The recent Constitutional Court judgment in which the court found the executive arm of government ‘unable to fulfil its constitutional and statutory obligation to provide social assistance’ to its citizens brought with it a bitter sense of déjà vu. Adrien
THE Constitutional Court has described the government’s ongoing reliance on Cash Paymaster Services, (CPS) “an entity with no discernible commitment to transformative empowerment in its own management structures”, as the deepest and most shaming of ironies.
The court was forced, for the sake of the welfare of some 17 million vulnerable South Africans reliant on grants to survive, to extend the CPS contract by a further 12 months, a contract which it had, itself, ruled unlawful some three years ago.
With its recent ruling, we somehow came full circle and arrived back at that horrible place we embarked from a decade ago when government first identified the urgent need to create what former Welfare Minister Zola Skweyiya described as a “delivery arm” to administer the provision of social grants to the poorest of the poor in our country.
The SA Social Assistance Agency (Sassa) was born in 2007 as a “lasting solution” to the complex issue of “ensuring effective and efficient delivery of high quality services with regard to management and administration of social grants”.
Skweyiya said the unbearably long queues, dilapidated buildings where cash grants were paid out and the inaccessibility of social grants, which had for so long blighted our system, should be a thing of the past.
It was the appalling maladministration of grants, most notably in the Eastern Cape, that spurred government on to create Sassa in the first place.
Before Sassa’s birth in 2007 the Legal Resources Centre had embarked on a massive litigation campaign against the administratively challenged – and morally bankrupt – provincial welfare department which was haemorrhaging millions of rands to fraudulent or so-called ghost beneficiaries.
The department generally took years to approve social grants applied for by those in desperate need and it often resorted to arbitrarily cancelling grants without notice to prevent over-spending its budget.
Eastern Cape judges were forced to implement novel remedies to address the administrative sloth that threatened the dignity, well-being and – all too often – the very lives of the poor. In the early 2000s, this gave the provincial bench the reputation of being “activist” in its approach
H F Oppenheimer Chair in Human Rights Law at Stellenbosch University, Prof Sandra Liebenberg, recently wrote that it was the Eastern Cape bench that had pioneered some of the most important innovations in socioeconomic rights litigation. Most importantly, she said it had broadened access to court through class actions and designed innovative remedies and strategies for securing compliance with court orders.
These included punitive cost orders against government officials and the executive and so-called supervisory orders requiring officials and the executive to report to the court on a regular basis on steps taken to heed its orders.
It was therefore both ironic and appropriate that this full circle that we have travelled ended up with one of the most activist judges, Constitutional Court Judge Johan Froneman, penning what must be one of the most damning judgments against our government in the democratic era.
In it, he made crystal clear what its constitutional failings had been and the potential devastating impact it could have had on grant beneficiaries.
It was also Froneman, who some 17 years ago as an Eastern Cape judge, was instrumental in turning around the hardship of tens of thousands of disabled people whose grants were unilaterally cancelled by the Eastern Cape provincial government in its misguided attempts to cleanse their database of ghost beneficiaries.
Instead of considering each case on its merits they simply announced their intention to cancel all grants and instructed all beneficiaries to reapply.
In a judgment which has stood out as a guide to our courts on socalled class actions, Froneman in 2001 gave three affected beneficiaries the go-ahead to bring the court action on behalf of the entire class of disabled people affected by the welfare department’s decision to en-masse cancel grants.
The department took the appalling decision to take Froneman’s groundbreaking judgment on appeal to the Supreme Court of Appeal (SCA), taking every technical legal point it could to avoid having to support those that needed it most. So infuriated was then-SCA Judge Edwin Cameron (who is also now a ConCourt judge and who agreed with Froneman’s judgment) that he accused the provincial government of invoking legal processes to impede the rightful claims of its citizens.
He said this showed a “contempt for people and process that does not befit an organ of government under our constitutional dispensation”.
“The province’s approach to these proceedings was contradictory, cynical, expedient and obstructionist. It conducted the case as though it was at war with its own citizens, the more shamefully because those it was combating were in terms of secular hierarchies and affluence and power the least in its sphere.”
Froneman’s latest judgment was just as expressive in its condemnation of the executive inaction that had led to the situation where millions might not be paid their grants on April 1.
In fact, Minister of Social Development Bathabile Dlamini and Sassa – after a three-year indulgence in which Sassa was meant to develop capability to itself pay grants – informed the court that the only entity on the planet capable of paying grants in the foreseeable future was CPS. Sassa had known for more than a year, and Dlamini for some six months, that they would not be able to pay out grants and very little was done about it.
A last-minute attempt by Sassa to approach the ConCourt for direction was thwarted by Dlamini.
The conduct of Dlamini and Sassa, said Froneman, had created a situation where “the constitutional right to social assistance that for many – especially children, the elderly and the indigent – provide the bare bones of a life of dignity, equal- ity and freedom” was threatened.
Again, just as in 2001, exceptional circumstances required exceptional solutions from the court to avoid a constitutional crisis. Froneman was more than up to the job. After all, he had done it all before.
The court adopted the unusual position of condoning for another year the ongoing illegal contract between Sassa and CPS without any competitive tender process having been followed. The contract remains invalid but the court kept in place its former suspension of its declaration of invalidity – once again to give Sassa an opportunity to clean up its dismal act.
The court admitted it had intervened further than any court should in terms of the exercise of its just and equitable remedial power, but said it was forced to do so to avoid a national crisis. And in a final blow to Dlamini, Froneman ruled that Sassa and the minister had failed to heed the material content of the court’s order from three years ago
“There must be a public accounting for how this was allowed to happen.”
The ConCourt ruled unequivocally that the buck stopped with Dlamini. Building again on those early remedies pioneered here in the Eastern Cape, Froneman said the court would retain its supervisory role and the minister, who is so reluctant to account to parliament, will have to report to the courts every three months setting out the steps taken to ensure grants will be paid after the CPS extended contract is up.
It was a fitting coda to a déjà vufilled judgment that Dlamini was also ordered to explain to the court by the end of this month why she should not pay the legal costs of the application out of her own pocket.
That, after all, is another remedial action created and implemented by the Eastern Cape bench against an executive and an administration that had showed little interest in carrying out their constitutional obligations to the most vulnerable in this province.
An even more fitting coda to this entire debacle would be President Jacob Zuma bringing to an immediate end Dlamini’s political career.
Until he does, we have little hope of Sassa ever achieving Skweyiya’s dream of becoming the government’s delivery arm “administering the provision of social grants to the poorest of the poor in our country”.