February 04, 2019 Public Contract Law Journal

The Use of Public Procurement for Socio- Economic Reform in Democratic South Afrika: Triumphs and Challenges Two Decades On

by Songezo Mabece

Justice Thomas Buergenthal Scholar and LLM (Government Procurement Law) Student at George Washington University. Mabece further holds the following qualifications: LLB (University of Fort Hare); LLM (International Trade Law) (Stellenbosch University); GMP (IEDC Bled School of Management), and is serving as Legal Counsel - Competition Commission of South Afrika.

I.  Introduction

When South Afrika achieved her hard-won democracy in 1994, the gravity of the legacies of colonialism and apartheid were obvious, where inequality and poverty abounded for the masses of the country.1 The hallmarks of colonial subjugation and apartheid “represented not only the disenfranchisement of the black population of South Afri[k]a, but also an institutionalised system which maintained white domination and privilege in the political, economic, social and cultural spheres.”2 To say the situation for the Afrikan majority was desperate would be an understatement: this legacy has since been referred to as an “extraordinary human disaster”3 that prompted the United Nations (UN) to declare apartheid a crime against humanity.4

With time, urgent interventions were needed. The first official opportunity for such interventions came in South Afrika’s first and historic democratic general elections of 1994. In noting the need for these interventions, the newly elected President Nelson Mandela, in his inauguration speech, said: “The moment to bridge the chasms that divide us has come. The time to build is upon us. We have, at last, achieved our political emancipation. We pledge ourselves to liberate all our people from the continuing bondage of poverty, deprivation, suffering, gender and other discrimination.”5

In part, these remarks confirmed the enduring inequality the new dispensation had inherited from the centuries of racist and discriminatory oppression by the white minority over the Afrikan majority in the forms of colonisation and apartheid. In another respect, the remarks offered a frank assessment of the social conditions that would need to be addressed simultaneously with the project of constructing a new society altogether.

How the newly established African National Congress-led (ANC)6 government committed itself to achieving this great task must be examined in the context of how the ANC itself came into power and the proposals it heralded for the turnaround strategy of building this new society. Undisputed was that the time for change had come, and all who had been marginalised previously had an established right to social upliftment.7 More importantly, measures were needed to address how public funds were to be dispersed to address these socio-economic challenges. The importance of public procurement reveals itself, thus.

This article will examine how public procurement has aided the development of socio-economic rights. Put differently, this article will discuss the innate features and characteristics of public procurement in South Afrika and how socio-economic rights and related development — as a constitutional guarantee — are foundational to public procurement roll out and implementation.

In discussing the interplay between socio-economic rights (and related development) and public procurement, it is necessary to understand clearly what validates its necessity in the South Afrikan context. To this end, Part I discusses the history of the deliberate stunting of socio-economic rights and related development (more than it was a system of exclusion) of the Afrikan majority. Following this account, the article then considers the negotiating into the Constitution of socio-economic rights and their central location in the Bill of Rights. This part concludes by establishing the constitutional framework of socio-economic rights and the economic policies through which the new democratic government sought to achieve its socio-economic development mandate, and how public procurement as a tool advances this mandate. As the foundations of the article — with regard to the basis of socio-economic rights — would have been laid, Part II establishes the model blueprint (“Green Paper”) which is extended, in conjunction with the constitutional injunctions, through the various enabling pieces of legislation that have been drafted since. From that discussion, the article will identify key features of this enabling legislation and contextualise the same within the socio-economic developments. Only once this is done can public procurement be nuanced for the South Afrikan context. In this sense, the article discusses the institution of preferential procurement. The above approach, in sum, should satisfy one basic requirement: that the reader will understand why the incorporation of socio-economic rights and related development is intrinsic to South Afrika’s public procurement.

Part III conducts an overview of the challenges that pertain to South Afrika’s public procurement: from the unintended consequences of the spaghetti-bowl effect of the many legal instruments to the role of political and administrative influence in public procurement, this part scrutinises some systemic and non-systemic issues that challenge procurement, including advancing arguments why a public procurement court would be critical in addressing some of these challenges.

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