For almost two years after the release of the Public Protector’s report on Nkandla, President Jacob Zuma was confident that he would not have to “pay back that money”. He told Parliament, quite emphatically, that the Public Protector’s remedial actions were “mere recommendations” and he was not bound to implement them. Then, in February last year, just before the Nkandla matter came before the Constitutional Court, Zuma conceded that he had to pay the state back for the non security upgrades at his home.

The Constitutional Court still hammered him for acting in violation of the Constitution and also pronounced that Parliament had failed in its duties to hold the executive accountable. After the judgment, Zuma apologised for the “frustration and confusion” caused by the Nkandla matter and thereby wriggled out of further accountability. Parliament has taken no action to hold him accountable for breaching the Constitution or to remedy its own flouting of the supreme law of the land.

The failure by Dlamini and the South African State Security Agency (Sassa) to set in place a mechanism to deliver social grants from April 1 put “one of the signature achievements of our constitutional democracy” in jeopardy, the Constitutional Court said in its landmark judgment last week.

“This Court and the country as a whole are now confronted with a situation where the executive arm of government admits that it is not able to fulfil its constitutional and statutory obligations to provide for the social assistance of its people,” said the court in the judgment written by Judge Johan Froneman.

“And, in the deepest and most shaming of ironies, it now seeks to rely on a private corporate entity, with no discernible commitment to transformative empowerment in its own management structures, to get it out of this predicament.”

The Gupta-funded campaigners against “white minority capital” are yet to applaud the Constitutional Court for that rather potent sentence in the judgment. But they, like Zuma and Dlamini, have been left flummoxed by the judgment.

In interviews with three Sunday newspapers over the weekend, Dlamini appears to be thrown by the court’s order that she explain by March 31 why she should not pay the legal costs for the Constitutional Court case “from her own pocket”. The Sunday Times estimated that the costs could be up to R5 million.

“What shocked me a little bit in the judgment is Bathabile paying from her personal pocket. I’ve never heard of that before,” Dlamini told The Sunday Independent – referring to herself in the third person for some bizarre reason.

Indeed, political office bearers have never before been expected to pay legal costs themselves, which is why most cases that government loses – they lose a lot – are appealed to the highest point in the court system. In the Sassa case, the Constitutional Court appears to be setting a precedent, both in terms of political accountability and financial penalties.

The judges, like the rest of South Africa, have probably seen that political accountability has become a joke. The president spelt that out quite clearly in Parliament just a day before the judgment was delivered.

Asked by Democratic Alliance leader Mmusi Maimane whether he would act against Dlamini for the grants crisis, Zuma said he could not be expected to take action against her as nothing had happened and no crime was committed.

“It’s a funny democracy, a funny legal system that a person before committing a crime must then be judged and punished,” Zuma said. Turning to Maimane, he said: “You are a democrat. I thought you stick to democracy and the rule of law. The rule of law does not say punish a person because you suspect the person is going to commit a crime. It’s almost like the law of the jungle.”

The Constitutional Court had a markedly different take. “There must be public accounting for how this was allowed to happen,” the judgment states.

The judgment makes no bones about who is responsible.

“The Minister bears the primary responsibility to ensure that Sassa fulfils its functions. She appoints its CEO. There is little the CEO can do without her direction. Attempts to obtain evidence of what steps she took after AllPay 2 [the 2014 Constitutional Court judgment in the original Sassa case] to ensure that beneficiaries would continue to be well catered for drew a blank.”

“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.”

At this point, the court could have referred the matter to Zuma, who is responsible for hiring and firing ministers, or Parliament, which is constitutionally obligated to holding ministers accountable. It did not.

Judging by how Zuma defended Dlamini in Parliament, arguing that she had done nothing wrong as the deadline for the expiry of the CPS contract had not been reached, and the applause the minister received from the ANC caucus in the National Assembly, it would be far fetched to expect them to then hold her to account.

