Contemporary trends in the development of public procurement law in South Africa

This paper explores emerging contemporary trends in the development of South Africa’s public procurement law. Using a doctrinal legal analysis, it identifies two main trends in such development post-democratization, one structural and one substantive. It argues that these two trends pose particular challenges to the public procurement system. At the structural level, the paper shows that while law has played a key role in the development of South Africa’s public procurement system right from the outset, it constituted a light touch regulatory regime prior to the constitutional transition in 1994. The changes that the new constitutional dispensation brought about necessitated an adjustment in the regulation of public procurement as well. The development of public procurement law to effect such adjustment has, however, created a fragmented, uncoordinated and overly burdensome regulatory regime. At the substantive level, the paper argues that law has not managed to effectively create a framework for the use of public procurement for social policy purposes with specific reference to the pursuit of equality. Based on these findings, the paper argues that legal reform is urgently needed in order to avoid law undermining the public procurement function in South Africa.This paper explores emerging contemporary trends in the development of South Africa’s public procurement law. Using a doctrinal legal analysis, it identifies two main trends in such development post-democratization, one structural and one substantive. It argues that these two trends pose particular challenges to the public procurement system. At the structural level, the paper shows that while law has played a key role in the development of South Africa’s public procurement system right from the outset, it constituted a light touch regulatory regime prior to the constitutional transition in 1994. The changes that the new constitutional dispensation brought about necessitated an adjustment in the regulation of public procurement as well. The development of public procurement law to effect such adjustment has, however, created a fragmented, uncoordinated and overly burdensome regulatory regime. At the substantive level, the paper argues that law has not managed to effectively create a framework for the use of public procurement for social policy purposes with specific reference to the pursuit of equality. Based on these findings, the paper argues that legal reform is urgently needed in order to avoid law undermining the public procurement function in South Africa

The Role of Quality in the Adjudication of Public Tenders

The quality of the goods or services that government procures is obviously a very important consideration in deciding which supplier should be awarded a particular public tender. It follows that in the regulation of public procurement, particular attention should be given to the role of quality (also called functionality) in the adjudication of public tenders and the final award decision. In South African public procurement law, the role of functionality in public tender adjudication has been a fairly controversial issue that has resulted in a continuing interaction between courts and law-makers on how and when quality should be assessed and should impact on the final award decision within the framework for public procurement found in section 217 of the Constitution. This contribution tracks the development of the role of functionality in public tender adjudication as prescribed by public procurement regulation since the enactment of the Preferential Procurement Policy Framework Act 5 of 2000, which spearheaded the development of contemporary public procurement regulation in South Africa. The analysis shows how the role of functionality has constantly changed since the enactment of the PPPFA and remains uncertain. This uncertainty relates to different interpretations of the constitutional requirements for public procurement primarily contained in section 217(1) of the Constitution. Whether functionality is used as a qualification criterion, an award criterion or both holds particular practical implications for both suppliers and contracting authorities. It is accordingly important to have certainty on this question. However, it cannot be said that the Constitution and section 217 in particular dictates one approach rather than another. The issue should thus be resolved with reference to the statutory scheme adopted under the PPPFA.    &nbsp

The Potential of Capstone Learning Experiences in addressing perceived Shortcomings in LLB Training in South Africa

Current debates about legal education in South Africa have revealed the perception that the LLB curriculum does not adequately integrate various outcomes, in particular outcomes relating to the development of skills in communication, problem solving, ethics, and in general a holistic view of the law in practice. One mechanism that has been mooted as a potential remedy to this situation is capstone courses, which will consolidate and integrate the four years of study in the final year and build a bridge to the world of practice. A literature review on capstone courses and learning experiences (collectively referred to as capstones) indicates that these curriculum devices as modes of instruction offer particular pedagogical advantages. These include inculcating a strong perception of coherence across the curriculum and hence discipline in students, providing the opportunity for students to reflect on their learning during the course of the entire programme, creating an opportunity to engage with the complexity of law and legal practice, and guiding students through the transition from university to professional identity. An empirical analysis of the modes of instruction used in LLB curricula at 13 South African law faculties/schools indicates that there are six categories of existing modules or learning experiences that already exhibit elements of capstone-course design. These are clinics, internships, moots, research projects, topical capstones and capstone assessment. A further comparative study into foreign law curricula in especially Australia and the United States of America reveals four further noteworthy approaches to capstone-course design, namely problem-based learning, the virtual office, conferences and remedies courses. The empirical study suggests that capstones indeed hold the potential as learning experiences to address some of the challenges facing legal education in South Africa but that further development of this curriculum-design element is required.   

