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Motsage v Chief Executive Officer of the South African Social Security Agency (1026/08) [2008] ZANWHC 27 (28 August 2008)

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IN THE HIGH COURT OF SOUTH AFRICA
BOPHUTHATSWANA PROVINCIAL DIVISION

CASE NO.: 1026/08

In the matter between:


MATLAKALA MARRIAM MOTSAGE                                   APPLICANT


and


THE CHIEF EXECUTIVE OFFICER OF THE
SOUTH AFRICAN SOCIAL SECURITY AGENCY              RESPONDENT


DATE OF HEARING                             : 14 August 2008        
DATE OF JUDGMENT                           : 28 August 2008

FOR THE APPLICANT                          : Adv C Zwiegelaar      
FOR THE RESPONDENT                         : Adv S J Senatle


JUDGMENT


LANDMAN J:

[1]      Five opposed applications to compel the South African Social Security Agency (“SASSA”) to disclose the outcome of applications made for social security grants, and ancillary relief, served before me. The first application, that of Mrs M M Motsage, was argued; the other four applications fall to be decided on the same basis as that of the first application.

The facts of the first application

[2]      Mrs Motsage is a fifty seven year old, unmarried female. She alleges that she is permanently physically disabled. She says she has a wound on one arm and suffers from breast pains. She is unable to undertake even temporary employment. She lives on the charity of others.

[3]      She says she applied to the District Pension Office (“the DP Office”) at Schweizer Renecke on 23 April 2007 for a social security grant. It seems, however, that she went to the DP Office on 18 April 2007. She was sent for a medical examination on 20 April 2007.

[4]      She was advised to make inquiries at the DP Office after a few weeks. She did this from time to time. But she did not receive any information as to the progress made with her application.

[5]      By 8 February 2008 she still had not heard anything about her application. She consulted HST Administrasie (Pty) Ltd (“HST”) for assistance and gave them a power of attorney to make inquiries and act on her behalf.
[6]      HST, believing that the Legal Proceedings against Organs of State Act 40 of 2002 applied, sent a notice in terms of section 3 of the Act to the CEO of the South African Social Security Agency (SASSA). This notice reads:

         “NOTICE OF INTENDED LEGAL PROCEEDINGS IN TERMS OF SECTION 3 OF ACT 40 OF 2002

         RE: APPLICATION FOR DISABILITY GRANT: MATLAKALA MARRIAM MOTSAGE (ID : 510301 0590 08 08)

         We act on behalf of MATLAKALA MARRIAM MOTSAGE in this matter (hereinafter referred to as ‘our client’).

         Our client suffers from a permanent disability as she has a wound on the arm and is therefore totally incapable to work or earn a living and thus owing to physical disability unfit to obtain by virtue of any service, employment or profession the means needed to enable her to provide for her maintenance. She therefore qualifies for a disability grant in terms of Act 59 of 2002 alternatively Act 13 of 2004, read with applicable regulations.

         Our client duly submitted a complete application for a disability grant in terms of the Act and the Regulations on 23 April 2007 at the Schweizer Reneke offices of the Department of Social Development North West Province being a designated place and received a receipt with number 36676, attached hereto as Annexure “A”.

         Our client was advised by employees of your Department/the Agency to enquire within a couple of weeks about the outcome of the application.

         It is submitted that a period of three months was more than reasonable for your Department/the Agency to consider and decide on the application of our client.

         Notwithstanding numerous visits and enquiries by our client, she did not receive any feedback on her application.
        
         Due to the failure of your Department/the Agency to consider the application of our client, she is suffering financially and emotionally.

         Our client intends to approach the High Court of the North West Province in Mmabatho for the following relief: … [the relief is set out. It is substantially as that in the notice of motion.]


If you do not consider and approve the applicants’ application for a social grant and advise us in writing of your decision within 30 days of date of delivery of this letter or if you refuse the applicant’s application for a social grant and do not provide us with full written reasons for the refusal within 30 days of date of delivery hereof we will instruct an attorney to proceed with the application.

For ease of reference we attach hereto:

1.      
A copy of the receipt as Annexure ‘A’.
2.      
A copy of our client’s identity document as Annexure ‘B’”.


[7]      SASSA replied by letter dated 16 April 2008 (incorporating a list of names). The letter reads:

         “We refer to the above notices in respect of claimants listed below and advise that the Agency is obliged to protect the confidentiality of personal information contained in any grant application. We refer you to Act 9 of 2004, Act 13 of 2004 as well as Act 2 of 2000. The Agency can therefore only provide your office with the required information when the requisite power of attorney (written proof of consent by the applicant) in respect of each claim referred to is furnished to us. Compliance with these statutory requirements is therefore a prerequisite.

