President Jacob Zuma has announced his judiciary appointments.
The mourning and public reflection after the passing of former president Nelson Mandela is a reminder of his role as the maker of the glue that held our diverse nation together through the critical period of transition. It also illustrates the absence of new leaders who can continue to weld our nation into a reasonably coherent whole.
In some ways, this period resembles the 2010 World Cup, when the country was united for a fleeting moment. How, without a figure such as Madiba, can we hold on to that spirit for more than a week?
Learning and applying the Mandela legacy would be a promising start. For our legal system, that means a rigorous commitment to accountable and transparent government, which, in turn, plays a part in the transformation of the lives of millions on the periphery of society.
In this task, the courts have an important role. Madiba would surely have been proud of the way the Constitutional Court, the ultimate custodian of the Constitution, delivered a judgment recently that majestically asserts these values.
In Allpay Consolidated Investment Holdings and Others vs CEO of South African Social Security Agency and Others, Allpay had sought to review the award of a tender for countrywide payments of social grants. In a disappointing legal deference to an administrative agency, the Supreme Court of Appeal (SCA) adopted a relaxed approach to procedural requirements for public procurement tenders.
That admirable body Corruption Watch had argued that deviations from fair process are often symptoms of corruption or other forms of criminal activity. Inexplicably, the SCA produced a judgment that appeared to minimise the importance of this evidence – and the fact that so many state tenders in recent years have been tainted with corruption.
In a unanimous judgment by the Constitutional Court, Judge Johan Froneman eschewed the idea that the only consideration courts must employ is whether the ultimate decision would remain the same even if the process followed was irregular. The test, he held, would be the extent of the materiality of the breach of the rules, taken together with a determination of the purpose of the rules breached.
In this case, serious arguments were raised about the authenticity of the black economic empowerment (BEE) credentials of the successful bidder, Cash Paymaster (Pty) Ltd. In contrast with the SCA judgment, Froneman emphasised the importance of BEE and thus meticulous compliance with the procurement and empowerment Acts: "Substantive empowerment, not mere formal compliance, is what matters."
Hence, although the SCA found that determining compliance with BEE legislation was the South African Social Security Agency's job, the Constitutional Court found that Cash Paymaster's credentials as an authentic BEE entity had not been objectively determined, which proved fatal to the final decision.
The court found that the process had been fundamentally flawed: the criteria for biometric verification were changed during the decision process leading up to the award of the tender, generating vagueness and uncertainty about the verification process. This was of considerable importance: the very purpose of biometric verification of the identity of each grant beneficiary is to ensure that the right amount is paid to the right beneficiary.
Although the Constitutional Court found the tender process sufficiently flawed for the court to declare the decision invalid, it held that there was inadequate information before it to decide the appropriate remedy, given the need to minimise disruptions to the present system of social grants. The parties are required to argue this aspect at a later date.
Nonetheless, the court has asserted the importance of proper compliance with procurement procedures in respect of public tenders. This is an important judicial step in favour of court vigilance in a fraught area involving billions of rands in taxpayers' money. Furthermore, the importance of forms of BEE that actually contribute to economic transformation has been given the imprimatur of the highest court in the country.
This judgment will help to develop the constitutional values of accountability and transparency. Public tenders will now be required to follow mandated procedures. Private sector opportunists, who exploit BEE without a scintilla of commitment to substantive economic change, will have to tread very cautiously. In affirming the substance of core constitutional values, the Constitutional Court gives us hope that Mandela's legacy remains in careful judicial hands.