SASSA has been mired in messy litigation in the Constitutional Court for years and each time has gotten away by the skin of its teeth, to live another day and fight another costly and unnecessary battle that has coalesced around its continued use of Cash Paymaster Services (CPS). This, despite the Court ruling the contract invalid and pressing for the appointment of a new service provider, with a long-term desire for SASSA to assume grant management functions internally. This being its raison d’être since its inception as the government agency responsible for managing social grants.

With four months to go before the Constitutional Court’s deadline of 31 March 2018 for SASSA to transfer distribution of grants from CPS to a different service provider/s, the situation has reached crisis point. This has forced the Constitutional Court to take the unprecedented step of issuing a directive to SASSA and by implication its principal, Minister Bathabile Dlamini, to issue the Court with precise and detailed reports covering the following matters, “definite roles and responsibilities, precise timelines, dependencies, desired outcome and risk mitigation”. The first report is due on 8 December 2017, with monthly reports due thereafter.

The decision of the Court to oversee the nuts and bolts of a seamless transfer of the grant distribution contract from CPS to another service provider/s, has raised concerns. Not least on the part of legal scholars, who raise the danger of a clash between administrative law and political acts of recklessness, including the continued tenure of a Minister who has clearly and demonstrably shown her lack of competence and will to effect the judgment of the highest Court in the land. SASSA and the Minister have, despite an unending round of meetings between SCOPA and the Portfolio Committee on Social Development, largely ignored legislative oversight, thrusting the Parliamentary Committees and subsequently Treasury into playing a game of cat and mouse, with no discernible outcome to date.

A court-appointed Expert Panel (in early 2017) has also all but thrown up its hands in despair and has accused SASSA and the Minister of denying it access to information, including crucial documents relating to strategy, feasibility, budgets and structure. With SASSA’s track record to date, would it be appropriate to wonder if these documents exist at all? The Expert Panel was unremitting in its criticism of SASSA and reported to the Court that, “there is virtually no likelihood of SASSA appointing service provider/s in time to allow the issuance of new SASSA cards and the implementation of a new beneficiary enrolment system and cash distribution pay points by 1 April 2018”.

This is a serious indictment against an Agency vested with distributing a vital lifeline to the poorest of the poor, all of 18 million spread across the country. In its most recent pronouncement in mid-November, the Court ordered SASSA to “forthwith and fully comply with any present or future request by the panel of experts for access to information held by SASSA”, including detail of all entities involved in the grants payment process.

The problems with SASSA and the Minister are clearly political, with a tangling of a hefty commercial element in respect of the pricey but invalid contract awarded to CPS and its principal Net1. The Court has pronounced on this invalid contract and was equally searing in its criticism of the Minister. This latter issue will be amplified in January 2018, when a section 38 inquiry is set to kick off. The inquiry will determine whether the Minister should be personally liable for legal costs incurred in the series of SASSA debacles. Courts have rarely assigned such blame to individuals, but this is clearly a matter of having to deal with a serial, unaccountable and reckless Minister playing fast and loose with the largest portion of public funds. The proximity of the Minister to the President has been proffered as a reason for her being given carte blanche while the proverbial house burns.

The role of the Court in the SASSA matter is clearly going beyond the remit of judicial oversight and is veering into the realm of administrative oversight, which, under normal circumstances, ought to be resisted. The same can be said in respect of the role of courts in policy-making. However, the matter before the Court has the gravest ramifications for millions if left untended and the principle of administrative law in conflict with political reality is highlighted in this matter, with no alternative but to support the wide berth assigned to the Court to act in the best interest of the poor.

In the current brittle political climate, the oversight by an independent Judiciary is a necessary buffer and is succour to millions who suffer under the yoke of poverty and inequality. An exacerbation of both poverty and inequality in South Africa have grave consequences for stymieing aspirations, economic development and crucially enhancing respect for difference, diversity and commitment to the values of the Constitution.

By Ms Zohra Dawood, Director

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