CCT48/17A

[2017] ZACC 20

2017 (9) BCLR 1089 (CC)

Froneman J

15 March 2017

15 June 2017

http://hdl.handle.net/20.500.12144/34464

Main judgment in this case is: Black Sash Trust v Minister of Social Development [2017] ZACC 8; 2017 (5) BCLR 543 (CC). In that judgment first respondent was called upon to show cause on affidavit why she should not be joined to the proceedings in her personal capacity and why she should not be ordered to pay the costs of the application out of her own pocket.

Judgment following a rule nisi calling on the Minister of Social Development to give reasons why she should not be ordered to pay costs personally in the earlier Constitutional Court judgment. The previous judgment had declared that the South African Social Security Agency (SASSA) and Cash Paymaster Services (CPS) to have a constitutional obligation to ensure payments of social grants and suspended an earlier declaration of invalidity of the CPS contract to do so. The Minister had alleged that the CEO of SASSA had failed “to engage comprehensively” with her, which resulted in the delay in implementing grant payments. The CEO of SASSA and former Director-General of the Department of Social Development argued that the Minister had created decision-making and communication processes (“work streams”) that bypassed regular processes, and that this resulted in a deliberate “self-created emergency” intended to benefit CPS. Formally joining a state official to proceedings would serve to make the Minister aware of the risks and give her a further opportunity to argue the matter. Constitutional tests for bad faith and gross negligence will then be applied to assess whether a costs order is justified. The Court joined the Minister to the proceedings and ordered that the parties report on whether they could agree on an appointment of a referee to produce a report on the Minister’s role in creating the “work streams”, and would issue further directions if no such agreement was reached.