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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO : 050/2004

PARTIES: Vumazonke & Others v MEC for Social Development

and Welfare for Eastern Cape Province

REFERENCE NUMBERS -

• Registrar: 110/04; 826/04; 143/04; 2541/03

DATE HEARD: 11 November 2004

DATE DELIVERED: 25 November 2004

JUDGE(S): Plasket J

LEGAL REPRESENTATIVES -

Appearances:

• for the State/Applicant(s)/Appellant(s): NJ Mullins

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

Instructing attorneys:

• Applicant(s)/Appellant(s): Clark and Erasmus Inc

• Respondent(s):

CASE INFORMATION -

• Nature of proceedings : Application

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

CASE NOS:110/04; 826/04; 143/04; 2541/03

DATE DELIVERED: 25/11/04

REPORTABLE

In the matters between:

NOMBULELO BLOSSOM VUMAZONKE APPLICANT

and

MEMBER OF THE EXECUTIVE COUNCIL

FOR SOCIAL DEVELOPMENT, EASTERN CAPE

PROVINCE RESPONDENT

PHINDILE MATITIBALA APPLICANT

and

MEMBER OF THE EXECUTIVE COUNCIL

FOR SOCIAL DEVELOPMENT, EASTERN CAPE

PROVINCE RESPONDENT

LETTIE NCANYIWE MATIWANE APPLICANT

and

MEMBER OF THE EXECUTIVE COUNCIL

FOR SOCIAL DEVELOPMENT, EASTERN CAPE

PROVINCE RESPONDENT

LOUIS PATRICK PLAATJIES APPLICANT

and

MEMBER OF THE EXECUTIVE COUNCIL

FOR SOCIAL DEVELOPMENT, EASTERN CAPE

PROVINCE RESPONDENT

________________________________________________________________________________________JUDGMENT__________________________

Social assistance – large-scale inefficiency in the administration of the social assistance system in the Eastern Cape Province – substantial number of cases coming before the courts, but no tangible improvement in the system – copy of the judgment to be served on the Human Rights Commission and the Public Service Commission so that they may consider initiating investigations into the responsible provincial department – copies of the judgment also to be served on the Premier, the chairperson of the relevant standing committee of the provincial legislature and the appropriate Minister in the national government.

In the individual cases – where a refusal of an application for a disability grant does not include reasons, as in this case, the 90-day period for the lodging of an internal appeal does not begin to run -- where no decision has been taken within a reasonable period, the ground of review postulated by s6(2)(g) of the Promotion of Administrative Justice Act 3 of 2000, read with s6(3)(a), has been established and an order may be issued directing that such a decision is to be taken.

______________________________________________________________

PLASKET J:

[A] INTRODUCTION

[1] During a week of motion court duty from 8 to 12 November 2004, I dealt with 102 matters in which applicants claimed relief in essentially similar terms against the Member of the Executive Council for Social Development in the Eastern Cape Provincial Government. In all of the cases that I dealt with the applicants had applied for social assistance -- in 95 cases, in the form of child support grants, and in the remainder, in the form of disability grants -- and they had either received no response to their applications or only received responses shortly before their cases were to be heard in this court.

[2] If this volume of social assistance cases had been unique to one week’s motion court roll, it would have been cause for concern. Unfortunately, it is a phenomenon that is now common: the judges of this division, as well as those in the other two divisions in the Eastern Cape, have grown accustomed to the depressing tales of misery and privation contained in an ever-increasing volume of cases that clog their motion court rolls in which applicants complain about administrative torpor in the processing of their applications for social assistance. To make matters worse, this situation is not new. Over the last four or five years, judges have commented, often in strident terms, about the unsatisfactory performance of the respondent’s department in the administration of the social assistance system in the province.

