14/03/2017 22:55 SAST | Updated 15/03/2017 11:52 SAST

Day Of Reckoning: The Rechtsstaat To Hit Back At Dlamini

Bathabile Dlamini has been thumbing her nose at the rule and of law and the basic tenets of transparent democracy. That changes on Wednesday.

Say what? Chief Justice Mogoeng Mogoeng will consider Minister of Social Development Bathabile Dlamini's arguments why she and her officials did not adhere to the court's directives around the payments of social grants.
Gallo Images
Say what? Chief Justice Mogoeng Mogoeng will consider Minister of Social Development Bathabile Dlamini's arguments why she and her officials did not adhere to the court's directives around the payments of social grants.


The term Rechtsstaat refers to a constitutional state in which government power is limited by the law.

South Africans need to sit up and take notice on Wednesday when proceedings at the country's highest arbiter, the Constitutional Court, commence at 10am.

That's when 11 judges, delegated to interpret and uphold the Constitution, will take their seats in an airy and bright courtroom, built on the ruins of the old Fort prison on Constitution Hill, and continue to berate and take apart the hapless and floundering Bathabile Dlamini.

The judiciary will, like in the Nkandla matter and the debacle surrounding Mohammad al-Bashir, be called upon to demand executive accountability. It's not ideal, but that's what the constitutional system of checks and balances demand.

Dlamini, the president of the African National Congress' (ANC) Women's League, who sometimes moonlights as minister of social development, has failed to adhere to a judgment in 2014 that she put in place an alternative service provider to Cash Paymaster Services to administer social grants payments.

Gallo Images / Rapport / Conrad Bornman
Social Development Minister Bathabile Dlamini

The deadline for more than 17 million grants' payments expires in two weeks' time.

When Parliament, the institution responsible for overseeing the executive, considered the unfolding crisis in two parliamentary committees, Dlamini had other matters to attend to. "I now want to be excused," she exclaimed when she eventually appeared in front of the public accounts committee to explain herself.

Dlamini and her team also tried to sideline the highest court in the land and ram through an extension of the current contract without the court's knowledge. When that didn't work because national Treasury refused to play ball, they went ahead anyway and negotiated a contract without any legal basis. This contract was declared null and void by a high-level intervention led by Minister in the Presidency Jeff Radebe.

When Chief Justice Mogoeng Mogoeng got wind of Mam'Bathbile's machinations on Friday, he instructed that she, her department and the South African Social Security Agency (Sassa) file papers by 4pm on Monday explaining themselves.

They filed their responses more than six hours after the deadline, and neglected to answer the chief justice's very pointed enquiries adequately.

On Tuesday, the court invited Dlamini to furnish the court with answers on why it did not keep to the previous day's deadline, with a new 3pm deadline.

Dlamini unsurprisingly missed the deadline again, and did not answer the direct question asked by the court: "Why did you miss the deadline?"

Dlamini's answer: "We did our best."

Law professor at the University of Cape Town Pierre de Vos said on his blog last week Dlamini and Sassa went to great lengths to prevent oversight by the Constitutional Court. Their failure to ensure adherence with the court's directives is either "catastrophically incompetent, or corrupt (or both)".

There's a strong argument to be made that the Sassa affair is more serious, more far-reaching and more damaging to democracy than the Nkandla judgment, a pivotal moment post-1994 in which the president and Parliament was found to be in breach of the Constitution and a moment in which our democratic edifice was tested. It exposed how the head of state was willing to reach to abuse his influence and his acolytes of unquestioningly following him. Certainly the Sassa debacle is more taxing on the fiscus.

When government ignored an order by the Pretoria high court that it must arrest Al-Bashir based on the country's statutes and a Constitution that the ANC had a leading role in formulating, the democratic edifice was again rattled. Government knew what the law said, haphazardly tried to convince the court otherwise, but lost -– and still it circumvented the judiciary.

Dlamini's actions have wilfully and cynically undermined the rule of law and, as a member of the executive, one of the three branches of state, has eroded the legitimacy of the Constitutional Court. In addition, she has refused to acknowledge the function of the legislature, the third branch of state, and the statutory function it performs in holding office bearers like her to account.

On Tuesday, Deputy Finance Minister Mcebisi Jonas expressed his worry at the inordinately heavy burden placed on the courts having to go above and beyond the call of duty. It's not ideal, he said, but added: "When you have failure everywhere, you sit with the problem that the judiciary has to resolve problems. It increasingly happens. We must ensure that there is a greater sense of public accountability ..."

The governing party seems to have contrarian ideas about judicial wanderings into governance. In the "Strategy and Tactics" policy discussion document -– a blueprint for the ANC's ideology and philosophy -– it acknowledges that the party and government is increasingly directed "from elsewhere" via the courts "to do the right thing".

"The moral suasion that the ANC has wielded to lead society is waning and the electorate is starting more effectively to assert its negative judgement," the document reads.

A couple of pages later, however, it cries foul, accusing "some privileged sectors of society" of using "lawfare" to undo the popular will of the people, running to court to ventilate issues which could be resolved politically.

"This has the effect of sucking the judiciary into the maelstrom of day-to-day societal management and thus unnecessarily spluttering it with mud," the document argues.

Leon Wessels, one of the architects of the constitutional dispensation (and after his retirement from politics, a lawyer in the Constitutional Court) believes the Nkandla, Al-Bashir and Sassa cases illustrate the limits of judicial reach and influence. He said on Tuesday the courts were effective ex post facto (after the fact), like Nkandla, but less so in a matter that is unfolding, like al-Bashir and Sassa.

The court can order reparations and restitution, but finds it difficult to intervene and direct matters when it still taking place.

Democracy can be legislated and codified. It however won't work when elected officials aren't committed to principles of transparency and accountability.

It's a message that Mogoeng and his 10 colleagues will transmit loud and clear on Wednesday when NGO Black Sash takes its application to the court to hear how the grants will be paid. Dlamini is going to get an earful.