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Glorious Sefako-Musi | 20 January 2023

Image: sabc news

The South African Judiciary

Sakeliga, a business lobbying group, says it will monitor state organs’ adherence to a constitutional court ruling allowing all organs of state freedom to determine their own preferential procurement policies.

From this year, any organ of the state can decide whether they want to pursue a value-for-money procurement policy or black empowerment, or even localisation.

This comes after the Constitutional Court declared the 2017 Preferential Procurement Framework Act Regulations unconstitutional and illegal and called for new legislation to be enacted.

This new legislation came into effect this year, allowing for procurement regulations without black economic empowerment (BEE) and local content requirements for all organs of the state. This means organs of state should stop the practice of applying BEE pre-disqualification to tenders.

Sakeliga says failure to stop such practices that rely on unlawful procurement regulations would render any tender awarded by an organ of state open to judicial review and litigation.

ConCourt ruling allows state entities to determine own preferential procurement policies

The lobby group says it will monitor and head to court if necessary government veers from decentralised procurement.

“it will essentially be up to businesses and chambers of commerce and other associations to ensure that government doesn’t meddle, central government doesn’t meddle in the procurement policies of organs of state and for say to detract from value for money in procurement, businesses will have to be alert, they’ll have to be vigilant and ensure that value for money procurement is being taken up and taken seriously by organs of state where they tender, so that is what should happen and Sakeliga will monitor the overall situation and if necessary we’ll head to the courts again, see with the public procurement act that is looming, that will violate many of the principles that we’ve now actually for the first time implemented,” says Sakeliga legal officer, Tian Alberts.

The Black Business Council says it’s concerned that if National Treasury does not give direction on policy, then the lack of capacity at various organs of state will lead to no policy direction.

CEO of the Black Business Council, Kganki Matabane says, “Most of these organs of state don’t have the capacity. So once you leave something to a municipality, they’ll just leave things and do nothing. Once you leave it to other state enterprises that are anti-transformation, they’ll have their own regulation or policy that removes economic transformation and localisation completely. And in our view, that is not necessarily an ideal way of dealing with transformation and localisation. Remember the reason we want localisation is because we are creating jobs in SA at the moment. We have about 70% youth unemployment and by removing localisation, you are actually saying create jobs somewhere else except here.”

Matabane says the BBC’s focus for this year is on the Public Procurement Bill which replaces the Preferential Procurement Policy Framework Act.

He says they want the bill to specify targets for the transformation and empowerment of groups like women, young people and people with disabilities to ensure these become part of the act.

‘Disclaimer - The views expressed here are not necessarily those of the BEE CHAMBER’.


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