A decade and a half of deference (part 1)

CITATION: Maree, P.J.H. & Quinot, G. 2016. A decade and a half of deference (part 1). Journal of South African Law / Tydskrif vir die Suid-Afrikaanse Reg, 2016(2):268-280.The original publication is available at https://journals.co.za/content/journal/jlc_tsarIn 2000 Hoexter published an article on judicial review that became very influential in South African administrative-law scholarship and jurisprudence. In her article Hoexter raised the notion of deference in judicial review of administrative action. While she concluded on the pessimistic note that “the debate about deference … will be cancelled owing to lack of interest”, her article has been cited with approval in a number of judgments, including the influential constitutional court judgment of O’Regan J in the Bato Star case.Publishers versio

Towards a Conceptual Framework for Interdisciplinary Teaching and Learning Dialogues in Higher Education

This paper explores the development and early validation of a conceptual framework for learning-centred teaching by six Teaching Advancement at Universities (TAU) Fellows and their mentor, each representing a different higher education institution and a different discipline. A grounded theory approach was used to construct the framework and its potential utility value was explored though the use of six teaching innovation projects conducted in undergraduate South African university programmes in law, medicine, education, and the arts. The project revealed that interdisciplinary dialogic spaces can be initiated and nurtured through opportunities offered by communities of practice such as the TAU Fellowship when academics suspend their exclusive disciplinary preoccupations to open up possibilities for a generative, emancipatory scholarship. We argue that the conceptual framework is useful to facilitate and promote dialogues across and between the multiple discipline specific ontologies, epistemologies and methodologies offered in higher education

Procuring infrastructure for international sporting events: mapping the field for IPACS and beyond

This article presents the results of a study of infrastructure procurement for international sporting events. The objective was to map both the institutional frameworks and the procedures and governance mechanisms. We were concerned only with the acquisition process and not with prior decisions on whether to host events, what to procure (such as the number and siting of stadiums) or subsequent maintenance. The aim was to provide information relevant to studying the implementation of procurement objectives and the risks to attaining those objectives and to lay the foundations for further work. The study originated in work by the authors in collaboration with the OECD to assist the International Partnership Against Corruption in Sport (IPACS) in managing integrity risks, but also provides a map that can facilitate future study of other issues, such as sustainability. The study sought to map procurement for key sport-specific infrastructure (such as stadiums and swimming pools) and a sample of other infrastructure (sport-specific, sport-related – such as athlete accommodation – and/or other infrastructure procured for the event (such as transport facilities) for 14 international events. It covered events of various sizes and types in the ten-year period to 2018, using public sources. Study data from the first ten projects above was used as the basis for the 2019 IPACS report on procurement standards and risk management in procuring infrastructure for sporting events (IPACS report). That report analysed the aggregate data to identify and analyse integrity risks and make concrete proposals for mitigating them. This article supplements the IPACS report by giving more information on the methodology; providing data from four additional projects, which offer further evidence and insights; and presenting the key information through a project-based, as well as aggregate, approach, to place it in context

The third wave of preferential procurement regulations in South Africa

CITATION: Quinot, G. 2018. The third wave of preferential procurement regulations in South Africa. Journal of South African Law / Tydskrif vir die Suid-Afrikaanse Reg, 2018(4):856-867.The original publication is available at https://journals.co.zaThe use of public procurement to promote wealth redistribution in South Africa as part of the overall constitutional objective of addressing the continuing disadvantage created by unfair discrimination in the past is a distinct feature of South African public procurement law. What has generally become known as the practice of preferential procurement is rooted in section 217(2) of the Constitution of the Republic of South Africa, 1996. The basic constitutional authorisation for preferential procurement is given some content in the Preferential Procurement Policy Framework Act 5 of 2000 (the act), but the real meat of the regulatory regime governing preferential procurement is found in the regulations under the act.https://journals.co.za/content/journal/10520/EJC-112adc9417Publishers versio

