UNIVERSITY OF SOUTH AFRICA
College of Law
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
MSL5901: Master of Laws in In-
ternational Commercial Law
Assignment 1 — Semester 1, 2026
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
MSL5901
Module Code:
International Commercial Law
Module Name:
Judicial Intervention in the Administration
Assignment Topic:
of Social Grants in South Africa
13 May 2026
Due Date:
Submitted in partial fulfilment of the requirements for MSL5901 — UNISA 2026
,UNISA | MSL5901 Judicial Intervention in Social Grants Administration
Introduction
Few episodes in South Africa’s post-apartheid constitutional history have tested the relation-
ship between the judiciary, the executive, and the social rights of millions of vulnerable people
quite as sharply as the SASSA grants crisis. Between 2013 and 2018, the Constitutional Court
was drawn into a saga that began as a procurement dispute and escalated into something far
more uncomfortable: a court being forced to sustain an unlawful arrangement, not because it
lacked the will to do otherwise, but because the alternative, namely millions of grant recipi-
ents going unpaid, was simply unthinkable.
This essay critically examines the Court’s intervention through two judgments in particular.
The first is Black Sash Trust v Minister of Social Development and Others 1 and the second
is South African Social Security Agency and Another v Minister of Social Development and
Others.2 Both must be read against their background in the AllPay litigation and understood
alongside the later costs judgment.3 The essay evaluates the constitutional significance of
the Court’s approach and closes with a personal assessment of the Court’s use of suspended
invalidity as a remedial tool.
1
Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC Intervening)
[2017] ZACC 8; 2017 (5) BCLR 543 (CC); 2017 (3) SA 335 (CC) (17 March 2017) (hereafter Black Sash
1 ).
2
South African Social Security Agency and Another v Minister of Social Development and Others [2018]
ZACC 26; 2018 (10) BCLR 1291 (CC) (30 August 2018) (hereafter SASSA 2018 ).
3
Black Sash Trust v Minister of Social Development and Others (Freedom Under Law Intervening) [2018]
ZACC 36 (27 September 2018) (hereafter Black Sash Costs).
Page 2 of 18
, UNISA | MSL5901 Judicial Intervention in Social Grants Administration
1. Background: The AllPay Litigation and the Seeds of Crisis
1.1 The Unlawful Tender and Initial Suspension
In February 2012, the South African Social Security Agency (SASSA) awarded a R10 billion
tender to Cash Paymaster Services (Pty) Ltd (CPS), a subsidiary of Net1 UEPS Technolo-
gies, to administer social grant payments to roughly 17 million beneficiaries across all nine
provinces.4 An unsuccessful tenderer, AllPay Consolidated Holdings, challenged the award
on the ground that SASSA had committed material procedural irregularities, among them
failing to verify CPS’s BEE partner capacity and creating vagueness through a bidders’ notice
issued in June 2011. The Constitutional Court agreed. The tender process was declared incon-
sistent with section 217(1) of the Constitution, which requires public procurement to be fair,
equitable, transparent, competitive and cost-effective.5
Critically, the Court did not simply set the contract aside. Conscious of the immediately
catastrophic consequences of a procurement vacancy for 17 million beneficiaries, the Court
in AllPay 2 suspended the declaration of invalidity pending a re-run of the tender process.6
CPS was directed to continue performing under the invalid contract, subject to a structural in-
terdict requiring SASSA to report back on tender progress at prescribed intervals. In Novem-
ber 2015, SASSA filed a report that it had abandoned the tender process entirely and would
instead administer grant payments itself from 31 March 2017.7 The Court accepted that assur-
ance. As events would show, that acceptance was misplaced.
1.2 The Looming Crisis of 2017
By early 2017 it was clear that SASSA’s undertaking was not going to be honoured. SASSA
had known since April 2016 that it could not meet the deadline, and the Minister of Social
Development, Ms Bathabile Dlamini, had known since October 2016.8 Neither SASSA nor
the Minister notified the Court. Neither took steps to conclude a lawful replacement contract.
4
See AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South
African Social Security Agency and Others [2013] ZACC 42; 2014 (1) SA 604 (CC) (AllPay 1 ) for the full
merits judgment.
5
Constitution of the Republic of South Africa, 1996, s 217(1).
6
AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South
African Social Security Agency and Others (No 2) [2014] ZACC 12; 2014 (6) BCLR 641 (CC) (AllPay 2 )
para 45.
7
Black Sash 1 (n 1) para 13.
8
Black Sash 1 (n 1) para 11; see also the account in C Mbazira, ‘Social Grant Payments: A Crisis Averted?’
(2017) Revue de Droit Comparee du Travail et de la Securite Sociale 1, 2.
