Part 6, Volume 1, Page 197
CategoryPart 6, Volume 1, Page 197
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Description:
To ensure the viability of projects, feasibility reports and business plans must be available and be approved prior to any funds being transferred to a service provider. These must be tabled at the Provincial Executive Council and the National Assessment Panel ('NAP') of the relevant National Department for approval.
Responsible to implement:
• National Treasury
Actions on recommendations
Recommendations that are covered under existing rules, and therefore do not require further action, include ensuring feasibility reports and business plans are available and approved prior to any funds being transferred to a service provider.
Progress as at November 2023
The recommendations are covered under existing rules, and therefore do not require further action.
Part 6, Volume 1, Page 198
CategoryPart 6, Volume 1, Page 198
Category:
Description:
The transfer of funds to an implementing agent has now been addressed by National Treasury. The reporting on the recipient of the transferred funds should be clearly noted in the financial statements of departments so as to enable consequence management where funds have not been used for their allocated purpose.
Responsible to implement:
• National Treasury
Actions on recommendations
Recommendations that are covered under existing rules, and therefore do not require further action, include noting the recipient of the transferred funds in departments’ financial statements to enable consequence management where funds have not been used for the allocated purpose.
Progress as at November 2023
The recommendations are covered under existing rules, and therefore do not require further action.
Part 1, Volume 3, Page 845
CategoryPart 1, Volume 3, Page 845
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Description:
It is recommended that the government introduces legislation for the establishment of an independent Public Procurement Anti-Corruption Agency (PPACA).
Responsible to implement:
• Department of Justice and Constitutional Development
Actions on recommendations
The National Anti-Corruption Advisory Council (NACAC) will, in the course of its work to advise on strengthening the country’s anti-corruption institutional arrangements, consider the detailed recommendations of the Commission on the establishment of an ‘Anti-State Capture and Corruption Commission’ and a ‘Public Procurement Anti-Corruption Agency’. Based on the advice of the NACAC and the outcomes of the review of South Africa’s anti-corruption architecture by the Department of Justice, a comprehensive proposal on an effective and integrated anti-corruption institutional framework will be produced for public consultation, finalisation and implementation. To further strengthen the current anti-corruption capabilities, the Investigating Directorate (ID) will be established as a permanent entity within the National Prosecuting Authority (NPA) and ID investigators will be provided with the requisite criminal investigatory powers as contemplated in the Criminal Procedure Act, Act No. 51 of 1977. To address concerns with respect to the independence of the NPA, legislative amendments will be introduced to ensure greater transparency and consultation in the process for selection and appointment of the National Director of Public Prosecutions (NDPP), drawing on the process adopted for the selection of the current NDPP. Work will be undertaken to clarify the Minister's 'final responsibility' over the NPA as set out in section 33 of the NPA Act and settling aspects related to the NPA’s financial and administrative independence.
Progress as at November 2023
The National Anti-Corruption Advisory Council (NACAC) is working with a range of experts on recommendations to the President, to be finalised by March 2024.
The Department of Justice and Constitutional Development (DOJ&CD) has completed its comparative research on the models followed in other countries, and is preparing a proposal on the recommendations for a model for SA’s anti-corruption architecture. Draft legislation is also under consideration. This process will respond to the key recommendations of both the State Capture Commission and the National Anti-Corruption Strategy with regard to the anti-corruption commissions and agencies.
The NPA Amendment Bill was tabled in Parliament in September 2023, marking an important milestone in strengthening anti-corruption capacity. The Bill creates a permanent Investigating Directorate on Corruption within the NPA and grants its investigators powers to investigate offences, search and seizure and effect arrests. The Bill also proposes the appointment of a retired judge to exercise oversight over the investigators.
Legislative amendements are being considered with respect to the appointment process for the National Director of Public Prosecutions (NDPP) under a broader review of the appointment of heads of entities.
The DOJ&CD is developing a framework to enhance coordination with the NPA at both strategic and technical levels, and to clarify the Minister's "final responsibility" over the NPA as set out in section 33 of the NPA Act. The draft document will be finalised by December 2023.
