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Njongi v MEC for Social Development, Eastern Cape (ECJ 048/2005) [2005] ZAECHC 23 (2 June 2005)

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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT


ECJ NO: 048/2005


PARTIES: DELIWE MURIEL NJONGI v MEMBER OF THE EXECUTIVE COUNCIL FOR SOCIAL DEVELOPMENT, EASTERN CAPE PROVINCE

  • Registrar: 1281/04


DATE OF HEARING: 19 MAY 2005


DATE DELIVERED: 2 JUNE 2005


JUDGE(S): JONES J


LEGAL REPRESENTATIVES –

Appearances:

  • for the State/Applicant(s)Appellant(s): B HARTLE

  • for the accused/respondent(s): G WOLMARANS & RB LAHER





Instructing attorneys:

  • Applicant(s)/Appellant(s): RANDELL-OSWALD INC.

  • Respondent(s): THE STATE ATTORNEYS (PE)
























Possibly reportable

Of interest


In the High Court of South Africa

(South Eastern Cape Local Division) Case No 1281/04

Delivered: 2/06/05


In the matter between


DELIWE MURIEL NJONGI Applicant


and


MEMBER OF THE EXECUTIVE COUNCIL FOR

SOCIAL DEVELOPENT, EASTERN CAPE PROVINCE Respondent


SUMMARY: Social grant – termination or suspension of a grant followed by its re-instatement – judicial review of termination or suspension appropriate in the circumstances – condonation of delay granted – order made for payment of the amount of the grant which should have been made during termination or suspension, with interest.


JUDGMENT


JONES J:


[1] The applicant is disabled. In 1989 she applied for a disability grant in terms of the social assistance legislation in force at the time. Her application was successful. For the next seven years or so she received regular monthly payments from the Department of Social Development of the Eastern Cape provincial government. Then, in November 1997, the payments ceased. This was without notice or explanation. She enquired about her grant at the Department’s local office in Port Elizabeth and was told to re-apply. She did so in January 1999. In July 2000 her grant was re-instated. Monthly payments were resumed and, in addition, she received a payment of R1 100-00 which, she was told, was for ‘back pay’. If the ‘back pay’ was intended to cover the period during which she received no payments at all, it was inadequate. Her attorneys have calculated that the amount she should have received was R16 300-00, which is not disputed. In addition to the ‘back pay’ of R1 100-00 received in July 2000, the respondent paid a further amount of R9 400-00 on 5 March 2005 after these proceedings had been instituted. The capital amount still owing to the applicant is R5 800-00.


[2] The cessation of payment of a social grant without notice or explanation is not uncommon in the Eastern Cape Province. It has been the subject of considerable litigation. Examples are Bushula and others v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government,1 Ntame v MEC for Welfare, Eastern Cape Province,2 and Matinisi v MEC for Welfare, Eastern Cape Province.3 In each of these cases the cessation of the payment was regarded as an improper, unconstitutional and reviewable administrative action, and the respondent was ordered to correct the wrong by paying the amount which would have been paid had it not been committed, together with interest and costs. The applicant applies for similar relief in this matter.


[3] The application has brought her action in terms of the Promotion of Administrative Justice Act No 2 of 2000. But her cause of action arose before the Act came into force, the Act is not retrospective in effect, and it does not therefore apply. It is common cause that her proper remedy, which luckily for her is covered by her allegations, is a review at common law as preserved and extended by the terms of the Constitution. I need not therefore concern myself with prayers 6 and 7 of the notice of motion which relate to procedural relief under the Act.


