In a democracy, it is not every day that two ministers of state are harshly but fairly criticised by the courts and, within 24 hours, 15 computers are stolen from the offices of the chief justice. These events hold significant implications for the future of constitutional democracy in South Africa.
In the case brought by Freedom Under Law and the Black Sash against Minister of Social Development Bathabile Dlamini, the Constitutional Court, in the first paragraph of its judgment, set out the context as follows:
“One of the signature achievements of our constitutional democracy is the establishment of an inclusive and effective programme of social assistance. It has had a material impact in reducing poverty and inequality and in mitigating the consequences of high levels of unemployment. In so doing, it has given some content to the core constitutional values of dignity, equality and freedom.
“This judgment is, however, not an occasion to celebrate this achievement. To the contrary, it is necessitated by the extraordinary conduct of the minister of social development … and of the South African Social Security Agency [Sassa] that have placed that achievement in jeopardy. How did this come about?”
The court answered its own question later in the judgment:
“Since April 2016, the responsible functionaries of Sassa have been aware that it could not comply with the undertaking to the court that it would be able to pay social grants from 1 April 2017. The minister was apparently informed of this only in October 2016. There is no indication in the papers that she showed any interest in Sassa’s progress in that regard before that. Despite warnings from counsel and CPS [contractor Cash Paymaster Services], neither Sassa nor the minister took any steps to inform the court of the problems they were experiencing. Nor did they see fit to approach the court for authorisation to regularise or ameliorate the situation.
“When, eventually, Sassa brought an application on 28 February 2017 for authorisation, the minister intervened and ordered Sassa to withdraw the application. On 3 March 2017, the minister and Sassa filed a supplementary progress report, without any acknowledgement that they were under any legal obligation to do so.”
This finding of extraordinary legal delinquency forced the court to acknowledge that the crisis caused by the minister, her department and Sassa meant that the court had to expand its jurisdiction under section 172 of the Constitution, namely the power to grant equitable relief.
Recall that the court had found the previous contract entered into with CPS to be invalid and that, by law, section 217 of the Constitution provides that, when an organ of state contracts for goods or services, it must do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective. Hence, by effectively extending the contract with CPS, the court extended its jurisdiction, with great generosity, to stave off the crisis set off by the minister and her cohorts.
For this reason, the court made two interesting moves: it crafted an order that gave it very tight powers of supervision of the grant process, and it put Dlamini on terms to justify why she should not pay costs personally. In the light of its findings against her, Dlamini is in serious danger of footing a very large bill.
Hopefully other courts will follow this precedent and make similar costs orders when ministers or other state officials waste taxpayers’ money on fruitless litigation.
This brings us to the case of Lieutenant General Berning Ntlemeza, who was appointed in 2015 as the head of the Hawks, a post that requires someone of integrity.
But before the appointment the courts had issued clear pronouncements about his lack of integrity. A full bench of the high court in Pretoria made it clear that in this factual context the appointment was clearly unlawful. It stated:
“The judgments are replete with the findings of dishonesty and mala fides against Major General [as he was in 2015] Ntlemeza. These were judicial pronouncements. They therefore constitute direct evidence that Major General Ntlemeza lacks the requisite honesty, integrity and conscientiousness to occupy the position of any public office, not to mention an office as … important as that of the national head of the DPCI [Directorate for Priority Crime Investigation, also known as the Hawks], where independence, honesty and integrity are paramount qualities.
“Currently no appeal lies against the findings of dishonesty and impropriety made by the court in the judgments. Accordingly, such serious findings of fact in relation to Major General Ntlemeza, which go directly to Major General Ntlemeza’s trustworthiness, his honesty and integrity, are definitive. Until such findings are appealed against successfully, they shall remain as a lapidary against Lieutenant General [as he is now] Ntlemeza.”
A weekend passes. Minister of Police Nathi Nhleko studies the judgment and — surprise! — he announces he is appealing. If the court finds this to be as hopeless an appeal as it would appear to be from reading the judgment, the question of costs may prove interesting.
Then, within 24 hours of the judgment, the offices of the chief justice were burgled and computers containing sensitive information stolen. The Council for the Advancement of the Constitution issued a statement in which it said the burglary had all the hallmarks of being a carefully orchestrated operation more associated with a repressive state than an open, constitutional democracy.
Was this a case of intimidation after two high-profile setbacks, or was it coincidence that common-or-garden burglars just happened to steal computers on that day? We will have to wait to see whether the police find the criminals.
Until then, many might consider this to be a case of two steps forwards and possibly a giant leap backwards on the constitutional journey.