Ramaphosa signs a raft of laws to mixed reviews

President Cyril Ramaphosa has signed into law the Independent Police Investigative Directorate (Ipid) Amendment Act, completing a legislative review process prompted by the suspension of Robert McBride as head of the directorate in 2015.

It is one of a raft of bills the president has assented to since he took office for a second term last month, among them the Public Procurement Act, which was also drafted in response to state capture. 

Neither had a smooth passage through the sixth parliament.

The Ipid Act was initially amended after the constitutional court ordered parliament in 2016 to rewrite a provision that allowed the minister to suspend or remove the head of the watchdog body without parliamentary involvement. 

President @CyrilRamaphosa has signed into law legislation affirming the institutional and operational independence of the Independent Police Investigative Directorate (IPID) and empowering it to investigate serious alleged offences committed by police officers whether on or off…

— The Presidency (@PresidencyZA) July 31, 2024

It was antithetical to the entrenched independence of the directorate envisaged by the Constitution because it was “tantamount to impermissible political management of Ipid by the minister”, the court said.

“The manner in which the minister dealt with Mr McBride demonstrates, without doubt, how invasive the minister’s powers are.”

McBride had turned to the high court after he was suspended by former police minister Nathi Nhleko for rejecting allegations of illegal rendition of Zimbabweans used as cover to suspend senior leaders of the Directorate for Priority Crime Investigation (the Hawks).

The sidelining of Anwa Dramat and his colleague Shadrack Sibiya was, the Zondo commission on state capture heard, part of the systematic corruption of criminal justice and security organs in the nine years of former president Jacob Zuma’s administration.

In 2019, parliament passed an amendment designed to remedy the defects identified by the court, specifically section 6(6). 

It also committed itself to reviewing the Act as a whole and last year, former police minister Bheki Cele tabled an amendment bill meant to enhance the operational independence of Ipid and broaden its mandate to investigate serious crimes committed by police officers, regardless of whether they were on duty.

The foreword stressed that it must be allowed to exercise its powers “without fear, favour, prejudice or undue influence” to give effect to the court ruling in the McBride case.

However, critics of the initial draft said it seemed designed to achieve the opposite. 

Section 6(1) stipulated that the minister of police shall appoint the director of Ipid, “with the concurrence of cabinet” for a non-renewable period of between seven to 10 years. It allowed parliament no say in the process, repeating the omission that had rendered the clause on the removal of the director unconstitutional. 

The Democratic Alliance (DA) and the Institute for Security Studies argued that this gave the police minister greater powers to appoint a political cadre and made the directorate more vulnerable to executive meddling. 

A later draft introduced a panel, to be appointed by the minister, to select a candidate for the directorship, but the DA warned that this was not enough to see the law pass constitutional muster.

Eventually, section 6 was redrafted to the effect that the minister must, after receiving the name of a candidate from the panel, submit it to the portfolio committee on police, which would have 30 days to reject or accept the nomination.

The Public Procurement Act did not see late changes to silence criticism that MPs have failed to close the loopholes through which tender fraud bled the state’s coffers dry and flouted Chief Justice Raymond Zondo’s warning that procurement must take place in pursuit of value for money. 

At least some of the criticism reads as disappointment that Zondo’s findings did not prompt a rethink of the state’s commitment to preferential procurement. In his weekly newsletter on Monday, Ramaphosa defended its retention, and elaboration, as a transformational imperative. 

The Act introduces the novel concept of “set aside”, which obliges state entities to reserve contracts for listed categories of bidders, including black people, women, young people, disabled people, military veterans and small-businesses owners.

“Public procurement is about getting the best value for the state. It is also an opportunity to promote transformation of the economy and society,” the president wrote. 

“The new law therefore provides for set asides in the allocation of contracts to advance companies owned by people historically disadvantaged by unfair discrimination.”

He said the approach was in line with section 217 of the Constitution, which requires that public procurement be fair, equitable, transparent, competitive and cost-effective. 

“The Constitution also says that this should not prevent procurement policies that provide for the protection or advancement of people disadvantaged by unfair discrimination.”

Lawyers have commented the manner in which the new Act provides for preferential procurement is more prescriptive than any previous mechanism meant to achieve the same. 

And they have noted with interest that it reprises the concept of pre-qualification to tender, which was introduced through ministerial regulations in 2017 to restrict bidding to certain categories, such as companies with a stipulated minimum broad-based black economic empowerment status. 

The supreme court of appeal has held that this was unlawful because it amounted to preliminary disqualification inconsistent with section 217. The constitutional court dismissed a ministerial appeal.

The DA has called the focus on preferential procurement and the designation of certain sectors for local production a recipe for market distortion and a perpetuation of race-based policies that enabled tenderpreneurs and entrenched corruption.

But Ramaphosa said the law directly addressed Zondo’s findings on tender corruption by creating a Public Procurement Office in the treasury to promote standardisation and transparency.

“This law eliminates the problem identified by Chief Justice Zondo of fragmentation in procurement laws by creating a cohesive regulatory framework.”

The procurement office must, section 5 of the Act says, develop “measures to maintain the integrity of procurement”, train officials involved in procurement and take appropriate steps to address any material breach of the law.

Section 13 bars public servants and public office bearers, officials and employees of parliament provincial legislatures and municipalities from tendering for state contracts, but the prohibition does not extend to office bearers in political parties. 

Section 14 obliges officials to resist and report any attempt to pressure them to manipulate a tender process, and says they may not be victimised or suffer “occupational detriment” for doing so.

“This is an important provision,” Ramaphosa said, “because many of the abuses that took place during the state capture era involved political office bearers, business people and others putting pressure on managers to flout procurement regulations.”

But parliament stopped short of crafting specific provisions to encourage and protect whistle-blowing, despite the volume of examples of victimisation recorded by the Zondo commission.

The frustration with the legislation to some extent echoes that with the National Prosecuting Authority Amendment Act, which confers permanency on the Investigating Directorate, as Ramaphosa undertook to do in response to the Zondo report. 

It was signed by the president days before the May elections.

Critics cautioned the drafters that the directorate would be as vulnerable to political whim as the Scorpions were, because it remains located within the National Prosecuting Authority and therefore shares its intrinsic lack of independence, including reliance on ministerial allocation of funds.

But the National Health Insurance Act was by far the most contentious measure signed on the eve of the elections and some, as yet unqualified, revision is expected in concession to partners in the new coalition government. 

Ramaphosa last week signed two amendments to the Companies Act and the week prior the crucial Climate Change Act, which domesticates the country’s emissions reduction commitments under the 2015 Paris Agreement. 

The targets are under risk from the country’s reliance on coal as a power source but the law sets caps for large emitters and compels every local authority to develop a climate-response plan.

According to his office, the president has enacted about 20 bills since March, with as many still awaiting his signature, including the Upstream Petroleum Resources Development Bill and the National Nuclear Regulator Bill.