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IN THE HIGH COURT OF SOUTH AFRICA

IN THE KWAZULU-NATAL HIGH COURT

DURBAN CASE NO.7940/07

In the matter between

P N CELE AND OTHERS Applicants

and

SOUTH AFRICAN SOCIAL SECURITY AGENCY Respondent

And in the matter of the hearing of considerations regarding the Practice directive

J U D G M E N T

Delivered 28 May 2009

WALLIS J.

[1] The hearing in this case arises out of the implementation of the practice directive contained in paragraphs [34] to [37] of my judgment in Cele v The South African Social Security Agency and 22 Related Cases.¹ On 27 March 2008 the Judge President issued practice directive 30 incorporated in the Practice Manual : KwaZulu-Natal that this should be adopted as the practice of the Courts in this Division.

[2] In paragraphs [36] and [37] of my judgment it was envisaged that there would be regular reports to the Judge President or Deputy Judge President and that in due course the terms of the practice directive might need to be considered and revised in the light of practical experience with its implementation. On 16 February 2009 the firm of Fathima Karodia addressed a letter to the Judge President and the Deputy Judge President asking that the practice directive be reviewed and in particular that the notice periods contemplated in the practice directive be abbreviated. In consequence of that letter the Deputy Judge President directed that I should hold a hearing to consider these issues. This judgment flows from that direction.

[3] On 9 March 2009 I wrote to Fathima Karodia and the State Attorney indicating that I would conduct a hearing on these issues on 26 March 2009. They were directed to deliver an affidavit or affidavits by no later than 19 March 2009 setting out the difficulties experienced by that firm in dealing with social security cases in accordance with the practice directive and explaining in full, by reference to actual examples of cases in which that firm was involved, the nature of those difficulties. The affidavit also had to deal with the proposed changes to the practice directive and the justification for those changes. Furthermore I ordered the State Attorney to deliver a full report by no later than 23 March 2009 explaining how the practice directive had been implemented, the nature of any problems experienced in its implementation and its effect in addressing the problems experienced by applicants for social security grants. The report was also required to deal with the issues raised by Fathima Karodia Attorneys. Lastly a copy of my letter to Fathima Karodia and the State Attorney was to be circulated to all attorneys to whom the practice directive had originally been sent in accordance with paragraph [37] of the judgment in Cele, requiring any attorney who wished to make submissions or representations to deliver an affidavit setting out those submissions or representations. None responded to that invitation.

[4] When the matter came before me on 26 March 2009, Mr Govender, the State Attorney, asked that it should be further adjourned to enable his office to complete its investigations and to provide full information to the court, bearing in mind that they had had very little time to deal with matters and that the Easter vacation and a number of public holidays in April might make it difficult to assemble the relevant information. I accordingly adjourned the hearing to the 15 May 2009 and directed that the information to be placed before me on behalf of either the South African Social Security Agency (SASSA) or the Minister for Social Development should be embodied in affidavits that would be made available to Mr Diplall, who represented the firm of Fathima Karodia. In addition I requested Mr Diplall to contact all the attorneys who had previously received notice of these proceedings urging them if they had anything to contribute to the proceedings to come forward and make their contribution.

[5] The postponement to the 15 May 2009 has ensured that the court has been furnished with very substantial information concerning this type of application and the impact that the practice directive has had, not only on the work of the court but on the ability of applicants for relief related to social grants to obtain such relief. Mr Diplall deposed to a comprehensive affidavit together with schedules and annexures identifying specific cases and running to 81 pages. I received a 12 page report from the State Attorney and the Deputy State Attorney and two affidavits from Ms Maloka, the Deputy Director-General (Programme Manager: Independent Tribunal for Social Assistance Appeals) in the Department of Social Development amounting in total to some 88 pages. In addition Mr Diplall sent a letter to all the attorneys who had previously been involved in these cases. He urged them if they had anything to contribute to raise these matters at this stage, whether by providing re-enforcement to the problems he had outlined, or adding further problems or making suggestions regarding changes to the practice directive. As he said in his letter:

“It is essential that while we [the attorneys] have this opportunity that full advantage is taken of it to present our side and the role we play in making justice accessible to the indigent.”

