Manyetsa v South African Social Security Agency (2123/07) [2009] ZANWHC 13 (14 May 2009)

IN THE

HIGH COURT OF SOUTH AFRICA

(NORTH WEST, MAFIKENG)

CASE NO: 2123/07

In the matter between:

KELEBOGILE

ALUCIA MANYETSA APPLICANT

VS

THE

SOUTH AFRICAN SOCIAL SECURITY AGENCY RESPONDENT

CIVIL MATTER

_________________

JUDGMENT

KGOELE AJ.

[A] INTRODUCTION

[1] An opposed application to compel the South African Social Security Agency to supply the Applicant’s attorney with full written reasons for its refusal of the Applicant’s social grant served before me.

[2] The relief sought in the Applicant’s notice of motion were as follows:

The Respondent is ordered to supply the Applicant’s attorney with full written reasons for its refusal of the Applicant’s social grant within 15 days of date of this order.

In the event that the Respondent fail to comply with order 1 above, the Applicant is granted leave to approach this honourable Court on the same papers, amplified where necessary, for an order that the Respondent’s refusal of the Applicant’s application for a social grant be set aside and an order that the Applicant’s social grant be approved.

That the Respondent is ordered to pay the costs of this application.

That such further and/or alternative relief be granted to the Applicant as the honourable Court deems fit.

[3] At the beginning of the proceedings counsel for the Applicant Advocate Zwiegelaar informed the Court that the Applicant is abandoning prayer 1, 2 and 4 of the notice of motion as the reasons had become known and further that the court need only hear the submissions in respect of prayer 3 which involves costs.

[B] SUBMISSIONS IN RESPECT OF COSTS:-

[4] Advocate Zwiegelaar stressed the importance of outlining a brief background about this matter to put things in a proper perspective and in support of her submission that the Respondent should be ordered to pay the costs of this application on a punitive scale. The said background is as follows:

[5] The Applicant gained knowledge of the fact that her application for a disability grant submitted on the 16 February 2005 has been declined when The South African Social Security Agency (“the Agency”) caused a letter attached as Annexure “CM3”dated 29 July 2005 directed by the Head of the Department of Social Services, Arts, Culture and Sport, North West (“the Head of the Department”), to be furnished to the attorney of record of the Applicant, Messrs J Visser Attorneys, Hartswater under cover of a letter dated the 4 January 2007, a copy of which has been attached as part of Annexure “CM3”.

[6] The reasons given in the letter dated the 29 July 2005 to the Applicant reads as follows:

“In terms of section 3 of the Social Assistance Act, (No. 59 of 1992) and regulation 2(3) all applications for a grant for disabled persons are subject to a medical assessment. In the light of this assessment you do not qualify.”

[7] In the other letter dated the 4 January 2007 it was stated that the medical assessment reasons for the disapproval of the Applicant’s application for a disability grant will be forwarded to the offices of the aforesaid attorneys in due course.

[8] The Applicant had prior to the lodging of this application on the 13 February 2007 lodged an application in this Honourable Court under case number 265/2007 for an order directing the Respondent to furnish her attorneys of record with full written reasons, which application was dismissed on the 7 June 2007 by the Honourable Judge President Mogoeng, who found that the Applicant should have first communicated her dissatisfaction about the reasons supplied to the Respondent before

she lodged the application.

[9] Subsequent to the dismissal of the Applicant’s aforesaid application and on the 23 August 2007 the Applicant’s attorneys of record sent a letter dated the 16 August 2007 to the Respondent by prepaid registered post demanding to be furnished with full written reasons for the refusal of the Applicant’s

application for a disability grant within thirty days of receipt of the aforesaid letter.

[10] The Respondent has not only failed to furnish the reasons as demanded, but also to respond to the aforesaid letter.

[11] The aforesaid failure of the Respondent led to the lodging of the application herein on the 1 November 2007.

[12] Service of the application herein has been effected on the Respondent on the 6 November 2007.

[13] Notice of opposition has been given on behalf of the Respondent on the 21 February 2008.

[14] The Respondent’s answering affidavit has been delivered on the 5 August 2008.

[15] It appears from Annexure “KT2” to the answering affidavit, being a copy of the medical report of the Applicant that the assessment committee disapproved the Applicant’s

application on the16 February 2005 for the following reasons:

“Only painful neck, no serious illness – mild stage”

[16] Advocate Zwiegelaar submitted that it is clear from the aforesaid that it was only after the delivery of the answering affidavit on the 5 August 2008 that:

[16.1] More than three and a half years after the submission of the Applicant’s application for a disability grant on the 16 February 2005;

[16.2] Nineteen months after the Agency in the letter of 4 January 2007 undertook to furnish the attorneys of record of the Applicant herein with the medical assessment reasons for the disapproval of the Applicant’s application for a disability grant;

And

[16.3] eleven month after the lodging of the application herein on the 1 November 2007:–

that the reasons for the disapproval of her application for a disability grant came to the knowledge of the Applicant.

[17] She finally submitted that the Applicant was entitled to approach this Honourable Court for an order directing the Respondent to furnish her with full written reasons for the disapproval of her application for a grant. Although the Applicant has now received the reasons, the Respondent should still be ordered to pay the costs of this application on a punitive scale because:

Respondent must have realised that it had no defence at all from the start of the proceedings

they nevertheless decided and continued to oppose the application

they had already undertaken in a letter to give further reason

they were also aware that the points in limine they are raising do not assist as they were already decided upon by other judges in this division and against them.

