Kate v MEC for the Department of Welfare, Eastern Cape

• Jurisdiction: South Africa
• Judge: Froneman J
• Judgment Date: 21 July 2004
• Docket Number: 1907/03
• Hearing Date: 03 June 2004
• Counsel: B C Hartle for the applicant. O H Ronaasen for the respondent.
• Court: South Eastern Cape Local Division

Froneman J: F

[1] The issues to be decided in this application raise the question to what extent the judgment of the Supreme Court of Appeal in Jayiya v Member of the Executive Council for Welfare, Eastern Cape, and Another [1] might exercise a chilling effect on efforts by the High Court in this province to ensure compliance on the part of the provincial government with its G constitutional duties of efficient and accountable public administration.

The factual context

[2] The applicant is a 62-year-old woman who lives in Govan Mbeki Settlement, Port Elizabeth. She suffers from arthritis. On 16 April 1996 she applied for a social grant under the Social Assistance H Act 59 of 1992 as amended by the Welfare Laws Amendment Act 106 of 1997 ('the SAA'). It was not until more than three years later, in August 1999, that her application for the social grant was approved and she started receiving regular monthly payments. She also received R6 000 as so-called 'back pay' with her first monthly payment, although she I was actually entitled to R19 120 in this regard. This she did not know until she consulted attorneys in March 2003. They made demand for proper

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payment but received no response. In October 2003 the attorneys A launched this application on the applicant's behalf, seeking a review of various aspects of the respondent's conduct; payment of the outstanding sum of R13 120; interest on that sum at the legal rate; and costs. In December 2003 the respondent paid the applicant a further sum of R13 015 in respect of 'accrued social grants', but refused to pay any interest or the applicant's costs. B

[3] The respondent does not dispute that the applicant is a disabled person entitled to a social grant under the SAA and its predecessors, nor that she properly applied for it on 16 April 1996. Under the applicable regulations [2] the grant is deemed to have accrued to her from the date of her application. The respondent offers no explanation of why it took more than three years C to consider and eventually approve the grant; why only R6 000 was initially paid to her as back pay; why there was no response to the demand for payment before these proceedings were instituted; or why the further payment of R13 015 was only made in December 2003. The respondent also offers no specific defence to the merits of the D applicant's claim for payment in terms of the grant, but contends that the claim for back pay and interest is not competent under the provisions of the Promotion of Administrative Justice Act 3 of 2000 ('PAJA') and objects to the fact that she has sought to vindicate her rights in the High Court. E

[4] The relief that the applicant seeks in this application is fourfold in nature. She seeks procedural relief, insofar as it may be necessary, in the form of an extension of the 180-day period within which she had to bring the application under s 7(1) of PAJA and an exemption under s 7(2)(c) of PAJA from exhausting internal remedies in terms of the SAA. Substantively she claims three further F forms of relief. The first claim is for the judicial review of the respondent's delay in processing her application for a grant from 1996 to 1999; of the failure to make full payment of the outstanding amount when the grant was ultimately approved in 1999; of the failure to advise her of the insufficient payment, to give reasons for the G insufficient payment, and to inform her of any appeal procedure relating to the insufficient payment; and of the continued failure to pay her the social benefits she is entitled to. The second claim is for payment of the R13 120, [3] and the third claim is for interest on the arrears. [4] H

Respondent contends that the application should be dismissed for a number of reasons, namely, (1) that the applicant failed to exhaust her internal remedies, (2) that she failed to make out a case for extension of the 180-day period within which the application should have been I

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brought, (3) that the claim for R13 120 and for interest thereon is not competent under PAJA, and (4) that the respondent made a reasonable A offer of settlement of the matter.

