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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CCT: 48/2017

In the intervention application of:

FREEDOM UNDER LAW NPC Applicant

In the matter between :

THE BLACK SASH TRUST Applicant

and
THE MINISTER OF SOCIAL DEVELOPMENT First Respondent

CHIEF EXECUTIVE OFFICER OF THE SOUTH


Second Respondent
AFRICAN SOCIAL SECURITY AGENCY

SOUTH AFRICAN SOCIAL SECURITY AGENCY Third Respondent

THE MINISTER OF FINANCE Fourth Respondent

NATIONAL TREASURY Fifth Respondent

CASH PAYMASTER SERVICES (PTY) LTD Sixth Respondent

THE INFORMATION REGULATOR Seventh Respondent

and

DEMOCRATIC ALLIANCE First Intervening Party

FREEDOM UNDER LAW NPC Second Intervening Party

FILING SHEET

DOCUMENT TO BE FILED:

1. Sixth Respondent's Answering Affidavit to Freedom Under Law.


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2

rneys for the Sixth Respondent


12 Avonwold 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: MA T28041 /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, 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

In the intervention application of:

FREEDOM UNDER LAW NPC Applicant

In the matter between:

THE BLACK SASH TRUST Applicant

and

THE MINISTER OF SOCIAL DEVELOPMENT First Respondent

CHIEF EXECUTIVE OFFICER OF THE SOUTH


Second Respondent
AFRICAN SOCIAL SECURITY AGENCY

SOUTH AFRICAN SOCIAL SECURITY AGENCY Third Respondent

THE MINISTER OF FINANCE Fourth Respondent

NATIONAL TREASURY Fifth Respondent

CASH PAYMASTER SERVICES (PTY) LTD Sixth Respondent

THE INFORMATION REGULATOR Seventh Respondent

SIXTH RESPONDENT'S ANSWERING AFFIDAVIT TO FUL

I, the undersigned,

SERGE CHRISTIAN PIERRE BELAMANT

do hereby make oath and state that:


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1. I am a major male and director of the sixth respondent ("CPS"). I am duly

authorised to depose to this affidavit on behalf of the sixth respondent.

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

belief both true and correct.

3. This affidavit is filed in response to this Court's directions of 8 March 2017,

wherein it directed that -

3.1 FUL's application for leave to intervene is set down for hearing with the

main application; and

3.2 Parties wishing to oppose the application must file opposing papers by

16h00 on Friday, 10 March 2017.

4. CPS does not oppose the admission of FUL as an intervening party, although it

does oppose some of the relief that FUL seeks.

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

more detail, should th is become necessary.


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6. I do not reply to every paragraph in FUL's founding affidavit. Any allegation that

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.

THE RELIEF SOUGHT BY FUL

7. In its notice of motion , FUL seeks orders-

7.1 directing CPS , SASSA, the Minister and National Treasury to file all

documents and correspondence, and all draft versions of the interim

contract, pertaining to the negotiation , conclusion and authorisation of the

interim contract (prayer 4.1 );

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

basis of th is restriction (prayers 4.2.1 - 4 .2.3);

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

SASSA may reasonably require to conduct a lawful tender and put in

place a new payment system (prayer 4.2.4); and


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7.4 requiring CPS to file an audited statement of account under the

completed interim contract, and requiring SASSA to file an independent

audited verification thereof which must also be subject to the approval of

National Treasury (prayers 4.3 to 4.4) .

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

envisaged contract viable.

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

was required for the envisaged agreement.


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Prayers 4.3 and 4.4

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

independent audit is required .

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

incorrect. CPS's continued incumbency after 31 March 2017 is caused by

SASSA's failure to comply with its constitutional obligations and undertakings to

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

unlawful procurement decision in 2012. To the contrary, CPS has repeatedly

requested that SASSA engage with it on the transition to a new payment system,

to allow it to close down its operations on 31 March 2017.

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
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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

the envisaged contract, which will be a valid agreement if it is concluded at all.

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

approval and will do so as soon as it is available.

