void ab initio
.
[46]
But that is a wholly different question from the
one that must be answered in this case.  Here we are concerned with
administrative
action that remains effective.  Far from having been a nullity
while in operation, the administrative decision with which we are
here
concerned as well as the thousands of others that were taken at about the same
time have caused untold misery and suffering.Â
This case cannot therefore be
decided on the basis that the administrative action concerned was a nullity
from the beginning.Â
As I have already pointed out, the consequences of the
administrative decision must be determined, so far as is possible, in order
to
achieve the situation that would have existed had the administrative decision
been a nullity.
[47]
The reasoning in relation to nullity is moreover
contradictory.  The Full Court judgment claims on the one hand that the arrears

were always claimable because of the nullity of the administrative action
concerned.  On the other hand it is compelled to accept
that the claim, if
brought in the Magistrates’ Court, would not be justiciable in that court until
and unless the administrative
action concerned had been set aside.  One is
driven to ask why it would ever be necessary to set aside a decision if it is a
nullity
and does not stand in the way of the enforcement of a claim.
[48]
The Full Court appears to place some reliance on
whether the unlawfulness of the administrative action concerned is disputed by
the Provincial Government in the case itself.  The approach seen in its
essential components amounts to this: the debt was always
immediately
enforceable because the Provincial Government did not dispute unlawfulness in
the proceedings for recovery; the debt
must be found to be not immediately
enforceable if unlawfulness is challenged during the course of the case.  The
administrative
action is and was always a nullity if the unlawfulness of the
administrative action remained unchallenged in court; it is not a
nullity but
effective and must be set aside if there is a challenge to its lawfulness in
court.  If these propositions were correct,
the debtor (the Provincial
Government) would in the way in which it conducted its case determine whether
the administrative action
was a nullity and whether the debt had been
enforceable.  This is untenable.  Whether a claim is immediately recoverable
cannot
depend on the attitude taken by defendants in court proceedings.  It
must be apparent from the circumstances that exist at the
time that proceedings
are instituted that the debt is immediately claimable, or in other words, that
the debt is due.
[49]
The Full Court further criticised the High Court
judgment on the following basis—
“The effect of the decision in the court
a quo
appears to be that prescription could not run against the
respondent until the decision to terminate her monthly grant had been reviewed

and set aside.  If that approach is to be upheld, the date prescription would
commence to run would be determined, firstly, by
the time the respondent took
to launch the proceedings and, secondly, by whether the respondent was in due
course able to persuade
the court to condone her delay in doing so.
This proposition really only has to
be stated to be rejected.  Extinctive prescription begins to run from the date
when a debt
is claimable, not from when it is claimed, and a creditor cannot by
his unilateral and arbitrary conduct postpone the commencement
of
prescription.”
[65]
 (Footnote omitted.)
[50]
I am unable to agree that the approach of the
High Court creates a situation in which a creditor by his “unilateral and
arbitrary
conduct” is able to postpone the commencement of prescription.  The
reality is that the creditor has little or no control over
the date on which prescription
commences.  She is obliged to make an application to set aside the
administrative action concerned
within a reasonable time.  It is a court, not
the creditor, that determines whether the time within which a claim is brought
is
reasonable or not.  Moreover it is the court that decides whether the
lateness, if unreasonable, must be condoned.  If a court
finds that the period
is unreasonable and that the delay in bringing the proceedings should not be
condoned, the applicant cannot
take the matter any further.  She would have
lost her case and the underlying debt would be unclaimable.  This consequence
would
follow even if the three year period of prescription had not yet
expired.  If on the other hand the court were to set aside the
administrative
action, there would be no question of prescription beginning to run again
unless an order for payment was not claimed
as consequential relief.
[51]
This brings me to the argument made on behalf of
Mrs Njongi both in the High Court and in this Court based on
Matinise
.
[66]
  Ms Matinise was in the same
position as Mrs Njongi.  Her grant had been unlawfully terminated in November
1999.  She had re-applied,
on Eastern Cape governmental advice, with the
consequence that her grant payments resumed.  She too claimed an order setting
aside
the administrative decision so that she could obtain judgment for payment
of certain arrears.  The Provincial Government had argued
that Ms Matinise
should have brought her claim in the Magistrates’ Court for payment of an
amount of money.  In rejecting that
argument the Full Court had reasoned that
if Ms Matinise had sued in the Magistrates’ Court “her claim could have been
met
by the defence that her grant had been terminated”, which would have
defeated her claim unless the termination of her grant had
been reviewed and
set aside.  It was accordingly held in that case that a review was necessary as
a precondition to the enforcement
of that debt.
[67]
[52]
Accordingly the argument on behalf of Mrs Njongi
was that the circumstance that “it was necessary” to review the decision to

