Njongi v MEC, Department of Welfare, Eastern Cape

• Jurisdiction: South Africa

Njongi v MEC, Department of Welfare, Eastern Cape
2008 (4) SA 237 (CC)

2008 (4) SA p237

Citation	2008 (4) SA 237 (CC)
Case No	CCT 37/07
Court	Constitutional Court
Judge	Langa CJ, Moseneke DCJ, Madala J, Mpati AJ, Ngcobo J, Nkabinde J, Sachs J, Skweyiya J and Van Der Westhuizen J
Heard	November 6, 2007
Judgment	March 28, 2008
Counsel	A Beyleveld (with B Hartle) for the applicant.; GG Goosen SC (with OH Ronaasen and R Laher) for the respondent.

Flynote : Sleutelwoorde G

Constitutional law — Duties of State — Duty to pay social grants — Whether State may invoke prescription in claim for arrear social grant payments — State's decision to be informed by values of Constitution — State obliged to H facilitate rather than obstruct access to social security a fundamental consideration in making such decision — Where State guilty of obstructionism and unconscionable conduct in handling of case, punitive costs order justified.

Prescription — Extinctive prescription — Debt — What constitutes — Whether including claim for payment of social grant — Prescription Act 68 of 1969, I s 10(1).

Prescription — Extinctive prescription — Claim for payment of social grant — When debt is due — Claim for arrear disability grants payments — Grant terminated by unlawful administrative action not yet set aside on review — Debt becoming due when provincial government expressly disavowed reliance on unlawful administrative action — Payment of all arrears indication J

2008 (4) SA p238

A of such disavowal — Provincial government not having paid full arrears — Not having disavowed decision — Debt not due — Running of prescription not having started — Prescription Act 68 of 1969, s 12(1).

Costs — Punitive costs order — When to be awarded — Against State — Claim against State for arrear disability grant payments — State invoking prescription — State obliged to facilitate rather than obstruct access to social B security — Where State guilty of obstructionism and unconscionable conduct in handling of case, punitive costs order justified.

Headnote : Kopnota

The applicant was the recipient a State disability grant until it was terminated without explanation by the provincial government in November 1997. Her re-application was successful and payment of the grant resumed in July C 2000, together with payment of a small amount in back-pay. Four years later she instituted motion proceedings in the High Court for the review and setting aside of the administrative action to terminate her disability grant, and for payment of the balance of the arrears payments for the period November 1997 to July 2000. The provincial government (represented in D the proceedings by the respondent) resisted the application on the basis that the applicant's claim had prescribed. On the question of prescription the High Court held that it did not run against a claim for arrears disability grant payments during a period when there existed an unlawful administrative decision terminating the grant, and that that decision had neither been set aside on review nor disavowed by the state. The High Court found E in favour of the applicant on the merits and ordered that (1) the administrative action terminating her grant was declared unconstitutional and invalid and was set aside, and (2) the respondent was directed to reinstate the applicant's grant, retrospective to November 1997, by paying her the arrears with interest. This decision was reversed on appeal to a full bench. After being refused leave to appeal to the Supreme Court of Appeal (SCA) F against this decision, the applicant approached the Constitutional Court for leave to appeal.

Held, as to prescription, that although the issue did not have to be decided on the facts of the present matter, it was doubtful whether prescription could legitimately arise when the debt that was claimed was a social grant: where the obligation in respect of which performance was sought is one which the G government was obliged to perform in terms of the Constitution; and where the non-performance of the government represented conduct that was inconsistent with the Constitution. (Paragraph [42] at 256G - H.)

Held, further, on the assumption that a claim for a social grant was a debt, that it was not necessary for every administrative action to be set aside before a debt could fall due for the purposes of the Prescription Act 68 of 1969. It H was always open to the provincial government to admit, without qualification, that an administrative decision had been wrong or had been wrongly taken and, consequently, to expressly disavow reliance on that decision altogether. Prescription would begin to run (if it were indeed applicable in a case of this kind) as soon as the provincial government disavowed reliance on the administrative action concerned. For then the debt would become I immediately enforceable. (Paragraph [56] at 260G - 261A.)

Held, further, that in the present case full reinstatement, ie payment of all of the arrears, might well have been an indication of the provincial government's disavowal of the administrative decision concerned. The applicant's grant was, however, never fully reinstated, and accordingly the administrative decision was never disavowed with the result that prescription had not yet J begun to run. (Paragraphs [57] - [58] at 261B - C.)

