Tseleng v Chairman, Unemployment Insurance Board, and Another

• Jurisdiction: South Africa
• Judge: Heher J
• Judgment Date: 13 January 1995
• Court: Transvaal Provincial Division
• Hearing Date: 02 August 1994
• Docket Number: 13122/94

Heher J:

The applicant seeks a review of a decision of the Unemployment Insurance Board taken on 20 April 1994 when the Board refused his claim for further benefits made in terms of s 35(14)(a) of the Unemployment I Insurance Act 30 of 1966. The application is opposed on grounds which are dealt with fully in this judgment.

The first respondent is the chairman of the Board. The second respondent is the claims officer appointed for the PWV region under s 26 of the Act.

The applicant's work history is of relevance to his claim for further J benefits.

Heher J

A For the period 26 March 1990 until 6 November 1992 the applicant was employed by LTA (Pty) Ltd.

On 6 November 1992 he was retrenched.

Prior to his employment at LTA (Pty) Ltd the applicant had been employed -

(a)

B from 22 July 1968 until 3 March 1984 at Stocks & Stocks Ltd;

(b)

from 5 June 1985 until 9 October 1986 at Tzircalle Brothers (Pty) Ltd.

During the periods of his employment the applicant was statutorily obliged to contribute to the Fund and did so.

C During April 1993, not having found further employment since his retrenchment in November of the previous year, the applicant applied at the offices of the Department of Manpower in Soshanguve for unemployment benefits.

At the time of applying the applicant advised the representative of the second respondent that he was unemployed. He was required to sign the D unemployment register kept at the said offices and thereafter did so once a month in order to confirm his continued unemployment. This lasted during the period April 1993 to November 1993.

Subsequent to his retrenchment and while in contact with the Department, the applicant sought employment. In his founding affidavit he lists the steps taken by him as follows:

1.

E During or about December 1992 he wrote to Hilti Fastening Systems (Pty) Ltd. He received a written reply that they had no vacancy for him.

2.

During or about June 1993 the applicant wrote to L Suzman Distributors (Pty) Ltd. He received no reply to that letter.

3.

F During June 1993 the applicant telephoned Goldstein Transvaal (Pty) Ltd. He was informed that that company had no work for him.

4.

During July 1993 the applicant wrote to Andrew Concrete Engineering. He later received a telephone call to the effect that there was no vacancy for him.

5.

G During August 1993 the applicant wrote to G D Irons Construction (Pty) Ltd. He was thereafter telephoned and informed that that company had no place for him.

6.

During August 1993 he wrote to C J Irons Construction CC. He was thereafter telephoned and told that there was no employment available H to him.

7.

During November 1993 the applicant wrote to National Sorghum Breweries Ltd. He received a reply on 1 December regretting that there was at that stage no suitable vacancy.

8.

On 10 January 1994 the applicant wrote to Rembrandt Tobacco Corporation (Overseas) Ltd. On 1 February 1994 he received a reply I regretting that no suitable vacancies existed on the staff of that company.

9.

On 21 January 1994 the applicant wrote to Grinaker Construction Limited trading as Grinaker Building Transvaal. On 9 February 1994 J he was advised that that company was unable to accommodate him.

Heher J

10.

A During April 1994 the applicant wrote to Basil Read (Pty) Ltd. He was telephoned thereafter and told that they had no vacancy for him owing to a recession in the building industry.

11.

During May 1994 the applicant wrote to Shoredits Construction (Pty) Ltd. On 3 June 1994 he had received a response regretting that that B company had no vacancy for him.

12.

During May 1994 the applicant wrote to Capital Tobacco. To this letter he received no reply.

Neither at the time of applying for unemployment benefits nor during receipt of such benefits was the applicant required by the second C respondent to look for employment at any particular place or in any particular manner.

When the applicant applied for unemployment benefits he was not required to prove that he was registered in terms of s 4(1) of the Guidance and Placement Act 62 of 1981 or that he was, or had been, actively seeking work.

D The applicant was paid unemployment benefits monthly during the period May 1993 to November 1993 in a total amount of R2 305,01.