[3] In a judgment delivered in 2001, Froneman J, in Somyani v Member of the Executive Council for Welfare, Eastern Cape and another,¹ commented that there were 41 cases on his motion court roll in which the failure of officials of the Department of Welfare (as the current Department of Social Development was then known) to do their work was the issue. While most ‘had to do with the lack of giving proper attention to the consideration of social grants’, three of the cases had ‘proceeded to the point where the respondents were called upon to show cause why they should not be committed to prison for contempt of court because of their failure to give heed to court orders’.² Of these, agreements had been reached on how to proceed in two but, in Somyani, the third case, no such agreement had been reached.³ He described the case as not being an isolated incident of maladministration, stating that other courts had commented ‘on the provincial administration’s tardiness in complying with its constitutional and legislative duties’.⁴

[4] About a year later, Ndevu v Member of the Executive Council for Welfare, Eastern Cape Provincial Government and another⁵ was one of 27 similar cases on the motion court roll that week in which all of the applicants had approached the court because, having applied for grants, they had either received no responses or unsatisfactory responses. Erasmus J commented that the fact that the applicants in these matters ‘found it necessary to turn to the court for assistance would indicate that the respondents and the public servants under their control have failed to perform their administrative duties properly and timeously’.⁶ It would, he said, be unrealistic to assume that ‘this is the end of the sorry saga’ because there were a further 34 similar matters on the next motion court roll and, in view of the fact that many people do not have access to legal advice and representation, ‘the matters that do come to court are probably but the tip of the iceberg’. This raised the ‘disturbing likelihood that many persons in this province at this moment are suffering real hardship through the ineffectiveness of the public service at provincial level’⁷

[5] Erasmus J stated further that, in these matters, the respondents tended to file notices of opposition, later withdraw them and then allow the applicants to take orders unopposed. It seemed to him that ‘the opposition was merely a manoeuvre designed to allow the respondents time to process the claim; which tactic then occasioned additional costs’.⁸ On the issue of the costs in social assistance cases, he said:⁹

‘I have obtained from the Registrar a copy of a bill taxed in a similar matter. (I attach a copy thereof.) On that basis these matters tax out at about R4 000.00 per case. It would mean therefore that in today’s cases alone about R100 000.00 will be paid in legal costs in respect of the fees and disbursements of the legal representatives of the applicants. Clearly, millions of rand in taxpayers’ money have been wasted in unnecessary legal costs occasioned by indolence and/or incompetence on the part of public servants.’

[6] In Mbanga v MEC for Welfare, Eastern Cape and another,¹⁰ Leach J stated that while ‘patience is a virtue, I venture to suggest that even the patience of Job would have been tested by the inefficiency of officialdom in this case as, notwithstanding regular enquiries being made to the office of the Department of Welfare in Port Elizabeth, time passed without any indication whether the applicant’s application had been granted or refused’.¹¹ And in Mahambehlala v MEC for Welfare, Eastern Cape and another,¹² he spoke of the ‘administrative sloth and inefficiency which currently bedevils the Department of Welfare in the Eastern Cape’.¹³

[7] In Ngxuza and others v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government and another,¹⁴ Froneman J spoke of people who worked for organisations that assisted poor and underprivileged people in the province telling ‘a tale of a lamentable failure on the part of officials of the department, at virtually all levels, to give proper attention and effort to rectifying and alleviating’ the ‘intolerable state of affairs’ caused by the wholesale and arbitrary cancellation of disability grants.¹⁵ On appeal, in Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government and another v Ngxuza and others¹⁶ Cameron JA described the department’s inefficiency thus:

‘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 coordinating these entreaties and in the negotiations that resulted from them. But their efforts were unavailing. 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.’

[8] It is, perhaps, not surprising, in the light of this history, that Cameron JA, in Ngxuza, also remarked adversely about the respondent’s department’s conduct. He said that, in the way it dealt with the applicants in that case and conducted itself in those proceedings, it displayed ‘a contempt for people and process that does not befit an organ of government under our constitutional dispensation’ and that it ‘conducted the case as though it was at war with its own citizens, the more shamefully because those it was combating were in terms of secular hierarchies and influence and power the least in its sphere’.¹⁷ In Jayiya, Conradie JA was similarly forthright about the cause of the problem: he stated that ‘laziness and incompetence’ lay ‘at the root of the malaise in the Eastern Cape Department of Welfare’.¹⁸

[9] Judges have criticised the performance of the Department of Social Development, not because they see themselves as super-ombudsmen or wish to involve themselves in politics, but because the administrative failings of the department have consequences that bring its performance within the heartland of the judicial function: those failings infringe or threaten the fundamental rights of large numbers of people to have access to social assistance, to just administrative action and to human dignity.¹⁹ When rights are infringed or threatened, the impugned conduct becomes very much the business of the judiciary: s38, s165 and s172 of the Constitution make that abundantly clear, placing as they do a duty on the judiciary to remedy such infractions. The problem faced by the judiciary in the Eastern Cape in social assistance cases is, however, of a different order. It relates to the boundaries of the judicial function – to the limits of the institutional competence of the courts to engineer administrative efficiency.

