Bathabile Dlamini lied, was reckless and grossly negligent – must personally pay costs

The unanimous and scathing judgment read by Justice J Froneman also ordered that the report of the Section 39 Inquiry chaired by Judge Bernard Ngoepe be sent to the National Director of Public Prosecutions to determine whether Dlamini had lied under oath.

Dlamini, a serial legal delinquent, whom the court labelled as “reckless” and “grossly negligent”, now not only has to personally cough up for various court actions brought by the Black Sash and Freedom Under law in relation to the Sassa debacle, but also faces possible criminal action.

The ConCourt ordered that Judge Ngoepe's report be sent to the National Director of Public Prosecutions to determine whether Dlamini had committed perjury.

Dlamini is the second public official to be ordered by the court to personally bear some of the costs of litigation. In 2017 the Pretoria High Court ordered former president Jacob Zuma to personally pay the costs of an application to interdict the release of the Public Protector’s State of Capture report.

Thursday's ruling with regard to Dlamini's duties in respect of her job as the minister responsible for Sassa fulfilling its function with regard to the paying of grants to some 17-million vulnerable South Africans, paves the way for other officials to also be held personally accountable.

Dlamini's argument that it would be an impermissible encroachment into the domain of Parliament should a personal costs order be made against her “had no merit” the court found.

“When courts make costs orders they do not make judgments on the political accountability of public officials. They do so only in relation to how the rights of people are affected by the conduct of a public official who is not open, transparent and accountable and how that impacts on the responsibility to a court to those involved in the litigation,” the court said.

As explained in the Black Sash 2 judgment, the common law rule for holding public officials personally responsible for costs is now buttressed by the Constitution, the court said.

Dlamini had failed to disclose to the Section 38 Inquiry that she had appointed individuals to work streams that personally reported to her, overriding the Sassa executive.

The report's finding that Dlamini had failed to make full disclosure for fear of having to pay costs in her personal capacity could not be faulted, said Justice Froneman.

“The inference that she did not act in good faith in doing so is irresistible. At best her conduct was reckless and grossly negligent, both of which warrant a personal costs order,” said Judge Froneman.

The judgment also found that the Inquiry Report suggested strongly that Minister Dlamini lied under oath.

The court ordered Dlamini, the CEO of Sassa and Sassa to pay 80% of the costs of the Black Sash and Freedom Under Law in the application, including the cost of two counsel.

Dlamini was ordered to pay 20% of the costs in her personal capacity including the costs of two counsel. DM