IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
In the application of:
FREEDOM UNDER LAW NPC
To intervene as an applicant in the matter between:
THE BLACK SASH TRUST
and
THE MINISTER OF SOCIAL DEVELOPMENT
CHIEF EXECUTIVE OFFICER OF THE SOUTH AFRICAN SOCIAL SECURITY AGENCY
SOUTH AFRICAN SOCIAL SECURITY AGENCY
THE MINISTER OF FINANCE
NATIONAL TREASURY
CASH PAYMASTER SERVICES (PTY) LTD
THE INFORMATION REGULATOR
Case No: CCT 48/17
Applicant
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
ANSWERING AFFIDAVIT ON BEHALF OF THE FIRST, SECOND AND THIRD RESPONDENTS
I, the undersigned
WISEMAN KHEHLA MAGASELA
do hereby make oath and state that:
1 . I am the acting Chief Executive Officer of the third respondent ("SASSA").
I depose to this affidavit on behalf of the first, second and third respondents and am duly authorised to do so.
2. Subject to what follows, the facts contained herein are within my personal knowledge unless otherwise stated or apparent from the context, and are to the best of my knowledge and belief true and correct.
2.1. My personal knowledge of the history of this matter is unfortunately limited. My permanent appointment is as a Deputy Director General in the Department of Social Development ("the Department") responsible for research and policy development. Approximately five weeks ago I was seconded as a special adviser to the first respondent ("the Minister"). On Wednesday evening, 8 March 2017 that secondment was terminated, and I was appointed as acting CEO of the third respondent ("SASSA"). The circumstances in which this occurred were that the current CEO, Mr Thokozani Magwaza, went on sick leave on about 27 February 2017 and is still absent on medical grounds. Ms Thamo Mzobe was then appointed as acting CEO. Ms Mzobe is currently CEO of the National Development Agency, and was brought in to SASSA inC
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this acting capacity in light of the absence of Mr Magwaza during this critical period. Ms Mzobe led SASSA until 7 March 2017, when she too was unfortunately taken ill.
2.2. I do have personal knowledge of the recent negotiations with the sixth respondent ("CPS") as I was part of the team representing SASSA and the Department of Social Development.
2.3.1 also have access to SASSA records but, given the short duration of my direct involvement with SASSA, I am not familiar with the full record of the history of the matter.
3. I have read the notice of application and founding affidavit of Ms Maart in the main application, i.e. the application by the Black Sash Trust ("the Black Sash"). I have also read the notice of application and founding affidavit of Ms Fritz in the application by Freedom Under Law NPC ("FUL") to intervene in the main application.
4. The first to third respondents' stance as regards the main application is they do not oppose the relief sought by the Black Sash. Although there are certain allegations and some matters raised in the founding affidavit that warrant further investigation (and will be investigated in due course for other purposes), as the first to third respondents do not oppose the relief sought they have not filed and do not intend filing any answering papers in the main application.
5. The first to third respondents' stance as regards the application of FUL is that although they do not oppose its intervention as a co-applicant (paragra
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notice of application), the granting of the condonation sought (paragraph 2 thereof) and the costs order sought (paragraph 5 thereof), we do oppose the granting of the substantive relief sought (paragraph 4 thereof) to the extent set out below.
6. Before explaining the first to third respondents' opposition to the substantive relief sought by FUL, it is necessary briefly to update what was said by the first and second respondents in their report to this Court dated 2 March 2007 regarding SASSA's intended course of action (paragraphs 46 to 52 of the report), with specific reference to SASSA's intended interim arrangement with CPS aimed at ensuring the uninterrupted payment of social grants from 1 April 2017.
7. The negotiations were held over a period of three days, starting on Wednesday 1 March and ending on Friday 3 March 2017. Those present agreed in principle on the key elements of a new contract for an interim period between SASSA and CPS, which were subject to approval by the Minister and the National Treasury.
These elements included a two-year contract period during which CPS would be paid a fixed monthly fee. They also include that SASSA would get ready to and gradually take over certain of the functions currently performed by CPS; SASSA would conduct a competitive bidding process for the appointment of service providers to undertake those of CPS's current functions which will not be performed by SASSA in the medium term; and the successful bidders would get ready to and gradually take over those functions. The second year of the two- year contract period in particular would be when CPS was phased out and SASS A and the successful bidders would be phased in.
