THE DRAFT PUBLIC PROCUREMENT BILL: ENCROACHING ON THE LEGISLATURE AND LOCAL GOVERNMENT

Mitchell J Brooks

Abstract


This paper examines the provisions of the 2019 draft public procurement bill through the constitutional lens of principles concerning the separation of powers and spheres of government. It will be seen that the bill sets out to delegate constitutionally ordained law-making and oversight powers to the executive, whilst bestowing a wide and unguided discretion upon the executive to establish a framework for preferential public procurement. The role of Provincial Treasuries is also unclear in the bill and may facilitate the usurpation of local government powers in practice. The impact of the bill on local government thus requires further consideration with deference to the above-mentioned constitutional principles.


Keywords


public procurement law, procurement law reform

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References


Books

Quinot, G. 2009. State Commercial Activity: A legal framework. Cape Town: Juta.

Case law

Afribusiness NPC v The Minister of Finance (Case no 1050/2019) [2020] ZASCA 140 (2 November 2020).

Case and Another v Minister of Safety and Security and Others, Curtis v Minister of Safety and Security and Others 1996 (3) SA 617 (CC).

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others (CCT35/99) [2000] ZACC.

Constitutions

The Constitution of the Republic of South Africa, 1996.

Journal articles

Brooks, M. 2016. The legality of centralised public procurement in South Africa. African Public Procurement Law Journal 3: 42-53.

Quinot, G. 2020. Reforming Procurement Law in South Africa. African Public Procurement Law Journal 7: 1-15.

Reyburn, P. 2020. Preliminary comments on the draft Public Procurement Bill. African Public Procurement Law Journal 7: 46-54.

Legislation

Broad-Based Black Economic Empowerment Act 53 of 2003.

Promotion of Administrative Justice Act 3 of 2000.

The Preferential Procurement Policy Framework Act 5 of 2000.

Local Government: Municipal Systems Act 32 of 2000.

Practice Notes

Kwa-Zulu Natal Provincial Treasury, Practice Note Number: SCM-07 of 2006.

Regulations

Treasury Regulations issued in terms of the Public Finance Management Act 1 of 1999 GG 27388 of 2005.

Theses

Smit, S. 2017. The South African Parliament’s Oversight of Delegated Legislation. LLM thesis, University of Cape Town.




DOI: https://doi.org/10.14803/7-2-42

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