EASTERN CAPE HIGH COURT, GRAHAMSTOWN

Transcription

1 In the matter between: EASTERN CAPE HIGH COURT, GRAHAMSTOWN CASE NO.: VUYISWA SHIRLEY JULY MISIWE ROSY NTAMO TOZAMILE MAXWELL NGABASE THEMBISA VIRGINIA MLAMBO ALGERNON BASSON THE TRUSTEES OF THE BLACK SASH TRUST First Applicant Second Applicant Third Applicant Fourth Applicant Fifth Applicant Sixth Applicant and MINISTER OF SOCIAL DEVELOPMENT SOUTH AFRICAN SOCIAL SECURITY AGENCY INDEPENDENT APPEALS TRIBUNAL OF THE DEPARTMENT OF SOCIAL DEVELOPMENT First Respondent Second Respondent Third Respondent FIRST APPLICANT S AFFIDAVIT I, the undersigned VUYISWA SHIRLEY JULY hereby make oath and state:

2 2 1. I am an unemployed woman living in the Eluxolweni Location, Grahamstown. My identity number is I am the First Applicant in this case. 2. The contents of this affidavit are true and correct to the best of my knowledge, information, and belief. I have personal knowledge of the facts except where it is otherwise stated or the contrary is apparent from the context. Legal submissions are made on the advice of my legal representatives. THE PARTIES 3. The Second Applicant is Misiwe Rosy Ntamo, an unemployed woman residing at 73 Nkomo Street, Extension 9, Grahamstown. 4. The Third Applicant is Tozamile Ngabase, an unemployed man residing at 52 Wood Street, Grahamstown. 5. The Fourth Applicant is Thembisa Virginia Mlambo, an unemployed woman residing at 21 Somgesi Street, Xolani Location, Grahamstown. 6. The Fifth Applicant is Algernon Basson, an unemployed man residing at 23 Bowker Street, Grahamstown. 7. The Sixth Applicant is the Black Sash Trust, a non-party political, nonprofit organisation. It seeks to ensure that poor, vulnerable and

3 3 marginalized people who turn to the government for assistance are treated with dignity, with efficiency, and with due regard to their constitutional and statutory rights. 8. The First Respondent is the Minister for Social Development ( the Minister ). She is responsible, in terms of sec 18 of the Social Assistance Act 13 of 2004 ( SAA ), for either personally determining of appeals from persons who have applied for and have been refused a disability grant in terms of sec 9 of the SAA or establishing an independent tribunal to consider such appeals. The Minister s principal place of business is HSRC Building, North Wing, 134 Pretorius Street, Pretoria. 9. The Second Respondent is the South African Social Security Agency ( SASSA ), which is established in terms of sec 2 of the South African Social Security Agency Act 9 of 2004 ( SASSA Act ). In terms of sec 4(1) of the SASSA Act, SASSA is required to administer social assistance in terms of Chapter 3 of the SAA, including sec 9 thereof. SASSA is cited for such interest as it may have in these proceedings. The Applicants do not seek any relief against it, save for an order for costs in the event that it opposes this application. 10. SASSA s principal place of business is at SASSA House, Prodinsa Building, cnr Beatrix & Pretorius Streets, Pretoria. Its Regional Office in the Eastern Cape Province is at 3-33 Phillip Frame Road, 1 st Floor Waverly Offices, Chiselhurst, East London.

4 4 11. The Third Respondent is the Appeals Tribunal of the Department of Social Development ( the Tribunal ), established by the Minister in 2008 to determine social grant appeals. 12. The Tribunal s principal place of business is at HSRC Building, 134 Pretorius Street, Pretoria. 13. This application will be served on the First Respondent at the offices of the State Attorney at 29 Western Road, Central, Port Elizabeth and on the Second Respondent and Third Respondents at their principal places of business. NATURE OF THE APPLICATION 14. Section 5 read with Section 9 of the SAA provides that a person is, subject to the qualifications set out in Section 5, entitled to a disability grant if he or she has attained the prescribed age and is, owing to a physical or mental disability, unfit to obtain by virtue of any service, employment or profession the means needed to enable him or her to provide for his or her maintenance. 15. The First to Fifth Applicants have all applied for disability grants. Those applications have all been refused by SASSA. 16. The First to Fifth Applicants have all lodged appeals against SASSA s refusal of their applications for disability grants. In each instance, more

