You were one of two NGOs who intervened in the case around suspected corruption in the tender for administering social grants. How does an NGO go about doing this? Why did the court agree to hear you when it had two well-resourced contesting parties before it already? Wasn't it a waste of time, or was your intervention successful?
You’re right that both Corruption Watch and the Centre for Child Law intervened in the case concerning the administration of social grants before the Constitutional Court. There is a well-established procedure for an interested person to intervene in a constitutional case as an amicus curiae – Latin for “friend of the court”.
The Constitutional Court has explained the role and importance of amici curiae as follows:
“Amici curiae have made and continue to make an invaluable contribution to this court’s jurisprudence. Most, if not all constitutional matters present issues, the resolution of which will invariably have an impact beyond the parties directly litigating before the court. Constitutional litigation by its very nature requires the determination of issues squarely in the public interest, and in so far as amici introduce additional, new and relevant perspectives, leading to more nuanced judicial decisions, their participation in litigation is to be welcomed and encouraged.”
Tender irregularities can point to deeper corruption
The social grants case was not only about who would win the tender. It was also about how courts should deal with allegations of irregularities in tender processes. If the government makes mistakes in the tender process, but it would have reached the same decision even if it had not made any mistakes, can a court declare the tender invalid? Put differently, must courts ensure only the right outcome of tenders, or also safeguard the process by which the tender was awarded?
The Supreme Court of Appeal had held that technical flaws that do not affect the outcome, are not a basis to invalidate the tender. Corruption Watch argued before the Constitutional Court that this approach was flawed. It pointed out that procedural irregularities are often indicators of corruption. It is generally very difficult to prove corruption actually occurred, but where a tender process is plagued by seemingly unimportant procedural anomalies, it is often because the award of the tender is being manipulated towards a pre-determined end.
The Constitutional Court agreed with Corruption Watch’s submissions. The court held that it is vital for courts to defend not only that tenders have a fair outcome, but that tenders follow a fair process. The intervention was therefore extremely successful.
The Centre for Child Law’s intervention was also successful. It argued that if the court found that the award of the tender was unlawful, it should not declare it immediately invalid. If it did so, social grant beneficiaries would be unable to receive their social grants until a new service provider was appointed. It also argued that by accepting the award of the tender, Cash Paymaster Services – the company that won the initial tender – had constitutional obligations to ensure the regular provision of social grants, even if the tender was invalid.
The Constitutional Court agreed with these arguments. It granted an order that requires Cash Paymaster Services to continue to pay social grants until a new tender process is finalised, and agreed to monitor the new tender process to protect beneficiaries. The court also held that Cash Paymaster Services “plays a unique and central role as the gatekeeper of the right to social security and effectively controls beneficiaries’ access to social assistance”. It therefore had constitutional obligations to continue to pay social grants.
This case demonstrates the value of amici curiae in constitutional litigation.
• This article was first published in Sunday Times: Business Times