Sikutshwa v MEC for Social Development, Eastern Cape Province and Others (ECJ 036/2005) [2005] ZAECHC 18; 2009 (3) SA 47 (TkH) (12 May 2005)

FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO : 036/2005

PARTIES: SIKUTSHWA v MEMBER OF

THE EXECUTIVE COUNCIL FOR SOCIAL

DEVELOPMENT, EASTERN CAPE PROVINCE

AND OTHERS

REFERENCE NUMBERS -

Registrar: 847/2004

DATE HEARD: 6 MAY 2005

DATE DELIVERED: 12 MAY 2005

JUDGE(S): GOOSEN AJ

LEGAL REPRESENTATIVES -

Appearances:

for the State/Applicant(s)/Appellant(s): Mr Pangwa

for the accused/respondent(s): FS Gagela

Instructing attorneys:

Applicant(s)/Appellant(s): Caps Pangwa and Associates

Respondent(s): SC Vutula & Co

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION)

CASE NO: 847/2004

DATE HEARD: 6 MAY 2005

DATE DELIVERED: 12 MAY 2005

REPORTABLE

In the matter between:

FELIX MKHULULI SIKUTSHWA Applicant

and

MEMBER OF THE EXECUTIVE COUNCIL FOR SOCIAL

DEVELOPMENT, EASTERN CAPE PROVINCE First Respondent

THE PERMANENT SECRETARY

FOR THE DEPARTMENT OF SOCIAL DEVELOPMENT,

EASTERN CAPE PROVINCE Second Respondent

JUDGMENT

Administrative law – Promotion of Administrative Justice Act – section 5 (2) – whether the 90 day period constitutes a bar to an application to compel the furnishing of reasons – held that section 5(2) does not preclude an application to compel reasons prior to the expiry of the 90 day period – an administrator is under a duty to deal with a request for reasons in terms of the principles and values set out in section 195 of the Constitution.

Administrative action – duty to furnish reasons in terms of section 5(2) of PAJA - omnia praesumuntur rite esse acta – proof of a letter in the applicant’s file advising the applicant of the refusal of application held to be insufficient in the circumstances to justify an inference that the letter was posted to and received by the applicant. Dispatch of such a letter not exempting respondent from obligation to furnish reasons on request.

Social assistance - citation of parties - review proceedings and proceedings to compel furnishing of reasons in terms of PAJA - held that the citation of individual functionaries exercising power in terms of legislation does not constitute misjoinder of such functionaries.

GOOSEN, A.J:

The Applicant launched this application on 14 May 2004 in which he sought an order declaring the Respondents’ failure to consider Applicant’s application for a disability grant in terms of the provisions of the Social Assistance Act1 to be unconstitutional.

In addition, the Applicant sought orders directing the Respondents to consider the application within 30 days of the granting of the order and, in the event of the application not being approved, an order directing the Respondents to furnish reasons for the refusal and to furnish copies of all documents in support of such reasons.

The Notice of Motion contains an alternative prayer in the event that the application has already been refused, in which the applicant seeks to have such decision to refuse the application for a social grant reviewed and set aside.

The application was opposed, the notice of opposition was filed on 8 June 2004, and ultimately for reasons not disclosed, an opposing affidavit was filed on 8 October 2004. In that affidavit the Respondents raise certain objections in limine, to which I shall revert hereunder.

At the commencement of argument I was informed by Mr. Pangwa , who appeared for the Applicant, that the “merits” of the application were no longer in issue and that all I had to determine was the question of costs. The resolution of the merits flowed, it seems, from the fact that the Respondents had annexed to the opposing affidavit the reasons for the refusal of the grant that had been sought by the Applicants in a letter addressed to the Respondents in March 2004. I was somewhat surprised by the attitude adopted by the Applicant given the nature of the reasons furnished by the Respondents. I was told that the Applicant was not persisting with the alternative review relief that is embodied in the notice of motion.

In respect of the determination of the costs of the application, the parties were in agreement that I would need to consider the merits of the application, and it was on this basis that the application was argued.

This brings me to a preliminary aspect in regard to the nature and substance of the application. As is indicated the primary relief sought in the notice of motion is based on the supposition that the Applicant’s application for a social grant had not been considered by the Respondents. The thrust of the founding affidavit however is that the application is one to obtain reasons for the decision taken by the Respondents.

The founding affidavit makes it clear that the Applicant’s application for a social grant has in fact been considered by the Respondents and that he was informed (albeit informally and verbally) in December 2003 that his application had been refused.

At the time no reasons for the decision were given to him and notwithstanding enquiries made by him he was not informed of the reason for the decision. It was this failure to furnish the Applicant with reasons for the decision that ultimately prompted him to approach his attorney for legal assistance. Consequent upon this a letter requesting the reasons for the decision was addressed to the Respondents on 15 March 2004. No response to this request was forthcoming and consequently on 14 May 2004 the application was launched.

