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

• Jurisdiction: South Africa

Sikutshwa v MEC for Social Development, Eastern Cape, and Others
2009 (3) SA 47 (TkH)

2009 (3) SA p47

Citation	2009 (3) SA 47 (TkH)
Case No	847/2004
Court	Transkei High Court
Judge	Goosen J
Heard	May 6, 2005
Judgment	May 12, 2005
Counsel	M Pangwa (attorney) for the applicant.; FS Gagela for the respondents.

Flynote : Sleutelwoorde B

Administrative law — Decision of functionary — Procedure to be followed — Duty to furnish reasons for decision — Sufficiency of reasons — Mere statement that application for disability grant not approved because it was not supported by medical officer not constituting adequate reasons — Promotion C of Administrative Justice Act 3 of 2000, s 5(2).

Administrative law — Decision of functionary — Procedure to be followed — Duty to furnish reasons for decision — Time limit — Prescribed 90-day time limit a maximum period — Reasons to be furnished as soon as they are available — Affected party may apply for order to furnish reasons before expiry of 90-day period — Promotion of Administrative Justice Act 3 of 2000, s 5(2). D

Administrative law — Administrative action — Review — Parties — Joinder — Review of failure to give reasons for refusal of application for disability grant — Permanent secretary of provincial Department of Social Development statutorily obliged to consider application, to investigate it, to form E opinion whether applicant entitled to grant and to authorise provision of grant — Permanent secretary accordingly having direct and substantial interest in review proceedings and thus properly joined therein.

Headnote : Kopnota

Section 5(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) requires of an administrator that he furnish 'adequate reasons' for administrative F action taken by him. The mere statement by the administrator that an application in terms of the Social Assistance Act 59 of 1992 was refused because it was not supported by the medical officer does not constitute adequate reasons as envisaged by s 5(2) of PAJA. (Paragraph [33] at 53H - I.)

Section 6 of the Social Assistance Act, 1992, obliges the permanent secretary of the provincial Department of Social Development to consider a social grant G application, to investigate it if necessary, to formulate an opinion as to the entitlement of the applicant to such grant and to authorise the provision of social assistance. Whilst these powers may be delegated by the permanent secretary, it is the permanent secretary who is the functionary responsible for the administrative process in terms of which social grants are awarded and administered. Thus, in review proceedings, in which an order compelling the H production of adequate reasons and in which the permanent secretary's alleged non-compliance with statutory obligations imposed upon her are at issue, the permanent secretary clearly has a direct and substantial interest in the proceedings and was properly joined as a party to the review application. (Paragraphs [43], [47] and [56] at 55G - H, 56C and 58H.)

Section 5(2) of PAJA provides that the administrator to whom the request for I access to information is made (in terms of ss (1)) must, within 90 days after receiving the request, give that person adequate reasons in writing for the administrative action. The time period provided for in s 5(2) must be construed as a time period afforded to the administrator to gather the information necessary in order to present the reasons for the administrative decision. It is conceivable that in some instances the set of reasons will be J

2009 (3) SA p48

A readily available and easily presentable. In other instances the nature of the administrative proceedings and decisions or practical considerations may necessitate a longer period within which to furnish the reasons sought. The 90-day period is, subject to its extension in terms of s 9, a maximum period that is allowed for the furnishing of reasons. Failure to furnish reasons within the prescribed maximum period has as consequence a presumption, B in terms of s 5(3), that the decision was taken without good reason. An administrator who receives a request for reasons is obliged to comply with the request and in so complying is obliged to act in accordance with the values and principles set out in s 195 of the Constitution. This requires that the administrator must maintain high standards of professional ethics; must promote efficiency; must act impartially, fairly, equitably and without bias; C must respond to the needs of the requester; and must promote transparency by providing the requester with timely and accurate information. Such an administrator cannot with impunity wait until the 90-day period has all but expired before furnishing the reasons that she is obliged to provide. On the contrary, the administrator must furnish the reasons sought as soon as they are available. Accordingly, s 5(2) does not bar the institution of proceedings D to compel the production of reasons before the expiry of the 90-day period. (Paragraphs [65], [70] and [73] - [77] at 60C, 62F - G and 63B - F.)

Cases Considered

Annotations

Reported cases

Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A): E dictum at 656 applied

Aquatur (Pty) Ltd v Sacks and Others 1989 (1) SA 56 (A): dictum at 62A - E applied

BHT Water Treatment (Pty) Ltd v Leslie and Another 1993 (1) SA 47 (W): dictum at 55 compared

Cape Coast Exploration Ltd v Scholtz and Another 1933 AD 56: referred to

Cyberscene Ltd and Others v I-Kiosk Internet and Information (Pty) Ltd 2000 (3) SA 806 (C): compared F

Ex parte Pearson and Hutton NNO 1967 (1) SA 103 (E): dictum at 107C applied

Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O): dictum at 168 - 170 applied

Jayiya v Member of the Executive Council for Welfare, Eastern Cape, and Another 2004 (2) SA 611 (SCA): discussed and distinguished G

Jurgens Eiendomsagente v Share 1990 (4) SA 664 (A): compared

Kate v MEC for the Department of Welfare, Eastern Cape 2005 (1) SA 141 (SE): dictum in para [19] approved and applied

Mafongosi and Others v United Democratic Movement and Others H 2002 (5) SA 567 (Tk) ([2002] 3 All SA 271): dictum in paras [14] - [15] approved and applied

Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd; Minister of Environmental Affairs and Tourism and Others v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA): dictum in para [40] applied

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

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059): dictum in paras [132] - [134] applied

Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission J 1982 (3) SA 654 (A): applied

2009 (3) SA p49

Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA): dictum A in para [5] applied

United Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and Another 1972 (4) SA 409 (C): dictum at 415H applied

Vumazonke v MEC for Social Development, Eastern Cape, and Three Similar Cases 2005 (6) SA 229 (SE): considered.

Unreported cases B

Kulati v MEC for Social Development, Eastern Cape (SECLD, case No 512/2004, 28 March 2005): dicta in paras [4] and [9] approved and applied

Qwele v Member of the Executive Council for Social Development and Another (TkHC, case No 861/2004, 26 April 2005, per Peko ADJP): not followed C

Sapepa v Member of the Executive Council for Social Development and Another; Fetsha v Member of the Executive Council for Social Development and Another (TkHC, case Nos 855/2004 and 864/2004, 17 February 2005, per Nhlangulela AJ): dictum in para [8] approved and applied.

Statutes Considered

Statutes

The Constitution of the Republic of South Africa, 1996, s 195: see Juta's D Statutes of South Africa 2007/8 vol 5 at 1-51

The Promotion of Administrative Justice Act 3 of 2000, ss 5(1), (2) and (3) and 9: see Juta's Statutes of South Africa 2007/8 vol 5 at 1-250, 1-252

The Social Assistance Act 59 of 1992, s 6: see Juta's Statutes of South Africa 2005/6 vol 5 at 4-250.

Case Information

Application for an order directing the respondents to furnish reasons E for the refusal of an application for a disability grant in terms of the Social Assistance Act 59 of 1992. The facts appear from the reasons for judgment.

M Pangwa (attorney) for the applicant.

FS Gagela for the respondents. F

Cur adv vult.

Postea (May 12).

Judgment

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.

2009 (3) SA p50

Goosen AJ

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...