COSATU's Submission on the

Preferential Procurement Policy Framework Bill

Submitted to the Joint Committee on the Preferential Procurement Policy Bill, 15 December 1999

Table of Contents

  1. Introduction

  2. Summary of Recommendations

  1. The current procurement situation

  2. Our approach to Procurement Policy

    1. Procurement policy as a tool of transformation
    2. Minimum and best practice requirements for tendering firms
    3. Using procurement to advance worker rights
    4. Employment creation
    5. Value for money
    6. International factors

  1. Concerns with the Bill and alternative proposals

    1. "Optional" nature of the Bill
    2. A lack of content and detail
    3. Ensuring genuine transformation
    4. Promoting local content
    5. Best practice labour standards and worker rights
    6. Employment creation

  1. Introduction

    COSATU welcomes the opportunity to comment on the Preferential Procurement Policy Framework Bill [No. 2520 of 1999] ("the Bill"). Together with pieces of legislation such as the Employment Equity Act and the Equality Bill, procurement policy is central in ensuring that political liberation also translates into economic emancipation and empowerment.

    The process leading to the Bill has not been satisfactory, and in fact has unfolded in a "back to front" manner. The Green Paper on Procurement Policy Reform ("the Green Paper") was published in 1997, and COSATU duly made a submission on this to the Department of Public Works. Due to the deadlines imposed by constitutional obligations, the Department of State Expenditure ("the Department") is now rushing through the Bill. The Department has indicated, however, that it will still be bringing out a White Paper, and will hold full consultations on this. If the outcome of these consultations is in any way incompatible with the Act emanating from this Bill, they have undertaken that the Act will be amended accordingly. The Bill also empowers the Minister of Finance to make regulations regarding any matter required or permitted to be prescribed in terms of the Bill, which regulations we understand the Department intends to use to provide additional detail or fill the loopholes on issues not adequately covered in the Bill itself.

    While COSATU is sensitive to and supportive of the need to comply with constitutional requirements, we feel that this process could have been better managed to ensure a proper sequencing of processes. We note for example that in February of last year (1998), the Department indicated that legislation on procurement policy would be delayed as the budget took precedence in their duties. Not only is this an unacceptable excuse for the delaying of constitutionally required legislation, but this delay took place almost two years ago and we have not yet had sight of a White Paper.

    NEDLAC has also expressed its serious reservations around the processing of this Bill, and the apparent disjuncture between this process and those of the Green and White Papers.

    Notwithstanding the problems with the sequencing, we call on the Portfolio and Select Committees on Finance to ensure that full and meaningful participation on the White Paper does indeed take place as soon as possible. The fact that the Act will have been passed by then should not have the effect of limiting or undermining the consultations process. Instead, this opportunity should be utilised for the limitations of the Act to be corrected, in particular to further flesh out the detail of the Act.

    We welcome efforts to encourage some uniformity amongst what are currently diverse systems of preferences amongst different organs of state. A national system is imperative to ensure that transformation is carried forward at all levels, and to avoid distortions brought about by different systems. We feel that it is important that the uniformity of tendering systems is further strengthened, both by trying to overcome the "voluntary" nature of the Bill and by tightening up its vagueness, which currently allows very diverse systems within its framework.

    COSATU identifies five key objectives which need to inform procurement policy:

  1. Summary of Recommendations

    • The firm should be able to provide a valid Unemployment Insurance Fund registration number and should be up to date with its contributions;
    • The firm should be able to provide a valid Workman's Compensation Fund registration number and should be up to date with its contributions;
    • Proof of adherence to relevant bargaining council agreements;
    • The firm should provide its company tax and VAT registration numbers and should be in good standing with the South African Revenue Services;
    • The firm should be up to date with its required contributions under the Skills Development Act.
    • Compliance with all other relevant legislation, in particular the Basic Conditions of Employment Act, the Labour Relations Act and the Employment Equity Act.

  1. The current procurement situation

    Owing to the lack of overarching legislation up until now, procurement policies have been uneven and unconsolidated. Pointers to both organs of state and prospective tenderers currently lie in inter alia the Green Paper, the ten-point plan (applicable to small contracts) released just prior to that, guidelines for empowerment in various Requests for Proposals, and the principles contained in Industrial Participation Policy.

