Sikutshwa v MEC for Social Development, Eastern Cape, and Others

• Jurisdiction: South Africa
• Judge: Goosen J
• Judgment Date: 12 May 2005
• Citation: 2009 (3) SA 47 (TkH)
• Docket Number: 847/2004
• Hearing Date: 06 May 2005
• Counsel: M Pangwa (attorney) for the applicant. FS Gagela for the respondents.
• Court: Transkei High Court

Goosen AJ: G

[1] The applicant launched this application on 14 May 2004 in which he sought an order declaring the respondents' failure to consider applicant's application for a disability grant in terms of the provisions of the Social Assistance Act [1] to be unconstitutional.

[2] In addition, the applicant sought orders directing the respondents to H consider the application within 30 days of the granting of the order and, in the event of the application not being approved, an order directing the respondents to furnish reasons for the refusal and to furnish copies of all documents in support of such reasons.

[3] The notice of motion contains an alternative prayer in the event that I the application has already been refused, in which the applicant seeks to have such decision to refuse the application for a social grant reviewed and set aside.

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A [4] The application was opposed. The notice of opposition was filed on 8 June 2004 and ultimately, for reasons not disclosed, an opposing affidavit was filed on 8 October 2004. In that affidavit the respondents raise certain objections in limine, to which I shall revert hereunder.

[5] At the commencement of argument I was informed by Mr Pangwa, B who appeared for the applicant, that the 'merits' of the application were no longer in issue and that all I had to determine was the question of costs. The resolution of the merits flowed, it seems, from the fact that the respondents had annexed to the opposing affidavit the reasons for the refusal of the grant that had been sought by the applicant in a letter C addressed to the respondents in March 2004. I was somewhat surprised by the attitude adopted by the applicant, given the nature of the reasons furnished by the respondents. I was told that the applicant was not persisting with the alternative review relief that is embodied in the notice of motion.

D [6] In respect of the determination of the costs of the application, the parties were in agreement that I would need to consider the merits of the application, and it was on this basis that the application was argued.

[7] This brings me to a preliminary aspect in regard to the nature and substance of the application. As is indicated the primary relief sought in E the notice of motion is based on the supposition that the applicant's application for a social grant had not been considered by the respondents. The thrust of the founding affidavit, however, is that the application is one to obtain reasons for the decision taken by the respondents.

[8] The founding affidavit makes it clear that the applicant's application F for a social grant has in fact been considered by the respondents and that he was informed (albeit informally and verbally) in December 2003 that his application had been refused.

[9] At the time no reasons for the decision were given to him and notwithstanding enquiries made by him he was not informed of the G reason for the decision. It was this failure to furnish the applicant with reasons for the decision that ultimately prompted him to approach his attorney for legal assistance. Consequent upon this a letter requesting the reasons for the decision was addressed to the respondents on 15 March 2004. No response to this request was forthcoming and H consequently on 14 May 2004 the application was launched.

[10] Apart from a dispute as to whether the applicant was informed in writing of the decision in December 2003, the facts are common cause.

[11] Respondents' counsel, Mr Gagela, did not seek to make anything of I the disparity between the case made out in the founding affidavit and the relief sought in the notice of motion. Both parties, as I understood it, treated the application as one seeking to compel the furnishing of reasons.

[12] The form of the notice of motion and the terms in which it is formulated, it seems to me, is a function perhaps of inexperience on the J part of the applicant's representative and possibly a slavish use of a

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precedent. Whatever the reason for the disparity, this is an instance A where regard should be had to the substance rather than the form of the application. [2]

[13] In respect of the applicant's entitlement to costs, it was submitted by Mr Pangwa that the respondents were obliged to furnish reasons for the refusal of the disability-grant application when requested to do so in B terms of s 5 of the Promotion of Administrative Justice Act (PAJA). [3] The fact that the respondents had failed to respond to the request made in March 2004 entitled the applicant to bring the application.

