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THE LEGAL REGULATION OF GOVERNMENT PROCUREMENT IN SOUTH AFRICA Phoebe Bolton Doctor Legum (LLD) thesis, Faculty of Law, University of the Western Cape This thesis deals with a very important issue in government, i.e. the process of procuring goods and services. The state is the biggest consumer of goods and services in South Africa and with the increasing privatisation of government services, the ambit of procurement is expanding. Government procurement is afforded constitutional status in South Africa. Section 217 of the Constitution provides that the state must contract for goods or services in a manner which is fair, equitable, transparent, competitive and costeffective. This does not prevent the state from using procurement as a policy instrument, i.e. to, for example, address past discriminatory policies and practices. Legislation must furthermore be enacted to make provision for the use of procurement as a policy tool. A number of statutes have been enacted to reflect the constitutional status of government procurement in South Africa. In addition to these statutes, government procurement decisions and procedures are regulated by the common law, in particular, the law of contract and the law of delict. The general rules of constitutional and administrative law also apply to government procurement. This thesis evaluates the way in which the legal regime in South Africa collectively gives effect to section 217 of the Constitution. First, the constitutional iv standard against which the elements of the legal regime can be measured is set out. In doing so, meaning is given to the different principles in section 217 (fairness, equity, transparency, competitiveness and cost-effectiveness) and attention is given to the legal nature of the principles and the relationship that exists between the different principles. The focus then shifts to how the principles are given effect to in legislation; how the courts give meaning to the different principles; whether there is compliance with the principles throughout the procurement process, i.e. from the time that the decision is made to procure goods or services until the conclusion of a contract and completion of contractual performances; and whether adequate provision is made for the effective enforcement of the principles in practice. It is argued that aside from a few shortcomings, the legal regime in South Africa generally gives adequate effect to section 217 of the Constitution. Not only has the procurement procedures and decisions of the state been constitutionalised, section 217 can be said to capture the most essential elements of a good procurement system. The principles of fairness, transparency and value for money, in particular, are generally regarded as the cornerstone of good procurement practices. The principles in section 217 will furthermore form part of South Africa’s government procurement system for a very long period of time. The state will therefore always have to take serious account of the principles in section 217 and ensure compliance therewith. 14 November 2005 v