The Constitutional Court judgment handed down on Friday to ensure that more than 10 million people receive their social grants after April 1 contains the most scathing criticism of a member of the executive that I have ever seen. If it does not prompt the Minister of Social Development, Bathabile Dlamini, to resign or prompt President Jacob Zuma to relieve the Minister from her post, the governing party may suffer serious electoral consequences. After all, the most effective way to hold a government accountable is to vote it out of office.
The Constitutional Court on Friday handed down an extraordinary judgment in an attempt to save the government from the impending social grants calamity. At the heart of the judgment in Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC Intervening) (a judgment authored by Justice Johan Froneman) are two extraordinary conclusions the court was forced to make because of the calamitous behaviour of Dlamini.
First, it is clear from the order handed down by the Constitutional Court that it had concluded that the people of South Africa (and the Court) could not trust the South African Social Security Agency (Sassa) and Dlamini to do their job to ensure the delivery of social grants as required by the Constitution. Second, the order suggests that the Court concluded that Sassa and the minister could not be trusted not to mislead the Constitutional Court in future.
As expected the Constitutional Court confirmed that both Sassa and Cash Paymaster Services (CPS) (who had been delivering grants for the past five years in terms of an invalid contract) were:
“[O]rgans of state in relation to the contract and that this entailed constitutional obligations for both entities; that this Court’s remedial power under section 172(1)(b)(ii) of the Constitution allowed it; and that CPS also bore obligations under section 8(2) of the Constitution [which allows private parties to be bound by provisions of the Bill of Rights] because it had performed a constitutional function for a significant period already, the constitutional obligation persisted to ensure that a workable payment system remains in place until a new one is operational.”
The continued constitutional obligation of CPS – a private company – to deliver social grants after 31 March 2017 exists only if there is no-one else to provide those services. The Constitutional Court held that this remained the case. However, it rejected the argument advanced by CPS that those obligations could only be specified by way of a negotiated contract between itself and Sassa, concluding:
“[O]nce it is accepted that the constitutional obligations of Sassa and CPS are not sourced in any contract still in practical existence, but in their mutual constitutional obligation to ensure that the right to social assistance of the many people that have been dependent on past payment through CPS are not rendered nugatory, the logic of private consensual agreement as the only way to determine the content of their respective reciprocal obligations in respect of payment falls away. It is then for the Court in the exercise of crafting a just and equitable remedy to spell out the content of those obligations.”
The court also held that no party “has any claim to profit from the threatened invasion of people’s rights”. At the same time, CPS could not be expected to deliver grants while making a loss. It is for this reason that the Court ordered CPS to continue to deliver social grants at the same price it had contracted for to do the job back in 2012.
The court expressed its extreme dismay at the “extraordinary conduct” of Dlamini which led to the “crisis”. (Unlike the Minister and the President, the court did not shy away from acknowledging that the Minister’s conduct created a “crisis”.)
The court noted that there “is no indication on the papers that [the Minister] showed any interest in Sassa’s progress before October last year. Simply put, the Minister did not do what she was legally required to do (and for which she is being paid from public purse).
To understand why the Constitutional Court could not trust the Minister to do her job or to account honestly to the court, it is helpful to note the Court’s summary of the facts which led to the crisis:
“Since April 2016 the responsible functionaries of Sassa have been aware that it could not comply with the undertaking to the Court that it would be able to pay social grants from 1 April 2017. The Minister was apparently informed of this only in October 2016. There is no indication on the papers that she showed any interest in Sassa’s progress in that regard before that. Despite warnings from counsel and CPS, neither Sassa nor the Minister took any steps to inform the Court of the problems they were experiencing. Nor did they see fit to approach the Court for authorisation to regularise or ameliorate the situation. When, eventually, Sassa brought an application on 28 February 2017 for authorisation, the Minister intervened and ordered Sassa to withdraw the application. On 3 March 2017, the Minister and Sassa filed a supplementary progress report, without any acknowledgement that they were under any legal obligation to do so.”
The Court noted, as I explained earlier this week, that Sassa and the Minister complied with the original order of the court when it informed the court in 2015 that it Sassa would take over the payment of grants from 1 April this year.
