If ever there was a lesson for government technocrats and officials in not taking a bullet for their political overlords, it is in the affidavit by Social Development Minister Bathabile Dlamini, filed with the ConCourt and explaining why she should not personally carry the between R2-million and R5-million in legal costs of the Sassa/CPS case which she allowed to fester for months, placing the lives of millions who receive social grants at risk. Dlamini missed her deadline on Friday for the third time, but filed late. Nothing concentrates the mind of a politician more, it seems, than the threat of having to personally cough up for a massive legal bill for the court to resolve a potential national catastrophe that happened on your watch. And like all politicians, Dlamini has shifted the blame to those lower in the pecking order. By MARIANNE THAMM.
Bathabile Dlamini, seemingly “contrite” and admitting she and Sassa had been “disingenuous and incorrect”, blames Sassa officials for the gigantic cock-up in taking a decision not to inform the ConCourt – which had discharged its supervisory jurisdiction – that Sassa would not be in a position to pay social grants come 1 April when the illegal contract with CPS expired.
“With hindsight,” says Dlamini, “I ought to have demanded greater accountability from Sassa officials and more frequent communications and updates from them as to the progress of the implementation of the plan. I did not do so because I assumed that the existing chain and communication channels were working and that I would be informed if anything of consequence arose. This has proven with time to be an error on my part.”
Dlamini, who missed the 16:00 deadline on Friday to file reasons to the ConCourt why she should not be made personally liable for the legal costs, estimated to tally around R3-million to R5-million, filed her affidavit late on Friday evening.
Court papers reveal that Dlamini has ditched her attorney, Tim Sukazi of Tim Sukazi Inc, who supposedly has been advising her so far (no one has been able to fathom Zuma’s lawyer Michael Hulley’s real role yet). Dlamini is now represented by Harris Nupen Molebatsi Inc.
Sukazi was appointed earlier by Dlamini to lead Sassa’s legal “work stream”, one of several she now also blames for the fiasco. Sassa spent around R45-million on consultants hand-picked by Dlamini to help build in-house capacity for Sassa. Sukazi still represents the second and third respondents in the application, the Sassa CEO, Thokozani Magwaza and Sassa itself.
Dlamini begins her affidavit, “I must at the outset express my personal contrition and regret for the anxiety that it must have caused South Africans and especially the recipients of the social grants provided by the government of South Africa, that come 1 April there would not be a legally valid platform for the payment of those grants.”
But… but… but.
“This was not wilful, but a function in part of the fact that I relied on the accuracy of the plan that was presented to me and ultimately the Court on 5 November 2015. I at no stage intended or envisaged that there would come a time when the constitutional right enjoyed by those entitled to social assistance would be compromised.”
In November 2015 Sassa informed the court that it would be ready to take over the payment of grants when the R10-billion a month contract with CPS came to an end in March this year. As a result of this the court discharged its oversight jurisdiction.
On March 17 this year, handing down a searing judgment, Justice Froneman said:
“There is little doubt that the Minister and Sassa are liable in their official capacity for the costs, but in view of the possibility that individual conduct may have played a material role in the matter, the court order will also provide further opportunity for explanation in that regard” and also “the office-holder ultimately responsible for the crisis and events that led to it, is the person who holds political office. It is the Minister, who is required in terms of the Constitution to account to Parliament. That is the Minister and the Minister alone.”
To this Dlamini responds that she accepts that she holds executive responsibility for the actions of Department of Social Development and Sassa, but “I make the observation with humility that accountability does not include personal liability for conduct the courts may find to be an error in law”.
She admits that when Sassa brought an application to the ConCourt on February 27, 2017 for authorisation to extend the CPS contract, “I intervened and ordered Sassa to withdraw the application”.
“Both Sassa and I were disingenuous and incorrect in believing that the discharge of this court of its supervisory jurisdiction was justification not to inform or approach the court when it became clear that Sassa would not be in a position to pay the grants itself.”
Tellingly, Dlamini fails to mention in her affidavit who it was exactly that advised that she should instruct Sassa to withdraw the application, but Daily Maverick has since confirmed that the President’s legal adviser, Michael Hulley, made a surprise appearance at a meeting in December 2017 of the Minister, top Department of Social Development officials and Sassa at OR Tambo airport. At that meeting Hulley lobbied hard for the contract with CPS to continue.
Dlamini says she only became aware of the brewing crisis after October 2016 – and had not been aware, until then, of legal advice offered earlier to Sassa by Advocate Nazeer Cassim with regard to the legal implications of not meeting the ConCourt’s original order. She adds that she had also been unaware of earlier concurring advice given by Advocate Wim Trengrove.