Notwithstanding his eloquent appeal no other firm of attorneys has come forward save for one that indicated that they no longer engage in social welfare work. This is unfortunate but it is mitigated to some extent by the fact that Mr Diplall has considerable experience in this field and he was able to provide comprehensive assistance in his submissions. I express my gratitude to him and Mr Govender, who together with Mrs Naidoo, represented his office for their assistance in addressing a legal and social problem of considerable importance to those who need to seek the aid of social grants in order to survive in our society.

[6] The pre-litigation process contemplated in the judgment in Cele is that before any litigation is contemplated a letter of demand will be sent either to SASSA, if the problem relates to the provision of a grant, or to the Minister of Social Development, if the problem relates to an appeal against the refusal of a disability grant on the grounds that the person concerned is not sufficiently disabled to be entitled to such a grant.² The judgment did not lay down any period for compliance with such a demand. According to Mr Diplall his firm used to give a period of 30 days, but it has now reduced that period to 14 days. His evidence, and this is not refuted and accords with what I was told when I delivered my judgment originally, is that no response is ever received to such letters of demand.³

[7] The practice directive only becomes operative at the stage when there has been no or no adequate response to a letter of demand and litigation is contemplated. I mention this because in Mr Diplall’s original letter to the Judge President it was suggested that the practice directive imposed a serious limitation on his clients’ constitutional right to have access to courts. However that right only comes into focus at the stage when litigation is contemplated and not before when the claimant is seeking to assert their claim by other means not involving litigation. In fixing these periods I was mindful of that right, but the existence of that right does not mean that it is unconstitutional for a statute, a rule of court or a practice directive to require that notice be given and a period of time elapse before proceedings can commence. That is precisely what the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 does. The period of 30 days provided in that Act is the same as the period I fixed in respect of claims against SASSA. The period of 60 days in regard to the Minister of Social Development was fixed in order to accommodate the greater difficulty in setting up appeals against the refusal of disability grants which I will refer to in greater detail later. The question of constitutionality depends not only on whether the rule in question limits the right of access to courts but also on whether that limitation is justifiable in terms of section 36 of the Constitution. In the end result Mr Diplall did not submit that the time limits I fixed are unconstitutional so it is unnecessary to give this any further consideration.

[8] The practice directive requires a person who intends to institute legal proceedings concerning their entitlement to a social grant to give notice of that intention to the State Attorney and to furnish a copy of the notice to either SASSA or the Minister of Social Development, depending upon the nature of the claim. In the case of claims that fall to be addressed to SASSA the period of notice of 30 days. In the case of appeals against refusals of disability grants the notice must be addressed to the Minister of Social Development and the period is 60 days. The practice directive prescribes the contents of this notice.

[9] Whilst I have some sympathy with the suggestion by Mr Diplall that this notice should be combined with the original letter of demand I do not think that at this stage this is desirable. The thrust of my judgment is that SASSA or the Minister, as the case may be, should respond to the original letter of demand which should not serve the purpose of anticipating litigation. The primary purpose of the notice required by the practice directive is to involve the State Attorney in the process on the basis that earlier demands have been ineffective and its intervention may result in matters being addressed without the need to resort to litigation. To conflate the two would effectively serve to convert the State Attorney’s office into an administrative branch of SASSA and the Department of Social Development, which was neither my intention nor its proper function.

[10] It may be possible once the State Attorney falls out of the picture, which for reasons which will be dealt with below may happen in the early part of next year, to require of anyone seeking legal relief in relation to social grants that they furnish only one notice containing the information required by the practice directive and constituting also a letter of demand. However, that is a matter that can be dealt with when the stage is ripe for the State Attorney’s involvement prior to litigation to cease.

