Sakeliga to contest regulations allowing race-based disqualification of contractors at SOEs
27 June 2019
The business organisation Sakeliga has given its legal team instruction to prepare an application to the Supreme Court of Appeal (SCA) in its case against pre-emptive race-based exclusion of contractors to the state and state-owned enterprises such as Eskom.
The decision to apply for leave to appeal from the SCA comes after leave to appeal was denied yesterday in the South Gauteng High Court. The case concerns regulations introduced in 2017 under the Preferential Procurement Policy Framework Act, No 5 of 2000 (PPPFA) by the Department of Finance under the then Minister of Finance, Pravin Gordhan. Sakeliga sought to appeal an unfavourable judgment handed down in December 2018, in which the regulations were upheld.
The objectionable regulations allow state-owned entities such as Eskom a novel power: to set their own discretionary and arbitrary minimum BEE requirements a contractor must meet if it wants to do business with an SOE.
“Ironically,” says Piet le Roux, CEO of Sakeliga, “Minister Gordhan, who implemented the PPPFA regulations in 2017, is now as Minister of Public Enterprises reaping its fruits. Under his regulations, SOEs like Eskom have in recent years frequently pre-emptively disqualified prospective contractors when they were not 51% black-owned. That is, disqualified them based on race without even considering their price and value proposition.”