It's not over yet, Dlamini has everything at stake

The Black Sash took the department to the constitutional court over payments of social grants. (Delwyn Verasamy, M&G)

The Black Sash took the department to the constitutional court over payments of social grants. (Delwyn Verasamy, M&G)

The saga of social grants and the role of the minister of social development is set to continue in light of the latest Constitutional Court judgment. In its initial judgment the court declared that the South African Social Security Agency (Sassa) and Cash Paymaster Services (CPS) were under a constitutional obligation to ensure the continuing payment of social grants to beneficiaries from April 1 until an entity other than CPS was able to do so. The initial declaration of invalidity of the contract was suspended for a further 12-month period.

The court had also issued a rule nisi (a court order) calling on Minister Bathabile Dlamini to give reasons why she should not be ordered to pay the costs of the application in her personal capacity.

Dlamini had filed an affidavit arguing that officials from Sassa and the department of social development were to blame. She asserted that, following the court’s initial supervisory order of November 25 2015, she had assumed that the existing reporting and communications channels had remained the same at Sassa and the department, and that it was Thokozani Magwaza’s failure as chief executive of Sassa “to engage comprehensively” with her, which resulted in the delay in implementing the court-ordered deadline for payment of grants.

In response, Magwaza and former social development director general Zane Dangor were granted leave to file affidavits. In them, they argued that Dlamini had created “work streams” in June 2016, on the recommendation of a ministerial committee created in response to the Constitutional Court’s order.

These “work streams” differed from the regular governance protocols and, in effect, served as parallel decision-making and communication processes that bypassed the Sassa executive board and departmental officials. Functionaries in the “work streams” reported directly to the minister.

Dangor further alleged that these processes may have resulted in a deliberate “self-created emergency” intended to benefit CPS and maintain its relationship with the department.

Faced with these contradictory versions of events, the court first set out the core principles that should govern punitive cost orders involving a Cabinet minister. Justice Johan Froneman, on behalf of a unanimous court, said that Cabinet ministers are responsible for the powers and functions of the executive assigned to them by the president, and they must act in accordance with the Constitution. All constitutional obligations must be performed diligently and without delay.

In this constitutional context, the tests of bad faith and gross negligence in connection with the litigation, applied on a case-by-case basis, remain well founded. These tests are also applicable when a public official’s conduct of their duties may give rise to a punitive costs order.

From the judgment it is clear that the affidavit from the minister was hardly sufficient to dismiss the possibility of an adverse cost order.

“The minister is rather coy in her personal involvement in the process,” said Froneman of her submission.

He also said that if the minister, as alleged by Dangor and Magwaza, organised “work streams” reporting to her and thus against governmental protocol, then her failure to disclose this to the court would bear strongly on whether she acted in good faith.

Yet the court accepted that, on the basis of affidavit evidence alone, it could not come to a final conclusion without affording the minister an opportunity to respond fully. For this reason the court came up with a fairly novel order. Invoking section 38 of the Superior Court Act, the court has given the parties 14 days to agree upon a referee who will compile a report to it.

One would assume that the parties will have to select a retired judge or a senior counsel for this purpose. Looking at the section, it would appear that the referee could (and in this case probably would have to) hear oral evidence to compile a report that would allow the court to decide the dispute one way or the other.

If the parties cannot reach agreement, the court will, in terms of its order, set down further directions, which could include applying a power under section 39 of the Superior Court Act, thereby ordering an examination by way of an interrogatory procedure whereby the court frames questions asked by a designated commissioner.

So the saga will continue until, on either basis, the court has a report that will allow it to conclude whether the conduct of the minister is deserving of a serious judicial sanction.

It did not take long for the ANC Youth League to complain about a campaign being waged by unnamed forces (obviously) against Dlamini.

Hence, the careful procedure adopted in the order means the Constitutional Court has struck a most sensible balance to ensure that the true facts are available to it before it concludes this litigation.

For Dlamini, the stakes are high: this is not simply about a very large cost order but also about compliance with the kind of obligations the Constitution expects ministers to fulfil. We will have to wait a bit longer to find out.

Serjeant at the Bar

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