Deliwe Muriel Njongi v Member of the Executive Council, Department of Welfare, Eastern Cape

Mrs Njongi received a disability grant from 1989 until November 1997 when payment inexplicably ceased. A provincial official gave no explanation and simply asked her to re-apply. She was one of thousands similarly affected by the Eastern Cape's mass review process where grants were cancelled without proper notice or procedure. After re-application in January 1999, payment resumed in July 2000, but she only received R1,100 in back-pay instead of the R15,200 she should have received. She brought review proceedings in May 2004 seeking to set aside the unlawful cancellation and obtain full arrear payments. The Provincial Government raised prescription as a defence, claiming the debt had prescribed even though the unlawful administrative action had never been set aside or disavowed.

• Whether prescription runs against a person entitled to disability grant arrears while an unlawful administrative decision terminating the grant remains in existence and has not been disavowed by the State
• Whether a debt is 'due' and immediately enforceable for prescription purposes when it depends on setting aside an unlawful administrative action
• Whether it is competent and appropriate for the State to invoke prescription to defeat claims for social grants arising from its own unlawful conduct
• What factors the State must consider when deciding whether to plead prescription in respect of constitutional socio-economic rights obligations
• Whether the obligation to pay social grants can prescribe at all given its constitutional foundation

Application for leave to appeal granted. Appeal succeeds. Order of the Full Court set aside. Administrative action terminating the grant declared invalid and set aside. Grant reinstated from November 1997. Respondent ordered to pay R5,800 arrears plus interest at 15.5% per annum calculated on unpaid monthly grants from November 1997, on R15,200 from July 2000 to March 2005, and on R5,800 from March 2005 to payment. Respondent ordered to pay applicant's costs in all courts on attorney-client scale.

Prescription does not commence to run in respect of a debt arising from unlawful administrative action while that administrative action remains effective and has not been disavolved by the State. A debt is not 'due' and immediately enforceable for prescription purposes until the administrative action precluding payment is either set aside by a court or expressly disavowed by the State. The State may disavow unlawful administrative action by admitting without qualification that the decision was wrong and expressly disclaiming reliance on it, which would cause the debt to become immediately enforceable and prescription to begin running. When the State considers whether to invoke prescription as a defence, it must make a deliberate decision informed by constitutional values, taking into account factors including: the poverty and vulnerability of claimants, the constitutional nature of the obligation, whether the debt arose from the State's own unlawful conduct, prior judicial criticism of such conduct, and the State's duty to facilitate rather than obstruct access to social security.

The Court expressed serious doubts whether prescription can legitimately run when the debt is a social grant, where the obligation arises from the Constitution, and where non-performance is unconstitutional, but declined to decide this question as it was not raised in lower courts and could be avoided. The Court stated it would not be surprised if, following the Bushula judgment, the Provincial Government had proactively reinstated all improperly cancelled grants as required by the duty to assist courts and the binding nature of court orders. The Court observed that organs of state have a duty to facilitate full redress for everyone affected by unlawful decisions, not merely those who litigate. The Court noted that the decision whether to invoke prescription involves an inevitable moral choice, which is why courts cannot raise it mero motu. The judgment contains extensive obiter criticism of the Provincial Government's conduct, describing it as unconscionable, lacking humanity, and reflecting contempt for poor and vulnerable citizens. The Court criticized legal advisors for failing to properly brief decision-makers on the moral and policy dimensions of invoking prescription and for misunderstanding or ignoring court judgments.

This case is highly significant for establishing that prescription does not run against claimants while unlawful administrative action affecting their rights remains operative and has not been disavowed by the State. It reinforces that administrative decisions, even if theoretically void ab initio, have practical legal effect until set aside or disavowed. The judgment strongly affirms the State's constitutional duties regarding socio-economic rights, particularly social grants under section 27. It establishes that when the State considers invoking prescription, it must make a deliberate, informed decision taking into account constitutional values, the vulnerability of claimants, the unlawfulness of its own conduct, and its duty to facilitate rather than obstruct access to social security. The case powerfully illustrates constitutional values constraining how government may conduct litigation against its own vulnerable citizens, especially where government's own unlawful conduct created the debt. The scathing criticism of the Eastern Cape Provincial Government's conduct in handling mass grant cancellations and subsequent litigation serves as an important statement about governmental accountability and the dignity of poor and vulnerable citizens.