Apart from a dispute as to whether the Applicant was informed in writing of the decision in December 2003, the facts are common cause.

Respondents’ counsel, Mr. Gagela did not seek to make anything of the disparity between the case made out in the founding affidavit and the relief sought in the notice of motion. Both parties, as I understood it, treated the application as one seeking to compel the furnishing of reasons.

The form of the notice of motion and the terms in which it is formulated, it seems to me, is a function perhaps of inexperience on the part of the Applicant’s representative and possibly a slavish use of a precedent. Whatever the reason for the disparity, this is an instance where regard should be had to the substance rather than the form of the application.2

In respect of the Applicant’s entitlement to costs, it was submitted by Mr. Pangwa, that the Respondent’s were obliged to furnish reasons for the refusal of the disability grant application when requested to do so in terms of section 5 of the Promotion of Administrative Justice Act (PAJA).3 The fact that the Respondents had failed to respond to the request made in March 2004 entitled the Applicant to bring the Application.

The Respondents only furnished the reasons sought when they filed the opposing affidavit in October 2004! No attempt was made to provide the reasons sought prior to this and, so it was submitted, had the reasons been furnished in response to the request, the application would have been avoided. In these circumstances the Respondents should be ordered to pay the costs of the application.

The Respondents’ opposition to the application, as set out in the opposing affidavit deposed to by one Rasmussen, is based a number of grounds, some of which were raised in the papers as in limine objections. I shall deal with each of them hereunder.

The first of these concerned the alleged lack of jurisdiction of the Court to determine the matter. This objection was abandoned, and rightly so, prior to argument of the matter.

The second issue raised concerns the alleged misjoinder of the Second Respondent. A further point raised in argument, although not dealt with in the opposing affidavit, was based on an interpretation of section 5(2) of PAJA, the submission being that in the light of the fact that the application was launched prior to the expiry of the 90 day period provided for in the section, the application was premature and should on that account be dismissed with costs.

Before dealing with these aspects, upon which the Respondents placed heavy reliance, it is necessary to deal with two arguments raised by the Respondents.

Alleged failure to exhaust internal remedies

The Respondent raised this issue in their opposing affidavits and in heads of argument filed on their behalf. The argument was however, not pursued in oral argument before me.

To the extent that Respondent did not expressly abandon reliance on the point, it is necessary to deal with it. I do not consider that there is any merit in the argument. The application is, as I have indicated one concerned with compelling the Respondents to furnish reasons for an administrative decision.

PAJA does not prescribe procedure that must first be followed before recourse may be had to a Court to compel the furnishing of reasons. No such internal procedure, other than the appeal procedure provided for in section 10 of the Social Assistance Act was relied upon.

That section is clearly not applicable in the circumstances. Accordingly section 7(2) of PAJA does not apply. 4

The presumption as to receipt of reasons

In response to allegations made by the Applicant in his founding affidavit to the effect that he was not furnished with reasons for the refusal of the grant the Respondents, in addition to a general denial, allege that:

The applicant was informed of the outcome of his application through a letter that was sent to him by an (sic) ordinary mail. A copy of the aforesaid letter is in the file kept by the department. It is annexed hereto marked Annexure “MR1”. That file contains personal details of the applicant relating to his application. He must have received the letter that was sent to him because it was sent to the address that he gave as his residential address. All the letters that are sent to the applicants are sent with the address of the department endorsed at the back so that they can be returned to the department if they are not delivered. The letter that was sent to the applicant was not returned.

The deponent to the affidavit states that he deposes to facts that are within his personal knowledge unless the context indicates otherwise. He further states that by virtue of his position as Director of Social Assistance he has access to the files of applicants and that he is able to depose to the content of those files.

It is clear that he has no personal knowledge as to whether the letter, allegedly informing the Applicant of the outcome of his grant application, was in fact sent to the Applicant. His allegation that it was sent is based on the fact that there is a copy on the file. The copy, it should be pointed out is one that was reprinted on 21 May 2004. Mr Rasmussen also alleges that the letter was sent to the Applicant’s residential address whereas the copy annexed to the affidavit reflects that it is addressed to a post office box number in Mthata.

There is nothing in the papers to link the postal address to which the letter was allegedly sent to the Applicant. He denies having received the letter.

