Professional Documents
Culture Documents
CCT: 48/2017
and
THE MINISTER OF SOCIAL DEVELOPMENT First Respondent
and
FILING SHEET
DOCUMENT TO BE FILED:
TO:
THE REGISTRAR OF THE
CONSTITUTIONAL COURT, CONSTITUTIONAL HILL
BRAAMFONTEIN
AND TO:
CENTRE FOR APPLIED LEGAL STUDIES SERVICE BY E-MAIL
Attorneys for the Applicant
1st Floor, OJ du Plessis Building
West Campus, University of Witwatersrand
1 Jan Smuts Avenue
Johannesburg
Tel : 011 717 8606
Fax: 011 7171702
Attention : Nomonde Nyembe
E-mail: Nomonde.Nyembe@wits.ac.za
Ref: BHR/0062/NN
108
3
AND TO:
TIM SUKAZI INC SERVICE BY E-MAIL
Attorneys for the First to Third Respondents
Sandton Close 2, Block A 2nd Floor
Cnr 5th Norwich Close, Sandton
Tel: 011 9114100
Fax: 011 783 3537/6
Attention: Tim Sukazi
E-mail: TSukazi@timsukaziinc.co.za
AND TO:
STATE ATTORNEY, JOHANNESBURG SERVICE BY E-MAIL
Attorneys for Fourth and Fifth Respondents
12th Floor, North State Building
95 Market Street, Cnr Kruis Street
Johannesburg
Attention: Vijay Dhulam
E-mail: vdhulam@justice.gov.za
Attention : Rebecca Tee
E-mail: minreg@treasurv.gov.za ; Rebecca .Tee@treasurv.gov.za
Mobile: 083 564 8539
AND TO:
THE INFORMATION REGULATOR (SOUTH AFRICA) SERVICE BY E-MAIL
Seventh Respondents
21 st Floor, SALU Building
316 Thabo Sehume Street
Pretoria
Tel: 012 406 4818
Fax: 086 500 3351
Attention: Mmamoroke Mphelo
E-mail: MMphelo@justice.gov.za
109
4
AND TO:
MINDE SHAPIRO & SMITH INC SERVICE BY E-MAIL
Attorneys for the First Intervening Party: Democratic Alliance
Tyger Valley Office Park
Building number 2
Cnr Willie van Schoor & Old Oak Roads
Bellville
Cape Town
Tel: 02 1 918 9000
Attention: Elzanne Jonker
E-mail: Elzanne@mindes.co.za
Ref: DEM16/0430/E JONKER/sw
Care of CHRISTODOULOU & MAVRIKIS INC
Suite 3A, 5 Fricker Road
lllovo Boulevard
Johannesburg
Tel: 011 325 4201
Fax: 086 713 3180
E-mail: Antonia@cm-attorneys.com
AND TO:
NORTONS INC SERVICE BY E-MAIL
Attorneys for the Second Intervening Party: Freedom Under Law NPC
135 Daisy Street
Sandton
Tel: 011 666 7560
Fax: 086 600 5529
Attention: Anthony Norton
E-mail: Anthony@nortonsinc.com
Attention : Anton Roets
E-mail: Anton@nortonsinc.com
Attention : Michelle Rawlinson
E-mail: Michelle@nortonsinc.com
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
110
CCT: 48/2017
and
I, the undersigned,
2. The facts contained herein are, unless the contrary is stated or indicated, within
my own personal knowledge, and such facts are to the best of my knowledge and
3.1 FUL's application for leave to intervene is set down for hearing with the
3.2 Parties wishing to oppose the application must file opposing papers by
4. CPS does not oppose the admission of FUL as an intervening party, although it
5. Since it appears that CPS may not be afforded an opportunity to file an answering
affidavit if FUL were to be granted leave to intervene, CPS files this affidavit now
in order to set out its attitude in response to the relief that FUL seeks. CPS has
been afforded very little time to respond to FUL's application , and has not had
sufficient opportunity to deal with all of the matters raised by FUL. CPS
accordingly reserves its right to answer the allegations in FUL's founding affidavit
is inconsistent with what is set out in this affidavit and in the answering affidavit
that CPS filed in the Black Sash application must be taken to be denied. In
particular, I must make it plain that I deny Ms Fritz's repeated insinuations against
CPS, all of which are based on speculation that is unfounded and unjustified.
7.1 directing CPS , SASSA, the Minister and National Treasury to file all
7.2 declaring that CPS may not charge or be paid more than the current
service fee of R16.44 per beneficiary under the interim contract, and
directing that CPS may not refuse to conclude the interim contract on the
7.3 declaring that the interim contract may not endure for a period longer than
18 months, alternatively such shorter period of time that the Minister and
8. I set out below CPS's attitude in relation to each aspect of the relief sought by
FUL.
