Solidarity: Draft procurement regulations miss the real problem

Solidarity has warned that the draft regulations issued under the Public Procurement Act fail to address the root causes of South Africa’s public procurement crisis. The organisation also questions why the regulations have been published for public comment before the Constitutional Court has ruled on the constitutionality of the Act itself.

Solidarity has submitted its comprehensive comments on the draft regulations to the National Treasury.

Read the full submission here.

According to Theuns du Buisson, an economic researcher at Solidarity, South Africa’s biggest public procurement corruption scandals did not occur because there were too little centralisation or too few regulations.

“These scandals happened because existing rules were simply not enforced. No amount of new regulation will eradicate corruption if offenders are not held accountable and if the public service lacks proper training and professionalism,” says Du Buisson.

Solidarity points out that the draft regulations exceed 100 pages and contain provisions that either belong in the Act itself or have no legal foundation in the Act.

“These include important anti-corruption measures, such as the permanent exclusion of suppliers, as well as other key provisions that could be amended by future ministers without parliamentary approval.

“If these measures are genuinely regarded as essential in combating corruption, they should be entrenched in the legislation itself rather than in regulations that any future minister can amend with relative ease,” says Du Buisson.

Solidarity further argues that the government is unnecessarily spending taxpayers’ money by proceeding with the regulatory process while the Constitutional Court has yet to rule on the constitutionality of the Act.

There remains the possibility that the Court could declare the Act wholly or partially invalid. Should that happen, significant parts of the current regulatory process will have been in vain.

Although Solidarity welcomes certain proposed measures, including the establishment of a Public Procurement Tribunal and stronger security measures to combat corruption, the organisation believes these positive provisions do not go far enough and are not adequately entrenched in the Act itself.

Du Buisson says South Africa needs a public procurement system that protects taxpayers’ money, delivers value for money, and effectively combats corruption.

“The focus should be on a capable public service, transparent decision-making, strict accountability, and securing the best value for the public. Unless these principles form the foundation of the system, new regulations alone will not solve South Africa’s procurement challenges,” he says.

Solidarity has called on the National Treasury to postpone the finalisation of the regulations until the Constitutional Court has delivered its judgment and the shortcomings identified in the draft have been properly addressed.