5 5 than a year has elapsed since the appeal was lodged. In each instance, the appeal has not yet been decided. 17. As is set out below, this is unfortunately not an unusual phenomenon. The Black Sash and the Legal Resources Centre ascertained that as at 15 April 2009, there was a backlog of social grant appeals outstanding. The backlog is either not being reduced at all, or not being materially reduced. On the Minister s own version, it will take two years to deal with the backlog. 18. The consequence is that many thousands of people who desperately need a disability grant because they are disabled and living in poverty, will continue to suffer in poverty for a very substantial time even though they may have a legal right to the grant. 19. In this application, the Applicants seek orders which will provide individual and systemic relief from this situation, which I have been advised and submit is unlawful. LOCUS STANDI 20. In the light of the widespread and continuing breach of the rights of applicants for disability grants, this application seeks to ensure that the Minister and the Tribunal she has established carry out their constitutional and statutory duties in that regard.

6 6 21. The Applicants bring this application: In terms of sec 38 (a) of the Constitution, in our own interests; In terms of sec 38(b) and (c) of the Constitution, in the interests of the many similarly situated individuals who have unsuccessfully applied to SASSA for a disability grant, who have lodged appeals to the Minister, whose appeals have not been determined in accordance with the requirements of the law, and who are unable, because of ignorance or poverty or lack of access to legal services, to institute litigation in their own name in order to enforce their rights In terms of sec 38(d) of the Constitution, in the public interest 22. The attached affidavit on behalf of the Black Sash sets out its interest in this matter. THE CONSTITUTIONAL AND LEGISLATIVE FRAMEWORK 23. Section 27(1)(c) of the Constitution provides that everyone has the right to have access to social security, including, if they are unable to support themselves and their dependents, appropriate social assistance. Section 27(2) obliges the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of that right.

7 7 24. The Preamble to the SAA refers to this provision of the Constitution. It acknowledges the need to provide effective, transparent, accountable and coherent government in respect of social assistance for the Republic as a whole. The purpose of the SAA is stated in its short title as [t]o provide for the rendering of social assistance to persons; to provide for the mechanism for the rendering of such assistance; 25. As I have stated, Section 9 of the SAA creates an entitlement to a disability grant on the part of any person who meets the statutory requirements. The decision whether the applicant for the grant qualifies for it, is made by SASSA. 26. Section 18 of the SAA, as amended in 2008, provides for appeals against the refusal of an application for a social grant (which includes a disability grant), as follows: (1) If an applicant disagrees with a decision made by the Agency in respect of a matter regulated by this Act, that person or a person acting on his or her behalf may, within 90 days of his or her gaining knowledge of that decision, lodge a written appeal with the Minister against that decision, setting out the reasons why the Minister should vary or set aside that decision. (2) The Minister may -

8 8 (a) upon receipt of the applicant s written appeal and the Agency s reasons for the decision, confirm, vary or set aside that decision; or (b) appoint an independent tribunal to consider an appeal contemplated in subsection (1) in accordance with such condition as the Minister may prescribe by notice in the Gazette, and that tribunal may, after consideration of the matter, confirm, vary or set aside that decision or make any other decision which is just. (3) If the Minister has appointed an independent tribunal in terms of subsection (2)(b) all appeals contemplated in subsection (1) must be considered by that tribunal. 27. The Minister has appointed a tribunal in terms of section 18(2). I have been advised and submit that the Minister remains responsible in law to ensure that appeals are determined and without undue delay. 28. The Minister has not prescribed any conditions in the Gazette in terms of section 18(2)(b) of the SAA since the establishment of the Tribunal contemplated in section 18(3) in 2008.