Prayer 4.2.4
9. CPS has no difficulty with the order sought in prayer 4.2.4 (that is, for a limitation
of the period of the interim contract) provided that SASSA is indeed able to do
what is required in 18 months or less, and subject to a review of the price quoted
by CPS as it will be required to ensure that the economies of scale renders the
10. For reasons that CPS explained in AI/Pay, it is doubtful that it would be possible
for SASSA to issue and determine a new tender, and to process the transition to
the new system, in less than two years. The history of this matter appears to
confirm this. For this reason, SASSA and CPS considered that a two-year period
11 . CPS also has no difficulty with the order sought in prayer 4.3, which requires
public and audited accounting on the part of CPS for its expenses, income and
net profit under the envisaged contract. It corresponds with the relief granted by
th is Court in paragraph 4.2 of AI/Pay II. It is submitted, with respect , that only one
12. As regards prayer 4.4, CPS objects to the order only to the extent that it goes
beyond what this Court directed in paragraph 4.3 of its order in A//Pay II. That
order sufficed to ensure transpa rency and public accountability, and FUL has not
contended otherwise.
13. CPS does not accept FUL's contention (for instance, at paragraphs 88, 89 and
92) that CPS's continued incumbency under the envisaged contract "flows from"
or is "a direct result of' the invalid 2012 contract. At the level of fact, th is is
introduce a new payment system operational by 1 April2017 . CPS has not sought
to remain the incumbent during this period or to extend the impact of SASSA's
requested that SASSA engage with it on the transition to a new payment system,
14. CPS also disputes the legal conclusion that is premised on the FUL's contention
that its continued incumbency flows from the invalid 2012 contract- i.e., that the
~ Jt
6
115
envisaged contract is governed by the same principles articulated by the Court in
AI!Pay II. The principles articulated in AI!Pay II pertained to CPS's obligations for
the duration of the invalid 2012 contract, for so long as the declaration of invalidity
was suspended. I am advised and submit that these principles do not apply to
Prayer4.1
15. CPS objects to the disclosure order sought by FUL in prayer 4.1. Such relief is
not necessary or relevant to the issues in dispute before this Court. CPS has
already tendered to file the final draft of the envisaged contract to the Court for
16. The drafts of the envisaged contract are not relevant, nor are they required for
transparency and accountability under s 217 of the Constitution or any other law.
17. CPS has furnished th is Court with all the correspondence it has exchanged with
18. CPS opposes the order sought in prayers 4 .2.1 to 4.2.3 of FUL's notice of motion.
the same terms as the 2012 contract in an emergency situation that is not of its
equitable.
7
116
19. Contrary to FUL's assumptions, CPS has not sought to exploit the situation. CPS
has agreed to continue to provide its services at the current price subject only to
a CPI adjustment from 1 April 2017 for the anticipated two-year contract.
20.1 CPS was awarded the 2012 tender at a fixed price of R 16.44 (inclusive
years.
20.2 Charges are per card-holder, not per beneficiary. The March 2017 pay
20.3 The CPI rates since contract inception (April 2012) are as follows (see
20.5 CPS's salary costs have increased by an average of 10% per year over
20.6 Security industry costs have increased by more than 10% per year over
20.7 Imported goods and services (smart cards, computer equipment and
20.8 The 600 vehicles used in providing the payment services will require
are 5 years old and have been exposed to high mileage on rural roads.
The cost per payment vehicle - these vehicles are purpose build -
end of their life span (generally the life span of IT equipment range
between 3 to 5 years).
21 . All of the above factors have been taken into account in the negotiation of the
envisaged agreement. The duration of the contract also plays a significant role in
22.2 When SASSA sought to lower the price of the services in the Request for
Proposals that it issued in April 2015, all of the companies that were
22 .3 CPS has obligations not only to beneficiaries, but also to its shareholders.
payment services for SASSA far more profitably in other ventures. The
SASSA which did not form part of the 2012 contract. These include the following :
per month is allowed per beneficiary, not exceeding 10% (ten percent) of
23.2 call centre integration , to assist SASSA to set up its own call centre,
integrate with the CPS call centre and eventually establish a single call
and
the current terms beyond 31 March 2017. The reputational damage and cost to
company of the continuous litigation and investigations to which CPS has been
extent that CPS desires to be involved with the grant payment system beyond
31 March 2017 (I reiterate that CPS did not tender in 2015), it would be better
25. FUL's assumptions (set out in paragraphs 106 to 110 of its founding affidavit)
about the profit that CPS has made under the 2012 contract, and the profits that
it wou ld stand to make under the envisaged contract, are wrong and are denied.
A precise accounting of CPS's profits under the 2012 contract will be furnished
to this Court when CPS files its report in compliance with this Court's order in
AI/Pay II. CPS will do so within 60 days of the completion of the 2012 contract,
as directed. For present purposes, I merely point out that FUL's analysis is
deficient in its own terms since it takes no account of the operational expenses
that CPS has incurred , and continues to incur, in the provision of national
payment services. CPS did not recover all its costs in implementing the tender
CONCLUSION
26. For the reasons set out above, CPS prays that this Court decline to grant FUL
the relief it seeks in paragraphs 4.1, 4.2.1, 4.2 .2 and 4.2.3 of the notice of motion .
