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  • Minister of Social Development and SASSA's Heads of Argument

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    The Minister of Social Development, Bathabile Dlamini, and the Social Security Agency (SASSA) filed heads of argument in the Constitutional Court on 13 March 2017. This is in relation to an application by Black Sash on 15 March, for the court to intervene in the social grants crisis.

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    The Minister of Social Development, Bathabile Dlamini, and the Social Security Agency (SASSA) filed heads of argument in the Constitutional Court on 13 March 2017. This is in relation to an application by Black Sash on 15 March, for the court to intervene in the social grants crisis.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    24 views22 pages

    Minister of Social Development and SASSA's Heads of Argument

    Uploaded by

    AndreavanWyk
    The Minister of Social Development, Bathabile Dlamini, and the Social Security Agency (SASSA) filed heads of argument in the Constitutional Court on 13 March 2017. This is in relation to an application by Black Sash on 15 March, for the court to intervene in the social grants crisis.

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    © All Rights Reserved
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    CONSTITUTIONAL COURT OF SOUTH AFRICA Inthe application: ‘THE BLACK SASH TRUST ‘and FREEDOM UNDER LAW NPC ‘and ‘THE MINISTER OF SOCIAL DEVELOPMENT CHIEF EXECUTIVE OFFVER OF THE SOUTH AFRICAN SOCIAL SECURITY AGENCY ‘SOUTH AFRICAN SOCIAL SECURITY AGENCY ‘THE MINISTER OF FINANCE, NATIONAL TREASURY CASH PAYMASTER SERVICES (PTY) LTD THE INFORMATION REGULATOR FILING SHEET PRESENTED HEREWITH fr service and fling 1 2 First, Second and Third Respondents’ Heads of Authors. Fst, Second and Thid Respondents’ Draft Order. CASE NO. CCTASI17 Applicant ‘Applicant for Intervention First Respondent ‘Second Respondent Third Respondent Fourth Respondent Fifth Respondent Sith Respondent Seventh Respondent ‘Argument including the lst of DATED at SANDTON on the the 129 day of MARCH 2047, ‘TIM SUKAZIING Fist o Third Respondents’ Atomeys ‘Sandton Close 2, Block A 2" Floor Cov: 5* & Norwich Close, Sandton P.0. Box 785219, Sandton, 2148 Tol: O11 911 4100 Fax 011 789 96376 emai jsuka7i@imsukeiine.co 2a kmashiaomimsukazine.co.za 10: REGISTRAR OF THE ABOVE HONOURABLE COURT, [BRAAMFONTEIN AND TO: CENTRE FOR APPLIED LEGAL STUDIES. SERVICE BY Attorney for he Applicant EMA ‘oor, Dd du Plesss Building West Campus, University ofthe Witwatersrand 41Jan Smuts Avenue Johannesburg Tek 011717 8608 Fax: 011 717 1702 mal: Nomonse Nvembet@wits. 2c 28 Ret; BHRYOOE2INN AND TO: NORTONS INC SERVICE BY ‘Applicant forIntervention: Freedom Under law eat 135 Daisy Steet, Sandton AND To: AND TO: Tel: +27(0) 11666 7580 Fac 127(0) 88 600 8820 Ret ANorton/A Roets mat: anthonu@nortonsine.com: anton@nortonsine.com STATE ATTORNEY, JOHANNESBURG Attorney or Fourth & Fifth Respondents: Minister of Finance and National Treasury 128 Floor Nor State Building 96 Market Street, cn Kruis Stet Johannesburg 2001 (C10: Vijay Dharm matt wdhulan@lustice govza Altention: Retecca Tee malt minceg@iveasury gov; Rebecca tee@trensury.govza Mobile: 083 564 8539 ‘SMIT SEWGOOLAM ING ‘Attomeys forthe Sixth Respondent: CPS 12 Avorwold Road (Car Jan Smuts Avenue Saxomwold 2192 ‘Tol:011 646 0006 Fox: 011 646 0018 ‘Aitention:Tiaan Jonker mal iaan@smisew co 28 ‘Atention: Sacha Catazorio Emalt sacha@smitsew co.2a SERVICE BY EMail, SERVICE BY E-Mail AND To: THE INFORMATION REGULATOR (SOUTH SERVICE BY fon E-mail Seventh Respondent 21*Floor, SALU Building 316 Thabo Sehume Strest Pretoria 901 ‘Atenton: Mmamoroke Mphelo Tob 012408 4818 Fax: 088 500 3351 Ema: foreg@iustice.covz— INTHE CONSTITUTIONAL COURT OF SOUTH AFRICA Case No: CCT 48/17 In the application of FREEDOM UNDER LAW NPC Applicant ‘To intervene as an applicant inthe matter between: ‘THE BLACK SASH TRUST Applicant and ‘THE MINISTER OF SOCIAL DEVELOPMENT AND 6 OTHERS Respondents FIRST TO THIRD RESPONDENTS’ HEADS OF ARGUMENT 1. These submissions are made on behalf of the first, second and third respondents in an application for leave to intervene as amicus curiae by Freedom Under Law NPC (FUL! in the main application insiuted by the Black Sash Trust the Black Sesh"). 