In heads of argument filed on behalf of the Respondents reliance is placed on the maxim omnia praesumuntur rite esse acta to found a presumption that, since a copy of a letter was kept in the Applicant’s social grant application file, it was in fact dispatched in the ordinary course of business of the Respondent and received by the Applicant.5

A similar argument was raised before Jones, J. in Nomasami Kulati v MEC for Social Development, Eastern Cape. 6 At paragraph 4 of the judgement Jones, J. states:

The first point is whether or not the applicant was notified in writing of the result of her application. I do not think that there is any dispute that the Director-General’s duty to inform the applicant in writing means that the writing must effectively bring the decision to the applicant’s attention in clear and intelligible terms. If the post is the chosen method of doing so this involves proof that a notification was posted to and received by the applicant. Regulation 25 does not authorize sending or delivering the notification by post, which would have brought the provisions of section 7 of the Interpretation Act 33 of 1957 into operation. That section creates a presumption that a letter that is properly addressed, prepaid, posted and registered is received by the recipient unless he or she proves the contrary. This notification was in any event not sent by registered mail. The respondent chose to send the letter by ordinary post.

It is pertinent to note here that, to the extent that the Respondents’ evidence constitutes reliable evidence in respect of the dispatch of the notice, Respondents’ own version is that it was dispatched by ordinary post.

Furthermore there is no allegation on the papers upon which any finding as to the existence of an office routine or practice operative in the Department can be based.

I agree with the views expressed by Jones, J. that in matters of this nature, involving as they do the actions of a Department that has been roundly, and correctly, condemned for its extraordinary inefficiency and laxity, in the absence of evidence as to an efficient office routine, the mere existence of a letter in a file, is an insufficient basis to found reliance upon the presumption referred to in the Cape Coast Exploration matter.

In any event I do not consider that the alleged dispatch of a letter advising the Applicant of the outcome of his application, in which is stated as the reason for the decision: “(Y)our application for a grant has not been recommended by the medical officer”, absolves the Respondents from complying with a request for reasons made in terms of section 5 of PAJA.

Section 5(2) requires that the administrator furnish “adequate reasons”. The mere statement that the grant was not approved because it was not supported by the medical officer does not constitute adequate reasons as envisaged by section 5(2) of PAJA.

A similar finding in respect of a letter in almost identical terms to that allegedly furnished to the Applicant in this matter, was made by Jones, J. in the Kulati matter at paragraph 9 of the judgment, where the learned judge says:

The reason was that the application for a disability grant had not been recommended by the medical officer. This is not a reason at all because it does not explain why the medical officer did not recommend the disability grant. It is a conclusion without the reason for the conclusion. A similarly worded ‘reason’ was held by Plasket J to be insufficient in Vumazonke’s case (para 32). See also the judgment in Bushula and others v Permanent Secretary, Department of Welfare, Eastern Province Government 2000 (2) SA 849 (E) in which the duty to give reasons is fully discussed; and Njajula and April v MEC, Department of Welfare (Cases No 1710/03 and 1599/03 SECLD 11/05/2004).

In the circumstances there is no basis for the contention by Respondents’ that they are excused from furnishing reasons by virtue of the alleged dispatch of the letter advising Applicant of the refusal of his application for a social grant.

Misjoinder of the Second Respondent

The Respondents contended that the application against the Second Respondent should be dismissed by reason of the misjoinder of the Second Respondent in these proceedings.

In making the submission Mr. Gagela relied on the Supreme Court of Appeal judgement in Jayiya v Member of the Executive Council for Social Development, Eastern Cape 7.

In that matter, involving an appeal in respect of contempt of court proceedings brought to enforce a judgment in respect of the payment of a social grant, the Court stated at paragraphs 4 and 5:

Despite the papers served on the respondents having claimed an order that the first respondent make the lump sum payment envisaged in prayer 2(c) and pay the interest envisaged in prayer 3, the Court, following a draft handed up on the day of the hearing, made an order against the second respondent. This order was made without any allegation in the papers that she had been the one responsible for the non-payment and without notice to her that any order in this regard would be sought against her. Looking back on it, one can see how things began to go wrong even at this early stage. The second respondent should not have been cited. Presumably it was thought that the decision-maker had to be brought before the Court. The Promotion of Administrative Justice Act 3 of 2000 in s 1 makes it clear that the Welfare Department is, for the purpose of the Act, an 'administrator', that is to say, an organ of State taking administrative action. 'Administrative action' in terms of s 1 of the Act means

'any decision taken, or any failure to take a decision by -

(a) an organ of State when -

(i) . . .

(ii) exercising a public power or performing a public function in terms of any legislation'.

Section 6 of the Promotion of Administrative Justice Act dealing with the review of administrative action contemplates an order being granted against an 'administrator', who is not necessarily an individual.

A litigant brings a national or provincial department before court by citing the political head of the department in a representative capacity. In the case of a department of the National Government, this would be the responsible Minister. In the case of a provincial department it is the responsible member of the executive council. That is what s 2 of the State Liability Act 20 of 1957 provides. The first respondent should have been the only one. If this had been borne in mind at the outset, some of the procedural mishaps might have been avoided.