[11] The original letter from Fathima Karodia dealt only with claims against the Minister of Social Development in relation to appeals against the refusal of disability grants. Similarly no submissions were made in the course of the hearing in relation to claims against SASSA. After the hearing I raised this issue with the State Attorney and I have been advised by him and Mr Diplall jointly that the reason for this is that the issues in relation to the processing of initial grant applications appear by and large to have resolved themselves. Where letters in terms of the practice directive are received by the State Attorney’s office these are referred to SASSA and, so I have been informed, the problem is addressed and a response is furnished by SASSA. This is a substantial advance over the situation that prevailed last March and the apparent improvement in service delivery in this area is to be commended. Accordingly the focus of the review of the practice directive falls upon the claims against the Minister of Social Development and the longer period of 60 days that was fixed in regard to notices relating to claims for appeal dates to be fixed.

[12] The steps taken by the Minister for Social Development in order to address the problem of appeals are dealt with in the first affidavit of Ms Maloka. When the Social Assistance Act 13 of 2004 came into effect it vested in the Minister the function of attending to appeals in cases where applications for social assistance grants were refused. This is particularly pertinent to disability grants. Initially the Minister exercised this function on an ad hoc basis through the Legal Services Directorate of the Department, but this proved unsatisfactory and a very substantial backlog of some 47000 appeals rapidly accumulated. In order to address the problem of these appeals an amendment was effected to the Act in 2008 and the Independent Tribunal for Social Assistance was established to deal with these appeals. At the same time the Minister issued a Ministerial Determination to SASSA instructing it to render administration support services to his Department and to the newly established Tribunal as part of a collaborative effort to process these social assistance appeals urgently.

[13] On 1 May 2008 (after the judgment in Cele was handed down) the Minister appointed 128 panel members to the Independent Tribunal. These were attorneys, advocates and medical practitioners in private practice as well as some members from civil society. Most of the panel members were based in Gauteng. As they are not employed full-time in the work of the Tribunal the scheduling of appeals is necessarily dependent on the ability to constitute the Tribunal. In addition to the appointment of the Tribunal members a support structure for the Tribunal was established within the Department.

[14] As at 30 March 2009, 62 981 appeals had been lodged with the Tribunal of which 34322 came from KwaZulu-Natal. More than 80% of these related to disability grants. At present further appeals are coming into the Tribunal’s Registry at a rate of approximately 2 500 matters per month. This demonstrates the scale of the challenge facing the Tribunal.

[15] Between May 2008 and April 2009 the Tribunal dealt with 13 586 matters. Whilst this is substantial, if it continued to deal with matters at that rate the backlog would grow rather than diminish. That challenge has been addressed. For example of relevance to this Province is the fact that initially only one panel sat in KwaZulu-Natal. In August 2008 and subsequently three panels have sat on a weekly basis within this Province. Since November 2008 four panels have been assigned to KwaZulu-Natal operating respectively in Durban, Pietermaritzburg, Ulundi and the Midlands. These panels are addressing both backlog cases, including matters where the High Court has been approached and new incoming appeals. The result is that 7 881 matters have been dealt with in KwaZulu-Natal of which 3 900 were matters that were the subject of High Court proceedings and 3 981 were other appeals, both new appeals and appeals forming part of the backlog.

[16] The Department recognises that more will have to be done to eliminate the backlog and deal with appeals as they arise on an expeditious basis. It has accordingly established a Pilot Regional Tribunal Office in Springfield Park, Durban with effect from 1 March 2009 which it anticipates will be fully operational by 1 September 2009. It is anticipated that this office will expedite the process of arranging for appeals and dealing with the appeals because those wishing to appeal against the refusal of an application for a grant will have direct access locally to the services of the Tribunal. Whilst that office will also render assistance to the Free State and North West Provinces it is of fundamental importance in relation to service delivery in KwaZulu-Natal.

