Tshabile and Others v Chief Executive Officer of the South African Social Security Agency and Another (1605/2007, 2389/2007, 227/2008) [2009] ZANWHC 8 (5 March 2009)

IN THE HIGH COURT

OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:-

DAPHNEY

KENEILWE TSHABILE

CASE NO. 1605/2007

TSHEGOHACO

JULIA ASIENG CASE NO. 2389/2007

KARABO

JOYCE PHUTHIYAGAE

CASE NO. 227/2008

and

THE CHIEF EXECUTIVE OFFICER OF THE SOUTH AFRICAN SOCIAL SECURITY AGENCY &

ANOTHER

CIVIL

MATTERS

COUNSEL FOR THE APPLICANTS: ADV ZWIEGELAAR

COUNSEL FOR THE RESPONDENTS: ADV DIKOLOMELA

DATE OF HEARING: 05 FEBRUARY 2009

DATE OF JUDGMENT: 05 MARCH 2009

JUDGMENT

SIBEKO AJ:

INTRODUCTION

[1] These are three of several opposed applications which served before me on 5 February 2009, in which the Applicants, in each of the cases, applied for orders to compel the South African Social Security Agency (“SASSA”) inter alia:

1.1 to consider and decide on the Applicant’s application for a social grant;

1.2 to advise the Applicant’s attorney in writing of its (SASSA)’s decision within 15 days of the order of this court; and

1.3 other ancillary relief.

[2] The three cases are cited as:

2.1 Daphney Keneilwe Tshabile v The Chief Executive Officer of the South African Social Security Agency & Another

2.2 Tshegohaco Julia Asieng v The Chief Executive Officer of the South African Social Security Agency & Another

2.3 Karabo Joyce Phuthiyagae v The Chief Executive Officer of the South African Social Security Agency & Another

[3] Apart from the different personal circumstances of each Applicant in the three cases and the dates on which each Applicant submitted an application for a social security grant and subsequent follow-ups that each Applicant made, these applications are, in material

respects, the same. The basis of opposition to these applications is also, in material respects, the same.

[4] The same counsel appeared for each Applicant in all three matters and the same counsel appeared for the Respondents cited in all three matters. The heads of argument prepared by the respective counsel in all three matters are, for all intents and purposes, materially the same, save for the differences with regard to personal circumstances in each case and the dates when each application was made.

[5] It is, accordingly, for these reasons that the three matters are dealt with in this judgment.

BACKGROUND

[6] Each of the Applicants applied for a social security grant from SASSA. Different reasons were advanced by the respective Applicants in their applications. Apart from the Applicant in Case no. 1605/07 who had applied for a child support grant, the Applicants in the other two cases applied for a medical disability grant and underwent the required medical examinations. After each of the Applicants had submitted her application on the respective dates, they were informed by officials of SASSA to return within a few weeks to enquire about the outcome of their respective applications, which they did.

[7] The results of their respective applications were, on the subsequent date, not available. The Applicants were then advised to return on a further subsequent date to make further enquiries about the outcome of their applications. Once again the Applicants acted on the advice received, yet the outcome of their respective applications was not available at that time.

[8] Upon being despondent about the failure of SASSA officials to inform them about the results of their applications, the Applicants in Case no.’s 1605/07 and 2389/07 approached Jako Visser of Jako Visser Attorneys (“Visser”) while the Applicant in Case no.227/08 consulted HST Administrative (Pty) Ltd (“HST”) for assistance and gave them powers of attorney to make further enquiries regarding their applications to SASSA, and to take any further step that may be required in law to assert their right to the social grants that they had applied for, on their behalf.

[9] Visser and HST, believing that the provisions of the Legal Proceedings Against Certain Organs of State Act 40 of 2002 (“the Act”) applied to these proceedings, sent a notice in terms of section 3 of the Act to the First Respondent, giving him notice of the intended proceedings to be instituted on behalf of the Applicants. The contents of the aforementioned notice shall not be repeated herein.