Regulatory Justification and Coordination in South Africa

In a country that is still suffering from the wounds of apartheid, a system of government that imposed racially-based, oppressive regulation of every detail of people’s lives, the imposition of sweeping restrictions in response to the COVID-19 pandemic—while certainly not comparable—is nevertheless particularly troubling for South Africa’s young democracy. The South African government declared a national state of disaster on March 15. The accompanying regulations—which affect every aspect of public life—as well as the national lockdown announced on March 27 impose significant restrictions on the freedoms that South Africans obtained only 25 years ago upon democratization. Furthermore, as South Africa is one of the world’s most unequal societies, its people’s response to and ability to respond to the imposed restrictions are highly unequal. Some are dealing with the stay-at-home injunction in leafy suburbs with their nuclear families, in stand-alone homes, shopping online, and having groceries delivered to the door. This stands in stark contrast to the experience of people living in one of South Africa’s peri-urban informal settlements, often sharing single-room homes with multiple generations of family members, whose access to public services like sanitation and water is only in communal form and whose access to food is through informal traders. Against this backdrop, the regulatory response to the COVID-19 pandemic in South Africa is noteworthy for two primary reasons: first, because of how the government has justified sweeping restrictions with scientific expertise, and second, because of the challenges the government faces due to the lack of horizontal regulatory coordination. The relative calm with which South Africans have accepted the severe restrictions on their daily lives demonstrates the authority enjoyed by the government based on a culture of justification. Early on in South Africa’s transition to democracy, a leading administrative law scholar, Etienne Mureinik, typified the constitutional transition as one from a culture of authority to a culture of justification. That is, a shift from governance based on command and fear, to one in which all exercises of power are expected to be justified and in which leadership is respected based on the cogency of the explanations for decisions. South Africa has come a long way toward establishing a culture of justification, as is evident in the calm acceptance of government’s far-reaching COVID-19 interventions, including the across-the-board political support the government enjoys and the praising of President Cyril Ramaphosa’s leadership in this current crisis. The government’s responses to the crisis, as well as the people’s response to government intervention efforts, are much different from South Africa’s experience of the HIV/AIDS epidemic. The HIV/AIDS denialism that characterized the government’s response under President Thabo Mbeki’s Administration caused relentless public condemnation. Mbeki’s government only changed course after arduous public interest litigation resulted in a bruising defeat of the government’s policy in the Constitutional Court, the nation’s highest court. The difference between the COVID-19 response and the HIV/AIDS response highlights an important lesson in effective regulatory justification and the role of experts in public policy-making. One of the key differences between Mbeki’s handling of the HIV/AIDS epidemic and Ramaphosa’s response to COVID-19 has been each President’s reliance on experts and scientific input. Mbeki, and especially his Health Minister Manto Tshabalala-Msimang, eschewed leading scientific opinion about how to address the HIV/AIDS epidemic. Instead, Mbeki’s Administration formulated the government’s response based on widely discredited notions about proper treatment—for instance, notoriously promoting remedies consisting of African potato and garlic rather than antiretrovirals. It is estimated that Mbeki’s approach resulted in 330,000 premature deaths. The Mbeki Administration’s explanations for its approach—with its explicit reliance on a questionable scientific basis—played a major role in the widespread opposition to the government’s response and contributed to the eventual judicial mandate for a new regulatory approach. In stark contrast, the Ramaphosa Administration’s approach to COVID-19 regulation is firmly led by expert, scientific guidance. The government established a COVID-19 Ministerial Advisory Committee composed of internationally respected scientists and chaired by world-renowned epidemiologist Salim Abdool Karim. In taking and announcing regulatory interventions, the government has been careful to assign scientific explanations to these regulations. Members of the Ministerial Advisory Committee, and Karim especially, have become just as familiar as Health Minister Zweli Mkhize when it comes to communicating government intervention policies to the public. There can be little doubt that this approach has generated high levels of trust and support for the government’s actions. These examples of South African public health responses illustrate how the relationship between policy and science can make or break a regulatory program in a culture of justification. The South African government’s use of scientific expertise to justify COVID-19 response policies highlights the ongoing debate about the role of experts in regulatory programs. This is, of course, not a new debate. Although the COVID-19 response will not provide the last word on the role of experts in government policymaking, the current crisis provides an opportunity to reflect on the appropriate relationship between political action and the expertise it is based on. As much as niche scientific expertise seems to drive the success of regulatory interventions in South Africa, such a focus on experts may risk preventing the government from adopting a more holistic regulatory approach. Another noteworthy element of South Africa’s response is the ongoing, almost daily regulatory adjustment, which speaks to the challenges of regulatory coordination in a highly complex environment. As the continuous adjustment of regulations aimed at managing the pandemic demonstrates, dealing with this crisis is complex and calls for high levels of regulatory coordination. This complexity poses particular challenges for South Africa, where the government traditionally addresses regulation from a sector-specific, vertical approach. Industry-specific government departments have statutory authority to implement particular regulatory interventions, which they do with minimal interaction with other departments. Coordination usually happens only at a very high level within the Cabinet, and, as a result, there is very limited regulatory coordination at a horizontal level between departments over the details of regulatory programs. The shortcomings of such an approach are evident in the COVID-19 context, which calls for integrated, holistic regulatory intervention. The government has issued regulations under the Disaster Management Act of 2002. Issued on March 18, these regulations had been amended five times as of April 20. These regulations are the main instrument of the government’s COVID-19 response, authorizing members of Cabinet to “issue directions to address, prevent, and combat the spread of COVID-19 in matters falling within his mandate.” Despite the departments’ receipt of a broad grant of regulatory authority to address sector-specific issues, the regulations do not provide for coordination at the level of implementation. It is at the implementation level, for example, that provision for continued pay-out of social grants should be aligned with other government-imposed health measures in order to avoid inadvertently harming the 11 million vulnerable members of society who depend on social assistance. These measures include restrictions on gatherings and people’s movement, the operation of public transport, the types of businesses that may operate and when, and the continued importation, distribution, and sale of fuel. In light of the challenges that coordinating response efforts presents, it is no wonder that public transport directions, for example, have been amended three times since March 18. The COVID-19 pandemic starkly illustrates the impracticability, even senselessness, of the continued vertical concentration of regulatory structures. The crisis calls for renewed attention, at an institutional dimension, to regulatory mechanisms with the particular aim of achieving higher levels of coordination and integration across the entire regulatory state. Such coordination would provide for enhanced responses to major crises such as COVID-19 and should be emphasized in pursuit of accelerated development

