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Ntame v MEC Department of Social Development Eastern Cape (ECJ 012/2005) [2005] ZAECHC 1; [2005] 2 All SA 535 (SE) (11 January 2005)

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25


FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT


ECJ NO : 012/2005


PARTIES: Ntame and Mnyaka Applicants


And


MEC, Welfare, Eastern Cape Respondent


REFERENCE NUMBERS -

  • Registrar: 3634/04, 3635/04, 3667/04

DATE HEARD: 7 December 2004

DATE DELIVERED: 11 January 2004


JUDGE(S): Plasket J


LEGAL REPRESENTATIVES -

Appearances:

  • for the State/Applicant(s)/Appellant(s): BC Hartle

  • for the accused/respondent(s): No appearance



Instructing attorneys:

  • Applicant(s)/Appellant(s): Michael Randall Inc

  • Respondent(s):




CASE INFORMATION -

  • Nature of proceedings : Application



  • Topic and Keywords: As per summary












IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

CASE NOS:3667/04; 3634/04; 3635/04

DATE DELIVERED: 11/1/05

REPORTABLE

In the matter between:


VIVIENNE NTAME APPLICANT


and


MEMBER OF THE EXECUTIVE COUNCIL,

DEPARTMENT OF SOCIAL DEVELOPMENT,

EASTERN CAPE PROVINCE RESPONDENT


And in the matter between:


KHOLEKA DORRIS MNYAKA (on behalf of

A. M.) APPLICANT


and


MEMBER OF THE EXECUTIVE COUNCIL,

DEPARTMENT OF SOCIAL DEVELOPMENT,

EASTERN CAPE PROVINCE RESPONDENT


And in the matter between:


KHOLEKA DORRIS MNYAKA (on behalf of

X.M.) APPLICANT


and


MEMBER OF THE EXECUTIVE COUNCIL,

DEPARTMENT OF SOCIAL DEVELOPMENT,

EASTERN CAPE PROVINCE RESPONDENT

_________________________________________________________________________________________JUDGMENT_________________________

Social assistance – applications to review a decision to stop a disability grant and a refusal to consider two applications for maintenance grants, together with orders to compel payment of those grants brought more than three years after the causes of action arose – prescription may not be raised mero motu by the court, and therefore the debts were enforceable and the applications for review were not moot.

Delay in bringing review proceedings – common law delay rule, rather than s7 and s9 of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA) applying -- delay in all three cases held to be inordinate, and unreasonable, but the delays were condoned.

Duty to exhaust internal remedies – section 7(2) of the PAJA not applying – the common law duty to exhaust internal remedies not ousting the court’s jurisdiction because no express or implied obligation in the applicable legislation requiring internal remedies to be exhausted prior to litigation, the time period for the utilisation of internal remedies had expired and in the cases of failures to decide, there were no decisions to appeal against.

On the merits, the decision to stop the payment of the disability grant was set aside as a violation of the applicant’s right to procedurally fair administrative action because she had not been afforded a hearing. The failures to decide on the applications for maintenance grants were held to be violations of the applicant’s right to lawful administrative action.

______________________________________________________________

PLASKET, J:


[A] INTRODUCTION


[1] The main issues to be decided in the three applications that are the subject matter of this judgment are: whether claims for the payment of a disability grant, in the first case, and for the payment of maintenance grants, in the second and third cases, have prescribed; whether a court can raise prescription mero motu; whether, if so, this renders what I would term the primary relief sought – the review of a decision to stop paying the disability grant, and the failure to decide on the applications for maintenance grants – moot; and whether, if not, the applicants’ delays in launching proceedings are unreasonable and, if so, whether they should, nonetheless, be condoned.


[2] The applicant in the first case, Ms Vivienne Ntame, has, since the mid-1980s, been the recipient of a disability grant, apparently having been found to be a disabled person as that term was defined in the Social Pensions Act 37 of 1973, the predecessor of the Social Assistance Act 59 of 1992, the statute currently in force that regulates the provision of social assistance. She received her grant regularly for about 11 years but then, without notice and without lawful cause, her grant was stopped in December 1996. She queried the stopping of her grant but it was not re-instated. In June 1999 – and much to her surprise – her grant was re-instated despite the fact that she had not applied for it to be re-instated. She was given what appears to be an arbitrary amount of R1 100.00 as ‘back pay’.


[3] In her Notice of Motion, Ms Ntame seeks orders:

1. Directing that the administrative action of the respondent, in stopping or suspending the payment of the applicant’s disability grant during the period December 1996 to June 1999, be reviewed and set aside;

2. Directing the respondent to remedy the defect resulting from the administrative action by paying to the applicant the sum of R13 460.00 which would have been paid to her as a social grant during the period December 1996 to June 1999, in terms of the Social Assistance Act 59 of 1992, as if her grant had not been stopped or suspended during the said period.