2, ‘The first to third espondents do not oppose the relief sought by the Black Sash. (On 12 March 2017 the frst to third respondents detivered an affidavit deposed to by the acting Chief Executive Office ofthe third respondent in which they stout their opposition to certain of the eubotantive relief nought by FUL. (“he 12 March 2017 afdavit), Ding the course of today the Fest an hid respondents willbe delivering & second affidavit deposed to by Dr Wiseman Magasela snd several conFimatory aifavits in response tothe dieetion ofthe above Honourable Cour in case number CCT 48/13 dated $March 2017 (the ditetions™ and “the |1SMarch 2017 lidvit). ‘These submissions make reference t0 both affidavits ‘The frst to third respondents submit to the jurisdiction and scrutiny of the Court in all mates arising fom and relevant othe arrangements necessary for the payment of social grants beyond 31 March 2017 ‘As appears from the affidavit of Dr Magasela the firs and thied respondents propose that an erder be made along the lines of the draft order which was attached to that affidavit and which is also attached to these submissions marked “X" (‘the daft order “The daft order provides for the Cours jurisdiction to be resumed and ‘combines the rele sought by the Black Sash Trust and those spect of the relief soht by FUL to which the thin respondent SASSA") isnot apposed also provides tht the Public Protetor and the Auditor-General, alternatively 8 person(s) oF instations directed by the Court, jointly: monitor the terms 1nd implementation of the interim contract which SASSA intends to nogtite withthe sixth respondent *CPS") «competitive bidding proces aimed tthe sppointnent by SASSA of « new contractor or contractors forthe payment of| rants; and any steps taken by SASSA aimed at enabling SASSA itsel? {o administer and pay the grants in te future. 7. Tuming fo the relief sought by FUL, the first to third respondents oppose the {ollowing aspects: 71. The relief sought in paragraph 4.1 of the noice of application dated 6 March 2017, onthe basis that i too broad; 72. ‘The reli sought in paragraph 42, on the basis tha it would ininge on the doctrine of the separation of powers and would force the Court to perform a function which it is not practically capable of performing; and 73, The elie sought in paragraph 4.3, though only on the basis that the time periods mentioned there should be 60 days (in line with what this Court ordered in paragraphs 4.2 and 4.3 of its order of 17 April 2014) and not shorter. RELEVANTFACTS 8 ‘The facts pertinent to this application have been canvassed in the afidavis delivered to this Court. These facts are not repeated here beyond «brie smopsis of certain events ater the follow-up report delivered by SASSA to {his Cout on 3 Mare 2017 9, Betwoen Wednesday 1 March and Friday 3 March 2017, SASSA held negotiations with the current serve provider, CPS. “Those present agreed in prineipleon the key'clemente of a new contact for an interim period between SASSA and CPS, which were subject to approval by the first respondent ("the Minister”) and the National Treasury, (On Wedsesday $ Maseh 2017 @ Ministerial Task Team MIT") was appointed to assist with ensuring the uninterrupted payment af soci grants from 1 April 2017 and to averse the response tothe dictions ised by the Chie Bustce that dy in case 4/2013. In addition 10 the Minster, comprises Ministers J Radebe (Chairperson, § Cwel, M Giga, P Gordhan, M Malobo and N Pander: A it fist meeting on Thursday 9 March 2017, afer considering input fom, amongst others the Acting Chief State Law Adviser, the MTT decided thatthe cent negotitens with CPS should be terminated and fresh negotiations should sta afresh only ifand when the National Treasury eave its prior writen approval for a deviation from the requirement that SASSA invite competiive bids at required by paragraph 85 of National Treasury Instruction 3. of| 20160017" 1 was further decided that steps be taken forthwith by SASSA to seek such approval, and thit the process be overscen by senior counsel (Ady. Wim ‘Trengove SC) to ensure the process is legally sound, 'SASSA’s legal team prepared a request for @ deviation for consideration and approval by Adv. Trengove SC. The 1 March 2017 aide Armen "WM (On 11 March 2017 Adv. Trongove SC furnished the MIT witha memorandum in which he concluded tha it would be appropriate forthe National Treasury to allow SASSA to deviate provided that it conirats with CPS for no longer than the time i is reasonably requires to appoint « new contractor by a competitive bidaing process ‘Accordingly the Minster directed the aeting CEO in terms of section 6(1) of the SASSA Act 9 of 2004 to make the equest tothe National Treasury in terms of paragraph 8.5 of National Treasury Instruction 3 of 2016/2017, TIN PARAGRAPH 4.1 OF FUL'S NOTICI N ‘We respectfully submit thatthe range of documents specified in this paragraph js o0 wide ‘An oder in such wide terms a this uneture snot ruil and may fut the Unintended eonsequence of multiple people associated with the Department, SASSA, CPS andor the National Tresury being in contempt of the order if they omit to make availble for filing eg. & WhatsApp message which is related in some way or another to the negotiation of the contract. “The frst o third respondents propose hosever that an order be prt inline With the rele sought by the Black Sash Trust in terms of which SASSA, the Miniter, CPS and the Notional Treasury are diccted withia 20 days of the ‘entering into of he interim contrat, to file with the Cour « eopy of the contract and any cafts thereof exchanged by the parties to the contract during ‘he negotiations leading to the conclusion of the contract (paragraph 4 of the drat orden), 20. We submit that FUL and anyone else who, in future, may wish to have access to the wide range of documents refered to in this paragraph, have adequate remedies under the Promotion of Aecess to Information Aet 2 of 2000 andor Rule 29 ofthe Rules of this Court (cad with Uniform Rule 35(13)), RELIEF SOUGHT IN PARAGRAPH 4.2 OF FUL'S NOTICE OF APPLICATION | 21, The frst to third respondents oppose the relief sought in this paragraph in its entry, 22, The relief whichis sought by the Black Sash and FUL is relief in terms of section 172(1() of the Constittion 23, This Court has bold that the non-applcability of seetion 172(1)(a) of the ‘Constitution is net an impediment to crafting « remedy envisaged by section 17200) and that “(a just and equitable order may be madle even in tastances where the outcome of a consttutonal dlspue does not hinge on constitutional Imalidity of legisation or conduct.” 24, —Iefollows from this that, if and to the extent the relief now sought by the Back Sash Trust and FUL (o which the first fo third respondents have now consented) is nota continuation ofthe relief granted by the Court on 17 Apail 2014, the Court may grant just and equitable relief. In other words, our clients Mitr of Sey and Secu Vn Duy Merwe 2011 (8) SA 6 (CC) pura 59 coop thatthe Court may concer itself with the slope SASSA intends to take in relation ta the conclusion ofa interim contac, without there having been any pronouncemest as regards the vit ofthat contact (which has not been concluded yet in any event). That isso particularly in a case sueh as the present where the Court has previously exercised a supervisory role over SASSA and the payment of social grans through its agent CPS andthe basis on which the Coutelingushed its supervisory jradicton ~ namely, SASSA ‘tse would take ver the payment fanetion from CPS on 1 Apeil 2014 — has not materialise, 25, Its respectfully submitted however that justice and equity do not require the ‘Court to determine, in advance, the terms (regarding price and duration) on Which SASSA and CPS may contract with one another 26, Doing that would fall ouside the parameters of judicial authority contemplated by the separation of powers’. This principle was considered inthe second of the Court's judgments in the application which preceded the present proceedings (‘Alipay 2"), when the Court observed that the term of a procurement contact would ordinarily be within the powers of the executives, ¥ Economic Feeon Fighten whe Spate fhe Matonal Asem te Democratic Alan» De Sper the Nato dscnbly 2016 (8) CLR 61 (CC); 20163) SA SBO(CC) a pars 891093 “Alp Console Imvestnent Hektings (Py Lada Othre » Chi Bective Ofer, South “Apia Seca Secunty Agency and Others 2014 (0) SA 179 (CC) CAUPay2) paca 27. tis not normally th function of Court to make @ conta or the key tems of ‘contact