In the first instance I am of the view that Respondents reliance upon the Jayiya judgement is misplaced. As indicated the proceedings in Jayiya were contempt of court proceedings and not proceedings that involved a review of an administrative decision, nor even proceedings ancillary to a review.

This matter, as I have already held, is one that is in substance an application to compel the production of reasons for an administrative decision. If regard is had to the provisions of section 5 read with sections 6 and 8 of PAJA, it is clear that these proceedings are ancillary to review proceedings provided for in that Act.

Furthermore, in the Jayiya matter, as the passage indicates, no allegations were made on the papers that the second respondent was responsible for payment of the amount ordered to be paid nor was notice of the order sought given to her.

In this matter the allegation is pertinently made that the Second Respondent is the person to whom statutory functions of the Director-General as defined by the Social Assistance Act have been assigned.

Section 6 of that Act obliges the Second Respondent to consider a social grant application, to investigate if necessary, to formulate an opinion as to the entitlement of the applicant to such grant and to authorise the provision of social assistance. Whilst these powers may be delegated by the Second Respondent, it is the Second Respondent who is the functionary responsible for the administrative process in terms of which social grants are awarded and administered.

The test to be applied in determining whether a party has been misjoined in proceedings involves a determination of the nature of the interest that the party concerned has in the proceedings and whether that party’s interests may be affected by the outcome of the proceedings.

In Amalgamated Engineering Union v Minister of Labour 8 the Appellate Division made it clear that:

The question of joinder should surely not depend on the nature of the subject-matter of the suit, as some of the head-notes I have referred to would seem to imply, but - whether the suit relates to a will, an aqueduct, a partnership or anything else - on the manner in which, and the extent to which, the Court's order may affect the interests of third parties.

The test as to the existence of a direct and substantial interest in the proceedings is well established and has consistently been followed in matters concerning the joinder of parties.9

In this matter, in which an order compelling the production of adequate reasons and in which the Second Respondent’s alleged non-compliance with statutory obligations imposed upon her are at issue, it seems to me that the Second Respondent clearly has a direct and substantial interest in the proceedings.

Section 5(1) of PAJA makes provision for the request for reasons to be directed to “the administrator concerned”. Subsection (2) compels the “the administrator to whom the request is directed” to furnish the reasons requested. In terms of section 8(1) (a) of PAJA a Court may grant an order directing the administrator to furnish reasons.

PAJA defines an administrator to mean an organ of state or any natural or juristic person taking administrative action. The definition of an organ of state, as provided for in terms of section 239 of the Constitution, includes a functionary exercising a public power or performing a public function in terms of any legislation.

In Kate v Member of the Executive Council for Social Development, Eastern Cape 10, Froneman, J. in dealing with the question as to whether the Jayiya judgment precludes the citation of any state functionary other than the political head of the department, states:

As far as the citation of more than one respondent is concerned it is clear that on the particular facts before the Court in Jayiya the second respondent (the Permanent Secretary for Welfare), on the one hand, could not be held responsible for non-payment of the Court's money order because she did not carry the statutory responsibility for money matters in the department, and, on the other, that the order to pay was never made against the first respondent. Whether the second respondent could have been cited for the relief originally claimed in prayers 1 and 4 of the notice of motion, namely to make a decision upon the applicant's application for a social grant and to give reasons if it was refused was not directly in issue on appeal. If the responsibility for making such a decision had indeed properly been delegated to the second respondent then it is not immediately apparent why she could not have been cited as a party to the proceedings. To read the judgment in Jayiya as deciding that no one other than the political head of a government department may be cited as a party to proceedings against the State would be contrary to the explicit permissive (not mandatory) terms of s 2 of the State Liability Act; contrary to a line of cases that held it to be a convenient, but not exclusive, way to sue the State; and also contrary to the long-established practice of citing the actual administrative decision-maker as a party in review proceedings. Nor do the provisions of PAJA envisage that only the 'administrator' as defined in the statute may be sued as a party to the proceedings.

In regard to this latter portion of the passage quoted, reference may be made to Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 11 where, in regard to the citation of the decision maker in review proceedings the Court said that:

Finally, there seems no doubt that, where the review proceedings seek to challenge the decision of an 'officer' performing quasi- judicial or administrative functions and the Rule requires the notice of motion to be 'directed' to him, it means that he must be cited as a party to the proceedings.

The judgement of Froneman, J. continues, as follows:

The Constitution provides that one of the fundamental values of the South African State is the supremacy of the Constitution and the rule of law, that any conduct inconsistent with the Constitution is invalid, that the Bill of Rights binds all instruments of State, that the public administration must be accountable, that the courts have the judicial authority to apply the Constitution and the law, and that an order or decision issued by a court binds all persons to whom and all organs of State to which it applies. An individual functionary is included in the definition of organ of State. To hold in the face of all this that a public State functionary exercising public power cannot be held individually accountable for his or her public duties in court is almost inconceivable. I do not think that outcome could have been intended in the Jayiya judgment.

