IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL DIVISION, MTHATHA)

CASE NO: 3956/16

In the matter between:

MAKEHLE MPAYIPHELI 						        Applicant

and 

MINISTER OF SOCIAL DEVELOPMENT	                 First Respondent

INDEPENDENT TRIBUNAL, DEPARTMENT 
OF SOCIAL DEVELOPMENT 			             Second Respondent

JUDGMENT

MBENENGE ADJP:
[1]	The issue raised in this application can best be understood against the background of the relevant statutory matrix.
[2]	Section 18 of the Social Assistance Act sets out the procedure to be followed when a decision by the South African Social Security Agency is being reconsidered.
[3]	Of more relevance to this application is section 18(2)(a) of the Act which gives the Minister of Social Development, upon receipt of an appeal contemplated in section 18 (1A) of the Act, the power to “confirm, vary or set aside” the decision of the Agency on an application lodged by the applicant for social assistance in terms of section 14.

[4]	After the applicant’s application for a disability grant had been refused by the Agency, primarily on the ground that it had been “lodged outside the prescribed 90 day period”, the applicant lodged an appeal in the prescribed manner, predicated on the following:
“The administrator relied on an evidence or information of an expert nature for its conclusion and no opportunity was given to appellant to make representations in response.  The appellant is an unskilled person and can only be accepted in the labour market requiring unskilled labourers.  Unskilled labourers require a perfect health with all senses functioning.  It was unreasonable not [to] grant even a temporary disability grant”.

[5]	In the course of time the applicant was invited, by the Acting Chief Director: Legal Services, to furnish the Department of Social Development with certain outstanding documents.  The applicant was further advised as follows:
“Regulation 19 (1)(7) provides that 90 days period referred to in regulation 16 (2) will only start running from the date of receipt by the Independent Tribunal of all required documents under sub-regulation 3.  Please be advised that should you respond [to] this letter after a period of 90 days from the date on which the reconsideration outcome was issued, kindly fill in the attached condonation form.”

[6]	His motivation for condonation is worded:
“I am illiterate person let alone being a layman.  I grew up in deep rural areas.  Upon receipt of the letter of rejection no one explained the contents of the letter.  I was not aware that I have a right to challenge what I think is a government entity.  All I know if I am offended by a private individual you can enforce your rights through the legal entities.  It is the government that is able to deal with disputes.  I did not even know that there are time limits that need to be met.  I re-iterate that I am an illiterate person as well as a layman.  I do not know provision of Section 18 (1).

I was advised of the provisions by my attorney after I approached him for legal assistance.  I was referred to the attorney by a friend.”

[7]	Approximately three months thereafter, by facsimile letter dated 13 October 2015, the applicant’s attorneys of record, through whom the applicant had been interacting with the Department, were informed: 
“Kindly be advised your client’s reconsideration outcomes have been lodged with SASSA outside the 90 day period.  Your clients are therefore advised to re-apply for the grant in that SASSA’s legislation does not condone late reconsideration applications.”

[8]	The letter referred to in paragraph [7] above was penned by a certain Tefu Khomotso, ostensibly a Legal Administration Officer in the employ of the Department.

[9]	The instant application was resorted to approximately a year after the letter of 13 October 2015 had reached the applicant.  The applicant’s principal contention upon which the application is founded, is that when it was, in terms of section 18(2) of the Act, incumbent on the first respondent to either confirm, vary or set aside the decision of the Agency, none of those decisions were taken, hence he now seeks, in the main, an order declaring that the failure to consider and take a decision in relation to his appeal is unlawful.  Consequent upon the grant of the main prayer, the applicant seeks a mandamus directing the first respondent to decide on the appeal.

[10]	The affidavit filed in opposition to the application is deposed to by Mr Nkosinathi Dladla, the Chief Director: Legal Services, he having been allegedly duly authorised thereto by the first and second respondents.

[11]	Apart from raising mis-joinder of the second respondent and the non-joinder of the Agency, Mr Dladla dealt with the applicant’s contention that there was a failure to take a decision in the following terms:

“The Minister may confirm vary or set aside the decision or appoint an independent tribunal to consider the appeal.  It is denied that the respondent failed to respond to the applicant’s written appeal.  The applicant was notified on 13 October 2015 that he must re-apply for the grant at the South African Social Services Agency as his reconsideration was brought outside 90 day period.”

[12]	At hearing stage, the dispute between the parties narrowed itself down to whether the first respondent as the statutory appellate functionary ever took a decision on the applicant’s appeal.  If she did, so the argument went, the application should fail; if she did not, the application must succeed.  The parties confined themselves to arguing this sole issue.  Ms Langa, counsel for the respondents, correctly in my view, abandoned the mis-joinder contention, as indeed there is no evidence of the first respondent having appointed an independent tribunal to consider the appeal.  She also did not persist in the non-joinder contention.  That, too, was a calculated stance because the decision subject to the instant proceedings is clearly that of the second respondent, and not that of the Agency.
[13]	From an analysis of the respondents opposing affidavit what is singularly lacking is reference to a decision as having been taken by the first respondent, either confirming or varying or setting aside the impugned Agency’s decision.  In his affidavit, Mr Dladla, regurgitates what section 18(2)(a) provides.  He goes on to make the point that the applicant was notified to reapply for a grant as his reconsideration application was brought outside of the requisite 90-day period.  The relevant annexure also does not take the matter any further.  It, too, merely served to advise the applicant to reapply for the grant.
[14]	In my view, there is no evidence of any decision having been taken by the first respondent in relation to the appeal that the applicant lodged.
[15]	Even prior to the advent of the constitutional dispensation, powers conferred on administrators were inevitably accompanied by an implied duty to exercise the power.  The enactment of the Promotion of Administrative Justice Act has perpetuated the common-law position by, inter alia, rendering a failure to take a decision a ground of review.
[16]	In the circumstances, I find that the first respondent failed to take a decision on the applicant’s appeal as contemplated in section 18(2) of the Act.  Therefore, the failure to take a decision by the first respondent in relation to the applicant’s appeal is unlawful, and thus liable to be set aside.  The applicant is further entitled to the consequential relief he is seeking and, as a successful litigant, to an order of costs.

[17]	I therefore grant the following order:

(a)	The first respondent’s failure to decide on the applicant’s appeal against the decision of the South African Social Services Agency refusing to reconsider the applicant’s application for a disability grant is hereby set aside.

(b)	The first respondent is directed to –

(i)	consider and decide on the appeal within 30 days of the service of this order on the first respondent; and

(ii)	inform the applicant of her (the first respondent’s) decision within 7 days of such decision having been taken.

(c)	The first respondent shall pay costs of the application.

_____________________________________
S M MBENENGE
ACTING DEPUTY JUDGE PRESIDENT
HIGH COURT, MTHATHA

Attorney for the applicant:			A S Zono 
							A S Zono & Associates 									MTHATHA			
Counsel for the respondent:			S E Langa 
Instructed by:					The State Attorney 
							MTHATHA 

Heard on:						07 June 2017
Delivered on:					13 June 2017