The NPA Amendment BillPart 1, Volume 3, Page 844
CategoryPart 1, Volume 3, Page 844
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Description:
It is recommended that the government, in consultation with the business sector, prepare and publish a national charter against corruption in public procurement. Such a charter should include a Code of Conduct setting out the ethical standards that apply in the procurement of goods and services for the public.
Responsible to implement:
• National Treasury
Actions on recommendations
The Public Procurement Bill is expected to be finalised and submitted to Parliament by March 2023. The Bill will address the Commission’s recommendations with respect to a Code of Conduct setting out the ethical standards that apply in the procurement of goods and services for the public.
Progress as at November 2023
The Public Procurement Bill was introduced in Parliament in June 2023 after its approval by Cabinet. Section 9 of the Bill requires all officials involved in procurement to comply with the prescribed code of conduct or face sanction. Section 10 prescribes the conduct required of persons involved in public procurement.
The Public Procurement BillPart 1, Volume 3, Page 853
CategoryPart 1, Volume 3, Page 853
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Description:
The Commission recommends that set standards of transparency consistent with the OECD principles for integrity in public procurement be formulated by the National Treasury for compulsory inclusion in every procurement system adopted by a public procurement entity.
Responsible to implement:
• National Treasury
Actions on recommendations
The Public Procurement Bill is expected to be finalised and submitted to Parliament by March 2023. The Bill will address the Commission’s recommendations with respect to setting standards of transparency for inclusion in every procurement system.
Progress as at November 2023
The Public Procurement Bill was introduced in Parliament in June 2023 after its approval by Cabinet. Among other things, the Bill requires the Public Procurement Office (PPO) to determine which information must be disclosed with regards to procurement. This information could include: - reasons why a decision is made to not follow an open competitive tender process; - all information regarding a bid; - the identity and details of each company which submits a bid; - the date, reasons for and value of an award to a bidder, including the record of the beneficial ownership of that bidder; and - contracts entered into with a supplier and invoices submitted by the supplier. The Bill further requires the PPO to issue instructions providing for measures for the public, civil society and the media to access procurement processes; scrutinise procurement; and monitor high-value or complex procurement.
The Public Procurement BillPart 1, Volume 3, Page 853
CategoryPart 1, Volume 3, Page 853
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Description:
It is recommended that legislation dealing with the duties and responsibilities of Accounting Officers/Authorities be amended to insert a provision that reads: “No person is criminally or civilly liable for anything done in good faith in the exercise or performance or purported exercise or performance of any power or duty in terms of this Act unless such person acts negligently."
Responsible to implement:
• National Treasury
Actions on recommendations
The Public Procurement Bill is expected to be finalised and submitted to Parliament by March 2023. The Bill will address the Commission’s recommendations with respect to protecting Accounting Officers or Accounting Authorities from criminal or civil liability for anything done in good faith unless such person acts negligently.
Progress as at November 2023
The Public Procurement Bill was introduced in Parliament in June 2023 after its approval by Cabinet. Section 54 of the Bill states: "A person who exercises a power or performs a duty in terms of this Act is not liable for any loss or damage suffered or incurred by any person arising from a decision taken or action performed in good faith in the exercise of a power or performance of a duty in terms of this Act"
The Public Procurement BillPart 1, Volume 3, Page 854
CategoryPart 1, Volume 3, Page 854
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Description:
It is recommended that consideration be given to the enactment of legislation for the better harmonisation of the legislation applying to public procurement.
Responsible to implement:
• National Treasury
Actions on recommendations
The Public Procurement Bill is expected to be finalised and submitted to Parliament by March 2023. The Bill will address the Commission’s recommendations with respect to the harmonisation of the legislation applying to public procurement.
