Mahambehlala v MEC for Welfare, Eastern Cape, and Another

• Jurisdiction: South Africa
• Judgment Date: 04 April 2001
• Citation: 2002 (1) SA 342 (SE)

Mahambehlala v MEC for Welfare, Eastern Cape, and Another
2002 (1) SA 342 (SE)

2002 (1) SA p342

Citation	2002 (1) SA 342 (SE)
Case No	2127/2000
Court	South Eastern Cape Local Division
Judge	Leach J
Heard	December 14, 2000
Judgment	April 4, 2001
Counsel	C J Mouton SC (with him N J Mullins) for the applicant.; L A Schubart for the respondents.

Flynote : Sleutelwoorde

Constitutional law — Human rights — Right to administrative justice — G Failure by provincial government to process within reasonable time H application for welfare grant in terms of Social Assistance Act 59 of 1992 and 1998 regulations promulgated thereunder — Such an infringement of applicant's rights under s 33(1) of Constitution of the Republic of South Africa Act 108 of 1996 — More than three months constituting unreasonable delay.

Constitutional law — Fundamental rights in terms of chap 2 of Constitution of the Republic of South Africa Act 108 of 1996 — Infringement of — 'Appropriate relief' in terms of s 38 — What I constitutes — Breach of right to administrative justice in terms of s 33 of Constitution — Failure by provincial government to process within reasonable time application for welfare grant in terms of Social Assistance Act 59 of 1992 and 1998 regulations promulgated thereunder — Just and equitable for applicant to J

2002 (1) SA p343

be placed in position in which he would have been had fundamental administrative justice not A been unreasonably delayed — Common law not providing for such relief — Appropriate 'constitutional relief' required to be fashioned — Mora interest not being due, interest on amounts applicant would have received had grant been approved within reasonable time also appropriately awarded as 'constitutional relief'. B

Interest — Interest a tempore morae — Liability of State for — Provincial government having failed to process within reasonable time application for welfare grant in terms of Social Assistance Act 59 of 1992 and 1998 regulations promulgated thereunder — Applicant to be placed in position in which he would have been had payment not been unreasonably delayed — Whether applicant entitled to mora interest on amounts he would have received had grant been approved C within reasonable time — 'Arrears' only becoming due upon Court's order — No enforceable debt having existed before — No mora interest due on arrears — But, interest on amounts applicant would have received had grant been approved within reasonable time also appropriately awarded as 'constitutional relief'. D

Statute — Interpretation of — Regulations — Proviso to regulation wholly irreconcilable with those of regulation itself — Main part of regulation severable from proviso — Main part of regulation in addition carrying out main object of enabling statute — Proviso regarded as pro non scripto and effect given to remainder. E

Headnote : Kopnota

In terms of s 2(a) of the Social Assistance Act 59 of 1992 the Minister of Welfare and Population Development was empowered to make social grants to disabled persons out of moneys approved for that purpose by the provincial legislature concerned. In 1998 the Minister in terms of s 19 of the Act published certain regulations (the 1998 regulations) relating, inter alia, to the manner in which applications for grants were to be made, the approval or refusal of any application, and the date of accrual of any F grant if approved. The Act was assigned to the provinces and, for the Eastern Cape, the functions of the 'Director-General' referred to in the regulations vested in the second respondent, the Director-General: Welfare of the Eastern Cape Provincial Government. The applicant, who qualified for a social grant under the Act and regulations, properly applied for one on 7 March 2000. There was, G however, no response from the Department of Welfare and on 12 October 2000 the applicant launched the present application for an order compelling the second respondent to consider and decide upon her application. In addition, and in the event of the second respondent approving the application for a grant, the applicant sought an order directing the respondent to commence payment on the basis that the grant had been approved on 7 June 2000 (it having H been alleged in the founding affidavit that a period of three months constituted sufficient time), and ordering the first respondent to pay interest on the amounts which should have been paid, calculated at the prescribed rate. On 8 November the Court granted an order by consent in terms of which the second respondent agreed to consider the applicant's application within 15 days. The question of the date I of accrual of the grant was by agreement postponed to 7 December 2000. Pursuant to this order both sides filed further affidavits. The deponent for the respondents stated that the applicant's application for a grant had been approved on 9 November 2000 (ie the day after the granting of the order by consent). He also stated that the time to decide on an application should 'ideally' be three months, but that the nine months it J

