Ntame v MEC for Social Development, Eastern Cape, and Two Similar Cases

• Jurisdiction: South Africa
• Judgment Date: 11 January 2005
• Citation: 2005 (6) SA 248 (E)

Ntame v MEC for Social Development, Eastern Cape, and Two Similar Cases
2005 (6) SA 248 (E)

2005 (6) SA p248

Citation	2005 (6) SA 248 (E)
Case No	012/2005
Court	Eastern Cape Division
Judge	Plasket J
Heard	December 4, 2004
Judgment	January 11, 2005
Counsel	B C Hartle for the applicants.; No appearance for the respondents.

Flynote : Sleutelwoorde F

Social welfare — Social assistance grants — Failure by State to pay social assistance G grants — Remedies of individual — Type of grant applied for having been phased out prior to institution of proceedings — Failure to exercise discretion when duty cast on an administrative decision-maker to do so constituting violation of fundamental right to lawful administrative action — Failure to decide on applications for maintenance grants therefore constituting violation of applicant's fundamental right to just administrative action — Fact that maintenance grant no longer existing no defence. H

Constitutional law — Duties of State — Efficient and accountable public administration — Failure to pay social grants — Remedies of individual — Respondent failing to decide application — Type of grant applied for having been phased out prior to institution of proceedings — Failure to exercise discretion when duty cast on an administrative decision-maker I to do so constituting violation of fundamental right to lawful administrative action — Failure to decide on applications for maintenance grants therefore constituting violation of applicant's fundamental right to just administrative action — Fact that maintenance grant no longer existing no defence.

Constitutional law — Human rights — Right to administrative justice — Breach of — Applicants seeking to enforce right to social assistance J

2005 (6) SA p249

grants — Applicants poor and unsophisticated — Their access to court severely hampered A and a more lenient approach to the time that it took to find attorneys to advise them was warranted — Delay of more than five years condoned.

Prescription — Pleading of — Court not entitled to raise matter of prescription mero motu — Prescription Act 68 of 1969, s 17(1) — However, at common law Court entitled to raise point mero motu that applicant's delay in instituting B proceedings for review so unreasonable that granting of remedy ought to be withheld.

Review — Procedure — Delay in instituting proceedings for review — Condonation of — Applicants seeking to enforce right to social assistance grants — Applicants poor and unsophisticated — Their access to court severely hampered C and more lenient approach to time that it took to find attorneys to advise them warranted — Delay of more than five years condoned.

Review — Procedure — Requirement that domestic remedies to be exhausted before instituting legal proceedings — Failure to comply with — Under common law, jurisdiction of Court to review administrative action deferred only if and to extent that statute creates, either expressly or impliedly, obligation first to exhaust internal remedies. D

Headnote : Kopnota

The applicants sought orders reviewing administrative action by the Department of Social Development of the Eastern Cape Province. In the first application ('the Ntame case') the applicant had been in receipt of a disability grant for 11 years until it was stopped E in December 1996 without notice to her. In June 1999 it was reinstated and she was given an amount of R1 100 as 'back pay'. She applied for an order setting aside the suspension of her grant and an order directing the respondent to pay the amount of R13 460 that was owed to her. In the second and third matters ('the Mnyaka cases') the applicant had applied in June 1997 for a maintenance grant in respect of her two children. By the time that maintenance grants F were phased out in April 2001 she had still not had a response to her application. Ms Mnyaka applied for an order directing that the respondent's failure to consider the application be declared unlawful. The respondent did not oppose any of the applications. The Court proceeded to enquire whether the claims were prescribed; whether there had been an unreasonable delay in bringing the proceedings; and whether the applicants were required to exhaust their G internal remedies.

Held, as to the issue of prescription, that in terms of s 17(1) of the Prescription Act 68 of 1969 the Court could not of its own motion take notice of prescription, but at common law the Court could raise the point mero motu that an applicant's delay in instituting proceedings for review was so unreasonable that the Court should withhold the grant of a remedy. (Paragraph [12] at H 256C - D.)

