Per­sonal costs are the or­der of the day

Mail & Guardian - - News -

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.

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