How those in power flout the rule of law

Chief Justice Mogoeng Mogoeng is, proverbially speaking, “taking names” in the Sassa debacle. The week has ended with a pregnant pause as Mogoeng and the ConCourt requested that Sassa “provide information on who was responsible for deciding that the agency cannot pay grants itself after March 2017, and the date when that person became aware that Sassa could not pay grants itself”.

In addition, the ConCourt has directed Sassa to tell the court whether it had entered into “any agreement” with CPS in relation to grant payments on April 1. The ConCourt seeks full details of any such agreement by March 13.

It’s been a frustrating week of back and forth on this matter. On Monday morning, as the issue was reaching crisis proportions, Minister of Social Development Bathabile Dlamini’s spokesperson was trying to explain what the minister could not in her own rather disastrous press briefing on Sunday.

There was a twist, of course. Spokeswoman Lumka Oliphant refused to speak English when interviewed by morning talk show host Xolani Gwala on Radio 702. The interview was ended abruptly, a decision the radio station has rightly defended. Speaking English on 702 did not preclude Oliphant from being interviewed on every single other indigenous language radio station, so her argument – if one can call it that – was disingenuous.

In January the same Oliphant took to Facebook to defend Dlamini’s rambling speech where people questioned the minister’s sobriety and said the media should stop “talking shit” about the minister.

Did we hear correctly? Did Oliphant actually use an expletive defending her boss?

But we live in an age of impunity, where anything goes and probably the least of our problems is that a spokesperson used foul language.

While Dlamini and her spokesperson were evading questions, the Sassa issue has now reached a tipping point with the April 1 deadline looming. But it did not have to be this way.

The Constitutional Court declared the awarding of a tender to CPS invalid in 2014. It suspended the order invalidating the contract until a new tender could be awarded or, if no contract was awarded, until the contract came to an end. The original (invalid) contract will lapse on March 31 and we remain uncertain how grants will be distributed come April 1.

The minister, who again managed to evade every material question before Scopa on Tuesday, has been arrogant at best and grossly incompetent at worst. She could provide no detail on what each grant would cost to administer but said, curiously, that the contract with CPS would be for two years.

Of course, the key here is to connect the dots, try to follow the money and ask some hard questions. Why is the minister so hell-bent on providing the tender to CPS? She has declared other companies “unresponsive” to the bidding process. At the heart of the ConCourt judgment setting aside the CPS tender was whether CPS could substantiate its claim that its BEE equity partners would manage and execute over 74% of the tender.

Some have said that the BEE partners advised CPS that they were unable to carry out 74% of the work and subcontracted most of that work back to CPS. Many might call this fronting. The ConCourt found, on the face of the information provided by CPS in its tender, that it was not possible to determine whether its claimed empowerment credentials were up to scratch or not. The court went on to hold that “Sassa’s failure to ensure that the claimed empowerment credentials were objectively confirmed was fatally defective”.

One cannot help but feel a deep sense of cynicism about the entire process. In the meantime, 17-million grants are under threat. Or if a solution is found, the contract will be renewed with CPS yet again – even as several questions remain about its empowerment credentials and also whether the minister has explored alternative options to CPS in a bona fide manner.

Why would Dlamini play fast and loose with the poor in such a way?

The simple answer is: because she can. This is a minister who has the full backing of the President. In fact, Zuma intervened, calling a meeting with Finance Minister Pravin Gordhan and Dlamini at the weekend and Gordhan will appear before Scopa next week. Dlamini knows Zuma has her back no matter how outrageous her conduct is. She walked out of a press conference on Sunday after refusing to answer difficult questions, crying that the media was creating a crisis.

So it was no surprise then that Zuma said people should stop asking questions about the grants issue and that the media was stoking a crisis. When in doubt, attack the media, a convenient straw man.

It is also worth remembering that Dlamini was one of the ministers who remained seated after Gordhan’s recent Budget speech. Gordhan and Mark Barnes of the Post Office have repeatedly said that the Postbank would be ready and willing to distribute social grants to recipients. That fell on deaf ears, perhaps predictably.

But Dlamini is merely a product of Zuma’s world: dangerously unaccountable and arrogant. The Constitution in s217 is clear that procurement should be “fair, equitable, transparent, competitive and cost-effective”. Even a cursory glance at this dog’s breakfast created by Sassa’s intransigence indicates that the requirements of s217 have not been met.

By posing the series of questions the ConCourt has, it is quite obviously trying to draw a line in the sand on the impunity we are witnessing. It does however place the ConCourt in the complex position now of trying to stem the impunity and careless disregard for the rule of law by those in power.

All around us those in power flout the rule of law. Dlamini is not alone. Even as Parliament has called for Communications Minister Faith Muthambi to fall on her sword after the SABC debacle, it would be wise not to hold one’s breath waiting for Zuma to act and fire Muthambi.

The Acting CEO of Prasa, Collins Letsoalo, was similarly emboldened and simply refused to vacate his position, even after his dismissal. If Hlaudi Motsoeneng can hang in there, why can’t Letsoalo, after all? The Prasa matter has reached new levels of complexity with the Minister of Transport, Dipuo Peters, firing the entire Prasa board this week amid predictable controversy.

In the same week as Dlamini and Zuma are attacking the media for spreading panic, State Security minister David Mahlobo came up with the ingenious idea of “regulating social media” because of the phenomenon of “fake news”.

This is simply about creating more diversions when facing political pressure. Zuma knows that, as do those in his Cabinet and across government who have gone rogue. They simply have the licence to plunder and justify the unjustifiable – and the start of that impunity can be traced to the very top. The President himself.

*This article was published in Daily Maverick. To view the article on their website click here.

Judith February is a consultant on governance matters and affiliated to the University of Cape Town’s Graduate School of Development Policy and Practice.  Prior to that she was Executive Director of the HSRC’s Democracy and Governance Unit and also Head of the Idasa’s South African Governance programme.  Judith has worked extensively on issues of good governance, transparency and accountability within the South African context.  She is a regular commentator in the media on politics in SA and in 2009 served on an ad hoc panel to evaluate the effectiveness of South Africa’s Parliament. She is a regular columnist for Media24 and also an occasional columnist for the Daily Maverick and other publications.  She is the co-editor of “Testing democracy: which way is South Africa going?” March 2010, Idasa. She was awarded a summer fellowship in 2009 at the Freeman Spogli Institute for Democracy Development and the rule of law at Stanford University, California and in 2012 was awarded a Spring Reagan-Fascell Fellowship at the National Endowment for Democracy in Washington DC.

To see Judith February's extensive list of publications on our website please click here.

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