Progress as at November 2023
The Public Procurement Bill was introduced in Parliament in June 2023 after its approval by Cabinet. The Bill aims to create a single regulatory framework for public procurement and eliminate fragmentation in laws which deal with procurement in the public sector and, among others, provide for— • the establishment of a Public Procurement Office within the National Treasury and its functions; • the functions of provincial treasuries; • the functions of procuring institutions; • measures pertaining to the integrity of the procurement process; • a preferential procurement framework; • general procurement requirements; • enabling regulations on a procurement system including different methods of procurement and different regulations for different types of procurement; • the use of information and communication technology in procurement; • dispute resolution mechanisms; and • the repeal and amendment of certain laws
The Public Procurement BillPart 1, Volume 3, Page 854
CategoryPart 1, Volume 3, Page 854
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Description:
It is recommended that consideration be given to the enactment of legislation for the greater centralisation of public procurement in certain aspects.
Responsible to implement:
• National Treasury
Actions on recommendations
The centralisation of procurement will be pursued only where it is feasible and where the benefits are likely to outweigh the costs in terms of reduced flexibility and departmental accountability for spending, delivery and outcomes. A return to a fully centralised system is unlikely to improve the integrity and efficacy of procurement. However, it is recognised that extreme decentralisation has also made the procurement system more vulnerable. A multi-pronged approach is required, which builds the state’s capacity in transversal contracts, reduces fragmentation, consolidates legislation, ensures enhanced regulatory and oversight capacity, and enhances transparency.
Progress as at November 2023
The Public Procurement Bill envisages a multi-pronged approach, which builds the state’s capacity in transversal contracts, reduces fragmentation, consolidates legislation, ensures enhanced regulatory and oversight capacity, and enhances transparency.
The Public Procurement BillPart 6, Volume 1, Page 199
CategoryPart 6, Volume 1, Page 199
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Description:
Executive authorities should be subjected to lifestyle audits on a periodic basis.
Responsible to implement:
• Presidency
Actions on recommendations
The implementation of lifestyle audits for members of the National Executive is in process and is being managed by the Office of the Director-General in the Presidency.
Progress as at November 2023
The process has been delayed due to challenges with procurement of service providers.
Part 6, Volume 1, Page 199
CategoryPart 6, Volume 1, Page 199
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Description:
It is recommended that lifestyle audits be implemented for all senior managers and those officials who are involved in supply chain management.
Responsible to implement:
• National Treasury
Actions on recommendations
The Public Procurement Bill is expected to be finalised and submitted to Parliament by March 2023. The Bill will address the Commission’s recommendations with respect to institutionalising lifestyle audits for all senior managers and officials involved in supply chain management.
Progress as at November 2023
The Public Procurement Bill was introduced in Parliament in June 2023 after its approval by Cabinet. The Bill empowers the Minister of Finance to issue regulations regarding life style audits for procurement officials.
The Public Procurement BillPart 6, Volume 1, Page 199
CategoryPart 6, Volume 1, Page 199
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Description:
Provincial Treasury must have mechanisms in place that allow for the consequence management of a recalcitrant head of department or chief financial officer.
Responsible to implement:
• National Treasury
Actions on recommendations
Recommendations that are covered under existing rules, and therefore do not require further action, include ensuring provincial treasuries have consequence management mechanisms in place for recalcitrant a head of department or chief financial officer.
Progress as at November 2023
The recommendations are covered under existing rules, and therefore do not require further action.
Part 6, Volume 1, Page 198
CategoryPart 6, Volume 1, Page 198
Category:
Description:
In the event that the beneficiaries to a project have yet to be identified or secured, and work on the project has been initiated by an implementing agent, it is recommended that those assets be registered with the government agency that appointed the implementing agent until such time as the beneficiaries are brought into the project.
Responsible to implement:
• National Treasury
Actions on recommendations
This is no longer relevant given changes in the accounting rules.
Progress as at November 2023
This is no longer relevant given changes in the accounting rules.
Part 6, Volume 1, Page 198
CategoryPart 6, Volume 1, Page 198
Category:
Description:
Compliance with the transformation imperatives of government is mandatory and remedial action must be taken, including the cancellation of the contract, where an implementing agent fails to comply with these prescripts.
