Social development minister Bathabile Dlamini has been joined in her personal capacity to the Sassa/Cash Paymaster Services (CPS) case, and the issue of whether she acted in bad faith, when called upon to explain her conduct to the court, will be investigated and resolved.

The Constitutional Court ruled this morning that parties must submit feedback within 14 days on the process to be followed with regard to an investigation into the extent of Dlamini’s personal liability. Justice Johan Froneman said that the court could not make a costs order against Dlamini on the basis of allegations that had not been tested and which she had not had an opportunity to challenge. If the 14-day deadline is not met, the court will determine the process to be followed further.

“Courts have previously made costs orders against a person acting in a representative capacity, especially where malice or improper conduct is involved,”  said Froneman. “All organs of state must provide effective and accountable government, with a high standard of professional ethics. Transparency must be fostered by providing the public with timely and accessible information.”

CPS contract invalid, but no other choice

On 14 March the court had heard an application from the Black Sash for an order that it (the court) exercise supervisory jurisdiction over any new contract. Corruption Watch, Freedom Under Law, and the South African Post Office also made submissions in the application. In its judgment handed down three days later, the court ruled that it would supervise the implementation of the current and future grants process, indicating that the bench had no trust in Dlamini.

At the same time the court ruled that CPS must continue paying social grants for another 12 months, starting from 1 April – despite a 2014 ruling that the decision to award CPS the tender was constitutionally invalid. The March 2017 judgment also stated that the contract with Sassa must be based on the same terms and conditions as the one that expired on 31 March.

Froneman ordered Dlamini to submit an affidavit by 31 March, telling the court why she should not be joined to the case in her personal capacity, and also to explain why she should not be made to pay the costs of the parties who brought the case. Dlamini was reportedly shocked by the judgment, saying that any responsibility should be borne by the collective and not by an individual.

In her affidavit, Dlamini sought to place the blame on officials within her department, while Sassa director-general Zane Dangor and CEO Thokozani Magwaza also filed affidavits, claiming that Dlamini established parallel decision-making procedures that bypassed departmental officials, so that CPS could continue to pay out the social grants. These are the untested allegations referred to by Froneman.

Bungling from the start

CW has been fighting for justice in the Sassa case since 2013.

In 2012 Sassa awarded the R10-billion tender for the distribution of social grants to CPS. Losing bidder Allpay took the matter to court, and in 2014 the court ordered Sassa to issue a new tender after finding that the tender had been improperly awarded.

Sassa decided it would rather take over the payment of grants when the current CPS contract came to an end on 31 March 2017, but having dithered for two years, by 2016 the agency was nowhere near arriving at a solution and it planned to approach the ConCourt for an extension.

The court ordered that Sassa file a plan of action by 8 March – one of a number of deadlines that Bathabile failed to meet. On 17 March the court granted the 12-month extension.

Dlamini had shown a dismissive attitude from the start, ignoring parliamentary committee calls to appear and answer questions, claiming that she did not know what was going on in her own ministry, and even accusing the media of exacerbating the anxiety and distress felt by grant beneficiaries.

In March Corruption Watch called for her dismissal, saying that “Dlamini and Sassa have ensured that the only realistic option for ensuring that the grants are paid is a further contract with CPS. We are certain that those millions of people for whom the social grant is a life and death matter and who have been caused unimaginable anxiety by Dlamini’ s disgraceful conduct would welcome her immediate departure from public life.”