(b) SASSA’s duty to investigate
Corruption Watch made submissions on the duty of state organs to investigate, independently and proactively, any possible irregularities in the procurement process.107 SASSA accepted that it had that obligation, but asserted that it had done all it could in that regard. It is not possible or prudent for us to assess and pronounce on this collateral issue, effectively as a court of first instance.
The national system for the payment of social grants has been in operation for some 20 months now. SASSA and Cash Paymaster assert that it is running smoothly and efficiently and that setting the tender aside would cause great disruption. The Centre for Child Law108 made submissions in relation to the appropriate remedy in order to protect the rights of child grant beneficiaries. Part of the submissions dealt with the constitutional obligation that Cash Paymaster may have to continue with the current system even if the tender award is set aside, until a new system is in place. These considerations raise difficult factual and legal issues. The information currently before us is outdated and inadequate. It would be inappropriate to make a decision on a just and equitable remedy in the absence of further information and argument on these issues. Our order will thus contain directions requiring further submissions and a hearing on the issue of a just and equitable remedy before a final decision is made.
Whatever remedy eventually follows, AllPay has been substantially successful in having the award of the tender declared invalid. It is entitled to costs.
The following order is made:
1. Leave to appeal is granted.
2. The appeal succeeds and the order of the Supreme Court of Appeal is set aside.
3. It is declared that the award of the tender to Cash Paymaster (the third respondent) to provide services for payment of social grants over a period of five years for all nine provinces is constitutionally invalid.
4. The declaration of invalidity is suspended pending determination of a just and equitable remedy.
5. The parties and the amici curiae are directed to furnish factual information on affidavit, as well as further written submissions, on the following aspects:
5.1 The time and steps necessary, and the costs likely to be incurred, in the initiation and completion of a new tender process for a national social grant payment system.
5.2 The time and steps necessary, and the costs likely to be incurred, in the implementation of a new system after the tender process is completed.
5.3 The just and equitable arrangements that should be made for the continued operation of the payment of social grants until a new system is implemented.
5.4 Cost implications for:
5.4.1 the third respondent if a new tender process is ordered and implemented, and how these costs could be ameliorated or offset; and
5.4.2 the state if a new tender process is ordered and implemented, and how these costs could be ameliorated.
5.5 What would be in the public interest when determining a just and equitable remedy.
5.6 Data and statistics on the implementation of the tender to date.
5.7 Whether the third respondent is under a public duty or is constitutionally or otherwise obliged to assist in the transitional arrangements.
5.8 Whether there is any other remedy available to the applicant to protect or enforce its private interests in the event that a new tender process is not ordered.
5.9 Any other information considered relevant.
6. The parties and the amici must comply with the directions in paragraph 5 above by not later than Thursday, 30 January 2014.
7. The matter is set down for further hearing on Tuesday, 11 February 2014.
8. The grant of a just and equitable remedy is reserved pending the further hearing on Tuesday, 11 February 2014.
9. The first, second and third respondents are ordered to pay the applicants’ costs, including the costs of three counsel, in the High Court, the Supreme Court of Appeal and in this Court.
For the Applicants:
For the First and Second Respondents:
For the Third Respondent:
For the First Amicus Curiae:
For the Second Amicus Curiae:
Advocate G Marcus SC, Advocate D Unterhalter SC, Advocate M Du Plessis, Advocate C Steinberg and Advocate A Coutsoudis instructed by Nortons Inc.
Advocate S Cilliers SC, Advocate M Mostert and Advocate A Higgs instructed by the State Attorney.
Advocate T Beckerling SC, Advocate R Strydom SC, Advocate N Ferreira and Advocate J Bleazard instructed by Smit Sewgoolam Inc.
Advocate S Budlender, Advocate M Townsend and Advocate L Kelly instructed by Van Hulsteyns Attorneys.
Advocate T Ngcukaitobi and Advocate M Bishop instructed by the Legal Resources Centre.