         Further note that in some of these matters and the previous ones referred to us your office, we are concerned that some of your ‘clients’ have lodged an appeal and others are in receipt of the grant they have applied before your ‘consultation’ with them. We advise that we have referred the list below to the relevant local office where they will be assisted and their visit registered and forwarded to us for monitoring (sic).”

[8]     HST responded to SASSA’s letter of 16 April 2008 on 28 May 2008 enclosing a power of attorney signed by Mrs Motsage.

[9]      Mrs Motsage signed the founding affidavit at Pelegeng on 24 April 2008. Her application, dated 6 May 2008, was served on SASSA on 8 May 2008. She seeks the following relief:
1.       That the non-compliance with the time frames in Section 7(1) of Act 3 of 2000 be condoned insofar as is needed.
2.       That the non-compliance with the time frames in Section 3 of Act 40 of 2002 be condoned insofar as is needed.
3.       The respondent, or the appropriate official of his Department, is hereby ordered:
3.1      to consider and decide on the applicant’s application for a social grant;
3.2      to advise the applicant’s attorney in writing of his decision within 15 days of date of this order.
4.       In the event of the respondent refusing the applicant’s application for a social grant, the respondent shall provide the applicant’s attorney with written reasons for the decision having been taken 15 days of date of this order.
5.       In the event that the applicant’s social grant is approved:
5.1      the respondent is ordered to pay the applicant the amounts which would have been paid to her as a social grant during the period 23 April 2007 and the day of approval of her social grant as if her grant had been approved on 23 April 2007;
5.2      the respondent is ordered to pay the applicant interest at the rate of 15.5% per year calculated on the basis that such interest accrued monthly on the monthly amounts that should have been paid to the applicant, starting on 23 April 2007 or 24 July 2007 to date of payment;
5.3      the respondent is ordered to continue paying the social grant to the applicant for as long as she legally qualifies for it.
6.       The respondent is ordered to pay the costs of this application.
[10]     SASSA opposes the application. In its opposing papers it took two points in limine. It does not persist with the complaint that notice was not given in terms of Act 40 of 2002. Mr Senatle, who appeared for SASSA, argued the remaining point in limine and several additional points.


A decision has been taken

[11]     The deponent to the answering affidavit states that Mrs Motsage’s application for a grant has been considered by the assessment committee and that her grant has been disapproved. The assessment committee’s recommendation was signed on 23 April 2007. Boxes are ticked to mean that the applicant is not disabled and her application is disapproved. It is date stamped with the same date. The reason for disapproval is provided as: “no hearing aid”.

[12]     The deponent alleges in the papers that the recommendation of the assessment committee was signed by the Director General. This document is alleged to be part of the papers. But it has been omitted. I called for a copy of the missing document. Parts of it were too faint to be read. The original was shown to me and I was also provided with a better copy. Contrary to the averment in the opposing affidavit the DG (or CEO) has not signed part “D” and therefore it has not yet been finalized.

[13]     A report by the medical officer who examined the applicant has been attached; without explanation. The deponent to the answering affidavit also alleges that she was refused a grant as she is only temporarily disabled.

Notification of decision

[14]     Had Mrs Motsage application been finally refused she would be entitled to notification of this fact and the reasons for refusing the grant. This is a right which stems from the Bill of Right contained in the Constitution of the Republic of South Africa of 1996 and the terms of the Promotion of Administrative Justice Act 53 of 2002.

No letter of demand

[15]     As I have stated Mr Senatle did not persist with the point in limine that it was necessary to give notice in terms of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002. However, he submitted that SASSA was correct in raising a dilatory defence namely that it was incumbent on Mrs Motsage “to have written a letter of demand, but not a notice addressed to” SASSA. He relied on Cele v South African Social Security Agency and 22 Related Cases (unreported judgment of Wallis AJ in matter 7940/07 (D)). Therefore, he contended, the applicant has not exhausted her domestic remedies and consequently the application should be dismissed.

[16]     A letter of demand may avoid the necessity for litigation. Courts therefore insist that a letter of demand be set as a prelude to litigation. A failure to send one may entitle a court to deny a successful litigant his or her costs. See Rakgalemo David Gaobuse and 17 others v The South African Social Security Agency (unreported judgment in this Division by Mogoeng JP; case number 258/2007 dated 7 June 2007). A letter of demand required in the terms and circumstances of the Rakgalemo matter does not apply in the applications with which I am dealing. In the Rakgalemo matter the outcome of the applications for grants were known but not the reasons for the decisions. The applicants did not demand that reasons be supplied. Here the applicant has demanded that the outcome be made known and the reasons for refusing the grant (if it has been refused). The practice advocated by Walllis AJ has not yet been adopted in this Division. Consultation with the State Attorney, upon whom additional duties may be imposed, should first be effected. This is the least that the doctrine of the separation of powers requires.