    The following specific price and point preferences are currently available from the national State Tender Board (STB) to advantage domestically manufactured goods:

    % Domestically manufactured: Price Preference:
    Not more than 5% 1%
    More than 5% and up to 10% 2%
    More than 10% and up to 20% 3%
    More than 20% and up to 30% 4%
    More than 30% and up to 40% 5%
    More than 40% and up to 50% 6%
    More than 50% and up to 60% 7%
    More than 60% and up to 70% 8%
    More than 70% and up to 80% 9%
    More than 80% and up to 90% 10%
    More than 90% and up to 95% 10%
    More than 95% and up to 100% 10%
    Locally designed 5%
    Adapted local designed 3.5%
    Manufactured designed 2.5%
    Adapted manufactured 1%

    Note that these preferences are not in addition to the aforementioned domestic preferences, but may be claimed as part of the local manufacture preference for "design".
    • 88 points are allocated for price
    • 10 points are allocated on the basis of the equity owned by historically disadvantaged individuals (this is calculated on a sliding scale from 0 point for 0% equity to a maximum of 10 points for 100% equity)
    • 2 points for equity owned by women (on a similar sliding scale).

    While not exhaustive, the above list of existing preferences does give some idea of the current situation and how the proposals of the Bill differ from this. This overview of the current state of procurement policy also suggests that the proposals of the Bill and the proposed additions from this submission would not be excessively unwieldy or cumbersome to implement. Various organs of state are currently using a range of, in some senses more complicated, procurement systems. In fact, we are confident that consolidating procurement practices into a uniform system would make effective implementation eminently more feasible.

    Over and above the procurement policy itself, there are various aspects of the tender system which can be improved to increase efficiency and empowerment. Initiatives taken by government in this regard include the waiving of sureties on construction projects worth less than R1 million and all other projects under R100 000, improving payment times to maintain liquidity of smaller firms, and simplified tender information and forms for completion as well as briefing sessions on tenders. COSATU encourages further progress in increasing the accessibility and efficiency of the entire tendering process.

  1. Our approach to Procurement Policy

    In this section we set out COSATU’s approach to procurement policy. We discuss the use of procurement policy as a tool of development and transformation, our proposals for two tiers of minimum and best practice requirements for tendering firms, the use of procurement policy to advance worker rights and promote job creation, and the international context of procurement policy. Our approach as outlined in section four informs our analysis in section five, where we set out our particular concerns with the Bill and our alternative proposals.

    4.1 Procurement policy as a tool of transformation

    The RDP states that tenders "must be utilised to encourage stakeholder participation in the RDP and promote worker rights, human resource development and job creation" (at 4.8.11). The principle of using procurement policy to advance a range of social or economic objectives is not new. A number of countries have applied the collective procurement policy of the state to achieve national objectives.

    With government purchases amounting to over R64bn per annum (excluding parastatals), procurement is amongst the most powerful socio-economic policy instruments available to government. It is important that, in addition to promoting the type of efficiency which will enable government to deliver the necessary quantity and quality of goods and services, procurement policy must be used to effectively challenge and transform existing business practice and to promote good practice in emerging enterprises.

    Procurement policy is a key instrument of a developmental state. Through opening the system to new sellers and through the terms its sets in its contracts of purchase, government is able to use its procurement power as a lever with which to bring new companies into the mainstream of the economy and promote ethical practices and labour standards. This can assist in pushing the economy onto an innovation led, high wage, standards-based growth path, rather than keeping it on its present stagnant path of low wages and highly skewed wealth distribution.

    In terms of the Constitution, when government contracts for goods and services it must do so "in accordance with a system which is fair, equitable, transparent, competitive and cost effective". It is COSATU's view - a position we consistently advanced during the constitution making process – that South Africa’s new procurement system should not be driven by price alone, but that a range of other socio-economic factors should be taken into account, for example:

    There should be no trade-off between these pillars of a transformed procurement system: none of the objectives of employment creation, the expansion of the pool of contractors, or the promotion of labour standards should be sacrificed in the attempts to achieve the others. The meeting of these objectives is essential if the South African economy is to be transformed. This means both promoting the interests of the poor and working people and giving increased opportunity to emerging suppliers.

    4.2 Minimum and best practice requirements for tendering firms

    In order to fulfill the transformative objectives discussed above, COSATU proposes an approach to procurement with two levels of requirements for tendering firms: minimum and best practice.

