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Op-ed: When the State fails to act, the Constitutional...

South Africa

South Africa

Op-ed: When the State fails to act, the Constitutional Court will be called upon to make decisions of great political significance

With the Sassa scandal being heard in the Constitutional Court this week, the court seems likely, once again, to make a judicial finding with significant political implications. When all opportunities for political solutions to the Nkandla scandal were closed the court was approached. It then made findings that significantly weakened the standing of President Jacob Zuma and the National Assembly, both of which were found to have acted contrary to their constitutional obligations. Again, with Sassa the court confronts government’s dereliction of duties and failure to conform to the law. The ANC and government may complain that the judiciary enters the political domain. But it is their actions - instances of irregularity, misusing the public purse and undermining the interests of the poor - that have necessitated the entry of the courts in ways that have political after-effects. By RAYMOND SUTTNER.

First published on

The Sassa debacle moves to the Constitutional Court this week after political efforts failed to resolve the problem in a manner that safeguards the most vulnerable. The Social Security Agency (Sassa) and the Minister for Social Development, Bathabile Dlamini, were supposed to account to the Constitutional Court, but have sought to evade this. Now they have been called upon to explain.

Last year, it was the Nkandla scandal that landed in the lap of the Constitutional Court. In both cases judicial involvement followed lapses in accountability on the part of ministers and officials and failures on the part of parliament to demand that they answer for what had been done.

There will be some who are worried about the court being burdened with or making decisions that ought, properly speaking, to be resolved by other spheres of government, through political and executive decisions. The courts themselves are reluctant to cross the boundary between their function, as defined in the Constitution, and that of other arms of government. The judiciary is well aware that it is not elected and that it cannot substitute its own views for policies decided on by MPs and ministers, who act in terms of a mandate of the electorate or are presumed to be acting on that basis.

According to media reports, the draft ANC policy documents released on Sunday suggest that the judiciary does not observe these boundary lines or is drawn into areas where it ought not to be. This follows past attacks on the judiciary suggesting that it has “overreached”, that it transgressed boundaries and that some judges have on occasion been agents of “counter-revolution”. (See Raymond Suttner, Recovering Democracy in South Africa, Jacana Media, 2015, pages 5-7, 71-76.)

After a meeting between Zuma, some other senior government members and the judiciary in 2015, there was an agreement that the various arms of government would treat one another with respect. In general, there has been a muting of the suggestions that the judiciary has more powers than it ought to have and – whether or not it has these powers – that it is intruding into the terrain of the executive and the legislature.

While the government was reluctant to see the entry of the judiciary into the question of Nkandla, the Sassa crisis, in contrast, appears to be recognised by government as needing intervention. The Department of Social Development has not objected to the involvement of the court, even though it has in certain critical areas sought to avoid reporting as it was obliged to do in terms of the earlier court decision invalidating the Sassa contract with Cash Paymaster Services (CPS).

In 2015, the Nkandla scandal was the major issue in South African public life, raising issues of governance and leading to legal action and Constitutional Court findings regarding:

  • government integrity in managing public funds;
  • misappropriation of such funds to benefit the President and others;
  • failure to observe duties under the Constitution in regard to the allocation of funds; and
  • failure of MPs to ensure accountability of the executive for due performance of their duties as required by the constitution.

On the part of the President and the National Assembly, it was found that they had acted and/or failed to act in accordance with the duties ascribed to them by their oath of office, under the Constitution.

Zuma was found to have benefited materially and illegally from the improvements made to his private home with public monies. He was made to pay back what was described by the Public Protector as a “reasonable portion” of the costs incurred that were unrelated to security.

Much of the resistance to the requirement to be accountable and to pay for these improvements related to the status of the Public Protector’s report on Nkandla. The court clarified that status in its judgment, indicating that findings were binding unless taken on review, which had not been done by the President or the National Assembly.

From a political point of view, however, what the court found in regard to the conduct of the President and the National Assembly amounted to a conclusion in the name of the law that the incumbents of both of the institutions had acted in a manner that was incompatible with serving those who had elected them. They had not discharged core elements of their duty of representation, which demanded careful scrutiny of all actions and spending of the executive insofar as this affected the public purse.