[17] As a result of these efforts as at 20 April 2009 there were 3 051 outstanding matters in respect of which proceedings have been commenced in the High Court. The Department is scheduling appeal hearings in these matters at a rate of approximately 250 per week during the period from August to November 2009. In addition it is scheduling appeals in a further 125 matters a week some of which are drawn from the backlog and some of which are new incoming matters. A single panel will adjudicate those matters. (Whilst I am only concerned with the situation in KwaZulu-Natal it is comforting to know that similar offices are being established in other areas such as the Eastern Cape and Gauteng.)

[18] The view of the Department is that the implementation of the practice directive has greatly assisted to lend order to the process of dealing with these appeals. The Department complains that in two respects there is non-compliance with the practice directive, save in respect of a few firms of attorneys, one of them being the firm of Fathima Karodia. They say that they do not receive initial letters of demand as contemplated in paragraph 52 of the practice directive nor are they furnished with copies of the notice to the State Attorney as required by paragraph 34 of the practice directive. In the result they first become aware of the intervention of legal practitioners when they receive a notice via the offices of the State Attorney. The Department accepts that this may be because notices are being sent to a variety of points instead of to a single address. To that end I was asked to vary the practice directive by including in it the addresses to which letters of demand and notices under paragraph 34 should be sent. That is a reasonable and practical suggestion and Mr Diplall endorsed it.

[19] A second problem being experienced by the Tribunal is that whilst since May 2008 they have sought to priortise appeals in cases where High Court proceedings have been commenced they find that a very large proportion of the appellants do not attend the scheduled hearings notwithstanding the fact that notice has been given to their attorneys. The default rate is approximately 70%. Where it is possible for the Tribunal to deal with the matter on the basis of the papers before it and in particular the medical records with which it has been furnished it does so. Nonetheless, however, non-attendance is a problem. It was not suggested that this is a problem that can be addressed in any way by the practice directive but it is as well to be aware of it so that blame is not wrongly laid at the door of the Department for failing to deal with appeals. I do however note that one of the complaints made by Fathima Karodia is that in some cases their clients have attended appeal hearings but no hearing has been held and they have gone away having wasted time without ay result. Again it seems to me that this is not a matter that can be dealt with by the court but it would be helpful for the various parties engaged in dealing with these cases to explore these instances and try to identify and remedy the problem that gives rise to this happening.

[20] Lastly there is a problem with the communication of the results of appeals. Even where appeals have been decided the attorneys complain that they are not made aware of the results. Thus in a number of the cases drawn to the attention of the court by Fathima Karodia the position is that the appeals have in fact been disposed of. Of 75 matters listed by Fathima Karodia, in 6 cases the appeal had been upheld and in 23 cases it had been dismissed. In 21 cases the appeal had been considered but additional information was being sought in order to dispose of the matter. In those matters where there was no record of any adjudication the appeal hearing had been rescheduled for dates in September 2009. None of this appears to have been adequately communicated to the attorneys and particularly not the result in those instances where the appeal had been disposed of.

[20] In order to address this problem it seems to be appropriate, and Mr Govender and Mr Diplall were agreed on this, to amend the practice directive in two respects. Firstly to require the attorney to provide a fax number to which the results of an appeal can be communicated to the attorneys and secondly to require the Tribunal to communicate the result of any appeal to the attorney as well as the applicant in cases where an attorney is on record.

[21] The most significant point to emerge in the course of the hearing was that the implementation of the practice directive has not, as feared by many attorneys when Cele’s case was argued before me, resulted in additional delays in dealing with appeals. I was told by Mr Diplall that in almost all cases where the attorney gives a notice in terms of paragraph 34 of the practice directive they are furnished with a date for the appeal hearing by the end of the 60 day period. Usually, he says, the date is received after about 55 days and to that extent he complains that a response is being left to the very last minute. The appeal is then scheduled for hearing approximately three months later. In the result when an attorney follows the practice directive an appeal hearing will ordinarily take place in about 145 days or somewhere between four and a half and five months. When that is compared with the time taken by issued legal proceedings in order to procure such dates the improvement is dramatic. Before the practice directive was instituted the position is that instead of giving a notice application papers would be issued and served on the Minister and the State Attorney. Bearing in mind that almost all cases were initially undefended a short period would elapse and the attorney would then be in a position to apply for a date for hearing. It was noticeable that in practice the attorneys would tend to process these applications in batches and in the result the application for a date would be made some three to four weeks after the application papers were initially issued. As recorded in the judgment in Cele, when I heard that case in March 2008 the Registrar was allocating dates for these applications in August, some five months later. In the result if an applicant proceeded by way of application in the High Court a period of nearly six months would elapse before they obtained a date for hearing. Even if on that date the matter could be resolved by way of the allocation of a date for the hearing of an appeal, that date would nonetheless be two to three months in the future.