3. In the alternative to prayer 2 above, directing the Respondent to pay compensation to the applicant in the sum of R13 460.00, which would have been paid to her as a social grant during the period December 1996 to June 1999, in terms of the Social Assistance Act 59 of 1992, but for the fact that her grant was stopped or suspended during the said period;

4. Directing that the respondent pay to the applicant interest on the sum of R13 460.00 at the legal rate of 15.5 percent per annum calculated from the date that each monthly amount comprising the total of R13 460.00 would have been paid to the applicant if the grant had not been stopped or suspended during the period December 1996 to June 1999, to date of payment;

5. Directing that the respondent, upon payment as aforesaid, inform the applicant via her attorneys of record in writing of such payment;

6. Directing that the 180 day period referred to in section 7(1) of the Promotion of Administrative Justice Act No. 3 of 2000, be extended in terms of the provisions of section 9(1) of the said Act;

7. Directing that the applicant be exempted, in terms of the provisions of section 7(2)(c) of PAJA, from the obligation, if applicable, to exhaust internal remedies;

8. Directing that the respondent pays the applicant’s costs;

9. Directing that the order granted herein be served on the respondent, c/o the State Attorney, 29 Western Road, Central, Port Elizabeth; and

10. Granting such further and/or alternative relief as to the above Honourable Court may seem meet.’


[4] This application, like the second and third cases dealt with in this judgment, is not opposed by the respondent.


[5] In the second and third cases, the applicant in both, Ms Kholeka Dorris Mnyaka, applied for maintenance grants in respect of her two minor children, A. and X.. She did so on 4 June 1997. (Why one application, rather than two, was not brought, is not apparent from the papers in either. It would seem to me, however, that by bringing two application the applicant’s attorneys have escalated the costs involved for no good reason.)


[6] Ms Mnyaka received no response to her applications. In the meantime, the Welfare Laws Amendment Act 106 of 1997 came into operation. It provided for a new type of grant – the child support grant – to replace the maintenance grant. The criteria for eligibility for the two types of grant differed in various respects. For instance, a maintenance grant was payable until the child to be maintained by it turned 18 years old, whereas the child support grant was initially only available until the child to be maintained by it turned seven years old.1 This age limit has been raised since then but is still well short of 18 years old. The Welfare Laws Amendment Act also provided for the phasing out of the maintenance grant. By the time that maintenance grants were finally phased out, on 1 April 2001, Ms Mnyaka had still not had a response to her applications.


[7] In both cases she seeks orders in identical terms. The Notice of Motion in respect of the maintenance grant for the maintenance of A. seeks an order:

1. Directing that the administrative action of the respondent in failing to consider the applicant’s application for a maintenance grant for A.M. made on 4 June 1997 be judicially reviewed and declared unlawful;

2. Directing that the respondent, within 30 days of the service of the order granted by this Honourable Court, consider the applicant’s application for a maintenance grant in respect of her son A.M. dated 4 June 1997;

3. Directing that in the event of the applicant’s application being approved, the respondent pay to the applicant the amount which fell due to her upon approval of the grant, calculated from the date of accrual of the maintenance grant on 4 June 1997 to the date of lapsing of the grant, on 1 April 2001;

4. Directing the respondent to pay to the applicant interest on the sum contemplated in paragraph 3 above at the legal rate of 15.5 percent per annum calculated from the date that each monthly amount comprising the total arrears would have been paid to the applicant if the grant had been paid from date of accrual to date of lapsing thereof, to date of payment;

5. Directing the respondent, upon payment as aforesaid, to inform the applicant via her attorneys of record in writing of such payment;

6. In the event of the applicant’s application for a maintenance grant for A.M. being rejected, directing the respondent to furnish written reasons for such refusal to the applicant’s attorneys within 30 days of service of the order granted herein;

7. Directing that the 180 day period referred to in section 7(1) of the Promotion of Administrative Justice Act No. 3 of 2000 (“PAJA”) be extended in terms of the provisions of section 9(1) thereof;

8. Directing that the applicant be exempted, in terms of the provisions of section 7(2)(c) of PAJA, from the obligation, if applicable, to exhaust internal remedies;

9. Directing the respondent to pay the applicant’s costs;

10. Directing that this order be served on the respondent, c/o the State Attorney, 29 Western Road, Central, Port Elizabeth; and

11. Granting such further and/or alternative relief as to the above Honourable Court may seem meet.’


[B] PRESCRIPTION AND MOOTNESS


[8] It will be noticed that the debts that are central of each case – the disability grant that was not paid for a period, and the maintenance grants that would have been paid had decisions favourable to the applicant been taken – related to precisely defined periods, with precisely defined end-points: 30 June 1999, in the first case, when payment of the Ms Ntame’s disability grant re-commenced, and 1 April 2001, when the maintenance grant ceased to exist and was finally phased out, in the second and third cases.


[9] In all three cases, the debt, to use the terminology of the Prescription Act 68 of 1969, would have prescribed three years after the dates mentioned above,2 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 concerned to have been invalid, would have had no practical effect and would have been academic.3


[10] The respondent has not opposed in any of these matters and has, consequently, not taken the point that the underlying debt in each has prescribed. It is not open to a court to take the point mero motu because s17 of the Prescription Act 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.’