[10] There is no record of any response from either SASSA or the First Respondent in the papers to the notice referred to in paragraph 9, above. As no response was forthcoming from SASSA to the demand, alternatively, notice given on behalf of the Applicants, applications

in three matters were launched, in terms of which each of the Applicants sought the following relief:

“1. That the non-compliance with the time frames in Section 7(1) of Act 3 of 2000 be condoned insofar as is needed.

2. That the non-compliance with the time frames in Section 3 of Act 40 of 2002 be condoned insofar as is needed.

3. The first and/or second respondent, or the appropriate official of their Department, is hereby ordered:

3.1 to consider and decide on the applicant’s application for a social grant;

3.2 to advise the applicant’s attorney in writing of their decision within 15 days of date of this order.

4. In the event of the first and/or second respondent refusing the applicant’s application for a social grant, the first and/or second respondent shall provide the applicant’s attorney with written reasons for the decision having been taken within 15 days of date of this order.

5. In the event that the applicant’s social grant is approved

5.1 the first and/or second respondent is ordered to pay the applicant the amounts which would have been paid to her as a social grant during the period 09 January 2006 and the day of approval of her social grant as if her grant had been approved on 09 January 2006;

5.2 the first and/or second respondent is ordered to pay the applicant interest 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 applicant, starting on 09 January 2006 or 10 April 2006 to date of payment;

5.3 the first and/or second respondent is ordered to continue paying the social grant to the applicant for as long as she legally qualifies for it.

6. The first and/or second respondent is ordered to pay the costs of this application”.

[11] The Respondents opposed the applications. In the answering affidavits deposed to by Khumo Thetele (“Thetele”) and Obakeng Thobegane (“Thobegane”) and filed in opposition to the relief sought by the Applicants:

11.1 the point was raised in limine that the Applicants, in each case, have not complied with the provisions of section 18 of the Social Assistance Act No.13 of 2004, with regard to the exhaustion of internal remedies provided for in that Act. In the heads of argument filed on behalf of the

Respondents, this contention is taken further by the reliance on the provisions of section 5 of the Promotion of Administrative Justice Act, No.3 of 2000 (“PAJA”); and

11.2 in pleading over, the deponents to the answering affidavits make reference to certain documents which purport to demonstrate that the Applicants have been notified in writing of the outcome of their applications. Regrettably, no such written notification from SASSA to the Applicants has been attached to the affidavits delivered by the Respondents.

[12] At the hearing of the matter, the point raised in limine, as described in sub-paragraph 11.1 above, was not persisted with. On being confronted by the inability to furnish objective proof,

alternatively, evidence of the written notification in support of the bald allegations contained in the answering affidavits, pertaining to the written notification that was allegedly sent to the Applicants by SASSA informing them of the outcome of their applications, Mr Dikolomela sought to apply for the postponement of the applications in order to afford SASSA, alternatively, the deponents to the answering affidavit an opportunity of remedying their omission to furnish this court with the documents referred to in their

affidavits. The application for postponement in each of these matters was opposed by Ms Zwiegelaar, acting for the Applicants.

THE PRINCIPLES

RELATING TO POSTPONEMENTS

[13] The leading case on the principles to be applied in the exercise of a discretion in applications for postponement is Myburgh Transport v Botha t/a SA Truck Bodies,1 in which an application for postponement was based on the unavailability of an essential witness of the defendant.

[14] In that case the court set out the principle that when a postponement is sought in an application, the trier of fact has a discretion to exercise, and that such discretion ought to be exercised judicially. It should not be exercised capriciously or upon any wrong principle, but for substantial reasons”.2 The court went on to stress that the fundamental consideration in such an application is whether it is in the interests of justice to grant the postponement.3

[15] Following on the Myburgh Transport decision, the Labour Court went on to summarise the principles applicable to applications for postponement in the case of Insurance and Banking Staff Association and Others v SA Mutual Life Assurance Society,4 where it stated the following:

“In an application for postponement, the legal principles established in the High Court over the years apply equally in practice in the Labour Courts. For the purpose of the present application, the following principles apply:

The trial judge has a discretion as to whether an application should be granted or refused (R v Zackey 1945 AD 505; Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (NM)).

