Yekiso v South African Social Securities Agency, Eastern Cape (1328/08) [2009] ZAECMHC 18 (3 December 2009)

FORM

A

FILING SHEET FOR EASTERN CAPE HIGH COURT, MTHATHA JUDGMENT

PARTIES: Nonkosemini Yekiso

VS

SASSA

Case No.: 1328/08

Magistrate:

High Court: EASTERN CAPE HIGH COURT, MTHATHA

DATE HEARD: 12th November 2009

DATE DELIVERED: 3rd December 2009

JUDGE(S): Miller J.

LEGAL REPRESENTATIVES –

Appearances:

for the Applicant : Ms. Nyobole

for the Respondent: Mr. Nyangiwe

Instructing attorneys:

Applicant: Voyi Nyobole Attorneys

Respondent : X.M. Petse Inc.

CASE INFORMATION -

Nature of proceedings : Civil-Administrative action- Rejection of Disability Grant.

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE HIGH COURT : MTHATHA

CASE NO. 1328/08

In the matter between:

NONKOSEMINI YEKISO Applicant

And

SOUTH AFRICAN SOCIAL SECURITY

AGENCY, EASTERN CAPE Respondent

JUDGMENT

MILLER, J.:

[1] In this matter the applicant seeks an order setting aside the respondents administrative action of rejecting her disability grant together with certain other ancillary relief.

[2] The applicant, who is presently 59 years of age, applied for a disability grant on 03 August 2006. The application was refused and the reason given for such refusal was the following:

“Rhumatoid arthritis and hypertension is treatable and can be well controlled on regular medication, causing little, if any, permanent functional impairment.”

[3] The applicant, in her founding affidavit, states that she has a history of arthritis, hypertension and diabetes which dates back to 2001. She says that her condition is chronic and disabling and that it prevents her from being able to work. It is, however, apparent from the annexures to the respondent’s answering affidavit that her application for a disability grant that was made

on 03 August 2006 related only to rhumatoid arthritis and hypertension.

[4] It is common cause that the applicant was granted a temporary disability grant in respect of a fracture of the ankle which grant terminated during October 2004. She thereafter made a number of further applications for a disability grant, all of which were unsuccessful.

[5] The applicant avers that she only became aware of the refusal and the reasons therefor of her application of 03 August 2006 during January 2008 when the respondent responded to a letter sent to it by the applicant’s attorney. In this regard the applicant states that she did not receive the respondent’s letter dated 30 October 2006 which was addressed to her and in which she was

informed of the refusal of her application and the reasons therefor.

[6] The applicant contends that the respondent’s refusal of her application was unreasonable as it was based on incorrect considerations because it did not take into account her medical and general circumstances and also because it relied on criteria not provided for by statute.

[7] The respondent denies these contentions. It contends that subsequent to the expiry of her temporary grant during October 2006, all of the numerous new applications made by the applicant have been unsuccessful because her condition has improved and that she is not entitled to a disability grant whether temporary or permanent. It states that on medical examination the applicant was found to be fit for work and that her condition is controllable through medication.

[8] One of the ancillary reliefs sought by the applicant is set out as follows:

“That the respondent be and is hereby directed to reconsider applicant’s application for a grant by applying the test of the duration of applicant’s condition as the only test permitted by law.”

This relief, in the form that it is asked, surely cannot be granted for the simple reason that the duration of a medical condition is not the only consideration to be taken into account. It is common knowledge that many people who have been suffering from a medical condition over a long period of time (such as, for example, diabetes) are nevertheless fit and able to work because the condition has been controlled through medication and treatment. Such people will not be entitled to a disability grant merely because they have a medical condition that has endured for a lengthy period of time. In order to qualify for a disability grant a person must have a physical or mental disability that renders him or her unfit to obtain by virtue of any service, employment or profession the means needed to enable him or her to provide for his or her maintenance. See Section 9 of the Social Assistance Act, 13 of 2004.

[9] No expert medical evidence has been placed before this court relating to the applicant’s present medical condition. The Court therefore does not know whether her medical condition has improved or deteriorated or has remained the same in the three years that have elapsed since the refusal of her disability grant.

[10] In these circumstances I do not believe that it is either appropriate or justifiable to order that the respondent reconsider the applicant’s application of 03 August 2006 as such reconsideration would have to be done on old medical information and her present medical condition may well not be the same as what it was during 2006.

[11] I am accordingly of the view that the applicant cannot be granted the relief she seeks. This does not mean that the door is closed on the applicant. She would be well advised to make a fresh application for a disability grant, such application being based on a current diagnosis of her medical condition.

In the result, the application is dismissed with costs.

JUDGE OF THE HIGH COURT

HEARD ON : 12 NOVEMBER 2009

DELIVERED ON : 03 DECEMBER 2009

ATTORNEY FOR APPLICANT : Ms Nyobole

: of Voyi-Nyobole Attorneys

COUNSEL FOR RESPONDENT : Mr Nyangiwe

INSTRUCTED BY : X. M. Petse Inc.