[18] Advocate Ngomane on behalf of the Respondent submitted on the contrary that this Court should order the applicant to pay the costs of this application. She maintained that the Respondent had given the Applicant full reasons in the form of a letter attached to their answering affidavit as “KM3” long time ago and therefore the application was not necessary.

[19] She further submitted that there was no case made in the notice of motion or replying affidavit for even an order of costs to be made against the Respondent. Instead, the Applicant should be the one who is ordered to pay the costs of these proceedings as they were not supposed to have approached this court without exhausting internal remedies first.

[C] “KM3” (REASONS FOR REFUSAL)

[20] The history of this matter as depicted by the Applicant’s counsel was not disputed by the Respondent at all. “KM3” and the letter attached to it referred to by Respondents’ counsel as full reasons supplied to the Applicant read thus:

Enquiries L Mothibi

Date 03 January 2007

Tel No 018 381 3717

J Visser Attorneys

P.O Box 110209

Hadison Park

8306

Sir/Madam

Please find attached hereto letters pertaining to the outcome of the following applicants;

Lobakeng B

Maatlane M

Madia H

Magage M

Makgare G

Manyetsa K

Maribe SJ

Marope G

Martin G

Maruping K

Mashori G

Mashori O

Mathe K

Msiza S

Mocumi N

Modiege K

Further be informed that medical assessment reasons for the outcome of the application will be forwarded to your office in due course.

Acting Regional Executive Manager

5209091022089 HEAD: SOCIAL SERVICES, ARTS,

KA

MANYETSA CULTURE AND SPORT

PRIVATE BAG X6

P.O BOX 700 MMABATHO

TAUNG

STATION 2745

8580

95707 TAUNG STATION P O (POST OFFICE)

Dear Sir/Madam

APPLICATION FOR A GRANT FOR A DISABLED PERSON IN TERMS OF THE SOCIAL ASSISTANCE ACT, 1992 (ACT NO. 59 OF 1992)

Your application for a grant for a disabled person refers.

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 disabled persons are subject to a medical assessment. In the light of this assessment you do not qualify.

In accordance with Section 10(1) of the Act and Regulation 25 (2) you have the right to appeal against this decision not to award a grant to the Member of the Executive Council for Welfare in WRITING at the following address within 90 days from date of receipt of this letter:

MEC FOR SOCIAL

DEVELOPMENT

MMABATHO

2735

Tel: 0800 601 011

Fax: 018 384 8632

If there is any uncertainty with regard to this notification kindly contact your local welfare office.

Yours Faithfully

Head of Department

[21] It is inconceivable how the Respondent can say that they complied with the statutory obligations imposed on it in section 14(3)9b)(ii) and 18 of the Act after making an undertaking in the said “KM3” to furnish the medical assessment reasons for the disapproval of the Applicant’s application for a disability grant to the attorneys of record of the Applicant. By so doing the Agency has effectively conceded to the fact that, their letter attached to “KM3” dated 29/07/2005 does not contain sufficient reasons to enable the Applicant to appeal or apply for review and/or comply with section 14(3)(b)(ii) and 18 of the Act.

[22] It is even more inconceivable how the Respondent can still persist with its aforesaid denial in view of the fact that:

the Honourable Justice Landman J held in paragraph [30] and [36] of the judgement in the matter of Matlakala Marriam Motsage versus the Chief Executive Office of the South African Social Security Agency, case number 1026/2008 delivered on 28 August 2008 that to state in a reply to an application for a disability grant that a person is not disabled is not a reason; it is a conclusion,

The same view was also held by the Honourable Justice Hendricks J in paragraphs [36] and [37] of his judgement in the matter of Kebogile Lobisa Ngamole versus South African Social Security Agency, unreported case number 1033/2008 and four other matters delivered on 18 the September 2008: Again the Honourable Justice Landman J held in paragraphs 2.14 and 2.15 of his judgement delivered in the matter of Batleng Grief Koen versus South African Social Security Agency and two other matters, unreported case number 832/2008 delivered on 20 November 2008 that:

“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 of 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.

The result is that Mrs Koen would, prima facie, be entitled to an order that SASSA provide the reasons for turning down her application.”

[23] It is clear from the aforesaid history of this matter that it was only after the delivery of the answering affidavit on the 5th day of August 2008 that the reasons for the disapproval of her application for a disability grant came to the knowledge of the Applicant.

[24] I am of the view that the Applicant was entitled to approach this honourable court for an order directing the Respondent to furnish her with full written reasons for the disapproval of her application for a disability grant. The reasons have been provided as at present. She is therefore only entitled to costs.

[25] A punitive costs order has been called for by the Applicant’s counsel. The manner in which the Respondent conducted the opposition of the Applicant’s application, coupled with the failure by the Agency to at least reply the letter written to it after the first application by the Applicant was dismissed is objectionable and justifies a punitive costs order to be granted against it.

[E] ORDER

[26] The Respondent is order to pay the costs of this application on an attorney and client scale

_____

A.M.

KGOELE

ACTING

JUDGE

OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 19 MARCH 2009

DATE OF JUDGEMENT : 14 MAY 2009

COUNSEL FOR APPLICANT :

ADV ZWIEGELAAR

COUNSEL FOR RESPONDENTS : ADV NGOMANI

ATTORNEYS FOR APPLICANT : NIENABER & WISSING ATTORNEYS

(Instructed by RORICH, WOLMARANS & LUDERITZ INC.)

ATTORNEYS FOR RESPONDENTS : S.S MAGABANE

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