Page 3 of 18
College of Law
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
MSL5901: Master of Laws in In-
ternational Commercial Law
Assignment 1 — Semester 1, 2026
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
MSL5901
Module Code:
International Commercial Law
Module Name:
Judicial Intervention in the Administration
Assignment Topic:
of Social Grants in South Africa
13 May 2026
Due Date:
Submitted in partial fulfilment of the requirements for MSL5901 — UNISA 2026
,UNISA | MSL5901 Judicial Intervention in Social Grants Administration
Introduction
Few episodes in South Africa’s post-apartheid constitutional history have tested the relation-
ship between the judiciary, the executive, and the social rights of millions of vulnerable people
quite as sharply as the SASSA grants crisis. Between 2013 and 2018, the Constitutional Court
was drawn into a saga that began as a procurement dispute and escalated into something far
more uncomfortable: a court being forced to sustain an unlawful arrangement, not because it
lacked the will to do otherwise, but because the alternative, namely millions of grant recipi-
ents going unpaid, was simply unthinkable.
This essay critically examines the Court’s intervention through two judgments in particular.
The first is Black Sash Trust v Minister of Social Development and Others 1 and the second
is South African Social Security Agency and Another v Minister of Social Development and
Others.2 Both must be read against their background in the AllPay litigation and understood
alongside the later costs judgment.3 The essay evaluates the constitutional significance of
the Court’s approach and closes with a personal assessment of the Court’s use of suspended
invalidity as a remedial tool.
1
Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC Intervening)
[2017] ZACC 8; 2017 (5) BCLR 543 (CC); 2017 (3) SA 335 (CC) (17 March 2017) (hereafter Black Sash
1 ).
2
South African Social Security Agency and Another v Minister of Social Development and Others [2018]
ZACC 26; 2018 (10) BCLR 1291 (CC) (30 August 2018) (hereafter SASSA 2018 ).
3
Black Sash Trust v Minister of Social Development and Others (Freedom Under Law Intervening) [2018]
ZACC 36 (27 September 2018) (hereafter Black Sash Costs).
Page 2 of 18
, UNISA | MSL5901 Judicial Intervention in Social Grants Administration
1. Background: The AllPay Litigation and the Seeds of Crisis
1.1 The Unlawful Tender and Initial Suspension
In February 2012, the South African Social Security Agency (SASSA) awarded a R10 billion
tender to Cash Paymaster Services (Pty) Ltd (CPS), a subsidiary of Net1 UEPS Technolo-
gies, to administer social grant payments to roughly 17 million beneficiaries across all nine
provinces.4 An unsuccessful tenderer, AllPay Consolidated Holdings, challenged the award
on the ground that SASSA had committed material procedural irregularities, among them
failing to verify CPS’s BEE partner capacity and creating vagueness through a bidders’ notice
issued in June 2011. The Constitutional Court agreed. The tender process was declared incon-
sistent with section 217(1) of the Constitution, which requires public procurement to be fair,
equitable, transparent, competitive and cost-effective.5
Critically, the Court did not simply set the contract aside. Conscious of the immediately
catastrophic consequences of a procurement vacancy for 17 million beneficiaries, the Court
in AllPay 2 suspended the declaration of invalidity pending a re-run of the tender process.6
CPS was directed to continue performing under the invalid contract, subject to a structural in-
terdict requiring SASSA to report back on tender progress at prescribed intervals. In Novem-
ber 2015, SASSA filed a report that it had abandoned the tender process entirely and would
instead administer grant payments itself from 31 March 2017.7 The Court accepted that assur-
ance. As events would show, that acceptance was misplaced.
1.2 The Looming Crisis of 2017
By early 2017 it was clear that SASSA’s undertaking was not going to be honoured. SASSA
had known since April 2016 that it could not meet the deadline, and the Minister of Social
Development, Ms Bathabile Dlamini, had known since October 2016.8 Neither SASSA nor
the Minister notified the Court. Neither took steps to conclude a lawful replacement contract.
4
See AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South
African Social Security Agency and Others [2013] ZACC 42; 2014 (1) SA 604 (CC) (AllPay 1 ) for the full
merits judgment.
5
Constitution of the Republic of South Africa, 1996, s 217(1).
6
AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South
African Social Security Agency and Others (No 2) [2014] ZACC 12; 2014 (6) BCLR 641 (CC) (AllPay 2 )
para 45.
7
Black Sash 1 (n 1) para 13.
8
Black Sash 1 (n 1) para 11; see also the account in C Mbazira, ‘Social Grant Payments: A Crisis Averted?’
(2017) Revue de Droit Comparee du Travail et de la Securite Sociale 1, 2.
Page 3 of 18
