Public Law, Risk, Governance and Compliance2018-07-02T15:53:36+00:00
public law admin_Cowan-Harper-Madikizela Attorneys

Public Law and Administration

Public Law, Risk, Governance and Compliance affect individuals, private companies and public entities alike. The state, its organs and agencies often take administrative decisions and pass legislation which usually has far-reaching implications on society, affecting some or other right of members of society. The overarching duty imposed by the Constitution when public bodies take such decisions is that they must act in a manner that is fair, transparent and equitable and that the State must enact laws that give effect to this duty. Various pieces of legislation have been enacted to give effect to this duty, including the Public Finance Management Act and the Preferential Procurement Policy Framework Act. We assist clients in both the private and public sector to properly interpret these and other pieces of legislation, to either challenge administrative decisions in the case of private clients or, in the case of public entities to take and implement decisions in a manner that can withstand any legal challenges.

Our expertise and experience as litigators in this area of law means that our interpretation of the applicable legislative framework is backed up by current case law and courts’ interpretation of these pieces of legislation, to ensure on the one hand that our public sector clients understand the parameters of their actions whilst our private sector clients also understand the scope of their rights within the context of the public law framework. In his regard, we represent various state-owned entities and agencies and we are well versed with the legal framework in which they operate. We also represent Chapter 9 institutions, one of their biggest challenges being lack of clarity on the powers and scope of their mandate which is often challenged. We also advise on the relationship between government entities particularly on areas of potential conflict of interest.

Administrative Reviews:

We have conducted various administrative reviews, either to assist clients in challenging or defending administrative decisions, all with 100% success to date. In this regard, we have experience in representing clients in the High Court up to the Constitutional Court. It is this experience that enables us to ensure that our public sector clients take decisions that can withstand judicial scrutiny and in respect of private clients, they are able to make well-informed decisions prior to legally challenging administrative decisions.

Corporate Governance:

The Companies Act has extended its reach to state-owned entities and municipalities. This means that public entities, such as state-owned entities, non-profit organisations and municipalities also have to apply principles of governance and ethics in the performance of their duties. Non-compliance with the Companies Act has huge implications for governing body members and prescribed officers. We also advise on insurance matters for governing body members. Our experience includes advising governing bodies with regard to their oversight responsibilities, application of King IV and its governance guidelines.

Public Procurement:

We advise on public procurement, assist clients in the formulation of bid documents and relevant service level agreements ensuring that all the documents that form part of the bid are clear and unambiguous to ensure compliance with all public procurement prescripts and are in accordance with the client’s own internal supply chain policies.

Forensic Investigations and Legal Audits:

Working with specialist forensic investigators and auditors, we act for clients in investigations and legal proceedings and we have been involved in high profile, public interest and class action cases. We also provide guidance during forensic investigations to ensure that findings and recommended action pursuant to such findings are legally sustainable.

Risk Management and Compliance:

We conduct risk management and regulatory compliance reviews through legal audits and provide regulatory compliance advice. The legal audits assist our clients to identify specific governance and/or compliance risks that can potentially result in prejudice and we provide advice on preventative steps that clients can take in order to prevent such loss or prejudice and where clients are already exposed to such risk, we provide solutions to mitigate further loss. We are therefore able to implement recommendations flowing from any engagement immediately. These include initiating and defending civil proceedings, initiating disciplinary enquiries and criminal investigations, and taking remedial steps to address the risk of corporate criminal liability.

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Our services include:

  • Opinion and report drafting;

  • Conducting legal audits, working alone or in association with forensic investigators;

  • Drafting and reviewing commercial agreements;

  • Contract management, particularly in construction matters;

  • Administrative reviews;

  • Drafting supply chain documents and bid documents;

  • Monitoring compliance with the Protection of Personal Information Act, reviewing and drafting privacy policies;

  • Representing clients in Competition law matters; and

  • Litigation pursuant to all the above.