Retired Judge Ngoepe was appointed by the Constitutional Court in August 2017 to inquire and report on the ongoing debacle at SASSA. Specifically, to advise the Court on whether Minister Dlamini had hand-picked advisors to lead work streams that were set up as parallel mechanisms to those within the institution, and which directly undermined institutional efforts in meeting Constitutional Court deadlines.

With hindsight, and the benefit of evidence from two former senior public servants at the Inquiry, it was clear that these work streams were directed to report to the Minister. In fact, they undermined the basis of the Constitutional Court judgment declaring the Department of Social Development’s (DSD) contract with service provider, CPS, to be invalid on grounds of irregular tender procedures.

The Constitutional Court’s decision to effect a Section 38 Inquiry was not take lightly, this after Minister Dlamini had precipitated a crisis at SASSA. By invoking section 38 of the Superior Courts Act 10 of 2013, the Constitutional Court appointed Judge Ngoepe to serve as a referee and investigate allegations made against the Minister. This, as the Constitutional Court asserted on the grounds that it, “cannot make an order adverse to the Minister’s on the basis of allegations that are untested and which she has not had an opportunity to challenge”.  Judge Ngoepe’s Report will assist the Court to determine if Minister Dlamini is to be held personally liable for the grants crisis in 2017, which has flowed over into the 2018/19 calendar.

Judge Ngoepe affirmed the veracity of the evidence presented at the Inquiry by former SASSA CEO Magwaza, and DSD Director-General , Zane Dangor, both of whom were fired by Minister Dlamini. The Judge wrote that, “the work streams resulted in SASSA being side-lined by jeopardising whatever plans SASSA was putting in place towards meeting the deadline”. 31 March 2018 was SASSA’s deadline to assume responsibility for grant payments and distribution to 17 million grant beneficiaries. The work streams actively and very deliberately sought to counter efforts to develop in-house capacity at SASSA, to forge partnerships with other state institutions – including the Post Office and the banking sector. Crucially, the work streams undermined efforts to cut ties with CPS, whose contract was deemed irregular by the Constitutional Court.

In his Report to the Constitutional Court, Judge Ngoepe made reference to Minister Dlamini’s evidence as being evasive and less than satisfactory. In sum, he said that he “overwhelmingly supports contentions by Magwaza and Dangor” in respect of the work streams. This rather polite articulation by the Judge may in other circumstances be called lies and mistruths.

Minister Dlamini’s conduct must be juxtaposed with a statement made by the Judge, “…it should be remembered that both Mr Magwaza and Dangor filed their affidavits out of a sense of public duty to assist the court to find out where the truth lies”. The Minister, now responsible for the Ministry of Women – by far the largest beneficiaries of social grants – has until 14 May to respond to the Ngoepe Report.

The Ngoepe Inquiry is significant.  It forced a political head of government to appear in public to testify and, secondly, it will heavily influence the Constitutional Court’s decision regarding the hefty matter of personal culpability and the payment of a cost order. Section 38 of the Superior Courts Act provides for the referee’s findings to have the same findings as that of a court.

The cards are stacked against Minister Dlamini.

By Ms Zohra Dawood, Director

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