[B] ADDRESSING THE SYSTEMIC PROBLEM

[10] The problem may be summarised in this way: notwithstanding that literally thousands of orders have been made against the respondent’s department over the past number of years,²⁰ it appears to be willing to pay the costs of those applications rather than remedy the problem of maladministration and inefficiency that has been identified as the root cause of the problem. In the absence of a class action or similar representative litigation (which may have its own difficulties – and limitations -- when it comes to forging appropriate remedies to compel administrative reform), the courts are left with a problem that they cannot resolve: while they grant relief to the individuals who approach them for relief, they are forced to watch impotently while a dysfunctional and apparently unrepentant administration continues to abuse its power at the expense of large numbers of poor people, the very people ‘who are most lacking in protective and assertive armour’ and whose needs ‘must animate our understanding of the Constitution’s provisions’.²¹ What escalates what I have termed a problem into a crisis is that the cases that are brought to court represent only the tip of the ice-berg.

[11] The administration does not have a free hand to behave as it wishes. It is constrained by the Constitution and the law, and a network of constitutional institutions are created to ensure that it operates within the limits of the Constitution and the law. This system was described by the Constitutional Court in President of the Republic of South Africa and others v South African Rugby Football Union and others²² as follows:

‘[132] The exercise of public power is regulated by the Constitution in different ways. There is a separation of powers between the Legislature, the Executive and the Judiciary which determines who may exercise power in particular spheres. An overarching Bill of Rights regulates and controls the exercise of public power, and specific provisions of the Constitution regulate and control the exercise of particular powers.

[133] Public administration, which is part of the executive arm of government, is subject to a variety of constitutional controls. The Constitution is committed to establishing and maintaining an efficient, equitable and ethical public administration which respects fundamental rights and is accountable to the broader public. The importance of ensuring that the administration observes fundamental rights and acts both ethically and accountably should not be understated. In the past, the lives of the majority of South Africans were almost entirely governed by labyrinthine administrative regulations which, amongst other things, prohibited freedom of movement, controlled access to housing, education and jobs and which were implemented by a bureaucracy hostile to fundamental rights or accountability. The new Constitution envisages the role and obligations of government quite differently.

[134] The constitutional goal is supported by a range of provisions in the Constitution. First, in the Bill of Rights there is the right of access to information and the right to just administrative action. … Secondly, all the provisions of the Bill of Rights are binding upon the Executive and all organs of State. The Bill of Rights, therefore, imposes considerable substantive obligations upon the administration. Thirdly, chap 10 of the Constitution, entitled “Public Administration”, sets out the values and principles that must govern public administration and states that these principles apply to administration in every sphere of government, organs of State and public enterprises. This chapter also establishes a Public Service Commission to promote the values of public administration. Fourthly, chap 9 of the Constitution establishes the office of the Public Protector, whose primary task is to investigate and report on conduct in the public administration which is alleged to be improper. Fifthly, the Constitution establishes the office of the Auditor-General whose responsibility it is to audit and report on the financial affairs of national and provincial State departments and administrations as well as municipalities.’

[12] In the passage I have cited above, the Constitutional Court referred to the values that the public administration is required to adhere to and promote. They are to be found in s195 of the Constitution. Its provisions that are relevant to this matter are: s195(1)(a), which requires that a ‘high standard of professional ethics must be promoted and maintained’; s195(1)(b), which requires that ‘[e]fficient, economic and effective use of resources must be promoted’; s195(1)(e), which requires that the needs of people ‘must be responded to’; s195(1)(f), which requires that public administration ‘must be accountable’; and s195(1)(g), which requires that ‘[t]ransparency must be fostered by providing the public with timely, accessible and accurate information’.