“That opinion was received by Project Manager of the work streams, Ms Zodwa Mvulane and the acting CEO of Sassa at the time, Ms Raphaahle Ramokgopa on 10 June 2016”.
Under the bus you go, Zodwa and Raphaahle.
Dlamini fingers Ramokgopa in her affidavit, saying the acting CEO had assured her that “from her reading of the Cassim opinion, there was still some work that was required to reach any final determination regarding Sassa’s capacity to take over the payment of grants”.
Dlamini also says she should have, with hindsight, demanded greater accountability from officials and that this “has been proven with time to have been an error on my part”.
She also blames Sassa CEO Thokozani Magwaza, who was appointed in November 2016, for delaying the filing of an affidavit to the ConCourt with regard to Sassa’s inability to reach the March 31, 2017 deadline.
Magwaza, she claims, “indicated that he needed more time to address certain concerns and that he would rather report to the court in January 2017. I reluctantly acceded.”
It was then, she says, that she approached the Minister of Finance “via telephone” to ask for a deviation from the procurement process with regard to negotiating a new contract with CPS as well as “a defined alternative to the November 2015 plan”.
“I continued to correspond with the Minister in this regard, but no solutions were found,” says Dlamini.
She adds that during December Sassa continued to “engage with Net1 and with CPS in relation to the transition towards a new service model that would be subject to a regular procurement process”.
A task team, consisting of the DG of Social Development Zane Dangor, the DG of National Treasury, Lungisa Fuzile, and the Deputy Governor of the Reserve Bank, Francois Groepe, was set up “to assist with the transition over the short to medium term”. The task team had come up with six possible options including using the banks and the Post Office to pay grants.
“I together with Sassa evaluated each of these options and the associated risks carefully. We concluded that an interim arrangement with CPS was the option with the least risk,” she claims, this time tossing the blame into the realm of “collective responsibility”.
Dlamini says that in February this year she informed Parliament that Sassa would not be making an application to the ConCourt but “would report before 31 March 2017 in relation to the status of affairs at Sassa”.
“In so doing I did not mislead Parliament. I fully intended that Sassa and I would approach this court to report and the radical change of plan… Before I could do so, on 28 February, the CEO of Sassa, Mr Magwaza, without consulting me, instituted an application in this court requesting assistance in ensuring CPS could continue rendering its grant payment services for a further period of one year from 1 April 2017 contrary to the advice that had been given to Sassa by its then legal team. I instructed that this application be withdrawn.”
It was then that the Black Sash instituted proceedings on 28 February 2017 and that lead to the ruling by the ConCourt on March 17.
Dlamini goes on also to blame the high turnover in leadership at Sassa for some of its woes, alleging that “this provides some explanation of the disconnect between the information at Sassa’s disposal and the information provided to me during this period”.
It is here that she quotes Sassa minutes in which Magwaza points out the crux of the problem. That it is Dlamini’s “work streams” that were bypassing Sassa’s exco and reporting to Dlamini herself. This seems to contradict Dlamini’s claims that she had been unaware of anything untoward happening at Sassa until October 2016.
“TM raised serious concern around the governance structure. He believed the reporting lines should be to Exco not the Minister. He felt that Exco had been bypassed in the planning phases of the project and requested that the work streams work to support Exco and work with Exco,” the minutes are quoted as saying.
Dlamini in her affidavit blames Magwaza for failing “to engage comprehensively with me during this critical time” and says that this “in my view contributed to delays in implementation of certain critical decisions such as the filing of the report to this court”.
Dlamini informs the court that she is of the opinion that she should not be held personally responsible for legal costs because “at every stage subsequent to this court’s order in Allpay 2 being granted, I have done nothing in my personal capacity but to conduct myself in the discharge of my responsibilities in my capacity as Minister of Social Development”.
If she or her conduct is found to be “remiss” it would have to be, she argues, in her official capacity.
“I have been advised that it is not commonplace that a court would sanction a public official in cases where an adverse finding in litigation is made against a particular department, which that official represents.”
Earlier she did admit, “I must immediately accept responsibility as the Minister responsible for Social Development, I hold executive responsibility for what the Department of Social Development and Sassa does. I make the observation with humility that that accountability does not include personal liability for conduct which the courts may find to be an error in law.” DM
Photo: Minister of Social Development Ms Bathabile Dlamini addressing the Disability Rights Summit taking at Saint Georges Hotel, Centurion in Gauteng Province. 10/03/2016. Ntswe Mokoena.
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