THE CUSTODIAL ROLE OF THE CONSTITUTIONAL COURT AT PLAY: A Critical Analysis of the Case of Black Sash Trust v Minister of Social Development [2017] ZACC 8

Abstract

The Constitutional Court, on 17 March 2017 handed down judgment in the case of Black Sash Trust v Minister of Social Development (South African Social Security Agency (SASSA) case). The case dealt with the payment of social grants, which, in accordance with the South African Agency Act, is the responsibility of SASSA.
The Court made a number of orders, including an order that “(SASSA) and Cash Paymaster Services (Pty) Limited (CPS) are under a constitutional obligation to ensure payment of social grants to grant beneficiaries from 1 April 2017 until an entity other than CPS is able to do so and that a failure to do so will infringe upon grant beneficiaries’ rights of access to social assistance under section 27(1)(c) of the Constitution.” This order was made despite the fact that 1. There was no valid contract between SASSA and CPS and 2. That CPS is a private entity, which, in the ordinary course of events, is not the primary duty-bearer in so far as human rights are concerned. Indeed, the Court itself conceded that this order pushes at the limits of its exercise of a just and equitable remedial power. A number of interesting legal issues are brought sharply into focus in light of this court order. Firstly, what is the nature and weight of the right to social security? Secondly, could the private entity (CPS) be placed under legal obligation to guarantee the rights entrenched in the Bill of Rights, in particular, where no valid contract exists between a private entity and a state organ? Thirdly, what are the implications of the Court’s order against CPS for the laws of contract? As the SASSA decision was only handed down in March 2017, it has not been unpacked fully. The purpose of this article, therefore, is to critically assess how these questions played out, in particular, how the Constitutional Court, against all odds, played its role as the custodian of the Constitution.
It would however, be premature to embark on such detailed discussion without getting to grips with the decision in the SASSA case. For this purpose, the SASSA decision is briefly discussed with a view to setting the stage for the detailed analysis of the issues.