Trade union Solidarity has issued written warnings to several state-owned enterprises and municipalities not to apply the provisions of the now-invalid Public Procurement Act in their tender processes.
This follows Solidarity’s recent victory in the Constitutional Court, in which the court ruled that the Act had been unlawfully enacted.
The ruling means that government procurement must continue to be conducted in accordance with the 2022 procurement regulations. State institutions may therefore not continue applying provisions under the now-invalid Act when deciding from whom they procure goods and services using taxpayers’ money.
According to Theuns du Buisson, an economic researcher at the Solidarity Research Institute (SRI), the ruling must now also be implemented in practice, which is why state-owned enterprises and municipalities have been warned accordingly.
“It is pointless for the Act to be set aside by the court if state institutions simply carry on as though nothing has happened. The race-based requirements associated with it must not simply return through the back door.
“For example, this means that portions of tenders and contracts may not be reserved for businesspeople of a particular race, gender, or level of disability. The race of a company’s owners may also not result in its immediate exclusion from a tender process,” says Du Buisson.
Solidarity sent the letter to various stakeholders to ensure that they are aware of the ruling and its implications.
According to Du Buisson, the institutions concerned have now been formally notified in writing of the legal position and cannot later claim that they were unaware of it.
He further believes that the ruling also presents the Government of National Unity (GNU) with an opportunity to put government procurement on a sounder footing for the future.
“The 2022 regulations are not perfect, but they are still considerably better than the provisions under the Act that has just been scrapped. The GNU must now work towards a new Act that puts the interests of South Africans first.
“When a municipality has a water pipe repaired, a road built or equipment purchased, the question should be who can do the work properly and provide the best value. Taxpayers’ money should buy better services, not promote a race agenda,” concludes Du Buisson.
Solidarity will continue to work towards a race-free South Africa where race does not determine who may do business with the state.
See Solidarity’s letter to state-owned enterprises and municipalities attached.
