Mahambehlala v MEC for Welfare, Eastern Cape, and Another

• Jurisdiction: South Africa
• Judge: Leach J
• Judgment Date: 04 April 2001
• Hearing Date: 14 December 2000
• Docket Number: 2127/2000
• Citation: 2002 (1) SA 342 (SE)
• Court: South Eastern Cape Local Division
• Counsel: C J Mouton SC (with him N J Mullins) for the applicant. L A Schubart for the respondents.

Leach J:

In terms of s 2(a) of the Social Assistance Act 59 of 1992 (the Act), the Minister for F Welfare and Population Development is empowered to make social grants to disabled persons out of moneys appropriated for that purpose by the provincial legislature concerned. Acting in terms of s 19 of the Act, the Minister published certain regulations in Government Notice R418 of 31 March 1998 (the regulations) relating, inter alia, G to the requirements or conditions to be complied with by a person in order to be entitled to a grant, the manner in which applications for grants are to be made, the approval or refusal of any application for a grant and the date of accrual of any grant if approved. Reference therein is made to certain functions to be performed by the H 'Director-General'. It is common cause that the Act has been assigned to the provinces and that, for the Eastern Cape, the functions of the 'Director-General' referred to in the regulations have vested in the second respondent.

It is also common cause that the applicant, an unemployed woman in her late forties and resident in Motherwell, qualifies for a social grant under the Act and the regulations, that she applied for such a I grant on 7 March 2000, and that her application was made on the proper form to which were attached the necessary prescribed documentation in formal compliance with regs 8 and 9 of the regulations. Unfortunately, the months passed without any response from the Department of Welfare J

Leach J

and, eventually, on 12 October 2000 she launched the present proceedings. In her founding affidavit she alleged A that a period of three months would be 'more than sufficient' for a decision to be made in respect of an application for a social grant, and that a number of her constitutional rights had been infringed by the failure of the second respondent to take a decision on her application. She therefore sought an order compelling the second B respondent to consider and decide upon her application for a social grant and to advise her attorney of the decision taken in regard thereto. In addition, and in the event of the second respondent approving the application for a grant, she sought an order (a) directing the first respondent to commence payment thereof on the basis that it had been approved on 7 June 2000, (b) obliging the first respondent to continue making C such payments on a monthly basis for as long as she qualifies to receive the grant, and (c) ordering the first respondent to pay interest on amounts which should have been paid calculated at the currently prescribed legal rate of 15,5% per annum commencing from 7 June 2000. Finally, and in the event of the second respondent refusing the application, she sought an order directing D him to provide reasons for his decision in that regard.

Although the respondents did not initially oppose the proceedings and the matter was accordingly set down as an unopposed application on 8 November 2000, the State Attorney appeared at the doors of the Court and, after negotiations between the respective legal representatives, the following order was granted by consent: E

'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 to advise applicant's attorney of his decision within 15 days of the date of this order. F

2.

That, in the event of the Director-General refusing the applicant's application for a social grant, the second respondent provide the applicant's attorney with reasons for the decision having been taken within 15 days of the date of this order.

3.

That the second respondent pay the costs of this application.

4.

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

5.

That prayer 2 be and is hereby postponed to 7 December 2000 for a declaratory order to determine the date upon which the social grant accrues to the applicant.

5.1

The applicant file a supplementary affidavit, if any, on or H before 15 November 2000.

5.2

The respondents file their answering affidavits, if any, on or before 22 November 2000.

5.3

The applicant file replying affidavits, if any, on or before 27 November 2000. I

6.

That the costs of the application for a declaratory order be costs in the cause.'

Pursuant to this order, both sides filed affidavits, the respondents' answering affidavit having been deposed to by the Regional Director of the Department of Welfare in Port Elizabeth, one Nokwe. He stated that the 'Department' (by which I presume he meant the second respondent) J

Leach J

had approved the applicant's application for a disability grant on 9 November 2000 (ie the day A after the Court had granted the order by consent). He went on further to state that the period to decide upon an application should 'ideally' be three months but that the nine months that it had taken the second respondent to come to a decision had not been unreasonable. B

In the light of the approval of the applicant's application for a grant, para 1 of the order of 8 November 2000 can be regarded as having been satisfied. By the same token, para 2 thereof can be regarded as having fallen away. Accordingly, the issue which still has to be decided is the declaratory order determining the date of accrual of the grant as mentioned in para 5 of the order. The prayer 2 further referred to in that paragraph is the second prayer of the notice of C motion dated 12 October 2000, which reads as follows:

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

(a)

commence payment thereof with effect from 7 March 2000, within 15 days after the date of the order 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;

(b)

pay interest on arrears at 15,5% per annum commencing from 7 June 2000.' E

As the declarator mentioned in the order of 8 November 2000 is inextricably related to this relief, and as the applicant's application for a disability grant was subsequently approved on 9 November 2000, I am therefore called upon to decide when the grant accrued to the applicant and whether the first respondent is obliged to make payment thereof with effect from 7 March 2000 and F to pay interest on arrears with effect from 7 June 2000, as claimed in the notice of motion.

Dealing at the outset with the date of accrual of the grant, it is necessary to refer to reg 11(1) which provides as follows:

'11(1) The date of accrual of a grant shall be the date on which G the Director-General approves the application for the grant in terms of reg 25(1): Provided that a grant shall not accrue for a period exceeding three months from the date of approval of the grant.'

Leaving aside the proviso, the regulation clearly prescribes the date of accrual of a grant, namely the date of approval by the second respondent. But difficulties arise from the terms of the H proviso that a grant shall not accrue for a period exceeding three months from the date of its approval, which is wholly inconsistent with the provision in the subregulation itself. It is this inconsistency which, understandably, has led to confusion. No assistance in attempting to unravel this conundrum is to be found in the Afrikaans version of the regulation which is similarly perplexing, providing as follows: I

'11(1) Die datum waarop 'n toelae toeval, is die datum waarop die Direkteur-generaal die aansoek om die toelae goedkeur ingevolge reg 25(1): Met dien verstande dat 'n toelae nie sal toeval vir 'n tydperk wat drie maande vanaf die datum van die goedkeuring van die toelae oorskry nie.' J

Leach J

One is then faced with a regulation which provides for a social grant to accrue on a specific date (the date of its approval) and a A proviso thereto which states that it should not accrue for a period exceeding three months from that date. The only literal interpretation which could give this proviso some meaning would be to interpret the words 'not accrue' in the proviso as meaning 'not be paid', which would mean that a social grant would be paid for no longer than three months from the date of its approval. That this was clearly not the B intention of the Minister is readily apparent from the regulations as a whole, including reg 2(3) which envisages a disability grant to persons who are either permanently disabled or temporarily disabled for a continuous period of between six and 12 months, and reg 24 which deals with the lapsing of social grants, particularly reg 24(5) which C provides that a grant shall lapse if not claimed by the beneficiary for a period of three consecutive months.

It was contended by the applicant's counsel in their heads of argument that as legislation should be interpreted in favour of effectiveness and validity and against absurdity and unfairness, the proviso had to be interpreted as meaning that, once an application for D social grant is approved, such grant will be regarded as having accrued for a period not exceeding three months before such approval. In my view, there is no room for such an interpretation. Whatever the Minister may have intended to convey, the proviso certainly does not prescribe the date of accrual as being three months before the date prescribed by the regulation itself as the date of E accrual, viz the date of approval of the application. In any event, Mr Mouton, leading counsel for the applicant, correctly conceded that he could not ask me to find that the Minister had intended the proviso to prescribe a date three months before the date of approval of an application as being the date upon which a social grant accrues. F

But...