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

SASSA in its answering papers

Prayers 4.2.1, 4.2.2 and 4.2.3

18. CPS opposes the order sought in prayers 4 .2.1 to 4.2.3 of FUL's notice of motion.

It objects to an order that would compel it to contract with SASSA on precisely

the same terms as the 2012 contract in an emergency situation that is not of its

own making . Th is, I respectfully submit, cannot be reasonable or just and

equitable.
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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. In respect of the reasonableness of the quoted price, I emphasise that:

20.1 CPS was awarded the 2012 tender at a fixed price of R 16.44 (inclusive

of VAT). Accordingly CPS has not received an increase for inflation in 5

years.

20.2 Charges are per card-holder, not per beneficiary. The March 2017 pay

file recorded 10,581,744 cardholders .

20.3 The CPI rates since contract inception (April 2012) are as follows (see

annexure "AA1 "):

April 2012 to March 2013- 5.90%

April 2013 to March 2014 - 6.00%

April 2014 to March 2015-4.00%

April 2015 to March 2016 - 6.30%

April 2015- January 2017- 5.50% (applied pro-rata).


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117
20.4 The CPI indexed rates since contract inception (April2012) are as follows

(see annexure "AA1"):

April 2012- 77.9

January 2017 - 100.6

20.5 CPS's salary costs have increased by an average of 10% per year over

the contract period .

20.6 Security industry costs have increased by more than 10% per year over

the contract period.

20.7 Imported goods and services (smart cards, computer equipment and

software license fees) are subject to exchange rate fluctuation. The

exchange rate on 2 April 2012 was R7.65/US$1 .00. It is currently

R13.10/US$1.00. That constitutes a currency depreciation of 71%.

20.8 The 600 vehicles used in providing the payment services will require

replacement or at the very least increased maintenance. Most of them

are 5 years old and have been exposed to high mileage on rural roads.

The cost per payment vehicle - these vehicles are purpose build -

amount to approximately R1.2million. For instance, each vehicle is

equipped with battery inverter packs which require constant replacement.

20.9 The cost of fuel has increased significantly.


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20.10 Enrolment workstations have been in use for 5 years and are nearing the

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

pricing, as it bears on economies of scale.

22 . In assessing the reasonableness of CPS's fee, cognisance should also be taken

of the fact that -

22 .1 SASSA was paying, on average, R30 per payment prior to conclusion of

the contract with CPS in 2012.

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

capable of furnishing a responsive bid elected not to bid. This included

CPS and AIIPay.

22 .3 CPS has obligations not only to beneficiaries, but also to its shareholders.

CPS could utilise the payment infrastructure that it employs in performing

payment services for SASSA far more profitably in other ventures. The

extension of CPS's obligations to provide payment services under the

envisaged contract therefore has a significant opportunity cost for CPS

and its shareholders.


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23. In addition, CPS has agreed to provide certain transitional support services to

SASSA which did not form part of the 2012 contract. These include the following :

23.1 assistance in obtaining biometric authorisation from Beneficiaries for

deductions (as contemplated in regulation 26A of the Regulations) and

implementing control measures to ensure that only one such deduction

per month is allowed per beneficiary, not exceeding 10% (ten percent) of

the value of the beneficiary's grant;

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

centre operated by SASSA;

23.3 establishing an application protocol interface (API) to provide SASSA

access to the Control Account for purposes of reconciliation and auditing ;

and

23.4 assisting SASSA to establish a training facility and to facilitate a skills

transfer to ensure that SASSA employees are able to perform enrolment

functions and to comply with FICA requirements .

24. CPS has no commercial interest in continuing to provide payment services at

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

required to respond , is considerable. The litigation and investigations have

consumed the company's management resources , and have also impacted


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significantly on the company's business reputation and share price. To the

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

off competing in a competitive tender process as opposed to being forced into

a contract, as is currently the case.

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

in the first two years, as FUL contends.

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

that it goes further than the order in AI/Pay II.


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27. CPS notes that FUL has asked for costs in its Notice of Motion , including the

costs of counsel. I am advised that, if FUL's legal representatives are acting on a

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

to disclose whether its representatives are charging fees in the matter.

SERGE CHRISTIAN PIERRE BELAMANT

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.

Full names: 8~DA 6'-B r P~n..


Address: IS 5-iur-.Dee (7tJI.5f1U.E t.OS.eJ.a,-,nC..
Capacity: fbl f ct" LJ tf\ cat.- .
"AA 1 II

122

Table 8- CPI headline

Table 81 - CPI headline index numbers (Dec 2016=100)

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.

