By Simon Nare
The Constitutional Court has ruled that the Public Procurement Act, which introduces race-based requirements for companies seeking to do business with the government, is unconstitutional and invalid.
In a judgment delivered on Thursday, the apex court found that the Act was unlawfully enacted because Parliament failed to comply with its constitutional obligation to facilitate meaningful public involvement, as required by Section 59(1)(a) of the Constitution.
The court also flagged material changes introduced to the draft legislation late in the parliamentary process, saying Parliament had rushed the Bill through without proper consultation.
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Trade union Solidarity, which challenged the legality of the Act, described the ruling as a major victory, saying it meant race requirements would not lead to immediate exclusion from tender processes.
The union approached the court in May in a bid to stop the Act from coming into force.
It argued that the legislation would impose race-based requirements on businesses seeking to provide goods and services to the government.
“These requirements are not only more stringent than in the past, but in terms of the repealed Act, they also could have resulted in immediate exclusion from tender processes,” Solidarity said in a statement.
“Solidarity has consistently maintained that the Act was unlawfully enacted, that state procurement may not be based on race requirements, and that the Act should therefore be repealed.”
Solidarity deputy chief executive Anton van der Bijl said the procurement requirements could be viewed as the state’s own internal race rules, prescribing how government institutions should consider race when deciding where to spend taxpayers’ money.
“For decades, the government has seen to it that race has become ever more deeply embedded in virtually every corner of the economy. Today, yet another important card in that house of cards has fallen,” Van der Bijl said.
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“This ruling on public procurement is a victory for Solidarity, but it benefits every South African. For example, when the state commissions the construction of a road, purchases computers, or appoints a service provider, the prime question should be who can do the work best and who provides the best value, and not what race the provider belongs to.”
The ruling comes a day before US Secretary of State Marco Rubio is expected to announce new visa restrictions against South Africa over its race and land policies.
International Relations Minister Ronald Lamola has defended South Africa’s laws addressing past injustices, saying the US position was based on a mischaracterisation of developments in the country.
Lamola, who is leading the South African delegation to the United Nations General Assembly, said South Africa had a sovereign right to introduce laws addressing injustices from the past.
He said South Africa respected the fact that its trading partners could hold different views on particular measures and their implementation.
Theuns du Buisson, an economic researcher at the Solidarity Research Institute, said South Africa was facing increasing pressure domestically and internationally over race-based policies.
“In a matter of days, we have seen both locally and internationally how the heat surrounding South Africa’s race-based policies is rising. This house of cards built on race-based policies is becoming shaky, and we will increase the pressure to ensure that it comes down,” Du Buisson said.
