1. PRESENTATION ON CONTRACT MANAGEMENT, LITIGATION, PAIA AND PAJA PREPARED BY LEGAL SERVICES PRESENTED AT RBIG WORSHOP ON 21 AUGUST 2014 BY ADV. M. LEBELOANE 1.

OUTLINE OF THE PRESENTATION 1.CONTRACT MANAGEMENT 2.LITIGATION 3.PAIA AND PAJA

CONTRACT MANAGEMENT OUTLINE Purpose of Contract Management Legislative Framework Process of Vetting Contracts Contract Template Problem Areas Suggested Solutions

CONTRACT MANAGEMENT Purpose Regulate contract drafting, vetting and management Give legal support Strengthen operational, contractual and regulatory framework Adherence to the Law of Contract Turn around times Bench-marking

LEGISLATIVE FRAMEWORK The Constitution of the Republic of South Africa, 1996 Public Finance Management Act, 1999 Treasury Regulations Companies Act 1973 Preferential Procurement Policy Framework Act,2000 Private Security Industry Regulatory,

VETTING OF CONTRACT Standard template on intranet Supporting documents to LS: Submission requesting vetting of contract DBAC approval Letters of offer and acceptance Terms of reference [Inception Report & deliverance] Approved Business Plans

VETTING CONTRACT…Cont… LS vets the Contract and ensure that it is legally enforceable [essentials of Contract] CD: LS approves contracts and sent back to Line function for signature Copy of signed contract must be sent to LS for safe- keeping purposes

TEMPLATE CONTENTS: Parties to the Contract [Delegated officials] Description of the project Definition and interpretation clauses Commencement date and termination Obligations of the Parties and Deliverables Change control Confidential of information

TEMPLATE … Cont… Breach of Contract Force Majeure [Acts of God] Dispute Resolution Cancellation of project and consequences Cession, sub-contracting and Assignment Indemnity Parties not affected by relinquishment Intellectual Property

TEMPLATE … Cont… Variation Whole Contract Intellectual Property Insurance Domicilium Signature

CHALLENGES No documentations accompanying request to vet No clearly defined deliverables and method of payment Observe Supply Chain delegations Inception Reports Insurance Project Managers ignoring their functions Wrong decisions in the awarding of Tenders Due diligence conducted before award of tender to PSP 14.

SUGGESTED SOLUTION Proper decision making on the award and advise from LS Role of Project Manager critical in managing contract Terms of Reference, Inception Reports and other reports Properly defined deliverables and payment model Insurance deposited by PSP in deserving cases A valid Tax Clearance certificate Forward a copy of the signed Contract to LS 14.

LITIGATION OUTLINE Introduction Volumes of Cases What are the causes Major Trend Contributors Risks Avoiding unnecessary litigation Proper decision making

INTRODUCTION Process of handling cases at courts or other fora Cases for or against the Department

VOLUMES OF CASES Unprecedented high volume of cases against the Department Implication of such cases Negative impact on the resources of the department such as the use of material, time and finance Moral of staff

WHAT ARE THE CAUSES? Poor and or inappropriate decision making processes Lack of appreciation and understanding of the consequences decisions made Lack of understanding of the impact of decision will have on the interested parties to such a decision Failure to consult and seek advice where necessary Lack of record keeping especially on contracts Failure to respond to letters of demand or from attorneys timeously Failure to inform Legal Services of wrong decisions 10.

MAJOR TREND CONTRIBUTORS Tender decision making processes Contract formulation such as lack of record keeping, lack of authority, lack of consultation, TORs, etc. Applications for Water Use Authorization PAJA and PAIA matters Failure to provide proper instructions timeously Legally vetted contracts 11.

CUMULATIVE RISK Budgetary constraints such as: Paying twice or more for the same contract; Paying exorbitant legal costs; Irregular, wasteful and fruitless expenditure; Attract the Auditor General and the SIU A court order for the contract costs and/or legal costs against individual decision makers. Loosing employment

AVOIDING UNNECESSARY LITIGATION Apply minds to decisions and consultations where necessary Appreciates consequences of one’s decision Regard to the applicable legal principles/ legislative framework Ensure that decision stands judicial scrutiny by fair, reasonable and just in every respect Decision defendable Respond timeously to letters of demands

ADVANTAGES OF PROPER DECISIONS Enables officials to use time effectively and efficiently Enables the department to spend its budget accordingly and thereby positively contributing to service delivery It enables the department to meet its APP Enables individual officials to execute their duties without any constraints Boosts moral of employees

PROMOTION OF ACCESS TO INFORMATION & PROMOTION OF ADMINISTRATIVE JUSTICE ACT Types of information/ reasons requested Obligations of the Information Officer Challenges [PAIA & PAJA] Common Interventions and Solutions 2014 PAIA manual has been revised and approved by Information Officer DG is the Information Officer and CD: LS Deputy

PAIA and PAJA DWA is successfully implementing both Acts 2014 PAIA manual has been revised and approved by Information Officer DG is Information Officer of Department of Water and Sanitation (DWS) CD: Legal Services is Deputy Information Officer of DWS Assistant Information Officers are in each of 9 Regions CD: Legal Services is conducting training to all officials

TYPES OF INFORMATION/REASONS REQUESTED - PAIA PAIA Water Use Licenses Applications Policies Budgets Failure to take timeous decisions Copies of pending applications for water use licenses, etc Parliamentary Questions

TYPES OF INFORMATION/REASONS REQUESTED - PAIA PAJA Tender awards/ Awarding of contracts Reasons for delay and not granting Water Use License Decisions for employment related enquiries Reasons for delisting companies Decision taken/ Failure to take timeous decisions

OBLIGATIONS OF THE INFORMATION OFFICER  Compilation of Section 14 Manual and submission  Annual of Submission of reports to SAHRC (S32 reports)  OFFENCES  A person who with the intent to deny a right of access in terms of the Act-  Destroys, damages, or alters a record  Conceals a record; or  Falsifies a record or makes a false record, commits an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding two years.

CHALLENGES: PAIA  Delay in forwarding initial PAIA request to the relevant official e.g. Information Officer or Deputy Information Officer  More often than not, information is delayed because DWS officials are busy with operations  The time frames imposed by PAIA is already proving burdensome as it takes a considerable time to locate and compile record  Decision to grant /refuse access to information subject to legal challenges 5.

COMMON INTERVENTIONS AND SOLUTIONS  Implementation of PAIA manual  Implementation of PAJA Standard Operating Procedure (SOP)  Legal Training being conducted at Head Office and Regions with assistance from South African Human Rights Commission  Awareness building campaigns by Legal Services  Access to Information /Judicial review cases are being minimized as part of overall litigation management strategy.

CHALLENGES:PAJA  Delay in forwarding initial PAJA request for reasons  Delay because DWS officials are busy with operations  The time frames imposed by PAJA is already proving burdensome as it takes a considerable time to receive instructions and therefore compile reasons as required by section 5 of PAJA  Judicial review cases are minimized

CONCLUSION  The amount of money lost through litigations is huge and at times unnecessary  Take decisions carefully  In cases of wrong decisions, bring to attention of Legal Services timeously  Holding officials responsible for their careless mistakes  Being a Public Servant is a privilege and must serve with pride  Being truly Patriotic!  Code of Conduct for Public Service important

Thank you 15.