Table 82 - CPI headline year-on-year rates

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.

Figure 1 - CPI headline index numbers and year-on-year rates


Index Rate

105 7.0

1()0
.. 6 .5

. !
..
'
95
.. .. . '
6.0

... ... \ : ': ~/


: ~ I '

\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

Our Reference: MAT28041/0CJ/vda


E-mail : Tiaan@smitsew.co.za

Your Reference: A Norton I A Roets

NORTONS INC

E-MAIL: anthony@nortonsinc.com
anton@nortonsinc. com

08 March 2017

Dear Sirs,

RE:- FREEDOM UNDER LAW APPLICATION TO INTERVENE IN CASE NO CT 48/2017

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

Company Registration Number: 2009/006902/21


VAT Registration Number: 4510252580

Smit Sewgoolam
Attention : Mr 0 C Jonker

By email : tiaan@smitsew.co.za

9 March 2017

Dear Mr Jonker

FREEDOM UNDER LAW APPLICATION TO INTERVENE

1. We refer to the above matter and your letter of 8 March 2017.

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.

ny Norton I Anton Roets I Michelle Rawlinson


Nortons Inc.

. . .
' '
'
125
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CCT: 48/2017

THEBLACKSASHTRUST Applicant

and
THE MINISTER OF SOCIAL DEVELOPMENT First Respondent

CHIEF EXECUTIVE OFFICER OF THE SOUTH


Second Respondent
AFRICAN SOCIAL SECURITY AGENCY

SOUTH AFRICAN SOCIAL SECURITY AGENCY Third Respondent

THE MINISTER OF FINANCE Fourth Respondent

NATIONAL TREASURY Fifth Respondent

CASH PAYMASTER SERVICES (PTY) LTD Sixth Respondent

THE INFORMATION REGULATOR Seventh Respondent

and

FREEDOM UNDER LAW NPC Intervening Party

CORRUPTION WATCH NPC RF Amicus Curiae

NOTICE OF MOTION

PLEASE TAKE NOTICE that the sixth respondent will make application at the hearing

of the abovementioned matter for an order in the following terms:

1. The sixth respondent is granted condonation for the late filing of its answering

affidavit to Freedom Under Law's application to intervene filed in accordance with

the directions issued by the Chief Justice dated 8 March 2017;

2. Further and/or alternative relief; and


126
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3. Costs only in the event of opposition.

SIGNED and DATED at JOHANNESBURG on this the

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 :

THE BLACK SASH TRUST Applicant


and

THE MINISTER OF SOCIAL DEVELOPMENT First Respondent

CHIEF EXECUTIVE OFFICER OF THE SOUTH


Second Respondent
AFRICAN SOCIAL SECURITY AGENCY

SOUTH AFRICAN SOCIAL SECURITY AGENCY Third Respondent

THE MINISTER OF FINANCE Fourth Respondent

NATIONAL TREASURY Fifth Respondent

CASH PAYMASTER SERVICES (PTY) LTD Sixth Respondent

THE INFORMATION REGULATOR Seventh Respondent

and

FREEDOM UNDER LAW NPC Intervening Party

CORRUPTION WATCH NPC RF Amicus Curiae

SIXTH RESPONDENT'S AFFIDAVIT IN SUPPORT OF APPLICATION FOR


CONDONATION

I, the undersigned,

OCKERT CHRISTIAN JONKER

do hereby make oath and state that: j


130
2

1. I am a major male director of Smit Sewgoolam Incorporated, the sixth

respondent's attorneys of record, situated at 12 Avonwold Road, Saxonwold.

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

belief both true and correct.

3. This affidavit is filed in support of the sixth respondent's application for

condonation of the late filing of the sixth respondent's answering affidavit to

Freedom Under Law's intervention application. The answering affidavit was due

to be filed by 16h00 on 10 March 2017 in accordance with the directions of the

Chief Justice dated 8 March 2017 ("the directions").

4. The circumstances which gave rise to the late filing of the answering affidavit are

the following:

4.1 The sixth respondent received the directions at approximately 12h39 on

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

and meet the deadlines imposed by this Court.

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

affidavit to FUL's application on Friday, 10 March 2017 at approximately

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

this affidavit is attached.

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

THE BLACK SASH TRUST Applicant

and

THE MINISTER OF SOCIAL DEVELOPMENT First Respondent

CHIEF EXECUTIVE OFFICER OF THE SOUTH


Second Respondent
AFRICAN SOCIAL SECURITY AGENCY

SOUTH AFRICAN SOCIAL SECURITY AGENCY Third Respondent

THE MINISTER OF FINANCE Fourth Respondent

NATIONAL TREASURY Fifth Respondent

CASH PAYMASTER SERVICES (PTY) LTD Sixth Respondent

THE INFORMATION REGULATOR Seventh Respondent

and

FREEDOM UNDER LAW NPC Intervening Party

CORRUPTION WATCH NPC RF Amicus Curiae

FILING SHEET

DOCUMENTS TO BE FILED:

1. Sixth respondent's written submissions in FUL application;

2. Sixth respondent's practice note in FUL application; and

3. Sixth respondent's list of authorities in FUL application.

SIGNED and DATED at JOHANNESBURG on this the 13th day of MARCH 2017.
2

. -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, 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

In the intervention application of:

FREEDOM UNDER LAW NPC Applicant

In the matter between:

THE BLACK SASH TRUST Applicant

and

THE MINISTER OF SOCIAL DEVELOPMENT First Respondent

CHIEF EXECUTIVE OFFICER OF THE SOUTH


Second Respondent
AFRICAN SOCIAL SECURITY AGENCY

SOUTH AFRICAN SOCIAL SECURITY AGENCY Third Respondent

THE MINISTER OF FINANCE Fourth Respondent

NATIONAL TREASURY Fifth Respondent

CASH PAYMASTER SERVICES (PTY) LTD Sixth Respondent

THE INFORMATION REGULATOR Seventh Respondent

___________________________________________________________________

SIXTH RESPONDENTS WRITTEN SUBMISSIONS IN THE FUL APPLICATION


___________________________________________________________________

INTRODUCTION

1. Freedom Under Law (FUL) has applied to intervene as an applicant in order

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

disciplined by the relevant constitutional obligations.1

2. FUL seeks the following substantive relief:

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

National Treasury to file all documents and correspondence relating to the

negotiation, conclusion and authorisation of the interim contract, copies of

all draft versions of the interim contract and the final version of the interim

contract.

2.2 In prayer 4.2, FUL seeks orders declaring that:

- 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

restriction (prayer 4.2.3); and

- the interim contract may not endure for a period of longer than 18

months, alternatively such shorter period of time that may reasonably

be required to conduct a lawful tender and put in place a new payment

system (prayer 4.2.4).

1 FUL FA para 13.


3

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

contract within 30 days of the completion of the interim contract.

2.4 In prayer 4.4, FUL seeks an order directing SASSA to file an independent

audited verification of the audited statement of account provided by CPS,

which must also be subject to the approval of National Treasury.

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

summarise CPSs position in relation to each of the substantive prayers in FULs

notice of motion.

PRAYER 4.1: DISCLOSURE OF DOCUMENTS

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

for purposes of transparency and accountability. In his directions of 8 March

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.

2 CPS AA to FUL para 4.


3 Para 2(b).
4

6. More generally, FULs founding affidavit makes out no case for why every SMS,

Whatsapp message or email relating to the negotiation, conclusion and/or

authorisation or approval of the interim contract should be produced.4 It would

impose a substantial burden on CPS, SASSA, the Minister and National Treasury

if they were required to identify every item of communication referred to in prayer

4.1.1. There is nothing in FULs founding affidavit to suggest that the benefits of

this exercise would exceed the burdens.

7. CPS has already furnished this Court with all the written correspondence it

exchanged with SASSA in respect of the expiry of the contract.5

8. If FUL (or any other person) seeks access to other documents, that may be done

under the Promotion of Access to Information Act 2 of 2000.6

9. FULs contention that extensive disclosure is required, is premised on the

assumption that CPS has sought to exploit its incumbency in order to obtain an

undue advantage in negotiating the interim contract.7 This assumption is

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.

PRAYER 4.2: THE CONTENT OF THE INTERIM CONTRACT

11. Prayer 4.2 seeks an order declaring that CPS may not perform certain conduct

irrespective of any terms or proposed terms of the interim contract. In other

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

discharge their contractual obligations in terms of a valid agreement.

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

to terminate the current negotiations with CPS and to engage afresh in

negotiations with CPS if National Treasury were to allow SASSA to deviate from

its standard procurement process.8 As SASSA points out, it would be premature

for the Court to prescribe the terms of any interim contract in circumstances

where negotiations are ongoing.9

8 SASSA AA para 8.
9 SASSA AA to para 10.
6

13. In Napier v Barkhuizen,10 Cameron JA (as he then was) stated that

intruding on apparently voluntarily concluded arrangements is a step that


Judges should countenance with care, particularly when it requires them
to impose their individual conceptions of fairness and justice on parties
individual arrangements.

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

Treasury and the Court as may be required.

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:

15.1 As regards (a): if an interim contract were to be concluded, it would be a

lawful contract concluded pursuant to the mechanism proposed by the

Ministerial Task Team. The principle of AllPay II (namely that CPS has

no right to benefit from an unlawful contract)14 would find no application if

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

after 1 April 2017, its continued incumbency would be a consequence of

SASSAs failure to comply with its constitutional obligations and

undertakings. FUL makes this very point when it states that CPSs

incumbency would be a product of the inexplicable delays on the part of

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

FUL is therefore wrong to say that the interim contract would be a

consequence of the invalid 2012 contract.18

15.3 CPS has not sought to remain the incumbent after 31 March 2017 or to

extend the impact of SASSAs unlawful procurement decision in 2012. To

the contrary, CPS has repeatedly requested that SASSA engage with it on

the transition to a new payment system, in order to allow it to close down

its operations on 31 March 2017.19

15 FUL FA para 74.


16 FUL FA para 61.
17 FUL FA para 73.3 (our underlining).
18 FUL FA para 89.
19 CPS AA to Black Sash paras 6, 8.
8

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

operate after 1 April 2017.

17. If this Court were minded to have regard to the terms of the envisaged interim

contract, CPS has indicated the following:

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

a period of 18 months or less as proposed by FUL, provided that SASSA

is able to do what is required in that period. CPS would also need to review

the price after taking account of economies of scale.23

20 FUL FA para 92.


21 AllPay II para 66.
22 CPS AA to FUL paras 19-20.
23 CPS AA to FUL para 9.
9

PRAYER 4.3: AUDITED VERIFICATION BY CPS

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

will be publicly accountable.25

19. The order sought in prayer 4.3 corresponds with this Courts order in paragraph

4.2 of AllPay II, which was directed at ensuring accountability.

PRAYER 4.4: AUDITED VERIFICATION BY SASSA

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

in AllPay II. That order directed SASSA to obtain an independent audited

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

transparency and public accountability.

24 AllPay II paras 52 55.


25 AllPay II para 58.
10

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

FULs notice of motion; and

- 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.

22. CPS does not seek costs against FUL.

ALFRED COCKRELL SC

JANICE BLEAZARD

NDUMISO LUTHULI

Counsel for the sixth respondent


Chambers
Sandton
13 March 2017
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CCT: 48/2017

In the intervention application of:

FREEDOM UNDER LAW NPC Applicant

In the matter between:

THE BLACK SASH TRUST Applicant

and

THE MINISTER OF SOCIAL DEVELOPMENT First Respondent

CHIEF EXECUTIVE OFFICER OF THE SOUTH


Second Respondent
AFRICAN SOCIAL SECURITY AGENCY

SOUTH AFRICAN SOCIAL SECURITY AGENCY Third Respondent

THE MINISTER OF FINANCE Fourth Respondent

NATIONAL TREASURY Fifth Respondent

CASH PAYMASTER SERVICES (PTY) LTD Sixth Respondent

THE INFORMATION REGULATOR Seventh Respondent

___________________________________________________________________

SIXTH RESPONDENTS PRACTICE NOTE IN THE FUL APPLICATION


___________________________________________________________________

Nature of the proceedings

1. This is an urgent application to intervene as an applicant in the application for

direct access to this Court brought by the Black Sash Trust (the Black Sash).

The application is brought in in terms of Rules 8, 12 and 18. Intervention and

direct access is sought by the applicant (FUL) to address certain additional

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

2. Whether FUL should be granted direct access and be allowed to intervene as

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

to the negotiation, conclusion, and any authorisations and/or approvals in

respect of the conclusion of the interim contract.

4. Whether the Court can and should restrict

4.1 the price that CPS may charge for its services under the interim contract;

and

4.2 the duration of the interim contract.

5. Whether the Court should impose a reporting requirement to ensure public

accountability that goes beyond what this Court directed in paragraph 4.3 of its

order in AllPay II where this Court directed SASSA to obtain an independent

audited verification of the details provided by [CPS] and file the audited

verification with this court.


3

Portion of the record necessary for the determination of the matter

6. The whole record.

Estimated duration of oral argument

7. One day

Summary of argument

8. Save for the final version of the interim contract, CPS opposes the filing of all

documents in prayer 4.1 of FULs notice of motion on the basis that it is

overbroad.

9. There is no basis for the Court to declare that contracting parties may not

exercise their contractual entitlements or discharge their contractual obligations,

as sought in FULs prayer 4.2.

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

further than the order in AllPay II.


4

List of authorities on which particular reliance will be placed

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

641 (CC) (AllPay II).

13. Napier v Barkhuizen 2006 (4) SA 1 (SCA).

14. Barkhuizen v Napier 2007 (5) SA 323 (CC).

ALFRED COCKRELL SC

JANICE BLEAZARD

NDUMISO LUTHULI

Counsel for the sixth respondent


Chambers
Sandton
13 March 2017
LIST OF AUTHORITIES

1. 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).

2. Napier v Barkhuizen 2006 (4) SA 1 (SCA).

3. Barkhuizen v Napier 2007 (5) SA 323 (CC).


IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CCT: 48/2017

THE BLACK SASH TRUST Applicant

and
THE MINISTER OF SOCIAL DEVELOPMENT First Respondent

CHIEF EXECUTIVE OFFICER OF THE SOUTH


Second Respondent
AFRICAN SOCIAL SECURITY AGENCY

SOUTH AFRICAN SOCIAL SECURITY AGENCY Third Respondent

THE MINISTER OF FINANCE Fourth Respondent

NATIONAL TREASURY Fifth Respondent

CASH PAYMASTER SERVICES (PTY) LTD Sixth Respondent

THE INFORMATION REGULATOR Seventh Respondent

and

FREEDOM UNDER LAW NPC Intervening Party

CORRUPTION WATCH NPC RF Amicus Curiae

FILING SHEET

DOCUMENTS TO BE FILED:

1. Sixth respondent's written submissions in Black Sash application;

2. Sixth respondent's practice note in Black Sash application; and

3. Sixth respondent's list of authorities in Black Sash application.

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:

THE BLACK SASH TRUST Applicant

and

THE MINISTER OF SOCIAL DEVELOPMENT First Respondent

CHIEF EXECUTIVE OFFICER OF THE SOUTH


Second Respondent
AFRICAN SOCIAL SECURITY AGENCY

SOUTH AFRICAN SOCIAL SECURITY AGENCY Third Respondent

THE MINISTER OF FINANCE Fourth Respondent

NATIONAL TREASURY Fifth Respondent

CASH PAYMASTER SERVICES (PTY) LTD Sixth Respondent

THE INFORMATION REGULATOR Seventh Respondent

__________________________________________________________

SIXTH RESPONDENTS WRITTEN SUBMISSIONS IN THE


BLACK SASH APPLICATION
__________________________________________________________

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

before it is a fait accompli.2

1 Black Sash FA para 10.


2 Black Sash FA para 10.1.
2

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

3. In these submissions we shall briefly describe the background to the application

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

constitutionally invalid.5 The Court found that:

- SASSA failed to investigate and confirm the tenderers empowerment

credentials before the award;6 and

- the requirements of the tender were vague and uncertain in relation to

biometric verification.7

3 CPS AA para 3 read with para 3.5.


4 Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South
African Social Security Agency 2014 (1) SA 604 (CC); 2014 (1) BCLR 1 (CC) (AllPay I).
5 AllPay I order paragraph 3.
6 At para 54.
7 At paras 76 -79.
3

5. Both of those review grounds were directed at the conduct of SASSA. There

was no finding of fraud or corruption on the part of CPS or SASSA.8

6. In AllPay II, the Court declared invalid the contract between SASSA and CPS

but suspended the declaration of invalidity pending a new procurement

process.9 The Court ordered that, if a new tender was not awarded, the

declaration of invalidity would be suspended until completion of the five-year

period for which the contract was initially awarded.10 That five-year period will

expire on 31 March 2017.

