By Simon Nare
Finance Minister Enoch Godongwana has backed the Constitutional Court’s ruling that the Public Procurement Act is unconstitutional and invalid, saying procurement legislation must promote fairness and transparency.
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.
Reacting to the ruling, Godongwana said the objectives of the Act could not be achieved in a weak public procurement system that was not governed by an effective legislative framework.
He said Section 217 of the Constitution requires a procurement system that is fair, equitable, transparent, competitive and cost-effective, while allowing for measures to protect or advance people or categories of people disadvantaged by unfair discrimination.
“Public procurement in its current state will not realise these constitutional principles as it is fraught with challenges that include corrupt activities, fraud, financial loss, poor planning, inferior deliverables, weak institutional capacity, irregular expenditure and failure to sufficiently stimulate local industries,” he said.
Godongwana said these challenges were evident through various platforms, including media reports and commissions of inquiry that have taken place or are still under way.
He said he had noted the court’s view that it should avoid directing Parliament’s affairs unless required to do so by the Constitution.
“In my view, it is inappropriate for this Court, in the present circumstances, to direct the process that Parliament must follow to remedy the defects. The appropriate order, in my view, is simply to declare the Act invalid, without suspending the declaration or giving directions on how Parliament is to remedy the defects,” the judgment said.
Godongwana said he would engage National Assembly Speaker Thoko Didiza and National Council of Provinces chairperson Refilwe Maria Mtsweni-Tsipane on the way forward, as they were respondents in the matter.
“Should the respondents wish to proceed with enacting [the] Act or a similar Bill, they are, of course, free to do so, provided that they comply with a constitutionally compliant public participation process,” he said.
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