Opinionista Nomonde Nyembe 21 June 2017

Court erred in social grant deductions case

The time has come for corporations to act responsibly and comply with their constitutional obligations by not deducting money from social grant beneficiaries accounts without their full consent and knowledge. It has also come for the state to take measures to adequately protect social grant beneficiaries from exploitation by putting in place measures to protect these accounts from unknown and unwanted deductions. By NOMONDE NYEMBE.

The social grant system is not the altruistic means by which we ensure that the most impoverished members of our society and communities are protected. It is a right which is constitutionally guaranteed to those in need. Section 27 of the Bill of Rights provides that “everyone has the right of access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance”.

The corollary to any right in the Constitution is an obligation. Constitutional obligations lie not only with the state but also with other people and companies depending, in terms of section 8(2), on the nature of the right and the nature of the obligation. It is within this constitutional context that Acting Judge Corrie van der Westhuizen heard and decided the recent Net1 case and appeal on social grant deductions.

On 9 May 2017 Van der Westhuizen handed down the Net1 and Others v Minister of Social Development and Others judgment in the Pretoria High Court. This judgment is as a result of a number of applications that had been brought to the court in June 2016 following the proclamation of the Amended Social Assistance Regulations (Regulations) and a subsequent hearing that took place in October 2016. The cases were brought by companies within the Net1 group structure (Net1, Smartlife and Finbond) as well as Information Technologies (a company responsible for the processing of payment instructions within the National Payment System). In essence, the case concerned the differing interpretations ascribed to the Regulations by the applicants and the Minister of Social Development and the South African Social Security Agency (Sassa).

The Minister and Sassa interpreted the Regulations as restricting debit deductions from Grindrod-based bank accounts of social grant beneficiaries and the applicants interpreted them to mean that debit deductions could be made from these bank accounts. Armed with evidence of some debit deductions being made from social grant beneficiaries’ accounts without their knowledge or informed consent, Black Sash and six individual grant beneficiaries (the intervenors) sought to intervene in the case.

The intervenors sought to create soft landing spot in the event that the interpretation of the applicant was adopted by the court. They, represented by the Centre for Applied Legal Studies, requested that the court, if it found in favour of the applicants and against the Minister and Sassa, order that the latter create a system which does adequately protect social grant beneficiaries from exploitation and their accounts from disputed and unknown deductions.

For the intervenors, there are significant breaks in the chain that result in the diminution of the meagre social grant money to which grant beneficiaries are entitled. These make it difficult for grant beneficiaries to prevent proactively and address reactively debit deductions from Grindrod-based bank accounts. Among them are: (i) the fact that Grindrod Bank has, according to its website, only five branches nationally in only three provinces; (ii) customer service lines which are only free from landline phones and go unanswered for lengths of time; (iii) the logistical difficulties experienced by social grant beneficiaries stopping unwanted deductions and closing unwanted EPE accounts which rendered such redress impossible for them.

If debit deductions are permitted from the Grindrod-based bank accounts of social grant beneficiaries (as interpreted by the applicants), the intervenors requested that the Minister be directed to make regulations that do protect social grant beneficiaries from exploitation. This was not to be the case.

In his judgment of 9 May 2017, Van der Westhuizen found in favour of applicants but did not engage with the relief requested by the intervenors. The court found instead that the intervenors should not be permitted to intervene because: their applications are not relevant nor appropriate; they raise alleged constitutional issues that are not relevant in considering the interpretation of the regulations; and the high court is not the forum to raise these constitutional issues or possible relief.

With respect, the court erred in a number of ways. First, the intervenors went to great lengths to demonstrate to the court the significance of the reception of social grants on their quality of life as well as the extent to which they have been adversely affected by deductions. Their intervention was therefore appropriate and relevant. Second, the constitutional issues raised by the intervenors were central to the question before the court ie interpretation. Section 39 of the Constitution makes this clear and reads as follows: “(w)hen interpreting legislation. . . every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.” Finally, the question of constitutionality stands firmly within the the parameters of the jurisdiction of the court in terms of the Constitution (section 172).

It is for these reasons that the intervenors sought leave to appeal from Van der Westhuizen’s decision to disallow their intervention. The application for leave to appeal was heard and decided on 20 June 2017. Again, Van der Westhuizen found in favour of the applicants and against the Minister and Sassa. He also refused the intervenors’ application for leave to appeal on the grounds that there was no prospect that a different court would come to a different decision.

With these decisions from the high court and without further intervention by either the proclamation of new regulations (relief that had been requested by the intervenors in their application) or appeal of the Net1 decision, social grant beneficiaries are left in a perpetual state of vulnerability from deductions that they may not fully consent to or deductions the source of which they do not know. Therefore, the time has come for corporations to act responsibly and comply with their constitutional obligations by not deducting money from social grant beneficiaries accounts without their full consent and knowledge. It has also come for the state to take measures to adequately protect social grant beneficiaries from exploitation by putting in place measures to protect these accounts from unknown and unwanted deductions. DM

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