SUMMARY
| Wilson Busizwe Khanyile (the “applicant”) is a disability grantee in terms of Social Assistance Act 13 of 2004 (“the Act”) who brought an action, in the High Court of KwaZulu-Natal, Pietermaritzburg, against the South African Social Security Agency (the “first respondent”), Cash Paymaster Services (Pty) Ltd (the “second respondent”) and Grindrod Bank Ltd (the “third respondent”) to cease them from making deductions from his disability grant with immediate effect and to refrain from doing so in the future. In addition, he sought repayment for the sum of R1125.00 which he contended was unlawfully deducted from the account which his disability grant was paid, together with the transactional fee amounting to R40.50 flowing from the deduction, which amounts were debited from his account. |
Wilson Busizwe Khanyile (the “applicant”) is a disability grantee in terms of Social Assistance Act 13 of 2004 (“the Act”) who brought an action, in the High Court of KwaZulu-Natal, Pietermaritzburg, against the South African Social Security Agency (the “first respondent”), Cash Paymaster Services (Pty) Ltd (the “second respondent”) and Grindrod Bank Ltd (the “third respondent”) to cease them from making deductions from his disability grant with immediate effect and to refrain from doing so in the future. In addition, he sought repayment for the sum of R1125.00 which he contended was unlawfully deducted from the account which his disability grant was paid, together with the transactional fee amounting to R40.50 flowing from the deduction, which amounts were debited from his account. The applicant is the recipient of a disability grant allocated to him by the Department of Social Welfare and Development (the “Department”). The Department engaged the second respondent as its agent to register grantees. The second respondent engaged the services of the third respondent to provide banking services at affordable rates to the recipients of the social welfare grants. On or about 1 April 2017, the applicant noticed that instead of receiving the full payment of his grant in the amount of R1600.00, he only receives a reduced amount with the total deduction being in the amount of R255.00. The said R255.00 comprised of R200 being a purchase price of prepaid electricity and R25.00 being for cellular phone airtime. The deductions had taken place from April 2017 up to and including July 2017. The issue at hand is that, in terms of Regulation 26(A) to the Act for a deduction to be permitted it would have to be a written instruction from the beneficiary. The only exception is for a funeral policy, and this occurs when specific instruction has been given to make such a deduction. The applicant denies ever giving any consent for the aforementioned deductions. The application was opposed by all three respondents. After receipt of the answering affidavits, the attorneys for the applicant took a decision to withdraw their application against the second and third respondents, leaving only the first respondent as the sole party. The second respondent in its answering affidavit confirmed that it was contracted by the first respondent. Accordingly, when an instruction is received from the first respondent to process a deduction in accordance with Regulation 26(A) of the Act, same is done before the beneficiary’s grant is paid into his or her bank account. Once this has been effected, according to the second respondent, it has no control over what is done or deducted from the beneficiary’s bank account. Furthermore, the second respondent does not sell airtime and/or electricity, but this particular service is provided by the third respondent, using a platform called Manje Mobile Electronic Payment Services. When the applicant’s claim came to the attention of Manje Mobile Electronic Payment Services, a multinational consortium called Net1 UEPS Logistics Inc (“the Company”), the Company, on behalf of the third respondent, offered to reimburse the applicant whatever amounts that had been deducted from his account, and that this offer would constitute a full and final settlement of any claims the applicant has against the Company. The Company further requested an affidavit from the applicant confirming that he did not purchase any prepaid airtime and/or electricity using his bank card or account number to which his disability grant was paid, and that he did not authorise any third party(ies) to do so. In response, attorneys for the applicant undertook to release the third respondent from the application, provided that the third respondent attached the above letter to an affidavit. |
HELD
| Counsel for the applicant properly pointed out that the reason it had refused to accept the settlement offer, by the Company to the applicant, is because it would have only disposed of part of the relief sought, pertaining to the repayment of the unlawful deductions and would have not provided relief for the applicant to protect himself from unlawful deductions in the future. Irrespective of whether there was an offer by the third respondent, the first respondent is ultimately liable on the basis that it is the entity that is statutorily charged with the payment of the full amount of a beneficiary’s social welfare or disability grant. |
| The first respondent was challenged to produce any proof that the applicant authorised any deduction. Instead, the first respondent chose to oppose the relief sought by the applicant on the basis of technicality – that the applicant failed to comply with the provisions of the KwaZulu-Natal Practice Directive 30 (the “Directive”), which was issued to regulate the deluge of litigation that arose around the refusal to award applicants social welfare grants. The Court considered the case of Cele v The South African Social Security Agency and Others, where it was held that a letter of demand should be addressed to either the first respondent or the Minister of Social Development depending upon the nature of the claim, as counsel for the first respondent conceded to only basing his argument on procedural non-compliance with the Directive. |
| Counsel for the applicant properly pointed out that the reason it had refused to accept the settlement offer, by the Company to the applicant, is because it would have only disposed of part of the relief sought, pertaining to the repayment of the unlawful deductions and would have not provided relief for the applicant to protect himself from unlawful deductions in the future. Irrespective of whether there was an offer by the third respondent, the first respondent is ultimately liable on the basis that it is the entity that is statutorily charged with the payment of the full amount of a beneficiary’s social welfare or disability grant. The first respondent was challenged to produce any proof that the applicant authorised any deduction. Instead, the first respondent chose to oppose the relief sought by the applicant on the basis of technicality – that the applicant failed to comply with the provisions of the KwaZulu-Natal Practice Directive 30 (the “Directive”), which was issued to regulate the deluge of litigation that arose around the refusal to award applicants social welfare grants. The Court considered the case of Cele v The South African Social Security Agency and Others, where it was held that a letter of demand should be addressed to either the first respondent or the Minister of Social Development depending upon the nature of the claim, as counsel for the first respondent conceded to only basing his argument on procedural non-compliance with the Directive. The applicant however, falls in neither of the categories, as he is already an existing beneficiary of a social welfare grant. For that reason, the court held that an application of this nature will not ‘open the flood gates’ to litigation, by-passing the provisions of the Directive, as there will be those cases in which the court will have to scrutinise the facts and the relief sought to determine whether the nature of the claim warrants that it complies with the Directive. Lastly, mindful of the amount in question being below R2,000.00, counsel for the applicant argued that amount claimed by the applicant may be considered trifling to some officials, however, this amount allows a fellow human being and citizen to survive for a month, with dignity. The relief sought is for an interdict against the first respondent, an organ of state, that it would not, in the future, permit unlawful deductions from the applicant’s bank account, hence the application did not belong to the Magistrate’s Court. The court further considered the case of Fose v Minister of Safety and Security, which stated that: ‘Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated’. For abovementioned reasons, the court ordered first respondent to: Cease making, or allowing to be made, deductions from the Disability Grant of the Applicant with immediate effect, and to refrain from doing so until such time as the Applicant, in writing, requests a deduction to be made;Repay to the Applicant the sum of R1,125-00, which amount includes the total of all deductions made against the Applicant’s Disability Grant to date, with interest to be added thereon at the prescribed rate from date of deduction to date of payment;Repay to the Applicant the sum of R40-50, which amount includes the total of all transaction fees charged against the Applicant’s grant to date, with interest to be added thereon at the prescribed rate from date of deduction to date of payment;Pay the costs of this Application, on the Scale as between Party and Party. |
VALUE
Organs of state are duty bound to uphold the constitution and protect the poor and vulnerable in our society.
Written by Puseletso Radebe Checked by Stefan Bezuidenhout