Responsible to implement:
• National Treasury
Actions on recommendations
The Public Procurement Bill is expected to be finalised and submitted to Parliament by March 2023. The Bill will address the Commission’s recommendations with respect to ensuring compliance with transformation imperatives.
Progress as at November 2023
The Public Procurement Bill was introduced in Parliament in June 2023 after its approval by Cabinet. The Bill requires that National Treasury introduce uniform treasury norms and standards for all procuring institutions, and that these advance advance transformation, beneficiation and industrialisation.
The Public Procurement BillPart 1, Volume 3, Page 854
CategoryPart 1, Volume 3, Page 854
Category:
Description:
It is recommended that consideration be given to the enactment of legislation for the better guidance of public procurement officials in applying the legislation governing public procurement.
Responsible to implement:
• National Treasury
Actions on recommendations
The Public Procurement Bill is expected to be finalised and submitted to Parliament by March 2023. The Bill will address the Commission’s recommendations with respect to better guidance and training of public procurement officials.
Progress as at November 2023
The Public Procurement Bill was introduced in Parliament in June 2023 after its approval by Cabinet. The Bill aims to create a single regulatory framework for public procurement and eliminate fragmentation in laws which deal with procurement in the public. It has as the first of its objectives to "introduce uniform treasury norms and standards for all procuring institutions to implement their procurement systems".
The Public Procurement BillPart 6, Volume 1, Page 198
CategoryPart 6, Volume 1, Page 198
Category:
Description:
The [relevant contracting] department must provide guidance and administrative support where appropriate. Legislation must provide appropriate management, contracting, reporting and enforcement guidelines for those who implement projects on behalf of government.
Responsible to implement:
• National Treasury
Actions on recommendations
The Public Procurement Bill is expected to be finalised and submitted to Parliament by March 2023. The Bill will address the Commission’s recommendations with respect to providing appropriate management, contracting, reporting and enforcement guidelines for those who implement projects on behalf of government.
Progress as at November 2023
The Public Procurement Bill was introduced in Parliament in June 2023 after its approval by Cabinet. Section 20 reads as follows: If a procuring institution transfers funds to a person or organisation other than an organ of state to perform a function on behalf of the procuring institution in terms of legislation authorising it, any procurement required to perform the function must be in accordance with this Act.
The Public Procurement BillPart 6, Volume 1, Page 197
CategoryPart 6, Volume 1, Page 197
Category:
Description:
The business plan of a project must determine the deliverables. These deliverables must be monitored by the [relevant contracting] department and where necessary the department must place their experts at the disposal of the project to do quality control.
Responsible to implement:
• National Treasury
Actions on recommendations
Recommendations that are covered under existing rules, and therefore do not require further action, include ensuring project deliverables are included in business plans and effectively monitored.
Progress as at November 2023
The recommendations are covered under existing rules, and therefore do not require further action.
Part 6, Volume 1, Page 197
CategoryPart 6, Volume 1, Page 197
Category:
Description:
Where a strategic partner is brought into a project, there should be no question about a competitive process being followed, the nature of the agreement entered into and the reporting protocols that would apply in respect of the agreement entered into. They must be subjected to a competitive bidding process.
Responsible to implement:
• National Treasury
Actions on recommendations
The Public Procurement Bill is expected to be finalised and submitted to Parliament by March 2023. The Bill will address the Commission’s recommendations with respect to providing appropriate management, contracting, reporting and enforcement guidelines for those who implement projects on behalf of government.
Progress as at November 2023
The Public Procurement Bill was introduced in Parliament in June 2023 after its approval by Cabinet. Section 20 reads as follows: If a procuring institution transfers funds to a person or organisation other than an organ of state to perform a function on behalf of the procuring institution in terms of legislation authorising it, any procurement required to perform the function must be in accordance with this Act.