CPS also asks that this Court decline to grant the relief in prayer 4.4 to the extent
pro bono basis, FUL would not be entitled to claim recovery of costs save for any
disbursements. CPS's attorneys sought to clarify the matter in the letter annexed
marked "AA2". However, in its response (annexed as "AA3") FUL has declined
I hereby certify that the deponent knows and understands the contents of this affidavit
and that it is to the best of her knowledge both true and correct. This affidavit was
signed and sworn to before me at ~A('I,c... on this the 1Qth day of
March 2017, and that the Regulations contained in Government Notice R.1258 of 21
July 1972, as amended, have been complied with.
122
Year I Jan I Feb I Mar I Apr I May I Jun I Jul I Aug I Sep I Oct I Nov I Dec jAverage1
2013 80,4 81 ,2 82,2 82,5 82,3 82,5 83,4 83,6 84 ,0 84,2 84,3 84,5 82,9
2014 85, 1 86,0 87,2 87,6 87,7 88,0 88,7 89,0 89,0 89,2 89,2 89,0 88,0
2015 88,9 89,4 90,7 91.5 9 1,7 92,1 93,1 I 93,1 93,1 9 3,3 93,4 93,7 92, 0
2016 94 ,4 95,7 96,4 97,2 97 ,4 97 ,9 9 8,7 I 98,6 98,8 9 9,3 99,6 100,0 97, 8
2017 100,6 .. " " " "
1
Annual average.
Year I Jan
I Feb
J Mar
l Apr I May
1 Jun
J Jul
1 Aug I Sep
J Oct I Nov
I Dec jAverage'
2013 5,4 5,9 5,9 5,9 5,6 5,5 6,3 6,4 6 ,0 5,5 5 ,3 5,4 5,7
2014 5,8 5,9 6,0 6,1 6,6 6 ,6 6,3 6 ,4 5 ,9 5 ,9 5,8 5 ,3 6 ,1
2015 4,4 3,9 4,0 4 ,5 4 ,6 4 ,7 5,0 4,6 4 ,6 4 ,7 4 ,8 5,2 4 ,6
2016 6,2 7,0 6,3 6 ,2 6,1 6 ,3 6 ,0 5,9 6 ,1 6 ,4 6,6 6 ,8 6,4
2017 6 ,6 " l
1
Annual average.
Rates shown in Table 82 show the official inflation rates as published in the monthly CPI release . Differences due to
rounding off may occur when using the rebased indices in Table 8 1 to ca lculate the rates of change.
105 7.0
1()0
.. 6 .5
. !
..
'
95
.. .. . '
6.0
\J~r~
90 5.5
'
...........'
85
...' 5.0
-~ -
'
\. ..
80 . '
:' ~ ...... .
4.5
i
75 4.0
JAII2012 JUL2012 JAII2ll13 JUL2013 JAN201 4 JUL2014 JAN2015 JUL201 5 JAN2016 JUL2016 JA N2017
- Headline index - Headline inflation
"AA2"
SMIT SEWGOOLAM
12 Avonwold Rd (Cnr. Jan Smuts Ave) Saxonwold Johannesburg South Africa 123
Private Bag 836 Saxonwold 2132 Docex 125 Jhb Website: www.smitsew.co.za
INCORPORATED Deeds Office Lodgement Numbers: Johannesburg 477; Pretoria 1683
attorneys and conveyancers Registration Number 2003/00780 1/21 VAT Registration Number 4270208095
Tel + 27 11 646 0006 Fax + 27 11 646 0016
NORTONS INC
E-MAIL: anthony@nortonsinc.com
anton@nortonsinc. com
08 March 2017
Dear Sirs,
1. We note that you represent Freedom Under Law NPC in its application to intervene in case
number CT 48/2017 and furthermore that your client , inter alia, seeks an order that any party
who opposes the application or the further relief sought in prayer 4, should pay the applicant's
costs, including the costs of two counsel.
2. Please could you indicate whether or not you and/or the applicant's counsel are acting on a pro-
bono basis and, if so, please adv1se on what basis your client seeks recovery of costs.
3. We request that you revert to us before close of business today, as we need to finalize our
clients answering affidavit urgently.
DIRECTORS: Harold Smit: Rikesh Sewgoolam; Johannes Engelbrecht; Tiaan Jonker (Chairman); A mtmbf!rof
Arilia du Pless1s; Bouwer van Niekerk; Jacques Marais (Managing Director); Rachelle Freed; Ravika Sukdeo
SENIOR ASSOCIATES : Schalk Pienaar; Peto Milton
ASSOCIATES: Kris Harmse; Megan Rosseau: Loni Supkaran ; Marnelize Olivier
lndeptndent lesal & <~<>unting jinns
PROFESSIONAL ASSISTANTS Amy Parker
ALSO AT Umhlanga Rocks (+27 31 830 5067)
LEVEL 2 BBBEE
IN ASSOCIATION WITH : Schoerie & Sewgoolam Inc - Pietermaritzburg QSE Codes ga1e~ted on
6 May2015
"AA3"
124
Switchboard: +27 (0) 11 666 7560
Fax: +27 (0) 86 600 5529
Nortons lnc info@nortonsinc.com
.~ T T C., R l\1 _ Y S AT L A W http://www.nortonsinc.com
135 Daisy Street, Sandton
PO Box 41162, Craighall, 2024, South Africa
Smit Sewgoolam
Attention : Mr 0 C Jonker
By email : tiaan@smitsew.co.za
9 March 2017
Dear Mr Jonker
2. Our client seeks to recover costs in this matter on well-established principles which will be argued at
the hearing of the matter.