    Firstly, the Bill should stipulate the absolute minimum requirements which tendering firms should comply with, failing which their tenders would be summarily dismissed. These would ensure that state business is not given to firms which do not comply with the laws of the land, and such a requirement would assist in bringing firms into the tax and regulatory net. COSATU proposes the inclusion in the Bill of the following minimum requirements for consideration of a tender:

    The second tier of criteria for tendering firms would not be compulsory, but would form the basis for the awarding of additional/preferential points. This is in line with the current architecture of the Bill, although considerable further tightening and detail is required. While any tendering firm would be required to comply with the basic laws of the land, preference would be given to firms which go further than this – in terms of their labour standards, racial and gender composition of their management structures, and so on. The starting point for this set of objectives is already contained in clause 2(e) of the Bill. As is discussed later in this submission, we propose the expansion and concretising of these clauses.

    4.3 Using procurement to advance worker rights

    In order to advance the Constitution's commitment to "a fair and equitable" procurement system and the RDP's commitment to use procurement to promote worker rights, human resource development and job creation, COSATU has proposed in our submission on the Green Paper that tendering enterprises be required to provide information regarding their compliance with certain basic standards and requirements.

    This would include the development of a Workers Rights Index, which outlines indicators against which labour standards and good employment practices can be assessed. In line with our approach as discussed in section 4.2 above, it would be useful to divide these standards into core, or peremptory, factors in the absence of which a company's tender will not be considered, and factors which, while not being peremptory, will count in the tendering enterprise's favour. This non-peremptory category could be facilitated through the introduction of an assessment model which makes use of a point system designed to favour suppliers which adhere to and advance worker rights.

    The promotion of small and medium enterprises through break-out procurement - that is, packaging procurement into smaller contracts of manageable size for smaller contractors - should be managed in such a way that it does not lead to informalisation and sub-contracting as this would lead to increased employment insecurity and decreased productivity. The aim should be to promote SMMEs which create full-time, formal employment.

    4.4 Employment creation

    Given the high unemployment levels inherited as a result of apartheid underdevelopment, all aspects of government policy must give particular emphasis to the imperative of maximizing employment creation. For procurement policy this means, firstly, that preference must be given to domestically produced products and, secondly, that incentives must be put in place to encourage the appropriate use of labour intensive techniques.

    There should be no contradiction between promoting emerging, historically disadvantaged contractors and an increased preference for domestically produced products, except in circumstances where an emerging contractor simply plays the role of 'a middle-man' selling imported goods to government. As this situation could lead to job-loss, it should be avoided through the granting of specific preferences for domestically produced goods and services.

    4.5 Value for money

    In our approach to procurement policy, COSATU recognises the need for government to get value for money in its purchases. Payments to suppliers, after all, come from public resources which are badly needed to meet huge delivery needs. Preferential procurement policies should not have the effect of "crowding out" delivery or of excessively inflating the cost of goods and services which are ultimately supplied to the public.

    Notwithstanding the above considerations, we share the view as reflected in the Bill that it is worthwhile for government to pay more – up to 12.5% more based on the Bill’s formula – where such purchases meet developmental and transformative objectives. Ensuring that such resources are indeed wisely spent, and avoiding possible abuses of the system, implies an emphasis on "genuine transformation", as we discuss in section 5.3 of this submission, as well as close monitoring of contracts once awarded to make certain that the stated objectives are indeed being met.

    In ensuring the appropriate balance between cost effectiveness and the meeting of developmental objectives, the Joint Committee may wish to give consideration to inserting an absolute limit in the Bill on the premium which a tenderer can gain from a contract. In the absence of this, the state could potentially be expected to pay huge additional amounts on particularly large contracts. For example, on a service provision tender for which the lowest tender is R1 billion, a tenderer meeting the specified criteria could claim a premium of R125 million over and above their profit margin. Setting a cap on the absolute premium which can be claimed on any single contract could contribute the cost effectiveness of preferential procurement policy.

    4.6 International factors

    Government must resist attempts to be steam-rolled into the World Trade Organisation’s Agreement on Government Procurement. As this agreement is driven by the programmes of the EU and OECD which aim to expand their market through placing limitations on active and developmental procurement policies. Particularly those aspects of the proposed agreements which will require foreign investors to be treated the same way as local firms with regard to government procurement should be strongly rejected, as it is vitally important that procurement policy be used to promote domestic industry. In fact, signing this agreement would be unconstitutional for South Africa as it would disallow preference for South African citizens.