2008 (4) SA p239

Held, further, that the order of the full court had to be set aside, and that of the A high court restored in substance but not in form. (Paragraph [59] at 261C.)

Held, further, as regards costs, that a decision by the State whether or not to invoke prescription in a particular case had to be informed by the values of the Constitution. It followed that the provincial government had to take a decision whether to plead prescription to defeat a claim for arrear disability grant payments. It was the duty of the State to facilitate rather than obstruct B access to social security, and this was a fundamental consideration in making the assessment. (Paragraph [79] at 265B - C.)

Held, further, that in the present case both the decision to oppose and the way in which the case was conducted represented unconscionable conduct on the part of the provincial government. (Paragraph [85] at 266G - H.)

Held, further, that the provincial government (the respondent) therefore had to C pay all the applicant's costs on attorney and client scale. (Paragraph [91] at 268C - D.)

Appeal upheld, and the existing orders set aside and replaced with an order (a) declaring the administrative action of the respondent terminating the applicant's social grant from November 1997 to be invalid and set aside, (b) reinstating the applicant's social grant from November 1997; (c) ordering D the respondent to make payment of the applicant's arrears; and (d) ordering the respondent to pay the applicant's costs in all four courts on attorney and client scale. (Paragraph [92] at 268E - H.)

Cases Considered

Annotations E

Reported cases

Southern African cases

Apex Mines Ltd v Administrator, Transvaal 1986 (4) SA 581 (T): referred to

Brand v Williams 1988 (3) SA 908 (C): referred to

Bushula and Others v Permanent Secretary, Department of Welfare, Eastern F Cape, and Another 2000 (2) SA 849 (E) (2000 (7) BCLR 728): discussed

Churchill v Standard General Insurance Co Ltd 1977 (1) SA 506 (A): referred to

Deloitte Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty) Ltd 1991 (1) SA 525 (A): referred to

Drennan Maud & Partners v Pennington Town Board G 1998 (3) SA 200 (SCA) ([1998] 2 All SA 571): referred to

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A): referred to

Gericke v Sack 1978 (1) SA 821 (A): referred to

HMBMP Properties (Pty) Ltd v King 1981 (1) SA 906 (N): referred to

MEC, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA) ([2006] 2 All SA 455): compared H

Ngxuza and Others v Permanent Secretary, Department of Welfare, Eastern Cape, and Another 2001 (2) SA 609 (E) (2000 (12) BCLR 1322): referred to

Ntame v MEC for Social Development, Eastern Cape, and Two Similar Cases 2005 (6) SA 248 (E) ([2005] 2 All SA 535): criticised

Permanent Secretary, Department of Welfare, Eastern Cape, and Another v I Ngxuza and Others 2001 (4) SA 1184 (SCA) (2001 (10) BCLR 1039): referred to

Phasha v Southern Metropolitan Council of the Greater Johannesburg Metropolitan Council 2000 (2) SA 455 (W) ([2000] 1 All SA 451): referred to

Road Accident Fund v Mdeyide (Minister of Transport Intervening) 2008 (1) SA 535 (CC) (2007 (7) BCLR 805): referred to J

2008 (4) SA p240

Standard Bank of South Africa Ltd v Oneanate Investments (Pry) Ltd (In Liquidation) 1998 (1) SA 811 (SCA) ([1998] 1 All SA 413): referred to A

Van Staden v Fourie 1989 (3) SA 200 (A): referred to.

Foreign cases

Davies v Du Paver [1952] 2 All ER 991 (CA): referred to

Laurentian Pilotage Authority v Voyageur (The) [2006] 1 FCR 37: referred to. B

Unreported cases

MEC for Welfare v Njongi (EC case No CA 62/06, 4 December 2006): order in varied

Makalima v MEC for Welfare, Eastern Cape, and Others (SECLD case No 1601/03, 27 January 2005): referred to

Matinise v MEC, Department of Welfare, Eastern Cape Province (EC case No 1603/03, 10 February 2005): referred to C

Njongi v MEC for Social Development, Eastern Cape Province (SECLD case No 1281/04, 2 June 2005): order in varied

Statutes Considered

Statutes

The Prescription Act 68 of 1969, ss 10(1) and 12(1): see Juta's Statutes of D South Africa 2006/7 vol 1 at 1-796.

Case Information

Application for leave to appeal and appeal against a decision of the full bench of the Eastern Cape Provincial Division. The facts appear from the judgment of Yacoob J.

A Beyleveld (with B Hartle) for the applicant. E

GG Goosen SC (with OH Ronaasen and R Laher) for the...