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The Constitutional Court on Tuesday handed down another judgment in the case between AllPay Consolidated Investment Holdings and the South African Social Security Agency (Sassa).
The judgment was for an application for the review of a request for proposals (RFP), issued in respect of a public procurement tender, worth R10-billion, for the payment of social grants.
Corruption Watch, with the Centre for Child Law and the Black Sash Trust, had contributed to the case as a friend of the court.
In 2013 the Constitutional Court set aside the awarding of a tender by Sassa to Cash Paymaster Services (CPS), having found it to be unlawful. The court, however, did not rule on the appropriate remedy.
Subsequently, in a second decision handed down in 2014, the court declared the contract for the payment of social grants between Sassa and CPS invalid and ordered that the tender process be re-run. The order emphasised that there must be no disruption to the payment of existing social grants to beneficiaries.
The declaration of invalidity of the contract was suspended to give Sassa an opportunity to re-run the tender process and take a decision on whether to award a new contract. This was to be done under the supervision of the Constitutional Court.
Sassa then issued a new request for proposals (RFP) – but CPS approached the court directly seeking an order declaring the new RFP invalid as, it said, the RFP does not comply with the court’s order in the second AllPay decision. CPS sought to have the contested RFP set aside and asked the court to require Sassa to publish a revised RFP.
At the hearing on 19 March 2015, the parties negotiated a draft order on the further conduct of the matter, which was then presented to the court. The first four paragraphs of the draft order, to which all the parties agreed, set out a timetable and process for completion of the new tender process. An order was made in terms of paragraphs one to four, but the court reserved judgment on the fifth paragraph of the order, the inclusion of which was opposed by CPS.
In terms of the order Sassa will circulate the RFP to all the parties, the court and the prospective bidders by 17 April 2015. The cut-off date for bid submission is 17 May 2015; and Sassa will award the new tender by 15 October 2015.
Court will continue to supervise
The fifth paragraph provided that the parties may only approach the Constitutional Court for further relief if it is in the interests of the beneficiaries. The argument in favour of the inclusion of this paragraph was grounded in the need for swift finalisation of the tender process in the interests of beneficiaries.
There was a concern expressed by all parties, except CPS, that any further delay benefitted CPS financially. The court found that this was addressed by the parts of the order already agreed to. In addition, CPS can only pursue its remaining objections in limited circumstances. Whether it takes further action or not, the finalisation of the process will not be significantly affected.
The court further confirmed that it retained supervisory jurisdiction in terms of its order in the second AllPay decision.
Download the full judgment here.