That discretion must at all times be exercised judicially. It should not be exercised capriciously or upon any wrong principle, but for substantial reasons.

The trial judge must reach a decision after properly directing his/her attention to all relevant facts and principles.

An application for postponement must be made timeously, as soon as the circumstances which might justify an application become known to the applicant. However, in cases where fundamental fairness and justice justify a postponement, the court may in an appropriate case allow such an application for postponement, even though the application was not timeously made.

The application for postponement must always be bona fide and not used simply as a tactical manoeuvre for the purpose of obtaining an advantage to which the applicant is not legitimately entitled.

Considerations of prejudice will ordinarily constitute the dominate component of the total structure in terms of which the discretion of a court will be exercised. What the court has primarily to consider is whether any prejudice caused by a postponement to the adversary of the applicant for a postponement can fairy be compensated by an appropriate order of costs or any other ancillary mechanisms.

The court should waive the prejudice which will be caused to the respondent in such an application if the postponement is granted against the prejudice which will be caused to the applicant if it is not.

(h) Where the applicant for a postponement has not made the application timeously, or is otherwise to blame with respect to the procedure which the applicant has followed, but justice nevertheless justifies a postponement in the particular circumstances of a case, the court in its discretion might allow the postponement but direct the applicant in a suitable case to pay the wasted costs of the respondent occasioned to such a respondent on a scale of attorney and client. Such an applicant might even be directed to pay the costs of the adversary before the applicant is allowed to proceed with the action or defence in the action, as the case may be.”5

[16] It may also be apposite to refer to the judgement of the Labour Appeal Court in the matter of Carephone (Pty) Ltd v Marcus NO and Others,6 where the court stated the following with regard to issues to be considered in relation to applications for postponement:

“In a court of law the granting of an application for postponement is not a matter of right. It is an indulgence granted by the court to a litigant in the exercise of a judicial discretion. What is normally required is a reasonable explanation for the need to postpone and the capability of an appropriate costs order to nullify the opposing party’s prejudice or potential prejudice. Interference on appeal in a matter involving the lower court’s exercise of a discretion will follow only if it is concluded that the discretion was not judicially exercised (Madnitsky v Rosenberg 1949 (2) SA 392 (A) at 398-9).”

DISCUSSION

[17] The request for postponement in each of the applications:

17.1 was not supported by any plausible explanation as to why the documents referred to in the answering affidavits and sought to be relied on by the Respondents were not attached thereto;

17.2 was informal; was made from the Bar; was not supported by any affidavit and was not accompanied by evidence under oath pertaining to the whereabouts of the alleged documents and why they were not attached to the Respondents’ affidavits, in the first place.

It is also for the aforegoing reasons that the informal request for postponement was opposed.

[18] It needs be mentioned that the Applicant, in each of the cases, submitted their applications for social security grants on:

18.1 09 January 2006

18.2 27 January 2003; and

18.3 23 February 2005,

respectively. Ever since the applications for social security grant were submitted by each Applicant to SASSA, nothing, on the undisputed facts, appears to have been done by SASSA.

[19] The answering affidavits in respect of each application were

19.1 deposed to on or about 19 August 2008, and delivered on 25 August 2008, in case no.1605/07;

19.2 deposed to on or about 2 September 2008, and delivered on the same day in case no.2389/07 and 227/08

[20] In respect of all three matters, the Respondents’ heads of argument were finalised on or about 21 October 2008, and delivered on or about 22 October 2008, by the same counsel, Mr Dikolomela. Had Mr Dikolomela been punctilious in his preparation of the Respondents’ heads of argument, the omission by the deponents to the answering affidavits, alternatively, by the Respondents’ legal representatives to attach the alleged written notification to the Applicants informing them of the outcome of their applications, which evidence was pivotal to the opposition, would have been noticed and rectified. There is no plausible explanation as to why this crucial omission did not come to the attention of the Respondents’ legal representatives before the hearinf of these matters.

