D-Day for Bathabile Dlamini in Section 38 inquiry into legal costs

The judgment, however, might be wide-ranging. It is not clear at this stage whether it will be specifically about Dlamini’s mulcting in a personal cost order for legal action taken by the Black Sash and Freedom Under Law.

The order by the Constitutional Court in August 2017 that a section 38 Inquiry in terms of the Superior Courts Act be held into the conduct of Dlamini and the near-national crisis it precipitated with regard to the paying of social grants to some 17 million beneficiaries was in itself an unprecedented move in democratic South Africa.

In May 2018 Dlamini, in a written submission to the inquiry, maintained that it would be unconstitutional for the courts to hold government executives to account by mulcting them in personal costs orders for legal action. Dlamini’s view is that only Parliament can hold the executive accountable.

The fifth Parliament of South Africa, however, has already been found wanting with regard to holding the executive to account. On 29 December 2017, the ConCourt and Judge Chris Jafta found that the National Assembly had failed to put into place mechanisms to hold then President Jacob Zuma accountable.

Judge Ngoepe, in a report to the Constitutional Court after marathon public hearings in May 2018, had said that Dlamini had been an evasive and inconsistent witness. She had also contradicted her own evidence that she had not set up parallel structures in Sassa that reported directly to her.

Judge Ngoepe found that during the inquiry Dlamini had simply refused to answer some questions and had provided “long answers which did not speak to the question asked”.

She had also asked too often for a question to be repeated when it had been quite clear. Over and above this she had also “unjustifiably” replied “I don’t know/remember” to important questions and would simply answer questions with more questions.

Ngoepe, however, accepted evidence given by former Sassa CEO, Thokozani Magwaza, and former Department of Social Development DG, Zane Dangor, that Dlamini had set up “workstreams” which reported directly to her and which had undermined the work of Sassa and its CEO.

Judge Ngoepe concluded that the weight of the evidence presented at the inquiry “overwhelmingly supports” contentions by Magwaza and Dangor that the workstreams were set up by the minister and functioned as parallel structures in Sassa.

In June 2017, the ConCourt found that it could not make an order adverse to the Minister on the basis of allegations that were untested and which she had not had an opportunity to challenge, hence the Section 38 Inquiry. That same month an order was made joining Dlamini in her personal capacity in the matter.

The Section 38 Inquiry sought to determine whether Dlamini had hand-picked individuals to lead “workstreams” and who reported directly to her. The inquiry also wanted to find out when these workstream leaders were appointed, whether they had reported directly to Dlamini, as well as asking for the full details of the dates and contents of their reports to the minister. However, these were not made available to the inquiry.

Ngoepe also attempted to find out why Dlamini had not disclosed to the Constitutional Court that she had hand-picked the workstream leaders who reported to her.

Dlamini, who is a fervent supporter of Jacob Zuma, has, until now, seemingly acted with impunity, ignoring court orders, failing to attend crucial committee meetings and treating her ministry as a personal fiefdom.

Professor Pierre de Vos, Claude Leon Foundation Chair in Constitutional Governance at UCT, has written that the judgment in this matter would be significant “because it is testing the power of the court when confronted with political delinquency. Courts are reluctant to challenge the political branches of the state head-on”.

Legal history will be made should the court order Dlamini to personally pay the legal costs of the application brought by the Black Sash and Freedom Under Law and which runs into “several million rand”. DM