[13] Those who are principally responsible for addressing the breakdown in proper administration, in compliance with the provisions of the Constitution, in the respondent’s department – apart from the respondent herself who is, after all, the political head of the department, responsible directly to the Premier and the legislature for the performance of her functions²³ – are: the Premier of the province, in whom executive authority in the province is vested;²⁴ the Social Development Standing Committee of the provincial legislature, which is responsible for overseeing the performance of executive and administrative functions of the respondent’s department;²⁵ and the Minister of Social Development in the national sphere of government, who is responsible for the maintenance of norms and standards in the provision of social assistance.²⁶

[14] In addition, it seems to me, at least two other institutions, one of which was referred to by the Constitutional Court in the passage cited above, are of importance in addressing the problem that I have outlined.

[15] The first is the Human Rights Commission, a so-called Chapter 9 institution established to ‘strengthen constitutional democracy in the Republic’.²⁷ As will be seen from the section of the Constitution cited below this institution has a special responsibility in respect of socio-economic rights such as the right to social assistance. The functions of the Human Rights Commission are tabulated in s184. The section reads:

‘(1) The South African Human Rights Commission must-

(a) promote respect for human rights and a culture of human rights;

(b) promote the protection, development and attainment of human rights; and

(c) monitor and assess the observance of human rights in the Republic.

(2) The South African Human Rights Commission has the powers, as regulated by national legislation, necessary to perform its functions, including the power-

(a) to investigate and to report on the observance of human rights;

(b) to take steps to secure appropriate redress where human rights have been violated;

(c) to carry out research; and

(d) to educate.

(3) Each year, the South African Human Rights Commission must require relevant organs of state to provide the Commission with information on the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment.

(4) The South African Human Rights Commission has the additional powers and functions prescribed by national legislation.’

[16] The Human Rights Commission Act 54 of 1994 complements the provisions of the Constitution. Section 9 empowers it to conduct investigations. It states:

‘(1) Pursuant to the provisions of section 116 (3) of the Constitution the Commission may, in order to enable it to exercise its powers and perform its duties and functions-

(a) conduct or cause to be conducted any investigation that is necessary for that purpose;

(b) through a member of the Commission, or any member of its staff designated in writing by a member of the Commission, require from any person such particulars and information as may be reasonably necessary in connection with any investigation;

(c) require any person by notice in writing under the hand of a member of the Commission, addressed and delivered by a member of its staff or a sheriff, in relation to an investigation, to appear before it at a time and place specified in such notice and to produce to it all articles or documents in the possession or custody or under the control of any such person and which may be necessary in connection with that investigation: Provided that such notice shall contain the reasons why such person's presence is needed and why any such article or document should be produced;

(d) through a member of the Commission, administer an oath to or take an affirmation from any person referred to in paragraph (c), or any person present at the place referred to in paragraph (c), irrespective of whether or not such person has been required under the said paragraph (c) to appear before it, and question him or her under oath or affirmation in connection with any matter which may be necessary in connection with that investigation.’

[17] Section 15 of the Act provides for the publication of reports that emanate from investigations conducted by the Human Rights Commission. This section states:

‘(1) The Commission may, subject to the provisions of subsection (3), in the manner it deems fit, make known to any person any finding, point of view or recommendation in respect of a matter investigated by it.

(2) In addition to the report contemplated in section 118 of the Constitution, the Commission shall submit to the President and Parliament quarterly reports on the findings in respect of functions and investigations of a serious nature which were performed or conducted by it during that quarter: Provided that the Commission may, at any time, submit a report to the President and Parliament if it deems it necessary.

(3) The findings of an investigation by the Commission shall, when it deems it fit but as soon as possible, be made available to the complainant and any person implicated thereby.’

[18] I am aware of the fact that when a previous crisis in the administration of social assistance in the province was brought to the attention of the Human Rights Commission, it concluded that, despite trying, there was nothing that it could do but to support a class action for the re-instatement of a substantial number of disability grants.²⁸ Many would have expected that the attention that that crisis has received would have spurred the respondent and her officials out of their lethargy and indifference and instilled in them a sense of responsibility and commitment. That has not happened. As the crisis has deepened, I have decided that it is appropriate to order that a copy of this judgment be served on the chairperson of the Human Rights Commission so that he can consider whether to institute an investigation into the conduct of the respondent’s department, with a view to proposing concrete steps to ensure that it begins to comply with its constitutional and legal obligations and ceases to infringe fundamental rights on the present grand scale.

[19] In my view it is also necessary to bring the crisis to the attention of the Public Service Commission because a large part of the problem in the respondent’s department appears to be maladministration and inefficiency in the administration of social assistance. The Public Service Commission is created as an independent and impartial institution with the express purposes of maintaining an ‘effective and efficient public administration’ and promoting ‘a high standard of professional ethics in the public service’.²⁹ Its powers and functions, as set out in s196(4) of the Constitution are the following:

‘ The powers and functions of the Commission are-

(a) to promote the values and principles set out in section 195, throughout the public service;

(b) to investigate, monitor and evaluate the organisation and administration, and the personnel practices, of the public service;

(c) to propose measures to ensure effective and efficient performance within the public service;

(d) to give directions aimed at ensuring that personnel procedures relating to recruitment, transfers, promotions and dismissals comply with the values and principles set out in section 195;

(e) to report in respect of its activities and the performance of its functions, including any finding it may make and directions and advice it may give, and to provide an evaluation of the extent to which the values and principles set out in section 195 are complied with; and

(f) either of its own accord or on receipt of any complaint-

(i) to investigate and evaluate the application of personnel and public administration practices, and to report to the relevant executive authority and legislature;

(ii) to investigate grievances of employees in the public service concerning official acts or omissions, and recommend appropriate remedies;

(iii) to monitor and investigate adherence to applicable procedures in the public service; and

(iv) to advise national and provincial organs of state regarding personnel practices in the public service, including those relating to the recruitment, appointment, transfer, discharge and other aspects of the careers of employees in the public service.

(g) to exercise or perform the additional powers or functions prescribed by an Act of Parliament.’

[20] These provisions are complemented by the provisions of the Public Service Commission Act 46 of 1997. Sections 9 and 10 of the Act are relevant. The former provides that the ‘Commission may inspect departments and other organisational components in the public service, and has access to such official documents or may obtain such information from heads of those departments or organisational components or from other officers in the service of those departments or organisational components as may be necessary for the performance of the functions of the Commission under the Constitution or the Public Service Act’. The latter section makes provision for enquiries. It reads:

‘(1) The Commission may conduct an inquiry into any matter in respect of which it is authorised by the Constitution or the Public Service Act to perform any function.

(2) For the purposes of the inquiry, the Commission may-

(a) summons any person who may be able to give information of material importance concerning the subject of the inquiry or who has in his or her possession or custody or under his or her control any book, document or object which may have a bearing on the subject of the inquiry, to appear before the Commission;

(b) call upon and administer an oath to, or accept an affirmation from, any person present at the inquiry who has or might have been summonsed in terms of paragraph (a);

(c) examine or require any person who has been called upon in terms of paragraph (b) to produce any book, document or object in his or her possession or custody or under his or her control which may have a bearing on the subject of the inquiry.’

[21] As with the Human Rights Commission, it seems to me to be appropriate to have this judgment served on the chairperson of the Public Service Commission so that he can consider instituting an investigation into the respondent’s department. There appears to me to be no reason why both institutions, with their complementary focuses and expertise, should not conduct a joint investigation. I stress, however, that much as I hold the view that an investigation by these institutions is appropriate and necessary, I am not making an order to that effect: the decision to investigate or not is one that is vested in the institutions concerned and must be taken by them.

[22] Two final points must be made before I proceed to deal with the individual cases before me. The first is that the time for talk and no action has long passed. Something drastic and concrete must be done to remedy a serious, systemic infringement of the Constitution and the law -- and the principles of good administration -- by the respondent’s department. The second is that the Premier, as the person in whom executive authority in the province is vested, is ultimately responsible for the manner in which Members of the Executive Council and their departments perform. I make this point, not to tell the Premier what to do, but to state the obvious constitutional point that in terms of the Constitution, the buck stops with her: this is also made clear in the oath of office taken by Premiers (and Members of the Executive Council), in terms of which incumbents swear or affirm an oath to ‘obey, respect and uphold the Constitution and all other law of the Republic’.³⁰

[C] THE INDIVIDUAL CASES

[23] The facts of the four individual cases are essentially similar. In each case the applicant has applied for a disability grant in accordance with the requirements of the Social Assistance Act and its regulations. Ms Vumazonke applied on 29 July 2003, Mr Matitibala applied on 23 September 2003, Ms Matiwane applied on 15 July 2003 and Mr Plaatjies applied on 15 July 2003.

[24] All four were informed that their applications would take about three months to be processed and all four applicants were supplied with a receipt. Although the form of the receipt varies, all bear an official date stamp, record the type of grant applied for, the name and identity number of the applicant, and the signature and name of an official variously described as a verifier, a verifying officer and an attesting officer. (Additional information also appears on the receipt, but the nature of the information varies from receipt to receipt.)

[25] The significance of the receipts is that they establish that the applications in question were made, the date on which they were made, that they were made by the applicants and that the formal requirements for the making of such applications had been complied with.³¹

[26] After making their applications, the applicants waited for the three-month period before making enquiries as to the outcome of their applications. When their enquiries met with no success, they eventually sought legal assistance. Their attorney wrote letters of demand to the respondent in which he complained of the failure or neglect of departmental officials to take the required decisions on the applications and demanded that decisions be taken within ten days of the date of his letters. No responses were received and applications to compel the taking of the decisions were later launched.

(a) The Case of Ms Vumazonke

[27] In the case of Ms Vumazonke, however, her attorney was given a letter, at the time that the respondent’s notice of opposition was filed, to the effect that her application for a disability grant had been unsuccessful. The ‘reason’ for the rejection was stated as follows: ‘Your application for a grant has not been recommended by the medical officer.’ The letter is dated 18 September 2003. The letter of demand written by Ms Vumazonke’s attorney was dated 9 December 2003, her notice of motion is dated 20 January 2004 and the existence of this letter was only brought to her attorney’s attention on 13 February 2004.

[28] As the respondent has not seen fit to file papers, there is no explanation on record as to why there was not a prompt reply to Ms Vumazonke’s attorney’s letter of demand. At the very least, she is entitled to her costs as a result. The applicant claims that she never received the letter and there is no evidence to gainsay this. Her version must, accordingly, be accepted. It is also probable: I cannot imagine why a person would bring an application to compel a decision being made if she is aware that an adverse decision has already been taken and communicated to her. In such circumstances she would surely challenge the adverse decision, rather than pretend that it was never taken.

[29] Because of the existence of the letter coming to light, the applicant no longer seeks the relief she originally claimed, namely a mandamus to compel a decision. Instead, she now claims an order to the effect that the applicant be granted ’90 days from the date of this order in which to lodge an appeal against the said decision’ and an order that the respondent pay the costs of the application.

[30] I am not able to grant the principal relief claimed because the court is not given the power to extend the 90-day period for the initiation of an internal appeal in terms of s10 of the Social Assistance Act. (If an applicant has delayed longer than this period, he or she would not lose the right to a remedy: he or she would still have the right to approach a court for appropriate relief.)

[31] In any event, on the view I take of the matter, the applicant does not require the relief claimed because the 90-day period has not yet started to run. When a decision is taken to refuse an application for social assistance, the applicant must, in terms of regulation 25(2) of the Social Assistance Regulations, be informed in writing of the reasons for the refusal and of the right of appeal in terms of s10 of the Act. The furnishing of reasons is a pre-condition for a valid exercise of power.³²

[32] In this case it cannot be said that reasons have been given. All that the applicant was told was that it was a medical officer who had recommended the refusal of her application for a disability grant. No basis for the decision, whether good, bad or indifferent, is disclosed: what is required, in order to comply with regulation 25(2) is a statement that informs the applicant of the basis upon which the medical officer arrived at the conclusion that the applicant did not qualify for a disability grant.³³ In other words, a decision-maker’s reasons are constituted by ‘explanations as to why it settles upon its final choice’.³⁴

[33] In the result, the respondent not having furnished Ms Vumazonke with reasons for the refusal of her application for a disability grant, the 90-day period has not begun to run yet and if she wants to appeal in the absence of reasons – I was informed from the bar that this is what she wants to do -- she can do so at any time. I shall, accordingly, only make a costs order in this matter.

(b) The Cases of Mr Matitibala, Ms Matiwane and Mr Plaatjies

[34] In these cases, as indicated above, no decisions have been taken on the applications for disability grants of the applicants. They seek orders to compel the respondent or a duly authorised official in her department, to take the decisions, plus certain ancillary relief.

[35] Public powers and functions – such as the power to decide on an entitlement to social assistance -- are given to administrative officials for a purpose: they are intended to be exercised in the furtherance of the public interest.³⁵ As a result, when officials fail to exercise their powers or perform their functions, affected parties may require defaulting officials to perform their duties.³⁶ If the power or function is discretionary in nature, as in this case, an order may be issued to compel the administrative official to take a decision, although it usually will not be competent to compel the official decide in a particular way.³⁷

[36] The application of this ground of review is illustrated by the case of Cape Furniture Workers’ Union v McGregor NO.³⁸ The respondent, the Registrar of Trade Unions, was under a duty to register trade unions if they satisfied certain statutory requirements. Despite the applicant having complied with these requirements the respondent had not registered it. Greenberg J held:³⁹

‘I think therefore that it follows from these decisions that where a statute requires an official to give a decision within a reasonable time, and he fails to do so, the Court will order him to carry out his duties, even though there has been no direct refusal on his part to do so.’

[37] Being administrative action as defined, the respondent’s failure is subject to review in terms of s6(1) of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA), which provides that ‘[a]ny person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.’⁴⁰ The grounds upon which a person may judicially review administrative action are set out in s6(2) of the PAJA. Section 6(2)(g) provides for review on the ground that the administrative action concerned ‘consists of a failure to take a decision’.

[38] Section 6(3)(a) of the PAJA regulates how this ground of review is to be accessed. It provides:

‘If any person relies on the ground of review referred to in subsection (2)(g), he or she may in respect of a failure to take a decision, where --

(a) (i) an administrator has a duty to take a decision;

(ii) there is no law that prescribes a period within which the administrator is required to take that decision; and

(iii) the administrator has failed to take that decision,

institute proceedings in a court or tribunal for judicial review of the failure to take the decision on the ground that there has been unreasonable delay in taking the decision’.

[39] In the present cases, the respondent or duly empowered officials in her department have a duty to take decisions in respect of the applicants’ applications for disability grants, no law prescribes a time period within which such decisions have to be taken and those decisions have not been taken. In my view, there has, in these circumstances, been an unreasonable delay in taking the decisions. On the department’s own terms, three months was the period within which it undertook to take the decisions. When consideration is given to this fact, the nature of the discretion to be exercised, the limited amount of information upon which the decisions would be based and the fact that most of the information is contained in the applications themselves, any delay beyond three months is unreasonable in the absence of special circumstances.⁴¹ It has, accordingly, been established that the applicants have established the ground of review envisaged by s6(2)(g) of the PAJA. The applicants are consequently entitled to appropriate relief for this infringement of their fundamental right to lawful administrative action.

[40] The applicants seek further relief. Apart from the usual costs order, they also seek orders that: in the event of their applications for disability grants being successful, the respondent commence paying those grants with effect from the day on which each applied, that payment commence ‘within 30 calendar days after the date of this order’ and that their grants continue to be paid on a monthly basis for as long as the applicants remain entitled to them; in the event of their applications for disability grants being unsuccessful, the respondent provide the applicants’ attorneys with reasons for the decisions within 30 calendar days of the date of the order; that the applicants be granted a 90-day period, from the date on which their attorneys are notified in writing of the reasons for an adverse decision, within which to lodge internal appeals; and that the orders be served on the respondent care of the State Attorney.

