The Constitutional Court was unequivocal on Wednesday that a crisis threatened welfare grant payments and suggested it could consider a declaratory order to lay the blame on Social Development Minister Bathabile Dlamini.
Chief Justice Mogoeng Mogoeng said Dlamini’s chief mandate was to ensure grants reached the poor and there was no evidence that she had spent proverbial sleepless nights seeking a way of executing it from April, when a compromised contract with Cash Paymaster Services (CPS) expires.
Andrew Breitenbach, appearing for Dlamini and the South African Social Security Agency (Sassa), told the court the minister, an ally of President Jacob Zuma, had conceded that she had been remiss.
Mogoeng responded with visible irritation: “She cannot just say ‘I am remiss’, it is what she is a minister for — to ensure that beneficiaries receive their benefits.
“It is embarrassing enough to have a judgment to say something happened in your department … to not have sleepless nights to make sure it does not happen again, is something none of us can understand.”
Judge Jess Nkabinde asked if there was a reason the court should not issue a declaratory order that an organ of state had failed to do its work, since that was in effect what had brought the parties before the court.
It was hearing an application by the Black Sash Trust for the court to resume its supervisory role over grant payments, to which Freedom Under Law asked to be joined.
David Unterhalter SC, for Freedom Under Law (FUL), argued that the court had leeway to compel CPS to continue to pay grants for an interim period, and to hold that it do so on a no-benefit basis.
It was his submission that the company incurred a constitutional obligation because it had assumed the functions of a state agency, Sassa, which found itself unable to perform them.
But Andrew Cockerill, for CPS, argued that the company needed a new contract, with better terms if it were to continue to provide the service. Mogoeng bluntly asked if he meant more money and Cockerill found himself on a difficult footing when he could not put a figure to the demand.
Cockerell argued that CPS was asking for a consumer price inflation-adjusted figure as it had not charged any increase over the past five years, adding that he would provide the details of the asking figures of CPS at a later stage.
“We have a draft contract [with Sassa] that is not in front of the court. But I would have to consult with my client and get that information before I present it to court,” Cockrell said.
“CPS had no objection to oversight, to providing finances and motivating for what would be reasonable increase in the contract.”
The draft contract was declared void by a ministerial task team at the weekend because it flowed from talks for which Dlamini had needed, but failed to secure, permission from National Treasury as it entailed a deviation from normal procurement rules.
Geoff Budlender, for the Black Sash, dismissed the argument that CPS needed to be paid more as the current fee was effectively a rate for 2012, when the contract was signed.
He said CPS’s bid would, at the time, had factored in inflation forecasts. National Treasury has ventured that CPS’s demands, which have been reported as an increase to at least R22 per grant, bore no relation to inflation forecasts.
The hearing saw a full bench of the court headed by Mogoeng press lawyers for detailed answers as it visibly grasped for a way of filling the void created by Sassa’s inability to take over grant payments from April, as it had assured the court in 2015 it was preparing to do.
Mogoeng became impatient again as Breitenbach proposed the court approve a new contract with CPS for 12 to 18 months until a new tender process could be held.
The chief justice asked why Sassa, with its precise knowledge of the requirements, could not ready itself to carry out its mandate by then. He warned that the scenario proposed by Dlamini’s lawyer risked the present crisis repeating itself.
“Why should that not be pursued as opposed to a tender with the risk that we end up just where we are?
“If it is not an impossibility to require from Sassa to do what is its core business — assuming there is the willpower to do the right thing — why can’t we just rely on Sassa, order Sassa to do what it exists to do?”
The court discharged itself from this super-visionary role in 2015, after Sassa reported that it was well on its way to take over grant payments this year.
CPS CEO Serge Belamant was at court and crassly told reporters that the government had no option but to negotiate a new contract with the company, unless it wanted to use mail pigeons to deliver grants to 17 million beneficiaries next month.
The boast came a day after Finance Minister Pravin Gordhan told MPs National Treasury would do all it could to ensure grants were paid, but had reservations about the company’s ethics.
These included the company’s sharing of details of grant beneficiaries and the possibility that it earned interest off the R11 billion in grant money as it transited through its account every month.
– African News Agency