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South Africa: A window of opportunity to accelerate public procurement reforms after Zondo Commission lays bare shortcomings

COSATU PROTEST IH 01: A protester with a hat that reads “Not captured” as he joined thousands of other COSATU members as they made their way to various points in the Johannesburg CBD to protest against state capture and corruption. Picture: IHSAAN HAFFEJEE

The report’s key 10 recommendations could transform service delivery, strengthen transparency and restore trust in public procurement in South Africa. The ask for reforms has been particularly urgent after a series of recent procurement-related scandals, including those related to the COVID-19 pandemic. Implementation of these recommendations will help to transform and vastly improve the way procurement is done in South Africa, but this must crucially involve civil society and transparency advocates in the process. 

The Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State announced its intentions from the outset with its punchy name.

Known informally as the Zondo Commission, the investigation into elite level corruption and collusion between government figures and the private sector in South Africa in public procurement, didn’t end up holding any punches either. 

The commission was initially intended to last 26 weeks, but it took over four years to analyse 1.7 million pages of documentary evidence. The process cost 1 billion rand ($67 million) and produced 75,000 pages of transcript hearings. 

The subsequent reports highlight hundreds of business people and public officials in South Africa who it alleged were involved in substandard practices. It made 10 key recommendations to reform public procurement and rebuild trust in South Africa’s ability to deliver basic services, trust and accountability to citizens. 

Zondo’s Ten Recommendations

The mammoth 800+ page Zondo Commission report made 10 key recommendations which the government has pledged to respond to by June 2022. The recommendations are:

  1. Create a National Charter Against Corruption in Public Procurement
  2. Establish an independent anti-corruption agency to act as a watchdog in public procurement
  3. Legislation to protect whistleblowers must be introduced and be upheld
  4. Deferred prosecution agreements should be enacted to encourage collaboration
  5. Legislation should enact a body that governs how professionals in public procurement should behave
  6. All public procurement entities should adopt and incorporate OECD standards of transparency and data
  7. Legislation that dictates duties and responsibilities of how accounting officers act and behave should be amended to remove criminal liability
  8. Anti-bribery legislation should be strengthened
  9. Cash-for-tenders donations to political parties from the private sector should be outlawed
  10. The 10th recommendation combines “better guidance” for public procurement officials, “harmonisation” of legislation and “centralization” of certain aspects of the procurement management.

“This report represents a massive opportunity for change,” Tharin Pillay, of Corruption Watch, said in a recent discussion hosted by the Open Contracting Partnership on Chief Justice Raymond Zondo’s 800+ page report. Zondo headed the commission of inquiry.

The stakes are high. The Auditor General’s subsequent report to the Commission identified a staggering 488 billion rand (approximately $33 billion) that could be attributed to irregular, non-recovered spending in recent years in public procurement. 

The Zondo Commission report’s key recommendations include the creation of a National Anti Corruption Charter and an independent agency to monitor corruption in the procurement sector. The report also calls for protection for whistleblowers, deferred prosecution agreements to encourage collaboration and caps on political donations. In addition, the report states that “constructive involvement of civil society is both a necessary and a legal requirement in the fight against corruption, and that is a function which must be addressed.

The South African government is set to respond officially to the 10 key recommendations and Zondo’s report by June 2022. Advocates are already calling for greater civil society involvement, reiterated by the report’s findings. 

The commission’s objective of restoring trust in public procurement is now at the heart of discussions among stakeholders in South Africa. “What role do civil society organizations need to play to rebuild trust?” asks Edwin Muhumuza, Head of Africa at Open Contracting Partnership. “The legal framework is the basis on which progress will be built,” he adds. Open Contracting Partnership has been collaborating for the past year with the National Treasury of South Africa and other relevant stakeholders to transform South Africa’s public procurement system through open contracting. The aim is to strengthen processes and institutions to be more transparent and resilient to fraud and corruption, as well as making procurement both more efficient and economically inclusive. 

“More efforts need to be made to implement e-procurement to international standards at all levels of government”, says Muhumuza. “Reforms need to be better-coordinated and non-state actors have to be more involved in public procurement oversight and vigilance. Otherwise service delivery will continue to suffer”, concludes Muhumuza. 

“Reforms need to be better-coordinated and non-state actors have to be more involved in public procurement oversight and vigilance. Otherwise service delivery will continue to suffer.”

Edwin Muhumuza Head of Africa, Open Contracting Partnership

There is concern that key recommendations in the report are being ignored in early level discussions around procurement reform and the role of civil agents in any new framework, according to Theo Chiviru, Regional Lead for Africa and Middle East at the Open Government Partnership.

“Current laws that are being discussed have not made an effort to engage with civil society”, says Chiviru. Chiviru fears that the size and scope of the Zondo report may also be its greatest strength and achilles heel. “The information is not with the citizen,” says Chiviru, citing the complexity of the report itself. “It is too obscure. We need to simplify the information to empower citizens.” 

Cherese Thakur, a lawyer and advocate for media freedom in South Africa, argues that much more must be done to protect whistleblowers in South Africa, one of the Zondo report’s key recommendations. “Whistleblowers do not feel safe in South Africa and so won’t come to the media. There is so much we do not know because of that,” says Thakur, Advocacy Coordinator at amaBhungane Centre for Investigative Journalism

She cited her own experience working with News24 and the Daily Maverick in South Africa on the Gupta Leaks story that implicated former President Jacob Zuma in corruption and led to the Zondo Commission. “The whistleblowers had to be taken out of South Africa before we could break the story,” Thakur recalls. 

Thakur’s organization, which supports journalists with requests to gain access to data such as share registers, court records and freedom of information requests, says the media must have regular, timely and complete access to procurement data to be an effective means of vigilance. 

If Zondo’s report has not yet stirred political reform, the fact that the commission was able to do its work is testament to progress. “The commission in itself is a success for the government,” says Open Contracting Partnership’s Muhumuza. 

Others worry that the report’s hard-hitting recommendations could be ignored. “Where do these recommendations fit within the broader anti-corruption landscape?” asks Tharin Pillay. Several public figures and leading businesses – including multinationals like McKinsey and PwC – were named for conducting irregular and corrupt activity in the report. Few have faced any sanctions. 

The public nature of the commission has however spurred new levels of collaboration in South Africa. Both the Procurement Reform Working Group and the Political Party Collaborative Groups involve civil society actors contributing to the debate on how to best implement the Zondo recommendations. Many see a role to collaborate with the government to ensure the recommendations are properly implemented.  

“The broader civil society can help ensure that recommendations are addressed, and support the state so that the report doesn’t just become yet another 800-page-plus sitting on shelves collecting dust,” added Zukiswa Kota, Programme Head at the Public Service Accountability Monitor (PSAM) at Rhodes University.

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