Bangate and Others v Chief Executive Officer of the South African Social Security Agency (1099/2008, 1104/2008, 1115/2008) [2009] ZANWHC 14 (14 May 2009)

IN THE

HIGH COURT OF SOUTH AFRICA

(NORTH WEST, MAFIKENG)

In the matter between:

LEBOGANG

WILLEMINA BANGATE APPLICANT

CASE NO: 1099/2008

MARIA

LEMME APPLICANT

CASE NO: 1104/2008

TSIKANE

GRACE MONCHONYANE APPLICANT

CASE NO: 1115/2008

AND

THE

CHIEF EXECUTIVE OFFICER OF THE RESPONDENT

SOUTH

AFRICAN SOCIAL SECURITY AGENCY

CIVIL

MATTERS

________________

JUDGMENT

KGOELE AJ.

[A] INTRODUCTION

[1] Three opposed applications to compel the Chief Executive Officer of the South African Social Security Agency (SASSA) to consider and decide on the Applicants’ applications for a social/disability grants and to advise the Applicant’s attorney in writing of his decision served before me. In view of the fact that the applications concern similar factual backgrounds and raises, more or less the same issues, Counsel for the Applicants and the Respondent agreed that the matters be consolidated. The matters were as a result argued by both counsel at the same time.

[2] Applicants brought an application against the Respondent to be ordered to:

consider and decide on the Applicants’ applications for social / disability grants;

advise the Applicants’ attorneys in writing of his decision within 15 days of the date of the order. The Applicants have sought that in the event the Respondent refusing the Applicants’ applications for social grants, the Respondent shall provide the Applicants’ attorneys with written reasons for the decision having been taken within 15 days of the date of the order.

[3] Further, the Applicants have sought that in the event that the Applicants’ social / disability grants are approved:

3.1 the Respondent is ordered to pay the Applicants’ the amount which would have been paid to them as social / disability grants during certain periods;

3.2 the Respondent is ordered to pay the Applicants interests 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 Applicants, for a certain period;

3.3 the Respondent is ordered to continue paying the social grant to the Applicants for as long as they legally qualify for the grants.

[B] SUBMISSIONS

[4] Respondent in his answering affidavit raised the following points in

limine:

- That the application is premature, the Applicants should have exhausted the internal remedies first before coming to court.

- Reference to sec 40 of Act 2002 to this application is improper and misleading as it is not applicable in this application.

- That prescription had already run as it is more than three years after the date upon which the claim arose.

I must pause here to mention that the last two points in limine

mentioned above fell off as counsel for the Respondent did not

persist with them. No submissions were made by the Respondent’s

counsel in these regards both in his heads of argument and during

arguments in court.

[5] Therefore the only issue which was before this court to consider was

whether the applications were premature or not.

[6] Ms Bangate, Ms Lemme and Ms Monchonyane contend in their

application that at the time of the lodging of the applications herein

on the 12 May 2008 they had not been in receipt of the grants as

applied for and that they had also not been informed by the Agency

of the outcome of their applications for the said grants.

[7] Ms Bangate, Ms Lemme and Ms Monchonyane avers in paragraph 21

of their respective founding affidavits, that they were at the time

when they deposed and attested to the founding affidavit herein, i.e

on 11 April 2008 “not aware whether my application has been

processed, whether it has been approved or refused or where it is

in the process of consideration”.

[8] On the other hand, Advocate Senatle on behalf of the Respondent submitted that the reasons why the Respondent says the applications are premature is because the Applicants had been long informed of the outcome of their applications for the grants by means of letters, copies of which were attached to the answering affidavit as Annexure “T1”.

[9] Respondent’s counsel further contends that the reasons for the refusal of their applications for the grants were also given to them in the aforesaid letters.

[10] Annexure “T1” to the answering affidavit in the application of Ms Bangate is a computer generated letter dated 19 January 2006 directed to Ms

Bangate at P O Box 315, Tlakgameng, 8616 informing her that her application for a disability grant has been unsuccessful.

[11] In the instance of Ms Lemme’s application Annexure “T1” is likewise a computer generated letter which is dated 6 July 2005 and directed to Ms Lemme at P O Box 2, Tlakgameng, 8616.

[12] In the application of Ms Monchonyane Annexure “T1” is also a computer generated letter. It is dated 9 June 2004 and directed to Ms Monchonyane at P O Box 7, Pudimoe, 8581.

[13] Advocate Senatle’s main contention is that the Applicants should have appealed the decision of the Respondent if they were not happy with the replies they received, rather than having rushed to court before exhausting the internal remedies available to them. When they did not receive a reply within three months, they should have construed that as a failure to take a decision or be provided with reasons, thus amounting to refusal. They should have appealed, or requested reasons or have their matters reviewed.

[14] He referred to Section 18 of Act 13 of 2004, Rakgalemo David Gaobuse & 17 others v SASSA, an unreported judgment in this division (Case No 58/2007), Section 10 (1) of Act 13 of 2004, and many other authorities in support of his arguments.

[15] Advocate Zwiegelaar on behalf of the Applicants, reply on these submissions is that:-

No proof that the said letters were served on the Applicants nor that they were posted by registered post has been given

Respondent failed to attach copies of their applications for grants to the answering affidavits to show that the addresses referred to in the letters are in fact the address as stated in their applications.

The Agency failed to proof that delivery of the letters had been effected on the Applicants and therefore their averments that they had not been informed by the Agency of the outcome of their applications at the time of the lodging of the Applicants herein have to be accepted.

Further, that it was only in the answering affidavits delivered on the 30 September 2008 for the first time divulged to the Applicants that their applications had been disapproved without informing them of the reasons for that.

Lastly, that the point in limine raised by the Respondent has been dealt with in several judgments of this division and was dismissed.

