CONSTITUTIONAL COURT OF SOUTH AFRICA
SASSA and another v Minister of Social Development and others
CCT 48/17
Date of Judgment: 23 March 2018
________________________________________________________________________
MEDIA SUMMARY
________________________________________________________________________
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
Today the Constitutional Court handed down an order, with reasons to follow, regarding an urgent interlocutory application which had been brought by the South African Social Security Agency (SASSA) and the Chief Executive Officer of SASSA (the applicants). The applicants sought a suspension of a declaration of invalidity, which had been granted by this Court on 17 March 2017, for a period of 12 months. The applicants asked for the 12 month period to be extended for an additional 6 months. The extension, followed on from the original order of this Court granted on 17 April 2014 which had found that the contract between Cash Paymaster Services (Pty) Ltd (CPS) and SASSA was constitutionally invalid.
This application differed from the suspension of the declaration of invalidity granted on 17 March 2017 for a period of 12 months in that, SASSA requested an extension of the declaration of invalidity in respect of payment services to only those social grant beneficiaries who receive their social grants through cash payments.
This Court made an order granting the extension of the declaration of invalidity for a further period of 6 months from 1 April 2018, in respect of payments of social grants, in the form of cash payments only. The Court further ordered that SASSA and CPS remain under a constitutional obligation to ensure payment of social grants to grant beneficiaries, whose grants are paid in cash for the period of the extension. Such payments are to be made on the same terms and conditions as those in the contract between SASSA and CPS that would have become invalid on 31 March 2018.
The Court has also maintained its supervisory jurisdiction over the matter and continues to require the Minster of Social Development (Minister) and SASSA to file reports, on a monthly basis, setting out the steps that these parties have taken in ensuring that they are meeting their constitutional obligations in providing social grants to beneficiaries who receive such services through cash payments. Further, the Minister and SASSA are under an obligation to immediately report to this Court of any material changes relating to the reports filed with this Court.
In regard to the payment method which will be adopted by SASSA for the provision of cash payments, SASSA is under an obligation to ensure that all personal data of beneficiaries obtained through the process remains private. It is further ordered that any contracting party employed by SASSA in relation to such a process may not invite beneficiaries to “opt in” to sharing confidential information for the marketing of goods or services.
CPS may, during the six month period, request that National Treasury undertake an investigation and make a recommendation regarding the price to be paid for the services CPS is to render in terms of services rendered during this extension. National Treasury will have to file a report with this Court 21 days after receipt of the request setting out its recommendations.
CPS will be required to file with this Court, within 30 days of completion of the contract, an audited statement of the expenses incurred, the income received and the net profit earned over the extension. SASSA will immediately thereafter be required to obtain an independent verification of the audited financial statement of CPS. This audited verification must be approved by National Treasury and filed by SASSA with this Court within 60 days. CPS must allow the auditors of SASSA to have unfettered access to financial information for this purpose.
The Court further continues to mandate the Panel of Experts (Expert Panel)to evaluate the implementation of the cash payment of social grants during the six month period and evaluate the steps taken by SASSA in the appointment of a new contractor for cash payment of social grants, and to report to this Court. The Expert Panel is to report to the Court on its findings on a monthly basis.
The Court has further ordered that the former Minister of Social Development Ms Bathabile Dlamini and the acting Chief Executive Officer of SASSA, Ms Pearl Bhengu should file affidavits giving reasons why they should not be joined in these proceedings in their personal capacities and should not be held personally liable to pay all or a portion of the legal costs in this matter.
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 48/17
In the matter between:
SOUTH AFRICAN SOCIAL SECURITY AGENCY - First Applicant
CHIEF EXECUTIVE OFFICER OF THE
SOUTH AFRICAN SOCIAL SECURITY AGENCY - Second Applicant
and
MINISTER OF SOCIAL DEVELOPMENT - First Respondent
BLACK SASH TRUST - Second Respondent
MINISTER OF FINANCE - Third Respondent
NATIONAL TREASURY - Fourth Respondent
CASH PAYMASTER SERVICES (PTY) LIMITED - Fifth Respondent
INFORMATION REGULATOR - Sixth Respondent
SOUTH AFRICAN POST OFFICE SOC LIMITED - Seventh Respondent
FREEDOM UNDER LAW - Eighth Respondent
and
CORRUPTION WATCH (NPC) RF - First Amicus Curiae
ORDER DATED 23 MARCH 2018
CORAM: Mogoeng CJ, Zondo DCJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J, Khampepe J, Madlanga J, Petse AJ and Theron J.
