ANALYSIS: Social grants crisis – Constitutional Court’s Catch 22

Damned if they do and damned if they don’t. This is the position many feel the Constitutional Court finds itself in after the social grants crisis was abandoned on its doorstep.

Cash Paymaster Services (CPS) has emerged as the only likely party that will be able to continue the payment of SA Social Security Agency (Sassa) grants after April 1.

• Dlamini takes a hammering from all sidesSocial Development Minister Bathabile Dlamini was on the ropes yesterday as the country's top judge hammered her and the ANC appeared to call for her to face the music.

The matter appeared before the country’s top court on Wednesday in a marathon session. The court heard submissions from lawyers representing‚ among others‚ CPS‚ Sassa and Social Development Minister Bathabile Dlamini‚ the South African Post Office‚ as well as civil rights organisations Corruption Watch and Black Sash.

• WATCH: ANCWL rallies behind Dlamini amid social grants fiasco Minister of Social Development Bathabile Dlamini may not be getting much love in the Constitutional Court, but members of the ANC Women’s League (ANCWL) were singing their support for her outside.

A ruling is due at 10am on Friday.

“In a sense‚ the court is backed into a corner at this stage‚” said University of KwaZulu-Natal constitutional law expert Professor Warren Freedman.

“I know the Post Office came along‚ but it seems to me the only option is really for CPS to continue paying out the grants‚ at least in the short term.

• Chief justice takes his reputation to new heightsPresident Jacob Zuma's nomination of Mogoeng Mogoeng to succeed Sandile Ngcobo as chief justice in August 2011 could hardly have been greeted with less enthusiasm.

“On the other hand‚ I think that there is a way out for the Constitutional Court‚” he continued.

“In its earlier All Pay judgment‚ [the court] said that CPS is essentially implementing a government service‚ which means it’s not in the same sort of position as an ordinary private company or contract. In fact‚ it is now under an obligation to fulfil those constitutional rights.”

Freedman said he felt it likely the court would order CPS to continue the grants payments‚ but that the exact terms would only be ironed out at a later stage.

“There is no doubt that CPS will have to carry on implementing the payments‚ but I think the court is not bound to simply say that they have to agree to any contract CPS puts forward or any kind of agreement they might have reached with the department‚” Freedman said.

“I don’t think that that means CPS has a free hand on how it’s going to do it or what it’s going to get paid or how it’s going to implement that.

“I think you are going to see the court making quite creative and interesting decisions on the exact terms.”

Professor Geo Quinot of Stellenbosch University told TimesLIVE there was a possibility the court would allow a contract with CPS to be put in place on April 1‚ without necessarily condoning an unlawful conduct.

“That option of the court having to condone something that they have already said is unlawful would only be the result if you conclude that what is going on now is an extension of the current contract‚ as opposed to a completely new contract‚” Quinot said.

“There is no doubt in my mind that Sassa and the department could enter into a lawful new contract with CPS‚ should they get the necessary approvals under the Public Finance Management Act.”

Quinot said the Constitutional Court found itself in a difficult position‚ given the time constraints.

“The position is more difficult‚ undoubtedly because it’s urgent… But‚ really‚ we are asking: where do we go from here? We are dealing with a state party that made certain representations‚ telling you how they are going to resolve it‚ which they didn’t do.

“I wouldn’t say they are in an impossible position‚ it just calls for a different resolution from the past.

“One could probably expect a more stringent supervisory role for the court. That would be my guess‚” Quinot said.

- TMG Digital/TimesLIVE