The responsiveness of parliament’s standing committee on finance and the Treasury to public submissions is the subject of a court challenge by the DA-controlled Western Cape government of the Public Procurement Act, which it wants to be declared unconstitutional and invalid.
The case has been lodged in the Western Cape High Court by premier Alan Winde against National Assembly speaker Thoko Didiza, National Council of Provinces (NCOP) chair Refilwe Mtshweni-Tsipane and finance minister Enoch Godongwana.
Proceedings of the finance committee were in the spotlight recently over its contentious adoption of the fiscal framework, which was eventually withdrawn by Godongwana as part of an out-of-court settlement with the DA, which opposed its proposed increases in the VAT rate.
The Public Procurement Act, which was signed into law by President Cyril Ramaphosa in July 2024, represents a fundamental overhaul of public procurement and overcomes the previous fragmentation into 34 acts with their regulations. It is not yet in force as regulations still have to be promulgated. It provides for preferential procurement for designated groups and pre-qualification criteria, as well as set asides and subcontracting.
Provincial finance minister Deidre Baartman said in her affidavit that while the original bill also included those measures, it did not prescribe that they be used in all circumstances and how they should be used as the act did. The original bill left it to procuring institutions to adopt their own procurement policies.
The amended bill was much more stringent and peremptory than the more permissive original bill, and made it obligatory on procuring institutions to follow prescribed mechanisms.
Baartman said the act would have a profound effect on how procuring institutions bought goods and services from the private sector.
She argued the finance committee and the Treasury failed to adequately respond to public submissions on the bill. The committee made substantial amendments to the provisions of the originally tabled bill relating to preferential procurement but these were not subjected to public consultation, she said.
Also, of the 112 submissions made on the original bill, the Treasury only responded to 41 and did not respond to the Western Cape’s submissions, which Baartman said were therefore “impotent and wasted”.
The province’s submissions were considered during the NCOP process but Baartman said the NCOP and National Assembly had different roles.
Adequate public participation in the legislative process is a requirement of the constitution, and the committee said in its report on its processing of the bill that it believed the public consultation had been reasonable — a view shared by the Treasury and parliament’s legal adviser. The committee said public consultation had to be balanced with practical constraints and the need for legislative progress.
But Baartman said no time was allocated by the committee for public consultation on the amendments to the preferential procurement clauses. Passage of the bill by parliament was not urgent.
Former DA finance spokesperson Dion George — now minister of forestry, fisheries and environmental affairs — questioned at the time whether there had been adequate public participation in the National Assembly and the NCOP.
Provincial finance and budget spokesperson Peter Johnson said in a statement that the act “puts a straitjacket on provincial procurement. It imposes centralised, one-size-fits-all rules on provinces and municipalities, stripping them of their constitutional discretion in procurement. This is an assault on the principles of co-operative governance and service delivery, particularly in high-performing provinces like the Western Cape”.
“The failure to ensure proper public consultation is a gross violation of the constitution,” Johnson said. The act would hollow out provincial authority and collapse procurement systems “into the same centralised network that enabled state capture”, he said.
Baartman urged the court to adjudicate the matter before the act was brought into force as this would save costs in setting up new structures.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.