[22] The end result is that in the past when applicants resorted to legal proceedings it would take at least eight to nine months and the incurring of significant legal costs for them to secure a date for the hearing of an appeal. Since the implementation of the practice directive that period has been cut to between four and a half and five months. In addition it has become unnecessary to incur legal costs and the congestion that afflicted the court’s rolls has been removed. The directive has accordingly been beneficial in a number of areas but most particularly in the area of securing to those entitled to receive social assistance grants the grants to which they are entitled. To those aggrieved by the refusal of such grants their right to fair administrative action has been reinforced a where their appeals are successful their right to receive social assistance has been strengthened. From the perspective of the court and those seeking access to it the removal of this factor that caused such substantial congestion has enhanced access to justice.

[23] Both Mr Govender and Mr Diplall accepted that these beneficial effects have flowed from the implementation of the practice directive. It is accordingly only necessary to vary it in the minor respects already dealt with above. There remains one other matter. Mr Govender pointed out that once the Regional Tribunal Office is functioning properly it should be possible for the office of the State Attorney to fall out of the picture because, provided proper and adequate notices as contemplated by the practice directive are served upon the Tribunal Office, it should be possible for matters to be resolved without the need for the State Attorney’s intervention. That in turn would be beneficial in freeing up resources in his office to attend to other matters.

[24] I accept that once the Tribunal Office is functioning in a way that enables matters to be dealt with without the intervention of the State Attorney, the practice directive can be amended to remove the need to serve notices on the State Attorney before litigation. In that event it may also be possible to restrict the number of notices that need to be served to a single notice embodying the information set out in paragraph 34 of the practice directive. However, caution suggests that it would be better for the present system to continue in operation until the Tribunal Office is fully functional and the court can be given the assurance that the State Attorney’s continued involvement in these matters prior to litigation has ceased to be necessary. Accordingly for the time being the practice directive will continue in operation on the basis that notice shall be given to both the State Attorney and the Minister of Social Development or SASSA as the case may be. If the system is then running smoothly and no longer requires the involvement of the State Attorney that can be brought to the attention of the Judge President or the Deputy Judge President in the early part of 2010, at which time there will be practical experience of the operations of the Regional Tribunal Office for some three to four months. Assuming that the Office is then discharging its functions as anticipated the practice directive can be further varied to remove the need for notice to be given to the State Attorney. However that should not be done until the State Attorney and those attorneys interested in these matters, such as Mr Diplall and his firm, are satisfied that the operations of the Regional Tribunal Office are sufficient to address any difficulties without the State Attorney’s involvement.

[25] In the result the revised practice directive flowing from this reconsideration will be as follows.

(a) Before there is any contemplation of litigation an appropriate letter of demand should be addressed either to SASSA or to the Minister of Social Development depending upon the nature of the claim. That letter of demand must set out the identity of the claimant and the basis of the claim and provide sufficient information to enable the claim to be investigated and dealt with appropriately.

