Sworn affidavits will take centre stage in Dlamini/Sassa probe
Affidavits containing counter allegations between Social Development Minister Bathabile Dlamini, her former director general and the Sassa CEO will be at the centre of a probe ordered by the Constitutional Court to determine whether she should be held personally liable for the social grants payment debacle.
The Constitutional Court on Thursday ordered that there be further investigation into whether Dlamini should be held personally liable for the social grants matter.
Reading out the order, Justice Johan Froneman said Dlamini was a joined party to the proceedings in her personal capacity.
He said all parties involved in the matter had 14 days to report back to the court on whether they agreed on a process in terms of section 38 of the Superior Court Act 10 of 2013, in order to determine the issues relating to Dlamini's responsibility in the establishment and functioning of the work streams referred to in the affidavits filed by Dlamini, her former director general Zane Dangor, and Sassa CEO Thokozani Magwaza.
Froneman said Dlamini had sought to place the blame on what went wrong on Sassa and officials in her department.
Magwaza and Dangor personally filed affidavits defending themselves and disputing that they were to blame for the saga.
Section 38 of the Superior Court Act 10 of 2013 states that a referee be appointed by both parties and the court may adopt the report from the referee.
"The thrust of their affidavits is that the minister had established parallel decision making and communications processes that bypassed Sassa and department officials. The minister said little, if anything, of this in her own affidavits," said Froneman.
Minister was 'coy'
He said it was important to determine whether the law allowed a state official to be personally joined as a party on a matter.
"If the possibility of a personal costs order against a state official exists, it stands in good reason that she must be made aware of the risk and should be given an opportunity to advance reasons why the order should not be granted."
He said that when public officials were guilty of acting in bad faith, courts had in the past made personal cost orders against them.
"Accountability and responsiveness are founding values of our democracy... Cabinet members are responsible for the powers and functions of the executive assigned to them by the president and they must act in accordance with the Constitution," he said.
The judge said the involvement of the "work streams" were crucial and disputed part of what had happened.
He said Dlamini was rather "coy" about her personal involvement in what happened in the process.
Froneman said, in Dangor's affidavit, he referred to instances showing that Dlamini must have been aware of the liability of Sassa to comply with the March 31, 2017, deadline earlier than October 2016.
"These are serious allegations. If it is correct that the minister appointed the members of the work streams and that they reported directly to her in contravention of protocol, then her failure to disclose this to the court bears strongly on whether she has acted in good faith or not..."
'It must be resolved'
However, Froneman said, at this stage, the allegations "stand untested.
"This raises the question: How must the affidavit evidence before us be approached in determining whether a personal costs order against the minister is justified?"
He said the court could not make an order adverse to Dlamini on the basis of allegations that were untested, and which she had not had an opportunity to challenge.
"The question whether a Cabinet member may have acted in bad faith when called upon to explain her conduct to this court cannot be left alone. It must be resolved."
Magwaza said he would abide by the court order and would consult with his legal team on appointing the referee.
"The reasoning behind the affidavit was so that I could state my case, and I still maintain that I am still not at fault. If I came on November 1, there is no way that I could have known by the 16th of May," he said.
Magwaza said the relationship between him and Dlamini had improved, describing it as "excellent".
Black Sash lawyer Nomonde Nyembe said the process was basically going to be an inquiry process, headed by a referee to determine the facts in dispute.
"I think the [issue on who the] referee is going to be is going to be a concern for us. I think making sure that it is somebody who considers constitutional accountability is going to be important to us, as well as institutional capacity and integrity."
Asked whether Black Sash believed Dlamini should be held personally liable for the costs, she said if there was default, then someone should be held liable.
"The manner in which those consequences take place is not really in our hands. That lies with the courts."
Nyembe said, because there was a dispute of fact, parties might need to testify and undergo cross-examination.
On whether the inquiry should be open or closed to the public, Nyembe said: "I think to ensure the full integrity of the process, it may well have to be public."