Johannesburg — A WOMAN who had her disability grant terminated without notice for three years has taken her claim to the Constitutional Court.

She is arguing that her claim should not be treated as a mere commercial debt, but as an infringement of her rights to "fair administrative action and of access to social security".

At issue is whether the woman's claim is a debt or whether Eastern Cape MEC for social development Sam Kwelita had infringed the woman's right of access to social security by stopping payments without notice.

The stopping of payment of social grants without notice is not uncommon in Eastern Cape and there have been a number of cases against the social development department where people have demanded reinstatement.

Deliwe Njongi applied for and was granted a disability grant in 1989 and received payments for the next eight years. However, the payments stopped in 1997 without notice or any explanation.

When she enquired about her grant, she was told to reapply.

Her grant was reinstated in July 2000. She also received R1000 which she was told was for "back pay". Her attorneys calculated that the amount she should have received was R16300.

The department also paid out R9400 in March 2005 after Njongi instituted proceedings in the Port Elizabeth High Court. The amount still owing was R5800.

The high court found that the administrative action of the social development MEC in suspending payment of the social grant was inconsistent with the constitution and therefore invalid.

The court also ordered the MEC to pay R5800 still owing to Njongi.

However, the full bench of the Grahamstown High Court upheld an appeal by the MEC and said Njongi should have issued a summons for the payment of the monies due at the magistrate's court.

The full bench said as more than three years had elapsed before she brought the case to court, her monetary claim had been prescribed and become unenforceable.

In May this year, the Supreme Court of Appeal had dismissed Njongi's application for leave to appeal with costs.

Njongi's lawyers said the case was properly pursued in the Port Elizabeth High Court and determined as one of judicial review.

"Hence there was no basis to categorise and treat (Njongi's) claim as one for the recovery of a commercial debt, in respect of which the provisions of the Prescription Act would apply.

"To do so would subordinate (Njongi's) substantive constitutional right to social assistance to that of a mere common-law debt," advocates Albert Beyleveld and Belinda Hartle said in heads of argument.

The MEC's lawyers said the disability grant was not paid to Njongi from November 1997 to July 2000.

"Payment of the unlawfully stopped disability grant was claimable (and therefore "due") immediately when the applicant's disability grant was stopped, in November 1997. Prescription then began to run," advocates Glenn Goosen, Olav Ronaasen and Razia Laher said.

"Accordingly, the debt which arose in consequence of the alleged administrative action of the (MEC) has prescribed and can no longer be enforced," they said.

"As a result the exercise of reviewing the administrative action has been rendered moot and would have no practical effect and would be merely academic."

The MEC's lawyers also said it was generally inappropriate for an individual to bring a claim for pure economic loss because of unlawful administrative action by way of judicial review.