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The country’s top 11 judges will be asked by Social Development Minister Bathabile Dlamini to do the unthinkable: essentially tear apart their own judgement.
On 29 November 2013, the Constitutional Court declared invalid a South African Social Security Agency (SASSA) contract awarded to Cash Paymaster Services to distribute monthly social grants. The contract had been awarded on 17 January 2012.
Mindful of the practical implications of the order and the possibility that a new system might negatively affect the distribution of grants, the Constitutional Court reserved the granting of invalidity of the contract. But it called for a hearing on the practical implementation of the judgement. The Constitutional Court was thoroughly reasonable.
During the hearing in early 2014, SASSA made a submission to the Constitutional Court. It was on the basis of this submission and other factors that the Constitutional Court suspended the invalidity of Cash Paymaster Services contract and gave SASSA until the end of March 2017 to fix the irregularity. This was to ensure that recipients of social grants, the poorest of the poor, are not affected. Once again, the Constitutional Court was humane and reasonable, mindful of the socio-economic rights of the poor.
This tender had been in dispute since it was awarded. The high court, faced with the prospect of inconveniencing the poor, had made an unusual judgment: It declared the contract invalid but refused to set it aside because such a move would disadvantage grant recipients.
AllPay, the losing bidder, appealed to the Supreme Court of Appeal, which set aside the high court judgment on the basis that the “irregularities were inconsequential” and that tender processes need not always be “perfect”. It was this judgement that was under consideration by the Constitutional Court.
At the heart of the successful appeal by AllPay was the fact that black economic empowerment credentials of bidders were not taken into account during the adjudication. The Constitutional Court in its judgement made it very clear that state agencies must follow tender processes. It also affirmed the importance of black economic empowerment in transforming the economy.
Given the government’s chorus about radical economic transformation, it is puzzling that Minister Bathabile Dlamini would want the Constitutional Court to extend a contract declared invalid because SASSA had overlooked an important policy aimed at the economic empowering of black people.
Dlamini’s approach is wrong. For starters, it disrespects and undermines Constitutional Court. After giving a judgement, judges and the public expect nothing but implementation. The Constitutional Court is the highest and last court of instance.
Once it had given the judgement, SASSA should have complied. Dlamini should have dropped everything to make sure that she fulfils her non-negotiable legal obligations. Clearly, Dlamini had other, better things to do instead of focusing on fixing the problem.
Her department was a defendant in the matter that it lost. So, if the court agrees to her application to extend the invalid contact, it would mean the first judgement never existed.
The courts, especially the Constitutional Court, must never countenance attempts that would have the effect of reversing its judgement by stealth and thus undermining the rule of law. Implementation of court judgements must never be optional.
Optional implementation of court judgements would be the beginning of legal uncertainty and could break up the legal system. If such a precedent is set, no one will feel compelled to implement court judgements as the court would have created an incentive for its judgements to be undermined.
It should be remembered that the court suspended the invalidity not because it was a comfortable thing to do. As it pointed out in the judgement, the case presented “very difficult factual and legal issues”. The court suspended the invalidity to avoid prejudicing child support grant recipients.
Dlamini is blackmailing the Constitutional Court by using a similar argument. By invoking the interest of grant recipients, claiming they will be affected negatively if the Cash Paymaster Services contract is terminated, Dlamini is using them as a human shield to justify continuous breaking of the law.
After the Constitutional Court judgement, SASSA had invited bids, but claimed that none of the bidders had the capacity to distribute the grants. It didn’t appoint. This doesn’t make sense. It creates a perception that Cash Paymaster Services is the only one capable of distributing social grants.
Are South African financial institutions that dumb? The decision not to implement the court judgement is bizarre. The implications of the failure go beyond Dlamini, her department and SASSA.
To maintain its integrity the court must open a mini-inquiry before taking a decision. It should invite Parliament, President Jacob Zuma and Treasury to make submissions confirming steps taken or not, to assist Dlamini to implement the court judgement. They must all explain and substantiate with evidence how the attempts failed or maybe were ignored by Dlamini, as some media reports suggests.
Treasury has proposed that commercial banks and Post Bank be used to distribute the grants, but Dlamini rejected the idea saying it would result in high bank charges and fraud. So, she would rather insist on breaking the law or asking the court to validate the continuous breaking of the law.
The court must not solely rely on her submission. She can’t be allowed to convert a legal loss to a victory. She should not be allowed to be a minister, a defendant, a judge and an executor of irregularity.
The court should not renegotiate its judgement with her after the fact. Such a scenario would severely dent the credibility of the justice system. It would endanger the constitutional project. Ours is already strained. It shouldn’t be subjected to more stress.
- Mkhabela is a fellow at the Centre for the Study of Governance Innovation (GovInn) at the University of Pretoria.
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