ConCourt’s ruling on Sassa debacle shows a democracy at work, say experts

The office-holder ultimately responsible for the crisis and the events that led to it is the person who holds executive political office.

“It is the Minister who is required in terms of the Constitution to account to Parliament. That is the Minister, and the Minister alone.”

With those words, Constitutional Court Justice Johan Froneman put the blame for the crisis the Department of Social Development (DSD) had created around the payment of social grants to more than 17 million people on minister Bathabile Dlamini.

The court ordered the government to pay social grants next month via its current provider.

Froneman gave Dlamini until next Friday to explain why she should not personally pay the costs of everyone involved, which with the levels of advocates involved and the court’s time, could run into tens of millions of rand according to advocate and Wits law professor James Grant.

“I’m not a constitutional law expert but right now the ordinary person in the street is looking to the Constitutional Court for governance on this issue which I think for me it shows government has utterly failed and the courts have had to take it upon themselves to govern,” said Grant.

“This is democracy at work where you have systems which are fail-safes, where systems are checking each other, so I think in a sense we can say this is a situation where the whole scheme of things actually shows it works because the government failed, and that people can go to the Constitutional Court,” said Grant.

Director of the Wits Centre for Applied Legal Studies Bonita Meyersfeld was thrilled and, independently, agreed with Grant.

“I think what we saw today was our democracy flexing some muscle. Maybe there is disappointment in the one arm of our democracy, the government, but the other arm came out and it was amazing,” Meyersfield said on Friday.

“We really should be very proud of our democracy even if we’re disappointed in the minister. It’s not that government is incapable, it’s that there has been a paralysis of government, there’s been too many factions involved here, which is why the court oversight is so important.”

The Black Sash, which brought the action, said in a statement South Africa should never have to be placed in this situation again.

“Today’s ruling affirmed that when the Executive of government fails to perform its constitutional duties, the ConCourt can act decisively to safeguard and guarantee the protection of Section 27 rights, in this case social security.

“However, the country should not be put into this invidious position ever again,” it said.

“We remain convinced that Sassa must fulfil its constitutional mandate to make grant payments nationally, without third parties with profit motives. The in-house payment system should create a special and protected Sassa bank account, free of deductions, including debit orders by third parties. Under the Court’s supervision, Sassa must now ensure that it becomes fit for purpose.”

Government’s trail of destruction:

Helen Suzman Foundation and Freedom under Law v The Minister of Police – 17 March, 2017:

The North Gauteng High Court found previous judgments against Lieutenant General Berning Ntlemeza were replete with the findings of dishonesty.
These constitute direct evidence that he lacks the requisite honesty, integrity and conscientiousness to occupy the position of any public office, not to mention an office as important as that of the National Head of the DPCI.

Robert McBride v Minister of Police and Another – 6 September, 2016

The Constitutional Court said public confidence in Ipid’s ability to fulfil its duties is important and as a result, in addition to having actual independence, the Constitution also requires Ipid to be perceived as independent. The minister of police’s contention his decisions ought to be preserved, despite them being taken in terms of constitutionally invalid provisions, was rejected.

Economic Freedom Fighters v Speaker of the National Assembly and Others and Democratic Alliance v Speaker of the National Assembly and Others (Nkandla) – 31 March, 2016

The Constitutional Court declared the conduct of the President and the National Assembly inconsistent with their constitutional obligations.
The Court ordered the National Treasury to determine the reasonable portion that the President must pay for the five non-security items listed and report back to the Court within 60 days. The Court ordered the President to make payment 45 days thereafter.
The President was also ordered to reprimand the Ministers involved in the expenditure at Nkandla. Finally, the Court declared that the remedial action taken by the Public Protector is binding.
The President, Minister, and Speaker were ordered to pay the applicants’ costs, including those of two counsels.

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