The contradiction at the heart of Public Procurement
21 December 2023
On May 22, 2023, the Public Procurement Bill (B 18-2023) was introduced into Parliament, representing a significant attempt to create a unified legal framework regulating public procurement in South Africa. The Bill aims to streamline and simplify a complex regulatory landscape that has long hindered the efficiency and transparency of public procurement processes. As a response to the multifaceted challenges identified in numerous research reports, academic articles, and findings from the Zondo Commission, the introduction of this legislation is pivotal for the reform of South Africa's public procurement system.
However, a critical evaluation of the Bill reveals substantial concerns that must be addressed to ensure its constitutionality and effectiveness. One of the primary issues lies in the lack of clarity regarding essential definitions, a point emphasised by stakeholders such as the Procurement Reform Working Group (PRWG).
The Bill's definition of preferential procurement, for instance, fails to align with the global understanding of "preference" in procurement, introducing potential challenges of interpretation later on. This lack of precision is contrary to the standards set in Section 217 of the Constitution, which demands fairness, equitability, transparency, competitiveness, and cost-effectiveness in public procurement.
Furthermore, the broad and vague definitions in the Bill, such as that of "public procurement," raise concerns about its enforceability on a nationwide scale. The Bill must provide unambiguous definitions to avoid potential inconsistencies and misinterpretations, aligning with the constitutional requirement for laws to be clear and accessible.