The Democratic Alliance has referred the Eastern Cape Department of Public Works and Infrastructure (DPWI) to the SA Human Rights Commission, after it issued an irregular tender that excludes minorities from tendering, which is unconstitutional.
The tender in question, issued by DPWI in September this year, is for the Appointment of Professional Land Surveyors for the survey of Provincial State Land, which states that ‘only tenderers who are 100% black-owned, black managed and black-controlled are allowed to submit tenders’.
The DA’s Eastern Cape TenderWatch initiative has already escalated concerns around this irregular tender to the MEC of DPWI, Babalo Madikizela, requesting him to withdraw the tender, as it resulted in unconstitutional preferential procurement.
The DA also escalated the matter to the Eastern Cape Premier, Oscar Mabuyane, who has failed to act.
The DA drew both the MEC and Premier’s attention to the Supreme Court of Appeal Judgement in ‘Afribusiness NPC v Minister of Finance (2020)‘, in terms of which the court ordered that the Preferential Procurement Regulations, 2017 are inconsistent with the Preferential Procurement Policy Act and the section 217 of the Constitution and declared it invalid.
According to the Preferential Procurement Framework Act, preliminary disqualification of tenderers is not allowed for, without any consideration of a tender. It only allows for the evaluation of tenders through the determination of the highest points scorer, and thereafter the consideration of objective criteria which may justify awarding a tender to a lower scorer.
Section 217 of the Constitution states that when an organ of state contracts for goods or services, it must do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.
MEC Madikizela and Premier Mabuyane have opted to avoid accountability, citing the fact that the Supreme Court of Appeal suspended the declaration of invalidity for a period of 12 months, from 2 November 2020, to justify them issuing the tender.
However, the suspension was only allowed to enable the Minister to take corrective action, or set aside the regulations where provisions are inconsistent with the Act and the Constitution.
It was not meant as a window period to publish more tenders that are based on invalid and unconstitutional Preferential Procurement Regulations.
The DA has challenged Premier Mabuyane to intervene and withdraw this tender as allowing it to stand will constitute an unconstitutional tender provision, resulting in contracting which is unfair, inequitable, and non-competitive.
The DA has now written to the Human Rights Commission for an urgent investigation into the matter and will forthwith write to the DA’s Shadow Minister of Public Works, Samantha Graham-Mare to consult the National Minister of Public Works.
The DA will continue to defend the Constitution and the rule of law to prevent discrimination against any person.
The Eastern Cape has become a broken province and we will not allow any actions which fly in the face of our hard-won constitutional rights.