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

November 2015 the Court issued an order discharging its supervisory

jurisdiction over SASSA.13

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:

it is SASSA that has been remiss.

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

time as another payment system is in place. This Court held as much in

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

answering affidavit on 10 March 2017, CPS learned that a Ministerial Task

14 Black Sash FA para 51.


15 CPS AA to FUL para 24.
16 CPS AA to FUL para 24.
17 Para 66 ([CPS] cannot simply walk away: it has the constitutional obligation to ensure that a
workable payment system remains in place until a new one is operational).
18 CPS AA to Black Sash para 7; CPS AA to FUL para 19.
5

Team (the MTT) had decided to terminate the negotiations with CPS and to

engage afresh in negotiations with CPS if National Treasury were to allow

SASSA to deviate from its standard procurement process. SASSA indicated that

it expects to obtain the MTTs approval of its deviation application on Sunday

12 March 2017, after which it will submit the application to National Treasury.19

THE RELIEF SOUGHT BY THE BLACK SASH AGAINST CPS

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

reasonably, with due regard to its constitutional obligations , in

negotiating and contracting with SASSA for the interim contract.

13.2 Prayer 5 seeks an order directing that various personal information

protection safeguards must be included in the interim contract.

14. We address this relief below.

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

constitutional obligations in negotiating with SASSA in relation to the interim

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

the Black Sashs notice of motion.

Prayer 5

17. CPS does not oppose the order sought in prayer 5(a) of the Black Sashs notice

of motion. In substance, it replicates the order of this Court in AllPay II which

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

grants or any other purpose sanctioned by the Minister in terms of section

20(3) and (4) of the Social Assistance Act 13 of 2004.22

21 CPS AA to Black Sash para 3.4.


22 AllPay II at paragraph 3.1(c) of the order.
7

18. Black Sash has stated that it no longer seeks the order in prayer 5(b) of its notice

of motion.23 CPSs concern regarding the wording of this prayer is therefore no

longer an issue that need detain the Court.

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

Counsel for the sixth respondent


Chambers
Sandton
13 March 2017

23 Black Sash submissions para 44.


24 CPS AA to Black Sash para 11.
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CCT: 48/2017
In the matter between:

THE BLACK SASH TRUST Applicant

and

THE MINISTER OF SOCIAL DEVELOPMENT First Respondent

CHIEF EXECUTIVE OFFICER OF THE SOUTH


Second Respondent
AFRICAN SOCIAL SECURITY AGENCY

SOUTH AFRICAN SOCIAL SECURITY AGENCY Third Respondent

THE MINISTER OF FINANCE Fourth Respondent

NATIONAL TREASURY Fifth Respondent

CASH PAYMASTER SERVICES (PTY) LTD Sixth Respondent

THE INFORMATION REGULATOR Seventh Respondent

___________________________________________________________________

SIXTH RESPONDENTS PRACTICE NOTE IN THE BLACK SASH APPLICATION


___________________________________________________________________

Nature of the proceedings

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

certain matters relating to an interim contract intended between the third

respondent (SASSA) and the sixth respondent (CPS).

Issues to be argued

2. Whether the Black Sash should be granted direct access.


2

3. Whether CPS is under a duty to act reasonably with due regard to its

constitutional obligations in negotiating and concluding the intended interim

contract with SASSA.

4. Whether this Court should stipulate contractual conditions to protect the

personal information of grant beneficiaries for inclusion in the intended interim

concluded.

5. Whether this Court should exercise supervisory jurisdiction over the intended

interim contract once concluded.

Portion of the record necessary for the determination of the matter

6. The whole record.

Estimated duration of oral argument

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.

List of authorities on which particular reliance will be placed

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

641 (CC) (AllPay II).


3

ALFRED COCKRELL SC

JANICE BLEAZARD

NDUMISO LUTHULI

Counsel for the sixth respondent


Chambers
Sandton
13 March 2017
LIST OF AUTHORITIES

1. Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of

the South African Social Security Agency 2014 (1) SA 604 (CC); 2014 (1) BCLR

1 (CC) (AllPay I)

2. 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).