Sassa debacle: Dlamini hits back, saying ConCourt has no authority to impose cost order

2018-05-14 18:27
Social Development Minister Bathabile Dlamini. (Leon Sadiki, Gallo Images, City Press, file)

Social Development Minister Bathabile Dlamini. (Leon Sadiki, Gallo Images, City Press, file)

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A report compiled by Judge Bernard Ngoepe did not make any findings that former social development minister Bathabile Dlamini acted in bad faith or in her own interests during the Sassa debacle.  

This was revealed in written submissions filed to the Constitutional Court on Monday, following Ngoepe's report.

"In the absence of such findings, there is no basis in fact or law for mulcting Minister Dlamini with costs in her personal capacity," advocate Vuyani Ngalwana SC said on her behalf.

Ngalwana said Ngoepe had found that Dlamini's answers to some questions were "less than satisfactory".

"Non constat that he found her to have acted in bad faith, or in her own interests, or maliciously, or grossly negligently, or unreasonably or improperly."

In his report, Judge Ngope said Dlamini was evasive when questions were put to her during an inquiry into her role in the 2017 social grants crisis.

Judge Ngoepe, who chaired the inquiry, criticised the minister in his report.

The inquiry was instituted last year to investigate whether Dlamini should be held personally liable for the costs in the South African Social Security Agency (Sassa) debacle.

The judge said that Dlamini had failed to answer simple questions - something which he had mentioned while the inquiry was under way.

During the inquiry, Judge Ngoepe said that Dlamini would "unjustifiably answer, 'I don't know/remember' to important questions".


The inquiry probed whether Dlamini had sought the appointment of individuals to lead the various work streams, who would report directly to her.

Details of the appointments, such as when individuals were appointed, who they reported to and the dates and contents of the reports on the work streams to the minister were also investigated.

The inquiry also looked into why the minister did not disclose this information to the court that dealt with the matter.

Ngoepe's report stated that Dlamini had given instructions for the appointment of work streams and also identified specific individuals to lead these streams.

READ: Bathabile Dlamani evasive during inquiry - Judge Ngoepe

The work streams were tasked to "capacitate" the agency to take over the payment of social grants. The deadline for the agency to do so was March 31, 2017.

Although Ngoepe did not make recommendations, he said Dlamini's explanation of why she did not disclose the appointment of the individuals to work streams was "unconvincing".  

However, Ngalwana said it would not be "appropriate and consonant with a constitutional democracy for a court to hold government executives, performing their constitutional and/or statutory functions, to account by mulcting them in personal costs orders, insofar as the executive’s conduct was in good faith".

Ngalwana argued that it would not be appropriate for the court to design remedies which were neither sought, nor expressly provided for, in the Constitution.

'Court has no authority'

He said the Constitution spoke of accountability and not personal liability of political office bearers.

"It is the National Assembly that has the constitutional obligation to hold the executive to account. This court cannot constitutionally substitute itself for the National Assembly if the latter should fail to perform its constitutional obligations.

"This court, with respect, has no authority in terms of the Constitution to hold to account Minister Dlamini by mulcting her in personal costs. To do so would be an "impermissible encroachment on the powers of the other arms of government".

Ngalwana said, since none of the parties in the main application had sought the personal costs order against Dlamini, the court should not make such an order.

ALSO READ: Shabangu suspended Sassa tender to replace CPS due to 'challenges'

Meanwhile, the Organisation Undoing Tax Abuse (OUTA) said in a statement on Monday that President Cyril Ramaphosa should fire Dlamini as Minister of Women in the Presidency.

"She deliberately delayed the implementation of an alternative to CPS, lied about the capabilities of the South African Post Office (SAPO) and manipulated the Council for Scientific and Industrial Research (CSIR) reports to ensure that the contract was extended to benefit CPS," said OUTA's Dominique Msibi.

"It is ludicrous that the extension will result in recipients now personally paying an additional R10 in bank administration fees, an amount they cannot afford."

Read more on:    sassa  |  bathabile dlamini

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