Mdeni v MEC for Social Services, Arts, Culture and Sport in the North-West Province (355/05) [2005] ZANWHC 47 (17 June 2005)

IN THE HIGH COURT OF

SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.: 355/05

In the matter between:

NONZIMA

ROSELINE MDENI APPLICANT

AND

THE

MEMBER FOR THE EXECUTIVE

COUNCIL FOR SOCIAL SERVICES,

ARTS,

CULTURE AND SPORT IN THE

NORTH

WEST PROVINCE RESPONDENT

JUDGMENT

TLHAPI AJ:

[1] This is an application which came before this Court in terms of the Regulations Regarding Grants and Financial Awards to Welfare Organizations and to Persons in need of Social Relief of Distress in terms of the Social Assistance Act, 1992 (Act 59 of 1992) regulations R1233 of 23 November 2001.

The application was served on the Respondent and the matter is not opposed and was heard on the 9th June 2005.

An Order is sought in the following terms:

1.1 Reviewing and setting aside the Respondent’s decision that the Applicant is temporarily disabled;

1.2 Declaring that the Applicant is permanently disabled as envisaged by regulation 2(3)(a) and 23(8) of R1233 of 23 November 2001;

1.3 Declaring that the stoppage of the Applicant’s social grant during May 2004 to date is unlawful, null and void;

1.4 Directing the Respondent’s to:

1.4.1 re-instate the Applicant’s disability grant as a permanent grant with effect from the date of this Order;

1.4.2 pay interest on such arrear grant monies at 15% per annum calculated from June 2004 and monthly from the 1st of each month thereafter, do so within 15(fifteen) days of the date of this Order;

1.5 Directing the Respondent to pay the costs of this application; and

1.6 Granting such further and alternative relief as the Court may deem fit.

[2] Mrs Gutta on behalf of the Applicant applied for the grant of the order as prayed for and on being questioned by this Court whether sufficient details had been given to enable the grant of the Order, her response was that the Respondent had not opposed the matter and that it was incumbent on them to provide the information sought by the Court.

[3] Having said the above I now visit the affidavit of the Applicant in support of this Application.

3.1 In paragraph 4 and 5 she states that she was involved in a motor vehicle accident, injured her right elbow, had pins inserted in the elbow, that as a result she cannot stretch her arm. She also states that she is unfit for any employment and cannot support herself and her dependants.

3.2 In paragraphs 6,7 and 8 she states that she is a disabled person in terms of the Act and its Regulations and therefore qualifies for a grant and had applied for one in the Molopo Region.

3.3 In paragraph 9 she states “my disability was permanent because, at the time of my application, it would last for more that a year”.

3.4 In paragraphs 10-13 she states that her application for a disability grant was approved, she received payment until May 2004. Further that when the grant was approved she was never informed that it was subject to limitation, was temporary or would lapse automatically at the expiry of a certain period.

3.5 In paragraph 14 she states that she believes that the grant was stopped because the Respondent decided that her disability was temporary and that it lapsed as envisaged in 24(1)(c) of the Regulations.

3.6 In paragraph 15 she states that the Respondent’s decision to suspend the grant was:

(i) unauthorized and in breach of regulation 2(3)(a);

(ii) materially influenced by an error of law relating to the test of disability and/or the test of permanent disability;

(iii) ignored relevant considerations or was based on irrelevant considerations;

(iv) arbitrary and capricious and not rationally connected to the purpose of the Act and the purpose for which it was taken; and

(v) so unreasonable that no reasonable person would have made it.

2.7 In paragraph 16 she states that the finding that she is temporarily disabled and the stoppage of her grant breached her right to social security and social assistance in terms of Section 27(1)(c) of the Constitution of the Republic of South Africa, 1996.

[4] I have taken the opportunity to study the abovementioned regulations in as far as they affected the Applicant and mention below relevant provisions:

In the preamble to these regulations the following two words are defined:

4.1 “Assess” means the evaluation of information provided on the forms prescribed by the Director-General or the physical examination of a person in order to determine disability or care dependency for the purpose of recommending a finding for the awarding of grants;

4.2 “Assessment panel” means a group of individuals appointed by the Director-General in accordance with regulation 2(4), who have the relevant experience and the expertise to assess disability and care dependency;

4.3 An individual qualifies for a social grant if he/she meets the requirements of Section 2(1) of the regulations;

4.4 Section 2(3) provides that: “A person shall be eligible for a social grant for disabled persons only if, in addition to compliance in terms of sub-regulation (1)-

(a) he or she is a disabled person……whose disability is confirmed by a medical report from a medical officer or by a report from an assessment panel: Provided that such report shall only be valid for a period of three months from the date of assessment: Provided further that the assessment has confirmed whether the disability is-

(i) permanent in that the disability will continue for more than 12 months; or

(ii) temporary in that the disability will continue for a continuous period of not less than six months or for a continuous period of not more than 12 months, as the case may be;

4.5 Section 23 provides for the suspension or variation of the amount of grants on review.

4.5.1 According to Section 23(2)(a)(i) the Director-General may review a grant if there is documentary proof of the change in the financial circumstances of the recipient or in terms of Section 23(a)(ii) where there is documentary evidence of changes in the medical circumstances of the recipient of the grant and that in these circumstances the review is to be conducted in terms of 23(8)(a);

4.5.2 One of the consequences of such review may be suspension of the grant as happened to the Applicant herein. It is however also a requirement in this rule that the Director-General “shall inform the beneficiary of the reasons in writing at least three months before such suspension is effected and also inform such recipient of the 90 day period and the procedures to be followed in terms of sub-regulation (6) of the restoration of the grant.

