Cele v South African Social Security Agency and 22 Related Cases

• Jurisdiction: South Africa
• Judge: Wallis AJ
• Judgment Date: 19 March 2008
• Citation: 2009 (5) SA 105 (D)
• Docket Number: 7940/07
• Hearing Date: 07 March 2008
• Counsel: R Ungerer for the applicants in matters 6, 7, 8, 16, 18 and 19. M Essop for the applicants in matters 9-15 and 22-26. M de Klerk for the applicant in matter 17. D Sridutt for the applicants in matters 20, 42 and 43. K Govender and S Naidoo for the respondent. B Broster SC (with A Annandale) as amici curiae.
• Court: Durban and Coast Local Division

Wallis AJ: E

[1] On Monday 3 March 2008, when I presided in the motion court, there were 15 unopposed applications on the roll in which the respondent was either the Minister of Social Development or the South African Social Security Agency (SASSA). When the matters were called, counsel F appearing for the applicants dealt with them in groups that appeared to correspond to the identity of the firm of instructing attorneys. A representative from the office of the State Attorney appeared, but through no fault of his own he was manifestly unfamiliar with any of the cases and asked that they should stand down. Thereafter, in all of the matters some or other consent order was taken, frequently accompanied by an order G for costs against the relevant respondent. This struck me then as a largely pointless exercise involving significant and probably unnecessary legal costs that would be borne by the taxpayer.

[2] The matters in question emanated from four firms of attorneys and they in turn appeared to be instructed by two agencies that assist persons H applying for social assistance grants, who encounter problems in the administration of these grants. (I will refer compendiously to social assistance grants as including all forms of grants provided for in the Social Assistance Act 13 of 2004 (the 2004 Act) or its predecessor, the Social Assistance Act 59 of 1992 (the 1992 Act).) On enquiry I was I informed from the bar that these agencies charge a fee for their services, although I was not told either the amount of the fee or the basis upon which it is calculated, nor how people so impoverished that they qualify for social assistance grants can afford to pay fees. As appears later in this judgment the legal costs of these matters are substantial and, when multiplied by the number of cases involved, enormous. J

Wallis JA

A [3] Leaving aside the question of costs, my primary concern related to the contents of the application papers in these papers. Each of the cases raised one of three separate complaints, namely:

(a)

a complaint that the applicant had submitted an application for one or other form of social assistance grant, either a social or a disability B grant for themselves, or a child-support grant, but had received no response to the application;

(b)

a complaint in regard to disability grants that an application for such a grant had been refused and the applicant had exercised their right to appeal against such refusal, but no arrangements for an appeal hearing had been made;

(c)

C a complaint that the applicant had been in receipt of a social assistance grant in the past but payment had been stopped for reasons of which the applicant was unaware.

In each instance the claim for relief under this head was joined in the alternative with a claim for payment of the grant in question, payment of D arrears and a claim for costs.

[4] Each of the cases accordingly raised issues in terms of the provisions of the 2004 Act, or possibly its predecessor, the 1992 Act, because in a number of the cases the factual allegations related to matters occurring prior to 1 April 2006 when the 2004 Act came into operation. There was E no attempt in the affidavits in any of these cases to identify which Act was applicable or to deal with the legal implications of the transition from one to the other. One such potential problem lay in the fact that the administration of the 1992 Act was delegated to the provinces in terms of the provisions of s 235(6)(b) of the interim Constitution. Whilst that F delegation was held by the Constitutional Court to be unlawful and invalid in its judgment in Mashavha v President of the Republic of South Africa and Others2005 (2) SA 476 (CC) (2004 (12) BCLR 1243), the Constitutional Court suspended the operation of its order of invalidity for a period of 18 months from the date of the order. Accordingly, as the judgment was handed down on 6 September 2004, the order of G invalidity came into effect on 6 March 2006, a mere three weeks before the 2004 Act came into operation. In the result, the provincial departments had been responsible in law for the payment of social grants prior to 6 March 2006, and SASSA had become liable from 1 April 2006. The possible implication of this was that claims in respect of the earlier period H were claims that should properly lie against the provincial department that had been responsible under the 1992 Act for the administration of social grants, whilst claims in respect of the period after the declaration of invalidity came into force, or possibly after the 2004 Act itself came into force, would lie against SASSA and the Minister of Social Development I at a national level. As the funds to pay these claims would be drawn from different budgets, depending upon whether the liability lay at provincial or national level, this was plainly an issue of considerable importance. Nonetheless, no attempt was made in any of the matters that came before me to deal with it. In addition, no attempt was made to explain the process of transition, so that it was not clear why, for J example, SASSA would be liable for not responding to a claim for a grant