[5] All this is, unfortunately, familiar terrain. For the past number of years there has been a persistent and huge problem with the administration of social grants in this province. The failure in proper administration has led to the situation where the courts have become B the primary mechanisms for ensuring accountability in the public administration of social grants. Week after week the High Court in this province is confronted with many applications of the present kind. Most of these cases are settled in favour of the applicants: As in the present case it usually turns out that there has been some C administrative failure, as a result of which the applicants' original social grants are properly considered and, if approved, the applicants are paid what they should have been paid in the first place. Costs then follow the result, usually by agreement. Where grants are approved the payments usually consist of back pay for arrears, and interest on the D arrears from the time when the grant should have been approved in the first place.

The present case is the first that I am aware of where the respondent had adopted the stance that an applicant is not entitled to claim these arrears and interest in the High Court by way of application and that, if a valid claim for such payments exists, it should be sought by way of delictual or contractual action in the magistrate's court. The E changed stance on these issues appears to be based on the authority of Jayiya.

[6] To appreciate the import of Jayiya it is necessary to set out some of the legal developments that took place in this province prior to the Supreme Court of Appeal's judgment in Jayiya. [5] F

Local developments

[7] For present purposes it is necessary to refer to only three aspects of this development, namely, first, the citation of government officials as respondents in this kind of litigation; second, the granting of 'constitutional' relief, and third, the enforcement of G court orders. The first two relate directly to what has transpired in the present case, the last only indirectly, in what might follow upon an order made here.

[8] The first aspect could hardly be called a contentious development. It involved the citing of not only the political head of H the department as a respondent in a representative capacity [6] in the proceedings, but also the individual functionary to whom the particular responsibility under the SAA had been delegated. Rule 53 of the Uniform Rules of Court expressly requires that the review of any decision shall be by way of I

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notice of motion directed and delivered to the person or body whose decision is A sought to be reviewed.

[9] The second development was to grant applicants, whose applications for social grants had not been approved timeously, constitutional relief under s 38(1) of the Constitution, in the form of back pay - payment of the amount they would have received had their application been approved in proper B time - as well as interest on these arrears. The groundbreaking judgments in this regard were those of Leach J in Mahambehlala v MEC for Welfare, Eastern Cape, and Another [7] and Mbanga v MEC for Welfare, Eastern Cape, and Another. [8]

[10] The third related development was to hold that the responsible MECs of departments and other public functionaries could be C declared in contempt of court where judgment debts sounding in money against the State were not paid. This was what was decided by the Full Court (per Jafta J) in Mjeni v Minister of Health and Welfare, Eastern Cape [9] , and followed by Ebrahim J in East London Transitional Local Council v Member of the Executive Council of the Province of the Eastern Cape for Health and Others. [10] D

[11] Taken together, these developments offered some hope that constitutional accountability for the public administration of the SAA in this province could be enforced in the courts. Individual public responsibility, in contrast to nominal political responsibility, could be enhanced by forcing individual public officials to explain and E account for their own actions, as parties to the litigation. Where they acted wrongly the poor and disabled applicants could be compensated by being paid what they should have received in the first place. And if, nevertheless, the State failed to comply with the court order of payment, the possibility of committal for contempt of court, or at F least a declaration to that effect, could help individual public officials to pay heed to their constitutional public duties. But in Jayiya the Supreme Court of Appeal cast doubt on all of this.

The Jayiya judgment [11] G

[12] Much of the blame for the unsuccessful appeal of Mrs Jayiya can be laid at the door of the confusion arising from the citation in that case of both the responsible Member of the Executive Council for Welfare and the Permanent Secretary for Welfare as respondents, and the uncertainty about what relief was sought against each of them. [12] This led Conradie JA to say the H following: [13]

'[5] A litigant brings a national or provincial department before court by citing the political head of the department in a representative capacity. In the case of a I

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department of the National Government, this would be the responsible Minister. In the case of a A provincial department it is the responsible member of the executive council. That is what s 2 of the State Liability Act 20 of 1957 provides. The first respondent should have been the only one. If this had been borne in mind at the outset, some of the procedural mishaps might have been avoided.

[6] We were told from the Bar that the second respondent was...