Personal costs are the order of the day

In March, the Constitutional

Court said it could not determine who should bear the cost of litigation for the social grants fiasco until it had answers from Social Development Minister Bathabile Dlamini.

In search of those answers, Dlamini will take what amounts to a witness stand in January.

If she is eventually held liable to pay the legal bills from her own pocket, she may not be alone. From President Jacob Zuma on down, civil society organisations — and judges — are seeking to hold public functionaries personally liable for actions and decisions they take in the name of their offices.

Zuma is potentially liable for personal costs after he withdrew, at the last moment, an attempt to prevent the release of the public protector’s State of Capture report in November last year. Judgment is pending.

In September this year, the Supreme Court of Appeal ruled that former Hawks head Berning Ntlemeza should pay for the failed appeal in which he tried to get his job back, even though the state had actually funded it.

“We will vigorously pursue that [line],” said Francis Antonie of the Helen Suzman Foundation, alongside Freedom Under Law, one of the organisations due to quiz Dlamini.

Also in September, the Labour Court in Johannesburg said former SABC managers Hlaudi Motsoeneng and Simon Tebele must pay the legal costs of two trade unions that had represented the “SABC eight”, a group of journalists and editors fired for their opposition to Motsoeneng’s policies. The two executives are seeking leave to appeal that decision.

Trade union Solidarity hopes to see a repeat of that order when the matter of former Eskom chief executive Brian Molefe’s return and firing after his resignation/ retirement comes before the high court. Solidarity will ask that Eskom board members involved in the fiasco be held personally liable for costs.

By the time that matter comes to court, Solidarity may already have a precedent to cite for truly strange decisions. In April, Durban Judge Dhaya Pillay on her own initiative ordered that 16 officials of the eThekwini municipality should personally pay half the city’s costs in litigation on a tender in which, the activist group Freedom Under Law.

In control of proceedings will be not an ANC MP but retired Judge President Bernard Ngoepe, who will have much the same powers as a judge in civil proceedings. According to these, she could be fined or jailed for up to three months should she “metaphorically speaking, they decided that chalk is cheese”.

The officials were supposed to award a R80-million tender for insurance against leaks, Pillay found, but awarded it to a company that offered an entirely different type of insurance. Although she could not determine why they had done so, they had to be held to account, she said.

“An irrational decision might still have an explanation, albeit one that is not acceptable or is weak in logic,” Pillay said. “But a bizarre decision is manifestly inexplicable. The decision in this instance is so bizarre that, unsurprisingly, even those who participated in making it cannot explain it.”

Some of the officials have been granted leave to appeal. fail to “answer fully and satisfactorily any question” put to her.

The questions are likely to be pointed.

In March, this year the Constitutional Court ruled that Cash Paymaster Services (CPS), a subsidiary of United States-listed company Net1, had to continue paying about 17-million social grants on behalf of the state even though there had never been a valid contract for it to do so.

Dlamini was ultimately responsible for the process in which the South African Social Security Agency (Sassa) was to replace CPS.

She told the court she only learnt in October last year that the project had failed — six months after Sassa itself knew it could not make the deadline.

Dlamini was responsible for the crisis, the court said, but the extent to which she had caused it and should be held liable for the resulting legal costs — or to face some other form of censure — was not clear.

“The question whether a Cabinet member may have acted in bad faith when called upon to explain her conduct to this court cannot be left alone,” the court said in a unanimous follow-up judgment in June.

Dlamini had blamed the social grants debacle on Sassa. But former Sassa chief executive Thokozani Magwaza claimed Dlamini had personally run the show, appointing individuals to “work streams” tasked with getting Sassa ready to take over from CPS.

To get to the bottom of that, the court invoked section 38 of the Superior Courts Act, a piece of legislation so obscure that many lawyers and advocates said they did not know it existed, and which none of them had ever seen enacted. In terms of it, a court can refer a matter to a referee, in this case Ngoepe, to make findings of fact.

The court asked him to obtain answers to five questions, including whether the “work streams” really did report directly to Dlamini, what these “work streams” told her, and why she did not tell the Constitutional Court “that these individuals were appointed at her instance and that they had to report directly to her”.

With those answers in hand, the court will decide what to do.

The court has specifically decreed that Dlamini and all other witnesses must give oral evidence and be subject to cross-examination. It has also said the inquiry will be open to the public.