SECOND SEMESTER: ASSIGNMENT 02
STUDENT NUMBER: 3214 5721
UNIQUE NUMBER: 707496
The Black Sash Trust v The Minister of Social Development and Others 2017 (3) SA 335 (CC).
Section 24 through to Section 29 of the Bill of Rights in South Africa’s Constitution recognizes the socio-economic rights of citizens, including the right to social security. Therefore the South African Government “must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of the right.” Accordingly social grants were put in place to improve the standard of living of many South African citizens.
The South African Social Security Agency (SASSA) administers social grants and is mandated by the South African Social Security Agency Act of 2004 to “ensure the provision of comprehensive social security services against vulnerability and poverty within the constitutional legislative framework”.
The Social Assistance Act of 2004 and regulations to the act provide the legal framework for the administration of seven social grants. These grants are only paid to people who qualify and meet the needs test.
THE FACTS OF THE CASE
In 2012 the South African Social Assistance Agency (SASSA) contracted Cash Paymaster Services (Pty) Limited (“CPS”) to pay social grants for a period of five years. However, on the 29th September 2013, the Court declared the said contract to be invalid. (all pay1).
In the remedial order (AllPay 2) the Court suspended the declaration of invalidity. The declaration was based on the premise that either a new five-year tender would be awarded after a proper procurement process or SASSA itself would take over the payments of social grants when the contract with CPS came to an end on the 31st March 2017.
In November 2015, SASSA advised that it would take over the payment of social grants and would be able to meet the deadline of 31st March 2017. Whilst SASSA has been aware since April 2016 that it would not be able to meet the deadline to pay social grants from the 1st April 2017, the Minister advised that she had only become aware of the payment problem in October 2016 and subsequently did nothing to remedy the payment problem. The matter was referred to the Constitutional Court to decide who is to make payment of the social grants.
THE LEGAL QUESTION
What powers did the Constitutional Court have to remedy the situation where the only way to deliver social grants would be through a process that without court validation, be unlawful and invalid.
Did the Constitutional Court have jurisdiction over the case, to ensure proper compliance?
Did CPS have a constitutional obligation to continue to provide payment services beyond March 2017 and to ensure the uninterrupted payment of social grants.?
Was the Court still in a position to oversee the tender bidding process?
Barkhuizen v Napier 2007 (5) SA 323 (CC) at para 39. On the importance of the proper ventilation of issues in pleadings and argument, see also Van Der Merwe and Another v Taylor NO and Others 2007 ZACC 16; 2007 (11) BCLR 1167 (CC); 2008 (1) SA 1 (CC) at paras 76 and 103.
As in Allpay 2, this Court is currently “not in a position to determine what the effect of making a new tender award will be on a number of interests. These include: the ability of other potential tenderers to make truly competitive bids; whether a new system will necessarily disrupt existing
THE DECISION OF THE CONSTITUTIONAL COURT
The court declared that SASSA and CPS were under a constitutional obligation to ensure the payment of social grants to beneficiaries from the 1st of April 2017, for a period of 12 months, after which the contract between SASSA and CPS may be declared invalid – or more accurately, the suspension of the contact’s invalidity shall be lifted.
AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, South African Social Security Agency 2014 ZACC 12; 2014 (4) SA 179 (CC); 2014 (6) BCLR 641 (CC) (AllPay 2).
The Constitution of the Republic of South Africa (act 108)’, 1996, South Africa,
AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, South African Social Security Agency 2013 ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1 (CC) (AllPay 1).