4.5.3 Sub-regulation (6) provides that the Director-General may restore the grant from the date on which the grant was suspended “Provided that the application for restoration shall be made within 90 days of suspension.

4.5.4 Sub-regulation (8) provides that in respect of social grants for disabled persons, “no further medical assessment shall be required where a permanent classification has been made: Provided that the Director-General may, on his discretion, at any stage after the lapsing of a period of 5 years. . . require the beneficiary to undergo a medical examination”

4.5.5 The rules further provide for the lapse of the grant under certain circumstances.

[5] In order for this application to succeed the Applicant’s papers should clearly indicate first, into which category she fell and for how long she had been recipient of the grant when it was suspended. The Applicant has been prejudiced for a lengthy period of her right to a social grant and all effort should be made, circumstances permitting to ensure speedy reinstatement of such grant.

She only states that the grant was stopped during May 2004. The Applicant is only approaching the Court about a year later. What has been happening in the interim? Has she attempted to correct the situation? What was the conduct of the officials of the Respondent after the grant was suspended, i.e if the Applicant ever approached them to address the situation?

[6] Where the application is unopposed the papers of the Applicant should be such that all the necessary information is available to enable the Court to make an appropriate order alternatively if the Court is of the view that certain information is lacking or not clear the Applicant should assist the Court in providing such information. This is especially so where the Court is requested to interfere with an administrative function of a state department, where such conduct not only prejudices the Applicant but has also infringed upon her right to a social grant as envisaged in the relevant Act 59/1992 and its regulations and in the Constitution.

[7] The status of disability is according to the Regulations evaluated by information on the prescribed forms and on the physical examination by a medical officer or evaluation by the assessment panel who have the relevant experience and expertise to assess disability.

[8] In terms of Section 2(3)(a) of the regulations it is stated that when the assessment is made there shall be clear indication to the Applicant into which category she falls. On confirmation by a medical officer or by report of the assessment panel the disability will be permanent where such disability continues for more than twelve months, or temporary where such disability shall be continuous for not less than six months or for a continuous period of not more than twelve months.

It is also provided in the regulations that the Director-General may review the grant in the event of there being documentary proof of the change in the financial or medical circumstances of the recipient. It is a further requirement that the Director-General shall give reasons in writing at least three months before such suspension and shall inform the recipient of the 90 day period of the procedures to be followed for the restoration of the grant. The said grant may be restored from the date on which the grant was suspended provided that “application for restoration was made within the 90 days of suspension”. In the event of the recipient having been declared permanently disabled, no further medical assessment is required provided that the Director-General may require a medical examination at any stage after the lapse of a period of five years.

[9] If the Applicant was on a permanent disability grant, then for this application, to succeed she just has to show that the Respondent suspended the grant without complying with Section 23 of the Regulations and that she had been prejudiced thereby. In this event the Court can order a reinstatement of the grant retrospective to the date of suspension.

[10] If the Applicant was unjustifiably declared temporarily disabled then she must place before this Court such necessary evidence supported by evidence of an expert to show:

• that she had placed for re-evaluation all necessary information before the assessment panel showing that she was not temporarily but permanently disabled;

• that the determination of temporary disablement was incorrect and unjustified; and

• that such determination infringed upon her right to a permanent social grant as envisaged in the relevant Act and the Constitution.

If the Court is satisfied, then it may declare the Applicant permanently disabled and refer the Applicant to the relevant panel of assessment for further attention.

CONCLUSION:

It is for the reasons above, and having regard to the nature of the order applied for that I am of the view that no order can be granted, because of insufficient evidence relating to the category into which the Applicant falls as determined in terms of the regulations. The procedures to be followed are clearly set out in the regulations, and it is only where the Applicant can show that she has met the requirements and has been unjustifiably affected and prejudiced that she can succeed.

ORDER:

In the premises, the following Order is made:

1. There being no application at the hearing to amend the papers, this matter is accordingly dismissed.

____

V

V TLHAPI

ACTING

JUDGE OF THE HIGH COURT

Date of Hearing : 9 June 2005

Date of Judgment : 17 June 2005

Appearances:

For the Applicant : Adv N Gutta

For the Respondent : No Appearance

Attorneys for the Applicant : Motlhabani Attorneys

10