terminate the grant in
Matinise
meant that the debt there could not be
said to have been due in the sense of being immediately enforceable.  The
contention was
that, in the same way, the debt owed to Mrs Njongi could also not
be said to have been due.  The Full Court was of the view that
this argument
was based on “a misconception of the effect of what [was] said” in
Matinise
.
[68]
[53]
The misconception according to the Full Court was that the finding that Ms Matinise “had therefore acted correctly in seeking
to
review the decision” did not mean that “the monetary claim was not due and
recoverable until then.  All the Court did in effect
was to rule that the money
had been due at all times after it had not been paid.”
[69]
[54]
I have not been able to find a statement in the
Matinise
judgment to the effect that the money had been due at all times after it was
not paid.  Moreover the finding that the applicant
had acted correctly in
seeking to set aside the administrative action must mean that it was necessary
to set aside the decision.Â
Otherwise the applicant would not have been correct
in bringing the application.  In fact the Full Court judgment is indeed that

“it was only during argument that counsel for the defendant had conceded that the
termination had been unlawful.”
[70]
Â
As I have already said concessions by counsel during the case can have no
effect at all on the question whether it is necessary
to set the administrative
decision aside.  In the circumstances the distinction that the Full Court sought to draw between the
circumstances in
Matinise
and the case before
it was without a difference.
[55]
In any event unlawfulness was never conceded by
the Provincial Government before the High Court or before the Full Court for that
matter.  It is difficult to follow the statement in the Full Court judgment that the Provincial Government has “never contended
that the termination
of the respondent’s disability grant in November 1997 was lawful”.
[71]
  The Provincial Government has
always contended (and the Full Court has held) that it is not necessary to
decide the question
of lawfulness.  It necessarily follows that unlawfulness
has always been and continues to be denied.  Unlawfulness was not contested
in
reality because the Provincial Government held the view that it did not have to
be decided.
[56]
This does not mean however that every
administrative action must be set aside before a debt can fall due for the
purposes of the
Prescription Act, assuming of course that the obligation with
which we are here concerned can prescribe.  It is always open to
the Provincial
Government to admit without qualification that an administrative decision had
been wrong or had been wrongly taken
and consequently to expressly disavow that
decision altogether.  Indeed Government at every level must be encouraged to
re-evaluate
administrative decisions that are subject to challenge and, if
found to be wrong, to admit this without qualification and to disavow
reliance
on them.  There are literally thousands of administrative decisions of this
kind made every day and it would be quite
untenable for each decision to be set
aside by a court before the underlying obligation can be enforced.Â
Prescription would begin
to run (if it is indeed applicable in a case of this
kind) as soon as the Provincial Government disavowed reliance on the
administrative
action concerned.  For then the debt would become immediately
enforceable.
[57]
One more point must be made in relation to
Matinise
.Â
As previously pointed out, the judgment in that case expressed the view that Ms
Matinise’s grant had been reinstated after
the re-application.  But all the
arrears had not yet been paid to Ms Matinise.  Full reinstatement occurs only
when all arrears
are paid.
[58]
Full reinstatement might well have been an
indication of the disavowal of the administrative decision.  The applicant’s grant

was never fully reinstated.  I accordingly hold that the administrative
decision was never disavowed.  It follows that prescription
had not yet begun
to run.
[59]
In the circumstances the order of the Full Court must be set aside and that of the High Court restored in substance though not in

