OUTLINE OF THE PRESENTATION1. CONTRACT MANAGEMENT2. LITIGATION3. 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 , 1987

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VETTING OF CONTRACT

• Standard template on intranet• Supporting documents to LS:Submission requesting vetting of contractDBAC approval Letters of offer and acceptanceTerms 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

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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

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LITIGATIONOUTLINE• 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

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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

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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 SIUA 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

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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

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