BEE and Procurement: Afribusiness Ruling
In the dynamic world of BEE (Black Economic Empowerment) and procurement in South Africa, the Afribusiness v Minister of Finance ruling carries significant implications. This landmark case addresses corruption and policy uncertainties, warranting attention.
Background (BEE and Procurement):
To redress historical injustices, the Constitution allows targeted racial discrimination, leading to the enactment of the Broad-Based Black Economic Empowerment Act 2003 (BEE Act). Preceding the BEE Act was the Preferential Procurement Policy Framework Act 2000 (Framework Act), laying the groundwork for government procurement.
The Framework Act enabled point allocation for specific goals in government contracts, including contracting with historically disadvantaged individuals. These goals were required to be measurable, quantifiable, and transparent, ensuring fairness and equity in the procurement process.
Afribusiness v Minister of Finance:
The heart of this case was the validity of Regulations promulgated by the Minister on 20 January 2017. These Regulations introduced pre-qualification criteria, restricting certain tenderers from bidding on Government work unless they met specific BEE-related conditions.
Afribusiness challenged these Regulations, arguing that the Framework Act did not permit pre-qualification criteria. Instead, the Act mandated determining the highest points scorer based on the 90/10 or 80/20 points system and then considering objective criteria to justify awarding the contract.
The Court’s Ruling:
In a ruling favoring Afribusiness, the Court deemed the Minister’s promulgation of the Regulations as unlawful. The Regulations lacked a framework to guide organs of state in exercising their discretion when applying pre-qualification requirements. Moreover, the Regulations failed to meet the Constitutional requirements for fair, transparent, competitive, and cost-effective tenders.
What It Means:
The Court suspended the implementation of its order of invalidity for a year, allowing the Minister time to rectify the error. During this period, pre-qualification criteria will remain in place. There is hope that Government will heed the judgment and reconsider pre-qualifying tenders. However, there is also a risk of abuse by those exploiting the procurement processes.
Importantly, this judgment exclusively applies to Government contracts and does not affect the private sector. BEE remains relevant for private companies, especially in industries where a competitive BEE score is essential. The Court emphasized the importance of considering various criteria, not solely relying on BEE, in awarding tenders.
Thanks to Afribusiness, renewed hope exists for a less corrupt South Africa, where taxpayers get better value for their money, and legitimate transformation remains attainable.
If you have any questions about how this ruling impacts your organization’s BEE efforts or procurement practices, please feel free to contact us. We are here to help you navigate economic empowerment and government contracts.