I agree with Froneman, J. The values and principles enshrined in section 195 of the Constitution require that the public administration be impartial, fair, and equitable; that it be accountable; that people’s needs be responded to and that transparency must be fostered. These values and principles apply to every sphere of government and to organs of state, including individual functionaries performing public functions in terms of legislation.

As was stated by the Constitutional Court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others 12:

[132] The exercise of public power is regulated by the Constitution in different ways. There is a separation of powers between the Legislature, the Executive and the Judiciary which determines who may exercise power in particular spheres. An overarching Bill of Rights regulates and controls the exercise of public power, and specific provisions of the Constitution regulate and control the exercise of particular powers.

[133] Public administration, which is part of the executive arm of government, is subject to a variety of constitutional controls. The Constitution is committed to establishing and maintaining an efficient, equitable and ethical public administration which respects fundamental rights and is accountable to the broader public. The importance of ensuring that the administration observes fundamental rights and acts both ethically and accountably should not be understated. In the past, the lives of the majority of South Africans were almost entirely governed by labyrinthine administrative regulations which, amongst other things, prohibited freedom of movement, controlled access to housing, education and jobs and which were implemented by a bureaucracy hostile to fundamental rights or accountability. The new Constitution envisages the role and obligations of government quite differently.

[134] The constitutional goal is supported by a range of provisions in the Constitution. First, in the Bill of Rights there is the right of access to information and the right to just administrative action. … Secondly, all the provisions of the Bill of Rights are binding upon the Executive and all organs of State. The Bill of Rights, therefore, imposes considerable substantive obligations upon the administration. Thirdly, chap 10 of the Constitution, entitled “Public Administration”, sets out the values and principles that must govern public administration and states that these principles apply to administration in every sphere of government, organs of State and public enterprises. This chapter also establishes a Public Service Commission to promote the values of public administration. Fourthly, chap 9 of the Constitution establishes the office of the Public Protector, whose primary task is to investigate and report on conduct in the public administration which is alleged to be improper. Fifthly, the Constitution establishes the office of the Auditor-General whose responsibility it is to audit and report on the financial affairs of national and provincial State departments and administrations as well as municipalities.

To uphold the interpretation of the Jayiya judgement advanced by the Respondents would in my view fly in the face of the scheme of administrative accountability for which the Constitution makes provision.13

I accordingly find that the Second Respondent was properly joined in these proceedings.

During argument in respect of the proper interpretation of section 5(2) of PAJA I was referred to two unreported judgments in this division, to which reference will be made hereunder.

In both of those matters the point was taken that no party other than the first respondent ought to have been cited. In both instances, the Court upheld the misjoinder argument. In neither judgement is there any reference to other authorities nor does it appear that reference was made to the Kate judgment or to the provisions of the Constitution that are applicable.

For the reasons that I have already set out in this judgement I consider that these two judgements are wrong and I decline to follow them.

The interpretation of section 5(2) of PAJA

I turn now to deal with the further argument advanced by Mr. Gagela which was to the effect that the Applicant’s application was premature in that it was brought prior to the expiry of the 90 day period provided for in section 5(2) of PAJA. It was submitted that the provisions of the section are peremptory and that accordingly failure to comply therewith should result in the dismissal of the application.

As indicated, I was referred to an ex tempore judgement delivered by Peko, ADJP in this division in Mangxama Qwele v Member of the Executive Council for Social Development & Another 14, in which the learned judge found that:

In terms of section 5(2) of PAJA the respondents had 90 days within which to furnish written reasons for the refusal of this application. However the applicant, as I have already indicated instituted these proceedings within 60 days from the date on which the request as made. It therefor means that this application was brought before this Court prematurely.

The judgement was delivered ex tempore and no reasons other than those stated above are cited in the judgement.

I was also referred, in this instance by Mr. Pangwa ,to a judgement of this division delivered by Nhlangulela, A.J. in Zolekile Sapepa v Member of the Executive Council for Social Development & Another : Liziwe Fetsha v Member of the Executive Council for Social Development & Another 15.