(b) If no satisfactory response follows from the letter of demand so that there is a need to contemplate litigation, before an applicant may issue application papers out of the Registrar’s office in an application seeking relief relating to or arising from an application for a social assistance grant in terms of the Social Assistance Act 13 of 2004 or its predecessor they shall be obliged to deliver a notice to the State Attorney’s office in KwaZulu-Natal marked for the attention of the officer appointed by the State Attorney for that purpose and containing the following details:

(i) the name and identify number of the applicant for relief;

(ii) the type of grant to which it relates;

(iii) where the grant relates to a person other than the applicant, as in the case of a child support grant, the name of that other person and their identity number and where a child support grant is sought in respect of a child who is not the child of the applicant a brief description of the relationship between the applicant and the child and the reason why the applicant claims a child support grant in respect of that child;

(iv) where the applicant is seeking a disability grant the nature and anticipated duration of the disability;

5. the administrative centre where the application for the grant was lodged and where possible the date of the application as well as proof of that application in the form of the receipt issued to the applicant in terms of Regulation 8(3)(b) of the Regulations in GN R418 or failing that other information that will enable the State Attorney to identify the application in the records of SASSA;

6. where the complaint is that an appeal has been lodged and no appeal convened or conducted a copy of the notice of appeal must be furnished;

7. the nature of the applicant’s complaint, such as that an application has been made and not processed; an application has been refused and the grounds of the refusal or an appeal (or both) are sought; or that a grant originally made has been withdrawn and the applicant seeks reasons for the withdrawal or the reinstatement of the grant (or both) or any other complaints;

8. a copy of the letter of demand addressed to SASSA or the Minister of Social Development as the case may be, with proof of delivery and a copy of any response;

(ix) the name and fax number of the attorney representing the applicant.

(c) A copy of this notice must at the same time be delivered to SASSA or the Minister of Social Development whichever is appropriate. In the case of claims regarding appeals both the initial letter of demand and the notice contemplated in paragraph (b) of this practice directive must be sent to the:

Pilot Regional Tribunal Office

20 Intersite Avenue

Springfield Park

Umgeni Business Park;

or to:

Private Bag X901

Pretoria 0001

and marked for the attention of the Independent Tribunal.

In the case of other applications concerning grants the initial letter of demand and the notice contemplated by paragraph (b) should be sent to SASSA at one of the following addresses:

Private Bag X14

Ashwood 3601;

or

3 Clubhouse Place

Hillclimb Road

Westmead 3601.

On receipt of the notice the State Attorney shall enter it into a register and allocate a reference number to it and thereafter in liaison with SASSA, or the Independent Tribunal in the case of complaints about appeals, endeavour to respond to and resolve the complaint. If no response is forthcoming within one month of receipt of the notice in the case of a complaint against SASSA or two months in the case of a complaint against the Minister of Social Development in regard to an appeal, or the response is unsatisfactory the applicant may then commence legal proceedings. The notice and the response (if any) shall form part of the application papers and the Registrar will only issue the application papers if they are accompanied by a certificate signed by the applicant’s attorney recording that there has been proper compliance with the practice directive and that there has either been no response or an inadequate response to the notice. Unless the application papers are accompanied by such a certificate, or a certificate of urgency in the case of an urgent application, the Registrar will not accept or issue the application.

500. The terms of the revised practice directive are to be circulated by the State Attorney to the interested parties identified in paragraph [37] of the judgment in Cele.

(e) The State Attorney is required to furnish a report concerning the implementation of this practice directive to the Deputy Judge President in the first week of December 2009. That report must be accompanied by Mr Diplall’s comments on the contents of the report. The report should deal specifically with the question whether the functioning of the Pilot Regional Tribunal Office is such that the need to furnish pre-litigation notices to the State Attorney can fall away. It shall also deal with the extent of any continuing backlog in the disposal of appeals. To this end it would be helpful for the report to incorporate the type of information that was embodied in Ms Maloka’s affidavits concerning the functioning of the Independent Tribunal.

DATE OF HEARING 15 MAY 2009

DATE OF JUDGMENT 28 MAY 2009

COUNSEL FOR APPLICANTS MR P DIPLALL

APPLICANTS’ ATTORNEYS FATHIMA KARODIA

COUNSEL FOR THE RESPONDENT MR K GOVENDER

RESPONDENT’S ATTORNEYS STATE ATTORNEY, KWAZULU-NATAL

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