The Role of Quality in the Adjudication of Public Tenders

The quality of the goods or services that government procures is obviously a very important consideration in deciding which supplier should be awarded a particular public tender. It follows that in the regulation of public procurement, particular attention should be given to the role of quality (also called functionality) in the adjudication of public tenders and the final award decision. In South African public procurement law, the role of functionality in public tender adjudication has been a fairly controversial issue that has resulted in a continuing interaction between courts and law-makers on how and when quality should be assessed and should impact on the final award decision within the framework for public procurement found in section 217 of the Constitution. This contribution tracks the development of the role of functionality in public tender adjudication as prescribed by public procurement regulation since the enactment of the Preferential Procurement Policy Framework Act 5 of 2000, which spearheaded the development of contemporary public procurement regulation in South Africa. The analysis shows how the role of functionality has constantly changed since the enactment of the PPPFA and remains uncertain. This uncertainty relates to different interpretations of the constitutional requirements for public procurement primarily contained in section 217(1) of the Constitution. Whether functionality is used as a qualification criterion, an award criterion or both holds particular practical implications for both suppliers and contracting authorities. It is accordingly important to have certainty on this question. However, it cannot be said that the Constitution and section 217 in particular dictates one approach rather than another. The issue should thus be resolved with reference to the statutory scheme adopted under the PPPFA

Reforming procurement law in South Africa

CITATION: Quinot, G. 2020. Reforming procurement law in South Africa. African Public Procurement Law Journal, 7(1):1-15, doi:10.14803/7-1-27.The original publication is available at https://applj.journals.ac.zaThe reform of South African public procurement law has been on the cards for many years. Following years of promises from government leaders and officials about a new procurement law, a draft Public Procurement Bill for South Africa was eventually published for public comment in February 2020. The draft Bill proposes a complete overhaul of South African procurement law by consolidating existing procurement rules into a single statutory regime. It creates new institutional structures and a new dispute resolution process. There are, however, a number of problems with the draft Bill that should be addressed before the draft can proceed on its path to becoming a new overarching procurement statute in South Africa. This contribution introduces a special edition of the African Public Procurement Law Journal focusing on the draft Bill. In subsequent contributions, specific aspects of the draft Bill will be considered in more detail.https://applj.journals.ac.za/pub/article/view/27Publisher's versio