Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
1 June 2012

ANC complaint to Public Protector about Western Cape tender

COMPLAINT: WESTERN CAPE COMMUNICATIONS CONTRACT

The ANC in the Western Cape requests you to investigate the Department of the Premier, the role of the premier (directly or indirectly through her discressionary appointed advisers / staff in her personal office) and the involvement of all other officials of the Provincial Government, together with two companies in the unauthorized appointment of one called Yardstick without following prior due process, no clear terms of reference or procurement approval process and the after the fact expansion of tender FMA 0027 to TBWA\ Hunt Lascaris and all other matters pertaining to this multimillion Rand contract. This process stretches from year 2010 to 2011.

We believe that the process undertook by the Provincial Government was flawed every step of the way and in breach of various regulations and other control measures, including, but not restricted to:

  • This flawed original tender process for the Department of The Premier was cancelled and started three times over, thus resulting in fruitless and wasteful expenditure. That the department’s line-function/top management was both player and referee without regard for good governance.
  • The extension of the contract by directing departments to appoint the same company without any public process and expanding the contract to include all media and communication activities across the government departments without involving treasury from the start as is required;
  • Advancing a further massive and new contract without due procurement process;
  • The involvement of a special advisor in the office of the premier or any other such officials in operational processes and adjudication against the Public Service Act prohibiting interference in the administration and management of the department(s) and also the continued presence of an official against the Supply Chain Management and Legal Services warning about conflict of interest;
  • Repeatedly ignoring cautionary advice from the Provincial Treasury and Supply Chain Management Unit.
  • By in general waste time and taxpayers money through inadequate demand planning procedures, lack of knowledge and competencies to see the process to fruition.
  • That the bid (on which the contract has been concluded) did not allude to a transversal contract and the need for single branding was not identified prior to the tender process. The process for a transversal tender was not facilitated by treasury as per regulation.
  • That contradictory declarations by the winning bidder was not verified.
  • That the scoring system is suspiciously riddled with anomalies and that most of the panel members ignored scoring instructions which resulted in unclear determination of acceptability.
  • That the shortlisting process is flawed as no documented record exists of how the two companies were arrived at.
  • That the contract was expanded without any cognizance of any provincial impact or considering current contracts of departments.
  • That the overall process has deficiencies / gaps and that a lack of control measures and good governance principles were exposed.
  • That a number of after the fact measures were taken in an attempt to cover over some of the deficiencies.
  • That many of the deviations and non-compliance issues may indicate possible corrupt activities.

These and others problems pointed out (also mentioned in a Provincial Treasury evaluation) require your office to immediately pay attention to the Provincial Government of the Western Cape as these are substantively serious.

If needed, we are available to expand on our request for an urgent investigation into this abuse of power, maladministration, improper dealings with respect to public money and random decisions taken by this government.

With kind regards,

Songezo Mjongile

Provincial Secretary

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