The legal regulation of government procurement in South Africa.

by Bolton, Phoebe Sharon

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 cost-effective. 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 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