| (a) |
A court convicting a person of an offence contemplated in section I2 or 13, may, in addition to imposing any sentence contemplated in section 26, issue an order that— |
| (i) |
the particulars of the convicted person; |
| (ii) |
the conviction and sentences; and |
| (iii) |
any other order of the court consequent thereupon, |
be endorsed by the Register.
| (b) |
If the person so convicted is an enterprise, the court may also issue an order that— |
| (i) |
the particulars of that enterprise; |
| (ii) |
the particulars of any partner, manager, director or other person, who wholly or partly exercises or may exercise control over that enterprise and who was involved in the offence concerned or who knows or ought reasonably to have known or suspected that the enterprise committed the offence concerned; and |
| (iii) |
the conviction, sentence and any other order of the court consequent thereupon, |
be endorsed on the Register.
| (c) |
The court may also issue an order contemplated in paragraph (a) in respect of— |
| (i) |
any other enterprise owned or controlled by the person so convicted; or |
| (ii) |
the particulars of any partner, manager, director or other person, who wholly or partly exercises or may exercise control over such other enterprise, |
and which—
| (aa) |
enterprise, partner, manager, director or other person was involved in the offence concerned; or |
| (bb) |
partner, manager, director or other person knew or ought reasonably to have known or suspected that such other enterprise was involved in the offence concerned. |
| (d) |
Whenever the Register is endorsed as contemplated in paragraph (a), (b) or (c), the endorsement applies, unless the court directs otherwise, to every enterprise to be established in the future, and which enterprise will be wholly or partly controlled or owned by the person or enterprise so convicted or endorsed, and the Registrar must, in respect of every such enterprise, endorse the Register accordingly. |
| (2) |
Where a court has issued an order under subsection (1), the registrar or clerk of such court must forthwith forward the court order to the Registrar and the Registrar must forthwith endorse the Register accordingly. |
| (a) |
Where the Register has been endorsed in terms of subsection (2), in addition to any other legal action, the following restrictions may or must, as the case may be, be imposed— |
| (i) |
The National Treasury may terminate any agreement with the person or enterprise referred to in subsection (1)(a) or (b): Provided that— |
| (aa) |
in considering the termination of an agreement, the National Treasury must take into account, among others, the following factors, namely— |
| (aaa) |
the extent and duration of the agreement concerned; |
| (bbb) |
whether it is likely to conclude a similar agreement with another person or enterprise within a specific time frame; |
| (ccc) |
the extent to which the agreement has been executed; |
| (ddd) |
the urgency of the services to be delivered or supplied in terms of the agreement; |
| (eee) |
whether extreme costs will follow such termination; and |
| (fff) |
any other factor which, in the opinion of the National Treasury, may impact on the termination of the agreement; and |
| (bb) |
if that agreement involves any purchasing authority or Government Department, such restriction may only be imposed after consultation with the purchasing authority or Government Department concerned; |
| (ii) |
the National Treasury must determine the period (which period may not be less than five years or more than 10 years) for which the particulars of the convicted person or the enterprise referred to in subsection (1)(a), (b), (c) or (d) must remain in the Register and during such period no offer in respect of any agreement from a person or enterprise referred to in that subsection may be considered by the National Treasury; or |
| (iii) |
during the period determined in subparagraph (ii), the National Treasury, the purchasing authority or any Government Department must— |
| (aa) |
ignore any offer tendered by a person or enterprise referred to in subsection (1)(a), (b), (c) or (d); or |
| (bb) |
disqualify any person or enterprise referred to subsection (1)(a), (b),(c) or (d), from making any offer or obtaining any agreement relating to the procurement of a specific supply or service. |
| (b) |
A restriction imposed under paragraph (a) only comes into effect after any appeal against the conviction or sentence or both has been finalised by the court: Provided that if the appeal court sets aside, varies or amends the order referred to in subsection (1), the National Treasury must, if necessary, amend the restrictions imposed under paragraph (a) accordingly. |
| (c) |
Where the National Treasury has terminated an agreement in terms of paragraph (a)(i), it may, in addition to any other legal remedy, recover from the person or enterprise any damages— |
| (i) |
incurred or sustained by the State as a result of the tender process or the conclusion of the agreement; or |
| (ii) |
which the State may suffer by having to make less favourable arrangements thereafter. |
| (4) |
The National Treasury— |
| (a) |
may at any time vary or rescind any restriction imposed under subsection (3)(a)(i) or (ii); and |
| (b) |
must, when the period determined in terms of subsection (3)(a)(ii) expires, remove the particulars of the person or enterprise concerned, from the Register. |
| (5) |
When the National Treasury imposes a restriction under subsection (3)(a)(i) or (ii), or amends or rescinds such a restriction, it must within 14 days in writing notify— |
| (a) |
the person whose particulars have been so endorsed; |
| (b) |
any purchasing authority on which it may decide; and |
| (c) |
all Government departments, |
of any resolution or decision relative to such restriction or the amendment or rescinding thereof, and request such authorities and departments to take similar steps.
| (a) |
Any person whose particulars, conviction and sentence have been endorsed on the Register as contemplated in this section and who has been notified as contemplated in subsection (5)(a), must in any subsequent agreement or tender process involving the State, disclose such endorsement, conviction and sentence. |
| (b) |
Any person who fails to comply with paragraph (a), is guilty of an offence. |
| (7) |
For purposes of this section— |
| (a) |
"agreement" includes an agreement to procure and supply services, to arrange the hiring or letting of anything or the acquisition or granting of any right for or on behalf of the State; |
| (b) |
"enterprise" includes any individual, partnership, corporation, association, or other juristic person or legal entity, and any union or group of individuals associated in fact, although not a juristic person or legal entity; |
| (c) |
"Registrar" means the Registrar of the Register designated under section 30; and |
| (d) |
"Register" means the Register established under section 29. |
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