Held, further, as to the delay in instituting proceedings, that the delays from the time of the causes of action arising to the launching of proceedings had been unreasonably long, even though, once the applicants had been placed in contact with attorneys who could advise and represent them, the steps that followed were taken with I reasonable haste. The delay could, however, be condoned as s 34 of the Constitution of the Republic of South Africa, 1996, enshrined a fundamental right of access to court and s 39(2) enjoined the courts to promote the spirit, purport and objects of the Bill of Rights when interpreting legislation. Section 1(c) of the Constitution entrenched the rule of law as a founding value of the constitutional order and consequently J

2005 (6) SA p250

the courts had to be particularly careful to allow as few invalid exercises of public power as possible to slip A through the net. The applicants were seeking to enforce the fundamental right of access to social assistance and consequently they were drawn from the very poorest in our society and had the least chance of vindicating their rights through the legal process. When the applicants' relative lack of sophistication was viewed in conjunction with their poverty, it could be seen that their access to court was severely hampered, thus warranting a lenient approach. (Paragraphs B [24] - [26] at 260D - 261A.)

Held, further, as to the failure to exhaust internal remedies, that as the Promotion of Administrative Justice Act 3 of 2000 was not applicable since the conduct complained of took place prior to the coming into operation of the Act, the issue had to be decided under the common law, which provided that the jurisdiction of the Court to C review administrative action was deferred only if and to the extent that the statute created, either expressly or impliedly, an obligation first to exhaust internal remedies. Although s 10 of the Social Assistance Act 59 of 1992 created a right of internal appeal, there was no express provision in the Act that placed an obligation on an aggrieved party to exhaust this remedy before approaching a court, and nothing in the Act pointed to an implication to this effect. There was D thus no such obligation on the applicants and in any event the period of 90 days in s 10 was long past. Furthermore, in the Mnyaka case, there was no decision that could be appealed against. (Paragraphs [30] - [32] at 262B - 263A.)

Held, further, that a failure to exercise a discretion when a duty is cast on an administrative decision-maker to do so constitutes a violation of the fundamental right to lawful administrative action. E The failure on the part of the respondent to decide on the applications for maintenance grants was therefore a violation of the applicants' fundamental right to just administrative action. The fact that a maintenance grant no longer existed, having been phased out in favour of the child support grant, was no defence. The applications F were pending the moment they were made, and decisions had to be taken on them in terms of the law applicable at the time. (Paragraphs [36] - [37] at 264A - C.)

Cases Considered

Annotations

Reported cases G

Administrator, Transvaal, and Others v Zenzile and Others 1991 (1) SA 21 (A): referred to

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687): applied

Bel Porto School Governing Body and Others v Premier, Western Cape, and Another 2002 (3) SA 265 (CC) (2002 (9) BCLR 891): referred to H

Bindura Town Management Board v Desai & Co 1953 (1) SA 358 (A): applied

Bullock NO and Others v Provincial Government, North West Province, and Another 2004 (5) SA 262 (SCA) ([2004] 2 All SA 249): applied

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

Camps Bay Ratepayers and Residents Association and Others v Minister of Planning, Culture and Administration, Western Cape, and Others 2001 (4) SA 294 (C): applied

Cape Furniture Workers' Union v McGregor NO 1930 TPD 682: referred to J

2005 (6) SA p251

CGU Insurance Ltd v Rumdel Construction (Pty) Ltd 2004 (2) SA 622 (SCA) ([2003] 2 All SA 597): referred to A

Chotabhai v Union Government (Minister of Justice) and Registrar of Asiatics 1911 AD 13: referred to

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851): applied

Golube v Oosthuizen and Another 1955 (3) SA 1 (T): applied

Harnaker v Minister of the Interior 1965 (1) SA 372 (C): referred to B

Hayes and Another v Minister of Finance and Development Planning, Western Cape, and Others 2003 (4) SA 598 (C): applied

Hoffmann v South African Airways 2001 (1) SA 1 (CC) (2000 (11) BCLR 1211): applied C

Julius v Lord Bishop of Oxford [1880] 5 App Cas 214 (HL): dictum at 225 applied

Kate v MEC for the Department of Welfare, Eastern Cape 2005 (1) SA 141 (SE) ([2005] 1 All SA 745): dictum in para [16] applied

Louw v Mining Commissioner, Johannesburg (1896) 3 OR 190: dictum at 200 applied D

Mahambehlala v MEC for Welfare, Eastern Cape, and Another...