[4] This means that the time limits prescribed by the Act do not apply, and there is no need for an order extending the period of 180 days within which a review application must be brought under the Act. There are no set times within which a review at common law must be brought. The requirement is however that it must be brought within a reasonable time and, if it is not, condonation for the delay should be sought.4 In this case the delay is in my view unreasonable, the conduct giving rise to the alleged failure of administrative justice having taken place in 1997 when her grant was stopped and in July 2000 when it was improperly reinstated because of insufficient ‘back pay’ The respondent argues that I should not in this case exercise my discretion to grant condonation because the delay causes prejudice and because no proper explanation for the delay is given by the applicant. The notice of opposition in terms of rule 6(5)(d)(iii) refers to prejudice to the respondent who must ‘endeavour to reconstruct events of some seven or eight years ago in order to establish what exactly transpired with regard to the alleged stoppage or suspension of the applicant’s disability grant’. However, allegations in a notice are not evidence of prejudice. The respondent has not filed an opposing affidavit setting out any prejudice, which means that prejudice, if any, must be sought in the applicant’s unchallenged account of the facts. No prejudice is to be found there. As for the reasons for the delay, it is so that there is an unsatisfactory explanation by the respondent’s attorney for the delay between writing the letter of demand on 10 February 2003 and launching the application some 15 months later. But this period of delay is not inordinate, it is not attributable to fault on the applicant’s part, and it is, I believe, outweighed by the considerations which are fully set out in the judgment of Plasket J in paragraphs 13 to 29, and particularly paragraphs 25 to 29, of Ntame’s case supra5, which apply with no less vigour in this case than they did in Ntame’s case. In my view they justify granting condonation.


[5] For the rest, the contents of respondent’s notice of opposition may be summarized as follows. The real purpose of the review is to achieve payment of the amount which the applicant would have received if payment of her grant had not been stopped unlawfully. That claim has by now become prescribed, which makes the review purely academic. In any event, the applicant has misconceived her remedy. She should have sued in the magistrate’s court for payment, her claim being a simple money claim for a debt which was due ex lege by reason of her having become entitled to the monthly payments in terms of sections 2 and 3 of the Social Assistance Act. The respondent relies on the decision in Makalima v MEC for Welfare, Eastern Cape Province6 where the Department delayed unreasonably in approving a social grant with the result that the applicant was denied social assistance as from the date of the application for a grant (not the date of its approval) and she was then paid a lesser amount in ‘back pay’ than should have been paid.


[6] While it is not inappropriate and has indeed become common practice to combine a review application with a claim for a money payment where the money claim flows from the administrative action which is the subject of the review (see for example the remarks in Kate v MEC for Welfare, Eastern Cape Province7), the foundation of Leach J’s judgment in Makalima’s case supra8 is the need to guard against an abuse of the process by disguising what is really only a money claim as an administrative review. The question is 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. If a judicial review is necessary, there is no abuse. Relief was refused in Makalima because a review was not considered necessary, but it was granted in the Ntame and Matinisi cases because without the review there could not have been an actionable money claim.


[7] Mr Wolmarans argued for the respondent that in this case a judicial review is both unnecessary and inappropriate. His submitted that the applicant had a right ex lege in terms of sections 2 and 3 of the Social Assistance Act to be paid her social grant. When payment ceased she had the right to sue for it in the magistrate’s court which is what she should have done. There was no need for a review because there is no evidence of an improper administrative act or decision to be reviewed. Even if there was a basis for a review, it is now purely academic, first because the social grant has in the meantime been reinstated and, second, because the claim which she could have brought for arrears has now become prescribed. The primary object of the review, to get payment, cannot be achieved even if the review succeeds. These arguments are interrelated. The prescription argument is good only if the debt has arisen and is enforceable, and the debt arose and was enforceable only if the decision not to pay was ineffective and did not first have to be reviewed and set aside. The fallacy in the argument is the proposition that there was no administrative act or decision to be reviewed. Mr Wolmarans argued that in Ntame and Matinisi the respondent set up as part of her defence that the cessation of the payment was done lawfully. This made it necessary for the applicant to have it declared unlawful on review. Here the respondent has not set up that the payment was stopped lawfully, which distinguishes this case from Ntame and Matinisi, and, so the argument goes, brings it into line with Makalima. I do not see how the defence set up by the respondent can have bearing on whether or not the alleged unlawful act is administrative action which is the subject of review. Nor do I see how the respondent can be in a different or better position by conceding that the cessation of the payments was unlawful.


