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South African Social Security Agency and Another v Minister of Social Development and Others (CCT48/17) [2018] ZACC 26

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South African Social Security Agency and Another v Minister of Social Development and Others (CCT48/17) [2018] ZACC 26

31st August 2018

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[1]  On 23 March 2018 this Court issued an order and indicated that reasons would follow.  Here are the reasons which also include the determination of costs that were reserved.  The order in question was formulated in these terms:

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“1. The South African Social Security Agency (SASSA) is granted direct access to bring this application.

2. It is declared that, for the period of six months from 1 April 2018, SASSA and Cash Paymaster Services (Pty) Limited (CPS) are under a constitutional obligation to ensure payment of social grants to beneficiaries who are paid in cash.

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3. The declaration of invalidity of the contract between SASSA and CPS, in relation to cash payment of social grants to beneficiaries who are paid in cash, is further suspended for a six-month period from 1 April 2018.

4. SASSA and CPS must ensure that for the period of six months from 1 April 2018 payment of social grants is made to beneficiaries who are paid in cash on the same terms and conditions as those in the current contract between them.

4.1 CPS may in writing request National Treasury during the six month period to investigate and make a recommendation regarding the price to be paid for the services it is to render in terms of paragraph 4 of this order.

4.2 National Treasury must file a report with this Court within 21 days of receipt of the request setting out its recommendation.

4.3 Within 30 days of the completion of the period of the contract, CPS must file with this Court an audited statement of the expenses incurred, the income received and the net profit earned under the contract.

4.4 SASSA must immediately thereafter obtain an independent audited verification of the details provided by CPS under paragraph 4.3.

4.5 The audited verification must be approved by National Treasury and filed by SASSA with this Court within 60 days of the completion of the contract.

4.6 CPS must permit the auditors appointed by SASSA to have unfettered access to its financial information for this purpose.

5. The Minister and SASSA must file reports on the implementation of the order at the end of April and each subsequent month until the end of August 2018.

6. If there is any material change in respect of any matter contained in a report contemplated in paragraph 5, the Minister and SASSA must immediately report on affidavit to this Court and explain the reasons for, and, consequences of, the change.

7. SASSA must ensure that the payment method it determines:

7.1 contains adequate safeguards to ensure that the personal data of beneficiaries obtained in the payment process remains private and may not be used for any purpose other than payment of the grants or any purpose sanctioned by the Minister in terms of section 20(3) and (4) of the Social Assistance Act; and

7.2 precludes a contracting party from inviting beneficiaries to ‘opt in’ to the sharing of confidential information for the marketing of goods and services.

8. The Panel of Experts appointed by this Court, shall:

8.1 evaluate the implementation of cash payment of social grants during the six-month period;

8.2 evaluate the steps proposed or taken by SASSA for any competitive bidding process or any other processes aimed at the appointment of a new contractor or contractors for the cash payment of social grants by SASSA in terms of section 4(2)(a) of the South African Social Security Agency Act 9 of 2004;

8.3 evaluate the steps proposed or taken by SASSA aimed at SASSA itself administering and paying the grants in the future; and

8.4 file reports on affidavit with this Court by 15 May 2018 and by   the 15th of every subsequent month until 15 September 2018, for the 6-month period commencing 1 April 2018, setting out the steps they have taken to evaluate the matters referred to in paragraphs 8.1 to 8.3, the results of their evaluations and any recommendations they consider necessary.

9. The former Minister of Social Development Ms Bathabile Dlamini and the acting Chief Executive Officer of SASSA, Ms Pearl Bhengu, are hereby ordered to show cause by way of affidavits why:

a) They should not be joined in these proceedings in their personal capacities; and

b) They should not be held personally liable to pay costs or any portion thereof.

9.1 The affidavits referred to in paragraph 9 must be filed by 16 April 2018;

9.2 Should any party wish to file any affidavit in response, it must do so by 25 April 2018;

9.3 Should Ms Bathabile Dlamini and Ms Pearl Bhengu desire to file further affidavits in response, they must do so by 30 April 2018.

10. Pending the finalisation of this matter, costs are reserved.”

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