Chief Justice Mogoeng Mogoeng. Picture: HALDEN KROG
Chief Justice Mogoeng Mogoeng. Picture: HALDEN KROG

Social Development Minister Bathabile Dlamini is responsible for the social grants crisis, the Constitutional Court said on Friday.

Justice Johan Froneman, reading the judgment in the Black Sash’s application to have the Court’s oversight role over the contract between the South African Social Security Agency (Sassa) and Cash Paymaster Services (CPS) for the payment of social grants, said the minister bore the primary responsibility to ensure that the agency fulfilled its function.

She appointed the CEO and there was little he could do without her direction.

Froneman said attempts to obtain evidence of what steps Dlamini had taken to ensure that beneficiaries would continue to be catered for, “drew a blank”.

“The office holder ultimately responsible for the crisis and the events that led to it is the person who holds executive political office.

“It is the minister who is required in terms of the Constitution to account to Parliament. That is the minister, and the minister alone,” he said.

The Constitutional Court has given Dlamini until March 31 to show, in an affidavit, why she should not be joined to the matter in her personal capacity and why she should not pay costs of the application “from her own pocket”.

In 2014 the Constitutional Court found the contract with CPS was invalid but suspended that invalidity until March 31 2017 when Sassa was meant to take over to take over the payment of social grants.

However, it emerged earlier this year that the agency would not be able to do this and would need to enter into a new contract with CPS.

Sassa admitted that it became aware in April 2016 that it would not be able to pay social grants, while Dlamini claimed she was only informed in October the same year.

However, neither informed the court about this.

Sassa and the minister have claimed that only CPS can administer the payment of grants at this stage.

The court on Friday ordered that Sassa and CPS were under a “constitutional obligation” to ensure the payment of social grants from April 1 for 12 months.

It also ordered that the declaration of invalidity of the previous CPS contract be further suspended for a year.

“Sassa and CPS are directed to ensure payment of social grants to grant beneficiaries from April 1 2017 for and period of 12 months, on the same terms and conditions as those in the current contract … that will expire on March 31.”

This was subject to a number of conditions, which included the safeguarding of beneficiaries’ personal data, which could not be used for any other purpose but the payment of grants; and precluding anyone from inviting beneficiaries to opt-in to the sharing of confidential information for the marketing of goods and services.

The court ordered that CPS may, in writing, ask National Treasury during the 12-month period to investigate and make recommendations regarding the price in the contract.

Treasury had to file a report to the court within in 21 days of receipt of the request setting out recommendations.

The court also ordered that CPS, within 30 days of completion of the 12-month contract, must file an audited statement of expenses incurred, the income received and the net profit earned under the contract.

Dlamini and Sassa must file reports in affidavits with the Constitutional Court every three months from the date of the order, setting out how they plan to ensure grants are paid when the CPS contract expires next year.

The court found that Dlamini and Sassa’s “extraordinary conduct” during the social grants saga placed the country’s ability to give effective social assistance in jeopardy.

Froneman said one of the signature achievements of SA’s democracy was the establishment of an inclusive and effective programme of social assistance.

“This judgment is, however, not an occasion to celebrate this achievement. To the contrary, it is necessitated by the extraordinary conduct of the minister of social development and of the South African Social Security Agency that have placed that achievement in jeopardy,” he said.

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