![Page 1: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/1.jpg)
OUTLINE OF THE PRESENTATION1. CONTRACT MANAGEMENT2. LITIGATION3. PAIA AND PAJA
![Page 2: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/2.jpg)
CONTRACT MANAGEMENT
OUTLINE• Purpose of Contract Management• Legislative Framework• Process of Vetting Contracts• Contract Template• Problem Areas• Suggested Solutions
![Page 3: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/3.jpg)
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
![Page 4: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/4.jpg)
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
14.
![Page 5: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/5.jpg)
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
![Page 6: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/6.jpg)
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
![Page 7: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/7.jpg)
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
![Page 8: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/8.jpg)
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
![Page 9: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/9.jpg)
TEMPLATE … Cont…
Variation Whole Contract Intellectual Property Insurance Domicilium Signature
![Page 10: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/10.jpg)
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.
![Page 11: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/11.jpg)
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.
![Page 12: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/12.jpg)
LITIGATIONOUTLINE• Introduction• Volumes of Cases• What are the causes• Major Trend Contributors• Risks• Avoiding unnecessary litigation• Proper decision making
![Page 13: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/13.jpg)
INTRODUCTION
• Process of handling cases at courts or other fora• Cases for or against the Department
![Page 14: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/14.jpg)
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
![Page 15: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/15.jpg)
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.
![Page 16: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/16.jpg)
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.
![Page 17: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/17.jpg)
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
![Page 18: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/18.jpg)
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
![Page 19: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/19.jpg)
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
![Page 20: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/20.jpg)
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
![Page 21: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/21.jpg)
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
![Page 22: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/22.jpg)
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
![Page 23: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/23.jpg)
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
![Page 24: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/24.jpg)
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.
![Page 25: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/25.jpg)
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.
![Page 26: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/26.jpg)
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.
![Page 27: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/27.jpg)
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
![Page 28: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/28.jpg)
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
![Page 29: 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](https://reader038.vdocuments.site/reader038/viewer/2022102808/56649d305503460f94a08a70/html5/thumbnails/29.jpg)
Thank you
15.