form.
[60]
The order made by this Court deals with the
interest obligation somewhat differently from the way in which the High Court
did.Â
The effect of the cancellation was that Mrs Njongi received no grant at
all for the months of November 1997 until July 2000 inclusive.Â
She would
therefore have been entitled to interest at the prescribed rate of 15.5% in
respect of each monthly payment from the
date it was due until the date of
payment.  There is however no indication on the papers of the precise date on
which the grant
became payable in every month: it may have been the first or
the last day.  It is appropriate that payment be regarded as having
been due on
the first of each month.  I have made the same assumption in relation to the
payment that was made during July 2000.
 The interest must be paid on the
balance after the payment of R9 400,00 was made on 10 March 2005.  The interest
order is made
on this basis.
Costs
[61]
After the conclusion of argument, the Chief
Justice issued further directions dated 6 November 2007, one day after the case
was
heard, on the issue of costs—
“1.  The Respondent is called upon to show cause by affidavit why,
irrespective of the outcome of the application, he should not
be ordered to pay
the Applicant’s costs in the application on the scale as between Attorney and
Client
de bonis propriis
.
2.   If the Respondent’s affidavit is to the effect that decisions
about opposition to the Applicant’s case and the way in
which the case was
conducted on behalf of the province were not taken by him, but by another
person or other people, each person
identified in the Respondent’s affidavit
must also show cause by affidavit why, irrespective of the outcome of the
application,
they should not be ordered to pay the Applicant’s costs on the
scale as between Attorney and Client
de bonis propriis
.
3.   The costs referred to in paragraphs 1 and 2 of these directions
include costs in the review Court, in the appeal before the
Full Court, in the
application for leave to appeal to the Supreme Court of Appeal, as well as the
costs incurred in the proceedings
in this Court.
4.   These
directions must be complied with by Wednesday 14 November 2007.
5.   The material filed in response to these directions will not be
taken into account in the determination of the merits in the
proceedings before
this Court, but will be considered only in relation to the determination of an
appropriate costs order.”
[62]
Affidavits were filed pursuant to these
directions.  It is regrettably necessary to examine them closely.
[63]
I must at the outset make it plain that I have
reluctantly come to the conclusion that it would not be just to make a
de
bonis propriis
order for costs against anyone in the circumstances of this
case.  I do not therefore intend to traverse those averments and contentions

aimed at avoiding that result.  It must however not be understood that there is
any agreement with or sympathy for these averments
or contentions.
The affidavit of the present MEC
[64]
Mr Ncedani Samson Kwelita (the MEC) was
appointed as Member of the Executive Council for Social Development
[72]
for the Eastern Cape on 3 May
2007.  In the circumstances the only decision he made was that the application
for leave to appeal
to this Court should be opposed.  He was guided in this
decision by a memorandum that was prepared by Mr Ashley Basson, the senior

legal administration officer of the Eastern Cape Department of Social
Development (the Department).  That memorandum does not
raise the moral or
policy issue whether the Department should use prescription to avoid paying
disability grant arrears that had
not been paid as a result of the unlawful
administrative decision of the Provincial Government.  That much ought to have
been
clear to Mr Basson and ought to have been included in the memorandum
submitted to the MEC.  That issue was, after all, pre-eminently
a matter for
decision by the MEC.
[65]
Moreover the memorandum is inaccurate in an
important respect.  It says—
“The Department raised the issue that her
claim had prescribed in that a period in excess of 3 years passed after she
were to
have become aware of her entitlement to backpay and her instituting the
current application.”
There has been no evidence to
justify the statement that Mrs Njongi ought to have become aware that she was
entitled to the payment
of arrears.  All she knew was that her grant had been
stopped, that she had to re-apply, that there had been a resumption of payment

and that she had received certain arrears.
[66]
More importantly there is no reference in the
memorandum to the fact that Mrs Njongi is poor, that she suffers from 100%
permanent
disability, that she has no other source of income and that the aim
of opposing the application would be to avoid paying disability
grants that had
accrued to her and had not been paid to her as a result of unlawful
administrative decision.  These matters should
have been drawn to the attention
of Mr Kwelita so that he could take an informed decision whether to oppose the
application for
leave to appeal.
[67]
The MEC was also misinformed about the amount of
the claim.  The memorandum says that the claim was for R16 300,00 but fails to

