Friends of the court play important role

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Dear Corruption Watch,

YOU were one of two NGOs that intervened in the case of suspected corruption in the tender for administering social grants. How does an NGO go about doing this? Why did the court agree to hear you when it had two wellresourced contesting parties before it already? Was it not a waste of time, or was your intervention successful? — Confused

Dear Confused,

Both Corruption Watch and the Centre for Child Law intervened in the case before the Constitutional Court. The court has explained the role and importance of amici curiae (friends of the court) as follows: “Amici curiae have made, and continue to make, an invaluable contribution to this court’s jurisprudence. Most, if not all, constitutional matters present issues, the resolution of which will invariably have an impact beyond the parties directly litigating before the court. Constitutional litigation requires the determination of issues squarely in the public interest, and insofar as amici introduce additional, new and relevant perspectives, leading to more nuanced judicial decisions, their participation in litigation is to be welcomed and encouraged.”

The social grants case was not only about who would win the contract. It was also about how courts should deal with allegations of irregularities in tender processes. If the government makes mistakes in the tender process, but would have reached the same decision even if it had not made mistakes, can a court declare the tender invalid?

Put differently, must courts ensure only the right outcome of tenders, or also safeguard the process by which the contract was awarded?

The Supreme Court of Appeal had held that technical flaws that did not affect the outcome were not a basis to invalidate the contract. Corruption Watch argued that this approach was flawed.

It pointed out that procedural irregularities were often indicators of corruption. It is generally difficult to prove that corruption actually occurred, but if a tender process is plagued by seemingly unimportant procedural anomalies, it is often because the award of the contract is being manipulated towards a predetermined end.

The court agreed with Corruption Watch’s submissions. It held that it was vital for courts to defend not only that tenders have a fair outcome, but that they follow a fair process. The intervention was therefore extremely successful.

The Centre for Child Law’s intervention was also successful. It argued that if the court found that the award of the contract was unlawful, it should not declare it immediately invalid. If it did so, social grant beneficiaries would be unable to receive their grants until a new service provider was appointed.

It also argued that by accepting the award of the contract, CashPaymaster Services, which won the initial contract, had constitutional obligations to ensure the regular provision of grants, even if the contract was invalid.

The court granted an order that required CashPaymaster Services to continue to pay social grants until a new tender process had been finalised and agreed to monitor the new process to protect beneficiaries.

It also held that CashPaymaster Services “plays a unique and central role as the gatekeeper of the right to social security and effectively controls beneficiaries’ access to social assistance”. It therefore had constitutional obligations to continue to pay social grants. The case demonstrated the value of amici curiae in constitutional litigation.