Black Sash Trust (Freedom Under Law Intervening) v Minister of Social Development and Others

The case arose from earlier Constitutional Court proceedings concerning the social grants payment crisis involving the South African Social Security Agency (SASSA). In Black Sash 1 and 2, costs were reserved and the then Minister of Social Development, Ms Bathabile Dlamini, was called upon to show cause why she should not be joined in her personal capacity and held personally liable for costs. Allegations emerged that she had established parallel ‘work streams’ reporting directly to her, contrary to governance protocols, and failed to disclose this to the Court in affidavits under oath. Due to disputes of fact, the Court appointed retired Judge President Ngoepe as a referee under section 38 of the Superior Courts Act to investigate the Minister’s role. The Inquiry found that Minister Dlamini had indeed appointed the work streams, required them to report directly to her, and deliberately failed to disclose this to the Court out of fear of personal liability. The matter before the Court concerned whether she should personally bear a portion of the litigation costs.

The first, second and third respondents were ordered to pay 80% of the applicants’ costs, including the costs of two counsel. Minister Bathabile Dlamini was ordered, in her personal capacity, to pay 20% of the applicants’ costs, including the costs of two counsel. The Registrar was directed to forward the Inquiry Report and the judgment to the National Director of Public Prosecutions to consider whether Minister Dlamini should be prosecuted for perjury.

This case is a landmark in South African constitutional jurisprudence on accountability, as it is one of the first instances where the Constitutional Court ordered a sitting cabinet minister to pay litigation costs personally. It reinforces the principle that public office bearers are subject to constitutional values of openness, transparency and accountability, and that courts may impose personal consequences for bad faith conduct in litigation. The judgment strengthens judicial oversight over executive misconduct and underscores ethical standards in public administration.