Mwelase v the Minister of Social Development
| Jurisdiction | South Africa |
| Judge | BR Tokota J and N Msizi AJ and JW Eksteen J |
| Judgment Date | 22 March 2018 |
| Docket Number | CA 74/16 |
| Court | Eastern Cape Division |
| Hearing Date | 09 March 2018 |
| Citation | 2018 JDR 0453 (ECM) |
Tokota J:
Section 27 of the Constitution of the Republic of South Africa Act 1996 (the Constitution) provides that;
everyone has the right to have access to sufficient food and water (s.27 (1) (b));
everyone has the right to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance (s.27 (1) (c));
the State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights(s.27(2)).
In order to fulfil its Constitutional obligation to assist in securing the well-being of the people of the Republic and to provide effective, transparent, accountable and coherent government in respect of social assistance for the Republic as a whole Parliament enacted the Social Assistance Act No.13 of 2004(the Act) which commenced on 1 April 2006.
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Prior to the commencement of the Act the appellant applied, and, was granted a social assistance grant for permanent disability in terms of the then Social Assistance Act No. 59 of 1992. She enjoyed the benefit of the grant until May 2012.
In February 2012 appellant was invited via an undated letter to present herself for medical assessment at Libode clinic/hospital on 24 February 2012 and to complete medical review documents on or before the 29th of February 2012. She attended the assessment where she met a medical doctor. She alleges that the medical doctor did not examine her but simply looked at her and informed her that there was no reason for her to receive the grant as she 'looked healthy'. The doctor remarked that people who got grants in 2002 through a certain doctor Mafanya got it fraudulently.
Subsequent to the review referred to above she was personally served with an undated letter notifying her that in view thereof that it has been found that she no longer qualified for the disability grant her social grant would be suspended within 90 days from the date of the letter. In this letter she was advised that she had a right to make representations in person, within 30 days from the date thereof, at her local SASSA
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office giving reasons as to why the suspension should not be implemented. She was further advised that if she failed to make such representations within the stipulated time frame her social grant would be suspended on 17 April 2012.
The appellant did not make representations as advised. The grant was then suspended. According to the assessment report of the second respondent, which is not challenged, the appellant received payment of the grant until May 2012 and the grant was cancelled in June 2012. When the grant was stopped the appellant approached the office of the third respondent to enquire as to what was happening. She was advised to re-apply for the restoration of the grant. Instead of re-applying she approached lawyers to attend to her complaint. Her lawyers made representations on her behalf seeking the reconsideration of the decision to terminate her grant.
It is not clear from the papers as to when exactly all these events took place and the application for reconsideration has not been attached to the papers. After considering the representations the third respondent dismissed the application for reconsideration of its earlier decision to terminate the grant on 14 November 2012. The outcome is recorded in
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the application form for reconsideration dated 14 November 2012. In this form the appellant was advised of her right to appeal to the first respondent within 90 days of receipt thereof.
On 18 March 2013, outside the 90 day period, she lodged an appeal to the first respondent in terms of section 18(1A) of the Act against the refusal of the application for reconsideration. The first respondent appointed an Independent Appeal Tribunal, of which the second respondent was the chairperson, to hear the appeal in terms of section 18(2)(b) of the Act. Henceforth the second respondent will be referred to as the Tribunal.
The Tribunal considered the appeal and decided to dismiss it on the grounds set out hereunder as contained in a letter dated 16 August 2013. These were the grounds.
The medical officer confirmed that you do have the following medical condition(s) Hypertension. Arthritis and Peptic Ulcer.
On the basis of medical records available it was found that you are able to enter the open labour market and to be gainfully employed
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Procedure followed by SASSA during the review and suspension of your grant was found to be within the parameters of the Regulations."
The manner in which the appeal was considered and the documents which were before it are recorded in its Appeal Adjudication and Finding report. For the assessment of the medical condition of the appellant the Tribunal relied on the findings of the Tribunal Medical Practitioner (as per medical assessment report and supporting medical evidence and records).
The appellant approached the court a quo seeking an order reviewing and setting aside the decision of the Tribunal in dismissing her appeal. The Court a quo, per Griffiths J, dismissed the application with costs. This appeal is with leave of the Supreme Court of Appeal.
It was submitted at the hearing of this appeal by Mr Matoti, who appeared for the appellant, that the review was directed at the procedure followed by the third respondent. He submitted that the letter which invited the appellant to attend medical assessment on 24 February 2012, which was the same day that she received it, did not give her
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enough opportunity to prepare for the review. The review in the Court a quo was pegged on this letter principally on two grounds. First, it was argued that the letter gave the appellant a short notice and for this reason the appellant was not afforded sufficient opportunity to prepare herself for the examination by the doctor. Second, the letter was written in...
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