Who is the social grant April fool?

Minister Bathabile Dlamini

So Jacob Zuma reckons – actually he guarantees – that all 17 million social grant beneficiaries will receive payment come April 1. He also reckons that the unmitigated disaster-in-the-making has been “blown out of proportion.” In typical ANC-speak, it is a “challenge”, rather than a crisis.

Quite naturally, Jacob Zuma has blamed the media for complicating matters by asking too many questions of ministers, whom he exhorts to “stop answering those questions. Focus on making sure that grants get paid.”

But they will be paid, there is no doubt about that, because were they not paid on April 1, it would be a calamity of titanic proportions.

In 2014, the Constitutional Court ruled that the contract awarded to Cash Paymaster Services (CPS) was invalid and must be set aside.

The court gave the South African Social Security Agency (SASSA) until March 31 to find, through appropriate tender processes, a new service provider to replace CPS, or to take the payment system in-house.

That precisely nothing has been done in this regard means that at the very least, somebody at Sassa, and Social Development minister Bathabile Dlamini will, in effect, be in contempt of court on April 1.

For the record, even if a suitable replacement had been identified at this late stage – the SA Post Office was touted recently as a possible service provider – it could never have successfully taken over the database of 17 million grant beneficiaries and implemented a payment solution in the time available.

The Constitutional Court has stepped in, issuing a court order which poses some tricky questions for Sassa. The court want to know:

who determined that Sassa would not be in a position to pay grants and the date when that person became aware of this;

the “exact dates” when that person realised Sassa would not meet the deadlines set for it by the court;

the reason the court was not immediately informed; and

whether and when Bathabile Dlamini was informed that Sassa would not be able to take over grant payments.

The court also wants to know whether Sassa has entered into a new contract with CPS, and if so, to give full details of the agreement.

The first four questions are all legitimate in the context of the court’s 2014 ruling, but that last one, about a possible deal with CPS, puts the court in uncharted judicial territory, in that it is attempting to take preemptive action at its own behest.

But why would Chief Justice Mogoeng Mogoeng even contemplate going there?

Because he fully understands that if those grants are not paid on April 1, and each month thereafter until a suitable replacement is awarded the contract, or the payment system is successfully taken in-house by Sassa, beneficiaries would suffer unendurable hardship.

For many beneficiaries, what they get each month in the form of a grant, is all that sustains them. Without it, they would be destitute.

The court is in an invidious position, because if it simply sits and waits for April 1 before it takes any action, it may well be too late.

There is no other option, but for the court to allow CPS to continue as service provider, and probably on the terms dictated by CPS – a rumoured increase in the transaction fee from R16 to R25, which is hardly “inflation-linked” as suggested by CPS boss, Serge Belamant.

As an aside, how such a poster-child for black economic empowerment was awarded one of the most important disbursement contracts in the country, is beyond belief, particularly considering Bathabile Dlamini’s pronouncements about “white monopoly capital” during her disastrous press conference on Sunday March 5.

Whereas the court may well be accused of judicial overreach, it has little option. It simply must do all that it can to ensure those grants get paid, even if it means taking unprecedented action in supervising the conclusion of a deal with CPS.

What legal precedents such a move might establish is unclear, but suffice it to say, this will change the judicial landscape forever.

Come April 1, somebody at Sassa, and the minister, will be in contempt of court, but what will the court do about that? Well, contempt of court is a criminal offence, and whatever it is that the court uncovers in Sassa’s responses to its questions, will determine who will have to stand accountable.

What the court will most likely do, is make a contempt finding, but suspend its implementation for a period, say six months, during which time those so accused must furnish reasons why they should not be found in contempt, but what are the chances of that?

By this cunning piece of judicial sleight of hand, the court will hold the miscreants to account while ensuring that grants get paid, and although justice might be delayed, it will not be denied.