mention that a total amount of R10 500,00 had already been paid and the amount
outstanding was, at the time of the preparation
of the memorandum, a relatively
small sum of R5 800,00.  The memorandum ought to have brought this factor into
the reckoning,
and told the MEC how much the litigation had already cost and
how much it would cost in the future.  The MEC would then have been
able to
make an informed decision taking into account the costs, the amount due to Mrs
Njongi, her circumstances and the importance
of the issue of prescription to
the Provincial Government.
[68]
Lawyers, in particular senior lawyers, employed
by the State must be careful to place accurate and full information in briefing
documents to senior office bearers who are required to make policy decisions of
great sensitivity.
[69]
The other side of this coin is that the MEC
himself ought to have requested more information.  I would certainly not have
found
the information in the briefing memorandum sufficient to enable me to
make an informed decision.
[70]
The MEC asserts that a finding on prescription
was important for the Provincial Government in order to ensure certainty for
various
reasons.  That misses the point.  As will more fully appear from what
is said later, the MEC exhibited a rather one-sided approach
to the issue of
prescription.  It is true that the requirement of certainty is important in
certain circumstances.  But the counter-weights,
ignored by the MEC, were all
the personal circumstances of Mrs Njongi, the unlawful action of the Provincial
Government and its
dire inhumane consequences upon the victim.  In particular
the provisions of section 27 have also been ignored in making the decision.
[71]
The MEC says that he was aware at all times that
the issue to be determined was “whether it is necessary to first have an
alleged
unlawful act set aside before prescription would commence to run in respect
of the underlying debt.”  This understanding too
was fundamentally inaccurate.Â
There was not merely an
alleged
unlawful administrative decision.  The
decision was unarguably unlawful and had been found to be so by many courts.  In
fact
the Supreme Court of Appeal had criticised the Provincial Government for
its shameful response to the thousands of cancellations
that had occurred.  The
understanding of the MEC that there were mere allegations of unlawfulness was
wholly inadequate.
[72]
The MEC also relies on the number of judgments
[73]
and the number of judges that
had given judgment for the Provincial Government on this issue in Mrs Njongi’s
and other cases.Â
This is a quantitative approach and unacceptable.
[73]
In the final analysis there is insufficient
basis upon which to make a punitive order against Mr Kwelita in this case.  As
I have
pointed out above, his affidavit does however reveal much cause for
concern.  What has been said in relation to Mr Kwelita’s
affidavit is however
relevant to the costs order to be made.
Mr Basson’s affidavit
[74]
Mr Basson is a man of considerable experience as
a lawyer in the Provincial Government sector.
[75]
The directions evidently required information on
decisions concerning opposition to the case and the way in which the case was
conducted
to enable the Court to make an appropriate decision in relation to
costs.  Two situations are advanced that make it quite plain
that the
information is available to a very limited extent only.  The first is that in
October 2007 (less than a month before
the further directions were issued by
this Court) the original file of those responsible for grant payments relating
to this case
went missing.  This was apparently one of 15 000 files that had
disappeared.  This means that much of the information in his affidavit
is
provided from memory and inference.  The second is that the litigation file of
the Department, for some unknown reason, contains
only a copy of the notice of
motion so that there is no indication of “who had given what instructions to
whom.”  Nor, may
I add, why.
[76]
From the limited reconstructed information available
it would seem that Mrs Njongi’s application, after it was served on 19 May
2004,
was sent to the Provincial Government for further instructions.  On 18 June
2004 the responsible State Attorney, Mr Crozier,
sent a fax calling for
instructions on the application.  He then discussed the matter with two
departmental officials on 21 June
2004 when it was decided to oppose the
application.  Oral instructions were obtained and no-one has an independent
recollection
about anything concerning the decision to oppose.  Everyone
involved has forgotten completely.
[77]
This account is disturbing to say the least, not
necessarily on account of what it says but more importantly because of what it
does not say.  It is necessary to say something about the nature of the
decision to be made by the Provincial Government when it
gave instructions that
Mrs Njongi’s case should be opposed before examining this scanty version more
closely.
[78]
I have already said that the Prescription Act
requires the debtor to make a decision as to whether it should avail itself of
the
defence of prescription.  It follows from this that the Provincial
Government had to make a decision whether to plead prescription
or not.  There
are important reasons why courts cannot by themselves take up the issue of
prescription.  There is an inevitable
and, in my view, moral choice to be made
in relation to whether a debtor should plead prescription particularly when the
debt is
due and owing.  The Legislature has wisely left that choice to the
debtor.  For it is the debtor who would face the commercial,
community and
other consequences of that choice.
[79]
A decision by the State whether or not to invoke
prescription in a particular case must be informed by the values of our
Constitution.Â
It follows that the Provincial Government too, must take a
decision whether to plead prescription to defeat a claim for arrear disability

