AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others

This judgment is the third in a series of judgments arising from a tender process for the payment of social grants to approximately 15 million beneficiaries. In AllPay 1, the Constitutional Court set aside a tender awarded by the South African Social Security Agency (SASSA). In AllPay 2, the Court declared the contract between SASSA and Cash Paymaster Services (CPS) invalid but suspended the declaration of invalidity to allow SASSA to re-run the tender process. The Court imposed a structural order requiring SASSA to report back at various stages and appointed new Bid Evaluation and Bid Adjudication Committees. On 5 November 2014, CPS lodged a request for ancillary relief, seeking to have the revised Request for Proposals (RFP) issued by SASSA declared invalid and set aside. Following Court directions, the parties exchanged proposals and amendments to the RFP. At the hearing on 19 March 2015, the parties reached agreement on most aspects and presented a draft order, with only paragraph 5 (limiting future relief to this Court and protecting beneficiaries' interests) contested by CPS.

• Whether the Constitutional Court retains supervisory jurisdiction over the tender process to the exclusion of other courts
• Whether parties may only approach the Constitutional Court for further relief during the tender process
• Whether access to the Constitutional Court should be limited to circumstances necessary to protect the interests of beneficiaries
• The scope and extent of structural interdicts and ongoing supervisory orders

The Court issued a composite order: (1) CPS has only five remaining objections to the draft amended RFP; (2) SASSA must effect proposed amendments by 2 April 2015; (3) If CPS still has objections, it must notify parties and the Court by 16 April 2015, and the Court will issue directions for an urgent hearing; (4) Save for any objections in paragraph 3: SASSA must circulate the RFP by 17 April 2015, all bids must be submitted by 17 May 2015, and SASSA must award the new tender by 15 October 2015; (5) The parties may only approach this Court for further relief.

Where the Constitutional Court has issued a structural interdict with ongoing supervisory jurisdiction over a remedial process, the Court retains exclusive jurisdiction to hear applications for further relief until completion of that process. However, access to the Court during this supervisory phase should not be limited by preliminary requirements such as proving it is 'necessary to protect' particular interests. Instead, the interests of affected rights-holders (beneficiaries) will be central to the Court's exercise of its jurisdictional discretion in determining whether to entertain applications for further relief. The principles from AllPay 2 continue to apply: entities performing constitutional functions cannot simply walk away from their obligations; they have no right to benefit from unlawful contracts; and they must be publicly accountable for gains under such contracts.

The Court noted concerns raised in papers (except by CPS) about delays in finalisation of the tender process benefitting CPS both financially in relation to the period still to run under the invalid tender and in the allocation of a new tender, describing this as a 'legitimate concern.' The Court observed that it is 'difficult, if not impossible, to imagine' on what basis (other than those agreed to in paragraph 3 of the order) any of the parties could approach the Court for further relief, suggesting such circumstances would be 'highly unlikely.' The Court also commented that if concerns about alleged unlawful deductions from beneficiaries' accounts were to be introduced in these proceedings, it would have an adverse effect on finalisation of the process, suggesting these aspects 'may, if necessary, be pursued in the future' rather than in the current proceedings.

This judgment clarifies the scope and operation of structural interdicts and supervisory jurisdiction in South African constitutional law. It demonstrates the Constitutional Court's approach to monitoring compliance with its remedial orders in complex administrative matters involving constitutional rights. The case is significant for establishing that while the Constitutional Court may retain exclusive supervisory jurisdiction over ongoing remedial processes, access to the Court should not be artificially limited by preliminary conditions, but rather determined through the exercise of judicial discretion with the interests of affected parties (here, social grant beneficiaries) at the centre. The judgment also illustrates the Court's willingness to facilitate settlement between parties while maintaining oversight to ensure constitutional obligations are fulfilled. The case forms part of the important AllPay trilogy concerning procurement irregularities affecting the constitutional rights of vulnerable social grant recipients.