9 9 29. Section 32 of the SAA authorises the Minister to make regulations in terms of the Act. On 22 February 2005, in Govt Notice R162, the Minister made such regulations ( the 2005 Regulations ). Regulation 18 dealt with the appeals procedure as follows: (1) An applicant or beneficiary who is aggrieved by a decision of the Agency shall, within 90 days of gaining knowledge of such a decision, lodge an appeal in writing to the Minister setting out the grounds on which the appeal is based, and submit a copy thereof to the Agency (3) The Minister may appoint a person or persons to constitute a tribunal to consider an [appeal]. (5) A tribunal appointed by the Minister must dispose of the appeal within 30 days, unless the Minister directs otherwise. (7) The Minister must communicate the outcome of the appeal in writing and in the official language of preference of the beneficiary within 10 days of the decision of the tribunal. (8) The provisions of regulation 18 shall apply with the necessary changes where the appeal is considered by the Minister or his or her delegatee. (11) The applicant and the beneficiary must be informed of the decision in writing within 30 days of the date of the outcome of the appeal.

10 On 22 August 2008, in Govt Notice R898, the Minister made new regulations ( the 2008 Regulations ), which repealed the entirety of the 2005 Regulations. The 2008 Regulations do not deal with appeal procedures or time periods or appeal procedures to be followed by the Tribunal. However, I submit that the time periods prescribed in the 2005 Regulations indicate the reasonable period for making a decision on appeal. 31. In this regard, I point out that, by definition, a person who qualifies for a disability grant is indigent and in desperate need of the grant. This makes it vitally important that appeals should be decided without undue delay. A person who is entitled to a disability benefit, but does not receive it promptly as a result of delay, is unnecessarily held in poverty. This is an infringement of his or her dignity. 32. The payment of a disability grant to a qualified applicant is a constitutional obligation. All constitutional and statutory obligations must be performed diligently and without delay. I submit that a failure to deal with an appeal promptly, with the result that a person entitled to a disability grant is delayed in receiving it, is in breach of the Constitution and the duty on public officials to perform their statutory obligations without unreasonable delay. THE FACTUAL BACKGROUND

11 11 A. My Disability Grant Application 33. I was born on 20 May 1968 and am now 41 years old. I am the mother of four children and have a Std 2 level of education. I live with my husband, our two youngest children, and two grandchildren. 34. My husband is a farm labourer. He earns R800 per month. His income, combined with a child support grant I receive for my youngest child in the amount of R240 per month, constitutes our entire monthly household income. 35. Our household income is not enough to feed and clothe a family of six. Each month, we must pay R150 in rent, R120 in school fees, and for prepaid electricity, when possible. 36. I previously worked as a labourer at a tree farm, earning R300 per month. However, in 2007 the continuous pain in my legs and back made performing physical work impossible. 37. In 1998, I fractured my right leg. I have had difficulties ever since. In 2002 I was diagnosed with osteoarthritis. In 2007, I became unable to walk on my right leg, and experienced continuous swelling and pain. I have had surgery on my right ankle, and have a burning fissure under my right foot. In addition, I experience swelling and pain in my left ankle and back pain. I have also been diagnosed with high blood pressure.

12 I must take five different medications every day for my chronic conditions. I have been advised by my doctors that I am not fit to perform manual labour of any kind. I am unfortunately not qualified to do any other work. 39. On 5 November 2008, I applied for a disability grant. In support of my application, I submitted a copy of my clinic book, which indicates that I suffer from health problems that make me unable to work. Copies of my application receipt and clinic book are attached marked (VSJ1). 40. I later received a letter dated 5 November 2008 from SASSA stating that my application for a disability grant had been denied for the following reasons: Your early controlled chronic medical condition is controllable with regular medication from the clinic. Your osteoarthritis (R) ankle is controllable with regular medication from the clinic. I attach a copy of that letter (VSJ2). 41. I then asked the Legal Resources Centre (LRC) in Grahamstown to appeal this decision on my behalf. On 2 December 2008, Attorney Sarah Sephton of the LRC sent a letter to the Minister lodging an appeal against SASSA s decision. I attach a copy of that letter (VSJ3). Attached to that appeal was a letter from Dr EJ Galpin, dated 26 November 2008, confirming the severity of my condition. In that letter (VSJ4) Dr Galpin stated of me:

13 13 She has severe osteoarthritis of her right ankle with permanent deformity and no range of movement. Her left ankle has become damaged as a result of chronic limping and she has associated back pain. She uses an elbow crutch as of July 2008 in an attempt to minimise further damage to her left ankle and back. When she walks she is unable to place her right heel on the floor. There is no way she will ever get employment in her condition. 42. As the Minister did not respond to this appeal, on 30 May 2009 the LRC sent an (VSJ5) to Msibulele Mfunzana, an employee of the Minister, requesting a date for the hearing. 43. On 20 October 2009, I went to Settlers Day Hospital in an attempt to get some assistance with my disability grant appeal. The doctor evaluated me and told me that he would appeal again to the DSD on my behalf. He also told me that I should go to the pay point to check on the status of my appeal at the end of November. I went to the pay point on 28 November 2009 and was told to return in two weeks because they had not received any information. 44. It is now well over a year since my appeal was lodged. The LRC and I have still not received notice of either the date of my appeal hearing, or the outcome of the appeal.

14 14 B. The Second to Fifth Applicants Grant Applications 45. As appears from their affidavits, the Second to Fifth Applicants are in a similar position to me in that: They applied for disability grants; Their applications were refused; They appealed against such refusals; and Although at least a year has elapsed since their appeals were lodged, the appeals have still not been decided. RELIEF 46. On my own behalf, I ask for an order that my appeal should now be determined without any further delay. I am advised that I am entitled to that relief in terms of sections 6(2)(g) and 6(3)(a) of the Promotion of Administrative Justice Act 3 of 2000 ( PAJA ) because there has been an unreasonable delay in determining my appeal. I am also entitled to that relief for the reasons set out below. 47. As appears from the sequence of events in the Jongile case, referred to in the Black Sash affidavit, it is possible that the individual applicants in this case will have their appeals determined once this application has been

15 15 served and filed. Even if that happens, however, that will do nothing to solve the problems of the many thousands of disability grant applicants who have been waiting for a long time for their appeals to be decided. 48. I have been advised and respectfully submit that the Minister s failure to ensure that appeals are decided with reasonable promptness is unlawful, as it is in breach of the following: The right of everyone, in Section 27 of the Constitution, to have access to social security, including if they are unable to support themselves or their dependents, appropriate social assistance; The right of everyone, in Section 10 of the Constitution, to have their human dignity respected and protected; The right of everyone, in Section 33 of the Constitution, to administrative action that is lawful, reasonable and procedurally fair; The right in Section 18 of the SAA to have one s appeal determined The right of an appellant to have one s appeal determined within a reasonable time, protected by section 6(2)(g) of PAJA read with section 6(3)(a).

16 The duty of the state, in Section 237 of the Constitution, to perform all constitutional obligations diligently and without delay. 49. I ask that even if my own appeal is now quickly determined, this Honourable Court should make an order which will ensure that the appeals of other disability grant appellants should also be determined without delay. I ask this on behalf of the thousands of disability grant appellants who are prevented by ignorance, by poverty and by lack of access to legal services from bringing separate applications to court in order to obtain relief. I also ask this in the public interest. 50. In this regard I support what is stated in the affidavit on behalf of the Black Sash with regard to the need for an order which will provide relief to the many thousands of poor and disabled people who are prevented, by the failure of the appeal process, from obtaining the grants which they desperately need. 51. I submit that it is essential that the Minister be required to put in place a system for dealing with the backlog of social grant appeals and for hearing appeals in a timely manner. I accept that it is for the Minister to determine precisely how this should be done, and I therefore do not ask that this Honourable Court make an order as to the method by which the Minister must comply with her legal obligations. I submit however that the facts show that neither non-litigious methods such as correspondence and meetings, nor individual applications for relief, will bring about compliance

17 17 with the requirements of the Constitution and the SAA. I submit that under the circumstances, appropriate relief includes a requirement that the Minister report to the Applicants and to this Honourable Court on what she will do and what she has done to comply with the requirements of the law, in order that the matter may if necessary be brought back to court for further relief. 52. I ask that this order be nationally applicable. I have been advised that argument will be submitted as to why this is appropriate. In the event that this Honourable Court is not willing to make an order which is of national application, then I ask that the order be made applicable throughout the Eastern Cape. 53. I have been advised and submit that this Honourable Court has jurisdiction to grant the order sought on a national basis and that the basis for such jurisdiction appear from the facts set out in this affidavit and the others submitted in support of this application. 54. I further submit that this Honourable Court s jurisdiction is firmly grounded on the fact that the Court plainly has jurisdiction over the claims of the individual applicants and of other appellants against the refusal of disability grants who reside within its area of geographical jurisdiction and on the Constitutional Court s assertion that the inclusion of extrajurisdictional appellants cannot be an obstacle to the order sought.

