Faculty of Commerce, Law and Management (ETDs)
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Item Analysing state capture through public procurement weaknesses in South Africa(University of the Witwatersrand, Johannesburg, 2023) Aikins,Nana; Lynge, HalfdanThis research report reviews and analyses the procurement system in South Africa concerning the legislative and institutional frameworks that govern state owned enterprises (SOEs). This study aims to assess the system's flaws and inherent weaknesses and highlight how these pitfalls have ultimately aided the phenomenon of state capture. It is a constitutional requirement that when organs of the state contract for goods and services, they do so in a fair, equitable, transparent, competitive and cost-effective manner. When a public organisation is captured by private interests, it loses its autonomy to act in the furtherance of public welfare, which manifests in its inability to contract competitively, achieving low prices and high quality. A postulation is made in this study that public procurement personnel lack the integrity and personal will to resist collusive behaviour and do not have the institutional strength to detect and withstand corrupt dealings that contribute towards state capture. Following the publication of the State Capture report by the Public Protector of South Africa in 2016, the concept has gained significant political momentum. However, despite this development, there has been a notable lack of academic research on the phenomena, particularly regarding its connection to public procurement. This research aims to fill this gap. This study draws most of its data from the transcripts of the hearings conducted by the Judicial Commission of Inquiry into State Capture. Through a qualitative explanatory case study approach, using thematic analysis, the study sought to understand the patterns of abuse that occur at each stage of the procurement cycle and what factors contributed to these transgressions. The findings of the study identified challenges associated with lack of capacity, non-compliance with legal policies, bid-rigging and collusive behaviour, and political interferenceItem The adoption of competition law remedies in the resolution of unlawful administrative decisions in public procurement(University of the Witwatersrand, Johannesburg, 2023-11-01) Sanickson, Melissa Levia; Adeleke, FolaThis research report analyses the highly regulated area of public procurement, the available remedies and the role of competition law remedies as a potential form of redress for unlawful administrative decisions in public procurement. The decision to award a tender qualifies as administrative action and is reviewable in terms of the Promotion of Administrative Justice Act, Act 3 of 2000 (PAJA). Setting aside an unlawful tender is a primary remedy, however, a court has the discretion to grant this order. The court’s discretion is founded on an analysis of various interests and the conclusion is based on the most practicable outcome. Where a court withholds its discretion to set aside the tender, the successful tenderer benefits from an unlawful process. In unlawful procurement processes, competition is almost always distorted and the successful bidder has a competitive advantage due to unlawful conduct. It is a constitutional requirement and necessary that public institutions apply a competitive procurement process. Remedies found in the Competition Act, Act 89 of 1998, are more favourable than allowing the successful bidder to continue to benefit from an unlawful process. This research report develops a case for the amendment of PAJA to include ‘anti-competitive conduct’ as a ground to review administrative decisions in public procurement. The amendment will permit the applicability of the Competition Act and the remedies found within this area of law