[11] In trial proceedings, the ‘relevant document’ will usually be a defendant’s special plea and, in applications, it will usually be the respondent’s answering affidavit.4


[12] In the light of s17(1) of the Prescription Act, it cannot be held that the underlying debts have prescribed. The relief sought by the applicants is, therefore, not moot. That does not end the enquiry, however, because, at common law, and before the coming into force of s7(1) and s9(1) of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA), a court could raise the point mero motu that an applicant’s delay in instituting proceedings for review is so unreasonable that the court should withhold the grant of a remedy, although this would be reserved for ‘rare cases’.5


[C] DELAY


[13] In cases in which the PAJA applies, the common law delay rule has been supplanted by the more onerous and more restrictive provisions of s7(1), read with s9, of that Act. Section 7(1) provides that ‘proceedings for judicial review in terms of section 6(1) must be instituted without unreasonable delay and not later than 180 days after the date’ on which any internal remedy has been exhausted or, in the absence of an internal remedy, on the date on which ‘the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons.’ Section 9(1) of the PAJA provides for the granting of condonation for the launching of proceedings outside of the 180-day time period, either ‘by agreement between the parties or, failing such agreement, by a court or tribunal on application by the person or administrator concerned’. In terms of s9(2), condonation may be granted ‘where the interests of justice so require’.6


[14] In all three cases, the applicants have applied for condonation, in the form of an order ‘[d]irecting that the 180 day period referred to in section 7(1) of the Promotion of Administrative Justice Act No. 3 of 2000 (“PAJA”) be extended in terms of the provisions of section 9(1) thereof’. As, in all three instances, the causes of action arose before the applicable sections of the PAJA were brought into force (on 30 November 2000), it does not apply.7 The common law delay rule, rather than s7(1) and s9 of the PAJA, therefore applies.


[15] The principal rationale for the delay rule, Corbett J held in Harnaker v Minister of the Interior,8 stems from the recognition that ‘an undue and unreasonable delay on the part of an aggrieved party in initiating review proceedings may cause prejudice to other parties to the proceedings and that, therefore, in such cases the Court should have the power to refuse to entertain the review’.


[16] The majority judgment of Miller JA in Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad9 sets out the proper approach to the question of undue delay: first, a court must decide whether the proceedings were brought within a reasonable time and, secondly, if not, it must decide whether the unreasonable delay ought to be condoned, in which event it must exercise a discretion taking into account all relevant factors (including, but not limited to, prejudice to the respondent10).

[17] The application of the two-stage approach adopted in the Wolgroeiers case has been succinctly and usefully summarised by Griessel J in Camps Bay Ratepayers and Residents Association and others v Minister of Planning, Culture and Administration, Western Cape and others11 as follows:

1. Where no time limit has been specified for the institution of review proceedings, such proceedings have to be instituted within a reasonable time.

2. What amounts to a reasonable time depends on the facts of each case. The length of time is not necessarily decisive. Each case depends on its own facts.

3. When considering what a reasonable time is to launch proceedings, one has to have regard to the reasonable time required to take all reasonable steps prior to and in order to initiate those review proceedings. Such steps include steps taken to ascertain the terms and effect of the decision sought to be reviewed; to ascertain the reasons for the decision; to consider and take advice from lawyers and other experts where it is reasonable to do so; to make representations where it is reasonable to do so; to attempt to negotiate an acceptable compromise before resorting to litigation; to obtain copies of relevant documents; to consult with possible deponents and to obtain affidavits from them; to obtain real evidence where applicable; to obtain and place the attorney in funds; to prepare the necessary papers and to lodge and serve those papers.

4. The rationale for this judicially evolved common-law rule is twofold: first, an unreasonable delay may cause prejudice to other parties. Second, finality should be reached within a reasonable time in judicial and administrative proceedings.

5. Prejudice may take many forms. The official whose decision is sought to be reviewed may have forgotten the relevant facts. The recollection of the relevant facts by those concerned may have faded -- memory being unfaithful at times. Others may no longer be available. Documentary proof may have been destroyed or may have disappeared. Other parties may have acted on the strength of the decision to their prejudice.

6. Once unreasonable delay is raised as a defence in review proceedings, the Court must embark upon a twofold enquiry: the first enquiry is whether a reasonable time has elapsed. This is a factual enquiry, the question being whether, in all the circumstances, a period that has elapsed was unreasonable. During this enquiry the Court does not, therefore, exercise a discretion although the Court does have to express a value judgment (waardeoordeel) on the reasonableness or otherwise of the delay. Such value judgment cannot be expressed in vacuo, however, but it must depend on the particular circumstances of each case, including the applicant's explanation for the delay. See the majority judgment by Hefer JA in Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en 'n Ander 1986 (2) SA 57 (A) at 86A-87H.