[8] As the starting point one should look to the administrative duties imposed on the Department in terms of the Social Assistance Act and the regulations. Section 2(a) imposes upon the respondent’s Department (to which the performance of the relevant administrative duties has been delegated) the obligation to make social grants to aged and disabled persons and war veterans. Section 3 says that any person shall be entitled to a social grant if the Department is satisfied that he is an aged or disabled person or a war veteran, is resident within the Republic at the time of the application, is a South African citizen, and complies with the conditions prescribed by regulation. In Bushula and others v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government supra Van Rensburg J said:9

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. In my judgment such right cannot be validly terminated without the rules of natural justice and the right to fair administrative action, including the right to be heard, being observed.’


In 1997 the applicant was a beneficiary entitled to a disability grant. The respondent has not explained how it came about that her grant was suddenly stopped without compliance with the rules of natural justice and without observing her right to fair administrative action. It cannot realistically be suggested that the stopping of her social grant was something other than administrative action. The departmental official responsible for administering her payment did not do so. The non-performance of his or her duty is a failure to take administrative action. That is the proper subject of a review. Furthermore, the inference is irresistible that non-payment of the grant was preceded by an administrative decision not to pay it which was taken in terms of the regulations under the Act. This must be so whether or not it is admitted in an affidavit. Provision is made in the regulations for the mandatory administrative reconsideration and possible suspension of social grants. Ms Hartle for the applicant has annexed an extract from regulations published in Government Gazette No 17016 of I March 1996 to her heads of argument. The extract contains regulation 21 which deals with the suspension of a grant. That is the regulation quoted and considered in Bushula’s case, and it was applicable in November 1997 to the applicant’s social grant. Sub-regulations 21(2) and (6) read:

'(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 subreg (6) for the application for the restoration of the grant.

. . .

(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.’


Where an official takes a decision to suspend a grant, and does so without giving reasons in writing and informing the beneficiary of her rights in terms of sub-regulation 6, he or she acts irregularly (see the authorities collected together in Vumazonke v MEC for Social Welfare, Eastern Cape Province10) but the decision will stand until corrected on review. It will defeat a claim in the magistrate’s court (Matinisi’s case supra11). In this case payments ceased irregularly. But the payments were nevertheless terminated, and the applicant was obliged to proceed by way of review because, until the termination was set aside on review, she could be met by a defence in the magistrate’s court that nothing accrued to her once the grant was terminated.


[9] I am in agreement with the submission by Ms Hartle for the applicant that this application is on all fours with the judgments in Ntame and Matinisi, and that similar relief should be ordered. There will be the following order:

  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.




RJW JONES

Judge of the High Court

27 May 2005

2 Case No 3635/04 SECLD 11 January 2005.

3 Case No 1603/03 SECLD 10 February 2005.

4 Lion Match Co Ltd v Paper Printing Wood & Allied Workers Union and others 2001 (4) SA 149 (SCA) paragraphs 29 and 32.

5 Footnote 2.

6 Case No 1601/03 SECLD January 2005

7 2005 (1) SA 141 (SE) paragraph 33

8 Footnote 6

9 Footnote 1, at 854D-E

10 Case No 110/04 SECLD 25 November 2004 paragraphs 35 and 36

11 Footnote 3 at pages11 and 12 Leach J said: ‘. . .[while] I recently held [in Makalima’s case] that an applicant who sought payment of a welfare grant due to her could and should have sued in the magistrate’s court rather than proceeding by way of review . . ., that matter is distinguishable from the present. The applicant in that case became entitled to payment under the regulations, a liability which arose ex lege with retrospective effect when her application for a grant was approved. Such liability was therefore not dependent upon the review for her grant, and the review of the delay was therefore of academic importance in regard to the question of liability for payment of the sum claimed. That is not the case here. If the applicant in casu was to sue in the magistrate’s court, she could be met with by a defence that her grant had been terminated, and without the termination being reviewed and set aside (an issue in respect of which the magistrate’s court has no jurisdiction) that would be an absolute defence and her claim would undoubtedly fail. In order to succeed on her claim for payment, it is accordingly necessary for the applicant to approach this court for an order reviewing and setting aside the suspension and cancellation of her grant’.