[14] The respondents only furnished the reasons sought when they filed the opposing affidavit in October 2004! No attempt was made to provide C the reasons sought prior to this and, so it was submitted, had the reasons been furnished in response to the request, the application would have been avoided. In these circumstances the respondents should be ordered to pay the costs of the application.

[15] The respondents' opposition to the application, as set out in the D opposing affidavit deposed to by one Rasmussen, is based on a number of grounds, some of which were raised in the papers as in limine objections. I shall deal with each of them hereunder.

[16] The first of these concerned the alleged lack of jurisdiction of the court to determine the matter. This objection was abandoned, and E rightly so, prior to argument of the matter.

[17] The second issue raised concerns the alleged misjoinder of the second respondent. A further point raised in argument, although not dealt with in the opposing affidavit, was based on an interpretation of s 5(2) of PAJA, the submission being that in the light of the fact that the F application was launched prior to the expiry of the 90-day period provided for in the section, the application was premature and should on that account be dismissed with costs.

[18] Before dealing with these aspects, upon which the respondents placed heavy reliance, it is necessary to deal with two arguments raised by the respondents. G

Alleged failure to exhaust internal remedies

[19] The respondents raised this issue in their opposing affidavits and in heads of argument filed on their behalf. The argument was, however, not pursued in oral argument before me. H

[20] To the extent that respondents did not expressly abandon reliance on the point, it is necessary to deal with it. I do not consider that there is any merit in the argument. The application is, as I have indicated, one concerned with compelling the respondents to furnish reasons for an administrative decision. I

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A [21] PAJA does not prescribe procedure that must first be followed before recourse may be had to a court to compel the furnishing of reasons. No such internal procedure, other than the appeal procedure provided for in s 10 of the Social Assistance Act, was relied upon.

[22] That section is clearly not applicable in the circumstances. Accordingly, B s 7(2) of PAJA does not apply. [4]

The presumption as to receipt of reasons

[23] In response to allegations made by the applicant in his founding affidavit to the effect that he was not furnished with reasons for the C refusal of the grant, the respondents, in addition to a general denial, allege that:

The applicant was informed of the outcome of his application through a letter that was sent to him by an (sic) ordinary mail. A copy of the aforesaid letter is in the file kept by the department. It is annexed hereto D marked annexure 'MR1'. That file contains personal details of the applicant relating to his application. He must have received the letter that was sent to him because it was sent to the address that he gave as his residential address. All the letters that are sent to the applicants are sent with the address of the department endorsed at the back so that they can be returned to the department if they are not delivered. The E letter that was sent to the applicant was not returned.

[24] The deponent to the affidavit states that he deposes to facts that are within his personal knowledge unless the context indicates otherwise. He further states that by virtue of his position as Director of Social Assistance he has access to the files of applicants and that he is able to F depose to the content of those files.

[25] It is clear that he has no personal knowledge as to whether the letter, allegedly informing the applicant of the outcome of his grant application, was in fact sent to the applicant. His allegation that it was sent is based on the fact that there is a copy on the file. The copy, it should be pointed G out, is one that was reprinted on 21 May 2004. Mr Rasmussen also alleges that the letter was sent to the applicant's residential address whereas the copy annexed to the affidavit reflects that it is addressed to a post office box number in Mthata.

[26] There is nothing in the papers to link the postal address to which H the letter was allegedly sent with the applicant. He denies having received the letter.

[27] In heads of argument filed on behalf of the respondents reliance is placed on the maxim omnia praesumuntur rite esse acta to found a I presumption that, since a copy of a letter was kept in the applicant's

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social-grant application file, it was in fact dispatched in the ordinary A course of business of the respondents and received by the applicant. [5]

[28] A similar argument was raised before Jones J in Kulati v MEC for Social Development, Eastern Cape. [6] In para 4 of the judgment Jones J states:

The first point is whether or not the applicant was notified in writing of B the result of her application. I do not think that there is any dispute that the Director-General's duty to inform the applicant in writing means that the writing must effectively bring the decision to the applicant's...