[17]     In this matter HST, on behalf of Mrs Motgase, served a notice purporting to be in terms of Act 40 of 2002 on SASSA. It gave SASSA details or her complaint and afforded the Agency a month to deal with it or face litigation. In the event the notice was not required but nevertheless, in my view, the notice has served the purpose of a letter of demand. SASSA in fact treated it as a letter of demand.

The reply

[18]     SASSA’s reply, dated 16 April 2008, to the letter of demand was in principle correct. The reply was proper in the sense that SASSA required proof that HST was authorized to receive information on behalf of Mrs Motsage. Not necessarily because the reply will provide confidential information but simply because it is prudent to ensure that the agent is authorized to act on behalf of his or her principal. It would also seem that SASSA did not appreciate that there was some urgency to the matter. It was remiss in not having communicated its decision (assuming there was one) timeously to Mrs Motsega.

[19]     HST provided the power of attorney under cover of its letter of 28 May. SASSA did not respond to it; possibly because litigation had commenced. On the other hand the answering affidavit, dated 24 June 2008, does not mention that a power of attorney was received. It was not agued that the power of attorney was not received. I assume it was duly received.


Failure to make inquiries

[20]     Mr Senatle submited that: “On 25 June 2008 she launched this application. Despite the fact that the Applicant was advised of her remedies she instead rushed to court without having enquired about the outcome of her application”. The applicant explained about the inquiries she made to the D P Office. The deponent to SASSA’s affidavit says he has no knowledge of this and accordingly denies it. I must and do, in the circumstances, accept the Mrs Motsega’s version that she made inquiries from time to time. There is no merit in this complaint. If, however, the complaint is that Mrs Motsage did not again personally approach the DP’s office the answer is that she was entitled to seek HST’s assistance. Moreover, I should mention that in none of the applications serving before me had an appeal been lodged and none of the applicants were in receipt of grants.

Defective attestation

[21]     Mr Senatle pointed out that the commissioner has not printed his full names and business address beneath his or her signature and has not stated the area for which he or she holds appointment. The commissioner merely signed the affidavit and placed an official date stamp on it. It is also contended that the commissioner has not indicated that he or she was satisfied as to the identity of the deponent who affixed her thumb print to the affidavit.

[22]     There is no merit in this complaint. The attestation shows that the commissioner is a student constable in the South African Police Service. He or she provided his or her initials and surname and SAPS number as well as station. In addition the commissioner and another police officer witnessed every page where the right thumb print of the deponent is placed on the affidavit. The attestation complies substantially with the Justice of the Peace and Commissioner of Oaths Act 16 of 1963 and its regulations.


What grant?

[23]     SASSA complains that the notice of motion does not specify which of seven possible grants the applicant has claimed. This confusion is completely resolved by reading the application. SASSA has already discovered this and has attached an official document entitled “Medical Report: Grant for Disabled Persons”.

Replying affidavit

[24]     SASSA complains that the replying affidavit is signed by the applicants attorney “who knows absolutely nothing about events”. There are two answers to this complaint. The first is that there is no need for a replying affidavit to deny anything. In any event there is very little for the replying affidavit to deny. The answering affidavit, save for providing background to the information sought, consists mostly of bare denials.

[25]     What is denied in some detail, by relying on an unsworn medical report and hearsay statements, is that the applicant is not disabled. This may well be so. It may even be that the processing of applications for grants, is bedeviled by unmeritorious applications. But this is to miss the purpose of the application. The purpose is clear. The application was launched because Mrs Motsage has not been informed about the outcome of her application. This application is to compel SASSA to deal with Mrs Motsage’s application for a grant and to tell her, if it has declined her grant, why it has done so.

[26]     I am not concerned, on these papers, with the merits of her application; only that her rights to be informed of the outcome of her application and to provide her with reasons, in the event her application was unsuccessful, are honoured.

[27]     No written notice to the applicant stating that her application was unsuccessful has been attached to the answering affidavit. The inference must therefore be that none was sent to her. Her inquiries at the DP Office came to naught. She has had to wait more 14 months to know the fate of her application for a grant. Even now all that Mrs Motsage knows is that the assessment committee has recommended that she not be granted a disability grant. It is apparent from form “D” that the Director-General (or CEO of SASSA) has not yet signed off the application.

