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

This matter concerns the issue of costs arising from earlier Black Sash judgments (Black Sash 1 and 2) relating to the social grants crisis. The Constitutional Court had previously called upon Minister Bathabile Olive Dlamini to show cause why she should not be joined personally and pay costs personally. Affidavits filed by Minister Dlamini raised conflicts of fact regarding alleged parallel processes of responsibility she had initiated. The Court ordered a section 38 inquiry conducted by retired Judge President Ngoepe to investigate whether Minister Dlamini appointed individuals to lead 'work streams' who reported directly to her, and why she failed to disclose this to the Court. The inquiry found that Minister Dlamini had indeed appointed these work streams to report directly to her (rather than to SASSA), and that she failed to make full disclosure to the Court. Judge President Ngoepe found her explanation for non-disclosure unconvincing and concluded she withheld this information out of fear of being joined personally and being mulcted in costs.

• Whether a Cabinet Minister may be held personally liable for costs of litigation
• Whether ordering a Minister to pay costs personally breaches the separation of powers doctrine
• Whether the Minister's conduct in failing to disclose material information to the Court constituted bad faith or gross negligence
• What the appropriate apportionment of costs should be between the state and the Minister personally
• Whether the matter should be referred to the National Director of Public Prosecutions for possible perjury

1. The first, second and third respondents (Minister of Social Development, CEO of SASSA, and SASSA) to pay 80% of the costs of Black Sash Trust and Freedom Under Law, including costs of two counsel. 2. Ms Bathabile Olive Dlamini ordered to pay 20% of the costs of Black Sash Trust and Freedom Under Law in her personal capacity, including costs of two counsel. 3. The Registrar directed to forward the Inquiry Report and judgment to the National Director of Public Prosecutions to consider whether Minister Dlamini lied under oath and should be prosecuted for perjury.

A Cabinet Minister may be held personally liable for costs of litigation where the Minister's conduct demonstrates bad faith or gross negligence in relation to the litigation. The constitutional tests of bad faith and gross negligence apply when determining whether a public official's conduct in litigation warrants a personal costs order. Failure by a Minister to disclose material information to a court out of fear of personal consequences, particularly where parallel processes were established that undermined proper governance, constitutes at minimum gross negligence and likely bad faith, warranting a personal costs order. Personal costs orders against public officials for litigation conduct do not breach the separation of powers doctrine, as courts are not judging political accountability but rather how conduct affects rights and responsibilities to the court. The determination of the appropriate portion of costs to be borne personally is a discretionary matter to be determined on the facts of each case.

The Court made several significant observations beyond the strict legal holdings: (1) It characterized the entire social grants saga as a 'sorry saga' requiring consequences to prevent recurrence. (2) The Court emphasized that Minister Dlamini's conduct was 'inimical to the values underpinning the Constitution that she undertook to uphold when she took up office.' (3) The Court observed that the office of Minister 'demands a greater commitment to ethical behaviour and requires a high commitment to public service.' (4) The Court noted that the Department of Social Development is as responsible for realizing constitutional rights as the Court itself, and criticized the Minister for placing herself 'between constitutionally enshrined rights and those entitled to them.' (5) The Court acknowledged it was 'novel' to hold a Cabinet Minister personally responsible for litigation costs, suggesting this influenced the relatively modest 20% personal costs order. (6) The Court described the evidence of potential perjury as 'unedifying' and stated the findings 'suggest very strongly' that some of Minister Dlamini's evidence under oath was false.

This is a landmark judgment establishing that Cabinet Ministers can be held personally liable for costs where their conduct in litigation demonstrates bad faith or gross negligence. The case affirms that personal costs orders against public officials do not breach separation of powers when addressing how officials' conduct affects rights and their responsibility to courts. The judgment reinforces constitutional values of accountability, transparency and ethical conduct in public office, particularly under section 195 of the Constitution governing public administration. It demonstrates the Constitutional Court's willingness to impose serious consequences, including personal financial liability and referral for criminal prosecution, where Ministers mislead the Court. The case is significant in the context of social and economic rights enforcement, showing that officials responsible for delivering constitutional rights will be held accountable for conduct that undermines those rights. The use of the section 38 inquiry mechanism to resolve factual disputes in constitutional litigation is also notable.