Minister Bathabile Dlamini will not have to pay the costs of a Constitutional Court application out of her own pocket. Archive photo: Ashraf Hendricks
30 August 2018
The Constitutional Court has ruled that the South African Social Security Agency (SASSA) and the former SASSA Chief Executive Officer (CEO) Pearl Bhengu, in her professional capacity, will have to pay the costs of the urgent application to extend Cash Paymaster Services’s (CPS) contract.
Because Bhengu has been found liable in her professional as opposed to her personal capacity, SASSA will in effect be paying her costs. The judgment, delivered on Thursday morning, was unanimous.
SASSA made the application to extend CPS’s contract by six months in February this year to allow for a transitional phase between CPS and the Post Office. The Court was forced to extend the contract because SASSA did not have an alternative plan to pay the cash social grants, which would mean millions of beneficiaries not getting their grants.
One of the conditions to the extension of the contract was that former Minister of Social Development Bathabile Dlamini and Bhengu should submit affidavits to the Court stating why they should not be held personally liable for the costs of the application.
The court found that while the urgency of the application could have been avoided if Dlamini and Bhengu acted sooner, their conduct was not “in bad faith or grossly negligent”.
“As stated the urgency relied on was self-created and the explanation furnished for the delay in approaching this court was not satisfactory. But the unsatisfactory explanation falls short of gross negligence or bad faith which would warrant a personal costs order,” read the judgement.
The court also found that Dlamini “did not apply an effective supervisory role, particularly after it had come to her attention that SASSA had failed to comply with previous orders”.
“One would have expected that the minister would demand that she be furnished with reports at frequent intervals, setting out steps taken by SASSA to carry out orders and for her to intervene as soon as it became clear that difficulties which put payment of social grants at risk had arisen,” read the judgement.
It said Dlamini mistakenly deferred her responsibility to the Inter-Ministerial Committee on Comprehensive Social Security which was established by the President. Therefore, Dlamini’s conduct did not constitute bad faith or gross negligence and she could not be held personally liable to pay the costs.
The report on the inquiry into Dlamini’s personal role in the social grant crisis, which was ordered by the Constitutional Court in June last year, has not been released yet. The court commissioned a special inquiry into whether Dlamini misled it last year. A judgment on her personal liability for costs in that related, though separate, matter in this saga, is awaited.
The headline on this article was updated after publication to say “- for now”. Text was added on the judgment that is still awaited on Dlamini’s costs.