The Black Sash Trust v The Minister of Social Development and Others 2017 (3) SA 335 (CC)
“It is through this project that the Constitution founded a nation grounded on protecting democratic values and fundamental human rights”. Hence, ………….. constitutionalism derives its presence from the Constitution” .
1. THE FACTS OF THIS CASE
“In 2002, the Taylor Commission made a set of recommendations to reform the social security and social assistance (system) as a means of reducing poverty. Income poverty would be addressed by way of three universal grants: A Child Support Grant for those up to the age of 18 years, a Basic Income Grant (BIG) for those over 18 years; and a pension grant for women over the age of 60 and men over the age of 65” .
“We have come to Parliament to appeal to you to use your powers in terms of section 44 and 55 of the Constitution to ensure that the Executive gazettes an amendment to the regulations of the Social Assistance Act, with clear timeframes for the extension of the Child Support Grant to 18” .
This case is about a payment of social grants contract between South African Social Security Agency (SASSA) and Cash Paymaster Service (CPS). The Minister of Social Development has constitutional obligation “to provide for the rendering of social assistance to persons; to provide for the mechanism for the rendering of such assistance; to provide for the establishment of an inspectorate for social assistance; and to provide for matters connected therewith” .
“The Black Sash Trust” (a civil society organisation) went to the Constitutional Court directly on an urgent basis for an order declaring both SASSA and CPS (being organs of the state) had an obligation to ensure payment of social grants to beneficiaries after the 31 March 2017, this obligation should be performed on the same terms and conditions as those of the existing contract that was about to expire.
“The case was held by the Constitutional Court on 29 September 2013 that the award of the tender to provide services to payment of social grants to Cash Payment Services (CPS) was constitutionally invalid”. “The Court’s supervisory role came to an end in 2015 when SASSA advised that it would not invite tenders for a new contract as it would administer the system of payment itself”. “By April 2016 it became clear that Sassa would not be able to run the payment system, but nothing was done about it”. Cash Payment System failed to follow the proper bidding procedure”.
“The Constitutional Court had to give South African Social Security Agency (Sassa) chance to find another service provider meanwhile extending the invalidity of the contract of CPS that expired in 31 March 2017(as per the normal contract that was signed to exist for 5 years)”.
Friends of the Court
Corruption Watch (NPC) RF
South African Post Office SOC Limited offered to assist the government about taking over the contract. The organisation intention is to alleviate the problem that the nation will encounter should the required organisation fail to fulfil their duty.
South African Post Office SOC Limited as the Second Amicus Curiae- to provide for the continued corporate existence of the South African Post Office and its subsidiaries; to provide for its governance and staff; and to provide for matters connected therewith.
2. THE LEGAL QUESTION
“The preliminary issues that need to be determined are:
a) Should the application for direct access succeed?
b) Should Freedom Under Law’s application to intervene succeed?
c) Should Corruption Watch’s application to act as amicus succeed?
d) Should SAPO’s application to act as amicus succeed?”
3. THE DECISION OF THE COURT
The main judgment Froneman J (Madlanga J filing a separate concurring judgment)
a) “Granted the applicant direct access and held that Sassa and CPS were under constitutional obligation to ensure payment of social grant benefits to beneficiaries from 1 April 2017 until an entity, other that CPS, was able to do so” .
b) “It was also held that failure to do so would infringe beneficiaries’ right of access to social assistance under Section 27(1)(c) of the Constitution” .
c) “The declaration of invalidity of the previous contract was further suspended for 12 more months beginning 1 April 2017, it being ordered that the contract would continue running on the same terms and conditions as the old one” .
d) “Sassa and the minister were required to file reports on affidavit every three months setting out how they planned to ensure payment of grants after expiry of the 12-month period, as well as further steps they would take to ensure that payments did not cease after that period” .
e) Costs were reserved until conclusion of the proceedings.
“In conclusion, the vision of the Constitution is to create a South Africa that is based on democratic values, social justice and fundamental human rights. In addition, the Constitution enjoins everyone to be involved in a process to transform South Africa” . The important point to note in this case involves issues relating to the law of contract. Commonly, laws or principles governing a contract were to be applied. However, the court went beyond such laws and invoked the concept of ubuntu and fairness. The introduction of these concepts marked a departure from and constituted something that was unusual in the law of contract.” .
Seyisi K and Proudlock P (2009). “When the grant stops, the hope stops. The impact of the lapsing of the Child Support Grant at age 15: Testimonies from caregivers of children aged 15 to 18”. Report for Parliament. Children’s Institute (University of Cape Town), Black Sash and the Alliance for Children’s Entitlement to Social Security (ACESS), October 2009
Social assistance, as defined by the Committee of Inquiry into a Comprehensive System of Social Security for South Africa Committee of Inquiry into a Comprehensive System of Social Security for South Africa Transforming the Present – Protecting the Future: Consolidated Report (2002) 36
Mahlaule v Minister of Social Development 2004 6 BCLR 569 (CC)
Constitution of the Republic of South Africa, 1996
Social Assistance Act 13 of 2004
South African Social Security Agency Act 9 of 2004