, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
Judicial Pragmatism or Institutional Overreach? A Critical Evaluation of the Constitutional
Court's Intervention in the Social Grants Crisis (Allpay, Black Sash, and SASSA v Minister of
Social Development)
I. Introduction and background to the dispute
The provision of social grants in South Africa constitutes a vital mechanism for the realisation of the
constitutional right of access to social security, enshrined in section 27(1)(c) of the Constitution.¹
Given the scale of this programme—serving upwards of 17 million beneficiaries—the state's failure
to administer it effectively would have catastrophic consequences, plunging millions into destitution.
The long-running legal saga concerning the tender for the payment of these grants has forced the
Constitutional Court to navigate a treacherous field of administrative law, contract law, and
constitutional rights. Beginning with the Allpay litigation, which declared the initial tender award to
Cash Paymaster Services (CPS) constitutionally invalid,² the Court was subsequently confronted in
Black Sash Trust v Minister of Social Development and Others [2017] ZACC 8 and South African
Social Security Agency and another v Minister of Social Development and others [2018] ZACC 26
with the consequences of the state’s failure to remedy the situation. This discussion will critically
evaluate the Court’s intervention, focusing on its willingness to suspend the consequences of
unlawful conduct and its imposition of supervisory jurisdiction, in order to assess the constitutional
significance of this judicial approach.
II. Facts of the case and issues before Court
The dispute originated when the South African Social Security Agency (SASSA) awarded a lucrative,
five-year tender to CPS for the nationwide payment of social grants. This award was successfully
challenged by a competitor, Allpay, leading to the Constitutional Court’s 2013 judgment in Allpay,
which declared the award constitutionally invalid.³ However, the Court suspended this declaration of
invalidity to avoid disrupting grant payments, ordering SASSA to re-run the tender process while
CPS continued providing services under a supervised, invalid contract.⁴
The crisis deepened when SASSA later admitted it would be unable to take over grant payments
from CPS by the contract's end date of 31 March 2017.⁵ Faced with an imminent, unlawful gap in
grant administration, the Black Sash Trust application was urgently brought. The core issue was
whether the Court could compel CPS, a private company with no valid contract, to continue paying
grants.⁶ Subsequently, in the *2018* litigation, the central issues evolved into the scope of the
Court’s supervisory powers and the mechanism for determining whether CPS had derived and should
repay any profit from its years of unlawful contract performance.⁷
¹ Constitution of the Republic of South Africa, 1996, s 27(1)(c).
² 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 at para 93.
³ Allpay [2013] ZACC 42 at para 93.
⁴ Allpay [2013] ZACC 42 at para 98.
⁵ Black Sash Trust v Minister of Social Development and Others [2017] ZACC 8 at para 12.
⁶ Black Sash [2017] ZACC 8 at para 15.
⁷ South African Social Security Agency and another v Minister of Social Development and others [2018] ZACC 26 at para 5.
Judicial Pragmatism or Institutional Overreach? A Critical Evaluation of the Constitutional
Court's Intervention in the Social Grants Crisis (Allpay, Black Sash, and SASSA v Minister of
Social Development)
I. Introduction and background to the dispute
The provision of social grants in South Africa constitutes a vital mechanism for the realisation of the
constitutional right of access to social security, enshrined in section 27(1)(c) of the Constitution.¹
Given the scale of this programme—serving upwards of 17 million beneficiaries—the state's failure
to administer it effectively would have catastrophic consequences, plunging millions into destitution.
The long-running legal saga concerning the tender for the payment of these grants has forced the
Constitutional Court to navigate a treacherous field of administrative law, contract law, and
constitutional rights. Beginning with the Allpay litigation, which declared the initial tender award to
Cash Paymaster Services (CPS) constitutionally invalid,² the Court was subsequently confronted in
Black Sash Trust v Minister of Social Development and Others [2017] ZACC 8 and South African
Social Security Agency and another v Minister of Social Development and others [2018] ZACC 26
with the consequences of the state’s failure to remedy the situation. This discussion will critically
evaluate the Court’s intervention, focusing on its willingness to suspend the consequences of
unlawful conduct and its imposition of supervisory jurisdiction, in order to assess the constitutional
significance of this judicial approach.
II. Facts of the case and issues before Court
The dispute originated when the South African Social Security Agency (SASSA) awarded a lucrative,
five-year tender to CPS for the nationwide payment of social grants. This award was successfully
challenged by a competitor, Allpay, leading to the Constitutional Court’s 2013 judgment in Allpay,
which declared the award constitutionally invalid.³ However, the Court suspended this declaration of
invalidity to avoid disrupting grant payments, ordering SASSA to re-run the tender process while
CPS continued providing services under a supervised, invalid contract.⁴
The crisis deepened when SASSA later admitted it would be unable to take over grant payments
from CPS by the contract's end date of 31 March 2017.⁵ Faced with an imminent, unlawful gap in
grant administration, the Black Sash Trust application was urgently brought. The core issue was
whether the Court could compel CPS, a private company with no valid contract, to continue paying
grants.⁶ Subsequently, in the *2018* litigation, the central issues evolved into the scope of the
Court’s supervisory powers and the mechanism for determining whether CPS had derived and should
repay any profit from its years of unlawful contract performance.⁷
¹ Constitution of the Republic of South Africa, 1996, s 27(1)(c).
² 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 at para 93.
³ Allpay [2013] ZACC 42 at para 93.
⁴ Allpay [2013] ZACC 42 at para 98.
⁵ Black Sash Trust v Minister of Social Development and Others [2017] ZACC 8 at para 12.
⁶ Black Sash [2017] ZACC 8 at para 15.
⁷ South African Social Security Agency and another v Minister of Social Development and others [2018] ZACC 26 at para 5.
