Bathabile Dlamini’s luck has finally run out.
On Thursday, the Constitutional Court ruled that she has to pay for 20% of court costs in her personal capacity. The court further found that because she had misled it to protect herself, the National Prosecuting Authority should decide whether or not she ought to be prosecuted for perjury.
Judge Johan Froneman, who read the scathing unanimous judgment, said Dlamini in her personal capacity must pay 20% of the legal costs of Black Sash Trust and Freedom Under Law including the cost of two counsels.
“Some of Minister Dlamini’s evidence under oath in affidavits before the court and orally in the inquiry was false. The registrar of the court must be directed to forward a copy of the inquiry report and this judgment to the director of public prosecutions to consider whether minister Dlamini lied under oath and if so must be prosecuted for perjury,” said Froneman.
Read the full judgment here:
In August, the Constitutional Court said Dlamini was let off the hook when it ruled that Dlamini was not negligent nor did she act in bad faith by bringing in an application for the extension of Cash Paymaster Services contract in February. It further ruled that she did not have to pay costs in her personal capacity. Instead, former acting chief executive officer of the South African Social Security Agency (Sassa) Pearl Bhengu and Sassa should pay the court costs.
The judgment was a result of an application brought by Sassa in February for another extension of the invalid Cash Paymaster Services contract. The Constitutional Court granted the extension on March 23.
Thursday’s judgment focused on Dlamini’s role in creating the grant payment crisis.
Froneman said that Dlamini’s conduct was reckless and grossly negligent and that is sufficient reason for a personal cost order.
“This conclusion is a serious and sad one especially in the context of the provision of social grants to the most needy in our society. But if it is not to happen again consequences must follow,” said Froneman.
Dlamini was moved to the department of women in the Presidency in February after close to a decade at the department of social development. Her tenure as minister of social development — which included overseeing Sassa — saw the social security agency brought to its knees.
Last year, the Constitutional Court was forced to extend CPS’s invalid contract because Sassa had no other plan to make the payment of grants. The court ruled it would have to establish a panel of experts to assist in overseeing the handover of grants payments from CPS to another payment system.
The court also ordered that a commission of inquiry should look into the culpability of Dlamini in the grant payment crisis. The inquiry led by retired Judge Bernard Ngoepe commenced its hearing in February. Dlamini was accused of failing to ensure that Sassa could pay grants after the CPS contract had come to an end, leaving millions of vulnerable grant beneficiaries fearing that they would be destitute.
She was further accused of orchestrating the crisis by meddling in the administration of the agency, creating parallel structures to report only to her and essentially thwarting plans for Sassa to move the payment system to the South African Post Office.
During her testimony at the inquiry, Dlamini argued that holding her personally liable for legal costs for cases regarding the social grants crisis would not promote the advancement of constitutional justice.
When Ngoepe handed his report to the Constitutional Court he was scathing of Dlamini’s testimony saying she had been evasive and an inconsistent witness.
Ngoepe accepted the testimony of former Sassa chief executive, Thokozani Magwaza and the former Social Development director general, Zane Dangor, that Dlamini had created the parallel structures of reporting by appointing the work streams which cost the agency more than R40-million.
The work streams were to report directly to Dlamini about what was happening at Sassa. This caused much confusion as to who was doing what at the agency leading to disarray forcing them to approach the court twice to extend the invalid CPS contract.
Under Dlamini’s watch the agency also failed to report openly and timeously to the Constitutional Court regarding its progress in handing over the grant payment process to a service provider besides CPS.