How Bathabile Dlamini dodged a ConCourt bullet… for now

It was widely expected that former social development minister Bathabile Dlamini would receive a blow from the Constitutional Court on Thursday for her handling of last year's SA Social Security Agency (Sassa) debacle.

Instead, the court ruled against Sassa and its former acting CEO, Pearl Bhengu, finding them liable for costs relating to an application for a six-month extension for the payment of cash grants by Cash Paymaster Services (CPS) that was made in March this year.    

But Dlamini did not escape blame entirely.

'Not an effective supervisory role'

In the judgment, delivered by Justice Leona Theron, Dlamini was said to not have applied "an effective supervisory role, particularly after it had come to her attention that Sassa had failed to comply with previous orders".

"One would have expected that the minister (Dlamini) would demand that she be furnished with reports at frequent intervals, setting out steps taken by Sassa to carry out court orders and for her to intervene as soon as it became clear that difficulties which put payment of social grants at risk had arisen," the judgment states.

The court found, however, that Dlamini's actions were, in this specific application, "not sufficient to conclude that it constitutes bad faith or gross negligence".

Not the end of the road

But it's not the end of the road for Dlamini.

The court still has to make a ruling in a second costs matter, in terms of Section 38 of the Superior Courts Act, to determine Dlamini's role and responsibility in the establishment and functioning of the work streams referred to in affidavits filed by all the parties.

This will shed light on whether Dlamini should be held personally liable for the costs of the court case around the validity of the appointment of the contractor responsible for paying out social grants. The case was brought by non-governmental organisations Black Sash and Freedom Under Law.

READ: Dlamini files affidavit on why she should not personally pay for Sassa case

The confusion in this matter almost caused a national crisis that would have halted the payment of social grants to millions of South Africans.

A Constitutional Court judgment last year had declared the contract with CPS to facilitate the payment of social grants, that was signed on Dlamini's watch in 2012, invalid.

But the minister had blamed Sassa for the delay in implementing grant payments, saying its CEO had failed "to engage comprehensively" with her.

Sassa said the minister had created the emergency herself in a bid to benefit CPS by extending its contract.

After the Constitutional Court ruled on the invalidity of the CPS contract, it said it would consider holding the minister personally liable for the crisis that was created.

The court said it would only be fair to the minister that she be given the opportunity to explain why she should not be held personally liable.

But, the court added that a precedent already existed.

Read more: Dlamini 'was running Sassa like her own shop' - Magwaza

"Costs orders have been given against judicial officers where they have acted in bad faith," said Justice Johan Froneman last June, when he ordered that the minister be joined as a party to proceedings in her personal capacity.

At the time, he said: "Accountability and responsiveness are founding values of our democracy."

Froneman said in the June judgment that Dlamini had "sought to place the blame for what went wrong on officials from Sassa and the Department of Social Development".

But affidavits before the court from two senior government officials – then Sassa chief executive officer Thokozani Magwaza, and then director general of the department, Zane Dangor – said the minister had established a parallel decision-making and communications process that bypassed both Sassa and government officials.

Dlamini's fate is still to be decided.