ASSESSING THE POSSIBILITY OF A CUSTOMISED PUBLIC PROCUREMENT TRIBUNAL FOR THE SECURITY SECTOR UNDER THE PUBLIC PROCUREMENT ACT 2024

Abstract

The Public Procurement Act 28 of 2024 introduces a comprehensive overhaul of South Africa’s public procurement system, requiring all organs of state to revise their procurement frameworks. This includes those bodies in South Africa’s security sector, comprising, among others, the South African National Defence Force, the South African Police Service, the State Security Agency, and the Border Management Authority. However, the procurement activities of the security sector occur within specialised regulatory environments, strict command hierarchies and contexts involving security-sensitive information. This raises crucial questions about whether the newly established Public Procurement Tribunal’s regulatory framework is suitable to adjudicate procurement disputes involving the security sector. This paper examines the Tribunal’s capacity to address the legal, operational and national-security complexities inherent in security-sector procurement, given that the Act requires Tribunal hearings to be conducted in public and restricts panel membership to Tribunal members only. The analysis identifies substantial challenges, including risks to national security, difficulties in managing disputes involving sensitive operations and limitations in accessing specialised expertise. It further highlights tensions between the PPA and other legislation governing security institutions. The paper concludes that a sector-specific approach – incorporating clearer mechanisms for confidentiality, expert involvement and better alignment with existing security legislation – is essential for ensuring that the Tribunal functions effectively within the security procurement landscape.