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The Constitutional Court has found former Social Development Minister Bathabile Dlamini personally liable for 20% of the litigation costs incurred by Black Sash and Freedom Under Law during their court challenge of the “unreasonable and negligent” manner in which Dlamini handled social grants.
In a unanimous judgment‚ delivered by Justice Johan Froneman on Thursday, Dlamini was criticised for her role in handling the SA Social Security Agency (Sassa) debacle, which almost put the livelihoods of more than 10 million beneficiaries in jeopardy.
The court also ruled that the National Prosecuting Authority should determine whether Dlamini should face prosecution for perjury, citing that she may have lied under oath.
The two advocacy groups challenged the manner in which Sassa, under the leadership of Dlamini, frequently approached the court at the eleventh hour to request extensions on the invalid contract of Cash Paymaster Services (CPS) in order to administer the payments of social grants.
In court papers, Black Sash argued that Dlamini did not provide “any adequate explanation” as to why Sassa only approached the court for a further extension on February 7 when she knew two months before that it would not be able to find another service provider.
The court ruled that as the former minister, Dlamini bore “the primary responsibility to ensure that Sassa fulfilled its functions” and was “the office-holder ultimately responsible for the [2017] crisis and the events that led to it”.
This led to the court ordering Dlamini to pay – in her personal capacity – 20% of the costs of Black Sash and Freedom Under Law‚ including the costs of two counsels.
The exact amount of the legal fees incurred by Black Sash and Freedom Under Law – who brought the matter to court – will only be determined later.
An inquiry was instituted last year to investigate whether Dlamini should be held personally liable for the costs.
The inquiry probed whether Dlamini had sought the appointment of individuals to lead the various work streams, which would report directly to her, and looked into why the minister did not disclose this information to the court that dealt with the matter.
Judge Bernard Ngoepe, who chaired the inquiry, stated that Dlamini gave instructions for the appointment of work streams and also identified specific individuals to lead these streams.
Although Ngoepe did not make recommendations, he concluded that Dlamini’s explanation on why she did not disclose the appointment of the individuals was “unconvincing”.
Ngoepe found that the reason why Dlamini failed to report on the work stream was because she feared being held responsible in her personal capacity for the costs in the Sassa debacle.
“She allowed a parallel process to occur knowing that she withheld information that might lead to her being held personally responsible for the social grants disaster,” said Ngoepe.
During Thursday’s ruling Froneman found that Dlamini misled the court to protect herself, and found that she should “account for her part in the social grants saga” in order to prevent a similar occurrence.
