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General Agreement on Development Co-operation between the Government of Canada and the Government of the Republic of South Africa [2006] CATSer 21 (23 November 2006)

E105079

GENERAL AGREEMENT ON DEVELOPMENT CO-OPERATION BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA

THE GOVERNMENT OF CANADA (hereinafter referred to as “ Canada ”) and THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA (hereinafter referred to as “ South Africa ”) (hereinafter also jointly referred to as the “Parties” and in the singular as a “Party”);

RECALLING the General Memorandum of Understanding on Development Co-operation between the Government of Canada and the Government of the Republic of South Africa, signed on 13 December 1995;

WISHING to strengthen their cooperation as stated in the Joint Declaration of Intent on Strengthening Cooperation between the Republic of South Africa and Canada, of 4 November 2003; and

NOTING that Canada approved on 13 November 2003 a Country Development Programming Framework (hereinafter referred to as the “CDPF”), which will inform the Canadian International Development Agency's (hereinafter referred to as “CIDA”) development co-operation between the Parties;

HEREBY AGREE as follows:

ARTICLE 1

Definitions

For the purposes of this Agreement:

(a) “Official Development Assistance” (hereinafter referred to as “ODA”) means official resource flows to South Africa provided by the Government of Canada or any official agency mandated by the Government of Canada with its main objective being the promotion of development and welfare;

(b) “personnel” means persons who are not nationals or permanent residents of the Republic of South Africa and who are employed or contracted under the terms of this Agreement;

(c) “Reconstruction and Development Programme Fund” (hereinafter referred to as “RDP Fund”) means the central account at the South African Reserve Bank into which donor funds for government-to-government projects are paid, and from which transfer payments are made to South African implementing agencies.

ARTICLE 2

Objective

The objective of this Agreement is to provide a framework for development co-operation between the Parties within the following areas:

(a) strengthening service delivery in HIV/AIDS;

(b) strengthening service delivery in Governance;

(c) strengthening service delivery in Rural Development;

(d) promoting Regional Stability and Cooperation;

(e) other areas of assistance which may be mutually agreed upon.

ARTICLE 3

Competent Authorities

1. In matters concerning the implementation of this Agreement, National Treasury: International Development Cooperation (hereinafter referred to as “IDC”) shall represent South Africa as the Competent Authority and the Competent Authority representing Canada shall be designated in writing through the diplomatic channel.

2. The specific contact points shall be communicated by exchange of diplomatic notes.

ARTICLE 4

Co-operation

The Parties shall co-operate fully to ensure that the objective of this Agreement is successfully accomplished.

ARTICLE 5

Project Implementation Plans

1. The details for project funding channeled through the RDP Fund, in addition to other CIDA funding mutually agreed upon under this Agreement, shall be the subject of Project Implementation Plans which shall not create binding obligations under international law.

2. Project Implementation Plans shall inter alia set out, as applicable:

(a) the designation of responsibilities between the Parties, the Implementing Authorities or their authorized representatives;

(b) the aims, objectives and expected results of the project;

(c) an outline of the methods and means to be used to implement the project;

(d) a schedule for the implementation of the project activities, including a milestone chart;

(e) the nature, timing and responsibilities for project evaluations and the means by which they will be made;

(f) the resources required for the project;

(g) the terms of payment and estimated budget;

(h) environmental assessment requirements;

(i) gender assessment requirements;

(j) financial management of the project;

(k) project monitoring, evaluation and reporting;

(l) procurement procedures; and

(m) any other provisions deemed necessary.

ARTICLE 6

Consultations

1. The Competent Authorities shall consult annually on government-to-government projects, unless agreed otherwise, in order to:

(a) review progress;

(b) discuss possible revisions of plans and budgets;

(c) discuss proposals for extension of ongoing or new projects to be included under this Agreement;

(d) discuss issues of special concern for the implementation of the projects and this Agreement; and

(e) make recommendations and decisions for the future implementation of the projects and this Agreement.

2. Central elements of the discussions and all decisions taken at the annual consultations shall be recorded in agreed minutes. The consultations shall be convened and chaired alternately by each Party's Competent Authority.

3. Whenever the Parties agree to extend existing or include new projects under this Agreement, this shall be recorded in the agreed minutes of the annual consultations.

ARTICLE 7

Contributions and Obligations of Canada

Official Development Assistance provided by Canada to South Africa under this Agreement shall be used exclusively to finance development co-operation in the areas identified in Article 2 of this Agreement.

ARTICLE 8

Contributions and Obligations of South Africa

1. South Africa shall facilitate the successful implementation of projects implemented by South African governmental entities and shall:

(a) have the overall responsibility for the identification, planning, administration and implementation of projects;

(b) ensure that the ODA is reflected in the plans, budgets and accounts of the governmental entities and that accounts for the projects are kept in accordance with generally accepted accounting practices, as required in terms of this Agreement and by the projects;

(c) provide the counterpart resources that are required and identified in specific projects.

2. South Africa shall for all projects executed in terms of this Agreement:

(a) defray any custom duties, sales taxes and other taxes, fees and levies on all goods, equipment, materials, services and supplies financed by ODA and purchased in or imported into the Republic of South Africa;

(b) facilitate the issue of all necessary permits and licenses that may be required in connection with the implementation of all projects;

(c) promptly inform Canada of any condition which interferes or threatens to interfere with the successful implementation of all projects;

(d) permit representatives of Canada for purposes related to this Agreement to examine any relevant records, goods and documents.

