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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE HIGH COURT : MTHATHA

CASE NO. 1033/07

In the matter between:

EUNICE MDODISA Applicant

And

MEMBER OF THE EXECUTIVE

COUNCIL FOR SOCIAL DEVELOPMENT,

EASTERN CAPE Respondent

JUDGMENT

MILLER, J.;

[1] The applicant seeks a wide range of relief but the essential nature of the application is a review of a decision to stop the payments of the applicant’s disability grant.

[2] `The applicant, who is 50 years of age, suffers from Asthma. She first applied for a disability grant in 2002. She was awarded a temporary grant which lapsed on 31 October 2002. She thereafter, during 2003, again applied for a disability grant. She received no response to such application so she again, on 08 June 2005, made application for a disability grant.

[3] She kept going on a monthly basis to her paypoint to no avail until December 2005 when she received a payout in the amount of R780.00 for that month. In January 2006 she received an amount of R10720.00, being payment of her grant for January 2006 together with back pay for the months November 2004 to November 2005. She thereafter received grant payments every month up till and including April 2007. When she went to the paypoint in May 2007 she was not given her grant payment but instead she was given a payslip which stated inter alia, “Client info not in payfile. No credit on card. Bal : R0.00”. She received no further payment and this application was then instituted.

[4] The applicant avers that she received no communication in the form of a letter concerning her application. She at no stage prior to the institution of these proceedings was informed that she had been granted a temporary disability grant for 12 months. She, in fact, believed that the grant she had been awarded was a permanent grant. Such belief was in my view, not unreasonable because she received, including the back payments, twenty nine monthly grant payments.

[5] The respondent states that the grant applied for by the applicant was awarded in 2004 as a 12 month temporary grant for the period November 2004 to 31 October 2005. The respondent alleges that a letter dated 04 October 2005 was written to the applicant and delivered to her at the paypoint. A copy of that letter is annexed to the answering affidavit as annexure “C”. The applicant, as already stated, denies that she ever received a letter. There has also been no proof put up that applicant received the letter. There is also no explanation as to why the letter was written almost a year after the first payment of the grant was meant to be paid. There is also no affidavit filed deposed to by the official who allegedly handed the letter to the applicant. In these circumstances, I do not accept the allegation that the letter was given to the applicant. See Dakela vs MEC for Welfare and Ano. Bhisho 853/02 (unreported), Nyatela vs MEC for Social Development ECD 637/06 (unreported), Kulati vs MEC for Social Development SECLD 512/04 (unreported). There is also no explanation given as to why payments for such grant were only commenced after the date the grant was due to lapse.

[6] The respondent also states that the grant for which the applicant made application on 08 June 2005 was rejected on the grounds that “Asthma and hypertension can be well controlled on regular medication, causing little, if any permanent functional impairment”. The respondents has also annexed to the answering affidavit an undated letter addressed to the applicants postal address in which she is informed of this rejection. Again there is no proof put up to show that the letter was ever posted or delivered to the applicant and I accordingly accept the applicant’s allegation that she never received such letter.

[7] The respondent states that a letter dated 22 December 2006, was written to the applicant and sent to her by registered post on 12 January 2007. In this letter the applicant is informed that she was awarded a temporary disability grant for a period of 12 months and that the grant will expire and payment will cease in March 2007. The respondent has placed documentation before the Court proving that such letter was sent to the applicant’s postal address by registered mail and that the applicant’s address has been confirmed as correct by a councillor of the local municipality. Despite this the applicant alleges that she did not receive such letter. Whether or not the applicant received the letter has, in my opinion, little or no bearing in this matter. It only adds to the confusion in this matter. According to the letter, the 12 month temporary grant expired in March 2007. This is not at all in line with the respondent’s allegation that the 12 month temporary grant expired on 31 October 2005.

[8] The awarding of the disability grant to the applicant was done in terms of the provisions of the Social Assistance Act, 95 of 1992. Regulation 24(1)(c) of that Act provides that a social grant shall lapse when the period of temporary disability has lapsed in the case of a grant to a disabled person. Regulation 2(3) provides that a temporary grant will continue for a continuous period of not more than six months or not more than one year.

[9] Regulation 25(1) provides that the Director-General shall if he or she approves an application for a grant, inform the applicant in writing of such approval and the date on which approval was granted. Such letter should also, if the grant awarded is a temporary grant, inform the applicant that the grant is of a temporary nature and also when it will lapse, that the applicant may reapply for a grant after the lapsing of the grant and that the applicant has a right to appeal against the decision of the period for which the grant has been awarded.