Nhlangulela, A.J. in dealing with the submission that the application was prematurely brought, took the opposite view to that later adopted by Peko, ADJP. He states at paragraph 8 of the judgement:

The second submission for which Mr Gagela asked the costs not to be paid by the first respondent was that the court applications were brought prematurely. He relied on the provisions of section 5 and 6 of PAJA. To bolster his case he argued that the provisions of subsection 5(2) of the PAJA enjoined the applicants to give 90 days notice to first respondent from the date of their letters of demand dated 15 March 2004 for reasons to be furnished as to why their applications for social grant were rejected. The subsection does not so provide and it creates no bar to the taking of legal action within 90 days. Consequently, the contention made on behalf of the respondent cannot be sustained. I also find support in the decision that I have made from the fact that the respondent did not bother to respond to the letters of demand. There is nothing in the answering affidavit where it appears that the respondent required 90 days within which to respond.

Section 5 (2) states that the administrator to whom the request is made [in terms of subsection (1)] must, within 90 days after receiving the request, give that person adequate reasons in writing for the administrative action.

The right to request reasons for adverse administrative action arises from section 33(2) of the Constitution. In terms of section 33(3) national legislation (which has been enacted in the form of PAJA) must impose a duty on the state to give effect to the right lawful, reasonable and fair administrative action and the right to request reasons and the must promote an efficient administration.

The furnishing of reasons for administrative action is a necessary condition for the determination of whether or not the administrative action is authorised by law, is reasonable, rational and not arbitrary.16

The reasons to be furnished must not only be adequate17 but must self-evidently be the set of reasons that underpinned the taking of the administrative decision at the time that the decision was taken. If this were not so the administrative act could not be said to be rational or justified at the time that it was taken.

In this regard the remarks of Jaftha, J.P. in Mafongosi & Others v UDM & Others 18 are apposite.

[14] However, section 33 went further than a mere codification of the common law. It stipulates that administrative action should also be reasonable. Under common law the courts were entitled to interfere only where there was gross unreasonableness to the extent that one of the established grounds of review could be inferred from such unreasonableness. This is no longer the position. Any decision which is unreasonable falls to be set aside as not complying with the constitutional requirement. The decision taken should be justified as opposed to being arbitrary. Thus in Roman v Williams NO 1998 (1) SA 270 (C), Van Deventer J (with whom Van Zyl J concurred) said at 284I–285A:

“Administrative action, in order to prove justifiable in relation to the reasons given for it, must be tested against the three requirements of suitability, necessity and proportionality which requirements involve a test of reasonableness. Gross unreasonableness is no longer a requirement for review.

The constitutional test embodies the requirement of proportionality between the means and the end. The role of the Courts in judicial reviews is no longer confined to the way in which an administrative decision was reached but extends to its substance and merits as well.”

[15] An administrative decision can only be justified by the reasons underpinning it. It is those reasons which would show whether the decision is rational or not. If it is not, it cannot be allowed to stand and must be set aside. (emphasis added)

The time period provided for in section 5(2) must, in my view, be construed as a time period afforded to the administrator to gather the information necessary in order to present the reasons for the administrative decision. It is conceivable that in some instances the set of reasons will be readily available and easily presentable. In other instances the nature of the administrative proceedings and decisions or practical considerations may necessitate a longer period within which to furnish the reasons sought.

In this context section 9 of PAJA specifically envisages the variation of the time period in section 5. It provides that:

(1) The period of—

(a) 90 days referred to in section 5 may be reduced; or

(b) 90 days or 180 days referred to in sections 5 and 7 may be extended for a fixed period,

by agreement between the parties or, failing such agreement, by a court or tribunal on application by the person or administrator concerned.

(2) The court or tribunal may grant an application in terms of subsection (1) where the interests of justice so require.

In assessing the interests of justice in a particular case, regard no doubt will need to be given to the circumstances in which the request for reasons is made, the nature of the administrative action and the ease with which reasons can be formulated and provided, the effect of the decision on the person requesting reasons and such other factors as may be relevant.

The 90 day period is, subject to its extension in terms of section 9, a maximum period that is allowed for the furnishing of reasons. Failure to furnish reasons within the prescribed maximum period has as consequence a presumption, in terms of section 5(3), that the decision was taken without good reason.

An administrator who receives a request for reasons is obliged to comply with the request and in so complying is obliged to act in accordance with the values and principles set out in section 195 of the Constitution.

This requires that the administrator must maintain high standards of professional ethics; must promote efficiency; must act impartially, fairly, equitably and without bias; must respond to the needs of the requester; must promote transparency by providing the requester with timely and accurate information.

Such an administrator cannot with impunity wait until the 90 day period has all but expired before furnishing the reasons that she is obliged to provide.19 On the contrary, the administrator must furnish the reasons sought as soon as they are available.

I accordingly agree with Nhlangulela, A.J. that section 5(2) does not bar the institution of proceedings to compel the production of reasons before the expiry of the 90 day period.

Even if I am wrong in this interpretation of section 5(2), I consider that the circumstances of this case would warrant a reduction of the 90 day period in terms of section 9 of PAJA.