3. The fee arrangements between our client and its legal team are a private matter and there is no basis on
which we are required to disclose them to you at this stage of proceedings. Such arrangements will
only be relevant in the event that a costs award is made in our client's favour.
4. Should our client be awarded costs, such costs will be agreed or taxed and the party liable for paying
such costs will only be liable for costs which have been incurred.
. . .
' '
'
125
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT: 48/2017
THEBLACKSASHTRUST Applicant
and
THE MINISTER OF SOCIAL DEVELOPMENT First Respondent
and
NOTICE OF MOTION
PLEASE TAKE NOTICE that the sixth respondent will make application at the hearing
1. The sixth respondent is granted condonation for the late filing of its answering
s CLAM INCORPORATED
eys for the Sixth Respondent
12 A vonwold Road
Saxonwold
Johannesburg
Tel: 011 646 0006
Fax: 011 646 0016
Attention: Tiaan Jonker
E-mail: Tiaan@smitsew.co.za
Attention: Sacha Capazorio
E-mail: Sacha@smitsew.co.za
Ref: MAT28041 /OCJ/SC
TO:
THE REGISTRAR OF THE
CONSTITUTIONAL COURT, CONSTITUTIONAL HILL
BRAAMFONTEIN
AND TO:
CENTRE FOR APPLIED LEGAL STUDIES SERVICE BY E-MAIL
Attorneys for the Applicant
1st Floor, DJ du Plessis Building
West Campus, University of Witwatersrand
1 Jan Smuts Avenue
Johannesburg
Tel: 011 717 8606
Fax: 011 717 1702
Attention: Nomonde Nyembe
E-mail: Nomonde.Nyembe@wits.ac.za
Ref: BHR/0062/NN
127
3
AND TO:
TIM SUKAZI INC SERVICE BY E-MAIL
Attorneys for the First to Third Respondents
Sandton Close 2, Block A 2nd Floor
Cnr 5th Norwich Close, Sandton
Tel: 011 911 4100
Fax: 011 783 3537/6
Attention: Tim Sukazi
E-mail: TSukazi@timsukaziinc.co.za
AND TO:
STATE ATTORNEY, JOHANNESBURG SERVICE BY E-MAIL
Attorneys for Fourth and Fifth Respondents
12th Floor, North State Building
95 Market Street, Cnr Kruis Street
Johannesburg
Attention: Vijay Dhulam
E-mail: vdhulam@justice.gov.za
Attention: Rebecca Tee
E-mail: minreg@treasurv.gov.za; Rebecca.Tee@treasury.gov.za
Mobile: 083 564 8539
AND TO:
THE INFORMATION REGULATOR (SOUTH AFRICA) SERVICE BY E-MAIL
Seventh Respondents
21st Floor, SALU Building
316 Thabo Sehume Street
Pretoria
Tel: 012 406 4818
Fax: 086 500 3351
Attention: Mmamoroke Mphelo
E-mail: MMphelo@justice.gov.za
128
4
AND TO:
NORTONS INC SERVICE BY E-MAIL
Attorneys for the Second Intervening Party: Freedom Under Law NPC
135 Daisy Street
Sandton
Tel: 011 666 7560
Fax: 086 600 5529
Attention: Anthony Norton
E-mail: Anthony@nortonsinc.com
Attention: Anton Roets
E-mail: Anton@nortonsinc.com
Attention: Michelle Rawlinson
E-mail: Michelle@nortonsinc.com
AND TO:
VAN HUYLSTENS ATTORNEYS SERVICE BY E-MAIL
Attorneys for the Amicus Curiae
3rd Floor, Katherine & West Building
114 West Street
Sandton
Tel: 011 523 5300
Ref: Mr D Raath I K Naidoo
Attention: Daniel Raath
E-mail: Daniel@vhlaw.co.za
129
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT: 48/2017
In the matter between :
and
I, the undersigned,
2. The facts contained herein are, unless the contrary is stated or indicated, within
my own personal knowledge, and such facts are to the best of my knowledge and
Freedom Under Law's intervention application. The answering affidavit was due
4. The circumstances which gave rise to the late filing of the answering affidavit are
the following:
8 March 2017.
4.2 It has been an intensely challenging time for the sixth respondent who has had
to deal with various queries from its investors, funders and the media, whilst
also having to respond to the various court papers filed during the last few days
4.3 Notwithstanding the sixth respondent's best endeavours it has simply been
unable to take advice and respond to FUL's application in time but it has sought
to do so as soon as possible.
131
3
4.4 The sixth respondent electronically served and lodged a copy of its answering
18h27.
5. It is submitted that there can be no prejudice to the other parties as a result of the
late filing.
WHEREFORE I humbly request that this Honourable Court condone the late filing of
the sixth respondent's answering affidavit as prayer for in the notice of motion to which
I hereby certify that the deponent knows and under ands the contents of this affidavit
and that it is to the best of his knowledge both true and correct. This affidavit was
signed and sworn to before me at Rose bank on this the 13th day of March 2017, and
that the Regulations contained in Government Notice R.1258 of 21 July 1972, as
amended, have b p 1e ith.
