PRE-QUALIFICATION AND PREFERENCE IN PUBLIC PROCUREMENT: A CRITICAL REFLECTION ON MINISTER OF FINANCE V AFRIBUSINESS NPC

The ruling by the Constitutional Court in Minister of Finance v Afribusiness NPC sounded death knell for 2017 Preferential Procurement Policy Framework Act (PPPFA) regulations. By a narrow majority, dismissed an appeal against SCA which declared regulations invalid. This article offers critique both majority and minority judgments. It calls into question fundamental premise on majority’s reasoning was based, namely, that acted breach s 2(1) PPPFA granted authority to organs state (not Minister) determine their own preferential procurement policies. also criticizes not having used opportunity deal decisively with pre-qualification criteria tender processes. In his judgment, author submits its cannot be “rescued” through strained interpretive process. more candid approach is acknowledge framework created falls far short standard envisaged 217(2), it should replaced as matter urgency. concludes that, while force, exercise caution before incorporating prequalification argues whilst there no constitutional problem use based race or gender per se, this attained moribund piece legislation, such PPPFA. New legislation needed, harmonizes principle legality imperative remedial equality.