It is common cause that the decision to refuse the Applicant’s application for a social grant was taken in December 2003. He denies having been informed of the reasons for the decision and there is no reliable evidence to gainsay this. He requested reasons on 15 March 2004. No response was received to the request. The reasons, such as they are, were only furnished when the opposing affidavit was filed on 8 October 2004.

The Respondents are silent as to why no reasons were furnished when they were requested. There can be no suggestion that time was required within which to formulate the reasons since, according to the Respondents the “reasons” had already been formulated, drafted and dispatched to Applicant in December 2003.

The Applicant, like so many grant applicants is in dire circumstances. Whether he is entitled to social assistance or not, I cannot say. But he is certainly entitled to be treated with dignity and respect, and he is entitled to be informed of the reasons for

the decision not to approve his grant application. He ought to have been given those reasons on request.

In my view the Applicant was entitled to approach the Court when he did.

It follows that the Applicant would, if he had persisted in seeking an order to compel the furnishing of adequate reasons as required in terms of section 5(2), have been entitled to such an order.

I was however, only requested to make a cost order.

Order

In the result I make the following order: The First Respondent is ordered to pay the costs of the Application.

____________________________

G. GOOSEN

ACTING JUDGE OF THE HIGH COURT

For the Applicant: Mr. Pangwa, Caps Pangwa & Associates

For the Respondents: Adv. Gagela, instructed by S.C. Vutula & Co

1 Act 59 of 1992

2 Cf. BHT Water Treatment (Pty) Ltd v Leslie and Another 1993 (1) SA 47 (W) at 55;Jurgens Eiendomsagente v Share 1990 (4) SA 667 (A) at 119; Cyberscene Ltd And Others v I-Kiosk Internet And Information (Pty) Ltd 2000 (3) SA 806 (C)

3 Act 3 of 2000

4 See Vivienne Ntame v Member of the Executive Council for Social Development, Eastern Cape (SECLD, Case Nos. 3667/04;3634/04;3635/04) delivered on 11 January 2005, a recent unreported judgement where Plasket, J. deals extensively with the effect of section 7(2) of PAJA.

5 In this regard Respondent relies on Cape Coast Exploration Ltd v Scholtz and Another 1933 AD 56

6 An unreported decision (SECLD), Case No. 512/04, delivered on 28 March 2005

7 2004 (2) SA 611 (SCA)

8 1949 (3) SA 637 (A) at 656

9 See Henri Viljoen (Pty) Ltd v Awerbuch Bros 1953 (2) SA 151 (O) at 168 - 70. Ex parte Pearson and Hutton NNO 1967 (1) SA 103 (E) at 107C; United Watch & Diamond Co (Pty) Ltd v Disa Hotels Ltd 1972 (4) SA 409 (C) at 415H; Aquatur (Pty) Ltd v Sacks 1989 (1) SA 56 (A) at 62A - E

10 2005 (1) SA 141 (SE) at par. 19

11 1982 (3) SA 654 (A)

12 2000 (1) SA 1 (CC) at paras 132 - 134

13 Reference may be made to a detailed consideration of the scheme of accountability applicable to organs of state in an unreported judgment of Plasket, J. Nombulelo Vumazonke v Member of the Executive Council for Social Development, Eastern Cape Province (SECLD, Case Nos. 110/04;826/04;143/04;2541/03) Delivered on 25 November 2004

14 Unreported, Case no. 861/2004, Delivered on 26 April 2005

15 Unreported, Case nos. 855/2004 & 864/2004, Delivered on 17 February 2005

16 Transnet Ltd v Goodman Brothers (Pty) Ltd [2000] ZASCA 151; 2001 (1) SA 853 (SCA) per Schutz JA where at p. 869 par.5 the learned judge spells out the purpose sought to be achieved by the provision of reasons as required by the Constitution as follows: “Before dealing with each of these points it is useful to look at the background against which the Constitution is set and which explains many of its provisions. Baxter Administrative Law (1989) at 741 sums up the position as it was: 'In the absence of statutory authority there is no general duty upon public authorities to give reasons. Although the state of the law has been widely criticised, no general legislative provision has been enacted to correct the situation.' The value of giving reasons is set out by the same author at 228, as follows: 'In the first place, a duty to give reasons entails a duty to rationalise the decision. Reasons therefore help to structure the exercise of discretion, and the necessity of explaining why a decision is reached requires one to address one's mind to the decisional referents which ought to be taken into account. Secondly, furnishing reasons satisfies an important desire on the part of the affected individual to know why a decision was reached. This is not only fair: it is also conducive to public confidence in the administrative decision-making process. Thirdly - and probably a major reason for the reluctance to give reasons - rational criticism of a decision may only be made when the reasons for it are known. This subjects the administration to public scrutiny and it also provides an important basis for appeal or review. Finally, reasons may serve a genuine educative purpose, for example where an applicant has been refused on grounds which he is able to correct for the purpose of future applications.' The Constitution has plainly set out to remedy the previous position and, without even dealing with particular words or resorting to authority, to my mind a straightforward reading of the words leads to the inevitable conclusion that the former deficiency has been remedied in a case such as is before us.”