RAVIMORAR
Wright, Rose-lnnes Inc.
31 Arterial Road West
Capacity: Oriel, Bedfordview
COMMISSIONER OF OATHS
EX OFFICIO: PRACTISING ATTORNEY R.S.A.
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT: 48/2017
and
and
FILING SHEET
DOCUMENTS TO BE FILED:
SIGNED and DATED at JOHANNESBURG on this the 13th day of MARCH 2017.
2
AND TO:
CENTRE FOR APPLIED LEGAL STUDIES SERVICE BY E-MAIL
Attorneys for the Applicant
1st Floor, OJ du Plessis Building
West Campus, University of Witwatersrand
1 Jan Smuts Avenue
Johannesburg
Tel: 011 717 8606
Fax:0117171702
Attention: Nomonde Nyembe
E-mail: Nomonde.Nyembe@wits.ac.za
Ref: BHR/0062/NN
3
AND TO:
TIM SUKAZIINC SERVICE BY E-MAIL
Attorneys for the First to Third Respondents
Sandton Close 2, Block A 2nd Floor
Cnr 5th Norwich Close, Sandton
Tel: 011 911 4100
Fax: 011 783 3537/6
Attention: Tim Sukazi
E-mail: TSukazi@timsukaziinc.co.za
AND TO:
STATE ATTORNEY, JOHANNESBURG SERVICE BY E-MAIL
Attorneys for Fourth and Fifth Respondents
12th Floor, North State Building
95 Market Street, Cnr Kruis Street
Johannesburg
Attention: Vijay Dhulam
E-mail: vdhulam@justice.gov.za
Attention: Rebecca Tee
E-mail: minreg@treasurv.gov.za; Rebecca.Tee@treasurv.gov.za
Mobile: 083 564 8539
AND TO:
THE INFORMATION REGULATOR (SOUTH AFRICA) SERVICE BY E-MAIL
Seventh Respondents
21st Floor, SALU Building
316 Thabo Sehume Street
Pretoria
Tel: 012 406 4818
Fax: 086 500 3351
Attention: Mmamoroke Mphelo
E-mail: MMphelo@justice.gov.za
4
AND TO:
NORTONS INC SERVICE BY E-MAIL
Attorneys for the Second Intervening Party: Freedom Under Law NPC
135 Daisy Street
Sandton
Tel: 011 666 7560
Fax: 086 600 5529
Attention: Anthony Norton
E-mail: Anthony@nortonsinc.com
Attention: Anton Roets
E-mail: Anton@nortonsinc.com
Attention: Michelle Rawlinson
E-mail: Michelle@nortonsinc.com
AND TO:
VAN HUYLSTENS ATTORNEYS SERVICE BY E-MAIL
Attorneys for the Amicus Curiae
3rd Floor, Katherine & West Building
114 West Street
Sandton
Tel: 011 523 5300
Ref: Mr D Raath I K Naidoo
Attention: Daniel Raath
E-mail: Daniel@vhlaw.co .za
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT: 48/2017
and
___________________________________________________________________
INTRODUCTION
to make submissions on the need and appropriate manner for this Court to
2
ensure the interim contract that SASSA is to enter into with CPS imminently is
2.1 In prayer 4.1, FUL seeks an order directing the sixth respondent (CPS),
the third respondent (SASSA), the first respondent (the Minister) and
all draft versions of the interim contract and the final version of the interim
contract.
- CPS may not in terms of the interim contract charge or be paid more
than the current service fee of R16.44 per beneficiary (prayers 4.2.1
and 4.2.2);
- CPS may not refuse to conclude the interim contract on the basis of this
- the interim contract may not endure for a period of longer than 18
2.3 In prayer 4.3, FUL seeks an order directing CPS to file an audited
statement of expenses, income and net profit earned under the interim
2.4 In prayer 4.4, FUL seeks an order directing SASSA to file an independent
3. CPS does not oppose the admission of FUL as an intervening party.2 However,
CPS opposes some of the relief that FUL seeks. In these submissions we
notice of motion.
4. CPS opposes prayer 4.1 on the basis that the relief is overbroad.
5. CPS accepts that disclosure of the final version of the interim contract is required
2017,3 the Chief Justice has already requested SASSA to furnish the Court with
a copy of the final version of the interim contract. However, the draft versions of
the interim contract are in a different category: they are of no obvious relevance
and FULs founding affidavit does not suggest what relevance they might have.
6. More generally, FULs founding affidavit makes out no case for why every SMS,
impose a substantial burden on CPS, SASSA, the Minister and National Treasury
4.1.1. There is nothing in FULs founding affidavit to suggest that the benefits of
7. CPS has already furnished this Court with all the written correspondence it
8. If FUL (or any other person) seeks access to other documents, that may be done
assumption that CPS has sought to exploit its incumbency in order to obtain an
incorrect. This Court, National Treasury and the public can satisfy themselves
that this is not the case by having regard to the terms of the final agreement.
