Former social development minister Bathabile Dlamini will hear from the Constitutional Court on Thursday whether she should be held personally responsible for the social grants fiasco at the South African Social Security Agency (Sassa).
More significant is whether Dlamini should pay legal costs from her own pocket in the matter brought by human rights groups Black Sash and Freedom Under Law at the apex court.
It would be a rare occurrence if the court ordered that a public official like Dlamini – now minister of women in the presidency – personally pay legal costs, which run into millions. Courts have generally made legal cost orders against public officials and their offices, resulting in taxpayers having to foot the bill for the legal matters they lose.
Legal observers have argued that public officials randomly challenge matters in court because any loss would be paid by taxpayers, instead of them personally.
The most recent example in which a personal cost order was made on a public official was in December 2017 when former president Jacob Zuma was ordered by the High Court in Pretoria to personally pay costs for his application to interdict the release of the public protector’s state of capture report.
Dlamini might face a similar fate.
The Black Sash is pushing for her to pay the legal costs personally as she acted “unreasonably and negligently” in handling social grants, which nearly put the livelihoods of more than 10 million beneficiaries in jeopardy.
This led to Sassa frequently approaching the court at the 11th hour to ask for an extension of the invalid contract of Cash Paymaster Services (CPS) to administer the payments of social grants.
The court was again forced to extend CPS’s contract for the six months to the end of September 2018 – to ensure that 2.5 million elderly and disabled beneficiaries would receive their grant payments – because Sassa had failed to find another service provider.
In court papers, the Black Sash says Dlamini didn’t provide “any adequate explanation” as to why Sassa only approached the court for a further extension on February 7 when she knew two months before then that it would not be able to find another service provider.
As the former minister, Dlamini bore “the primary responsibility to ensure that Sassa fulfils its functions” and was “the officeholder ultimately responsible for the  crisis and the events that led to it”.
The Black Sash says the court has previously set out a number of principles for granting personal cost orders, which include, among others, granting cost orders against public officials whose conduct was “motivated by malice or amounted to improper conduct” as they failed to act in accordance with the Constitution and perform “diligently and without delay”.
In responding to the Black Sash’s arguments, Dlamini has relied on her submission, in May this year, to a Section 38 Inquiry ordered by the court and chaired by retired Judge Bernard Ngoepe into her role in the 2017 social grants crisis. Dlamini argues that the court should not make an order of cost against her as she has “at all times acted in good faith in relation to grant beneficiaries”.
If she is guilty of misconduct, only parliament can hold her accountable and not the courts, she says. Thus, in a constitutional democracy, it wouldn’t be appropriate for the courts to mulct (‘fine and defraud’) her in costs, she adds.
The Black Sash has rejected this, saying that the court is not considering whether to impose sanctions on a cabinet member, but whether a personal cost order should be made to address Dlamini’s conduct.