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Rarely-used law that puts Dlamini in a corner

Publish date: 16 October 2017
Issue Number: 747
Diary: IBA Legalbrief Africa
Category: South Africa

Having invoked section 38 of the Superior Courts Act, a piece of legislation so obscure that many lawyers and advocates did not know it existed, the Constitutional Court has placed Social Development Minister Bathabile Dlamini in a corner. A Mail & Guardian commentary notes that on 22 January next year, Dlamini will have to take an oath and then answer the questions of two civil society organisations about her role in the social grants fiasco. And, if she does not do so satisfactorily, she could go to jail. That, says the M&G, is the process now cemented in orders and directions by the Constitutional Court. It promises the unprecedented spectacle of a Minister under cross-examination about the events that led to a crisis. In the past, Dlamini has failed to appear before Parliament to answer similar questions, has refused to answer them and has been protected by members of her party or the rules of Parliament. In January, she will have none of those options or allies. For a week, the sole focus of an inquiry will be on what she did, what she knew and when she knew it. She will be cross-examined not by MPs but by the advocates acting for the civil society organisation the Black Sash and the activist group Freedom Under Law. In control of proceedings will be not an ANC MP but retired Judge President Bernard Ngoepe, who will have much the same powers as a judge in civil proceedings. According to these, she could be fined or jailed for up to three months should she fail to ‘answer fully and satisfactorily any question’ put to her. Dlamini had blamed the social grants debacle on Sassa. But former Sassa chief executive Thokozani Magwaza claimed Dlamini had personally run the show, appointing individuals to ‘work streams’ tasked with getting Sassa ready to take over from CPS. To get to the bottom of that, the court invoked section 38 of the Superior Courts in terms of which a court can refer a matter to a referee, in this case Ngoepe, to make findings of fact. The court asked him to obtain answers to five questions, including whether the ‘work streams’ really did report directly to Dlamini, what these ‘work streams’ told her, and why she did not tell the Constitutional Court ‘that these individuals were appointed at her instance and that they had to report directly to her’. With those answers in hand, the court will then decide what to do.

Full Mail & Guardian commentary

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