grant payments.  This is not a decision for the State Attorney to make.  It is
an important decision and must not be made lightly.Â
It must be made after
appropriate processes have been followed and by a sufficiently responsible
person in the Provincial Government
who must take into account all the relevant
circumstances.  It is the duty of the State to facilitate rather than obstruct
access
to social security.  This will be a fundamental consideration in making
the assessment.
[80]
Some of the circumstances that would inevitably
be relevant are listed below.
(a)
The applicant was poor and vulnerable.
(b)
She lived with a 100% permanent disability.
(c)
The disability grant payable to her was constitutionally obligatory,
in other words in paying it the Provincial Government was performing
an
important constitutional obligation.
(d)
The arrears had accrued as a result of an unlawful administrative
decision made by the Provincial Government.
(e)
The Eastern Cape High Courts as well as the Supreme Court of Appeal
had already expressed considerable disquiet about the approach
of the
Provincial Government to the reinstatement and had all but said that the
Provincial Government is at least morally obliged
to ensure reinstatement.
(f)
Mrs Njongi was in all probability not aware of the fact that she was
entitled to arrear payments.
[81]
All of these factors ought to have been put into
the balance and ought to have been evaluated in the context of the harm that
the
Provincial Government had caused to Mrs Njongi as a result of its unlawful
administrative action—
“To be held in poverty is a cursed
condition.  Quite apart from the physical discomfort of deprivation, it reduces
a human in
his or her dignity.  The inevitable result of being unlawfully
deprived of a grant that is required for daily sustenance is the
unnecessary
further endurance of that condition for so long as the unlawfulness continues.”
[74]
[82]
The following issues and difficulties arise from
the analysis of the material in Mr Basson’s affidavit about the decision to
oppose—
(a)
Did Mr Crozier, the State Attorney, understand that a decision had
to be taken by the Provincial Government about whether prescription
should be
relied upon?
(b)
If he did, was this communicated to the Provincial Government?
(c)
If there had been this communication, was there any advice sought or
given in relation to the factors that the Provincial Government
should take
into account in making that decision?
(d)
If so, what was that advice?
(e)
When, and by whom was the decision taken?  In this regard I must
point out that if a conscious decision had been taken it seems
highly unlikely
that nobody would remember a thing about it.
(f)
It is not clear on what basis the decision to oppose the case was
taken in June 2004.
(g)
If a decision was taken in June 2004 to oppose the matter on the
basis of prescription, why was the notice claiming prescription
filed only in
February 2005 after the judgment in
Ntame
?
[75]
(h)
Why was the decision taken not to admit the unlawfulness of the
action in the light of the jurisprudence that has been set out in
this judgment
and more particularly in the light of the statement in Mr Basson’s affidavit
that it was “accepted that the applicant’s
grant was terminated unlawfully and
without reason”?
[83]
If Mr Crozier did not draw pertinently to the
attention of the Provincial Government that it was the decision of that Government

whether to invoke prescription and advise the Government on the way in which
that decision was to be taken, his conduct and approach
were most unfortunate.
[84]
The decision not to admit the unlawfulness of
the administrative action in the circumstances cannot be said to be
unobjectionable.Â
In particular, it must be said that judgments of courts in
relation to Provincial Government conduct are not meant simply to be
filed away
without being read.  They contain important information that has a bearing on
the conduct of the Provincial Government
in issue.  It is probable that the
legal advisors to the Provincial Government did not read the various judgments
which are referred
to in this judgment with sufficient care.  If they did read
them however their conduct is worse.  Court judgments were ignored
by these
lawyers.  This is unsatisfactory.
[85]
It is not necessary in this case to decide
whether the decision of the Provincial Government to invoke prescription was of
such
a nature that it can or ought to be set aside.  That is because the
defence of prescription has in any event failed.  I am however
of the view
that, as appears from what I have said earlier, both the decision to oppose as
well as the way in which the case was
conducted represent unconscionable conduct
on the part of the Provincial Government.  I do not need to decide whether the
fault
lay with the legal advisor, an official in the Department, a political
office bearer or with all of them.
[86]
I must now examine the rest of the averments and
contentions in Mr Basson’s affidavit and decide whether they mitigate this
unconscionable
conduct.  Mr Basson says that he discussed the matter at some
length with a Mr Webb who is a senior person in the decision-making
process
concerning grants.  He renders the discussion like this—
“the social issue of making payment of the
balance of the [a]pplicant’s claim against the principle of prescription.  It
was
clear to me that WEBB agonised over the decision but, in the end, I
respectfully submit he made . . . the correct decision.”
[87]
This does not detract from unconscionability.Â
All the circumstances relevant to the decision which were discussed here are
described
as “the social issue of making payment of the balance of the [a]pplicant’s
claim”.  This description is a grossly insulting
understatement of the nature
of the problem.  We have no idea of the factors he took into account in his
agony and on what basis
he finally came to his conclusion.  Nor do we know why
Mr Basson thought Mr Webb was correct.
[88]
Mr Basson appears to suggest that he recommended
to the Department that costs should not be claimed from Mrs Njongi consequent
upon
the decision of the Supreme Court of Appeal refusing her application for
leave to appeal.  Mr Basson gave this information on the
basis that it should
be taken into account in the costs decision we make.  It seems to suggest that
this decision had a moral
character which somehow mitigated everything else
that had been done to Mrs Njongi.  I cannot accept this.  The decision not to