[41] I am prepared to grant some, but not all of this relief. It seems to me that, because the respondent’s department is, as has been seen, dysfunctional, it makes sense, and it is justified, to spell out for its officials that they need to implement any decisions they may take that are favourable to the applicants, and that they must do so with reasonable haste. A case is made out in this respect, although it will be necessary to amend one of the time periods. I also can see no difficulty in ordering that the orders be served on the State Attorney’s office: this is a practical way of trying to ensure prompt compliance with orders.

[42] I take the view, however, that there is no basis for granting orders to the effect that reasons must be provided for adverse decisions within 30 days. This flies in the face of regulation 25(2) which requires reasons to be given contemporaneous with, and as an essential part of, the decision to refuse an application for a grant. Similarly, I see no basis for orders determining when the 90-day period for the lodging of internal appeals begins: s10 of the Social Assistance Act provides in unambiguous terms that ‘such applicant may within 90 days after the date on which he or she was notified of the decision, appeal in writing against such decision to the Minister, who may confirm, vary or set aside that decision’.

[D] THE ORDERS

[43] I shall now make orders that seek to address what I have termed the systemic problem as well as to address the specific infringements of the rights of the applicants.

[44] I make the following order.

(a) The Registrar is directed to serve copies of this judgment (which he may do by registered mail) on:

(i) the Premier of the Eastern Cape Province;

(ii) the chairperson of the Social Development Standing Committee of the Eastern Cape Provincial Legislature;

(iii) the Minister of Social Development in the National Government;

(iv) the chairperson of the Human Rights Commission; and

(v) the chairperson of the Public Service Commission.

(b) In respect of the case of Ms Vumazonke (case number 110/04), the respondent is directed to pay the applicant’s costs.

(c) In respect of the case of Mr Matitibala (case number 826/04):

(i) the respondent or a duly authorised official in her department is directed to consider and decide upon the abovenamed applicant’s application for a disability grant, and to inform the applicant in accordance with regulation 25 of the Social Assistance Regulations, through his attorneys, of the decision, within 30 calendar days of the date of this order;

(ii) in the event of the respondent or a duly authorised official in her department approving the applicant’s application for a disability grant, the respondent is directed to commence payment of the grant, with effect from 23 September 2003, within 30 calendar days of such decision being taken, and to continue to pay the applicant a disability grant on a monthly basis thereafter for as long as he qualifies for it;

(iii) this order may be served on the respondent care of the State Attorney, 29 Western Road, Central, Port Elizabeth;

(iv) the respondent is directed to pay the costs of this application.

(d) In respect of Ms Matiwane (case number 143/04):

(i) the respondent or a duly authorised official in her department is directed to consider and decide upon the abovenamed applicant’s application for a disability grant, and to inform the applicant in accordance with regulation 25 of the Social Assistance Regulations, through her attorneys, of the decision, within 30 calendar days of the date of this order;

(ii) in the event of the respondent or a duly authorised official in her department approving the applicant’s application for a disability grant, the respondent is directed to commence payment of the grant, with effect from 15 July 2003, within 30 calendar days of such decision being taken, and to continue to pay the applicant a disability grant on a monthly basis thereafter for as long as she qualifies for it;

(iii) this order may be served on the respondent care of the State Attorney, 29 Western Road, Central, Port Elizabeth;

(iv) the respondent is directed to pay the costs of this application.

(e) In respect of Mr Plaatjies (case number 2541/03):

(i) the respondent or a duly authorised official in her department is directed to consider and decide upon the abovenamed applicant’s application for a disability grant, and to inform the applicant in accordance with regulation 25 of the Social Assistance Regulations, through his attorneys, of the decision, within 30 calendar days of the date of this order;

(ii) in the event of the respondent or a duly authorised official in her department approving the applicant’s application for a disability grant, the respondent is directed to commence payment of the grant, with effect from 15 July 2003, within 30 calendar days of such decision being taken, and to continue to pay the applicant a disability grant on a monthly basis thereafter for as long as he qualifies for it;

(iii) this order may be served on the respondent care of the State Attorney, 29 Western Road, Central, Port Elizabeth;

(iv) the respondent is directed to pay the costs of this application.

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C. PLASKET

JUDGE OF THE HIGH COURT

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