[28]     Mr Senatle raised a few other objections to Ms Zwiegelaar’s submissions in her heads but there is no merit in them.

[29]     In the circumstances I am of the opinion that Mrs Motsage has made out a case for the relief she seeks.

Other applications

P S Ramose 1042/08

[30]     Mrs P S Ramose alleges she suffers from high blood pressure and asthma. She applied for a disability grant on 30 June 2004. Her application was refused on 24 July 2007. She was not notified of this. The reason for refusing her application is said to be that she is not disabled. This is not a reason. It is a conclusion.

[31]     She is entitled to an order compelling SASSA to provide her with reasons for declining her application for a grant and ancillary relief.

N L Gaeseitsewe 1037/2008

[32]     Mrs N L Gaeseitsewe says she has knee problems. She says she applied on 21 September 2007 for a disability grant. But it seems she applied for a grant on 5 September 2007. Her application was refused on 21 September 2007. She was also not informed about the outcome of her application. SASSA does not regard her as disabled as she “responded well to treatment”. She was not notified of the outcome of her application.

[33]     Mrs Gaeseitsewe has been given the information she seeks. She is entitled to a cost order.

J M Barati 1041/2008

[34]     Mrs Barati alleges that she suffers from high blood pressure. She says she applied on 30 May 2005 for a grant. It seems that she applied on 3 May 2005 for a grant. Her application was refused on 30 May 2007 as the “prognosis [is] very good and patient is also well and the BP is well controlled”. She was not notified of the outcome of her application.

[35]     Mrs Barati has been given the information she seeks. She is entitled to a cost order.

K L Mojakgolo 1040/2008

[36]     Mrs Mojakgolo suffers from epilepsy. She applied for a disability grant on 28 November 2004. Her application was declined on 24 July 2007. She was not informed of this. No reasons have been supplied for declining her application save that she is not disabled. This is not a reason, it is a conclusion.

[37]     She is entitled to an order compelling SASSA to provide her with reasons for declining her application for a grant and ancillary relief.

Costs

[38]     Ms Zwiegelaar submits that the application should be granted with costs on an attorney client scale. Mr Senatle, in turn, submits that the application should be dismissed with costs on a punitive scale.

[39]     I am of the view that costs should be granted to the applicants on the ordinary scale. I come to this conclusion because party and party costs will be sufficient in view of the number of applications, for similar relief, involved.

Order

MM Motsage 1026/2008

1.       Non-compliance with the time frames in Section 7(1) of Act 3 of 2000 is condoned insofar as is needed.
2.       The respondent, or the appropriate official of his Department, is hereby ordered:
2.1      to consider and decide on the applicant’s application for a social grant;
2.2      to advise the applicant’s attorney in writing of his decision within 15 days of date of this order.
3.       In the event of the respondent refusing the applicant’s application for a social grant, the respondent shall provide the applicant’s attorney with written reasons for the decision having been taken 15 days of date of this order.
4.       In the event that the applicant’s social grant is approved:
4.1      the respondent is ordered to pay the applicant the amounts which would have been paid to her as a social grant during the period 23 April 2007 and the day of approval of her social grant as if her grant had been approved on 23 April 2007;
4.2      the respondent is ordered to pay the applicant interest at the rate of 15.5% per year calculated on the basis that such interest accrued monthly on the monthly amounts that should have been paid to the applicant, starting on 23 April 2007 to date of payment;
4.3      the respondent is ordered to continue paying the social grant to the applicant for as long as she legally qualifies for it.
5.       The respondent is ordered to pay the costs of this application.


P S Ramose 1042/08


1.       Non-compliance with the time frames in Section 7(1) of Act 3 of 2000 is condoned insofar as is needed.
2.       The respondent shall provide the applicant’s attorney with written reasons for the decision within 15 days of date of this order.
3.       The respondent is ordered to pay the costs of this application.


N L Gaeseitsewe 1037/2008

1.       Non-compliance with the time frames in Section 7(1) of Act 3 of 2000 is condoned insofar as is needed.

2.       The respondent is ordered to pay the costs of this application.

J M Barati 1041/2008

1.       Non-compliance with the time frames in Section 7(1) of Act 3 of 2000 is condoned insofar as is needed.

2.       The respondent is ordered to pay the costs of this application.


K L Mojakgolo 1040/2008


1.       Non-compliance with the time frames in Section 7(1) of Act 3 of 2000 is condoned insofar as is needed.
2.       The respondent shall provide the applicant’s attorney with written reasons for the decision within 15 days of date of this order.
3.       The respondent is ordered to pay the costs of this application.




A A Landman
Judge of the High Courtigh CourtHHi