7. If the Court finds that the delay was reasonable, the enquiry ends there. If the Court, however, concludes that the delay was unreasonable, the Court is then required to embark upon the second enquiry, this being whether the unreasonable delay should be condoned. Here the Court exercises a discretion.’


[18] In all three cases, explanations for the long delay in launching review proceedings have been given in the founding affidavits of Ms Ntame and Ms Mnyaka. This is usually not necessary but in instances such as these cases, in which the delay is ‘manifestly inordinate’, it would be incumbent on an applicant to give an explanation in his or her founding affidavit and not to wait until the issue of delay is raised either by the respondent or the court.12


[19] Ms Ntame stated in her founding affidavit that she is an unsophisticated person with little formal education. She is also poor. In order to qualify for the disability grant that she has received since the mid-1980s she must suffer from a disability that renders her unable to work.13 She is, not surprisingly, too poor to pay for the services of an attorney.14 When her disability grant was stopped, she was given no explanation and nor was she advised of her right to appeal internally against the decision. Her sense of helplessness, frustration and powerlessness in the face of an unhelpful bureaucracy can easily be imagined.


[20] She first became aware of her rights when she approached a non-governmental organisation, the Centre for Human Rights, Community Advice and Development. This organisation assisted her by engaging the services of her current attorneys who have agreed to represent her on a contingency basis. While she did not state precisely when she found her way to the Centre for Human Rights, Community Advice and Development, it would appear that her attorneys took steps soon after being instructed. They wrote a letter of demand to the respondent dated 19 October 2004 in which the respondent was given 10 days within which to meet the demand. No response of any sort was received. The founding affidavit was signed on 8 November 2004, the Notice of Motion was signed on 10 November 2004 and the papers were issued on the same day.


[21] Ms Mnyaka’s explanation was similar to that of Ms Ntame. She stated in her affidavit that she did not have the means to pay for an attorney to represent her but that she was referred to her attorneys after she had approached the Centre for Human Rights, Community Advice and Development. She was unaware of the infringement of her rights, and of her entitlement to have her applications for maintenance grants considered, until she approached this organisation and was advised of her rights. She stated further that she would not have had the means to vindicate her rights through litigation but for the fact that her attorneys agreed to represent her on a contingency basis. She, like Ms Ntame, is ‘of unsophisticated circumstances with little or no formal education’.


[22] Her attorneys first corresponded with the respondent on 15 October 2003. They demanded payment of the maintenance grants within 10 days. The respondent answered the letter by letter dated 24 October 2003 in which it was stated that the matter was being attended to and requesting that litigation be held over pending a response. The next letter from the attorneys to the respondent is dated 20 July 2004. It stated, inter alia:

We require your undertaking that you will immediately process our client’s application for a social grant and pay to her such benefits as are lawfully due to her in terms of the Act and Regulations within 14 days as from date of this letter, failing which we hold instructions to proceed with the issue of an application against you for appropriate relief. It is inexcusable that you failed to action our letter dated 15 October 2003.’


[23] The respondent then sent a letter to Ms Mnyaka’s attorneys apologising ‘for any inconvenience’ and requesting five days grace within which to ‘consider the matter and come back to you’. On 13 September 2004, the respondent dealt with the merits of the demand, writing that Ms Mnyaka’s applications for maintenance grants had lapsed because ‘the maintenance grant is done away with. It is replaced by child support grant, that is why it lapsed’. The founding affidavits in both matters were signed on 1 November 2004, the Notices of Motion were signed on 3 November 2004 and were issued on 8 November 2004.


[24] The conclusion is inescapable, in my view, that the delays from the time of the causes of action arising to the launching of all three of these applications, when viewed objectively, are unreasonably long, even though, once the applicants were placed in contact with attorneys who could advise them and represent them, the steps that followed were taken with reasonable haste. I have, in the exercise of my discretion, decided to condone the unreasonable delays for the reasons that follow.


[25] First, the issue of condonation must be addressed mindful of the fact that s34 of the Constitution enshrines a fundamental right of access to court and that s39(2) enjoins a court either interpreting legislation or developing the common law or customary law to ‘promote the spirit, purport and objects of the Bill of Rights’ of which s34 is part. Secondly, I take into account that s1(c) of the Constitution entrenches the rule of law – and its principle of legality – as a founding value of our constitutional order, and that consequently courts should be particularly careful to allow as few invalid exercises of public power as possible to slip through the net.15 Thirdly, I bear in mind that the applicants in these matters are seeking to enforce the fundamental right of access to social assistance16 (through the fundamental right to just administrative action17) and that consequently, they are ‘drawn from the very poorest within our society’ and ‘have the least chance of vindicating their rights through the legal process’.18 In my view, these factors all channel the discretion in the direction of condonation.


