Van Wyk v CEO of the South African Social Security Agency and Another (1606/2007) [2009] ZANWHC 7 (5 March 2009)

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.: 1606/2007

In the matter between:-

MIETHA VAN WYK Appellant

and

THE CHIEF EXECUTIVE OFFICER OF THE SOUTH 1st Respondent

AFRICAN SOCIAL SECURITY AGENCY

MEC: SOCIAL DEVELOPMENT FOR THE NORTH WEST 2nd Respondent

PROVINCE

JUDGMENT

SIBEKO AJ:

INTRODUCTION

[1] This is one of several opposed applications which served before me on 5 February 2009, in which the Applicant, as in several other cases, applied for orders to compel the South African Social Security Agency (“SASSA”) to disclose the outcome of an application made by her for a disability grant, and ancillary relief.

THE FACTS

[2] The facts of this application are briefly as set out below.

[3] The Applicant alleges that she suffers from a permanent disability in that she has tuberculosis to such an extent that she is permanently

medically and physically unable and unfit to take up full time or temporary employment.

[4] The Applicant, who was born on 20 April 1942, submitted an application to SASSA on 30 November 2006, in terms of the Social Assistance Act No. 13 of 2004 (“the Act”) and the Regulations promulgated thereunder, for a disability grant.

[5] The Applicant was 64 years, 7 months and 10 days old when she submitted her application for a disability grant to SASSA.

[6] On 30 November 2006, she duly completed the prescribed forms while being assisted by an official, alternatively, an employee of the Department of Social Development, North West Province, and submitted the duly completed form.

[7] She was then advised by the aforementioned official to undergo a medical examination, which she did. She was furnished with a medical report which was, on her return, submitted to the officials on the same day. She was then furnished with a receipt number 112555 which records the type of grant applied for as “OA”, presumably referring to an old age grant.

[8] The Applicant was thereafter advised to make enquiries at the District Pension Office (“the DP Office”) after a few weeks. She did this from time to time, but she did not receive any information as to the progress made with her application.

[9] By 10 July 2007, she still had not heard anything about her application. She consulted Jako Visser of J. Visser Attorneys (“Visser”) for assistance and gave him a power of attorney to make enquiries on her behalf and to act on her behalf in taking any further step that may be required in law to assert her right to a disability grant.

[10] Visser, believing that the provisions of the Legal Proceedings Against Certain Organs of State Act No.40 of 2002 applied, sent a notice in terms of section 3 of that Act to the first Respondent, giving him notice of the proceedings intended to be instituted on behalf of the Applicant to assert her rights under the Act; the Constitution; and the provisions of the Promotion of Administrative Justice Act No.3 of 2000 (“PAJA”). The contents of the aforementioned notice shall not be repeated herein.

[11] While there appears to be an acknowledgement of the letter of demand referred to in paragraph 10 above by SASSA, there is no record of any response from either SASSA or the first Respondent in the papers to the notice.

[12] As no response was forthcoming from SASSA to the demand, alternatively, notice given on behalf of the Applicant, she launched this application in terms of which she seeks 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 30 November 2006 and the day of approval of her social grant as if her grant had been approved on 30 November 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 30 November 2006 or 28 February 2007 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”.

[13] The Respondents oppose the application. In the answering affidavit deposed to by Khumo Thetele (“Thetele”), and filed in opposition to the relief sought by the Applicant:

13.1 the point was raised in limine that the Applicant has not complied with the provisions of section 18 of the Act, having failed to exhaust internal remedies provided for in the Act. In the heads of argument filed on behalf of the Respondents, it is contended further that the Applicant is enjoined

by the provisions of section 5 of PAJA to have exhausted internal remedies provided for in the Act before launching this application;

and

13.2 in pleading over, Thetele avers that the Applicant applied for an old age grant which was approved on 30 November 2006, of which the Applicant was informed. Thetele denies that the Applicant had applied for a disability grant.

[14] At the hearing of the matter, the point raised in limine was not persisted with. Mr Dikolomela, who appeared for the Respondents, did not persist with the point in limine, but argued the remaining point and several additional other points.

A DECISION HAS BEEN TAKEN

[15] As I pointed out in sub-paragraph 13.2 above, Thetele, in the answering affidavit states that:

15.1 the Applicant applied for an old age grant, and that no application was made for a disability grant;

15.2 the Respondent (sic) informed the Applicant that the application for a social grant was successful on 30 November 2006, and that the Applicant is receiving the grant; and

15.3 the Applicant knows that her application for an old age grant was successful.

[16] I pause to point out that no written notification is annexed to the answering affidavit to support Thetele’s allegation as set out in paragraph 15, above.

[17] In a further affidavit deposed to by Obakeng Thobegane (“Thobegane”) in support of a condonation application by the Respondents, he states that on the information available to SASSA, the Applicant applied for an old age grant which was granted. A print-out alleged to be annexed to the papers as proof of this allegation has, however, been omitted.