The Public Procurement BillPart 6, Volume 1, Page 197
CategoryPart 6, Volume 1, Page 197
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Description:
It will be noted that reservations were expressed by witnesses [regarding the Vrede Dairy Project] relative to the appointment of the same entity as implementing agent and managing agent. These two roles that should not reside in one entity.
Responsible to implement:
• National Treasury
Actions on recommendations
The Public Procurement Bill is expected to be finalised and submitted to Parliament by March 2023. The Bill will address the Commission’s recommendations with respect to providing appropriate management, contracting, reporting and enforcement guidelines for those who implement projects on behalf of government.
Progress as at November 2023
The Public Procurement Bill was introduced in Parliament in June 2023 after its approval by Cabinet. Section 20 reads as follows: If a procuring institution transfers funds to a person or organisation other than an organ of state to perform a function on behalf of the procuring institution in terms of legislation authorising it, any procurement required to perform the function must be in accordance with this Act.
The Public Procurement BillPart 6, Volume 1, Page 197
CategoryPart 6, Volume 1, Page 197
Category:
Description:
To the extent that National Treasury has not published standard guidelines on the minimum requirements for the appointment of implementing agents, it is recommended that the guidelines used by the Basic Education Department ought to be used to draft standardised pro-forma guidelines for the appointment of implementing agents. Implementing agents should always be appointed in collaboration with the beneficiaries.
Responsible to implement:
• National Treasury
Actions on recommendations
Recommendations that are covered under existing rules, and therefore do not require further action, include standardised guidelines for the appointment of implementing agents.
Progress as at November 2023
The recommendations are covered under existing rules, and therefore do not require further action.
Part 6, Volume 1, Page 196
CategoryPart 6, Volume 1, Page 196
Category:
Description:
The modality of using implementing agents was misused by the department. Areas that require considerable tightening up as recommended below are: (a) the use of transfer payments, (b) the re-prioritisation of budgets, (c) the oversight responsibilities of various officials and structures, (d) the modality for ensuring adequate accountability by implementing agents and the officials whom they reported to, and (e) the keeping of reliable financial records with verifiable inventories of the assets of any project that is funded through an implementing agent.
Responsible to implement:
• National Treasury
Actions on recommendations
Recommendations that are covered under existing rules, and therefore do not require further action, include the use of implementing agents, the use of transfer payments, re-prioritisation of budgets, oversight responsibilities of officials and structures, ensuring adequate accountability, and the keeping of reliable financial records.
Progress as at November 2023
The recommendations are covered under existing rules, and therefore do not require further action.
Part 4, Volume 2, Page 451
CategoryPart 4, Volume 2, Page 451
Category:
Description:
lt is recommended that consideration be given to the enactment of legislation that will make it a criminal offence for any official or office-bearer of a government department or a state-owned entity or company to award a tender or conclude a contract for the provision of services/goods or with any person or entity unless they are satisfied that such person or entity has produced proof of possession of the minimum academic qualifications or experience or expertise.
Responsible to implement:
• National Treasury
Actions on recommendations
Government is considering – through the draft Public Procurement Bill and amendments to the Public Finance Management Act – the recommendation that no service provider may be awarded a tender or may conclude any contract with a public institution unless it has produced proof of relevant qualifications, skills experience or expertise required to perform the work. It is intended that this legislation be sent to Parliament before the end of this financial year.
Progress as at November 2023
The Public Procurement Bill was introduced in Parliament in June 2023 after its approval by Cabinet. The Bill provides a list of offences which criminalise, among others, causing "loss of public assets or funds as a result of a wilful act or gross negligence in the implementation of this Act". Furthermore the Bill provides for custodial sentencing for anyone who connives or colludes to commit a corrupt, fraudulent, collusive or coercive or obstructive act related to procurement under this Act.