[26] The applicants are unsophisticated people with little formal education. When this is taken together with their poverty, their access to court is severely hampered and a more lenient approach to the time they took to find attorneys to advise them is warranted. Although made in a different context, namely the constitutionality of a time period for the institution of actions against the South African National Defence Force, Didcott J’s comments in Mohlomi v Minister of Defence19 on the relationship between poverty and access to justice is apposite to these cases. He described South Africa as ‘a land where poverty and illiteracy abound and differences of culture and language are pronounced, where such conditions isolate the people whom they handicap from the mainstream of the law, where most persons who have been injured are either unaware of or poorly informed about their legal rights and what they should do in order to enforce these, and where access to the professional advice and assistance that they need so sorely is often difficult for financial or geographical reasons’.20 These factors also point in the direction of condonation.


[27] It is clear from the papers that, once the applicants were represented by attorneys, the matters proceeded with reasonable haste. In the case of Ms Ntame, their was precious little delay at all from the letter of demand to the issue of the papers and, in the cases of Ms Mnyaka, although the correspondence between the attorneys and the respondent was more protracted, it cannot be said, in my view, that this, on its own is sufficient to non-suit Ms Mnyaka. The relative expedition of the attorneys to take steps to vindicate the rights of the applicants also, therefore points in favour of condonation.


[28] The respondent has decided not to oppose. She has access to both internal legal advisors and to the State Attorney, who would, no doubt, have advised her in relation to these proceedings. If she was prejudiced in her defence of the applications (or in some other relevant way), I am sure she would have opposed and taken this very point. The nature of the infringement of rights in these cases is such that the question of finality does not loom as large as it would if the decisions or failures to decide had had a wider impact on others or had created rights that others had relied upon. The lack of prejudice to the respondent and the relative lack of importance in these circumstances of finality also point in favour of condonation.


[29] When the factors that I have set out above are considered holistically, I am of the view that in all three applications a case has been made out for the condonation of the unreasonable delay in launching the applications.


[D] INTERNAL REMEDIES


[30] In all three applications, an order is sought exempting the applicants from the obligation (created by s7(2) of the PAJA) to exhaust internal remedies. I have held that the PAJA does not apply to any of the applications and so s7(2) is of no application for that reason. Even if the PAJA had applied, such an order would not have been necessary because s7(2) merely defers the right of access to court until any internal remedy provided by any law has been exhausted, or the time period for utilising that internal remedy has expired. Section 7(2) certainly does not oust the jurisdiction of the courts when an applicant has chosen not to utilised an internal remedy or, for some other reason, has not done so. Such an interpretation of the section would most probably render it unconstitutional.


[31] In these matters, the common law rule on the exhaustion of internal remedies would be of application. That rule is to the effect that the jurisdiction of the courts to review administrative action is only deferred if and to the extent that statute creates, either expressly or impliedly, an obligation to first exhaust internal remedies.21 The rule is applied sparingly because ‘generally an aggrieved person … should have unrestricted access to the court to seek redress’.22 There certainly is no general rule that ‘a person who considers that he has suffered a wrong is precluded from having recourse to a Court of law while there is hope of extra-judicial redress’23 and the ‘mere fact that the Legislature has provided an extra-judicial right of review or appeal is not sufficient to imply an intention that recourse to a Court of law should be barred until the aggrieved person has exhausted his statutory remedies’.24


[32] Section 10 of the Social Assistance Act creates a right of internal appeal. This right must be exercised within 90 days of the giving of the decision under challenge. There is no express provision in the Act that places an obligation on an aggrieved party to exhaust this remedy before approaching a court, and nothing in the Act points to an implication to this effect. There is thus no such obligation on the applicants and, in any event, the time period of 90 days is long past. Furthermore, the complaint of Ms Mnyaka is that no decision was taken on her applications for maintenance grants. There would be no decision to appeal against, even if she had wanted to utilise s10 of the Act. There was, accordingly, no obligation on either applicant to exhaust the internal remedy of an appeal in terms of s10 of the Act.


[E] THE MERITS


[33] In the case of Ms Ntame, her disability grant, which she had received for about 11 years, was stopped for a period without notice to her, without her being afforded a hearing and without explanation. When payment recommenced, her grant was not properly re-instated because she was not paid the full amount that had been withheld.


[34] Item 23(2)(b) of Schedule 6 of the Constitution – the pre-PAJA, but post-interim Constitution fundamental right to just administrative action – applies in this matter. It provides, inter alia, that every person has the right to ‘procedurally fair administrative action where any of their rights or legitimate expectations are affected or threatened’. In Bushula and others v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government and another25 Van Rensburg J held a disability grant, ‘once granted, confers upon the beneficiary the right to receive that grant until it is lawfully terminated in terms of the Act and the regulations’, that the decision in that case ‘to cancel the first applicant’s disability grant was clearly a decision which prejudicially affected an existing right’ and that, consequently, he was ‘entitled to a hearing before his grant was cancelled’.26


[35] As Ms Ntame was not afforded a hearing prior to the stopping of her disability grant, the administrative act of stopping it was performed in a procedurally unfair manner. It was, accordingly, invalid and a nullity. It is not necessary, in the light of this conclusion, to deal with any of the other grounds of review raised in the papers, save to observe that the administrative act concerned falls foul of a number of grounds of review (and illustrates very well the overlapping and interlocking nature of the grounds of review). I shall return, below, to the relief to which Ms Ntame is entitled as a result of the infringement of her fundamental right to just administrative action.