18 In addition, I point out that the proposed jurisdiction is in the interests of judicial efficiency. If this Honourable Court were to make an order which affected only disability grant appellants residing within the Court's area of geographical jurisdiction, it would then be necessary for separate and similar applications to be instituted in other jurisdictions. The unnecessary multiplication of applications concerning the same subject matter would cause obvious inconvenience and result in wasted costs, wasted judicial time and possibly contradictory judgments. COMPLIANCE WITH RULE OF PRACTICE 21 AND URGENCY 56. The First to Fifth Applicants have complied with Rule of Practice 21. I refer to Annexure VSJ6 sent by Applicants attorneys, the Legal Resources Centre. The response from the State Attorney is Annexure VSJ7. No further response from the State Attorney has been received. 57. On 25 January 2010, an individual who identified himself as Oupa from the DSD contacted Attorney Sephton in response to the notice received by the State Attorney. He asked Attorney Sephton to resubmit the letters of rejection for each of the Applicants. She refused on the basis that this information had not only been produced by SASSA, but also submitted with the Applicant s letters of appeal and with the notice to the State Attorney.

19 On 1 February 2010, Oupa called Attorney Sephton and advised her that Mr Zilindile Peter s appeal would be heard on 8 February On 1 February 2010, the LRC received a phone call from Rina Pienaar who indicated that she was calling from the Tribunal in response to the notice received by the State Attorney. Ms Pienaar requested clarification regarding Rule of Practice 21 and, after receiving clarification, indicated that she would make a request that the Tribunal set appeal hearing dates for the individuals listed in the LRC s notice (VSJ6). There was no indication when these appeal hearings might occur. 60. On 4 February 2010, Louisa Mudau from the Department of Social Development sent Attorney Sephton a list containing two names of LRC clients whose appeal hearings would take place on 8 February 2010: Zilindile Peter and Ms Abrahams. I am advised that Rufus Poswa of the LRC tried to contact Mr Peter to no avail. The matter of Ms Abrahams had already been resolved through the intervention of the LRC when the Second Respondent agreed that she was disabled and awarded her a permanent disability grant. This is confirmed in an affidavit of Sarah Sephton attached to the Founding Affidavit. 61. On 8 February 2010, after waiting over ten months for his disability grant appeal to be heard, Mr Peter went to the SASSA offices in Grahamstown for his oral hearing, as directed. At the SASSA offices, Mr Peter was given an application form and told to reapply for his disability grant. He received

20 20 no administrative process with respect to his appeal and neither did he receive and explanation as to why he should reapply. 62. On 9 February Advocate Mandla Matapuma from the Department of Social Development contacted Attorney Sephton and asked is she was satisfied that all LRC appeals had been addressed. She replied that, as the list only contained the names of two people, one of whom has had her grant reinstated, and the LRC had submitted far more appeals, the LRC appeals had not been dealt with satisfactorily. Advocate Matapuma said he would check his records and revert to her. 63. These proceedings are inherently urgent, as they concern the compliance by the State with its obligations to determine appeals without undue delay. Given that those who are waiting for their appeals to be determined are living in poverty and unable to work, it is imperative that our entitlement to disability grants be determined expeditiously. The slightly truncated time frames set out in the notice of motion for the filing of papers reflect this need for urgency. Applicants legal representatives will approach the Court for allocation of an early date for the hearing of this matter, to which we assume the Respondents will agree. 64. I accordingly ask for an order as prayed in the Notice of Motion.

21 21 VUYISWA SHIRELY JULY I certify that the Deponent has acknowledged that he knows and understands the contents of this Affidavit, which as signed and sworn to before me at GRAHAMSTOWN on this day of February In administering the oath, the requirements of Regulation R2477, dated 16 November 1984 as amended, have been complied with. COMMISIONER OF OATHS FULL NAMES: CAPACITY: ADDRESS: