Bathabile Dlamini. Picture: GCIS
Bathabile Dlamini. Picture: GCIS

Bathabile Dlamini should not be personally liable for legal costs in the social grants case, say lawyers for the former social development minister.

Dlamini’s legal representatives said on Monday that since Judge Bernard Ngoepe had not found that Dlamini acted in bad faith in her dealings in the matter, she could not be made to pay the legal costs.

Dlamini had until Monday to respond to the scathing report by Ngoepe to help the Constitutional Court determine if she should be held personally liable for costs linked to the 2017 South African Social Security Agency (Sassa) case.

Ngoepe found that Dlamini was a "less than satisfactory witness" who was evasive.

He also found that the controversial workstreams were appointed by Dlamini and had reported directly to her and she was aware of their actions, despite stating otherwise in court documents and testimony.

In a response to court filed on Monday, Dlamini’s lawyers said Ngoepe "did not make any finding that minister Dlamini acted in bad faith or in her own interests or maliciously or grossly negligent or improperly".

"In the absence of such findings there is no basis in fact or law mulcting minister Dlamini with costs in her personal capacity," they said.

Bernard Ngoepe. Picture: SUPPLIED
Bernard Ngoepe. Picture: SUPPLIED

Dlamini’s lawyers did not deal with the full content of Ngoepe’s report.

Dlamini is also facing another possible personal cost order in the Constitutional Court following Sassa’s 2018 application to have the contract for the payment of social grants with Cash Paymaster Services extended for another six months for cash payments. The court granted the extension in April.

In that month, Dlamini and then acting Sassa CEO Pearl Bhengu filed affidavits with the court, motivating why they should not be held personally liable in the 2018 matter.

Bhengu has since left her position as acting CEO after requesting to return to her previous position as Sassa regional manager for KwaZulu-Natal.

Dlamini was removed as social development minister during President Cyril Ramaphosa’s cabinet reshuffle in February.

Dlamini’s lawyers said the legal question was whether the court could hold a cabinet minister personally liable for costs if she was performing her constitutional functions in good faith.

"We respectfully submit that it would not be appropriate and constant with a constitutional democracy for a court to hold government executives performing their constitutional and/or statutory functions to account by mulcting them in personal costs orders insofar as the executive’s conduct was in good faith."

They said to do so would be an "impermissible encroachment on the powers of the other arms of government". The duty to hold a cabinet minister accountable lay with the National Assembly.

Dlamini’s lawyers also argued that the court had no power under the Constitution or other legislation to grant costs orders never sought by any party in the proceedings.

The lawyers said there was no allegation in the pleadings that Dlamini’s conduct had violated the statutory or constitutional rights of social grants recipients or dependants.