[36] Ms Mnyaka’s complaint is not that decisions adverse to her were taken but rather that no decisions were taken when they should have been. The principle is a simple one: it is that ‘where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised’.27 A failure to exercise a discretion when a duty is cast on an administrative decision-maker to do so constitutes a violation of the fundamental right to lawful administrative action.28


[37] The failure on the part of the respondent to decide on Ms Mnyaka’s applications for maintenance grants is therefore a violation of her fundamental right to just administrative action. The fact that a maintenance grant no longer exists, having been phased out in favour of the child support grant, is no defence. The applications were pending the moment they were made and decisions had to be taken on them in terms of the law applicable at the time.29 Having found that, in all three applications, the administrative conduct complained of was indeed, invalid, I turn now to the appropriate remedies that are to be awarded to rectify the infringements of the applicants’ fundamental rights.


[F] RELIEF


[38] Section 172(1) of the Constitution provides that, when deciding a constitutional matter – and the review of the exercise (or failure to exercise) public power is always a constitutional matter30 – a court ‘must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency’ and ‘may make any order that is just and equitable’. Section 38, which deals specifically with infringements of, or threatened infringements of, the Bill of Rights empowers a court to grant ‘appropriate relief’.


[39] What this entails was spelt out in the following terms by Ngcobo J in Hoffmann v South African Airways31

The determination of appropriate relief, therefore, calls for the balancing of the various interests that might be affected by the remedy. The balancing process must at least be guided by the objective, first, to address the wrong occasioned by the infringement of the constitutional right; second, to deter future violations; third, to make an order that can be complied with; and fourth, of fairness to all those who might be affected by the relief. Invariably, the nature of the right infringed and the nature of the infringement will provide guidance as to the appropriate relief in the particular case. Therefore, in determining appropriate relief, “we must carefully analyse the nature of [the] constitutional infringement, and strike effectively at its source”.’


[40] The application of s38, 172 and s173 of the Constitution were discussed by Froneman J in Kate v Member of the Executive Council for the Department of Welfare, Eastern Cape.32 He held, in respect of their application in the field of social assistance, in particular:

All courts, including the High Court, are enjoined by the Constitution to uphold the rights of all, to ensure compliance with constitutional values, and to do so by granting “appropriate relief”, “just and equitable orders”, and by developing the common law “taking into account the interests of justice”. In a new constitutional democracy such as ours that means that courts have to devise means of protecting and enforcing fundamental rights that were not recognized under the common law. In doing so the courts have to keep in mind not only that the new executive and administration carries a greater burden than the old to provide for these rights, but that they have had to do this in the context of unifying separate structures of administration, at least in this province, as far as the administration of fundamental social rights were concerned. The courts, in fashioning new remedies and in the enforcement of those remedies, must thus take account of the practical difficulties experienced by the new administration, and must also be extremely wary not to move into areas that, by virtue of the constitutional separation of powers, fall outside their domain. But it should be clear that these difficulties may not serve as an excuse for failing to fashion and enforce new remedies simply because they did not exist under the common law.’


[41] In order to effectively strike at the violation of Ms Ntame’s fundamental rights to just administrative action and of access to social assistance, it is necessary, in my view, to do more than simply declare the administrative act of stopping her disability grant to be inconsistent with the Constitution. It would be just, equitable and appropriate to order the respondent to rectify the violation by paying what should never have been withheld and to pay interest on that debt. Such an order, in my view, would be just, equitable and appropriate because it would provide proper, adequate, fair and effective relief to the applicant and it can easily be complied with by the respondent.


[42] In the application brought by Ms Ntame (case no. 3667/04), I make the following order:

(a) The administrative act of stopping payment of the applicant’s disability grant from December 1996 to June 1999 is declared to be inconsistent with the Constitution, is invalid, and is hereby set aside.

(b) The respondent is directed to:

(i) re-instate the applicant’s disability grant for the abovementioned period by paying to the applicant the sum of R13 460.00;

(ii) pay to the applicant interest on the sum of R13 460.00 at the legal rate of 15.5 percent per annum calculated from the date that each monthly amount comprising the total of 13 460.00 would have been paid to the applicant if the disability grant had not been stopped during the abovementioned period, to the date of payment;

(iii) inform the applicant’s attorneys, in writing, of such payment, when it is made; and

(iv) pay the applicant’s costs.

(c) This order may be served on the respondent care of the State Attorney, 29 Western Road, Central, Port Elizabeth.


