Can Minister of Social Development Bathabile Dlamini be held in contempt of court for failing to respect the Constitutional Court's 2014 order on the payment of social grants? Samantha Brener looks into the legal issues
In 2013, the Constitutional Court ruled that a contract concluded between the South African Social Security Agency (SASSA) and Cash Paymaster Services (CPS) to distribute social grants across South Africa was unlawful, and therefore invalid. The implication is this: the contract should never have been signed, said the Court.
In 2014, the Court set out an order requiring SASSA to remedy its invalid actions:
SASSA was required to run a new tender process to lawfully appoint a service provider for grants distribution.
At the end of this tender process, SASSA could decide whether to award the tender or not.
If it decided not to award the tender, the unlawful contract between SASSA and CPS would continue to run until the completion of the original five year period of the contract.
If it decided not to award the tender, SASSA would be required to lodge a report with the Constitutional Court, explaining whether and when it would be ready to pay the social grants itself.
In other words, SASSA was required either to issue another tender or to start distributing grants itself. The Constitutional Court's primary concern was that the distribution of grants must not be interrupted.
On 5 November 2015, SASSA filed a progress report stating that it could take over the distribution of grants itself by 1 April 2017. By the time it became clear that this was not the case, it was too late to lawfully appoint another service provider while making sure that the payment of grants was not interrupted.
SASSA has failed to properly implement the 2014 court order. So what is to be done now to hold accountable those responsible?
When the subject of a court order wilfully and in bad faith fails to comply with that court order, he or she can be found in contempt of court. This may well mean imprisonment. If wilfulness and bad faith can be shown in SASSA's conduct in respect of the 2014 order, a contempt of court finding, with all of its consequences including imprisonment could follow.
But what about the Minister of Social Development? Suspicions abound that she has played a primary role in SASSA's failure to implement the Constitutional Court's 2014 order. Shouldn't we hold her in contempt of court? The answer to this question requires us to look at the functions and governance of SASSA.
SASSA is tasked with administering social assistance. In other words, it is SASSA's job to distribute grants to eligible South Africans. Presumably due to a lack of capacity to complete the task itself, SASSA outsourced this duty to a private company - CPS. But when the State outsources a function it must do so in accordance with the law, and clear and strict procurement processes must be followed. SASSA didn't follow proper procurement procedures when it contracted CPS, and hence the contract was declared invalid in 2013.
In legalese, SASSA is a national public entity. It is overseen by an executive authority - the Minister of Social Development - but it is a separate juristic entity and is responsible and accountable for its own conduct and its own financial management. Examples of other national public entities are the Competition Commission, the Film and Publications Board, Legal Aid South Africa, the SA Civil Aviation Authority. The rules that a national public entity must follow when spending public money are set out in the Public Finance Management Act of 1999 (PFMA).
In terms of the PFMA, SASSA's Chief Executive Officer is responsible for its financial management. This includes the obligation to run proper procurement processes.
So, to recap:
In terms of the 2014 order, SASSA, as the named party, was responsible for implementing all of the requirements that the Constitutional Court set out.
The CEO of SASSA is responsible for SASSA's financial management (including proper procurement). Under the PFMA, it was the responsibility of the CEO of SASSA to ensure that its grants distributor was properly procured.
For this reason, the Constitutional Court made its orders against SASSA, and not the Minister of Social Development.
SASSA is responsible for implementing the court order against it. But there is no existing court order against Minister Dlamini. She cannot be held in contempt of court if there is no court order with which she was required to comply.
However, section 6(1)(a) of the South African Social Security Act 9 of 2004 provides that the SASSA CEO's mandate includes responsibility for SASSA's management "subject to the direction of the Minister of Social Development". This suggests that the Minister has the ability to overrule and therefore undermine SASSA's decisions. Perhaps then, the Minister is indirectly responsible for SASSA's failure to comply with the 2014 order.
Perhaps this is the light at the end of the tunnel of accountability, but it is a very small light. It is unlikely that such an approach would find favour, even in the most progressive of courts. The courts, in this case, are not the way to ensure accountability.
The Constitution (section 96) provides that Ministers are accountable individually to the President and to the National Assembly for the proper administration of their portfolios. Executive oversight of SASSA's activities is part of Minister Dlamini's portfolio and it is up to Parliament and the President to hold her accountable for her grossly negligent behaviour. She should be removed from any position of power completely and permanently.
However, she has repeatedly failed to appear when called to account before Parliament. And our President has shown no signs of being inclined to trigger her removal.
Samantha Brener is an attorney and legal researcher. Views expressed are not necessarily those of GroundUp.