16 Transnet Ltd v Goodman Brothers (Pty) Ltd [2000] ZASCA 151; 2001 (1) SA 853 (SCA) per Schutz JA where at p. 869 par.5 the learned judge spells out the purpose sought to be achieved by the provision of reasons as required by the Constitution as follows: “Before dealing with each of these points it is useful to look at the background against which the Constitution is set and which explains many of its provisions. Baxter Administrative Law (1989) at 741 sums up the position as it was: 'In the absence of statutory authority there is no general duty upon public authorities to give reasons. Although the state of the law has been widely criticised, no general legislative provision has been enacted to correct the situation.'

The value of giving reasons is set out by the same author at 228, as follows: 'In the first place, a duty to give reasons entails a duty to rationalise the decision. Reasons therefore help to structure the exercise of discretion, and the necessity of explaining why a decision is reached requires one to address one's mind to the decisional referents which ought to be taken into account. Secondly, furnishing reasons satisfies an important desire on the part of the affected individual to know why a decision was reached. This is not only fair: it is also conducive to public confidence in the administrative decision-making process. Thirdly - and probably a major reason for the reluctance to give reasons - rational criticism of a decision may only be made when the reasons for it are known. This subjects the administration to public scrutiny and it also provides an important basis for appeal or review. Finally, reasons may serve a genuine educative purpose, for example where an applicant has been refused on grounds which he is able to correct for the purpose of future applications.'

The Constitution has plainly set out to remedy the previous position and, without even dealing with particular words or resorting to authority, to my mind a straightforward reading of the words leads to the inevitable conclusion that the former deficiency has been remedied in a case such as is before us.”

17 See in this regard the judgment of Schutz JA in Minister Of Environmental Affairs And Tourism And Others V Phambili Fisheries (Pty) Ltd; Minister Of Environmental Affairs And Tourism And Others V Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA) at par. 40 where the learned judge says: “What constitutes adequate reasons has been aptly described by Woodward J, sitting in the Federal Court of Australia, in the case of Ansett Transport Industries (Operations) Pty Ltd and Another v Wraith and Others [1983] FCA 179; (1983) 48 ALR 500 at 507 (lines 23 - 41), as follows: 'The passages from judgments which are conveniently brought together in Re Palmer and Minister for the Capital Territory (1978) 23 ALR 196 at 206 - 7; 1 ALD 183 at 193 - 4, serve to confirm my view that s 13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: ''Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.'' This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation. The appropriate length of the statement covering such matters will depend upon considerations such as the nature and importance of the decision, its complexity and the time available to formulate the statement. Often those factors may suggest a brief statement of one or two pages only.' To the same effect, but more brief, is Hoexter The New Constitutional and Administrative Law vol 2 at 244: '(I)t is apparent that reasons are not really reasons unless they are properly informative. They must explain why action was taken or not taken; otherwise they are better described as findings or other information.'

17 See in this regard the judgment of Schutz JA in Minister Of Environmental Affairs And Tourism And Others V Phambili Fisheries (Pty) Ltd; Minister Of Environmental Affairs And Tourism And Others V Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA) at par. 40 where the learned judge says: “What constitutes adequate reasons has been aptly described by Woodward J, sitting in the Federal Court of Australia, in the case of Ansett Transport Industries (Operations) Pty Ltd and Another v Wraith and Others [1983] FCA 179; (1983) 48 ALR 500 at 507 (lines 23 - 41), as follows:

'The passages from judgments which are conveniently brought together in Re Palmer and Minister for the Capital Territory (1978) 23 ALR 196 at 206 - 7; 1 ALD 183 at 193 - 4, serve to confirm my view that s 13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: ''Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.''

This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation. The appropriate length of the statement covering such matters will depend upon considerations such as the nature and importance of the decision, its complexity and the time available to formulate the statement. Often those factors may suggest a brief statement of one or two pages only.'

To the same effect, but more brief, is Hoexter The New Constitutional and Administrative Law vol 2 at 244:

'(I)t is apparent that reasons are not really reasons unless they are properly informative. They must explain why action was taken or not taken; otherwise they are better described as findings or other information.'

18 [2002] 3 All SA 271 (Tk)

19 Cf. C. Plasket; “The Fundamental Right to Just Administrative Action: Judicial Review of Administrative Action in the Democratic South Africa” , Doctoral thesis (Rhodes University, 2002), p.485