[21] If regard be had to the stated objects of the Social Assistance Act No13 of 2004, read with the provisions of the South African Security Agency Act No.9 of 2004, together with the Constitutional obligations imposed on organs of State such as SASSA under sections 195 and 237 of the Constitution, the remissness of the Respondents’ deponents,

together with their legal representative, which has had a concomitant effect of prejudicing the Applicants who are indigent and have inalienable rights under section 27 of the Constitution, cannot be overlooked. The interests of justice also do not appear to favour the grant of the application for postponement.

[22] Taking all of the aforegoing into account, and applying the principles enunciated in the Myburgh Transport case referred to above, it is my considered view that the application for postponement in each of the three applications ought to fail.

[23] I now turn to deal with the merits of the applications on the basis of the papers filed of record.

A DECISION HAS BEEN

TAKEN

[24] In the Tshabile and Asieng cases, the deponent to the answering affidavit, Thetele, apart from making bare denials in relation to the submission by the two Applicants of their applications for social security grants, takes the point that:

24.1 SASSA is a statutory body that has been established in terms of the provisions of the SASSA Act;

24.2 SASSA is, in terms of the SASSA Act, and has since 1 April 2006 been the only institution responsible for approving applications for social security grants;

24.3 prior to 1 April 2006, SASSA was not responsible or liable for the provision (sic) of social security grants; and

24.4 as the Applicants have not provided the necessary information7, SASSA is unable to make any follow up (presumably to these applications).

[25] The Respondents’, alternatively, deponents’ contention set out in paragraph 24 above, need only be stated to be rejected as being devoid of any merit, if regard be had to the provisions of Chapter 6 of the SASSA Act. What it does demonstrate, however, is that these applications have not been considered by SASSA. To the extent that there may be a contrary suggestion, no objective proof or evidence has been provided in support thereof.

[26] In another affidavit deposed to by Obakeng Thobegane in support of a condonation application delivered in the Tshabile application, it is stated that the Applicant in that case applied for and was granted a child support grant, and that she has been receiving a child support grant in respect of 2 children. Reference is made to a print-out, annexure “OB1”, as proof of that assertion, and as being part of the papers. This document has, however, been omitted.

[27] The same affidavit was delivered in the Asieng application with the same omission.

[28] In the Phuthiyagae application the deponent, Thetele, states, inter alia, that:

28.1 it was unnecessary for the Applicant in that case to launch her application for a disability grant as she was informed on 23 February 2005, that the application was unsuccessful. The deponent alleges that a letter to this effect was sent to Phuthiyagae and is annexure “KT1” to the papers; and

28.2 to be eligible to receive a disability grant, Phuthiyagae has to satisfy SASSA that she was permanently disabled. The deponent alleges that a medical report, if any, submitted in support of the application for a disability grant confirmed Phuthiyagae’s permanent disability. The deponent alleges that the medical report is annexure “KT2” to be papers.

Both annexures “KT1” and “KT2” have been omitted from the papers.

NOTIFICATION

OF DECISION

[29] Had the applications submitted by the individual Applicants been finally refused, as alleged by the deponents to the Respondents’ affidavits, the Applicants would have been entitled to written notification of this fact and the reasons for refusing the grant. This is a right which stems from the Bill of Rights and the provisions of PAJA.

[30] The purpose of the applications is very clear. These applications were launched because the Applicants had not been informed about the outcome of their applications for social security grants. Each of the three applications is aimed at compelling SASSA to deal with each Applicant’s application for a grant and to inform each Applicant, if it has declined the grant, why it was done so.

[31] I am not concerned, on these papers, with the merits of each individual Applicant’s application; but only about their rights to be informed of the outcome of their applications and to be provided with reasons, in the event their applications were unsuccessful.