[C] APPLICATIONS

PREMATURE OR NOT

[16] As correctly submitted by both counsels, the point in limine and issues relating to it has been previously raised in other SASSA matters in this division.

[17] I am of the view that the unreported judgement of Rakgalemo David Gaobuse and 17 Others by the Honourable Judge President Mogoeng of this division, case no: 258/2007 referred to, is distinguishable from the facts of the three applications that are before me as the outcome were in that matter already known but not the reasons.

[18] In the Koen and others matter referred to by Advocate Zwiegelaar, also an unreported decision by my brother Landman J, case no. 823/08, 1098/07, 917/08, the same letter which was purportedly send to the Applicants in these applications before me was the subject issue.

Landman J dealt extensively with all the issues relating to whether the applications were premature or not to wit:-

Is it permissible for SASSA to “inform” Mrs Koen of its decision by post?

If so, was the letter sent to Mrs Koen at an address chosen by her?

Did the content of the letter comply with SASSA’s statutory obligation to inform Mrs Koen of the reasons for its decision?

Should Mrs Koen have sought further reasons from the CEO (exhausted her internal remedies) or was she entitled to seek the assistance of this court?

What is to be done now?

Whether or not the Applicant has exhausted all the internal remedies as provided by Section 7(1) of PAJA.

[19] I fully agree with the judgment and the reasons as set out. The reasons given equally apply in the applications before me and need not be re-emphasised. I am satisfied that the notices were sent to the respective Applicants, they may have not received them. The risk of not having received them would be theirs. This is so because all the Applicants have not filed a replying affidavits to address and clarify this issue.

[20] “Ts1” in all the three applications before me is worded almost the same as the letter in the Koen matter and read thus:

“After due consideration, we regret to inform you that your application has been unsuccessful, for the following reasons: in terms of Section 3 of the Social Assistance Act, No 59 of 1992, and regulation 2(3) all applications for a grant for a disabled person are subject to a medical assessment. In the light of this assessment you do not qualify.”

and / or

“Your application for a grant has not been recommended by the assessment panel.”

[21] In dealing with the issue of whether the letter (in the Koen matter – Mrs Koen’s letter) complies with SASSA’s statutory obligation to inform the Applicant (Mrs Koen) of the reasons for its decision Landman J said the following in paragraph 2.14 page 8 of his judgment:-

“The letter conveys the information that the application for a grant was refused on the basis of the medical assessment. It informs Mrs Koen that she is not regarded as disabled at all or to the extent that she qualifies for a disability grant. It does not provide any details which she would need to take an informed decision on whether she should lodge an appeal. The letter does not set out the reasons why she does not qualify. SASSA has not complied with the obligations imposed upon it by Section 14(b) (ii) of the act.”

[22] In the Motsage’s matter case no: 1026/08, another judgment by Landman J, the following was held:-

“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 saying that she is not disabled. This is not a reason, it is a conclusion.”

[23] The reasons given by the Honourable Judge for not accepting the reasons as supplied by the letters in the above quotes are equally applicable here. I therefore come to the conclusion that the Applicants in all the three applications before me are entitled to an order that SASSA provide them with reasons for turning down their applications.

[D] COSTS

[24] Advocate Zwiegelaar on behalf of the Applicants made submissions that a punitive costs order in the form of costs on an attorney and client scale be awarded against the Respondent.

[25] It is indeed true that the Applicants now know that their applications have been disapproved. Despite this, I am of the view that costs should be awarded against the Respondent on a punitive scale.

[26] The Respondent should have at least at their earliest time when the Applicants engaged the services of HST to assist them, simply Responded to the Applicants by attaching the same “Ts1” they referred to in this matter rather than resorting to defend the action. Though, everybody has the right to defend any legal action or application, I do not think that it was necessary to do so. The Respondent still had the alternative opportunity to request the Applicants to give them time to look for and search in their filing system for the copies of “Ts1” to enable them to answer to the notices in terms of Section 3 of Act 40 of 2002 (which they in their answering affidavit conceded to have received) if they needed more time. It is also important to note that “Ts1” only became available at the time the Respondents filed their answering affidavit, which is a period after the proceedings in this matter has been initiated and even postponed to some other dates.

[27] Further, the points in limine which the Respondent relied upon in this matter had been dealt with in the matter of Koen on similar facts. Advocate Senatle on behalf of the respondent submitted that Landman J failed in the Koen judgment to deal with the issue raised in this application of ‘premature applications’ despite it being raised in that matter as a point in limine. I do not agree with his submission. The submissions and/or reasons advanced by Advocate Senatle in support of the point in limine in these applications before me are exactly the same as the one that were as previously said, extensively and seriatim dealt with in the Koen matter.

[28] I therefore come to the conclusion that the manner in which the respondent conducted their opposition in these applications is disturbing to say the least.

[E] ORDER

[29] Consequently, the following order is made in all three applications:-

[29.1] Condonation is granted for the non-compliance with the time frame.

[29.2] The Respondent is ordered to provide the Applicant’s Attorney with full written reasons for the decision to refuse the Applicant’s applications within fifteen (15) days of the date of this order.

[29.3] The Respondent is ordered to pay the costs in each of the above-mentioned three applications on an attorney and client scale.

_____

A.M. KGOELE

ACTING

JUDGE

OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 26 FEBRUARY 2009

DATE OF JUDGEMENT : 14 MAY 2009

COUNSEL FOR APPLICANT :

ADV ZWIEGELAAR

COUNSEL FOR RESPONDENTS : ADV SENATLE

ATTORNEYS FOR APPLICANT NIENABER & WISSING ATTORNEYS

(Instructed by RORICH, WOLMARANS &

LUDERITZ INC.)

ATTORNEYS FOR RESPONDENTS : S.S MAGABANE