Premier Alan Winde and Western Cape Minister of Finance, Deidre Baartman, have written to President Cyril Ramaphosa raising serious concerns over the constitutionality of the Public Procurement Act.
“We firmly believe that the Act in its current form does not pass constitutional muster as it usurps the autonomy of provinces and municipalities in adopting their own preferential procurement policies,” said Premier Winde.
“The process followed in drafting the legislation was woefully inadequate and, by National Treasury’s own admission, did not consider all public input, nor was the public given all relevant information on which to engage,” said Minister Baartman.
This legislation was signed into law by the President on 23 July 2024. National Government claims that it aims to create a single framework that regulates public procurement. This includes preferential procurement by all organs of state.
But this is a fundamentally unconstitutional move. In the letter to President Ramaphosa, the Premier and Minister Baartman point out: “The Constitution envisages that organs of state have a discretion to decide whether to adopt a preferential procurement policy. This Act is the national government drafting policy, and usurping the autonomy of organs of state, instead of providing a framework.”
The Western Cape Government (WCG) is of the view that the National Assembly (NA) and National Council of Provinces (NCOP) failed to comply with their constitutionally imposed duties in the following ways:
- The comment periods provided by the relevant Parliamentary Committees to comment on the draft legislation were too short;
- During the NA’s public participation process, National Treasury admitted that it did not consider all public comments received when it reported on the comments to the Parliamentary Standing Committee;
- It appears that neither the NA nor the NCOP adequately assessed the financial implications of the Bill on national, provincial, and local government, nor did they provide the public with information on these financial implications; and
- The Bill adopted in the NA was substantively different to the Bill the NCOP took to the public, and it did not provide an opportunity for meaningful public participation.
The WCG requests that consultations urgently be held with provinces and municipalities, regarding constitutional and other concerns with the Act, and that it not be brought into operation until these concerns have been resolved.
The Premier warned, “The act will impose significant costs on the procurement process as well add to the administrative burden involved in procurement – it will be a handbrake on all systems and processes. This in turn will impact service delivery at a time when we as the provincial government are doing everything, we can to improve services for our residents.”
