GENEVIEVE QUINTAL: Dithering Hawks yet to take Bathabile Dlamini to court
Prosecution authorities have all they need to proceed with a case of perjury, but nothing is happening
Bathabile Dlamini has still not been held accountable for her part in the 2017 SA Social Security Agency (Sassa) debacle, more than two years after a Constitutional Court judgment found that her conduct was “reckless and grossly negligent”.
While serving as social development minister Dlamini was labelled incompetent over her handling of the fiasco, which put almost 17-million grant beneficiaries at risk of missing payment of their social grants. However, she denied responsibility for the saga and in doing so purportedly lied to the highest court in the land.
In September 2018 the apex court ordered Dlamini to pay 20% out of her own pocket towards the legal costs of the Black Sash Trust and Freedom Under Law (FUL) in relation to the debacle. It also directed that the national director of public prosecutions make a call on whether Dlamini should be prosecuted and charged for perjury for lying under oath.
Nothing has happened since. It was revealed in February that Dlamini had defied the Constitutional Court order after lawyers for the Black Sash and FUL had still not received the money the ANC Women’s League president owed them.
Dlamini complained that she had no money, alleging that the state had decided to withhold her pension after her resignation from parliament in 2019, when she did not make it into President Cyril Ramaphosa’s cabinet. She also claimed she did not know the reason for this.
However, it then came to light that Sassa had blocked her pension payout to recoup R2m it spent on VIP protection for her children in 2015. The agency is involved in a bid to get Dlamini to pay the money back, also out of her own pocket.
But a more serious matter arising out of the Sassa mess was that Dlamini had possibly perjured herself by lying to the Constitutional Court. Before the court made a decision on her role in the matter it mandated that an inquiry be conducted into whether she should be held personally liable for the crisis at Sassa.
The inquiry, headed by judge Bernard Ngoepe, found that the controversial work streams hired to help Sassa formulate a plan to take over the administration of social grants had been appointed by Dlamini and reported directly to her, and that she was aware of their actions despite stating otherwise in court documents and testimony.
It was based on this report that the apex court ordered the NPA to consider prosecuting her for perjury and ordered that Ngoepe’s report and the Constitutional Court judgment be passed on to the prosecuting authority.
Two months after the court handed down its judgment, in November 2018, the NPA said it had referred the matter to the Hawks to be investigated. It was forwarded to the office of the director of public prosecutions (DPP) in Gauteng by head office, and was then referred to the Hawks in the province for investigation.
When asked earlier this week where the matter stood the NPA said investigations by the Hawks were continuing. But it seems a bit odd that a perjury case such as this has taken more than two years to investigate, especially when all the documents had been provided by the highest court in the country.
How long does a perjury case truly take to investigate? Not long, we quite clearly saw with the perjury case against public protector Busisiwe Mkhwebane. In January this year Mkhwebane made her first appearance in the Pretoria magistrate’s court for making false statements during legal proceedings arising from her report on the SA Reserve Bank’s apartheid-era loan to Bankorp.
The public protector is facing three charges of perjury after it was alleged that she lied under oath in affidavits submitted in court regarding meetings she held with former president Jacob Zuma during her investigation into the Bankorp loan. The charges stem from a complaint by Paul Hoffman, director of nongovernmental organisation Accountability Now in 2019, and was investigated by the Hawks.
The entire process from investigation to prosecuting Mkhwebane took just more than a year — in the midst of a pandemic. But almost three years after a similar finding against Dlamini the Hawks have been unable to decide whether she should be charged. No explanation has been given for what is causing the delay.
While we know the Hawks are understaffed and overly stretched, matters such as the one against Dlamini should be quick wins for the elite crime-fighting unit, and for the NPA. It might not be as big a matter as, say, state capture or the VBS Mutual Bank scandal, but it goes to the heart of accountability.
If Dlamini can get away with lying under oath surely ordinary South Africans can also be given the leeway to lie under oath? Although the evidence “suggests very strongly” — as the Constitutional Court put it — that she lied, if Dlamini ends up being cleared it is also unfair that the matter has been hanging over her head for so long.
Either way, justice delayed is justice denied.
• Quintal is political editor.
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