Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
27 September 2018

Con Court rules that Bathabile Dlamini misled the Court: Will President Ramaphosa fire her (as well as Malusi Gigaba)?

South Africa’s Constitutional Court this week ruled that the former Minister of Social Development, Bathabile Dlamini, withheld information from the Constitutional Court (thus acting in bad faith during litigation regarding the provision of social grants) and ordered her in her personal capacity to pay 20% of the costs incurred by the Black Sash and Freedom Under Law in protracted social grants litigation. The judgment raises serious questions about the Minister’s continued presence in President Cyril Ramaphosa cabinet.

South African courts take a dim view of public officials who deliberate lie to them or dishonestly withhold information from them. Voters might take for granted that politicians lie to them, but judges still assume that members of the executive will not deliberately mislead them.

Last year the High Court found that Minister Malusi Gigaba (during his previous stint as Minister of Home Affairs) had deliberately lied to the court under oath and noted that this constituted a breach of his obligations in terms of section 96(2)(b) of the Constitution. This section prohibits members of the Cabinet from acting in a manner inconsistent with their office.

Both the Supreme Court of Appeal and the Constitutional Court declined to hear Minister Gigaba’s appeal, which means that it is now beyond doubt that the current Minister of Home Affairs has lied to a court under oath.

But even in the case of Minister Gigaba’s dishonesty, the court did not order him to pay any of the cost of the litigation out of his own pocket. Minister Bathabile Dlamini has not been so lucky. Apart from having to pay 20% of the two applicants’ cost in the social grants litigation from her own pocket (this will surely amount to a considerable sum), she might yet face criminal prosecution for perjury.

This is because the Registrar of the Constitutional Court will forward a request to the National Director of Public Prosecutions (NDPP) to “consider whether Minister Dlamini lied under oath and, if so, whether she should be prosecuted for perjury”. This is because the Court found that there was evidence that “very strongly” suggested some of Minister Dlamini’s evidence under oath in the affidavits submitted to the Constitutional Court was false.

Given that Shaun Abrahams is no longer the NDPP, it will therefore not be surprising if the Minister is prosecuted for lying to the Constitutional Court under oath. Given the judgment of the High Court in the Gigaba matter, the Minister of Home Affairs may also face criminal prosecution for deliberately lying to the court under oath.

It would be extremely awkward for President Cyril Ramaphosa to have two of his cabinet Ministers prosecuted for lying to the courts, and he may well wish to minimise the embarrassment by firing both Ministers forthwith.

But let us return to the Constitutional Court judgment. The judgment (Black Sash Trust (Freedom Under Law Intervening) v Minister of Social Development and Others) was preceded by a full investigation conducted on the instructions of the Constitutional Court by Judge President Bernard Ngoepe.

As the Constitutional Court explained, Ngoepe’s report “was diplomatic but nevertheless damning. In essence it found that Minister Dlamini had failed to make full disclosure to this Court”.

The Court endorsed the finding of the inquiry that the Minister’s failed to disclose relevant information because she feared being joined in her personal capacity and being “mulcted personally” in costs. (Translated into plain English: she misled the Constitutional Court and the inquiry because she was worried that she would have to pay the cost of the litigation from her own pocket.)

The Court rejected Minister Dlamini’s novel argument that a personal costs order against her would offend the separation of powers doctrine. (In the constitutional law context, the separation of powers doctrine often tends to be the last refuge of scoundrels.) As the Court pointed out, when courts make personal costs orders it is to hold public officials accountable to the courts for their failure to act in an open, transparent and accountable manner towards the courts.

If you are a public official (the President, a Minister, Premier or MEC) you may well get away with lying to the public, but if you lie to the court, you better make sure that you do it well because if you are going to be caught out, the court will not hesitate to expose you for the shamelessly dishonest person that you are. One way of doing this, is by ordering a public official to pay part or all of the cost of the litigation (as another High Court did in in the State of Capture litigation when it ordered former President Jacob Zuma to pay part of the cost of that litigation.)

A court may make a cost order where the conduct of a public official negatively affects the enjoyment of rights, and where that official shirked his or her responsibility to the court. The test is one of bad faith and gross negligence in connection with the litigation.

As an aside, in the coming months the SCA will hear an appeal by former President Jacob Zuma who was also ordered to pay part of the cost of the litigation in the matter in which he asked the court to review and set aside parts of the former Public Protector’s State of Capture Report. When the court hears the appeal, it will apply the same bad faith standard.

In the case of Minister Dlamini, the Constitutional Court found that not only did the Minister “misled the Court” to protect herself, her actions also endangered the well-being of the “most needy in our society”.  In this regard the following passage in the judgment is particularly damning:

The office which she occupied demands a greater commitment to ethical behaviour and requires a high commitment to public service.  The Department of Social Development is as much responsible for the realisation of rights outlined in the Constitution as this Court and she used her position as Minister of the Department to place herself between constitutionally enshrined rights and those entitled to them.

To put it differently, Minister Dlamini appears to have acted dishonestly to serve her own interests instead of the interests of ordinary people who she was elected to serve. In the process she endangered the well-being of vulnerable South Africans who rely on social grants and thus endangered their livelihood.

The inference that she did not act in good faith in doing so is irresistible. At best for her, her conduct was reckless and grossly negligent. All that is sufficient reason for a personal costs order.

The Constitutional Court judgment concluded that:

It has been a sorry saga and it is proper that Minister Dlamini must, in her personal capacity, bear a portion of the costs. It would account for her degree of culpability in misleading the Court conduct which is deserving of censure by this Court as a mark of displeasure more so since she held a position of responsibility as a member of the Executive. Her conduct is inimical to the values underpinning the Constitution that she undertook to uphold when she took up office.

The Constitutional Court (and in the case of Minister Gigaba, the High Court) have made damning findings against two serving cabinet Ministers. The courts have thus played its role in holding two deeply flawed Ministers legally accountable. Normally one would expect the President – at whose pleasure cabinet Ministers serve – to respond to such damning findings by a court by firing both Ministers. But it is unclear whether President Ramaphosa is principled or brave enough to do so.

If he fails to fire both Ministers, the National Assembly could still hold the Ministers accountable in terms of section 102(1) of the Constitution. This section states that:

If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the Cabinet excluding the President, the President must reconstitute the Cabinet.

This means the National Assembly could force the President to reconstitute his cabinet. It could threaten to pass a vote of no confidence against the cabinet in terms of section 102(1) – unless the President fires the dishonest Ministers. If the President ignores the threat, the National Assembly could then pass such a vote, indicating that it would adopt a vote of no confidence against both the President and his cabinet if he re-appoints the two wayward Ministers in a new cabinet.

Of course, as the ANC controls more than 60% of the seats in the National Assembly, this is unlikely to happen. But, it does remind us that – currently at least – Ministers ultimately serve at the pleasure of the ANC (and particularly at the pleasure of ANC MPs), meaning that the governing party would be complicit if it failed to act and one or both Ministers are convicted of perjury.

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