Concourt decides Bathabile Dlamini must pay costs

Former social development minister Bathabile Dlamini will be held liable for costs in relation to the grants crises.

In a unanimous judgement the Constitutional Court on Thursday found Dlamini should be held personally responsible for the social grants fiasco at the South African Social Security Agency (Sassa).

The court ruled on costs in terms of section 38 of the Superior Courts Act in determining Dlamini’s role and responsibility in the Sassa debacle.

The case was brought by Human rights group Black Sash and non-profit organisation Freedom Under law.

The court had in 2014 ruled that the contracts Sassa had signed with social grants distributor Cash Payment Services (CPS) was illegal and invalid.

It later gave CPS six months to pay beneficiaries who received their grants in cash and ordered Dlamini and Sassa’s acting CEO Pearl Bhengu to explain why they should not be held liable for the legal costs, in their personal capacities.

In August this year, the Constitutional Court found Sassa and Bhengu liable for costs relating to the extension of the application. It found Bhengu liable for costs in her capacity as former Sassa acting CEO.

Courts have generally made legal cost orders against public officials and their offices, resulting in taxpayers having to foot the bill for the legal matters they lose.

Legal observers have argued that public officials randomly challenge matters in court because any loss would be paid by taxpayers, instead of them personally.

The most recent example in which a personal cost order was made on a public official was in December 2017 when former president Jacob Zuma was ordered by the High Court in Pretoria to personally pay costs for his application to interdict the release of the public protector’s state of capture report.

The Black Sash was pushing for her to pay the legal costs personally as she acted “unreasonably and negligently” in handling social grants, which nearly put the livelihoods of more than 10 million beneficiaries in jeopardy.

This led to Sassa frequently approaching the court at the 11th hour to ask for an extension of the invalid contract of CPS to administer the payments of social grants.

The court was again forced to extend CPS’s contract for the six months to the end of September 2018 – to ensure that 2.5 million elderly and disabled beneficiaries would receive their grant payments – because Sassa had failed to find another service provider.

As the former minister, Dlamini bore “the primary responsibility to ensure that Sassa fulfills its functions” and was “the officeholder ultimately responsible for the [2017] crisis and the events that led to it”.

The Black Sash said the court has previously set out a number of principles for granting personal cost orders, which include, among other things, granting cost orders against public officials whose conduct was “motivated by malice or amounted to improper conduct” as they failed to act in accordance with the Constitution and perform “diligently and without delay”.

In responding to the Black Sash’s arguments, Dlamini relied on her submission, in May this year, to a Section 38 Inquiry ordered by the court and chaired by retired Judge Bernard Ngoepe into her role in the 2017 social grants crisis. Dlamini argues that the court should not make an order of cost against her as she has “at all times acted in good faith in relation to grant beneficiaries”.