22 April 2016

Requestee bodies slipping through the legal web leaving transparency stuck behind


The Public Private Partnership (PPP) Project has allowed SAHA to put in a number of strategic requests to parties involved and has noticed a pattern in the responses, being non-compliance with PAIA and limited transparency.

This pattern started to emerge in a previous  news story on PPPs, which was a follow-on to an even earlier news story. We shared in those earlier stories that PPPs are in fact legally defined in and subject to a set of Regulations that Treasury prescribes, these Regulations require registration with Treasury of any undertaking between government and private enterprise that meets this definition, conversely agreements that do not meet the definition are therefore not actually PPPs irrespective of what they may be called. That being said, SAHA has noted that both government, including the President himself, and private sector often refers to joint ventures between government and private sector that do not meet the definition as being PPPs. 

Having tested the ventures being held up as PPPs and finding them lacking in complying with PAIA as well as having hardly any transparency we decided to submit a few requests to both Private and Public bodies contained in the list of PPP projects Treasury previously provided to SAHA, as a result of a PAIA request. We submitted a total of 6 requests, related to 3 PPP projects, to both the corresponding public and private bodies. The first request was submitted to the Department of International Relations and Co-operation (DIRCO) and to Imbumba Aganang Consortium for the construction and management of a new headquarters for DIRCO. The second request was submitted to the Department of Trade and Industry (DTI) and to Rainprop Consortium for the construction and management of a new headquarters for the DTI. The last request was submitted to the Kwa-Zulu Natal Department of Health (KDH) and to Vilundlela Holdings (Pty) Ltd, a member of the Impilo Consortium (Pty) Ltd who was awarded the contract for construction and management of the Inkosi Albert Luthuli Hospital.

The results that emerged from these requests for records related to official PPPs was varied. With respect to the public bodies we received acknowledgments from both national bodies - DTI and DIRCO - and were requested to pay the prescribed request fee. The DTI was the most helpful and released part of the requested records to us, correctly citing the sections of PAIA which they relied on for the partial refusal. DIRCO unfortunately did not give us a response within the statutory timeframe, despite being sent the proof of payment of the prescribed request fee, which resulted in a deemed refusal of our request, by virtue of the provisions of section 27 of PAIA. The most non-compliant of the public bodies was the provincial public body - KDH - who ignored our request entirely, that request is therefore also a deemed refusal. This variety of compliant and non-compliant response from public bodies is in line with the experiences of SAHA and the PAIA Civil Society Network in submitting requests to public bodies more generally, documented in the Network's annual Shadow Reports. However, SAHA received unusual responses from the private partners to these PPPs.

The primary difficulty SAHA experienced was that none of the private bodies, despite performing a public function in terms of section 8 of PAIA, have section 51 PAIA manuals, nor did they have a website from which we could ascertain the contact details for the purposes of submitting the requests. It appears that the reason for this may be that in tendering for the PPPs, private bodies form consortiums with other companies as this strengthens their proposal, and the contract is thereafter awarded to the consortium, rather than to any one of the private bodies forming part of the consortium separately. This does little to nothing for promoting access to information and transparency. The effect of this this is that none of the private bodies forming part of the consortium take responsibility for access to information duties owed to the public - they all referred SAHA as a requester to the consortium, and yet the consortium itself is not a legal entity that can be held to account under PAIA. Over and above the fact that it is difficult to hold the consortium accountable by virtue of their composition, 2 of the 3 consortiums did not even have a physical address where it conducted business from. In fact, in our submission of a request to Imbumba Aganang, it took a lengthy phone call as well as several emails to find out who the actual private body is, let alone ascertain who their information officer is. Eventually in that instance, the Imbumba Aganang Management Company (which was a subsidiary of another company) directed us to a company called Paula Nell Company Solutions (PNCS) based in Durban who was not on the list provided to us by Treasury. PNCS thereafter informed us that the information/records we sought could not be provided to us due to it being a potential security threat. When we requested PNCS to provide us with adequate reasons in terms of section 25(3) of PAIA as well as reasons why severance in terms of section 28 of PAIA was not possible, we were simply ignored. On the other hand we must commend Rainprop Consortium who have a functional website and who engaged us and followed the procedure of PAIA and thereafter provide SAHA with a response.

SAHA has consistently made mention of the fact that there appears to be no real accountability or transparency within the PPP project model, despite there being clear guidelines provided by Treasury. From consortiums to random labelling of joint ventures as PPPs it seems that both government and private bodies have truly created a spider web where all attempts to get access to records to ensure transparency gets stuck whilst the requestee bodies like spiders on the web slip through holes and move with relative ease along this web of limited accountability