Jayiya v Member of the Executive Council for Welfare, Eastern Cape, and Another

• Jurisdiction: South Africa
• Judge: Harms JA, Zulman JA, Farlam JA, Conradie JA and Heher AJA
• Judgment Date: 31 March 2003
• Citation: 2004 (2) SA 611 (SCA)
• Docket Number: 264/2002
• Hearing Date: 14 March 2003
• Counsel: C J Mouton SC (with him C K Mey) for the appellant. R P van Rooyen SC (with him O H Ronaasen) for the respondents.
• Court: Supreme Court of Appeal

Conradie JA:

[1] In the Court a quo Ludorf J declined to issue a rule nisi calling upon the second respondent to explain, G first, why she had not complied with an order of Court granted by Moodley AJ on 23 May 2001; secondly, how she intended to comply with it; and, lastly, why she should not be imprisoned for her contemptuous failure to have done so. The appeal against the refusal to grant the order is with his leave. H

[2] For an understanding of how all this came to pass, it is necessary to recount some of the history. The original notice of motion sought relief not only against the second respondent who is the Permanent Secretary: Welfare of the Eastern Cape Provincial Government but also against the responsible Member of the Executive Council who was cited as the first respondent. The case made out by the I appellant - and not contested by the respondents - is that she had in August 1999 applied for a permanent disability grant under the Social Assistance Act 59 of 1992. Nineteen months then elapsed. Despite numerous enquiries she could extract no decision from the Welfare Department. Eventually, like J

Conradie JA

many - far too many - other welfare applicants in the Eastern Cape, she turned to the Courts. The relief A she sought was the following:

'1.

That the second respondent, or the appropriate official in his department, be and is hereby ordered to consider and decide upon the applicant's application for a social grant and to advise applicant's attorney of his decision within 15 days of the date of this order. B

2.

That in the event of the second respondent approving the applicant's application for a social grant, the first respondent be ordered to:

(a)

Forward a copy of the terms of the written approval to applicant's attorney within 15 days of the date of this order. C

(b)

Commence payment of the grant within 30 days after the date of the approval with effect from the date of approval and to continue such payments on a monthly basis thereafter for as long as the applicant qualifies for such payments in terms of the relevant laws. D

(c)

Pay in a lump sum within 30 days of the date of approval the amounts which would have been paid to the applicant as a social grant during the period commencing on the date of accrual of the grant, being 25 November 1999 and ending on the date of approval. E

3.

The first respondent be ordered to pay the applicant interest on the amounts which the applicant became entitled to receive as a social grant for the period 25 August 1999 until the date of approval of the applicant's application, such interest to be calculated at the legal rate of 15,5% per annum from the date such amounts would have been paid to the applicant if the applicant's grant had been approved on 25 November 1999, to date of payment. F

4.

In the event of the Director-General refusing the applicant's application for a social grant, the second respondent is ordered to provide the applicant's attorneys with adequate reasons for the decision having been taken, within 15 days of the date of the decision. G

5.

Granting leave to the applicant to supplement her founding affidavit in the event of this application being opposed.

6.

That this order be served on the respondents care of the State Attorney, Port Elizabeth. H

7.

That the first and second respondents pay the costs of this application jointly and severally.

8.

Granting an order for such further and/or alternative relief as the above honourable Court may deem appropriate.'

[3] The relief sought in prayers 1 and 4 was directed against the second respondent, that in prayer 2 against the first respondent and that in prayer 7 against both. Since the launch of I the application seemed to have produced no result, an order was taken before Moodley AJ reading as follows:

'1.

That the second respondent or the appropriate official in his department, consider and decide upon the applicant's application for a social grant and J

Conradie JA

to advise applicant's attorney of his decision within fifteen days of the date of this order. A

2.

That in the event of the second respondent approving the applicant's application for a social grant, the second respondent be ordered to:

(a)

Forward a copy of the terms of the written approval to applicant's attorney within 15 days of the date of this order;

(b)

Commence payment of the grant within 30 days of the date of the approval with effect from the date of approval and to continue such payments on a monthly basis thereafter for as long as the B applicant qualifies for such payments in terms of the relevant laws;

(c)

Pay in a lump sum within 30 days of the date of the approval, the amounts which would have been paid to the applicant as a social grant during the period commencing on the date of accrual of the grant, being 25 November 1999 and ending on the date of approval. C

3.

That the second respondent pay the applicant interest on the amounts which the applicant became entitled to receive as a social grant for the period 25 August 1999 until the date of approval of the applicant's application, such interest to be calculated at the legal rate of 15,5% per annum from the date such amounts would have been paid to the applicant if the applicant's grant had been approved on 25 November 1999, to date of payment. D

4.

That in the event of the second respondent refusing the applicant's application for a social grant, provide the applicant's attorneys with adequate reasons for the decision having been taken, within 15 days of the date of the decision. E

5.

That this order be served on the second respondent care of the State Attorney, Port Elizabeth.

6.

That the second respondent pay the costs of this application.'

[4] 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 F envisaged in prayer 3, the Court, following a draft handed up on the day of the hearing, made an order...