Matinese v MEC of The Executive Council of the Department of Welfare, Eastern Cape Division

• Jurisdiction: South Africa
• Judge: Leach J
• Judgment Date: 28 October 2004
• Docket Number: 1603/03
• Court: South Eastern Cape Local Division
• Hearing Date: 15 October 2004
• Citation: 2005 JDR 0418 (SE)

Leach J:

As has unfortunately been the case in far too many instances in recent years, the actions of public officials employed by what was formerly known as the Department of Welfare (now known as the Department of Social Development) has made it necessary for the applicant to seek redress by way of review.

The applicant is a disabled resident of Port Elizabeth. In 1995 she successfully applied for a disability grant under the provisions of the Social Assistance Act No 59 of 1992 ("the Act"), and was thereafter paid a monthly grant until November 1999 when payment was refused. When she enquired why she was not being paid, she was merely advised to re-apply for a grant. This she immediately proceeded to do, but it was only in October 2000 that

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Leach J

her grant was reinstated. At the same time, she was paid an additional lump sum payment of R1000,00 as so called "back pay" (presumably a payment in respect of a period during which her disability grant had not been paid to her). As this latter payment was substantially less than what she would have received had her monthly payments not ceased in November 1999, she was aggrieved and consulted her attorney who, on 13 June 2003, wrote to the Department and demanded payment of R4900,00 (being the total amount she would have received for the period November 1999 to October 2002 had her grant not been terminated, less the R 1 000,00 paid when it recommenced). When this did not bear fruit, the applicant launched the present proceedings seeking an order in the following terms (I quote from the notice of motion):

"1. Directing that the administrative action of the Respondent, in stopping or suspending the payment of the Applicant's disability grant during the period November 1999 to October 2000, be reviewed and set aside;

2. Directing the Respondent to remedy the defect resulting from the administrative action by paying to the Applicant the sum of R4 900,00, which would have been paid to her as a social grant during the period November 1999 to October 2000, in terms of the Social Assistance Act 52 of 1992, as if her grant had not been stopped or suspended during the said period.

3. In the alternative to prayer 2 above, directing the Respondent to pay compensation to the Applicant in the sum of R4 960.00, which would have been paid to her as a social grant during the period 24th June 1996 to May 1997, in terms of the Social Assistance Act 52 of 1992, but for the fact that her grant application had not been timeously considered and approved;

4. Directing that the Respondent pay to the Applicant interest on the sum R4 960,00 at the legal rate of 15,5% per annum calculated from the date that each monthly amount comprising the total of R4 960,00 which would have been (paid?) to the Applicant if the grant had been timeously considered and approved during or about June 1996, to date of payment."

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Leach J

The references in prayers 3 and 4 of the notice of motion to the period 24 June 1996 to May 1997 and to an alleged failure to timeously consider and approve the applicant's grant were probably included in error - possibly as a result of the careless use of the precedent - as they have no relation to any allegations relied upon by the applicant. I shall return to this in due course.

Be that as it may, it is common cause that the applicant's grant was paid to her for at least four years before it was stopped. Consequently, in her founding affidavit she stated:

"... the Respondent regarded my disability as permanent. I say so because my payments extended beyond a period of one year, which I am advised is the limit for the payment of temporary grant of the Regulations promulgated under the Act".

The applicant failed to identify the regulations which were of application, both when her grant was approved and when payment thereof ceased in November 1999. One would have expected this to have been done. In this, and many other similar matters, the fallacious view appears to have been that it is unnecessary to identify regulations upon which reliance is to be placed. Affidavits in motion proceedings are designed to set out the issues, and constitute both a party's evidence and pleadings. In order for the issues to be properly defined, regulations of relevance should be properly identified in the affidavits. While I accept that judicial notice may be taken of regulations published in the Government Gazette (see s 5 of the Civil Proceedings Evidence Act No 25 of 1965) a court is not obliged to rummage through the gazettes in order to attempt to ascertain what regulations of relevance may

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have been passed and to what extent they may have been repealed by other regulations - compare S v Omega Bearing Works (Edms) Bpk en Andere 1977 (3) SA 978 (0) at 984, S v Koekemoer 1978 (2) SA 405 (O) at 407 and LexisNexis Law of Evidence at 6.2.3.2.

In the present case, the failure to properly identify the regulations was overcome during the course of argument by the parties agreeing that those promulgated in Government Notice No. R 418 of 31 March 1998 ("the 1998 regulations") were in force at the time the payments of the monthly grant to the applicant ceased in November 1999 and that regard should be had thereto for purposes of determining the issues before me.

Those regulations are of cardinal importance to the outcome of this matter. As appears from the extract from her founding affidavit quoted above, the applicant contended that the respondent had regarded her disability as permanent. It was argued by Mr Ronaasen, who appeared for the respondents, that it had not been shown that she had been classified as permanently disabled. I do not agree. The applicant's allegation that her 1995 grant was paid to her on the basis that she was permanently disabled was...