Mbanga v MEC for Welfare, Eastern Cape, and Another

• Jurisdiction: South Africa
• Citation: 2002 (1) SA 359 (SE)

Mbanga v MEC for Welfare, Eastern Cape, and Another
2002 (1) SA 359 (SE)

2002 (1) SA p359

Citation	2002 (1) SA 359 (SE)
Case No	2130/2000
Court	South Eastern Cape Local Division
Judge	Leach J
Heard	December 15, 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

Interest — Interest a tempore morae — Liability of State B for — In terms of Social Assistance Act 59 of 1992 and 1996 regulations promulgated thereunder, beneficiary of welfare grant entitled to receive grant from provincial government upon date of approval thereof — Grant then accruing from date of application — Upon approval, C total amount payable from date of application becoming due and payable — Accordingly, provincial government not in mora in respect of such amount until date of approval — Interest recoverable from date of approval of grant, not from date of deemed accrual thereof. D

Attorney — Rights and duties — Conduct by contrary to interests of client — Attorney having concluded agreement contrary to interests of client — In order to rely on such agreement, opposing party to allege and prove that attorney had special mandate to conclude adverse agreement — Concession made by attorney in statement in any event amounting to conclusion of law incorrectly made and as such not binding on client. E

Constitutional law — Human rights — Right to administrative justice — Failure by provincial government to process within reasonable time application for welfare grant under Social Assistance Act 59 of 1992 and 1996 regulations promulgated thereunder — Reiterated that such an infringement of applicant's rights under s 33(1) of Constitution of F 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 constitutes — Breach of right to administrative justice in terms of s 33 of Constitution — Failure by provincial government to process G within reasonable time application for welfare grant in terms of Social Assistance Act 59 of 1992 and 1996 regulations promulgated thereunder — Reiterated that just and equitable for applicant to be placed in position in which he would have been had fundamental right to administrative justice action not been unreasonably delayed — Common law H not providing for such relief — 'Constitutional relief' appropriate — Just and equitable for applicant to be placed in position he would have been had his application been dealt with within reasonable time — Applicant also entitled to interest on such amounts from date on which application for grant should have been approved. I

Headnote : Kopnota

The applicant, a pensioner, applied on 10 March 1998 for a social grant in terms of s 2(a) of the Social Assistance Act 59 of 1992. The Act was assigned to the provinces and in the Eastern Cape such grants have to be approved by the second respondent, the Director General: Welfare of the Eastern Cape Provincial Government. Notwithstanding the fact that the applicant's J

2002 (1) SA p360

application complied fully with the requirements prescribed by the 1996 A regulations promulgated under the Act, there was no response from the second respondent. (It was conceded by the deponent to the respondents' answering affidavits that the 1996 regulations, which were in force when the applicant submitted his application, and not the subsequent 1998 regulations, were applicable in the instant case.) On 11 October 2000, more than two and a half years after the initial application, the applicant launched the present action for an order B compelling the second respondent to consider his application. No opposition was filed and eventually (on 8 November 2000) the parties agreed to an order in terms of which the second respondent was compelled to consider the applicant's application. The issue of the date on which the grant was to accrue was postponed to 7 December 2000 to enable the parties to file additional affidavits. In terms of reg 9(1) of the 1996 regulations an application for a grant is C 'made' on the date when it is signed by the applicant in the presence of an attesting officer. Regulation 10(1) then provides that the grant 'accrues' from the date of attestation (by way of contrast the 1998 regulations provide that the date of accrual is the date of approval of the grant). Inasmuch as the applicant's grant was eventually awarded in November 2000, before the matter came before the Court on 15 D December, the only issue for the Court was whether the applicant was entitled to interest on the monthly arrears that, in terms of the 1996 regulations, became due with effect from 10 March 1998 (when his application was attested). The applicant contended that under reg 10(1), the approval of his application in November 2000 meant that his grant accrued with effect from the date of attestation and that he E accordingly immediately became entitled not only to the payment of the total sum of the amounts which would have been paid monthly from the date of attestation, but also to interest thereon calculated from the accrued date of each monthly amount to date of payment.

Held, that the second respondent could not be said to have been in mora since 10 March 1998 if the application was only approved in November 2000. Although reg 10(1) of F the 1996 regulations prescribed the date of attestation of an application for a social grant to be the date upon which such grant accrued if it was finally approved, it did not accrue until it was so approved. It was in November 2000, when the grant was approved, that the total amount payable from 10 March 1998 became due and payable. Since mora only arose when the debtor became obliged to pay, and the obligation to pay interest on the amount owing G likewise arose only form the moment the debtor was in mora, the applicant was not entitled to mora interest from 10 March as claimed in the notice of motion. (At 366C - 367C.)

Held, further, as to the applicant's argument that the respondents had bound themselves through their attorneys to pay interest on the grant from the date of its accrual, that an undertaking H to pay interest from the date of accrual should have been pertinently relied upon by the applicant as a separate and distinct cause of action. In order to succeed on such a claim, the applicant would have been obliged to allege and prove that the respondents' attorney had a special mandate to conclude such an agreement, but no such allegations were made. In any event, even if the respondents' attorney did concede that the applicant would have been entitled to I interest from the date of accrual, it would have amounted to a concession of law incorrectly made that was not binding on the respondents. (At 367H/I - 368B/C.)

Held, accordingly, that the applicant had failed to establish that the respondents had bound themselves to pay interest on the 'arrears' that accrued to him upon approval of his application for a social grant in November 2000. The J

2002 (1) SA p361

applicant had thus failed to show that he was at common law entitled to the relief sought in his A notice of motion. (At 368C - E.)

Held, further, as to whether the applicant was entitled to 'constitutional relief' under s 33(1) read with s 38 of the Constitution of the Republic of South Africa Act 108 of 1996 in the form of an order directing the respondents to pay the applicant his social grant from the date on which his application should have been approved had it been dealt with within a reasonable time, as well as B interest on such amounts, that, although the ultimate approval of the applicant's application resulted in a grant accruing to him with effect from the date upon which he applied for it, if the period of 32 months it took the second respondent to approve the application was unreasonable and constituted a breach of the applicant's right to just administrative action, the applicant had to be placed in the same position he would have been in had his application been dealt with C within a reasonable time. (At 368I - 369B/C.)

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

Held, further, that, since it was not contested by the applicants that three months was a reasonable period for a decision to be taken on an application for a social grant, there could be no doubt that it had been wholly unreasonable for the second respondent to D have taken 32 months to do so in the present case. His conduct constituted a gross infringement of the applicant's constitutional right to just administrative action as entrenched in s 33(1) of the Constitution. (At 369E - F/G.)

Held, further, as to 'appropriate relief' as intended in s 38 of the Constitution, that, if the application had been approved within three months, it would have accrued to the E applicant by 10 June 1998, retrospective to the date of application. The applicant was, however, without a grant for a period of 29 months after that before the grant was finally approved. While it was true that the ultimate approval of his application led to it being awarded to him with effect from 10 March 1998, relief had to be forged so as to compensate him for the fact that he was without welfare for those 29 months when he should not have been in such a position. It F was in addition appropriate to order the respondents to pay interest on the amounts the applicant would have been paid had his application for the grant been approved on 10 June 1998. (At 370D/E - H.)

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