Mbuyiseli R. Madlanga is a Justice of the Constitutional Court of South Africa. Justice Madlanga delivered this keynote address at the Inaugural Public Procurement Colloquium on 19 March 2018 at The George Washington University Law School, Washington, D.C.
This address seeks to demonstrate the centrality of human rights to the procurement of services by the South African government, including organs of state.1 This centrality has both negative and positive facets. First, what is positive are the constitutional prescripts on procurement, which are not an end in themselves. Principally, a proper application of these prescripts is meant to redound to the benefit of the general populace. To be more direct, it is meant to improve the lives of ordinary people. A concomitant to the improvement of people’s lives is the restoration and maintenance of their human dignity, one of the founding values of the South African Constitution. In this regard, the Constitution provides that “[t]he Republic of South Africa is one, sovereign, democratic state founded on the values . . . [of] [h]uman dignity, the achievement of equality and the advancement of human rights and freedoms.”2 Second, the negative stems from procurement system abuse — mainly through corruption — which impacts negatively on the human rights people are supposed to enjoy. I will also touch on a few topics that are related to these two themes.
An apt starting point is the constitutional prescript on procurement, section 217 of the South African Constitution. It provides:
1. When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.
2. Subsection (1) does not prevent the organs of state or institutions referred to in that subsection from implementing a procurement policy providing for —
a. categories of preference in the allocation of contracts; and
b. the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination.
3. National legislation must prescribe a framework within which the policy referred to in subsection (2) may be implemented.3
Before dealing with section 217(1), which enjoins organs of state to procure goods or services in accordance with the stipulated five factors, I will discuss section 217(2). Section 217(2) makes it possible for organs of state to treat persons or categories of persons differentially. It empowers organs of state to protect, or advance persons or categories of persons, disadvantaged by unfair discrimination. The South African Constitutional Court has recognized the importance of giving preference to these persons. Froneman J — writing for a unanimous Court in Allpay 1 — said that “[i]t is difficult to think of a more fundamentally mandatory and material condition prescribed by the constitutional and legislative procurement framework than objectively determined empowerment credentials.”4
The provision for differential treatment and preference immediately implicates the equality clause of the Constitution. As it is one of the founding values of the Constitution, equality is central to our constitutionalism.
Unsurprisingly, section 217(2) dovetails with our brand of equality. Section 9 of the Constitution contains the South African equality clause.5 This section provides:
1. Everyone is equal before the law and has the right to equal protection and benefit of the law.
2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.6
Although it must be quite obvious why the Constitution itself sanctions preference and differential treatment, treating people or categories of people differently is always bound to give rise to disgruntlement. South Africa is not an exception in this regard. For that reason, I must discuss what it is that informs the constitutional sanction for differential treatment. In doing so, I will borrow from my dissent in the SARIPA judgment.7
The twenty-four years of South African freedom may seem like a long time, but in the lives of nations it is very short. That is why it is unsurprising that when one touches on the change brought about by the dawn of democracy, one often takes a step back and touches on whence we have come. The essence of the pre-democracy era was apartness, hence the Afrikaans8 “apartheid.”9 Its tentacles reached every facet of human existence. At its core was racial segregation in terms of which white equaled superior and black equaled inferior. Of importance, it followed on colonialism. To be exact, before South Africa attained the status of a republic, colonialism and apartheid overlapped for just over a decade.10
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