forthe parties, even if one of them is an organ of state’ 28. This Court has ao observed tata cout will often simply lack the facts and the practical and technical ability todo so. Thus one ofthe requirements which ‘must be met before court shoul substitute its own decision fora decision set aside on review ithat the court must consider itself o be in as good a position asthe administrator t0 do so, A court will nt be in tht position where court nt information before i. Not all ofthe facts and does not have all he pet considerations relevant to concluding a contractual arangement on reasonable {terms are presently before this Court In fic, very many of them are not 29, What is more, the outcome of the contractual negotiations is not a Foregone conclusion. ‘The various permutation for any contract that may be concluded are polycentric in ature”. The new negotiations with CPS, if authorized by the National Treasury, lke the negot ions eater this mont, are likely to be very ‘complex because che subject-matter of any eventual agreement will depend on 44 wide range of variables and interactions between them and the parties’ respective constraints and needs * ee fo example, Tencon Contraction (Po) Limited nda Development Conportion of ‘South es Lima and dnather 2015 (8) SA248 (CC) ("Tene At paragraph 75 he Cot eld hth thre mayb inerpaybeeen publi and privat ete dtnton mast not he tolled. Oranariy, an ssw comet rice ajusno dha subject to negotaton fe the proctremen process as tak place ont ol que wihnthe domain privat la Ts abject arnay corto bee enterprising pare "Teneo paras 421048 * Bao Star Fishing (Py) Lid Mite of Environmental Air an Other 2004 (8) SA 490 (CC) art 20, 31 2, 2 ‘We pause hte to point out tha wheres the Court consdred in Alpay’ 2 tha it ‘would be just and equitable to specify the term of the then envisaged fresh tender for five years, that rele flowed rom the setting side ofthe unlawl tender process. Without that stipulation, the reli granted would not have been effective because of the long period required by a tenderer to recoup the iii ‘outlay. In the present instance, an effetive remedy is not dependent on the Court stipulating the terms ofthe interim contrac, but rather on the checks and balances which i ill put into place in relation tothe contractual process, The «draft order makesample provision for such checks and balances ‘The relief sought i also premature. ‘The National Tessury must frst grant approval for the deviation that SASSA will be seeking in order to negotiate directly with CPS, The new negotiations With CPS may or may not lead to @ contract, the contents of which must be ‘considered as a wiole “The validity of any new process of negotiation with CPS and of any contract concladed wih can be determined once the contract has been concluded. I in any later prootedings in which the validity ofthat press or contact are assailed, this Court finds grounds fr interference, and in particular grounds to alter the terms ofthe contact nthe manner now suggested by FUL, itmay’ do soa that juncture RELIEF $0UGI IN 4 34. The frst to third respondents have no in-principle objection to the granting ofthe reli sought in paragraphs 4.3 and 44 of FUL's notice of appli 35.IC is submited, however, thatthe periods specified fr compliance should be 60 ays her than 30 days and 40 days respectively. ‘The latter peviods may well be to short forthe anitors to perform their functions and the 60 day period would ‘be more practical and reasonable’ AM BREITENBACH Gapu torr DNYATHT Chambers Cape Town 13 March 2017 Se paragraph of he le dred in Pay 10 AUTUORE Minister of Safety and Security v Van Der Merwe 2011 (S)A 61 (CC) para 59 Economie Freedow Fighters v the Speaker ofthe National Assembly: the Democrat Alliance v The Speaker ofthe National Assembly 2016 (5) BCL, {618 (CC); 2016 (3) SA $80 (CC) paras 89 10 93 Alipay Consolidated Investment Holdings (Pq) Lid and Others v Chief Executive Officer, South African Social Seewity Agency and Others 2014 (4) SA 179 (CC) (“AlPay2") para 44 ‘Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Line and Another 2015 (5) SA 245 (CC) paras 42, 48 and 75 5. Bato Star Fishing (Pty) Ly Minister of Environmental Affairs and (Others 2004 (4) SA 490 (CC) para 48 “

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