[10] As already stated, the applicant never received the letter informing her that she had been awarded a temporary grant that would expire on 31 October 2005 and the respondent has not proved that such letter was ever sent or delivered to her. The applicant states that when she started to receive grant payments in December 2005 and that payments continued on a continuous monthly basis into 2007, she believed that she had been awarded a permanent disability grant. Such belief was, in the circumstances, entirely reasonable. The submission that she had a legitimate expectation to receive such payments on an indefinite basis subject to the normal review procedure of permanent grants is accordingly accepted as being correct.

[11] A temporary grant lapses by operation of law as it is subject to a resolutive condition. Such lapsing is therefore not brought about by an administrative action and is therefore not subject to review. However, the decision to make a grant a temporary grant is administrative action and once that decision was made the applicant then had the right to receive notification of the decision and to make representations through an appeal procedure. She was denied these rights. Further, as already stated, the applicant had a legitimate expectation that there would be a proper review and hearing before the payments of her grant were stopped. No such review took place and in these circumstances the respondent cannot rely on or invoke the automatic lapsing provision of Regulation 24(1)(c). See Mpofu vs MEC Department of Welfare and Population Studies, Gauteng and Ano WLD 2848/99 (unreported).

[12] Nick de Villiers in an article titled Social Grants and the Promotion of Administrative Justice Act (SAJHR, Vol 18, Part 3, 2002 at page 338) makes the following comments:

“[A] valid determination of temporary disability is a jurisdictional event upon which the lapsing depends, and the failure to properly apply the regulations or to properly inform the beneficiary of any limitation on his rights renders the entire condition null and void ab initio. A void condition is simply no condition, and the temporary grant continues until stopped on review.”

and

“… the beneficiary who has not been told of the limitation on the grant will have a substantive legitimate expectation that his or her grant will continue until lawfully stopped.”

I, with respect, agree with these comments and believe that they are relevant and of application in this matter.

[13] The applicant has applied to be exempted in terms of the provisions of section 7(2) of the Promotion of Administrative Justice Act, 3 of 2000 (PAJA) from the obligation, if applicable, to exhaust internal remedies. The grant awarded to the applicant was subject to the condition that it be temporary. That condition, for the reasons stated above, is, in this matter, null and void. There is therefore no need to appeal against a nullity and the applicant is accordingly not required to note an appeal. See Njalula vs MEC Department of Welfare, Eastern Cape 1710/03 SECLD (unreported).

[14] She has also applied in terms of Section 9(1) of PAJA for an extension of the 180 day period referred to in Section 7(1) of PAJA. There was no need for the applicant to make such application. Section 7(1)(b) of PAJA provides that proceedings for judicial review must be instituted no later than 180 days after the date on which the person concerned was informed of the administrative action or became aware of such action. In this matter the applicant only became aware of the administrative action of stopping her payments at the end of April 2007. This application was instituted during June 2007, that is, before the lapse of 180 days.

[15] I am accordingly of the view that the respondent was not entitled to rely upon or invoke the automatic lapsing provisions of Regulation 24(1)(c) and that the grant awarded to the applicant continues until stopped on review. The stopping of grant payments to the applicant was therefore unlawful.

[16] In the result, the following order is made:

1. The decision to terminate the payment of the applicant’s disability grant is declared to be invalid and of no force and effect and is set aside.

2. The respondent is ordered to re-instate the applicant’s disability grant within a period of three weeks from the date of this order, such re-instatement to be with effect from the date of the termination of payments of the applicant’s disability grant, that is 31 April 2007.

3. It is declared that applicant is entitled to payment of all arrears owing under her disability grant from 01 May 2007 todate.

4. The respondent is ordered to pay the applicant all unpaid moneys owed to her as a result of the unlawful termination of the payments of her disability grant, together with interest thereon at the legal rate.

5. The respondent is ordered to pay the costs of the application.

JUDGE OF THE HIGH COURT

HEARD ON : 06 MARCH 2009

DELIVERED ON : 16 APRIL 2009

ATTORNEY FOR APPLICANT : Ms E. N. Nyobole

: of Voyi Nyobole Attorneys

COUNSEL FOR RESPONDENT : Mr N. Mtshabe

INSTRUCTED BY : The State Attorney

: c/o S. Z. Jojo Attorneys

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