Role of honour: The Constitutional Court.
Social Development Minister Bathabile Dlamini filed a late affidavit to the Constitutional Court, confirming her attorney’s explanation of why the South African Social Security Agency (Sassa) was late to respond to the court’s Monday deadline.
The court issued a directive on Tuesday morning instructing Dlamini, former acting Sassa chief executive Thamo Mzobe and current acting chief executive Wiseman Magasela to submit affidavits by 3pm.
Magasela has also submitted an affidavit telling the court that both he and the minister have done all they could to abide by its directives. Magasela said Mzobe had been hospitalised before the court made its initial directive and could not have assisted in the affidavits that were sent to the court on Monday.
The three were tasked with explaining why they had failed to meet a directive from the Constitutional Court last Wednesday. That directive instructed Sassa to answer detailed questions on who was responsible for making decisions on grant payments and when Sassa knew it would be unable to pay grants.
The court gave Sassa a 4pm deadline on Monday to respond. Sassa instead sent electronic versions of their answers after 10pm.
On Tuesday, Sassa and Dlamini once again missed the court’s 3pm deadline to explain the previous delay. Dlamini submitted an affidavit after 3pm, saying that another affidavit, submitted by her lawyer, was correct in its explanation of the delay to the previous directive.
The minister did not apologise for the late submission of the affidavit on Tuesday or Monday, saying instead that “I have made every reasonable effort to comply with this court’s directives”.
Tim Sukazi, the attorney representing Sassa and Dlamini, also submitted his affidavit late on Tuesday. It accompanied an application for a condonation order, which asked the court to excuse Sassa for missing the Monday deadline and any further deadlines.
The Mail & Guardian has seen Sukazi’s affidavit, where he has attempted to explain why Sassa and Dlamini missed Monday’s deadline.
He says delays by Sassa’s legal team led to the social security agency missing its deadline by more than six hours on Monday.
The timeline Sukazi presents in his affidavit highlights that Sassa only prioritised the Constitutional Court’s directive from last Wednesday less than 24 hours before it was due.
This is what Sassa’s legal team did in the six days it had to respond to the court’s questions from March 8, according to Sukazi:
March 8: Constitutional Court issues directives to Sassa. Sukazi says Sassa sought assistance to rebuild its legal team after a junior counsel member and team leader, Wim Trengove, were unavailable.
March 9: Legal assistance secured. Decision taken to prioritise response to Black Sash application at Constitutional Court and the intervention by Freedom Under Law (FUL).
March 10: Answering affidavit to FUL prepared and sent Cape Town chambers. It was filed on March 13.
March 10–12: Sassa legal team begins work on draft deviation request to national treasury.
March 12: Work begins to answer court’s questions.
March 13, 1pm: Affidavits amended and sent to the ministerial task team.
March 13, 3pm: Sassa realises it won’t be able to file answers to Constitutional Court on time.
March 13, 3.01pm: A member of Sassa legal team notifies an official at the court that they won’t meet 4pm deadline.
March 13, 5.05pm: Sassa legal team sends letter to other stakeholders regarding delay.
March 13, 6.45pm: Magasela affidavit finalised.
March 13, 7.03pm: Magasela signs the affidavit in Irene, Pretoria.
March 13, 7:48pm: Sassa attorneys return from Pretoria to their Sandton office to scan papers and paginate them
March 13, 10:29: Electronic versions of signed affidavits sent to “various parties”
Sukazi says that the work to produce a draft deviation request for treasury “was very time intensive work”, which led to the delay in filing Concourt papers on Monday.
Although he notes that Sassa did not comply with the Concourt on Monday, he says that the agency’s failure to comply is “relatively slight”, and Sassa had attempted to file in time.
“I however submit that in the circumstances all reasonable efforts were made to comply with the court’s directions timeously,” he said.
Sassa and Dlamini are due to appear in the court on Wednesday in relation to the FUL application to interevene in the Black Sash application. FUL is seeking to intervene to further support the Black Sash’s efforts to obtain an order from the Concourt on the issue of grant payments.
But with less than a month remaining, Sassa has not yet made a deal with CPS, and it now appears that the court is looking for answers as to how the crisis unfolded.