4 FUL notice of motion prayer 4.1. FUL goes no further than to contend that disclosure of these
documents is required in the circumstances (FUL FA para 17.5 and para 120).
5 CPS AA to Black Sash para 6 read with Annexure A.
6 SASSA AA to para 9.
7 FUL FA para 119.
5
10. CPS has no objection to producing such documents as this Court may require.
However, it opposes the relief sought in prayer 4.1 of FULs notice of motion since
it is manifestly overbroad.
11. Prayer 4.2 seeks an order declaring that CPS may not perform certain conduct
words, if the interim contract were to provide that CPS may charge a price in
excess of R16.44 per beneficiary, FUL does not seek an order declaring the
provision to be invalid; instead it seeks an order declaring that CPS may not
charge the agreed price and SASSA may not pay the agreed price. FULs
founding affidavit makes no attempt to explain on what basis the Court is invited
to declare that the parties may not exercise their contractual entitlements or
12. The terms of any interim contract will have to be negotiated afresh. SASSAs
answering affidavit states that on 8 March 2017 a Ministerial Task Team decided
negotiations with CPS if National Treasury were to allow SASSA to deviate from
for the Court to prescribe the terms of any interim contract in circumstances
8 SASSA AA para 8.
9 SASSA AA to para 10.
6
14. In any event, the facts are critical in assessing the fairness of the terms of a
contract.11 On the basis of the current papers, the Court is not in a position to
assess what terms would be fair and reasonable. This is something for SASSA
and CPS to determine through their negotiations, and then to report to National
15. FUL contends that it would be appropriate for this Court to determine the price in
the interim contract because (a) the principle in AllPay II12 applies to the interim
contract and (b) the interim contract flows from the invalid 2012 contract.13 This
contention is incorrect:
Ministerial Task Team. The principle of AllPay II (namely that CPS has
10 Napier v Barkhuizen 2006 (4) SA 1 (SCA) at para 13. In the appeal of Barkhuizen v Napier 2007 (5)
SA 323 (CC), the majority of this Court expressly endorsed Cameron JAs approach. See the majority
judgment of Ngcobo J at paras 70-71.
11 Barkhuizen v Napier 2007 (5) SA 323 (CC) paras 59, 64, 84-86 (majority judgment of Ngcobo J);
para 120 (concurring judgment of ORegan J); Napier v Barkhuizen 2006 (4) SA 1 (SCA) paras 9-
11, 15 and 28.
12 i.e. the principle that CPS is not entitled to benefit from the invalid 2012 contract (AllPay II at para
67).
13 FUL FA paras 17.6 17.7, 88-89.
14 Para 67.
7
the interim contract is a lawful one. FUL is therefore wrong to say that
AllPay II means that CPS must not benefit from the proposed interim
contract.15
15.2 As regards (b): if CPS were to conclude an interim contract for the period
undertakings. FUL makes this very point when it states that CPSs
the Minister and SASSA to take the necessary steps.16 In FULs own
words, owing to the failures of SASSA and the Minister, SASSA was left
with only one party with whom to contract to the exclusion of all others. 17
15.3 CPS has not sought to remain the incumbent after 31 March 2017 or to
the contrary, CPS has repeatedly requested that SASSA engage with it on
16. FUL contends that CPS has no private autonomy or bargaining power. 20 Again,
this is a misunderstanding of AllPay II. The finding of this Court that private
autonomy does not feature prominently (if at all) when a private body is made to
respect the constitutional rights of others,21 means that CPS cannot walk away
on 1 April 2017. It does not mean that the Court can override the contractual
autonomy of CPS to decide in the first instance on the terms on which it will
17. If this Court were minded to have regard to the terms of the envisaged interim
17.1 CPS has agreed to continue to provide its services at the current price
subject only to a CPI adjustment from 1 April 2017 for the anticipated two-
year contract. CPS has explained why this is a fair and reasonable price.22
17.2 CPS has no difficulty with shortening the duration of the interim contract to
is able to do what is required in that period. CPS would also need to review
18. CPS does not oppose the relief sought in prayer 4.3 of FULs notice of motion.
CPS accepts that if it were to conclude an interim contract with SASSA, it would
be stepping into SASSAs shoes and performing a public function24 for which it
19. The order sought in prayer 4.3 corresponds with this Courts order in paragraph
20. CPS opposes the order sought in prayer 4.4 of FULs notice of motion only to the
extent that it goes beyond what this Court directed in paragraph 4.3 of its order
verification of the details provided by [CPS] and file the audited verification with
this court. FUL has not indicated why this order is insufficient to ensure
CONCLUSION
21. For the reasons set out above, CPS asks this Court:
- to refuse the relief sought in in prayers 4.1, 4.2.1, 4.2.2, 4.2.3 and 4.2.4 of
- to refuse the relief sought in prayer 4.4 of FULs notice of motion but only to
the extent that this relief goes further than the order in AllPay II.
ALFRED COCKRELL SC
JANICE BLEAZARD
NDUMISO LUTHULI
CCT: 48/2017
and
___________________________________________________________________
direct access to this Court brought by the Black Sash Trust (the Black Sash).
relief to that sought by the Black Sash on matters relating to an interim contract
2
intended between the third respondent (SASSA) and the sixth respondent
(CPS).
