CCT48/13A

[2014] ZACC 12

2014 (6) BCLR 641 (CC)

2014 (4) SA 179 (CC)

Froneman J

11 February 2014

17 April 2014

http://hdl.handle.net/20.500.12144/34622

See also related CC judgments in this matter: Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others (CCT 48/13) [2013] ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1 (CC) (29 November 2013); AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others (CCT 48/13) [2015] ZACC 7; 2015 (6) BCLR 653 (CC) (24 March 2015); Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC Intervening) (CCT48/17) [2017] ZACC 8; 2017 (5) BCLR 543 (CC); 2017 (3) SA 335 (CC) (17 March 2017).

Judgment concerning just and equitable remedy arising from the Court’s earlier order declaring invalid the award of a large-scale public procurement tender in Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others [2013] ZACC 42 (merits judgment). After declaring the tender invalid in the merits judgment, the Court called for further submissions and set the matter down for a further hearing in order to determine what remedy would be just and equitable, and would avoid any adverse impact on the provision of social grants. The Court concluded that the tender award must be set aside and the tender rerun. It further ordered that the rerunning of the tender cannot cause any disruption in the payment of existing social grants. The order of invalidity was therefore suspended pending the running of the new tender to allow the current provision of social grants to continue. Once the tender has been rerun, SASSA will be able to exercise discretion over whether to award a new tender for 5 years, or retain the current provider. The Court also imposed a structural interdict requiring SASSA to report back to it at each stage of the new tender process to ensure accountability. As a further step to ensure accountability, Cash Paymaster Services was ordered to provide an audited account of all income and expenses arising from the tender if it runs to completion. Judgment: Froneman J (unanimous).

Remedy – unlawful tender – just and equitable remedy – tender set aside – new tender ordered – existing contract to remain in place until final decision on whether to award new tender