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had taken to decide on the applicant's application had not been unreasonable. The A Court on 7 December thus had to decide when the grant had accrued to the applicant; whether the first respondent was obliged to make payment thereof with effect from 7 March 2000; and whether he had to pay interest on arrears with effect from 7 June 2000.

Regulation 11(1) of the 1998 regulations published in terms of s 19 of the Act provided that 'the date of accrual of a grant shall be the B date on which 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'. (By way of contrast the earlier 1996 regulations provided that the date of accrual was date on which the application was attested, that is when it was signed by the applicant in the presence of an attesting officer.) C

Held, that the proviso to reg 11(1) of the 1998 regulations was wholly inconsistent with the terms of the subregulation itself: on the one hand, the grant accrued on a specific date (the date of its approval) and, on the other, it did not accrue for a period exceeding three months from that date. Bearing in mind that the function of a proviso was to qualify the principal matter to which it stood as a proviso, the proviso in the instant case, being wholly irreconcilable D with the regulation itself, was nothing more than gibberish and fell to be struck down for vagueness and uncertainty, viz treated as pro non scripto. The rest of the subregulation, which had a clear meaning, was severable from the proviso and could be given effect to if it carried out the main object of the statute. (At 349F - 350F.)

Held, further, applying this test to the present case, that there appeared to be no reason not to sever the meaningless proviso E from the balance of the subregulation, which carried out the main object of the statute, viz to afford social grants to those who needed them. Accordingly, the date of accrual of a social grant had to be determined solely by reference to the first sentence in reg 11(1), viz from the date of its approval, in the present case 9 November 2000. (At 350F/G - H.) F

Held, further, that the applicant's submission that, by delaying the approval of her application to 9 November 2000, the second respondent had infringed her fundamental right to administrative justice as enshrined in s 33(1) of the Constitution of the Republic of South Africa Act 108 of 1996, had to be accepted: the respondents, who were the only ones able to explain why the applicant's application was not processed within the three-month period that they themselves had conceded was a reasonable time frame G for the approval of a claim, had failed to give any explanation as to why this had not been the case with the applicant's claim. Accordingly the application should have been processed by June 7, that is five months before it was finally approved on November 9. Since an omission to take administrative action where such a duty was imposed did not constitute just administrative action, the delay had indeed violated H the applicant's right to just administrative action as intended in s 33(1) of the Constitution. (At 352F - 353E.)

Held, further, as to the applicant's right to 'appropriate relief' under s 38(1) of the Constitution, that, since it was clear that her common-law remedies were insufficient to be regarded as 'appropriate relief' as intended in s 38 (even if the Court had I decided to usurp the functions of the second respondent by ordering a social grant to be paid to the applicant, it could not have done so with retrospective effect, while an action for damages was, in the light of the applicant's dire financial circumstances, not a viable option), it was incumbent upon the Court to fashion appropriate 'constitutional relief'. (At 354G/H - 355G.) J

2002 (1) SA p345

Held, further, that 'appropriate relief' in the instant case would involve placing the applicant in the same position as she A would have been in had her right to just administrative action not been unreasonably delayed, which was essentially what the applicant had claimed by seeking an order directing the first respondent to pay her social grant from the date it would have accrued had her application been dealt with reasonably. There was thus no reason why the applicant should not be afforded relief as from 7 July 2000, the date by when the grant should have been approved. (At 356C - F.) B

Held, further, as to whether the applicant was entitled to interest on the 'arrears', that, under the common law mora interest could only be awarded where the debtor was tardy in due payment of a...