Issues to be argued
an applicant.
3. Whether the first respondent (the Minister), SASSA and CPS should be
required, after the conclusion of the interim contract, to file with this Court all the
documents (as more fully set out in prayer 4.1 to FULs notice of motion) relating
4.1 the price that CPS may charge for its services under the interim contract;
and
accountability that goes beyond what this Court directed in paragraph 4.3 of its
audited verification of the details provided by [CPS] and file the audited
7. One day
Summary of argument
8. Save for the final version of the interim contract, CPS opposes the filing of all
overbroad.
9. There is no basis for the Court to declare that contracting parties may not
10. CPS accepts that if it concludes an interim contract with SASSA, it will be
stepping into SASSAs shoes and performing a public function for which it will
be publicly accountable, and therefore does not oppose the relief sought by FUL
in prayer 4.3.
11. CPS opposes the relief sought in prayer 4.4 only to the extent that this goes
12. Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of
the South African Social Security Agency 2014 (4) SA 179 (CC); 2014 (6) BCLR
ALFRED COCKRELL SC
JANICE BLEAZARD
NDUMISO LUTHULI
the South African Social Security Agency 2014 (4) SA 179 (CC); 2014 (6) BCLR
CCT: 48/2017
and
THE MINISTER OF SOCIAL DEVELOPMENT First Respondent
and
FILING SHEET
DOCUMENTS TO BE FILED:
SIGNED and DATED at JOHANNESBURG on this the 13th day of MARCH 2017.
2
IT SEWGOOLAM INCORPORATED
Attorneys for the Sixth Respondent
12 A vonwold Road
Saxonwold
Johannesburg
Tel: 011 646 0006
Fax: 011 646 0016
Attention: Tiaan Jonker
E-mail: Tiaan@smitsew.co.za
Attention: Sacha Capazorio
E-mail: Sacha@smitsew.co.za
Ref: MAT28041 /OCJ/SC
TO:
THE REGISTRAR OF THE
CONSTITUTIONAL COURT, CONSTITUTIONAL HILL
BRAAMFONTEIN
AND TO:
CENTRE FOR APPLIED LEGAL STUDIES SERVICE BY E-MAIL
Attorneys for the Applicant
1st Floor, DJ du Plessis Building
West Campus, University of Witwatersrand
1 Jan Smuts Avenue
Johannesburg
Tel: 011 717 8606
Fax: 011 717 1702
Attention: Nomonde Nyembe
E-mail: Nomonde.Nyembe@wits.ac.za
Ref: BHR/0062/NN
3
AND TO:
TIM SUKAZI INC SERVICE BY E-MAIL
Attorneys for the First to Third Respondents
Sandton Close 2, Block A 2nd Floor
Cnr 5th Norwich Close, Sandton
Tel: 011 911 4100
Fax: 011 783 3537/6
Attention: Tim Sukazi
E-mail: TSukazi@timsukaziinc.co.za
AND TO:
STATE ATTORNEY, JOHANNESBURG SERVICE BY E-MAIL
Attorneys for Fourth and Fifth Respondents
12th Floor, North State Building
95 Market Street, Cnr Kruis Street
Johannesburg
Attention: Vijay Dhulam
E-mail: vdhulam@justice.gov.za
Attention: Rebecca Tee
E-mail: minreg@treasurv.gov.za; Rebecca.Tee@treasurv.gov.za
Mobile: 083 564 8539
AND TO:
THE INFORMATION REGULATOR (SOUTH AFRICA) SERVICE BY E-MAIL
Seventh Respondents
21st Floor, SALU Building
316 Thabo Sehume Street
Pretoria
Tel: 012 406 4818
Fax: 086 500 3351
Attention: Mmamoroke Mphelo
E-mail: MMphelo@justice.gov.za
4
AND TO:
NORTONS INC SERVICE BY E-MAIL
Attorneys for the Second Intervening Party: Freedom Under Law NPC
135 Daisy Street
Sandton
Tel: 011 666 7560
Fax: 086 600 5529
Attention: Anthony Norton
E-mail: Anthony@nortonsinc.com
Attention: Anton Roets
E-mail : Anton@nortonsinc.com
Attention: Michelle Rawlinson
E-mail: Michelle@nortonsinc.com
AND TO:
VAN HUYLSTENS ATTORNEYS SERVICE BY E-MAIL
Attorneys for the Amicus Curiae
3rd Floor, Katherine & West Building
114 West Street
Sandton
Tel: 011 523 5300
Ref: Mr D Raath I K Naidoo
Attention: Daniel Raath
E-mail: Daniel@vhlaw.co .za
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT: 48/2017
In the matter between:
and
__________________________________________________________
INTRODUCTION
1. The applicant (Black Sash) has brought an urgent application to seek the re-
instatement of the oversight role of this Court for the payment of social grants.1
The Black Sash wishes this Court to have oversight over the further/new
proposed contract between SASSA and CPS for payment of social grants
2. In its answering affidavit, the sixth respondent (CPS) indicated that it did not
oppose the Black Sashs application but expressed reservations regarding the
relief in prayers 5(b) and 11(b) of the Black Sashs notice of motion.3
and then explain CPSs position in relation to each of the orders sought by the
Black Sash.
