Right2Know campaigners picketed outside the Social Development head office over the social grants debacle on Monday.
Any interim contract the South African Social Security Agency (Sassa) enters into with Cash Paymaster Service (CPS) to pay social grants will be unlawful, senior counsel Wim Trengove has told the ministerial task team overseeing the deal.
In a document dated March 11 this year, Trengove gave his advice to the task team on Sassa’s deviation request to the treasury. The team will need to sign off on the request before it is passed on to the treasury. The treasury will need to grant Sassa an order to deviate from a competitive bidding process to award a tender to CPS before the interim contract can be official. The treasury has previously said that it will not sign off on any deal that is unlawful.
Minister in the presidency Jeff Radebe, who is a member of the task team, recommended that Trengove be briefed “to oversee the determinations and implementation of correct solutions” on the Sassa deal.
Trengove’s role is to provide independent oversight and fact-checking of the process. He was formerly the senior counsel for Sassa.
Although Sassa has said it is negotiating an emergency interim contract with CPS that justifies it foregoing normal tender processes, Trengove has said the interim contract will remain unlawful.
“It is clear that Sassa is in an emergency and has no other option than to contract with CPS,” he said.
“But it does not, in my view, qualify for exemption from the general requirement of a competitive bidding process because its predicament is self-inflicted,” Trengove continued.
The advice given by Trengove comes at a time where Sassa has faced increasing pressure from the Constitutional Court to answer questions on who is responsible for the decisions made with regards to grants payments, and when the agency knew it would be unable to pay grants.
In court papers sent on Monday night responding to the Concourt’s questions, Sassa said that it had known since April 2016 that it would not be able to pay grants itself, – it had told the court in 2015 that it would take over grant payments.
Trengove noted that Sassa’s “higher duty and first priority” is to guarantee that grants will be paid by April 1. The senior counsel says that the only way for Sassa to pay grants on time is to reach an agreement with CPS.
But, Sassa, based on Trengove’s advice, can only enter into an interim contract with CPS for a time period that is no longer than necessary.
“The fact that Sassa’s method of contracting with CPS will be unlawful, imposes a duty on it to minimise its unlawful conduct,” he said.
“It must do so by contracting with CPS to continue paying social grants for only so long as it reasonably requires to employ a lawful process for the appointment of a new contractor, that is, by a competitive bidding process,” he said.
Sassa has given different time periods for how long the interim contract will last. On February 8, the agency said it would need up to 18 months, but then on February 18 it said a year would suffice.
In March, Sassa reportedly negotiated a two-year contract with CPS, however. Trengove suggests in his opinion that a period of two years may be more than necessary, which would mean the agency would fail to oblige by having an interim contract that is only for a necessary term.
In his conclusion, Trengove advises the task team that “it would be appropriate” for treasury to grant a deviation order to Sassa on condition that the CPS interim contract expires when it is necessary.