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.
Highlights
Among other reforms, South African public procurement law needs a tougher enforcement strategy
We argue the draft Bill should be amended to empower and incentivise whistle-blowers through a qui tam mechanism
(2020) 7 APPLJ 17 ensuring that the goals of the current public procurement reform process – begun in 2013 – are achieved.[2]
Summary
South African public procurement law needs a tougher enforcement strategy. (2020) 7 APPLJ 17 ensuring that the goals of the current public procurement reform process – begun in 2013 – are achieved.[2]. At around R926-billion in 2018, it accounts for about a fifth of South Africa’s gross domestic product At such a scale, public procurement is key to the South African state’s operational efficiency and effectiveness. The Bill defines and strengthens central regulatory and oversight authority in a proposed Public Procurement Regulator in the National Treasury. It includes specific provisions for conflicts of interest, debarment of suppliers and transparency. That the Bill does not follow through on this final commitment, insofar as it fails to underwrite public procurement law with a credible enforcement strategy
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
