THE PUBLIC PROCUREMENT BILL NEEDS BETTER ENFORCEMENT: A SUGGESTED PROVISION TO EMPOWER AND INCENTIVISE WHISTLE-BLOWERS
Jonathan Klaaren, Ryan Brunette
Among other reforms, South African public procurement law needs increased enforcement. The current draft Bill proposes some enforcement measures including a new Public Procurement Tribunal with adjudicative powers. We argue the draft Bill should be amended to empower and incentivise whistle-blowers through a qui tam mechanism. In this anti-fraud mechanism, government is afforded an opportunity to take up or intervene in the public interest in private claims lodged by whistleblowers, often with the assistance of law firms. We propose a draft statutory provision. To implement this mechanism, the necessary element of public sector oversight would need to be exercised either by the National Prosecuting Authority or by a legal unit within the draft Bill’s proposed Public Procurement Regulator. The adoption of this public/private enforcement power in developing countries aligns with calibrated and effective regulatory power. While the efficacy of this mechanism should always be compared with that of alternatives, providing for enforcement in part through a tailored whistleblowing provision appears to be the best available alternative in the South African context. In South Africa, inserting a qui tam provision into public procurement law will take pressure off under-capacitated investigators and prosecutors and will recover to the fiscus at least some portion of the ill-gotten gains of procurement fraudsters.