The Constitutional court has asked why Social Development Minister Bathabile Dlamini should not have to pay legal costs.
Chief justice Mogoeng Mogoeng had strong words for Dlamini‚ suggesting “absolute incompetence” and saying she did not do her job by not finding out that SA Social Security Agency (Sassa) could not pay grants sooner.
Sassa told the court it would do so in November 2015 and the minister alleges she didn’t know for six months from April to October 2016 that Sassa wasn’t ready to pay 11 million people 17 million grants.
The court has suggested she should have been more involved‚ asking Sassa to report monthly.
After hours of argument‚ Chief Justice Mogoeng Mogoeng had one critical question for Andrew Breitenbach SC representing the department of social development: “How does one get to this position?”
“I genuinly want to understand. How we get to this level … that can be characterised as an absolute incompetence?” Mogoeng asked.
Earlier‚ the court had been asked to consider whether Dlamini should be held personally responsibly and pay legal costs in the social grants case.
This after the court heard of a failure of the parliament and Dlamini to avert a situation that has placed the lives of 11 million South Africans in limbo.
On Wednesday the Constitutional Court heard arguments in a case brought by NGO Black Sash aimed at determining how social grant payments should be handled from April 1.
This after a 2014 judgment declaring the contract between Sassa and Cash Paymaster Services (CPS) invalid. The contract was allowed to continue‚ with the understanding that Sassa would create an in-house grants payment service.
A crisis arose when it became clear that the Sassa system would not be created and no replacement administrator was found.
Advocate Geoff Budlender‚ representing Black Sash‚ noted that the court was in the same position as it had been three years ago when it ruled the current CPS contract was ruled invalid.
Budlender said approaching the court was the “last resort” to ensure the poor would not go hungry after both the government “executive” and parliament had failed to ensure legal system was in place to pay grants in April .
“The painful truth is that executive failed to meet obligations. And the painful truth is that parliament has failed to exercise oversight.”
He said that Sassa knew in April last year it couldn’t pay grants as it had promised the court and found it inconceivable that Minister Bathabile Dlamini didn’t know this until October‚ as she has claimed.
Her ignorance was enough to show she couldn’t do her job and the court had to intervene.
Lobby group Freedom Under Law detailed how CPS has used its power to bully Sassa and Dlamini and never once had they reported this. Their advocate David Unterhalter SC argued that CPS should make no money at all if they continue to pay grants in the interim.
Freedom Under Law have asked that the court get involved in determining the costs of contract and the length.
Unterhalter also argued that CPS have a constitutional obligation to continue paying grants.
The organisation’s Advocate David Unterhalter argued that CPS needed to continue paying grants‚ because they had a constitutional obligation to do so. He said they had used their monopoly to bully Sassa‚ demanding higher prices and to accept the contract on their terms.
The court heard that CPS asked for R25 per beneficiary if the contract was renewed for 90 days and R22 if it was renewed for two years‚ up from R16‚44 per grant beneficiary.
“They have enjoyed considerable benefit under a five years now to seek to make further profits‚ under unlawful expenditure. It is not warranted‚” Unterhalter said.
Along with CPS’s conduct‚ the conduct of Dlamini came into sharp focus.
Black Sash’s Geoff Budlender told the court: “One seeks in vain by the minister of what she did‚ why she did it ‚ what she knew and why she did what she did.”
Calling Dlamini’s affidavit in the case perfunctory‚ Budlender said the document was lacking in an apology.
He argued that Dlamini should be made to pay his client’s legal fees in her personal capacity.
The case continues.