The principle of legality is an integral component of the rule of law. This principle was best explained by the Constitutional Court in the judgement of Affordable Medicines Trust and others v The Minister of Health and others. This court, at paragraph 49, explained this principle in the following terms: “the exercise of public power must therefore comply with the constitution, which is the supreme law, and the doctrine of legality, which is part of that law. The doctrine of legality, which is an incident of the rule of law, is one of the constitutional controls through which the exercise of public power is regulated by the constitution. It entails that both the legislature and the executive are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law. In this sense the constitution entrenches the principle of legality and provides the foundation for the control of public power.”
On the 2nd of November 2020, the Supreme Court of Appeal (SCA), in the judgement of Afribusiness v The Minister of Finance, declared the Preferential Procurement Regulations (2017) inconsistent with the Preferential Procurement Policy Framework Act, 2000 (PPPFA) and invalid. The regulations allow organs of state to set pre-qualification in their tender documents that each bidder must meet before the evaluation in terms of Section 2 of the PPPFA is embarked upon.
The Minister of Finance appealed to the Constitutional Court. The Constitutional Court, on the 16th of February 2022, dismissed the Minister’s appeal, and confirmed that the 2017 public procurement regulations are invalid. The court reasoned that the Minister lacked the necessary powers to make procurement policies for organs of state. The court emphasized that the powers to make procurement policies are given to organs of state by Section 2 of the PPPFA to determine and implement their own policies.
The fact that the constitutional court has confirmed that organs of state are empowered (and only them) to make their own procurement policies does not necessarily mean that they may in their policies set pre-qualifications. This is because Section 2 of the PPPFA obliges them to determine and implement their procurement policies within the framework set by the Section. Section 2 does not permit pre-qualifications. Therefore, they may not do it because there is no law that authorizes them to do so. The rule of law prevails. The only way to enable organs of state to set pre-qualifications is by amending the Section to allow this. This is the function of the legislature.
Back to square one.
Contributor: Agrippa Mpungose
Email: agrippa@atmd.co.za
Tel: +2733 815 1511