Wallis AJ

lodged with the provincial authorities several years prior to it having A come into existence. On the face of matters, an application for a social assistance grant had been made to one authority and an entirely separate authority was sought to be held liable for the response (or lack of it) to that application.

[5] Leaving aside the statutes under which the obligation to make social B assistance grants available arises, the position is that, with effect from 1 April 2006, the administration of those grants and responsibility for paying them was delegated to a government agency established for that purpose, namely SASSA. As many of the complaints related to the failure of SASSA to discharge its statutory functions, it followed that the C provisions of the South African Social Security Agency Act 9 of 2004 ('the SASSA Act'), under which SASSA operates, might well be relevant to the claims being advanced in these applications. Notwithstanding that, none of the application papers made any pertinent reference to the provisions of the Act. One potentially important aspect is that in terms of s 14 of the SASSA Act it is provided that: D

'14 Legal proceedings against Agency

(a)

Any legal proceedings against the Agency must be instituted in accordance with the Institution of Legal Proceedings against Certain Organs of State Act, 2002 (Act 40 of 2002).

(b)

The Agency is, for purposes of paragraph (a), deemed to be an E organ of State contemplated in paragraph (c) of the definition thereof in section 1 of the above Act.'

None of the proceedings before me made reference to compliance with the Institution of Legal Proceedings against Certain Organs of State Act ('the Legal Proceedings Act'). This is a matter to which I will revert. F

[6] The failure in these cases to identify the relevant statutory provisions on which reliance was to be placed either as demonstrating the right to a social assistance grant, an appeal hearing or reasons for the withdrawal of a grant, as the case may be, or to demonstrate the existence of a default on the part of the respondent, flies in the face of long-established G authority. (Ketteringham v City of Cape Town1934 AD 80 at 90 as endorsed by the Constitutional Court in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others2004 (4) SA 490 (CC) (2004 (7) BCLR 687) para 27 footnote 16.) That authority requires a litigant who seeks to rely upon a statutory provision either to set out in its H pleadings the provisions on which reliance is to be placed or, at the very least, to set out facts that will enable the other party to identify the statutory provision in question. Where proceedings are brought by way of application, that information must be embodied in the affidavits, as it is clear that the affidavits serve the function both of the pleadings and of providing the essential evidence to be relied upon by the applicant. (Hart I v Pinetown Drive-In Cinema (Pty) Ltd1972 (1) SA 464 (D) at 469C - E.)

[7] Of course, it would have been apparent to the respondent, as it was apparent to me on reading the papers, that the basis for the applicants' claims lay somewhere within the provisions of either the 1992 Act or the 2004 Act and any regulations promulgated under these Acts. However, J

Wallis AJ

A that is not sufficient. It does not suffice for a litigant to point their opponent (and the court) in the general direction of a thicket of legislative provisions, leaving them to hack a path through the undergrowth as best they can. That does not constitute compliance with the obligation that rests upon a litigant to set out their case with reasonable B clarity in either their pleadings or, where the matter proceeds by way of application, in the affidavits filed in support of the application.

[8] In adopting this approach, I do not believe that I am imposing an undue burden on these litigants, for whose plight I have considerable sympathy. They are, however, represented by attorneys who appear to C have established a mini-industry in cases of this type. (Only five firms have been involved in the cases that have come before me, but I am told by the State Attorney that there are about 30 firms specialising in this type of case in the courts of this province.) There can be no excuse for the lawyers not being fully acquainted with the relevant statutory D provisions and able with clarity and simplicity to identify which provisions are relevant to each type of case identified in para [3] of this judgment or any variant that may come before the courts. I would have expected in these matters to have found an affidavit by...