BACKGROUND
4. In AllPay I,4 this Court declared that the decision of the third respondent
(SASSA) to award the tender for payment of social grants to CPS, was
biometric verification.7
5. Both of those review grounds were directed at the conduct of SASSA. There
6. In AllPay II, the Court declared invalid the contract between SASSA and CPS
process.9 The Court ordered that, if a new tender was not awarded, the
period for which the contract was initially awarded.10 That five-year period will
7. SASSA initiated a competitive tender process in 2014 but did not receive any
compliant bids.11 Neither AllPay nor CPS participated in that tender process.
8. In October 2015 SASSA informed the Court that it would take over the payment
of grants when the five-year contract with CPS ended.12 Pursuant to this, on 25
8 See Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South
African Social Security Agency 2014 (4) SA 179 (CC); 2014 (6) BCLR 641 (CC) (AllPay II)
at para 16 ([t]here has been no finding of fraud or corruption).
9 Paragraphs 2 and 3 of the order.
10 Paragraph 4 of the order.
11 Black Sash FA para 74; Black Sash FA Annexure LM3 para 2.2-3; FUL FA para 21, FUL FA
Annexure FA1 para 10.
12 Black Sash FA Annexure LM5.
13 FUL FA Annexure FA1 para 13.
4
9. For reasons that are still to be fully explained to the Court, SASSA has failed to
ensure that another payment system will be in place when the contract with CPS
expires at the end of March 2017. In other words, SASSA will be unable to
perform the payment function itself on 1 April 2017 and will be unable to appoint
another service provider to take over the payment function with effect from 1
April 2017.14 The reasons for this have nothing to do with the conduct of CPS:
10. CPS has made it plain that it has no commercial interest in continuing to provide
payment services on the current terms after 1 April 2017.15 The reputational
damage and the costs of the litigation and investigations have been
considerable, and CPS would prefer to use its resources in other commercial
ventures.16 However, CPS accepts that it not entitled to walk away until such
AllPay II.17
11. In order to ensure the continued payment of grants after 1 April 2017 until a new
system is put in place, SASSA negotiated an interim contract with CPS and
reached agreement on the material terms.18 However, when SASSA filed its
Team (the MTT) had decided to terminate the negotiations with CPS and to
SASSA to deviate from its standard procurement process. SASSA indicated that
12 March 2017, after which it will submit the application to National Treasury.19
12. Most of the relief sought by the Black Sash is directed at SASSA and the Minister.
CPS has no interest in that relief and does not oppose it. In other words, CPS
does not oppose the relief sought in prayers 3, 6, 7, 8, 9, 10 and 11. CPS
supports the re-instatement of the Courts oversight role20 because this will
ensure transparency and accountability, and will also provide certainty for all
parties.
13. The following relief sought by the Black Sash has an impact on CPS:
13.1 Prayer 4 seeks a declaratory order that CPS is under a duty to act
19 SASSA AA para 8.
20 CPS AA to Black Sash para 3.1 and 3.2.
6
Prayer 4
15. CPS accepts that it is under a duty to act reasonably and with due regard to its
contract.21 The same duty will apply if National Treasury approves a deviation
and SASSA enters into fresh negotiations with CPS pursuant to that approval.
16. Accordingly, CPS does not oppose the declaratory relief asked for in payer 4 of
Prayer 5
17. CPS does not oppose the order sought in prayer 5(a) of the Black Sashs notice
directed that
personal data obtained in the payment process remains private and may
not be used in any manner for any purpose other than payment of the
18. Black Sash has stated that it no longer seeks the order in prayer 5(b) of its notice
19. CPS does not oppose the relief sought in prayers 5(c) and 5(d) of the Black
Sashs notice of motion. Those prayers restrict the use of beneficiaries personal
information under the interim contract. CPS has stated under oath that it does
not share beneficiary data with any third parties, including Net1 subsidiaries.24
CONCLUSION
20. For the reasons set out above, CPS does not oppose the Black Sashs
application.
21. CPS does not seek costs against the Black Sash.
ALFRED COCKRELL SC
JANICE BLEAZARD
NDUMISO LUTHULI
CCT: 48/2017
In the matter between:
and
___________________________________________________________________
1. This is an urgent application for direct access to this Court in terms of Rules 12
and 18. Direct access is sought by the applicant (the Black Sash) to address
Issues to be argued
3. Whether CPS is under a duty to act reasonably with due regard to its
concluded.
5. Whether this Court should exercise supervisory jurisdiction over the intended
7. One day
Summary of argument
8. CPS does not oppose the Black Sashs application for direct access.
9. CPS does not oppose the substantive relief sought by the Black Sash.
10. Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of
the South African Social Security Agency 2014 (4) SA 179 (CC); 2014 (6) BCLR
ALFRED COCKRELL SC
JANICE BLEAZARD
NDUMISO LUTHULI
the South African Social Security Agency 2014 (1) SA 604 (CC); 2014 (1) BCLR
1 (CC) (AllPay I)
the South African Social Security Agency 2014 (4) SA 179 (CC); 2014 (6) BCLR