[43] In respect of the applications brought by Ms Mnyaka, I am likewise of the view that a mere declaratory order will not be an effective remedy. It will also be necessary to grant relief that compels the respondent to take the decisions that should have been taken a long time ago, and to spell out in clear terms that, if the applicant is found to have qualified for the maintenance grants, she must be paid what she would have been entitled to, together with interest. I do not intend making an order (as contained in the draft orders attached to the papers) that in the case of unfavourable decisions, the respondent must furnish written reasons for the decision within 30 days of service of the order on her. My reason for not making such an order is set out in my judgment in Vumazonke and others v Member of the Executive Council for Social Development, Eastern Cape Province33 in which I held that such relief ‘flies in the face of regulation 25 [of the Social Assistance Regulations] which requires reasons to be given contemporaneous with, and as an essential part of, the decision to refuse an application for a grant’.


[44] In the applications brought by Ms Mnyaka (case nos. 3634/04 and 3635/04), I make the following order:

(a) The failure of the respondent to consider and decide upon the applicant’s applications for maintenance grants in respect of her children A. and X. is declared to be inconsistent with the Constitution and an infringement of the applicant’s right to lawful administrative action.

(b) The respondent is directed to:

(i) consider and decide upon, within 30 days of the date of this order, the applications for maintenance grants made by the applicant in respect of her children A. and X. and dated 4 June 1997;

(ii) pay to the applicant, in the event of the applicant’s applications for the maintenance grants being approved, the amounts which fell due to her upon approval of the grants, calculated from the date of accrual of the maintenance grants on 4 June 1997, to the date of the lapsing of the maintenance grants on 1 April 2001, as well as interest on these amounts at the legal rate of 15.5 percent per annum, calculated from the date that each monthly amount comprising the total arrears would have been paid to the applicant if the grants had been paid, from the date of accrual to the date of lapsing, to the date of payment;

(iii) inform the applicant’s attorneys, in writing, of such payment, when it is made; and

(iv) pay the applicant’s costs.

(c) This order may be served on the respondent care of the State Attorney, 29 Western Road, Central, Port Elizabeth.




______________________

C. PLASKET

JUDGE OF THE HIGH COURT





1 For a discussion of these two forms of social assistance, see Olivier, Okpaluba, Smit and Thompson (eds) Social Security Law – General Principles Durban, Butterworths: 1999, 262-267.

2 Prescription Act, s11(d). The word ‘debt’ is not defined in the Act. Saner ‘Prescription’ in Joubert (ed) The Law of South Africa (Vol 21) (First Re-Issue) Durban, Butterworths: 2000, 41, para142 says: ‘In the absence of a definition of the term “debt”, the courts have held that it must be given a wide and general meaning. So, for the purposes of section 12(1) of the Prescription Act of 1969, the word “debt” includes any liability arising from and being due (debitum) or owing under a contract, but obviously includes delictual debts.. Consequently, in its broadest sense, the idea of a “debt” in relation to the Act refers to an obligation to do something, whether by payment or by the delivery of goods and services, or not to do something. The concept of a debt therefore has a proprietary character.’ See further CGU Insurance Ltd v Rumdel Construction (Pty) Ltd 2004 (2) SA 622 (SCA), para 6.

3 See National Coalition for Gay and Lesbian Equality and others v Minister of Home Affairs and others [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC), para 21, footnote 18 in which Ackermann J held: ‘A case is moot and therefore not justiciable, if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law.’ See further De Ville Judicial Review of Administrative Action in South Africa Durban, LexisNexis Butterworths: 2003, 453-455 (hereafter referred to as De Ville).

4 Rand Staple-Machine Leasing (Pty) Ltd v ICI (SA) Ltd 1977 (3) SA 199 (W), 202F-H. See too Saner ‘Prescription’ in Joubert The Law of South Africa (Vol 21) (First Re-Issue) Durban, Butterworths: 2000, 41, para 149.

5 Scott and others v Hanekom and others 1980 (3) SA 1182 (C), 1193F-G.

6 On s7 and s9 of the PAJA, see Hoexter The New Constitutional and Administrative Law (Vol 2: Administrative Law) Cape Town, Juta and Co: 2002, 287-288; De Ville, 434-440; Plasket The Fundamental Right to Just Administrative Action: Judicial Review of Administrative Action in the Democratic South Africa Unpublished PhD Thesis, Rhodes University: 2002, 271-285.

7 Bullock NO and others v Provincial Government, North West Province and another 2004 (5) SA 262 (SCA), para 7. See too Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 (6) SA 13 (SCA), para 37; Bel Porto School Governing Body and others v Premier, Western Cape and another [2002] ZACC 2; 2002 (3) SA 265 (CC); 2002 (9) BCLR 891 (CC), para 83.

8 1965 (1) SA 372 (C), 380C-D. Much the same idea (but perhaps with more emphasis on finality) was conveyed, albeit more colourfully, in Louw v Mining Commissioner, Johannesburg (1896) 3 OR 190, 200 in which it was said that the purpose of the delay rule was to bar a party from proceeding who wished to ‘drag a cow long dead out of a ditch’. See too Baxter Administrative Law Cape Town, Juta and Co: 1984, 715 (hereafter referred to as Baxter).