This was a grave finding and one that would never have been reached by parliamentary decision because of the ANC’s majority’s stance. In other words, because of the political balance of forces in Parliament, a remedy for legal malpractice could not be achieved through political processes. Instead, sophistry reigned in defence of the Nkandla spending. The only way to achieve a remedy in the South African constitutional order was by approaching the Constitutional Court. There was a political failure that could only be remedied by calling on the court to make a finding that had grave political implications.

While it was a legal decision, the Constitutional Court judgment had significant political repercussions. It increased the turmoil and divisions within the ANC. It opened the cleavage between those who are primary beneficiaries of patronage politics, using the state to access wealth for themselves by fair means and foul, and those who are lesser beneficiaries or those who do not benefit at all. These all appear to now be outside Zuma’s inner circle. Amongst the latter there is also a fear that these crises will engulf the ANC and lead to the potential loss of national power and possibly the implosion of the ANC as an organisation.

Although the court exposed much of what happened at Nkandla, it obviously could not stop the persistence of other acts of pillage. Many reports and even statements from the ANC reveal that election processes at all levels of government involve extensive “buying” of votes and other irregularities associated with patronage networks and links involving corruption. These irregular modes of operating also influence processes of procurement and appointment to office, whether at national, provincial or local levels.

The Sassa crisis, as with Nkandla, raises similar issues of abuse of power, misuse of public monies (though much remains in the realm of suspicion), failure of accountability and failure of MPs to perform their role as representatives of the people. The issue of enrichment takes a different form to that of Nkandla. In this case, it is a private company that has benefited greatly from irregular contracts. It has also used its position to market products paid for by questionable or allegedly illegal deductions that have left many of the grant recipients with next to no cash to collect. It is not known whether the Minister of Social Development or others closely associated with her have derived any financial benefits.

In the unfolding of the Sassa crisis, it appears that Dlamini is determined to continue a contractual arrangement with CPS and that no serious effort was made to develop capacity within Sassa or to explore other ways of distributing the grants. This determination to keep the contract with CPS has led many commentators to suggest that there may be something untoward in the minister’s relationship with CPS. There is also the involvement of other individuals who have no legal standing in relation to the delivery of grants — the President’s private lawyer, Michael Hulley, for example – that adds to the suspicion over the preference for CPS.

The way the minister has handled developments after the declaration of illegality of the CPS contract in 2014 and especially as the lapsing of the contract has drawn closer, has led to resignations, including the most recent of Director-General, Zane Dangor after only a few months in office, and has seen senior staff being booked off for stress-related illness.

All of this ought in the normal course of events to have been sorted out within government. The President should have instructed Dlamini to perform her duties within the law and, after the declaration that the earlier contract was irregular, in accordance with the prescriptions of the Constitutional Court. That was not done. The President clearly sees no problem of consequence in some 10-million grant recipients with some 17-million grants or dependents being left with uncertainty as to the payment of the grants in less than three weeks time. He has urged the public to “keep cool” as the grants will be paid and said that there will only be reason to be worried after the due date for payment has arrived.

Parliament has done little on this matter, apart from some hearings in recent times. There has been nothing like the level of interest displayed by MPs in the Nkandla matter, when ANC members defended the Nkandla spending and the opposition attacked its legality. In the case of the Sassa scandal, the ANC is more or less mute. It says nothing about a crisis. Its alliance partner, Cosatu, has acted differently calling for the head of the minister. The SACP has been more cautious, although expressing disquiet. Some of the SACP leaders are part of cabinet and/or MPs, where they do not appear to have made significant interventions to defend the vulnerable, designated recipients of grants.

There are multiple crises in contemporary South Africa. One of these is a crisis of irregularity and widespread illegality as officials and government leaders habitually bypass regulations in order to benefit themselves or other close associates. So long as they use state resources as a cash cow, there will be repeated court cases initiated by those who wish to curb this and ensure the promise of democratic South Africa, to provide “a better life” for all its peoples. DM

Photo of Raymond Suttner by Ivor Markman.

Raymond Suttner is a scholar and political analyst. Currently he is a Part-time Professor attached to Rhodes University and an Emeritus Professor at Unisa. He served lengthy periods in prison and house arrest for underground and public anti-apartheid activities. His prison memoir Inside Apartheid’s prison will be reissued with a new foreword covering his more recent “life outside the ANC” and will be published by Jacana Media in the first half of this year. He blogs at and his twitter handle is @raymondsuttner


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