[32] I have already pointed out that no written notification that the Applicants were unsuccessful has been annexed to the answering

affidavits. The inference must therefore be that none was sent to the Applicants. The enquiries made by the Applicants at the

appointed SASSA offices came to naught. They have all had to wait for more than 3 years to know of the fate of their applications for grants.

[33] Having considered the allegations in the affidavits regarding the taking of a decision by SASSA in relation to the applications for social security grants submitted by the Applicants, and having considered the principles set out in Plascon-Evans Ltd v Van Riebeck Paints8, and restated in the yet unreported judgment of the Supreme Court of Appeal in the National Director of Public Prosecutions v Zuma9 regarding the resolution of disputes of fact in application proceedings, I have come to the conclusion that the Applicants have not been notified of the outcome of their individual applications for social security grants as there is no evidence submitted by the Respondents that is consistent with such written notification.

[34] By virtue of the circumstances set out above, I am of the view that the Applicants have made out a proper case for the relief they seek.

COSTS

[35] Ms Zwiegelaar submitted that all three applications be granted subject to a punitive costs order in respect of each application, regard being had to:

35.1 the objectionable manner in which the Respondents have conducted their opposition of the applications; and

35.2 the failure by SASSA to respond to the letters of demand delivered on behalf of the Applicants.

[36] Whilst I find the conduct of SASSA in these and other matters that have been determined in this division to be deplorable and discourteous in the extreme, I am of the view that a punitive costs order would not be appropriate in the circumstances of each of the three cases. I have come to this conclusion very reluctantly, regard being had to the number of applications for similar relief involved.

[37] In the circumstances, I have come to the conclusion that costs as between party and party would be appropriate.

ORDER

I make the following order in respect of each of the three applications:

1. The application for postponement is dismissed.

2. That the non-compliance with the time frames in Section 7(1) of Act 3 of 2000 be condoned insofar as is needed.

3. That the non-compliance with the time frames in Section 3 of Act 40 of 2002 be condoned insofar as is needed.

4. The first and/or second respondent, or the appropriate official of their Department, is hereby ordered:

1. to consider and decide on the applicant’s application for a social grant;

2. to advise the applicant’s attorney in writing of their decision within 15 days of date of this order.

5. In the event of the first and/or second respondent refusing the applicant’s application for a social grant, the first and/or second respondent shall provide the applicant’s attorney with written reasons for the decision having been taken within 15 days of date of this order.

6. In the event that the applicant’s social grant is approved

1. the first and/or second respondent is ordered to pay the applicant the amounts which would have been paid to her as a social grant during the period 09 January 2006 and the day of approval of her social grant as if her grant had been approved on 09 January 2006;

2. the first and/or second respondent is ordered to pay the applicant interest 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 applicant, starting on 09 January 2006 or 10 April 2006 to date of payment;

3. the first and/or second respondent is ordered to continue paying the social grant to the applicant for as long as she legally qualifies for it.

7. The first and/or second respondent is ordered to pay the costs of this application.

____

L. T. SIBEKO

ACTING JUDGE OF THE

HIGH COURT

1 1991 (3) SA 310 (NMSC). This case was approved by the Constitutional Court in the National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC0 and also applied in Shilubana and Others v Nwamitwa (National Movement of Rural Women and Commission for Gender Equality as Amici Curiae [2007] ZACC 14; 2007 (5) SA 620 (CC) at para [3] and [10]–[12].

2 At p314 G-H.

3 At p315 H-J.

4 (2000) 21 ILJ 386 (LC).

5 Footnotes and references omitted.

6 (1998) 19 ILJ 1425 (LAC).

7 No details of this information have been set out to establish precisely the nature of the information that would assist SASSA to follow up.

8 [1984] ZASCA 51; 1984 (3) SA 623 (A) 634 – 5. See also Fakie NO v CC II Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) para [55] and Thint (Pty) Ltd v NDPP and Zuma v NDPP [2008] ZACC 13; 2008 (2) SACR 421 (CC) para 8 - 10

9 (573/08 [2009] ZA SCA 1, 12 January 2009).