MEC, Department of Welfare, Eastern Cape v Kate

• Jurisdiction: South Africa
• Judge: Howie P, Streicher JA, Cameron JA, Mthiyane JA and Nugent JA
• Judgment Date: 30 March 2006
• Citation: 2006 (4) SA 478 (SCA)
• Docket Number: 580/04
• Hearing Date: 02 March 2006
• Counsel: M Donen SC for the appellant. W Trengove SC (with B Hartle) for the respondent. G Budlender for the Amicus Curiae.
• Court: Supreme Court of Appeal

Nugent JA:

[1] Section 27 of the Constitution obliges the State to achieve the progressive realisation of the right that everyone has to social security - including, if they are unable to support D themselves and their dependants, appropriate social assistance - by taking reasonable legislative and other measures, within its available resources, to that end.

[2] On 1 March 1996 the Social Assistance Act 59 of 1992 was brought into effect. The administration of the Act, appropriately E adapted, was simultaneously assigned to the provincial governments in terms of s 235(8) of the interim Constitution. [1] Presumably, the President and the Premier of the Eastern Cape Province were satisfied that the government of that province had the administrative capacity to administer the Act because the assignment was permitted only if that capacity existed. [2] The Act, as adapted for F purposes of the assignment, obliges the provincial government (subject to the provisions of the Act and the concurrence of the Member of the Executive Council responsible for the provincial budget) to make social grants to disabled persons, amongst others, out of moneys appropriated by the provincial legislature for that purpose. [3] The MEC has indeed concurred in the G making of social grants by the government of the Eastern Cape and moneys have been duly appropriated.

[3] The establishment by the State of a legislative and administrative structure for the making of social grants and the appropriation of moneys for that purpose, together, go a long way to H fulfilling the State's constitutional obligation, but by themselves they are not enough. What is required, in addition, are reasonable measures to make the system

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effective. On that score, there has been conspicuous and endemic failure in the Eastern Cape for a considerable A time. [4]

[4] Why that has been so is not altogether clear because the government has failed to explain it at all in the present case. But the result has been a plethora of litigation in the High Court between the poor of that province and the provincial administration. In some cases B the failure of the administration lies in not expeditiously considering applications for social grants. In other cases it lies in not paying what is due to beneficiaries once their applications have been approved. At times it lies even in disregard of court orders for the payment of moneys that are due. (One such case - Jayiya v Member of the Executive Council for Welfare, Eastern Cape, and C Another[5] - ultimately reached this Court and I will refer to it again later in this judgment.)

[5] What is particularly distressing is that there seems to be no end in sight. An affidavit deposed to by the attorney for the Black Sash (which was admitted as amicus curiae in the present D appeal) records that, in a period of six weeks during the latter part of 2005, there were almost 2 000 such cases on the roll of the High Court. On one occasion Plasket J noted that there were 102 cases relating to social assistance on his Motion Court roll for that week, and he went on to say the following: E

'If this volume of social assistance cases had been unique to one week's Motion Court roll, it would have been cause for concern. Unfortunately it is a phenomenon that is now common: the Judges of this Division, as well as those in the other two Divisions in the Eastern Cape, have grown accustomed to the depressing tales of misery and privation contained in an ever-increasing volume of cases that clog their Motion Court rolls in which applicants complain about F administrative torpor in the processing of their applications for social assistance. To make matters worse, this situation is not new. Over the last four or five years Judges have commented, often in strident terms, about the unsatisfactory performance of the respondent's department in the administration of the social assistance system in the province.' G

[6] The litigation that has been spawned by this administrative failure, with adverse implications for the public purse, ought to be capable of being avoided, in most cases at least, because the rights that are in issue are usually not in dispute. Typically, what seems to be occurring is that, when a demand upon the administration is ignored, an application to Court spews from a word processor, with adaptations to meet the particular case, which then induces the administration to H do something, probably through the intervention of the State Attorney. The administration then does what it ought to have done at the outset, leaving it for the Court merely to order the government to pay costs that were I