[18] The Applicant did not deliver a replying affidavit to dispute the averments, set out in Thetele and Thobegane’s affidavits as described above.

[19] During the course of making oral submissions, Mr Dikolomela sought to place reliance on the receipt no.112555, annexed to the founding affidavit and marked “MVW2”. This document:

19.1 has boxes which are ticked to show, inter alia:

19.1.1 the date when the application for a grant was received;

19.1.2 the particulars of the Applicant and the region where the application was made; and

19.1.3 the type of grant applied for. In the present instance, the type of grant applied for is ticked as “OA” – presumably old age grant.

NOTIFICATION OF DECISION

[20] From the affidavits deposed to by both Thetele and Thobegane, read with annexure “MVW2” to the Applicant’s founding affidavit, it appears not be disputed that:

20.1 on 30 November 2006, the Applicant applied for an old age grant, and not a disability grant; (own emphasis)

20.2 her application for an old age grant was approved and she was notified of such approval;

20.3 at the time of launching this application, the Applicant was receiving an old age grant.

[21] Ms Zwiegelaar, acting for the Applicant, contended in her oral submission that the issue of the old age grant is irrelevant for purposes of this application as:

21.1 the Applicant had applied for a disability grant; and

21.2 she has not been given (written) notification of the outcome of that application.

[22] She contended further that SASSA is enjoined, in terms of section 14 of the Act, to notify in writing an applicant for a social security grant:

22.1 that he or she does not qualify for social assistance in terms of the Act;

22.2 the reasons why she or he does not qualify; and

22.3 of his or her right to appeal contemplated in section 18 of the Act and the mechanism and procedure to invoke such right.

[23] An applicant’s right to notification of the facts set out above and the reasons therefore are consonant with the right to fair administrative action provided for in section 33 of the Constitution, read with the provisions of PAJA.

[24] The major flaw in Ms Zwiegelaar‘s submission is that it is not supported by the facts as disclosed in the papers, the founding

affidavit, especially.

24.1 On the Applicant’s version stated under oath, she applied for a disability grant.

24.2 The receipt given to her as acknowledging receipt of the application shows that she had applied for an old age grant, which:

24.2.1 was approved; and

24.2.2 she is receiving.

[25] The facts set out in paragraph 24 above, ought, on the basis of the principles set out in Plascon-Evans Paints Ltd v Van Riebeck Paints1, and restated in the yet unreported judgment of the Supreme Court of Appeal in the National Director of Public Prosecutions v Zuma2 regarding the resolution of disputes of facts arising on the papers in application proceedings, to be regarded as not being in dispute. The consequence of taking these facts as admitted, alternatively, not in dispute would, necessarily, lead to the rejection of Ms Zwiegelaar’s submission.

[26] Furthermore, these undisputed facts, supported by annexure “MVW2” to the founding affidavit, suggest that this application ought not to have been launched, when it was. Had the authors of the founding papers taken due and reasonable care expected of them in consulting with the Applicant and had properly considered the import of annexure “MVW2” to the founding affidavit, I have no doubt that this application would not have been launched, which has now resulted in unnecessary costs being incurred by the parties.

[27] In all the circumstances, I am not satisfied that the Applicant has made out a proper case for the relief sought by her in the notice of motion. Consequently, the application must fail.

COSTS

[28] Mr Dikolomela submitted that in the event of this application being dismissed, it should be dismissed with costs awarded on an attorney and client scale, as the application was wholly unnecessary and constituted an abuse of process, regard being had to the undisputed facts set out in paragraphs 16, 19 and 20 above. Ms Zwiegelaar, in turn, submitted that the application should be granted with costs on a punitive scale, regard being had to the remissness in the manner in which the application was dealt with by the SASSA officials.

[29] Despite the reservations I have expressed in paragraph 25 above, I am of the view that costs should be granted to the Respondents on the ordinary scale. I have come to this conclusion as I am of the opinion that regard being had to the number of applications for similar relief involved, which applications invariably involve the same teams of legal representatives, an award of a punitive costs order may not be appropriate.

ORDER

In all the circumstances, I make the following order:

1. The application is dismissed with costs.

________________

L. T. SIBEKO

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 05 FEBRUARY 2009

DATE OF JUDGMENT : 05 MARCH 2009

COUNSEL FOR APPLICANT : ADV C. ZWIEGELAAR

COUNSEL FOR RESPONDENT : ADV DIKOLOMELA

ATTORNEYS FOR APPELLANT : THE STATE ATTORNEY

ATTORNEYS FOR RESPONDENT: VAN ROOYEN TLHAPI & WESSELS INC.

1 [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 and Zuma v NDPP [2008] ZACC 13; 2008 (2) SACR 421 (CC) para [8] – [10]

2 (573/08 [2009] ZA SCA 1, 12 January 2009).