Can Parliament delegate its constitutionally conferred powers to make law? Does the Parliament seek to delegate its powers to the Minister under section 25 of the New Procurement Bill?
In reading section 26 of the New Procurement Bill, the 2020 version, one is tempted to imagine a possibility of delegation of constitutionally conferred duties of Parliament. Before we consider this possibility in respect of the Procurement Bill, it is important to debunk the duty of Parliament in question.
Under section 44(1)(ii) of the Constitution of the Republic of South Africa, 1996 (“Constitution”), the national legislative authority is vested in Parliament to pass legislation with regards to any matter, including a matter within its functional area listed in Schedule 4 but excluding, subject to subsection (2), a matter within a functional area listed in Schedule 5. The phrase “…on any matter…” arguably includes matters of procurement in which the Parliament can and should legislate in order to ensure that there is a proper legal framework to regulate and supervise therewith. Further, section 217(3) of the Constitution places the obligation on Parliament to enact a national legislation which must prescribe a framework to implement a procurement policy. The Preferential Procurement Policy Framework Act (“PPPFA”) is the current legislation envisaged under section 217(3). The procurement policy under section 217(2) of the Constitution provides for categories of people for allocation of contracts and, advancing and promotion of persons or categories of persons disadvantaged by unfair discrimination. It would seem that the drafters of the Constitution intended to allocate the responsibility of the enacting this legislation to Parliament.
Now that we have arguably ascertained that the legislating on procurement matters and more specifically, the preferential procurement policy is the responsibility of Parliament, can they delegate this? Section 26(1) of the Procurement Bill provides as follows:
Framework for Preferential Treatment
26 (1) The Minister must prescribe a framework for preferential treatment for categories of preferences, and the protection or advancement of persons, or categories of persons, previously disadvantaged by unfair discrimination, in procurement.
We will come back to this point. We now need to interrogate whether the Parliament can delegate its powers in law. The starting point is the Constitution which has already been cited above. One of the earliest cases in our constitutional democracy is Executive Council, Western Cape Legislature v President of the Republic of South Africa 1995 10 BCLR 1289 (CC). The Constitutional Court in this case held that it was constitutionally permissible for purposes of good governance for the Parliament to delegate its law making powers to the executive branch of government as long as these powers are circumscribed by the original legislation. The caveat however was that the limits on whether such delegation is possible will be based on whether in given cases and circumstances, does the Constitution allow it? The court further held that the delegation of plenary powers is not permissible under the new constitutional dispensation and that the lawmaking powers of the executive is only limited to subordinate legislation. In the Constitutionality of Mpumalanga Petitions Bill 2001 11 BCLR 1126 (CC) l at para 19, the Court stated that in order to ascertain whether delegation is constitutionally permissible, one must have regards to the nature and scope of delegation, the identity of the functionary to whom legislative power is to be delegated and the subject matter of the delegated power.
To bring a context in this part of the judgment, the subject matter being delegated is the preferential procurement which the Constitution places on the Parliament through the enactment of national legislation.
Furthermore, In Justice Alliance of South Africa v President of the Republic of South Africa, Freedom Under the Kaw v President of the Republic of South Africa, Centre for Applied Legal Studies v President of the Republic of South Africa 2011 10 BCLR 1017 (CC) para 56, the Constitutional Court held that the Constitution confers legislative powers to the Parliament using various expressions. It is these expressions and contextual approach inter alia that would indicate whether such delegation is possible.
In this context, section 217(3) states that national legislation must prescribe a framework within which the policy referred to in subsection (2) must be implemented. This expression of the Constitution as per Justice Alliance at 56 seems to demonstrate a strong indication that the Legislature may not delegate this power. The Procurement Bill does not provide for preferential procurement in the same way as the PPPFA did save to say that in section 26, the Bill confers the powers to the Minister to make regulations governing preferential procurement. What the Bill seeks to do is to convert an original legislation which is constitutionally mandated into a subbordinate legislation. We do not believe that this is permissible. It may not be unreasonable to imagine that the regulations envisaged in section 26 of the Bill would take the shape of the PPPFA and its Regulations as they stand today.
It is accordingly submitted that in terms of the wording of section 217(3) of the Constitution and having perused various case law, the Parliament is not empowered to delegate the powers conferred to it by section 217(3) to pass a legislation that deals with preferential procurement. It is submitted that section 217(3) is not a matter belonging to subordinate legislation but it is a matter belonging to the plenary session of the Parliament as was done with PPPFA in 2000. It is recommend that the Parliament review and reconsider section 26 and ensure that the Bill contains the preferential procurement policy as envisaged in section 217(2) of the Constitution which places responsibility on the Parliament. It is highly unlikely that the Bill as it stands will pass the constitutional scrutiny test.
Contributor: Agrippa Mpungose | Director and Sikhumbuzo Hlophe (Consultant)
Email: agrippa@atmd.co.za
Tel: +2733 815 1511