The court dealt effectively with the central problem: the expiry of CPS’s invalid contract. It suspended its declaration of invalidity of the CPS contract for another 12 months, by which time a new system must be set in place to pay the grants. While Dlamini and CPS were trying to force through a new, short-term contract with inflated costs per beneficiary, the court made this unnecessary and ordered that CPS had to make a written request to National Treasury if they wanted more money. 

But the court went beyond just dealing with the issue of the contract. It took the extraordinary step of ordering Dlamini and Sassa to file affidavits every three months “setting out how they plan to ensure the payment of social grants after the expiry of the 12-month period, what steps they have taken in that regard, what further steps they will take, and when they will take each future step, so as to ensure that the payment of all social grants is made when they fall due after the expiry of the 12-month period”.

The judgment goes on to say that these reports must include “the applicable time-frames for the various deliverables which form part of the plan, whether the time-frames have been complied with, and if not, why that is the case and what will be done to remedy the situation”.

For a political office bearer, this is the equivalent of being placed in the dunce class. Dlamini can obviously not be trusted to do her job. Her boss can obviously not be trusted to ensure that she does it either. And Parliament cannot be trusted to hold them both accountable.

The judgment spells out that the court was forced into extraordinary action in this case.

“In a constitutional democracy like ours, it is inevitable that at times tension will arise between the different arms of government when a potential intrusion into the domain of another is at stake. It is at times like these that courts tread cautiously to preserve the comity between the judicial branch of government and the other branches of government.”

“It is important to note that this particular role, at this particular time, is not one of the Court’s choosing. The sole reason for the litigation leading to this judgment is the failure of Sassa and the Minister to keep their promise to this Court and the people of South Africa.”

In a statement issued by the Presidency on Saturday in reaction to the judgment, Zuma made another spectacular volte-face. As opposed to his cavalier attitude on Thursday, when he claimed nothing was wrong and no action was needed on his part, the president suddenly decided to “lead and chair” an inter-ministerial committee on comprehensive social security, which will “ensure that the order of the court is implemented efficiently and diligently, in its entirety”.

The committee, which Dlamini was co-chairing with Finance Minister Pravin Gordhan, has been extended to include the Minister of Telecommunications and Postal Services Siyabonga Cwele, the discredited Minister of Communications, Faith Muthambi and Home Affairs Minister Malusi Gigaba.

While Zuma is trying to give the impression that government is making high-level intervention on the issue, the process is a farce. The Constitutional Court was unequivocal that Dlamini was the offending party that caused the crisis. The judges therefore took the extraordinary step of making her explain why she should not be held liable to pay the costs. Yet Zuma has retained Dlamini in the committee overseeing the implementation of the order. The fact that he now “leads and chairs” the committee does not make it any more credible. Just a day before the judgment, Zuma saw no problem with Dlamini’s handling of the Sassa crisis and thought that any expectation for him to intervene would make this a “funny democracy”. 

Zuma has already been contemptuous of one Constitutional Court judgment, offering a half-baked apology for the Nkandla fiasco. In the statement on Saturday, Zuma said: “Government deeply regrets the undue anxiety that resulted from the uncertainty over grant distribution. We apologise to South Africans unreservedly.”

This is not an apology for government’s negligence and incompetence that caused the problem. It is an apology for the “undue anxiety from the uncertainty” that grants might not be distributed. Again, Zuma makes it look like he is apologising for the mess that he and his government created when he is not really doing so. 

Zuma’s intervention is to save face and take back control as he no doubt knows that the judgment was a backhanded slap against him and his executive. But there is no way of undoing the fact that his minister and political ally is under the whip of the Constitutional Court for the next year. Neither can he rescue her from having to pay the costs of the case herself if the court decides that she should. Ironically, the only way Zuma can save Dlamini from the supervision is to remove her from the post. Moving her to another portfolio would, however, not rescue her from the financial penalty.

If Dlamini is made to pay the costs, the Constitutional Court will set a new precedent that will make political office bearers a lot more mindful of their actions. Our democracy might not be so “funny” for the president and his cohorts if accountability hits them where it hurts most. DM

Photo: President Zuma speaking to Minister of Social Development, Bathabile Dlamini at the National Non-Profit Organisations summit, 15 Aug 2012