Post-Zondo, addressing the dysfunctional state of public procurement must be prioritised
Updated: Aug 21
For the first time in history, South Africans have before them a very thorough account with reliable evidence of precisely how private interests were able to triumph over the public good – at the expense of the public pocket. While corruption in the public sector is by no means a new phenomenon, the nature and extent of corruption, manifesting primarily through unlawful procurement contracts, was not fully comprehended until now. The Zondo Commission not only exposed the extent to which public funds were looted, and by whom, but also detailed why the institutional framework failed us.
The current regulatory framework governing public procurement is highly fragmented and excessively complicated, undermining compliance and effective consequence management (Klaaren, 2021). Currently, there are over twenty statutes that contain procurement rules and dozens of pieces of subordinate legislation with varying degrees of statutory authority. Greater efforts are needed to ensure that the legislative regime is harmonized and simplified. In this regard, the Public Procurement Bill was a welcome, albeit long-overdue, step in reforming the procurement system. However, in many respects the Bill falls short of establishing the fair, equitable, transparent, competitive and cost-effective procurement system envisaged by section 217(1) of the Constitution, resulting in further delay of the Bill being passed into law (Quinot, 2020).
The overlap, duplication and in some cases inconsistencies across various legal instruments governing procurement also creates serious problems for regulatory authorities. The Zondo Commission exposed how procurement regulations were abused to side-step the competitive bidding process and award contracts to service providers with no value for money (Zondo Commission, 2022). Patterns of abuse were detailed at every stage of the procurement cycle, highlighting systemic weaknesses and deficiencies in the current legislative design. While a centralised procurement system comes with its own risks (see Quinot, 2022), excessive decentralisation of procurement processes has made the system prone to abuse by corrupt public officials. Careful consideration must thus be given to ensuring an appropriate balance is struck.
While the establishment of an independent procurement agency to monitor and inspect procurement activities in order to expose corruption is a welcomed recommendation from the Zondo Commission, it is crucial that the institutional arrangement of any such regulatory or oversight body be able to maintain its independence – which is unlikely to be the case if it is placed within yet another government department, such as the Office of the Chief Procurement Officer which currently resides within National Treasury.
In 2019, president Ramaphosa acknowledged the need to tackle state capture and corruption in order to make meaningful strides in ending poverty, reducing inequality and curbing South Africa’s stubbornly high unemployment rate (Ramaphosa, 2019). While promises have been made to strengthen the state’s ability to fulfil its democratic mandate and address the needs of its people, little efforts have been made to address corruption in the public sector and to advance public procurement reform (Klaaren, 2021). While it is encouraging that the president has recently appointed members of the National Anti-Corruption Advisory Council, it is concerning that public procurement is not being given more attention in the state’s response to cmbat corruption in the public sector, given that public procurement abuse lay at the heart of state capture (Ramaphosa, 2022).
Now that the intricacies of the entire project of state capture have been exposed and institutional weaknesses revealed, it is pertinent that reform of South Africa’s public procurement system be prioritised.
Klaaren, J. (2021). Reforming Public Administration in South Africa. Cape Town: Siber Ink .
Quinot, G. (2020). Reforming procurement law in South Africa. African Public Procurement Law Journal.
Ramaphosa. (2019). South African Government. Retrieved from https://www.gov.za/speeches/President-cyril-ramaphosa-2019-state-nation-address-7-feb-2019-0000
Ramaphosa. (2022). The South African Government. Retrieved from https://www.gov.za/speeches/president-cyril-ramaphosa-appoints-members-national-anti-corruption-advisory-council-29-aug
Zondo Commission. (2022). Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State.
Quinot, G. (2022). African Law Matters. Retrieved from https://www.africanlawmatters.com/blog/blog-post-zondo-procurement-reform