    In the briefing by the Departments of Finance and State Expenditure and the State Tender Board to the Joint Committee, it was stated that the Bill is currently not in line with international legislation. COSATU believes that we should not even try to make it conform with international agreements where such agreements would have the effect of stifling our domestic development. Given the fact that international agreements are currently incompatible with the Bill and our Constitution itself, such agreements should not be used as constraints to the developmental aspects of the Bill.

    South Africa should commit itself - together with other like-minded developing countries to advance an alternative perspective through UNCTAD and at the World Trade Organisation which will provide for the developing world’s need to make use of procurement policy to advance its economic development.

  1. Concerns with the Bill and alternative proposals

    5.1 "Optional" nature of the Bill

    We are concerned by the fact that adherence to the framework provided for in the Bill is optional, in the sense that it only applies to organs of state which decide to implement their own preferential procurement policies. In its briefing to this Committee of 23 November 1999, the Department noted its concern with this but explained it in terms of the Constitution. The Department’s understanding of the Constitution appears to be that, in order to make compliance with the Bill obligatory for organs of state, Parliament would have to be approached to amend the Constitution. While we have not yet had the opportunity to obtain legal advice on this, we are not convinced that this is the only interpretation of the constitutional provision. We call on the Joint Committee to seek independent legal advice on this issue. If such advice indicates that it would in fact not be unconstitutional to make compliance with the procurement framework compulsory, then the Bill must be amended accordingly.

    We note that section 217(3) of the Constitution requires the enactment of national legislation which prescribes a framework for procurement policies for organs of state, and the Bill under discussion today seeks to fulfill this obligation. However, we also note section 217(1) which is more universal: "When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective."

    This clause clearly compels all organs of state to procure their goods and service in line with the above objectives, although these objectives would obviously be open to diverse interpretations. Even if compliance with the Bill (Act) cannot be legally imposed on all organs of state, all attempts should be made to ensure compliance. Indications are that central government (including all national departments) and provincial governments will adopt procurement policies within the ambit of the Bill. The Department should make concerted efforts to ensure that this happens, as well as to get commitments and ensure the implementation of the Bill’s framework from local governments and parastatals.

    5.2 A lack of content and detail

    A central concern with the Bill as it stands is that it is excessively vague and general. While noting that the stated objective of the Bill is to provide a framework for the implementation of a preferential procurement policy for organs of state, we do feel that this is the appropriate piece of legislation for providing more substantive policy prescriptions. We find it surprising that the Green Paper provided relatively detailed proposals on various aspects of procurement, while the Bill itself – the body of which is only about a page and a half – provides only a skeleton of a framework. For example, there is no mention of the institutions proposed in the Green Paper. This disparity could be related to the rushed and poorly sequenced nature of the process, as discussed in the introduction to this submission. Of more concern, however, is that the Departments of Finance and State Expenditure may have taken a deliberate decision to depart from the policy perspective of the Green Paper, an approach they advocated in the Presidential Job Summit negotiations, in the knowledge that parliament would be forced to adopt a Bill no matter how imperfect, because of the constitutional deadline.

    Specific aspects of this lack of detail are discussed in later sections of this submission and relevant proposals are tabled. We would, however, like to draw the committee’s attention to clause 2(e) of the Bill, which sets out the specific goals on which the preference of procurement can be based. This clause should be at the heart of the Bill, as it should spell out the criteria which a preferential procurement policy is intended to enhance, how these criteria should be measured in a tender, and the appropriate weighting of different objectives. The wording of the clause, however, is that

    1. the specific goals may include (emphasis added) –
      1. Reconstruction and Development Programme Principles; and
      2. contracting with persons, or categories of persons, disadvantaged by unfair discrimination;

    As can be seen from the above wording, the Bill just suggests two goals which preferential procurement policies could include, but it is left completely up to the organ of state concerned to identify their chosen goals.