The Public Procurement BillPart 4, Volume 2, Page 451
CategoryPart 4, Volume 2, Page 451
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Description:
It is recommended that to the extent that current legislation or government policy of state-owned entities or companies do not prohibit the awarding of a tender or the concluding of a contract for the provision of services or delivery of goods by a person or entity or service provider that does not produce proof that it has the requisite educational qualifications, knowledge or skills and experience for the job awarded to it consideration should be given to ensuring that legislation and policy of government departments or of state-owned entities require that no entity or person or service provider may be awarded a tender or may conclude any contract with the government department or state-owned entity or company unless it has produced proof of relevant qualifications, skills, experience or expertise required to perform the work.
Responsible to implement:
• National Treasury
Actions on recommendations
Government is giving consideration – through the draft Public Procurement Bill and amendments to the Public Finance Management Act – to prohibiting the awarding of a tender unless the responsible official has satisfied themselves that the service provider is qualified. It is intended that this legislation be sent to Parliament before the end of this financial year.
Progress as at November 2023
The Public Procurement Bill was introduced in Parliament in June 2023 after its approval by Cabinet. Section 55 sets provides a list of offences including 55(1)(f) which criminalises causing "loss of public assets or funds as a result of a wilful act or gross negligence in the implementation of this Act."
The Public Procurement BillPart 4, Volume 2, Page 449
CategoryPart 4, Volume 2, Page 449
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Description:
It is recommended that every tender or contract between a government department and/or government entity and a service provider or a provider of goods or services should contain a prominent clause to the effect that no service provider may subcontract or cede its/her/his right to provide the services or the goods to another person or entity or company unless the intended sub-contractor was disclosed in the bid documents as an entity to which the bidder would sub-contract.
Responsible to implement:
• National Treasury
Actions on recommendations
Measures to prevent the cession of rights by tender contractors unless disclosed in bid documents should make provision for instances where amendments to company ownership, such as mergers and acquisitions, make the cession of rights necessary and legally permissible.
Progress as at November 2023
The Public Procurement Bill was introduced in Parliament in June 2023 after its approval by Cabinet. The Bill empowers the Public Procurement Office to issue binding instructions on procurement.
The Public Procurement BillPart 1, Volume 3, Page 854
CategoryPart 1, Volume 3, Page 854
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Description:
It is recommended that consideration be given to the enactment of legislation for the discontinuance of any deviation based on the concept of a sole source service provider.
Responsible to implement:
• National Treasury
Actions on recommendations
The Public Procurement Bill is expected to be finalised and submitted to Parliament by March 2023. The Bill will address the Commission’s recommendations with respect to regulations to provide clear guidance on the processes to be followed when procuring from a sole source. It should be noted that there are certain goods and services that are provided by limited suppliers due to the uniqueness of the product or service they provide. While it is necessary to tighten regulations with respect to sole providers, it is not feasible to completely do away with these types of deviations.
Progress as at November 2023
The Public Procurement Bill was introduced in Parliament in June 2023 after its approval by Cabinet. The Bill provides the circumstances under which procurement can be done when procuring from a sole source, or other deviations. It also prescribes the procedures that must be followed.
The Public Procurement BillPart 1, Volume 3, Page 852
CategoryPart 1, Volume 3, Page 852
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Description:
It is recommended that consideration is given to enacting legislation that will establish a professional body to which all officials who work in the area of public procurement should belong. This professional body will fix the qualifications and the necessary training and experience necessary for membership of the profession. Such training and qualification should include high standards of integrity and commitment to resist mismanagement, waste and corruption.
Responsible to implement:
• National Treasury
Actions on recommendations
The Public Procurement Bill is expected to be finalised and submitted to Parliament by March 2023. The Bill will address the Commission’s recommendations with respect to the establishment of a professional body to which all officials who work in the area of public procurement should belong.
Progress as at November 2023
The Public Procurement Bill was introduced in Parliament in June 2023 after its approval by Cabinet. The Bill establishes the Public Procurement Office (PPO) and requires the PPO to : - promote and implement necessary measures to maintain the integrity of procurement; - ensure the professional development and training of officials involved in procurement. In addition, the Bill empowers the Minister to issue regulations regarding competency requirements for officials involved in procurement. These provisions support the professionalisation of the public service.
The Public Procurement Bill