9 1978 (1) SA 13 (A), 39C-D.

10 At 41C-42D.

11 2001 (4) SA 294 (C), 306H-307G. See too Yuen v Minister of Home Affairs and another 1998 (1) SA 958 (C), 968J-969H; Hayes and another v Minister of Finance and Development Planning, Western Cape and others 2003 (4) SA 598 (C), 629H-631D.

12 Scott and others v Hanekom and others supra, 1192G-1193G.

13 Section 1 of the Social Assistance Act 59 of 1992 defines a disabled person as ‘any person who has attained the prescribed age and is, owing to his or her physical or mental disability, unfit to obtain by virtue of any service, employment or profession the means needed to enable him or her to provide for his or her maintenance. The definition in the Social Pensions Act, applicable when Ms Ntame applied for and was granted a disability grant, was essentially similar. See s1 of that Act.

14 In Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government and another v Ngxuza and others 2001 (4) SA 1184 (SCA), para 11, Cameron JA observed that the value of the social assistance received by those who receive disability grants is so small that it ‘would secure them hardly a single hour’s consultation at current rates with most urban lawyers’.

15 See, in this respect, the judgment of Ackermann J in Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC), para 69 in which he held that courts should approach their tasks from the perspective that in a country such as South Africa ‘where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated’. See too the judgment of Cameron JA in Permanent Scretary, Department of Welfare, Eastern Cape Provincial Government and another v Ngxuza and others supra, para 1, in which he noted that the law ‘is a scarce resource in South Africa’ and, at times, ‘justice is even harder to come by’.

16 Constitution, s27(1)(c).

17 Constitution, s33, read with item 23(2)(b) of Schedule 6.

18 Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government and another v Ngxuza and others supra, para 11.

20 See too the judgment of Kroon J in Njajula v Member of the Executive Council, Department of Welfare, Eastern Cape Province; April v Member of the Executive Council, Department of Welfare, Eastern Cape Province SECLD undated judgment (case nos. 1710/03 and 1599/03) unreported, para 15, in which he condoned the failure to institute proceedings within 180 days, as required by s7(1) of the PAJA, (insofar as this was necessary) and in so doing held: ‘Should, however, an extension of the period have been required then by reason of the applicants’ unsophistication and lack of education (and their implied unawareness of the provisions of s7(1)(b)) and the absence of any prejudice to the respondent, the interests of justice required the grant thereof.’

21 Baxter, 720.

22 Maluleke v Member of the Executive Council, Health and Welfare, Northern Province 1999 (4) SA 367 (T), 372G-H. See too Mahaela v De Beer NO 1986 (4) SA 782 (T), 790F-G.

23 Bindura Town Management Board v Desai and Co 1953 (1) SA 358 (A), 362H.

24 Golube v Ooosthuizen 1955 (3) SA 1 (T), 4F, approved in Welkom Village Management Board v Leteno 1958 (1) SA 490 (A), 503B-C.

25 2000 (2) SA 849 (E), 854E-F. See too Rangani v Superintendent-General, Department of Health and Welfare, Northern Province 1999 (4) SA 385 (T); Mpofu v MEC for Welfare and Population Development, Gauteng WLD 18 February 2000 (case no.2848/99) unreported; Maphumulo and others v MEC for Social Welfare and Pensions, KwaZulu-Natal DCLD 22 November 2000 (case nos.6306/00, 2973/00, 3741/00, 4040/00, 1358/00, 3592/00) unreported. For a discussion of these cases, see Plasket ‘Administrative Justice and Social Assistance’ (2003) 120 South African Law Journal 494, 504-508.

26 The same result would have followed had the common law been of application – see Administrator, Transvaal and others v Zenzile and others [1990] ZASCA 108; 1991 (1) SA 21 (A), 34J-35B – or the PAJA – see s3(1) and s3(2).

27 Julius v Lord Bishop of Oxford [1880] 5 AC 214, 225. See too Chotabhai v Union Government (Minister of Justice) 1911 AD 13; Cape Furniture Workers’ Union v McGregor NO 1930 TPD 682; Norman Anstey and Co v Johannesburg Municipality 1928 WLD 235; Singh v Umzinto Rural Licensing Board 1963 (1) SA 872 (D).

28 Mahambehlala v MEC for Welfare, Eastern Cape and another 2002 (1) SA 342 (SE), 352H-353D; Mbanga v MEC for Welfare, Eastern Cape and another 2002 (1) SA 359 (SE), 368E-H.

29 Minister of Public Works v Haffejee NO [1996] ZASCA 17; 1996 (3) SA 745 (A), 752H-753C.

30 Pharmaceutical Manufacturers Association of South Africa and another: In re; Ex Parte President of the Republic of South Africa and others [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC), para 33; Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and others [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC), para 22.

32 SECLD 15 July 2004 (case no. 1907/03) unreported, para 16.

33 SECLD 25 November 2004 (case nos. 110/04, 826/04, 143/04, 2541/03) unreported, para 42.