15/03/2017 17:38 SAST | Updated 16/03/2017 08:37 SAST

Why Sassa And Bathabile Dlamini's Current Lawyer Made A Dog's Breakfast Of It

At least three lawyers are said to have turned down the brief because of conflicts of interest.

You have to feel a little sorry for advocate Andrew Breitenbach SC, the way Chief Justice Mogoeng Mogoeng went at him.

Breitenbach represented both the Minister of Social Development, Bathabile Dlamini, and the South Africa Social Security Agency (Sassa) in the Constitutional Court case on Wednesday, which was brought by the Black Sash and Freedom Under Law (FUL) concerning the payment of social grants.

From the outset, however, Breitenbach was going to have problems, much of which could have been avoided had he simply stepped down from the case from the outset. It would also have saved him the embarrassment.

Looking at the heads of argument — the papers on which lawyers base their oral submission on in court — it was clear that Dlamini steadfastly refused to take responsibility for whatever happened under her watch, instead trying to blame it on Sassa and officials. There has been a high turnover of officials in the past five years that Cash Paymaster Services have been in charge of paying social grants on behalf of Sassa, so it was hard to pin the blame on any single person there. There was also little institutional memory. The court in 2014 ruled that CPS's contract was invalid and needed to be replaced by the end of this month, but an alternative hadn't been found. That's why Dlamini and Sassa were in court.

Breitenbach had to represent two clients who each had their own versions of the story to tell, and sometimes these versions conflicted.

He told the court in a bumbling moment that he was appointed only on Thursday last week. What he didn't tell the court, and what hasn't been publicly said, is that three lawyers turned down the brief in the past few weeks citing conflict of interest in representing both Dlamini and Sassa at the same time. Why Breitenbach didn't see a conflict of interest in the matter is not known, but Justice Mogoeng must have been aware of this and it would have been one of the things that fuelled his exasperation.

And it is no wonder that Breitenbach at times just didn't have anything to say.

For instance, Justice Mogoeng pressed him for an answer on why Dlamini hadn't come to court sooner when she knew there were problems (according to the papers this was as early as October). Ensuring the payment of grants is one of the main things she as minister is responsible for, he said, and she should have demanded progress reports from Sassa.

This is a crisis Chief Justice Mogoeng

Breitenbach said the court should not jump to negative conclusions about the minister.

When Justice Mogoeng asked him why Sassa didn't go straight to court as it was supposed to do the moment it realised it couldn't take over the grants payments from CPS a year ago, and why there was no plan, Breitenbach simply said: "I don't know. Mea culpa as far as that is concerned. My clients accept that they ought to have come to court sooner."

The Chief Justice also asked with barely-concealed exasperation: "How do you get to the level where your clients make themselves look like they are incompetent and you can't even explain how you got to this point?"

Most of South Africa is still waiting for an answer to that one.

The Chief Justice was blunt about the situation. "This is a crisis. We must do whatever is necessary to intervene to avoid the proliferation of the crisis."

He wanted to know why the minister shouldn't bear the costs of the court case personally, asking Breitenbach for "some submission" to help the court understand why the minister should not be blamed to that extent.

It is what she is a minister for — Chief Justice Mogoeng

"You can't just say 'I was remiss', no. It is what she is a minister for, to make sure that beneficiaries receive their benefits but, more importantly, within the context of an order by the Constitutional Court in relation to this matter. It's embarrassing enough to have an order that says, now something within your department was done that is unconstitutional, that is unlawful. It's embarrassing. Nobody wants that. For you not to follow up now, to spend sleepless nights ensuring that that does not repeat itself, is something that is difficult for any of us to understand. So please, help us to understand," said Justice Mogoeng.

There was no explanation.

Those who have been following the drama in Parliament for the past few months as members of Parliament (MPs) tried to hold the minister accountable, say there have been deep differences between Sassa officials and the minister on how to proceed with social grants come April 1.

AmaBhungane reported on News24 that Dlamini's favoured plan was to extend CPS's role to at least 2019, while Sassa, National Treasury, the Department of Social Development and the SA Reserve Bank had fleshed out an "open architecture alternative".

Dlamini reportedly tried to stop them from presenting this plan to Parliament.

If Sassa had its own lawyer in the court, it would have had space to argue this and put forward its plan too, which could have better helped the court in finding a solution to the contractual conundrum.

Instead, Dlamini and Sassa were both conveniently fudged together in the same mess, making accountability a sticky matter.

Representing both Dlamini and Sassa in court was therefore not only awkward, it also wasn't in the best interest of openness and accountability.

Judgment in the case has been reserved.