Maart 2013: jaargang 10, nommer 1 - LitNet

LitNet Akademies Jaargang 10 (1), Maart 2013
investigating tender irregularities amounting to billions of rand. It is no wonder that minister
Trevor Manual recently identified public procurement as the Achilles heel of government.
In South African law there is, however, no shortage of regulatory measures aimed at
controlling public procurement. This aspect of government conduct is highly regulated in
terms of binding legal rules with fairly detailed requirements that individual procurements
must meet. The question is, therefore, why corruption seems so prevalent in this area. Put
differently, the question is why the law is failing to keep corruption in public procurement in
check.
In considering this question, this article starts with a broad outline of the regulatory measures
in place to deal with corruption in public procurement in South Africa. Against this legal
backdrop the article investigates the problems in the public procurement regulatory regime
that contribute to the unhealthy state in which this area finds itself, and concludes with some
tentative thoughts on possible solutions.
Anti-corruption measures relating to public procurement in South Africa start right at the top,
in the Constitution. Section 217(1) of the Constitution states that when an organ of state
“contracts for goods or services, it must do so in accordance with a system which is fair,
equitable, transparent, competitive and cost-effective”. Most of these goals can be directly
linked to an anti-corruption agenda, with transparency being the most obvious principle
pointing to the need for anti-corruption measures in South African procurement systems. But
corruption will also adversely impact on the fairness, the competitiveness and the costeffectiveness
of procurement so that corrupt procurement practices will also fall foul of these
other constitutional imperatives.
These general constitutional principles are worked out in more detail in a large number of
statutes. The most relevant of these for present purposes are the Public Finance Management
Act, the Municipal Finance Management Act, the Preferential Procurement Policy
Framework Act and the Prevention and Combating of Corrupt Activities Act. Each of these
statutes and/or the regulations promulgated under them contains particular provisions dealing
expressly with corruption in public procurement.
There is, therefore, no shortage of legal mechanisms aimed at curbing corruption in public
procurement. High levels of procurement corruption cannot, therefore, be ascribed to a failure
to grapple with the issue, at least in law.
So what are the reasons why the ample law provision does not seem to be having the desired
effect?
An analysis of the law addressing corruption in public procurement in South Africa reveals at
least five distinct problems that may undermine its effectiveness.
The first problem with public procurement regulation in South Africa is the fragmented
nature of the regulatory regime. There are a large number of legislative instruments dealing
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