Social grants case: Judges batter state counsel Breitenbach

Advocate Andrew Breitenbach SC‚ representing embattled Social Development Minister Bathabile Dlamini and the South African Social Security Agency (Sassa)‚ is unlikely to look back on Wednesday March 15 as the highlight of his legal career.

If court cases were decided on the sheer volume of barbed comments directed at counsel and their clients by the presiding judges‚ Breitenbach would probably have thrown in the towel after a bruising day of argument in a Constitutional Court case brought by the Black Sash to ensure social grants continue to be paid to some 11-million South Africans come April 1.

It was always going to be a tough job defending Dlamini, who has come under withering public criticism over her handling of Sassa’s contract with Cash Paymaster Services (CPS) to pay the grants.

The contract‚ already declared invalid by the top court in 2014‚ ends on March 31 and the judges wanted to know exactly what Dlamini had been doing since then to get Sassa’s house in order to take over responsibility for the payments.

Likening Dlamini’s oversight role to his own‚ Chief Justice Mogoeng Mogoeng told Breitenbach: "If any judge sits with a judgment for six years‚ I will know… I must explain and I will be able to explain how that happened‚" a not-so-subtle suggestion Dlamini had failed to do her job in supervising Sassa.

It was a point he hammered home with a loaded question: "If something is done that is unconstitutional and unlawful is it not for you to spend sleepless nights to ensure it does not happen again?"

There was plenty more of the same from Mogoeng and his fellow judges. When Breitenbach attempted a counter-punch‚ telling the court it must "not jump" to adverse conclusions about the minister‚ he was quickly reminded of the pecking order.

Mogoeng said it was incumbent on counsel to mind their language.

"We remain bound by an oath of office to do the right thing. Decorum of the court does not permit counsel to warn us. We are very responsible people. We are not warned by officers of the court."

Mogoeng ended his grilling with one last biting question directed at Dlamini: "I genuinely want to understand.… How do you get to the level where [your clients] make themselves look like they are incompetent? … How did we get to this level that can be characterised as absolute incompetence?"

Breitenbach was not the only advocate to find him or herself on the receiving end of some difficult questions.

When advocate Aslam Bava, SC, representing the South African Post Office (Sapo) told the court his client was ready and able to take over grant payments‚ Mogoeng asked: "How do we take Sapo seriously if it says it needs just one month when there is not even a contract in place?"

He followed this up with a question about the Post Office’s "admirable track record in service delivery"‚ prompting laughter from the public gallery.

It was also a tough day in court for advocate Alfred Cockrell‚ SC‚ representing CPS who had an uphill battle convincing judges that his client needed a new contract‚ and soon if it were to pay the grants on time.

When it was suggested that the court could instruct Treasury to pay CPS the money without a contract‚ Cockrell described the idea as "extraordinary".

Judgment was reserved.

Other comments delivered during the grueling day in court:

• "I’m getting more and more frustrated the more I listen to you." Mogoeng to Breitenbach.

• "With due respect that is simply incomprehensible." advocate Geoff Budlender, SC‚ representing the Black Sash on Dlamini’s affidavit supposedly explaining on her role in the grants debacle.

• "Let’s cut to the chase. Your client wants more money; is that not what it really is?" Mogoeng to advocate Alfred Cockrell, SC‚ representing CPS.

• "I cannot enlighten you why the minister did not do her job." Breitenbach.

•"One seeks in vain [from] the minister… what she did‚ why she did it ‚ what she knew and why she did what she did." Budlender.

• "It sounds like [the minister] sat idly by and waited to be informed; why did she sit and wait to be informed? … One expects that the minister would have had her finger on the pulse." Justice Mbuyiseli Madlanga.

• "This is a crisis. We must do whatever we can to intervene to ensure that we don’t proliferate the crisis." Mogoeng

• "We are submitting that there is a crisis in this country and this crisis needs to be dealt with. Sapo and the Post Bank are able to provide the service in a period of a month … Sapo is waiting in the wings." Advocate Aslam Bava, SC‚ representing the Post Office.

• "The bid process [was] particularly concerning. Was there constructive contempt of this court‚ or merely gross incompetence?"– Advocate Carol Steinberg‚ representing Corruption Watch

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