AmaBhungane has applied to join the cases brought by the Premier of the Western Cape and the City of Cape Town to challenge the passing of the Public Procurement Act. (Image: amaBhungane) 
It’s unlikely that you’ll open any newspaper or scroll through a news website these days without seeing an article about corruption in a government tender process.
Just this week, we read about how the CEO of Independent Development Trust tried to quash a story by promising Daily Maverick investigative journalist Pieter-Louis Myburgh that they could facilitate tenders for him and his contacts, and about how an ANC leader and KwaZulu-Natal Education MEC Sipho Hlomuka feels that criticisms about his wives benefiting from government tenders are an attempt to target him politically.
Corruption has become endemic to South African public life, and procurement – the process by which government contracts for goods and services – is the abused cash-cow that feeds political and personal greed.
We all know it.
AmaBhungane has reported on procurement-related corruption since it was founded.
We have highlighted everything from the Arms Deal payoffs to the pillaging of SOEs revealed by the #GuptaLeaks and Joburg’s dodgy water tanker contracts.
Every week, we receive tip-offs about irregular tenders and how certain people are benefiting from their proximity to those with political power and their largesse in awarding contracts big and small, or other benefits, such as funding.
Advocate Andy Mothibi, head of the Special Investigating Unit, has said that up to 90% of the cases the SIU is investigating involve procurement-related corruption.
Former Chief Justice Raymond Zondo dedicated much of his lengthy report on State Capture to procurement. He questioned how those responsible for creating and enforcing legislation and other systems to regulate procurement could have been so ineffective in curbing corruption.
Read more: State Capture and the failure to implement the Zondo Commission’s recommendations
Was it because corruption is now embedded in the system – and both politicians and bureaucrats are positioned to distribute benefits not to the populace, but to the powerful?
Because, despite it being impossible to ignore the scale of procurement-related corruption and the complete inability of our existing systems to stop it, South Africa’s legislature and public administration were happy to sign off on a new procurement law that repeats the failings of the old system and does little to respond to the very real observations of former Chief Justice Zondo and others who painstakingly identified where those systems needed to be strengthened.
Was it simply that Parliament and National Treasury could not be bothered to reimagine an effective procurement system that delivered efficiently and equitably and was structured to promote maximum transparency and accountability to expose and deter corruption?
Or was it because any possibility of “turning off the taps to tender corruption”, as Judge Zondo so neatly put it, would hurt them all financially and politically?
We have been following, participating in and writing on the development of the Public Procurement Act since 2020.
At every possible stage, we have voiced our deep concerns that the system the Act creates does not contain sufficient safeguards.
We fumed when Parliament rushed through the Bill before last year’s elections, furious at the laughably short timeframes the MPs had to consider the draft Bill and the public submissions.
We formally wrote to the President and asked him to consider sending the Bill back to the National Assembly to address what we (and our colleagues in the Procurement Reform Working Group) described as patently unconstitutional provisions.
We were ignored.
Read more: Why we must do all we can to prevent the Public Procurement Bill from becoming law
And now, supported by the Legal Resources Centre, we have applied to join the cases brought by the Premier of the Western Cape and the City of Cape Town to challenge the passing of the Act.
This case is a narrow challenge, focusing on the procedure through which Parliament passed the Act and its failure to meaningfully facilitate public participation.
As it concerns only whether Parliament acted constitutionally, it is a matter that can be heard only by the Constitutional Court.
We still believe the content of the Act is flawed and unconstitutional – particularly in how it fails to create constitutionally compliant transparency and accountability systems – but in this case, our focus is on highlighting why Parliament’s failings are fatal to the Act.
In our founding affidavit, filed this week, we highlight our experience participating in the legislative process.
We explain how representatives from National Treasury were responsible for collating the public submissions and presenting commentary on those submissions to Parliament – and how they admitted that they had considered only about 30% of the submissions received.
We explain how one key chapter in the Bill – that on preferential procurement – was added after the submissions were received and so received no meaningful public engagement in the National Assembly.
We explain how the MPs on the Standing Committee on Finance held oral hearings on the Bill only one day after receiving the written submissions from the public, and that even the Chair of the National Council of Provinces expressed concern that the Bill was being rushed through Parliament before the 2024 elections.
We explain how key issues raised in the public submissions were merely “noted” by MPs and never engaged with.
We submit that the Bill should never have been passed in the way it was and that Parliament clearly violated its constitutional obligations to ensure the public has a meaningful opportunity to influence the content of legislation.
To us, this is an existential fight.
The country cannot accommodate the current level of corruption in our public administration and cannot allow these levels to become normal and unremarked on.
The Public Procurement Act takes a “business as usual” approach: granting officials excessive discretion, resisting the medicine of transparency and relying excessively on the Treasury to police the system – an approach that has demonstrably failed.
Crucially, the Act fails to provide strong mechanisms for proactive disclosure of procurement information to enable monitoring for the public interest.
This perpetuates the dark fog in government procurement, making it a ripe environment for abuse.
We at amaBhungane refuse to accept that corruption is simply the route to doing business with the state, and we will continue to challenge the procurement frameworks that facilitate and legitimise this form of business.
Our application to join the cases challenging the manner in which the Act was adopted is merely the next (big) step in our long journey.
Read the full application here. DM