ARTICLE 9

Privileges of Personnel

1. South Africa shall exempt personnel from all taxes and other fiscal charges in respect of remunerations paid to them in terms of this Agreement.

2. South Africa shall grant immunity to personnel from legal action in respect of any act or omission, including words spoken or written, in their official capacity.

ARTICLE 10

Exemption from Exchange Control Regulations

South Africa shall, subject to the applicable foreign exchange regulations, impose no currency or foreign exchange restrictions on:

(a) funds introduced into the Republic of South Africa for the purposes of implementation of this Agreement;

(b) funds introduced into the Republic of South Africa from external sources for personal use of personnel; funds transferred into non-resident Rand accounts by personnel and their dependants shall remain at their exclusive disposal and balances of such accounts shall be freely transferable, provided that such accounts have been funded exclusively from external sources, otherwise the account shall be subject to the usual exchange control provisions.

ARTICLE 11

Procurement

1. Procurement procedures shall be agreed to and set out in writing.

2. South Africa shall, upon request, furnish Canada with all relevant information on its procurement practices and actions taken, and provide access to all related records and documents.

ARTICLE 12

Disbursements through the RDP Fund

1. South Africa shall submit the first request for disbursement of ODA after a Project Implementation Plan has been agreed to in writing by the Competent Authorities.

2. Further requests shall be based on and be related to approved budgets. Approved workplans and budgets shall be accompanied by statements of account showing income and expenditure for the foregoing period and a cash flow budget for the coming period. Any amount, which is already disbursed but not fully utilized, shall be taken into account when requests are made.

3. Transfer of the funds to the RDP Fund shall be made upon Canada's approval of the request and be available for the projects without delay.

4. South Africa shall without delay, in writing, acknowledge receipt of the funds.

5. South Africa shall be responsible to disburse funding paid into the RDP Fund to the relevant government department.

6. The utilisation of interest accrued on funds disbursed from Canada to the RDP Fund shall be agreed to in writing between the Competent Authorities.

ARTICLE 13

Reports

1. South Africa shall submit to Canada bi-annual reports, including reporting on procurement, on the progress with regard to the implementation of each project and quarterly financial reports within the due dates stipulated in a Project Implementation Plan. The format for reports shall be set out in the Project Implementation Plans.

2. South Africa shall submit to Canada an audit report including reporting on procurement on the project accounts not later than six (6) months after each financial year, unless otherwise agreed to in writing by the Parties. The accounts shall be audited by an independent Chartered Accountant in accordance with internationally accepted audit standards (IFAC - The International Federation of Accountants; INTOSAI - The International Organisation of Supreme Audit Institutions). The cost of such auditing will be borne by the project.

3. The audit report shall certify:

(a) the principles adhered to during the audit;

(b) the correctness and completeness of the figures in the accounts and that the accounts reflect the actual situation in the projects;

(c) any essential findings from the audit.

4. Canada reserves the right to conduct its own audit at any time it may consider it to be necessary.

5. South Africa shall submit to Canada a final report within three (3) months after the completion of a project, unless otherwise agreed to in writing by the Parties,

6. upon which Canada shall respond within three (3) months upon receipt of the mentioned reports.

7. Canada shall inform National Treasury: IDC of payments made by Canada according to agreed procedures of each separate project.

ARTICLE 14

Monitoring and Evaluation

Measures for monitoring and evaluation of the projects shall be agreed to and set out in writing.

ARTICLE 15

Settlement of Disputes

1. If any dispute arises relating to the implementation or interpretation of this Agreement or any project concluded hereunder, there shall be consultations between the Competent Authorities designated in Article 3, with a view to settling the dispute.

2. If a dispute cannot be settled in accordance with Article 15(1) it shall be referred for consultations and negotiations.

ARTICLE 16

Amendments

This Agreement may be amended by mutual consent of the Parties through an Exchange of Notes in accordance with each Party's legal procedures.

ARTICLE 17

Entry into force, Duration and Termination

1. This Agreement shall enter into force on the date of the latest written notification by a Party to the other Party that domestic procedures for its entry into force have been completed.

2. This Agreement may be terminated by either Party giving six (6) months' written notice to the other party in advance of its intention to terminate this Agreement.

3. The responsibilities of Canada and South Africa with regard to projects undertaken pursuant to this Agreement and begun prior to the termination notice referred to above, shall continue, subject to mutual agreement, until completion of such projects and shall remain to be governed by this Agreement.

ARTICLE 18

Termination of the Memorandum of Understanding on Development Co-operation

The General Memorandum of Understanding on Development Co-operation between the Parties, signed on 13 December 1995, shall be terminated upon the entry into force of this Agreement, provided that any project entered into pursuant to that MOU shall continue to be governed by that MOU until the completion or extension, as the case may be, of such project.

IN WITNESS WHEREOF the undersigned, being duly authorized by their respective Governments have signed this Agreement.

DONE in duplicate at Pretoria, in the English and French languages, all versions being equally authentic.

This 23 day of November 2006,

Diane Jacovella

FOR THE GOVERNMENT OF CANADA

This 23 day of November 2006,

Trevor Manuel

FOR THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA