The Constitutional Court on Thursday declined to hold social grants minister Bathabile Dlamini personally liable for legal costs in the social grants fiasco – for now. Instead it ordered a legal inquisition of sorts centred on whether she had misled the court, a process that could still force her to pay legal costs out of her own pocket.
“The question whether a Cabinet member may have acted in bad faith when called upon to explain her conduct to this court cannot be left alone,” the court said in a judgment. But it declined to come to a decision on whether she had done so as this is still contested, and all details were not before the court.
When asked to explain herself, the Concourt said, Dlamini had been “rather coy about her personal involvement in the process”.
As a result Dlamini has now been asked to agree with civil society organisations the Black Sash and Freedom Under Law on a “referee” who will dig into the matter further, and then report back to the Concourt. Although not a legal process as such, a referee has the same powers as a court in civil proceedings to subpoena witnesses – such as Dlamini – and compel them to provide documents.
If Dlamini and the civil society organisations can not agree on a referee process within the next two weeks, then it will step in and lay down the rules, the Concourt said.
In determining whether Dlamini acted in bad faith, a referee will have to determine whether she had sought to conceal the extent of her personal responsibility for the social grants crisis.
Both Zane Dangor, the former director-general of the social development department who resigned in the midst of the crisis, and Thokozani Magwaza, the head of the SA Social Security Agency tasked with paying grants, alleged that Dlamini bypassed them by appointing “work streams” through which she took personal control of a failed attempt to set up a new system for paying grants.
“These are serious allegations,” the Concourt said on Thursday. “If it is correct that the minister appointed the members of the work streams and that they reported directly to her in contravention of governance protocol, then her failure to disclose this to the court bears strongly on whether she has acted in good faith or not.”
The Black Sash on Thursday cautiously welcomed the judgment, though it expressed some concern at still not having its legal costs paid in a matter that resolved the social grants crisis in the nick of time. Those costs will now continue to mount in what is expected to be an extended enquiry.
If Dlamini is held responsible for costs at all, which are currently already estimated to run to millions of rands, she could also be liable for the costs incurred in the new enquiry to determine if she should be held liable for costs.
Dlamini retained her post as social development minister in the late-March cabinet reshuffle that saw finance minister Pravin Gordhan dismissed, among others. Two weeks before that controversial reshuffle, the Concourt had found Dlamini’s sometimes “extraordinary” and “disingenuous” actions had raised the possibility of grants not being paid on time.
“The office-holder ultimately responsible for the crisis and the events that led to it is the person who holds executive political office,” read a judgement after litigation brought by the non-profit organisation Black Sash. “It is the minister who is required in terms of the Constitution to account to Parliament. It is the minister, and the minister alone.”
Should lifeline monthly grants not be paid on time to the around 17 million beneficiaries, officials reporting to Dlamini had previously warned, South Africa would “burn”.
The possibility of trouble in the payment of grants was quite evident by January. Yet for the first two months of the year Dlamini alternated between refusing to answer questions on the situation and lying about aspects of it. In a press conference in early March she angrily insisted that perceptions of a looming crisis was nothing but a media invention.
Some two weeks later – on the same day that the Concourt found her responsible for the crisis and the ANC called for “harsh consequence management” on the matter – Dlamini for the first time apologised for the debacle. Then, in later court papers, she qualified and circumscribed that apology.
In an affidavit explaining why she should not be made to pay legal costs in her personal capacity, Dlamini admitted she may have fallen prey to “errors of judgment”, but otherwise blamed the entire crisis on Sassa, her department, and officials in both, primarily Dangor and Magwaza.
“With hindsight, I ought to have demanded greater accountability from Sassa officials and more frequent communications and updates from them,” Dlamini said.
In the affidavit Dlamini expressed personal contrition, but only for anxiety caused when it seemed there would be a legally valid platform for the payment of social grants. Addressing accusations that she had not show due deference to the Concourt, Dlamini apologised, “to the extent that this may appear to be the case”.
Up to that point Dlamini had provided perfunctory responses to demands for information from the court, as it struggled with sorting out the grants crisis. She had also missed every deadline set by the court to provide that information. The affidavit containing her conditional apology itself was not delivered by a court deadline, even though Dlamini’s office claimed otherwise.
“I respectfully submit that there was no wilful intent on my part to disregard the order of this court or to undermine the realisation of the guaranteed constitutional rights of social grant beneficiaries,” Dlamini said in arguing why she should not pay costs.