According to the applicant, the benefits which he had received were insufficient to maintain his family after November 1993. At the beginning of February 1994 he therefore approached the second respondent at his E offices in Pretoria in order to apply for further benefits in terms of s 35(14) of the Act. He was informed that application forms would be posted to him.

Some time thereafter the applicant received a form (UF 139) in the post under cover of a letter requesting him to provide proof of his efforts to F find employment.

The applicant completed the form and returned it to the second respondent on 18 April 1994. He annexed to the form copies of the letters he had received from Hilti Fastening Systems, National Sorghum Breweries, Rembrandt Tobacco Corporation and Grinaker Building Transvaal in response G to his enquiries about employment.

The applicant, so he says, indicated on the form some of the efforts which he had made to find employment and the reasons why these efforts had been unsuccessful. The original form produced by the respondents in answer to the review application does not, however, indicate that such efforts were particularised.

H During May 1994 the applicant received a letter from the Unemployment Insurance Fund dated 20 April 1994 in the following terms:

'With reference to your application for further unemployment benefits dated 1 February 1994, I wish to inform you that your application was considered by the Unemployment Insurance Board at its meeting held on 20 I April 1994 and after full consideration of all the circumstances of your case, the Board decided not to authorise further payment.

Unemployment benefits are payable only to unemployed contributors who are both capable of and available for work. Further, s 35(6) of the Act stipulates that, when any person applies for unemployment benefits, the claims officer may require him to submit proof to the satisfaction of the J claims officer, that he is, or has been, actively seeking work.

Heher J

A As you have failed to submit proof that you have actively sought work during the period 5 May 1993 to 2 November 1993 (while in receipt of benefits), the Board had no alternative but to refuse your application.'

The first respondent filed an answering affidavit (to judge by the cover sheet, on behalf of himself and the second respondent). He does not seek to place the facts in issue, but submits that the applicant is not B entitled to the relief which he claims for the following reasons:

'1.

In terms of the provisions of s 35(14)(a), read with ss 35(7)(a) and 35(13)(a) of the Act, an application for further benefits cannot, so he avers, be entertained by the Board unless the applicant concerned has been employed as a contributor or otherwise in employment for at C least 13 weeks during the 52 weeks immediately preceding the date on which his application for benefits has been lodged with the claims officer.

As appears from the applicant's founding affidavit:

(i)

D the application for further benefits was lodged on 18 April 1994;

(ii)

the applicant had not been employed as contemplated by s 35(13)(a) during the period of 52 weeks immediately preceding 18 April 1994.

2.

The letter of notification of the Board's refusal (ie that of 20 April 1994, quoted above) was written and signed by a junior official E of the Board and did not correctly reflect the Board's decision. In the first place it did not reflect that the application was refused on the grounds that 'the applicant did not qualify for further benefits in terms of s 35(13)(a) of the Unemployment Insurance Act, 1966'.

F In the second place, the letter incorrectly indicated that the application was refused owing to the applicant's failure to comply with s 35(6) of the Act, whereas, according to the first respondent, the Board did not consider the application on that basis. The first respondent states in his affidavit that the Board requires, as a matter of policy, that an applicant for further benefits has sought employment during the period G during which unemployment benefits were paid to him. He says that this is a policy

'which has widely been made known and is well-known to applicants for unemployment benefits or further benefits and claims officers are in any event required to inform proposed applicants accordingly'.

H The applicant did not meet the policy requirements since the letter submitted with his application

'revealed that he sought work during the period 1 December 1993 to 9 February 1994, which falls outside the period during which he received unemployment benefits'.

I The first respondent concludes

'had the applicant made any enquiries on (sic) the decision of the Board or availed himself of the remedies provided for in s 21 of the Unemployment Insurance Act, 1966, the correct situation would have been revealed to the applicant'.

The application was argued before me upon the assumption that the Board's J reasons for refusing the application were those set out in the first

Heher J

A respondent's affidavit. I am indebted to both counsel for a comprehensive and lucid presentation of the respective cases.

In order to place the application in context it may be as well to give a broad overview of the scheme of the Act. The Act provides for a national unemployment scheme to insure workers in the event of unemployment. It B requires workers to make compulsory contributions to the Unemployment Insurance Fund at a prescribed...