1. The South African Social Security Agency (SASSA) is granted direct access to bring this application.
2. It is declared that, for the period of six months from 1 April 2018, SASSA and Cash Paymaster Services (Pty) Limited (CPS) are under a constitutional obligation to ensure payment of social grants to beneficiaries who are paid in cash.
3. The declaration of invalidity of the contract between SASSA and CPS, in relation to cash payment of social grants to beneficiaries who are paid in cash, is further suspended for a six month period from 1 April 2018.
4. SASSA and CPS must ensure that for the period of six months from 1 April 2018 payment of social grants is made to beneficiaries who are paid in cash on the same terms and conditions as those in the current contract between them.
4.1 CPS may in writing request National Treasury during the six month period to investigate and make a recommendation regarding the price to be paid for the services it is to render in terms of paragraph 4 of this order.
4.2 National Treasury must file a report with this Court within 21 days of receipt of the request setting out its recommendation.
4.3 Within 30 days of the completion of the period of the contract, CPS must file with this Court an audited statement of the expenses incurred, the income received and the net profit earned under the contract.
4.4 SASSA must immediately thereafter obtain an independent audited verification of the details provided by CPS under paragraph 4.3.
4.5 The audited verification must be approved by National Treasury and filed by SASSA with this Court within 60 days of the completion of the contract.
4.6 CPS must permit the auditors appointed by SASSA to have unfettered access to its financial information for this purpose.
5. The Minister and SASSA must file reports on the implementation of the order at the end of April and each subsequent month until the end of August 2018.
6. If there is any material change in respect of any matter contained in a report contemplated in paragraph 5, the Minister and SASSA must immediately report on affidavit to this Court and explain the reasons for, and, consequences of, the change.
7. SASSA must ensure that the payment method it determines:
7.1 contains adequate safeguards to ensure that the personal data of beneficiaries obtained in the payment process remains private and may not be used for any purpose other than payment of the grants or any purpose sanctioned by the Minister in terms of section 20(3) and (4) of the Social Assistance Act; and
7.2 precludes a contracting party from inviting beneficiaries to “opt in” to the sharing of confidential information for the marketing of goods and services.
8. The Panel of Experts appointed by this Court, shall:
8.1 evaluate the implementation of cash payment of social grants during the six month period;
8.2 evaluate the steps proposed or taken by SASSA for any competitive bidding process or any other processes aimed at the appointment of a new contractor or contractors for the cash payment of social grants by SASSA in terms of section 4(2)(a) of the South African Social Security Agency Act 9 of 2004;
8.3 evaluate the steps proposed or taken by SASSA aimed at SASSA itself administering and paying the grants in the future; and
8.4 file reports on affidavit with this Court by 15 May 2018 and by the 15th of every subsequent month until 15 September 2018, for the 6 month period commencing 1 April 2018, setting out the steps they have taken to evaluate the matters referred to in paragraphs 8.1 to 8.3, the results of their evaluations and any recommendations they consider necessary.
9. The former Minister of Social Development Ms Bathabile Dlamini and the acting Chief Executive Officer of SASSA, Ms Pearl Bhengu, are hereby ordered to show cause by way of affidavits why:
a) They should not be joined in these proceedings in their personal capacities; and
b) They should not be held personally liable to pay costs or any portion thereof.
9.1 The affidavits referred to in paragraph 9 must be filed by 16 April 2018;
9.2 Should any party wish to file any affidavit in response, it must do so by 25 April 2018;
9.3 Should Ms Bathabile Dlamini and Ms Pearl Bhengu desire to file further affidavits in response, they must do so by 30 April 2018.
10. Pending the finalisation of this matter, costs are reserved.
MR KGWADI MAKGAKGA
REGISTRAR
CONSTITUTIONAL COURT
Source: www.saflii.org