claim costs was no favour to Mrs Njongi.  It was in the interests of the
Provincial Government which would have wasted money in
the effort of recovery.
[89]
Penultimately, Mr Basson says that there are
many spurious claims against the Department and that it costs the Department a
great
deal of money to contest these claims.  I do not understand what this has
to do with the issue at hand.  While the Government
has a duty to defend
spurious claims Mrs Njongi’s claim fell decidedly outside this range.
[90]
Finally reliance is placed on certain provisions
of the Public Finance Management Act
[76]
(the PFMA) and it is urged upon us that failure by officials to comply with
their responsibilities would expose them to disciplinary
charges on the ground
of financial misconduct.  He says that the failure to raise prescription in the
context of legal demands
amounts to contravention of a number of provisions of
the PFMA—
(a)
The first is the obligation to take effective and appropriate steps
to prevent fruitless and wasteful expenditure which is defined
as expenditure
made in vain which would have been avoided if reasonable care had been
exercised.
[77]
Â
This contention is absurd.  The contention that it is wasteful expenditure to
pay arrear disability grants to a poor woman with
100% permanent disability who
had been deprived of her money because of the unlawful conduct of the
Department boggles the mind.Â
What about the wasteful expenditure incurred by
attempting to defend the morally indefensible?
(b)
Secondly, reliance is placed on the obligation to manage the
liabilities of the Department.  They say that not to take the prescription

point would have increased the liabilities of the Department.
[78]
  Again this is a cynical
position devoid of all humanity.
(c)
Reliance is also placed on the obligation to pay all money owing.
[79]
  In this regard it was
contended that payment of a debt that has prescribed is payment of an amount
that is not owing.  One only
states this contention to reject it as utterly
devoid of any substance.  The money remains owing.  The State will be excused
from paying only if it successfully raises prescription.  The decision to be
made by the State is whether to take the decision
to render the money that is
admittedly owing not owing.  It may be a contravention of this provision to
avail the State of the
defence of prescription in circumstances where money is
owing by it.
[91]
These further contentions, far from mitigating
the objectionable conduct of the Provincial Government, compromise that
Government
even further.  In the circumstances there must be an order that the
Provincial Government (the respondent) must pay all the costs
of the applicant
in the High Court, in the Full Court, in the Supreme Court of Appeal and in
this Court, on the scale as between
attorney and client.
Order
[92]
The following order is made:
1.
The application for leave to appeal is granted.
2.
The appeal succeeds.
3.
The order of the Full Court is set aside.
4.
The order of the High Court is set aside and
replaced by the order set out below.
5.
The administrative action of the respondent terminating
the applicant’s social grant from November 1997 is declared to be invalid
and
is set aside.
6.
The applicant’s social grant is reinstated from
November 1997.
7.
The respondent is ordered to pay to the
applicant the amount of R5 800,00.
8.
The respondent is directed to pay to the
applicant interest calculated at the rate of 15.5% per annum on—
a)
the amount of each separate monthly unpaid grant
for the months of November 1997 to July 2000 inclusive from the 1
st
day
of each month until 1 July 2000;
b)
the amount of R15 200,00 from 1 July 2000 to 10
March 2005;
c)
The amount of R5 800,00 from 10 March 2005 to
the date of payment.
9.
The respondent is ordered to pay the costs of
the applicant in the High Court, the Full Court, the Supreme Court of Appeal
and this
Court, on the scale as between attorney and client.
Langa CJ, Moseneke DCJ, Madala J,
Mpati AJ, Ngcobo J, Nkabinde J, Sachs J, Skweyiya J and Van der Westhuizen J
concur in the judgment
of Yacoob J.
For the
Applicant:                                         Advocate A Beyleveld and
Advocate
B Hartle instructed by Randell-Oswald
Inc.
For the Respondent:                                      Advocate
GG Goosen SC, Advocate OH Ronaasen
and Advocate R Laher instructed by the
State Attorney, Port Elizabeth.
[1]
Deliwe Muriel Njongi v Member of the Executive Council for
Social Development, Eastern Cape Province
1281/04 in the South Eastern Cape
High Court, 2 June 2005, unreported.
[2]
Member of the Executive Council for Welfare v Deliwe Muriel Njongi
CA: 62/06 in the Eastern Cape High Court, 4 December 2006, unreported.
[3]
This period must be evaluated against the circumstance that
was agreed between the representatives of the Eastern Cape Provincial

