THE PUBLIC PROCUREMENT BILL NEEDS BETTER ENFORCEMENT: A SUGGESTED PROVISION TO EMPOWER AND INCENTIVISE WHISTLE-BLOWERS

Jonathan Klaaren, Ryan Brunette

Abstract


Among other reforms, South African public procurement law needs increased enforcement. The current draft Bill proposes some enforcement measures including a new Public Procurement Tribunal with adjudicative powers. We argue the draft Bill should be amended to empower and incentivise whistle-blowers through a qui tam mechanism. In this anti-fraud mechanism, government is afforded an opportunity to take up or intervene in the public interest in private claims lodged by whistleblowers, often with the assistance of law firms. We propose a draft statutory provision. To implement this mechanism, the necessary element of public sector oversight would need to be exercised either by the National Prosecuting Authority or by a legal unit within the draft Bill’s proposed Public Procurement Regulator. The adoption of this public/private enforcement power in developing countries aligns with calibrated and effective regulatory power. While the efficacy of this mechanism should always be compared with that of alternatives, providing for enforcement in part through a tailored whistleblowing provision appears to be the best available alternative in the South African context. In South Africa, inserting a qui tam provision into public procurement law will take pressure off under-capacitated investigators and prosecutors and will recover to the fiscus at least some portion of the ill-gotten gains of procurement fraudsters.

Keywords


public procurement reform; draft public procurement bill, 2020 (South Africa); remedies; anti-fraud; whistleblower; qui tam

Full Text:

PDF

References


Literature

Andiva, B. & Masereti, E. 2019. Cartel Enforcement: Adoption of a Leniency Programme in Kenya. In Klaaren, J., Roberts, S. & Valodia, I. (Eds.). Competition and Regulation for Inclusive Growth in Southern Africa. Johannesburg: Jacana.

Braithwaite, J. 2008. Regulatory Capitalism: How It Works, Ideas for Making It Work Better. Cheltenham: Edward Elgar Publishing.

Braithwaite, J. 2013. Flipping Markets to Virtue with Qui Tam and Restorative Justice. Accounting, Organizations and Society 38(6–7): 458–468.

Brunette, R., Klaaren, J. & Nqaba, P. 2019. Reform in the Contract State: Embedded Directions in Public Procurement Regulation in South Africa. Development Southern Africa 36(4): 537–554.

Brunette, R. & Klaaren, J. 2020. Position Paper on Reform in Public Procurement in South Africa. Johannesburg: Public Affairs Research Institute.

Department of Justice (United States). 2016. The False Claims Act: A Primer. https://www.justice.gov/sites/default/files/civil/legacy/2011/04/22/C-FRAUDS_FCA_Primer.pdf (Accessed 20-04-2020).

Engstrom, D.F. 2012. Harnessing the Private Attorney General: Evidence from Qui Tam Litigation. Columbia Law Review 112(6): 1244–1325.

Kovacic, W.E. 1995/1996. Whistleblower Bounty Lawsuits as Monitoring Devices in Government Contracting. Loyola of Los Angeles Law Review 29(4): 1799–1858.

Marcus, A. 2014. Broadening the Range of Incentives to Combat Corruption in South Africa (New York Law School).

McCrudden, C. 2009. Social Policy Choices and the International and National Law of Government Procurement: South Africa as a Case Study. Acta Juridica 9: 123–167.

Meador. P. & Warren, E.S. 1997/1998. The False Claims Act: A Civil War Relic Evolves into a Modern Weapon. Tennessee Law Review 65(2): 455–484.

Moodaliyar, K. 2008. Are Cartels Skating on Thin Ice: An Insight into the South African Corporate Leniency Policy. South African Law Journal 125(1): 157–177.

Quinot, G. 2014. An Institutional Legal Structure for Regulating Public Procurement in South Africa. http://africanprocurementlaw.org/ocporeport/ (Accessed 20-04-2020).

Stephenson, M.C. 2005. Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies. Virginia Law Review 91(1): 93–173.

Legislation

Draft Public Procurement Bill, 2020 http://africanprocurementlaw.org/wp-content/uploads/2020/02/Public-Procurement-Bill-for-public-comment-19-Feb-2020.pdf (Accessed 20-04-2020)

Competition Act 89 of 1998

Prevention of Organised Crime Act 121 of 1998

Promotion of Administrative Justice Act 3 of 2000

Case law

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).

Trustees for the time being of Children’s Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others 2013 (2) SA 213 (SCA)




DOI: https://doi.org/10.14803/7-1-28

Refbacks

  • There are currently no refbacks.



ISSN 2411-7048 (online)

Powered by OJS and hosted by since 2014.


Disclaimer:

This journal is hosted by the SU LIS on request of the journal owner/editor. The SU LIS takes no responsibility for the content published within this journal, and disclaim all liability arising out of the use of or inability to use the information contained herein. We assume no responsibility, and shall not be liable for any breaches of agreement with other publishers/hosts.

SUNJournals Help