It was quite fascinating watching Chief Justice Mogoeng Mogoeng and President Jacob Zuma contending with the Sassa issue a day apart from each other. Mogoeng was, of course, not alone. He along with ten other Constitutional Court judges heard the application by Black Sash and Freedom Under Law (FUL) to exercise supervisory jurisdiction over any new or extended contract with Sassa for the payment of social grants from next month.
The judges were cautious about their involvement in the matter, questioning advocates representing various parties about what they wanted of the court and on what basis their intervention should be. Because the operation of the contract is the responsibility of government and its social security agency, they were mindful of “judicial overreach”. But due to the multiple failures of Dlamini and Sassa in setting in place a valid contract, and the minister’s interference to ensure that Cash Paymaster Services (CPS) remained the distributor, Black Sash, FUL and Corruption Watch pleaded with the court to intervene to protect the beneficiaries and the people of South Africa.
The judges were clearly well versed with the case and all its intricacies. They had declared the CPS contract invalid in 2014 and had supervisory jurisdiction over the matter since then. Their questions were probing and piercing in trying to piece together what exactly took place to drag the country to the brink, and who was responsible for creating such an inexcusable situation.
The interaction with Dlamini and Sassa’s advocate Andrew Breitenbach was particularly robust, with Mogoeng demanding an explanation as to why his clients did not do their jobs.
“How do you get to the level where [your clients] make themselves look like they are incompetent and you can’t even explain how you got to this point? … How did we get to this level that can be characterised as absolute incompetence?”
There were times during the hearing when Mogoeng appeared utterly incensed. He posed penetrating questions to Breitenbach and then slumped back in his chair, the muscles in his face taut. He was desperately emphatic when he made this point:
“[Dlamini] should have been embarrassed and spent sleepless nights working to rectify this.”
The Chief Justice did not want to take chances with the contract. He pinned the advocates down on what was a viable time frame for an interim contract, with some arguing for six, 12 or 18 month periods. He interrogated the lawyer for the South African Post Office, Aslam Bava, on their submission that they were ready to take over the payments. He asked whether the Post Office was not being “over-ambitious” by requesting to take over the contract within a month.
When it came to CPS, Mogoeng did not want to dance around in circles. “Let’s cut to the chase. Your client wants more money; is that not what it really is?” he asked CPS advocate Alfred Cockrell.
He was determined to find out what price escalation CPS wanted to continue to pay the grants. He locked Cockrell into saying they would accept the terms of the old contract with the price escalation determined by the Auditor-General.
Mogoeng’s summation of the case was dire. “The consequences [of the social grants crisis continuing] could be more catastrophic than we have the capacity to imagine.”
He also said: “This is a crisis. We must do whatever it can to intervene to ensure that we don’t proliferate the crisis.”
Because of the urgency, the court took just one day to consider the matter and Friday’s ruling provides final certainty about how the grants will be paid.
In the day the Constitutional Court took to prepare their ruling, the focus shifted to the President of South Africa, who appeared in the National Assembly for his first question session of the year. The Economic Freedom Fighters boycotted the session, saying they did not recognise him as president because he broke his oath of office. So Zuma’s appearance in the House was less volatile than usual.
Although nursing a cold, Zuma was in good form, animated and laughing intermittently.
In a follow-up question about accountability and integrity of his executive, Zuma was asked by Democratic Alliance leader Mmusi Maimane whether Dlamini’s ham-fisted handling of the Sassa matter did not warrant her being fired from Cabinet.
Zuma insisted that there was no wrongdoing on Dlamini’s part and that the matter could not be prejudged.
“To act as if 1 April has come and pensioners’ grants have not been given, and therefore you must take action… I’m saying it’s a funny democracy that says punish a person before they commit a mistake,” he said.
“It’s a funny democracy, a funny legal system that a person before committing a crime must then be judged and be punished… It’s almost like the rule of the jungle.”
He said the Sassa matter was a “premature debate” and would only become a crisis if the grants were not paid on April 1. While Zuma said government “deeply regretted” the situation, he said it was “asking too much of the president” to expect him to act against ministers without them being found guilty of any crime. When Maimane pointed out that he fired former finance minister Nhlanhla Nene without grounds, Zuma said people were not aware of his reasons for doing so. It seems the false BRICS bank story has finally been put to rest.
In Zuma’s mind, the declaration of a massive government contract as invalid by the Constitutional Court and the failure of his minister to set up a new, credible and efficient system did not constitute a crisis, or crime. He said there were “specific hitches” that the National Treasury and Department of Social Development were dealing with.