Government and those of the grant receiver, Mrs Kate, in the case of
MEC,
Department of Welfare v Kate
[2006] ZASCA 49
;
2006 (4) SA 478
(SCA);
[2006] 2 All SA 455
(SCA)
at para 10, that the reasonable period within which a grant ought to have been
approved would have been three months.
[4]
Ngxuza and Others v Permanent Secretary, Department of Welfare,
Eastern Cape, and Another
2001 (2) SA 609
(E);
2000 (12) BCLR 1322
(E).
[5]
Id at 615I-617A; 1324C-1325D.
[6]
Permanent Secretary, Department of Welfare, Eastern Cape, and
Another v Ngxuza and Others
2001 (4) SA 1184 (SCA); 2001 (10) BCLR 1039
(SCA).
[7]
Id at paras 7-8.
[8]
Above n 4 at 616H; 1325A.
[9]
Bushula and Others v Permanent Secretary, Department of Welfare,
Eastern Cape, and Another
2000 (2) SA 849 (E); 2000 (7) BCLR 728 (E).
[10]
Id at 851G-H; 730D-E.
[11]
59 of 1992.
[12]
The Act has now been repealed and replaced by the
Social
Assistance Act 13 of 2004
.
[13]
Regulation 21(2)
read with
Regulation 21(6)
, Government Gazette
17016 No. 373, 1 March 1996.
[14]
Above n 9 at 854E-F; 732J-733B.
[15]
Id
at 854I-855A; 733E-F.
[16]
Id at 855F; 734A-B.
[17]
Id at 855D; 733I.
[18]
The order reads—
“(a)         The decision of Van Deventer cancelling the first applicant’s disability grant is declared to be invalid
and
of no force and effect and is set aside;
(b)           the first
respondent is ordered to reinstate the first applicant’s disability grant
within a period of
two weeks from the date of this order, such reinstatement to
be with effect from the date of cancellation thereof;
(c)           it is declared that
the first applicant is entitled to payment of all arrears owing under his
disability
grant from the date of cancellation thereof up to the present time;
(d)           the first and second
respondents are ordered jointly and severally, the one paying the other to be
absolved,
to pay the first applicant all unpaid moneys owed to him as a result
of the unlawful cancellation of his disability grant;
(e)           the first and
second respondents are ordered to pay the costs of the application jointly and
severally,
the one paying the other to be absolved;
(f)            the third
applicant is ordered to pay the costs of the application to strike out.”
[19]
Section 165(4) of the Constitution.
[20]
Section 1(a) of the Constitution.
[21]
Above n 4.
[22]
Id at 617E-H; 1325I-1326A.
[23]
Above n 6 at paras 9-10.
[24]
Id at paras 14-15.
[25]
See [19] above.
[26]
This is the calculation of Mrs Njongi’s attorney which was
not disputed in the High Court.  See above n 1 at para 1.
[27]
Regulation 9 read with Regulation 10, Government Gazette 17016 No.
373, 1 March 1996.
[28]
Kate
a
bove n 3.
[29]
Id at para 7.
[30]
Id at para 11.
[31]
Id at para 12.
[32]
Mileka Matinise v Member of the Executive Council, Department of
Welfare, Eastern Cape Province
, 1603/03 in the Eastern Cape High Court, 10
February 2005, unreported
.
[33]
Ntame v MEC for Social Development, Eastern Cape, and Two
Similar cases
2005 (6) SA 248 (E); [2005] 2 All SA 535 (SE).
