30 March 2016

A practical exercise in getting tangled in the legal web of Public-Private Partnerships

In an earlier article published by SAHA we noted certain concerns around accountability with respect to record keeping within Public-Private Partnerships (PPPs). Specifically we noted that there appear to be two types of PPPs. Those that are registered with National Treasury in terms of their regulations (and that are therefore officially PPPs) and those that are not, but still masquerade as being official PPPs.

As part of FOIPs ongoing PPP project, launched in 2015, we identified documents in terms of Treasury regulations, all PPPs should have and thus, began by requesting those documents. The initial requests tested the Education sector and the results were not encouraging.

During President Zuma's 2016 state of the nation address, he expressly mentioned on two occasions PPP projects that were already in operation and one that was indirectly mentioned as being remarkably similar to a PPP. As SAHA is in possession of a list of active PPPs registered with Treasury, following a previous PAIA request, we noticed that the PPPs referred to by the President were not on the list. SAHA therefore submitted PAIA requests in relation to each of these supposed PPPs for the documents that all PPPs produce and keep in terms of National Treasury Regulations, in order to clarify whether the PPP's the President referred to were in fact PPPs, or simply being held out as PPPs.

These requests were in relation to project Operation Phakisa and the Sovereign Innovation Fund as well as Ketlaphela project which was indirectly referred to as a being a PPP. Of the three SAHA was only able to identify who the private partner was in the Operation Phakisa project, we therefore submitted two requests in relation to this project, one to the government department and the other to the private partner. With respect to the Sovereign Innovation Fund SAHA was unable to identify the private partner and was forced to submit the request only to the government department. Lastly with respect to the Ketlaphela project, we decided to probe for slightly more loosely termed records seeing as the project was only inferred to be a PPP.

Safe to say the results from these requests have been poor. Not only have we not yet received any records but have not even received an acknowledgment of our requests from the Department of Science and Technology for the Ketlaphela and Sovereign Innovation Fund as well as the Department of Planning, Monitoring and Evaluation for the Operation Phakisa despite a decision being due under PAIA on 18 March 2016 for all 3 requests. However, Transnet has provided SAHA with an acknowledgement letter and we have since paid the section 22 request fee. From communication with some of the parties to these agreements held up by the President as PPPs it appears that these are in fact not really PPP's - which means that there is less regulatory oversight with respect to these agreements and even less transparency from a record-keeping point of view.

The loose use of the term PPP's by government is worrying not only from an access to information point of view but from an administrative one too. As PPP projects must by law be registered with Treasury and comply with the Regulations issued in relation to PPP's, holding up an agreement as a PPP suggest compliance with these legal requirements, when in fact there is less oversight and less transparency.

In South Africa PPP's are generally being treated by government as a presumptive good - with this project SAHA aims to probe this presumption through strategic PAIA requests. It is worrying that government is extending this presumption to agreements that are not even really PPPs and therefore are not subject to the minimal transparency and oversight that PPP's are in terms of Treasury Regulations.