Why South Africa’s courts cannot rein in a delinquent government

30 March 2017 | Story Cathleen Powell. Photo André-Pierre

South Africans sighed with relief when the Constitutional Court recently handed down a judgment in the country’s social grant saga, averting a catastrophic constitutional crisis. About 17 million social grant beneficiaries would not be left without support. Unfortunately, while the court saved the country from one constitutional crisis, it also revealed the depth of the crisis South Africa is still in: one that’s worsening daily.

The crisis the country faces is that no matter how hard the courts try to protect the public from its delinquent government, they are failing. This is partly because most of the executive demonstrates repeatedly that it sees the orders of the court as a mere obstruction to be overcome, and considers the moral authority of the court irrelevant.

The courts can, as done in this case, push further into monitoring, but the truth is they have no capacity to monitor effectively and no force at their disposal to make the government obey them. The police, prison services and defence force answer to the executive, not to them.

The Constitutional Court’s two main jobs

When the Constitutional Court decides a case, it has two main jobs: to make a finding on the law, and to construct a remedy that will solve the problem. The Constitution allows the court a wide latitude to issue “any order that is just and equitable.

But the court needs to ensure that it doesn’t intrude on the other two branches of government, namely the legislature and the executive. So when it finds legislation unconstitutional, it will, where possible, not reword the legislation itself, but suspend its declaration of invalidity to give the legislature time to pass a new law which fixes the problem.

Even if it declares executive conduct unconstitutional, the court will be careful not to dictate what conduct should replace it. This is in keeping with the principle that the executive is tasked to formulate policy and put laws into effect.

Trouble is: what if the other two branches of government are either dysfunctional or uninterested in fulfilling their obligations?

Minister’s defiance

The Constitutional Court has had to rule on the contract between the South African Social Security Agency (SASSA) and Cash Paymaster Services (CPS) three times: in 2013, 2014 and 2017. In 2013 the court found major flaws in the tender process that awarded the R10 billion job of distributing social grants. Among other flaws was the manipulation of the tender process to favour CPS.

In fashioning a remedy, the court faced a serious problem: CPS was already distributing the grants nationwide. Simply to order the company to stop, when nobody else was ready to take over, would deprive South Africa’s most vulnerable people of their only support.

The court thus requested further information from the parties before handing down its final order. In 2014, it produced a nuanced remedy, invalidating the granting of the contract, but suspending its declaration of invalidity for the period in which the tender process was rerun.

SASSA also had the option to distribute the grants itself, in which case the declaration of invalidity would be suspended for the entire term of the original CPS contract. The court did, however, impose a "structural interdict”, a remedy which requires the department to report to it regularly until it has complied with the order. This remedy was meant to ensure that the department conducted a proper, competitive tender process this time, or took over the work itself.

But it didn’t work out this way. In March 2017, less than a month before expiry of the CPS contract, no new tender had been awarded and SASSA was in no position to distribute the grants itself.

It’s been established from SASSA’s court submissions that it was aware a year before the expiry of the CPS contract that it wouldn’t be able to take over the job it had told the court it would do. It received legal advice to report the change of circumstances to the Constitutional Court. It didn’t.

The SASSA papers claim that the Minister of Social Development, Bathabile Dlamini, was informed about this problem in October 2016. She did nothing to solve it or report it to the court, dodged questions on the issue from the opposition in Parliament and failed to attend meetings called by the parliamentary portfolio committee for Social Development.

The minister was defying both the letter and the spirit of the Court’s 2014 judgment by once again taking the steps needed to conclude a contract with CPS, without a competitive bidding process, creating yet more profit for CPS and its parent company, Net1 and exposing South Africa’s poorest to exploitative business practices. The court might as well not have made any order at all.

In its latest judgment on 17 March 2017, the Constitutional Court held the minister responsible for SASSA’s failure to set up a new distribution mechanism, and also took the unprecedented step of holding her personally liable for all the legal costs of the proceedings (she has until Friday, 31 March to persuade the court that she shouldn’t have to pay these costs from her own pocket).

But it then allowed the invalid contract with CPS to be extended for 12 months, once again suspending the order of invalidity for this period under its supervision. In other words, the court imposed another structural interdict.

One school of thought critiques this remedy because it failed the first time round. Its argued that the earlier failure arose because the court lacks the competence, expertise and institutional resources to monitor SASSA.

The counter-argument suggests that this wasn’t a question of competence. The argument is, SASSA did have the institutional capacity to rerun the tender process and also to distribute the grants. But SASSA, or at least the minister, is alleged to have lied. She had no intention of awarding the tender to anybody else or allowing SASSA to take over the job.

In one, terrifying sense, both views are right. Courts don’t have the institutional capacity to run a government department, lacking the staff, expertise, institutional resources and, not least, the political accountability. But the courts also cannot prevent dishonesty on the part of the executive, even if they are in a position to detect it. However – and this is the point where our real, ongoing constitutional crisis is exposed – the problem of defiance by the executive is not likely to be solved by the second structural interdict either.

It’s worth noting that the response of the relevant officials to the court’s judgment of 17 March 2017 is no different from its responses in 2013 and 2014. Despite being declared responsible for the crisis by the court, the minister hasn’t accepted responsibility, resigned or even apologised.

The majority in Parliament has not called the minister to account or expressed regret that it defended her so vigorously over the months leading up to the judgment.

And President Jacob Zuma himself has shown no sign of taking the court seriously.

So we have no reason to expect the executive to comply with the court order this time, either. What if they simply find another way out of it? Will we have another strong judgment and another structural interdict? Or, finally, a finding of contempt of court? A sentence of imprisonment? And, in that case, will the police execute the order against the executive official?

This isn’t a time for relief that the court has saved the country. It can’t. The people must save themselves.

Story by Cathleen Powell, Senior Lecturer in Public Law, University of Cape Town. Image by André-Pierre from Stellenbosch, South Africa. (Constitutional Court Building.) [CC BY 2.0], via Wikimedia Commons.

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