Zuma, like Dlamini, keeps trying to force the two departments to work together to negotiate with CPS. He has either not heard or ignored Pravin Gordhan’s misgivings about allocating funds for the extension of an illegal contract or the conflict of interest that would arise from the Treasury being involved in the negotiations with CPS.
Zuma’s answers showed he was not really engaged with the matter. Had the president followed the arguments before the Constitutional Court, he would know the complexities with the contract, the hefty price escalation that CPS wanted and how beneficiaries are being exploited by the contractor and their holding company.
Inkatha Freedom Party (IFP) MP Liezl van der Merwe reminded Zuma that she had warned him about the impending problem a year ago and requested an inquiry then. Zuma had declined her request back then, saying he did not see the need for an inquiry.
“I am asking you now, will you also take personal responsibility for this crisis? Will you now establish a commission of inquiry into this dodgy deal? There’s a rumour in the ANC caucus that CPS is paying for Nkosazana Dlamini-Zuma’s campaign and I want you to comment on that,” Van der Merwe said.
Zuma wriggled out of a clear response, just as he did when United Democratic Movement leader Bantu Holomisa challenged him to investigate grant deductions by companies linked to CPS. Zuma claimed there was no evidence of this and said he had no knowledge of such deductions, leading to a vigorous exchange between him and Holomisa.
The IFP’s Mkhuleko Hlengwa pointed out to Zuma that he had admitted last year that illegal deductions were “on the increase” but was denying it now. Hlengwa said Zuma should be investigated for misleading the House.
Zuma pleaded ignorance about the involvement of his advisor Michael Hulley in the Sassa contract negotiations. He said Hulley ran a private law firm and he therefore had no knowledge of the matters he dealt with.
Zuma appeared to be wholly disconnected and unbothered by the injustices suffered by the grant recipients. Regarding the Sassa contract, Zuma’s approach was to play down the crisis, pretend that the only issue was whether the grants would be paid on April 1, and protect his minister.
In fact he and Dlamini had exactly the same attitude: there is no crisis and the matter is being unnecessarily hyped. He is either receiving the wrong advice and information, or is a participant in creating this untenable situation.
Sassa was not the only issue in his government Zuma could not answer questions about.
Asked by Maimane about allegations of corruption at the Passenger Rail Agency of South Africa (Prasa) and whether the ANC had received a bribe to award a locomotive tender, Zuma said as ANC president he knew nothing about this. He said while the allegations needed to be looked into, he was “not sure an inquiry is needed”.
Zuma also dodged questions about whether he intended to appoint former Eskom CEO Brian Molefe in Cabinet. He defended the ANC’s deployment of Molefe to Parliament despite him facing serious allegations of corruption identified in the Public Protector’s State of Capture report.
“Allegations are not convictions. Allegations are allegations,” Zuma said.
In the morass of Zuma’s government, chaos and corruption thrives. Even with the Chief Justice warning the day before of “catastrophic” consequences if the Sassa matter is not dealt with properly, Zuma does not see a crisis.
While Mogoeng and the colleagues at the Constitutional Court are burdened by the gravity of the Sassa matter, Zuma waved it away, saying he could not be expected to respond every time there was “isphithipithi” (confusion).
This is no ordinary leadership failure. It is refusal to take political responsibility in a crisis of unprecedented proportions. Is this negligence, incompetence or is something else at play?
We know that political responsibility and accountability are foreign concepts to a president who has himself breached the Constitution. But there also appears to be a depraved agenda around the Sassa matter, which involves the company exploiting its access to the beneficiaries and politicians deriving benefits at the expense of the country’s most vulnerable.
In normal democratic systems, it would have been the president’s job to deal with these problems. But South Africa is not a normal country, and Jacob Zuma is not a leader that the people can look up to or depend on.
And yet, with all the crises that he either started or allowed on his watch, with so many downright strange and inexplicable decisions, with so much money lost through sheer incompetence, corruption and waste, and his surrendering of the state to the Gupta family, Zuma’s administration has not killed off our democracy. While wounded, South Africa is not down just yet. The country is fighting back, and the constitutional system appears to be holding, even as it is under a relentless attack by the forces aligned to the man who vowed to uphold and protect it.
And there is room for optimism. There are people in the state system who are doing their jobs and carrying out their constitutional responsibilities. The Constitutional Court judges have shown us repeatedly how good leadership and constitutionalism can triumph. On the Sassa contract, they are pointing the way to help us navigate a crisis whose very existence the president is denying.
But while the judges can stand guardian over our nation, they cannot act as a substitute for good political leadership. South Africans need to sure that the next head that wears the crown is worthy of it. DM
Photo: President Jacob Zuma takes the oath of office administered by Chief Justice Mogoeng Mogoeng, Saturday May 24, 2014. Elmond Jiyane, GCIS Photo Studio
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