Six things to look out for in ConCourt’s Sassa ruling

Here are six things to look out for in the Constitutional Court’s judgment in the Sassa case to be delivered at 10am on Friday:

• Another tongue lashing of Minister Bathabile Dlamini‚ which is likely as Chief Justice Mogoeng Mogoeng expressed his anger during Wednesday’s hearing . Mogoeng was furious at the lack of explanation as to why Dlamini allowed the situation to get to the point where there was no company in a position to legally take over the payment of social grants.

“How does it happen? How do you get to this level of what can be characterised as absolute incompetence?” he asked.

Even advocate Geoff Budlender SC‚ for rights group Black Sash‚ noted there was not a hint of apology for Dlamini’s inaction in her court papers‚ nor details of what she knew or why she did what she did.

“One seeks in vain answers by the minister of what she did‚ why she did it‚ what she knew … Her affidavit is perfunctory on the things that matter‚” he said.

• Look out for a finding or comment on whether Dlamini breached the constitution‚ as claimed by Budlender.

• The court may have something to say about the bully-like behaviour of Cash Paymaster Services (CPS) – the company that currently distributes social grants – if it accepts an argument put forward by Freedom Under Law.

David Unterhalter SC showed how CPS used its monopoly power to try to force a contract with Sassa on its own terms. “A party that lacks such negotiating power would never make such a threat‚” he said.

He detailed letters from CPS to Sassa demanding a contract from 28 December within two days or there could be “chaos” around grant payments. This letter was sent a week between Christmas and New Year‚ when many companies were on holiday. CPS sent this “imminent threat”‚ saying they could not guarantee the smooth payment of grants only two days before they demanded a huge fee increase for providing the service‚ from R16.44 a beneficiary to between R22 and R25 per month.

• The length of a potential extended contract between CPS and Sassa‚ as the court may extend the contract or order Sassa and CPS to agree on a new one.
Black Sash asked for a six-month contract. Lobby group Freedom under Law asked for a 12-month contract to allow enough time for a new tender process to be rolled out for the payment of grants.
CPS asked for an 18-month contract extension‚ much to the ire of Mogoeng.

• Whether Sassa will be ordered to take over the payment of grants in the future.
This is something Mogoeng felt strongly about‚ saying that it was Sassa’s duty to pay grants and it could be done with the right resources. This‚ he said‚ would save billions‚ which could arguably go to recipients.

• A ruling confirming that CPS can’t use grant beneficiaries as a marketing database to sell loans and funeral polices to. CPS agreed not to use beneficiaries for this purpose in court.

But as Budlender pointed out: “It may be that horse has bolted.”

CPS and its affiliates already have the details of 11 million beneficiaries to whom they can offer loans and funeral policies‚ which were even deducted off child grants.

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