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avoidable. [6] Another consequence of litigation on that scale - which has a bearing on the case A that is now before us - is that cases are often commenced without adequate thought being given to the formulation of the claim. Instead, a burst of shrapnel is fired in the general direction of the government in the hope that somewhere, something will strike home. [7] B

[7] The case that is now before us is but one in that war of attrition. Mrs Kate lives in the Govan Mbeki settlement near Port Elizabeth. She was 54 years old and disabled when the Act came into operation and it is evident that she had no means of support. Quite how she survived is not apparent from the record, but it is safe to assume that she lived in poverty. On 16 April 1996, soon after the Act C came into operation, she applied for a disability grant.

[8] A person who desires social assistance must apply for it to the Director-General of the Department of Welfare, [8] in the manner prescribed by regulation. If the Director-General is satisfied that the applicant is D disabled, then the applicant is entitled to a disability grant, [9] and the provincial government is obliged to make the grant from the funds that have been appropriated for that purpose. [10]

[9] Regulations were promulgated on the day that the Act came into operation (the 1996 regulations). [11] The E 1996 regulations required an applicant for a grant to complete and sign an application form in the presence of an attesting officer, [12] and the date upon which that was done was deemed to be the date upon which the application was made. [13] If an application for a disability grant was approved, it accrued from the date of attestation (reg F 10(1)). The 1996 regulations were replaced on 1 March 1998 (the 1998 regulations). [14] The 1998 regulations are material only insofar as reg 11 purported to change the date of accrual of an approved grant from the date of attestation of the application to the date of approval. [15] That regulation, and the purported repeal of the G

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earlier reg 10, were declared to be invalid and were set aside by the High Court at Pretoria, with the consent of A the Minister, and reg 11(1) of the 1998 regulations was subsequently amended to restore the earlier position. [16] Thus, at all times that are material to this appeal, Kate's disability grant, once approved, accrued from 16 April 1996.

[10] What constitutes a reasonable time for an administrator to B process and approve or reject an application - whether for a social grant or otherwise - is necessarily relative. Much will depend upon the nature of the particular application, the enquiries that need to be made, the volume of similar applications that needs to be dealt with, the administrative capacity that is available for processing such applications, and other matters of that nature. It C would be unrealistic to expect the ideal from an administration that is no doubt confronted with complex administrative problems inherited from the fractured administrative history of the Eastern Cape, while simultaneously being called upon to administer a vast new system of social assistance. A court is bound to take account of those realities D when determining what ought reasonably to be expected of the administration. But what is expected of an administration that has justifiable reasons for what appears to be unacceptable delay in carrying out its functions are full and frank explanations that will enable a court to assess their adequacy when determining whether the administration has acted reasonably. In the case that is now before us E there has been no explanation at all for the delay in considering Kate's application. On the contrary, it was not disputed that it ought reasonably to have taken no more than three months. Yet, it took 40 months before Kate was advised, in August 1999, that her application had been approved, with no explanation at all for the 37-month delay. F

[11] Once Kate was notified, in August 1999, that her grant had been approved, it was thereafter paid to her monthly. [17] By that date an amount had accrued to her from the date of her application. Simultaneously with her first monthly payment, Kate received part of that G accrual - R6 000 - leaving a balance that was payable. No explanation has ever been given for why that shortfall was not paid.

[12] It was only in March 2003 - after she consulted an advice office of the Centre for Human Rights and was referred to her present attorney - that Kate became aware that she had been underpaid. On 19 March

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2003 her attorney wrote to the Regional Director of the Department of Welfare, drawing A attention to the shortfall and demanding its payment, together with interest on the accrual from 16 April 1996 to date of payment. Receipt of the demand was formally acknowledged, but there was no further response.

[13] On 15 October 2003 an application was launched in the B High Court at Port Elizabeth in which declaratory relief was sought, together with orders for the recovery of the balance of the accrual (the amount claimed was erroneous) and interest on that amount...