8. On Wednesday 8 March 2017 a Ministerial Task Team ("MTT") was appointed to assist with ensuring the uninterrupted payment of social grants from 1 April 2017 and to oversee the response to the Directions issued by the Chief Justice that day in case 48/2013. In addition to the Minister, the MTT comprises Ministers J Radebe (Chairperson), S Cwele, M Gigaba, P Gordhan, M Mahlobo and N Pandor. At its first meeting on Thursday 9 March 2017 (which I attended), after considering input from, amongst others, the Acting Chief State Law Adviser, the MTT decided that the current negotiations with CPS should be terminated and fresh negotiations should start afresh only if and when the National Treasury gave its prior written approval for a deviation from the requirement that SASSA invite competitive bids as contemplated in paragraph 8.5 of National Treasury Instruction 3 of 2016/2017 (a copy of which is attached, marked "WKM1 "). It was further decided that steps be taken forthwith by SASSA to seek such approval, and that the process be overseen by senior counsel (Adv. Wim Trengove SC) to ensure the process is legally sound. Pursuant to this decision SASSA's legal team are preparing a request for a deviation for consideration and approval by Adv. Trengove SC. Once approved, it will be submitted to the MTT (which is scheduled to meet again this coming Sunday 12 March 2017) and, if acceptable to the MTT (including the Minister), the Minister will direct me in terms of section 6(1) of the SASSA Act 9 of 2004 to make the request to the National Treasury in terms of paragraph 8.5 of National Treasury Instruction 3 of 2016/2017.
9. Turning to the relief sought by FUL in paragraph 4.1 of its notice of application, although the first to third respondents have no objection to filing with this Court, within 20 days after the conclusion of any interim contract with CPS, a copy of the contract, any drafts of the contract, and such other documents as this Court ay
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require, the first to third respondents respectfully submit that the range of documents specified in this paragraph is too wide. An order in such wide terms at this juncture is not required and may lead to the unintended consequence of multiple people associated with the Department, SASSA, CPS and/or the National Treasury being in contempt of the order because they omitted to make available for filing e.g. a WhatsApp message which is related in some way or another to the negotiation of the contract. FUL and anyone else who, in future, may wish to have access to the wide range of documents referred to in this paragraph, have adequate remedies under the Promotion of Access to Information Act 2 of 2000 and/or Rule 29 of the Rules of this Court (read with Uniform Rule 35(13)).
10. Turning to the relief sought by FUL in paragraph 4.2 of its notice of application, the first to third respondents oppose this relief in its entirety because, with respect, it would not be appropriate for this Court to determine, in advance, the terms as to price and duration on which SASSA and CPS may contract with one another.
It is not normally the function of a Court to make a contract or the key terms of a contract for the parties, even if one of them is an organ of state. Although the power of this Court to grant just and equitable relief in constitutional matters where it has assumed a supervisory jurisdiction is very wide, it is only in the most exceptional case where this Court will intervene, in anticipation of contractual negotiations, in the manner suggested by FUL. There is no warrant to do so in the present case. The National Treasury must first be persuaded to grant approval for the deviation - i.e. to commence bilateral negotiations with CPS - that SASSA will be seeking. The new negotiations with CPS, if authorized by the National Treasury, like the negotiations earlier this month, are likely to be ver--A
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complex because the subject-matter of any eventual agreement will depend on a wide range of variables and interactions between them and the parties' respective constraints and needs. The validity of any new process of negotiation with CPS and of any contract concluded with it, can only be determined once the contract has been concluded. If, in any later proceedings in which the validity of that process or contract are assailed, this Court finds grounds for interference, and in particular grounds to alter the terms of the contract in the manner now suggested by FUL, it may do so at that juncture. As the execution of the contract is likely to be ongoing when any such proceedings are brought and adjudicated, if so ordered the parties can make and implement the adjustments this Court requires.
11. Finally as to the relief sought by FUL in paragraphs 4.3 and 4.4 of its notice of application, while the first to third respondents have no in-principle objection to the granting of this relief, which is similar to the relief in paragraphs 4.2 and 4.3 of the 17 April 2014 order of this Court in Case 48/2014, they submit that, as in that order, the periods specified for compliance should be 60 days rather than 30 days and 40 days respectively. The latter periods may well be too short for the auditors to perform their functions.
12.1n the premises, the first to third respondents:
12.1. do not oppose the relief sought by the Black Sash Trust in the main application;
12.2. do not oppose the relief sought by Freedom Under Law NPC in paragraphs 1, 2 and 5 of its notice of application; and (
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12.3. to the extent set out in paragraphs 9 to 11 above, oppose the relief sought by Freedom Under Law NPC in paragraph 4 of its notice of application.
I certify that the above deponent has acknowledged to m that he knows and understands the contents of this affidavit, which affidavit was signed and sworn to before me
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on this theI 0
day of MARCH 2017, inaccordance Wf\h th requirements of Government Notice R1258 dated 21 July 1972 as amended by\Government Notices R1648 dated 19 August 1977 and R1428 dated 11 July 1980 anL1d by GN R77 4 of 23 April 1982.
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