But the Court then concluded (and this is something I had not previously thought of), that the promise made to the court that Sassa would take over the payment of the grant left Sassa with the following options in terms of the original order. It could pay the grants itself or it could have the grants paid by a private company after the running of a competitive tender process.
The Court held that as Sassa and the Minister did neither, “any steps to go outside these two options was in disregard of this court’s remedial order” (which necessarily required Sassa to do what it had promised the court it would do). In other words, the Court held that by not doing what it promised the court it would do, and by refusing to inform the court of this and asking it for guidance, Sassa and the Minister might have acted in contempt of the original court order.
There were therefore reasonable grounds for investigating whether this court’s remedial order was disregarded and, if so, whether this was done wilfully. If the court found after such an investigation that there was a disregard of the remedial action and the disregard was intentional, the Minister would be held in contempt of court.
Three important consequences flow from the finding by the Constitutional Court that Sassa and the Minister failed to keep their promise to the court and the people of South Africa.
First, the Minister had to be held accountable for allowing this crisis to unfold. Accountability, noted the court, was is a central value of the Constitution. The court was emphatic that ultimately it was the Minister and not the underlings (who, in South Africa, are often thrown under the bus by their political principles to create the appearance of accountability) who must be held to account.
“The Minister bears the primary responsibility to ensure that Sassa fulfils its functions. She appoints its CEO. There is little the CEO can do without her direction. Attempts to obtain evidence of what steps she took after AllPay 2 to ensure that beneficiaries would continue to be well catered for drew a blank. Given this chain of responsibility, there may thus be no grounds, in the end, for considering whether any individual officials of Sassa should be mulcted, personally, in costs. The office-holder ultimately responsible for the crisis and the events that led to it is the person who holds executive 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.”
The court can play its role to hold the Minister accountable, but that would only be “the judicial part of that accounting”. This judicial part of holding the Minister accountable flowed from the fact that judges held office “to serve the people, just as members of the executive and legislature do”. Implicit in this statement is that the other two branches of government – Parliament and the President – also have a duty to hold the Minister accountable as they, too, must serve the people.
The most effective way to do so would be for the President to fire the Minister or, if that did not occur, for the National Assembly (NA) to pass a vote of no confidence in the cabinet, necessitating the resignation of the cabinet. The NA could inform the President that if he appointed Minister Dlamini in a newly constituted cabinet, it would pass a vote of no confidence in him necessitating that he resigns.
If the President (or alternatively the NA) failed to take these steps, it would mean that the governing party (who enjoys a commanding majority in the NA) supports Minister Dlamini and is inviting angry voters to punish it at the next national election in 2019.
As part of its judicial accountability, the court ordered the Minister “to show cause on affidavit on or before Friday 31 March 2017” why “she should not pay costs of the application from her own pocket”. There will therefore be another hearing where the Constitutional Court will consider whether to order that Minister Dlamini wilfully disregarded her obligations towards the people of South Africa and towards the court. If such a finding is made, the court will order her to pay the cost of all the parties in the court case from her own pocket.
Second, the court had to order that the Minister and Sassa report to it every three months to explain how “they plan to ensure the payment of social grants after the expiry of the 12-month period, what steps they have taken in that regard, what further steps they will take, and when they will take each future step, so as to ensure that the payment of all social grants is made when they fall due after the expiry of the 12-month period”.If circumstances changed, this too had to be reported to the court.
But because of the previous conduct of the Minister, the Constitutional Court could not trust Sassa and the Minister to do what needed to be done to ensure the payment of grants in 12 month’s time, nor could it trust Sassa and the Minister not to try and mislead the court as it had done in the past.
This meant that, thirdly, the court ordered that the Auditor General (no mention is made of the Public Protector, which may or may not be significant) and qualified independent legal practitioners and technical experts appointed by the court from a list of names nominated by the parties, to evaluate all the actions of Sassa and the Minister to ensure that they do their job and truthfully report back to the court.
This is extraordinary. The message is clear: Sassa and the Minister cannot be trusted to do their work. They need supervision by other parties and the court to ensure that the government devises a workable plan to pay social grants after the 1 April 2018.
One could ask: can Minister Dlamini survive this scandal? But if the government party does not act, another question that might be asked is whether the government can survive the scandal. To paraphrase Game of Thrones: the election is coming. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
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