Tydskrif vir Geesteswetenskappe
Print version ISSN 0041-4751
In this article the authors analyse and evaluate new preferential procurement regulations by the South African Minister of Finance that came into force on 7 December 2011. The authors accept that preferential procurement is necessary in the light of past discrimination against certain groups, including women, but maintain that the constitutional vision of non-racism and non-sexism sets limits to affirmative action. This vision was at the core of the struggle for a democratic South Africa. The Constitution of the Republic of South Africa, 1996, is analysed as background to the legislation governing preferential procurement. Section 217 of the Constitution governs state procurement. This provision authorises preferential procurement and lays down the principles of public procurement, namely fairness, equitability, transparency, competitiveness and cost-effectiveness. However, section 9 dealing with equality must also be brought into the equation. In terms of section 9, equality also means the ability to fully enjoy the benefits associated therewith. Equality between sexes and races is crucial. Affirmative action aims to achieve a greater degree of substantive equality in the long term. The Constitutional Court provided guidance in this regard in the 2004 judgement in the case of Minister of Finance v Van Heerden The Preferential Procurement Policy Framework Act of2000 provides for the possibility of affirmative action to advance or promote persons that were discriminated against on the grounds of race, sex and disability. However, in terms of the new regulations the preference points that a bidder may gain are calculated solely by utilising the score that the bidder achieves in terms of another law, namely the Broad-based Black Economic Empowerment Act of2003 and its Codes of Good Practice. The article sets out the fundamentals of the Codes of Good Practice and how the scores of entities are calculated and then transcribed into preference points in terms of the regulations under consideration. The preference points (with maxima of 10 or 20 as the case may be) are utilised in formulae to level the playing field in government procurement. The new method to calculate preference points means that white women as a group are in a worse position than before. In the past they could earn preference points because of their sex when bidding for contracts. Their ability to compete in the market has now been reduced. The authors argue that sufficient reasons exist to still protect or advance white women. One reason is the underrepresentation of women in the higher echelons of the labour market. The constitutional project is set back when attempts to achieve racial equality function to the detriment of the non-sexist vision of the Constitution. Ironically white men may have gained ground in comparison to white women. Other problems with the new regulations are also identified in the article. The functionality of bids, so necessary in the light of sections 217 and 195(2) of the Constitution is relegated to a mere necessary condition in the evaluation of bids. In this regard the authors are of the opinion that the Minister of Finance did not give full effect to the judgement in the case Sizabonke Civils CC t/a Pilcon Projects v Zululand District Municipality 2011. The tables translating BBBEE scores into preference points are also SMME unfriendly and are not in accordance with the way in which BBBEE scores are calculated in the Codes. For white women and white disabled people preferential procurement in South Africa has taken a turn for the worse. The concern is that other groups might also be excluded from the fruits of preferential procurement in future. The article concludes by indicating two topics for further research: namely the reasons underlying the way the regulations were formulated and the relationship between formal and substantive equality in affirmative action.
Keywords : Preferential procurement; equality; affirmative action; broad-based black economic empowerment; non-sexism; the position of women; functionality of bids.