[34]
Id.
[35]
See
[26] above.
[36]
Above n 33 at para 1.
[37]
There were three cases before that Court and only that of
Mrs Ntame is relevant for present purposes.
[38]
Above n 33 at para 9.
[39]
Id
at para 10.
[40]
68 of 1969 at section 17.
[41]
Id at sections 14 and 15.
[42]
Id at section 12(3).
[43]
11 January 2005.
[44]
See
Ntame
above n 33 at para 9.
[45]
Id at
para 8.
[46]
Id at
para 9.
[47]
See
Road Accident Fund v Mdeyide (Minister of Transport
Intervening)
[2007] ZACC 7
;
2008 (1) SA 535
(CC);
2007 (7) BCLR 805
(CC) at paras 13-25;
Laurentian
Pilotage Authority v Voyageur (The)
[2006] 1 FCR 37
at para 27;
Phasha v
Southern Metropolitan Council of the Greater Johannesburg Metropolitan Council
2000
(2) SA 455
(W) at 461G-474J;
[2000] 1 All SA 451
(W) at 460-473;
Standard
Bank of SA Ltd v Oneanate Investments
[1997] ZASCA 94
;
1998 (1) SA 811
(A) at 823I-824D
[1997] ZASCA 94
; ;
[1998] 1 All SA 413
(A) at 422-3;
Drennan Maud & Partners v Pennington
Town Board
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA) at 204I-205H
[1998] ZASCA 29
; ;
[1998] 2 All SA 571
(A) at
575-6;
Deloitte Haskins & Sells Consultants (Pty) Ltd v Bowthorpe
Hellerman Deutsch (Pty) Ltd
[1990] ZASCA 136
;
1991 (1) SA 525
(A) at 528G-529J, 532F-533B;
[1991] 1 All SA 400
(A);
Van Staden v Fourie
1989 (3) SA 200
(A) at
207F-208C;
[1989] 2 All SA 329
(A);
Brand v Williams
1988 (3) SA 908
(C)
at 912E-917B;
[1988] 4 All SA 275
(C);
Apex Mines Ltd v Administrator,
Transvaal
1986 (4) SA 581
(T) at 602C-604B;
[1986] 4 All SA 298
(T) at
318-320;
HMBMP Properties (Pty) Ltd v King
1981 (1) SA 906
(N) at
908D-F;
[1981] 3 All SA 153
(N);
Evins v Shield Insurance Co Ltd
1980
(2) SA 814
(A) at 836D-837A;
[1980] 2 All SA 40
(A);
Gericke v Sack
1978
(1) SA 821
(A) at 825C-826D;
[1978] 2 All SA 111
(A) at 113-4;
Churchill v
Standard General Insurance
1977 (1) SA 506
(A) at 517H-518D;
[1977] 1 All
SA 558
(A) at 565-6;
Davies v Du Paver
[1952] 2 All ER 991
at 995,
999-1001.
[48]
Above n 33 at para 11.
[49]
Above n 1
at para 7.
[50]
Id at para 6.
[51]
Nokuku Eslina Makalima v MEC for Welfare, Eastern Cape and
Others
1601/03 in the South Eastern Cape High Court, 27 January 2005,
unreported.
[52]
Above n 33.
[53]
Above n 32.
[54]
Above n 1 at para 7.
[55]
Id at para 8.
[56]
The order is set out in [7] above.
[57]
Above n 2.
[58]
See above n 40 at
Chapter 3.
[59]
Above n 2 at page 5.
[60]
Id.
[61]
See [30] above.
[62]
See
[35] - [36] above.
[63]
Baxter
Administrative Law
(Juta, Cape Town 1984) at
355.
[64]
Id at 355-6.
[65]
Above n 2 at page 7.
[66]
Above n 32
.
[67]
Above n 2 at page 13.
[68]
Id
at page 8.
[69]
Id at page 9.
[70]
Id.
[71]
Id.
[72]
The Department of Welfare in the Eastern Cape became the
Department of Social Development in 2001.
[73]
Ntame
above n 33;
Makalima
above n 51.
[74]
Kate
above n 3 at para 33.
[75]
See [35] above.
[76]
1 of 1999.
[77]
Id at s
ection 38(1)(c)(ii) read with the definition of
“fruitless and wasteful expenditure” at section 1.
[78]
Id at s
ection 38(1)(d).
[79]
Id at s
ection 38(1)(f).