Only former social development minister Bathabile Dlamini will have to pay about R2m for personal protective services that she authorised to be procured for spokesperson for her department Lumka Oliphant, her children and Dlamini’s children.
The decision was made by the Supreme Court of Appeal on Thursday after an appeal by Dlamini, former South African Social Security Agency (Sassa) CEO Dr Virginia Petersen and Oliphant.
The three were appealing against an order by the Pretoria High Court last year that all should pay back the money incurred by Sassa in 2014 to procure personal protective services for the minister's children, Oliphant and the children.
Petersen had approved the procurement of personal protection services — when instructed by Dlamini — after Oliphant received threats in 2013 from bogus grant applicants. Dlamini’s laptop was stolen after a break-in at her home.
In 2012, Sassa had started to re-register people eligible to receive social grants. The process exposed large-scale fraud. This led to 900,000 grants being cancelled. Oliphant, Petersen and Dlamini were identified as officials promoting these efforts to eradicate fraud from the grant payment system, and this resulted in threats being made against them.
Close to R3.5m was paid by Sassa for services to a security company after a tender in December 2013. Of that amount R2m was in respect of protection services for Dlamini’s children, and close to R1.5m was for the protection of Oliphant and her children.
Seven years later, in November 2020, Sassa launched an application in the Pretoria High Court to review and set aside Sassa’s decision to procure the services. Sassa also sought an order that Dlamini, Petersen and Oliphant should repay Sassa the amounts it paid to the security company, with interest.
In June last year, the high court held Petersen had no power to approve the use of Sassa’s funds to procure close protection services and that such procurement was unlawful. It decided that the money must be repaid by the three.
Petersen, Dlamini and Oliphant appealed to the SCA against the high court order.
When opposing the review in the high court, some of the trio’s grounds of opposition were that the review was brought out of time, with unreasonable delay and that the debts, in respect of which payment was sought, had prescribed.
In its judgment on Thursday, the SCA said while the review was much delayed, there were reasons for the delay.
“Until Dr Petersen’s departure from Sassa [in May 2016], her stance as the CEO was that Sassa had acted lawfully,” judge of appeal David Unterhalter said in a judgment where four other judges concurred.
Sassa had made efforts to recover the money in 2018 after the auditor-general declared the amounts paid for these services constituted fruitless and wasteful expenditure.
On the issue of prescription, Unterhalter said the debt that Sassa owed to the security company might have fallen due in April 2014.
“But that is not the debt that Sassa seeks to enforce against the appellants. The cause of action of Sassa against the appellants is a review.”
He said such a review was not a debt for the purposes of the Prescription Act.
Unterhalter said the central issue of the review was whether the Sassa Act, from which Petersen derived her powers, permitted her to havedecided that Sassa should procure and pay for the close protection services rendered by the security company to Oliphant, her children and the children of Dlamini.
Unterhalter said Petersen procured services for people who were not Sassa officials. He said Dlamini used her position as minister, with direct authority over Petersen, to order Petersen to procure, through Sassa, the close protection services necessary for the protection of an official of the DSD.
Unterhalter said there was no question there was a serious threat posed to Oliphant, her children, and later on, the children of Dlamini. He said that threat came about because of the campaign to rid the system of fraudulent claimants.
“That system is administered by Sassa.”
He said Dlamini, as the minister, would have been entitled to provide security protection for officials of the DSD and their family members.
“However, the Sassa Act does not empower the minister to use Sassa and its funds to procure protection services for the protection of officials of her own department, the DSD.”
He said Dlamini acted outside her powers to require Petersen to procure, through Sassa, the protection services.
However, Unterhalter said Petersen should not be ordered to repay the amounts because an official who sought to follow ministerial direction in the mistaken but “good faith” belief that she was doing what was required, should not be liable for the expenditures she authorised.
“In addition, she received no benefit from these actions.”
Unterhalter also said Oliphant should not be held liable to reimburse Sassa for the protection services afforded to her.
“Ms Dlamini’s position is different. She was the minister responsible for the DSD. She used her position of authority over Dr Petersen to require her to take steps to cause Sassa to procure and pay for protection services for an official of the DSD, Ms Oliphant, Ms Oliphant’s children and her own children.”
He said Dlamini gave no satisfactory explanation for her conduct. He said that breach of duty was compounded by the fact that she required Sassa to provide security not just for Oliphant and her children, but also for her own children.
“Ms Dlamini therefore unlawfully used her authority to secure a benefit for herself. That amounted to a clear abuse of power.”
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