Bathabile Dlamini. Picture: THE TIMES
Bathabile Dlamini. Picture: THE TIMES

Former social development minister Bathabile Dlamini is questioning whether it is appropriate in a constitutional democracy to hold government officials, who are performing their discretionary functions, personally liable for cost orders in legal matters.

This formed part of Dlamini’s affidavit submitted to the Constitutional Court on why she should not be held personally liable and pay the costs of the recent South African Social Security Agency (Sassa) matter that saw the court once again extend an illegal contract with Cash Paymaster Services (CPS).

Last month, the court extended the CPS contract for another six months for the management of cash payments of social grants to 2.5-million beneficiaries.

The court also ordered that Dlamini and acting Sassa CEO Pearl Bhengu file affidavits motivating why they should not be held personally liable for the agency’s inability to take over the payments and pay out of their own pockets.

In her affidavit submitted to the court on Monday, Dlamini said she had acted in good faith and should not "in law" be held personally liable for the costs of the proceedings. "The legal question, I am advised, is whether it is appropriate for this court to divine remedies neither sought nor expressly provided for in the Constitution, because the Constitution talks of accountability not personal liability of political office-bearers."

Former Sassa and social development officials have put the blame for the social grant debacle at Dlamini’s feet

The inquiry, mandated by the Constitutional Court, was headed by Judge Bernard Ngoepe. In her affidavit, Dlamini said she understood that Ngoepe had submitted his report to the court. No finding has been made public yet.

Former Sassa and social development officials have put the blame for the social grant debacle at Dlamini’s feet.

Over the past year, Sassa twice approached the Constitutional Court after the agency failed to put plans in place to take over the administration of social grants. Dlamini, who was removed as social development minister following President Cyril Ramaphosa’s first Cabinet reshuffle, said she accepted that it was her responsibility in her role as minister to ensure all constitutional obligations were performed diligently and without delay.

She went through the steps taken to comply with the court’s 2017 judgment, which gave Sassa until April 2018 to put a plan in place to take over the social grant payments. She said Sassa had signed a service level agreement with the South African Post Office (Sapo) in December 2017 to help with the payments.

With regards to cash payments, she said the inter-ministerial committee agreed that Sassa revert to open tender. However, the earliest date this could happen was January 24 2018.

"Sassa was left with very little time to run a competitive and a compliant bidding process to find a service provider for cash payment services to social grants beneficiaries. The application for extension therefore became necessary," Dlamini said in her affidavit.

However, in her affidavit Bhengu said Sassa issued a cash payment tender on December 8 2017 with the initial closing date of January 9 2018. However, due to a request from one of the prospective bidders, the closing date was extended to February 2, then to February 28, and finally to March 12.

It was these delays that necessitated Sassa approaching the court for a further six-month extension, Bhengu said. She also said her conduct in discharging her responsibilities was guided by the Sassa Act, the Public Finance Management Act and the Constitution.

"In my own introspection (which may be imprudent), when I committed myself to discharging my duties I did so without compromising Sassa and [did not] cause it any harm."

Bhengu said Sassa was a litigating party in the matter and there was no basis for her to be joined to the matter in her personal capacity unless the court found that she had been "so grossly negligent" in the management of business for the agency.

Dlamini said her conduct in the matter was not negligent or unreasonable and that she did "not violate any grant beneficiaries’ constitutional rights either".