Is The New SOE Procurement Legislation A Step Back On Transformation?

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Procurement processes raising eyebrows is nothing new in our shores, if you remember correctly former President Jacob Zuma set up a Commission of Inquiry in 2011 in terms of s84(2)(f) of the Constitution to look into, what the government at the time called, "allegations" of fraud, corruption, impropriety or irregularity in the Strategic Defence Procurement Package (SDPP).

This Commission, widely known as the Arms Deal Commission or the Seriti Commission, was to look at the processes undertaken in acquiring arms for the SANDF, the rationale behind this and ultimately, if it made any economic sense. We will look at this Commission in detail in another piece, today we shine the spotlight on the newly appointed scandalous Finance Minister. 

The National Treasury recently published changes to Preferential Procurement Regulations (PPR), these give State Owned Enterprises (SOEs) to have their own Preferential Procurement Policies - no longer subjecting them to doing business with BEE-compliant businesses, leaving 'tenderpreneurs' out in the cold. 

I personally take it the rationale behind this is to curb the concerning corruption that was involved in the tendering industry. It also seems the Minister's hands were tied as the Constitutional Court handed down its judgment on the Minister of Finance v Sakeliga NPC (previously known as Afribusiness NPC) and Others (CCT 62/22) [2022] ZACC 17 2022 (4) SA 401 (CC) case concerning the 2017 PPRs which were enacted by the Finance Minister as invalid. 

Our courts are often faced with the difficult task of ensuring a balance between opposite and usually contradictory ends, in this particular case the court was faced with the task of determining whether in an attempt of achieving societal transformation, the Minister may have gone beyond the scope of his Ministerial duties when he enacted Procurement Regulations. 

In short, the Constitutional Court held that the Minister went beyond the scope of his duties and as a result his enactment of the Procurement Regulations was deemed "unnecessary" and invalid. 

[Please forgive me for the endless and confusing letters and numbers in the mentioning of the case, I could've shortened it but the honest truth is I was looking for a space to write a case in its full citation, I hope my sin of wanting to show off can be forgiven.]

Princess Fikile Monareng is a BA in International Relations graduate and currently, an LLB student who has an interest in not only the Law but in History and Politics as well. Outside of class, she takes long walks that lead nowhere really with her sweet dog, Rosa and in the process, a few beautiful pictures come out as a result. Naturally, coffee and books are of importance to her.

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