Lunyawo v South African Social Security Agency

• Jurisdiction: South Africa
• Court: Eastern Cape Division
• Judge: D van Zyl J
• Judgment Date: 07 April 2011
• Citation: 2011 JDR 0370 (ECM)
• Hearing Date: 10 March 2011
• Docket Number: 1685/2010

D. Van Zyl J:

[1]

This matter concerns the provisions of the Social Assistance Act (the "Act") [1] and the regulations issued pursuant thereto. [2] The applicant was the

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recipient, or as described in the Act, the beneficiary of a disability grant (the "grant") in terms of section 9 of the Act. In September 2009 payment of the grant stopped and the applicant approached this Court for assistance by way of motion proceedings. The applicant contended that the payment of the grant was terminated unlawfully in that the decision of the applicant to discontinue payment infringed upon her right to fair administrative action. The reason, according to her, was the respondent's failure to apply a fair procedure by failing to advise her of the intention to cancel the grant and to afford her an opportunity to make representations. In short, her case was that she was not given an opportunity to influence the respondent before it took a decision to terminate the grant.

[2]

The respondent's answer was that the application is ill-conceived in that the applicant was awarded a temporary grant which had lapsed and that there was as a consequence no decision taken to terminate the grant which can be reviewed. As I shall explain more fully hereinunder [3] , a temporary grant is terminated when the period of disability had lapsed. The applicant

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in reply denied that she was informed that what she was awarded was a temporary grant. It is this denial that became the focus in argument. For reasons that will appear more fully later in this judgment, the main issue which arose for determination was the nature of the legal consequences which flowed from a failure of the respondent to notify a successful applicant for a social grant of the approval of his or her application in the manner as envisaged in regulation 13(3). This regulation reads as follows:

"(3)

Upon approval of an application for a social grant, the Agency must inform the applicant in writing of such approval and

(a)

of the payment details;

(b)

of the obligations of the applicant to notify the Agency of a change in circumstances;

(c)

in the case of refugees, the date of lapsing of the social grant; and

(d)

in the case of a temporary disability grant, the reasons therefore, the duration of the social grant and the date upon which it lapses"

[3]

It was contended in argument on behalf of the applicant by her attorney Mr Zono, that the failure of the respondent to advise an applicant for a grant, not only that he or she was awarded a temporary grant as

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opposed to a permanent grant, but also of the other matters contemplated in regulation 13(3), creates a legitimate expectation with the applicant concerned that he or she will continue to receive payment of the grant until such time as it has been lawfully "reviewed". Accordingly, so it was argued, it was not open to the respondent to contend that, because the applicant was awarded a temporary grant, it lapsed by the effluxion of time, and that there was consequently no decision that is capable of being reviewed.

[4]

At first glance this proposition may appear rather surprising. The reason for saying this is twofold: firstly, it implies that the payment of a grant for a period of time coupled with the failure of the respondent to notify the applicant as contemplated in regulation 13(3)(d) may create a substantive legitimate expectation, that is, an expectation to, as of right, receive the payment of a grant [4] , as opposed to a legitimate expectation, the purpose of which is to afford no more than a right to a fair hearing before an adverse decision is taken [5] . Secondly, somehow an application for the review of a decision to terminate the payment of a permanent grant is in reply converted

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into an application for the review of a decision to award the applicant a temporary grant.

[5]

However, Mr Zono did not find himself without authority for his submission. Support for it can be found in the case of Joni v The Member of the Executive Council for Social Development, Eastern Cape [6] ("Joni") wherein the Court, relying on an earlier judgment in Mdodisa v The Member of the Executive Council of Social Development [7] ("Mdodisa") and an article by N. de Villiers entitled "Social Grants and the Promotion of Administrative Justice Act" [8] , said the following:

"However, the learned judge went on to hold that a decision to make a grant a temporary one amounts to an administrative action and once that decision was made the applicant then had the right to receive notification of the decision and to make representations through an appeal procedure. Accordingly, the learned judge continued and held that the recipient of a grant in those circumstances has a legitimate expectation that there would be a proper review and hearing before the payments of the grant were stopped.

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Thus when no such review took place it is not open to the MEC to rely on or invoke the automatic lapsing provision of Regulation 24(1)(c)." [9]

[6]

On a reading of the judgment in Mdodisa, it becomes clear that the Court in turn, for the passage relied on in the Joni case, placed reliance on a judgment of the Witwatersrand Local Division in Mpofu v The Member of the Executive Committee for the Department of Welfare and Population Development in the Gauteng Provincial Government [10] ("Mpofu") and on the article of N. de Villiers referred to earlier.

[7]

The matter is however not as straightforward as it may appear to be. On a closer examination of the judgments of this Court where this issue was raised and decided, a conflict of views are revealed, and there exists, what may be described as two schools of thought. These differences in approach were dealt with by Alkema J in a judgment delivered in an application for leave to appeal in Nyanisa v The Member of the Executive Council for Social Development, Eastern Cape [11] . He explained it as follows:

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"On [the] one hand, it is often held that even accepting the applicant was not informed that her grant was temporary, it does not distract from the nature of the grant – it remains a temporary grant which lapses by effluxion of time. On the other hand, the second approach suggests that the failure to inform the application that her grant is only of temporary nature, creates a legitimate expectation by her that the grant is of permanent nature. On this basis, so it is said, the review application of the decision to terminate payment of the grant may be treated as a review application of the decision to grant only a temporary disability grant, and not a permanent grant. For this proposition reliance is always put on N. de Villiers, Social Grants and the promotion of Administrative Justice Act, SAJHR, Vol. 18 (Part 3) 2002 at 338.

[6] Following the second line of cases, the decision to grant a temporary grant is then reviewed and set aside, together with further orders which effectively have the result that the grant is changed to a permanent grant coupled with an order to make payment under the (new) permanent grant. Such an order is made nothwithstanding that it is not the relief claimed, or that the issues of temporary grant versus permanent grant have not been canvassed or argued." [12]

In his judgment the learned Judge also referred to another aspect, namely the different manner in which factual disputes regarding the issue whether the

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provisions of regulation 13(3) have been complied with, have been dealt with. [13] For reasons that will be more fully explained later, this is an aspect that did not arise in the present matter and it is consequently not necessary to deal therewith in this judgment.

[8]

At the risk of adding a third approach to the issue raised I propose to examine and test the validity of the submission that the Mdodisa judgment is authority for the proposition put forward on behalf of the applicant, and if so, whether the authorities referred to in that judgment and in subsequent judgments can lend support thereto. However, before doing so, and in order to place the whole enquiry in its proper context, it is necessary to examine more closely the applicant's case as pleaded in the papers filed on her behalf, to set out the essential facts of the matter, and to define the issues that arise therefrom.

[9]

The facts as set out in the applicant's founding affidavit upon which she placed reliance for the relief sought are briefly the following: She made

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application for the payment of a disability grant in 2004 at Mqanduli. The application was approved and she started receiving payment in 2004. She continued to receive payment of the grant every month thereafter until September 2009 when she was advised by an official at the relevant pay-point that the grant had been terminated. She then approached the respondent's office in Mqanduli where she was similarly advised that the grant had been terminated. She was not given any reason why the grant was terminated.

[10]

The applicant stated that she was not given prior notification of the termination of the grant nor was she given an opportunity to make representations to the respondent before such a decision was taken. The applicant also contended that she "legitimately expected that I would receive my disability grant until properly reviewed". She submitted that in these circumstances the termination of her grant was unreasonable, without just cause and infringed upon her constitutionally entrenched rights.

[11]

According to the respondent the applicant made application in June 2004 at Ngqeleni, (as opposed to Mqanduli), for a disability grant which application was approved for a period of twelve...