    Furthermore, the two suggested goals are themselves vaguely conceptualised. As we have seen before, reference to RDP principles can be used to justify completely contradictory policies. As one of the contributing organisations to the RDP and an active proponent of its principles, COSATU welcomes the inclusion of RDP principles in the Bill. Our concern, however, is that this general formulation does not go far enough in setting out the basis for preferences between tenders. Sections 5.4 to 5.6 of this submission tables our proposals on what we think should be included under this goal, focusing on the promotion of local content, best practice labour standards and worker rights, and employment creation.

    The Bill also gives no direction as to how the ten additional points available to tenders which comply with specified goals are to be allocated. Even if it is felt that there is some need for flexibility in this regard, some guidelines should be given in the Bill as to the appropriate relative weighting of goals. This could be expressed, for example, as a minimum and/or maximum number of points to be allocated to each criterion.

    We acknowledge that a framework should provide for some flexibility for differences between different organs of state and different types of contract. However, it should not be so flexible or so general that any preferential procurement policy could be seen as falling within its ambit. Due to their own fiscal constraints, individual tendering authorities may be under pressure to emphasise cost considerations at the expense of more developmental and transformative criteria in adjudicating between tenders. A national policy on preferential procurement should prevent choices being made purely on immediate cost considerations. COSATU thus proposes a tightening up of the Bill to concretise more substantively what preferential procurement policies should favour.

    5.3 Ensuring genuine transformation

    "Affirmative procurement" is an important tool in eliminating racial imbalances in economic participation. COSATU shares a concern with other stakeholders of "fronting" in procurement policy – an apparently common practice whereby companies which would not qualify for procurement preferences (generally untransformed, white male owned enterprises) supply their goods to companies nominally headed by blacks or women, which sell these to the state after adding their own profit margin. Instead of transforming our economy, such practices entrench its fundamental ownership structure while subsidising the emergence of a "trader class". COSATU is aware of a recent case where a tender submitted to the State Tender Board attempted to win a contract from the state on the basis of the race and gender of the named head of the company – who turned out to be a thirteen year old! We do not intend to undermine empowerment initiatives– in fact what we support is genuine empowerment of domestic producers which transforms the ownership and control structure of our economy.

    The Department has also acknowledged the problem of "fronting", and the need to avoid this in preferential procurement. The Department apparently intends dealing with this though the regulations provided for in section 4 of the Bill, by stipulating that previously disadvantaged persons named in the tender are actually involved in the day-to-day running of the company. COSATU feels that, by virtue of the importance of the issue, it should not be left to some future regulations but should be included in the body of the Bill itself. Obviously the formulation should cover different aspects of the meaningful involvement of historically disadvantaged persons, both in terms of the ownership and control of tendering enterprises.

    We strongly support the aspect of clause 2(3) of the Bill which stipulates that any goals set out in an invitation to submit a tender must be monitored for compliance. This is critical in ensuring that public funds are used for the intended purposes and bringing procurement into broader systems of fiscal accountability.

    Another aspect of our conception of "genuine transformation" is that the benefits of policies such as preferential procurement should not be limited to a few individuals, but should be as widely distributed as possible. We would obviously want to avoid a situation where a small number of people are enriched by importing foreign goods and benefiting from preferential procurement policies in winning state tenders, at the expense of large numbers of workers employed by domestic producers. Our proposals on the promotion of local content as discussed in section 5.4 below recommend ways of avoiding such a situation. In general, COSATU would place more emphasis on the empowerment of "categories of persons disadvantaged by unfair discrimination" than of "persons disadvantaged by unfair discrimination". The maximum sharing of the gains of preferential procurement policies can also be ensured by favouring those companies which can show in their tenders that their employees will also benefit directly from the tender.

    5.4 Promoting local content

    COSATU is particularly concerned that the Bill does not specifically favour domestically produced goods. This is particularly disappointing in the light of the Green Paper’s stated commitment to the principle of "ensuring that the foreign content in contracts … is minimised" (at 3.5.5).

    Our procurement policy should not have the (probably unintended) result of fostering a "trading class" of companies which simply import goods manufactured elsewhere, add their own profit margin, and win a state tender on the basis of vaguely defined criteria. Given the vagueness of the Bill as discussed earlier, a scenario could be conceived of where a black owned company imports machinery, adds no value to the machinery but inflates the price in order to take a cut, and sells it to the state at the expense of thousands of black workers and their dependents employed by a domestic company which does not qualify for (as many) additional points.

    COSATU is certainly not arguing for the protection of poorly run domestic companies which have not transformed their management or ownership structure. We do, however, believe that domestic production needs to be a central, and explicitly stated, criteria in granting procurement preferences. Allocation of contracts to domestic companies can also have the effect of building their capacity and competitiveness in the medium to long term. Section 3 of this submission summarises the price and point preferences currently available, which include substantial preferences available for domestic manufacturers. We propose the inclusion of local content and domestic production as a specific element of the category "RDP Principles", and furthermore the inclusion of a sliding scale similar to the ones set out in section 3 of this submission, to favour domestic production.

    We propose that only under exceptional circumstances should foreign suppliers be awarded contracts and even then there should be an investigation into factors such as the employment consequences of not allowing a South African enterprise the contract, the worker and trade union rights of the country where the competing company is located, the possibility of giving local manufacturers some time to amend their production facilities in order to meet required specifications.

    Whenever - after an investigation - a foreign supplier is chosen ahead of a domestic supplier, the Minister of the Department making the purchase should be required to publish a report of the investigation including reasons for the decision to purchase from a non-South African enterprise.

    5.5 Best practice labour standards and worker rights

    The Green Paper proposed that:

    COSATU in general welcomed these proposals in our response to the Green Paper. Nevertheless, we called for more detail and more prominence as a central socio-economic objective of government procurement policy. We argued that, if procurement policy was to remain in line with the commitments contained in the RDP, that as part of the "general review of procurement policy" the Green Paper should be amended to introduce a more detailed policy proposal for how procurement policy is to be used to advance and protect worker rights and to benefit the mass of ordinary people. The Bill, however, is a regression on the Green Paper since it makes no mention of labour standards or worker rights.

    COSATU therefore proposes the addition to the Bill of an additional objective, namely: "The promotion of labour standards and sound labour relations through requiring compliance with agreed upon standards and indicators", should be included as a specific criterion under RDP Principles. As discussed in section 4.2 of this submission, we propose that the Bill sets out elements of best practice labour standards over and above the minimum legislated requirements. They would be allocated points on the basis of a Workers’ Rights Index. For example, companies which provide for six months of paid maternity leave instead of the legislated four months, or which can show good faith participation in centralised bargaining institutions where these exist, should be favoured in the allocation of points. Another "best practice" consideration could be whether the company has a good history of no union bashing, including the use of scab labour during legal strike action, and the use of lock-out action against workers.

    In order to make the assessment of potential suppliers’ labour relations track records meaningful, it would be necessary for procedures to be in put in place which would allow trade unions or members of the public opportunity to make information about the tendering company available to the body responsible for making the tender adjudication. Giving consideration to the over-riding requirement that the tendering system is efficient and workable, this could take place through a process of notification followed by written submissions or through a hearings process.

    5.6 Employment creation

    COSATU supported the Green Paper's thrust (at 3.6) that priority must be given to labour intensive employment generating technologies and that government must see to it that "the private sector implements policy relating to employment creation on public sector contracts". In our submission on the Green Paper we argued that more detail is required as to how this is to be achieved.

    We propose that employment creation be included as a specific aspect of RDP Principles. In particular, the principle of promoting labour intensivity must be extended to all of government procurement and must be applied by government in its partnerships with the private sector. Tenderers should provide projections of how many new jobs they would generate if awarded the contract, the sustainability and skills composition of these jobs, and the proportion of these jobs expected to go to women. Procurement policy should explicitly favour tenders with higher job creation potential, and there should be close monitoring to ensure that this potential is indeed realised.

Footnotes:

  1. Our submission on the Green Paper can be found at http://www.cosatu.org.za/docs/procure.html

  2. Price preferences refer to a system where a tender is allowed to be a certain percentage more costly if it meets certain criteria, while point preferences refer to a system where a tender is allocated additional points if it meets certain criteria.

  3. The "Definitions" section of the Bill defines an organ of state as being "an organ of state in the national, provincial or local sphere of government as contemplated in section 239 of the Constitution". This section of the Constitution in turn defines an organ of state as being

      (a) any department of state or administration in he national, provincial or local sphere of government; or
      (b) any other functionary or institution

      (i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or
      (ii) exercising a public power or performing a public function in terms of any legislation, but does not include a court or judicial officer

    It is clear that this applies not only to national, provincial, and local governments, but also inter alia to parastatals and statutory commissions.

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