ConCourt confirms validity of 2017 Preferential Procurement Regulations

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The 2017 Preferential Procurement Laws (PPR), which have been declared illegal by the Constitutional Courtroom in February this calendar year, are in their entirety however legitimate.

This was Nationwide Treasury’s interpretation of the Constitutional Court’s judgment on Monday to its application looking for clarity on the court’s earlier judgment.

Treasury approached the court for clarity for the reason that its declaration of invalidity of the 2017 PPR was suspended for 12 months but the the vast majority judgment was silent about the date on which the suspension expires.

National Treasury subsequently granted far more than 110 organs of condition exemption from the provisions of the Preferential Procurement Policy Framework Act (PPPFA), such as Transnet and the South African Nationwide Roadways Agency (Sanral), to make sure that public procurement is not delayed and assistance delivery is uninterrupted.

Examine:

This adopted National Treasury on March 3 advising organs of condition that, even though awaiting clarity from the Constitutional Court:

  • Tenders advertised before February 16, 2022 be finalised in terms of the 2017 laws
  • Tenders advertised on or just after February 16, 2022 be held in abeyance and
  • No new tenders be advertised and produced obtainable on National Treasury’s internet site.

Treasury pressured that it was only advising organs of state – and not instructing or directing them – to curtail the threat of them awarding tenders dependent on rules that may perhaps no for a longer period be legitimate.

It stated that according to the Constitutional Court’s judgment handed down on Monday:

  • Area 18(1) of the Superior Courts Act suspended the operation of the Supreme Court of Appeal’s 12-thirty day period suspension of the invalidation of the 2017 Regulations.
  • In simple conditions, the countdown on the 12-thirty day period period of suspension commenced straight away right after the date of suspension but was halted by the lodgement of the software for leave to charm in the Constitutional Court docket.
  • The countdown resumed on February 16 when the Constitutional Court docket dismissed the minister of finance’s attraction against the Supreme Court of Appeal’s get.

Nationwide Treasury stated Monday’s Constitutional Court docket judgment therefore confirmed that the suspension of the declaration of the purchase of invalidity of the 2017 restrictions is nonetheless legitimate for the remainder of the 12-thirty day period period of time – until finally February 15, 2023.

It stated this indicates that:

  • The 2017 rules in their entirety are still valid.
  • From May possibly 30, 2022, all exemptions granted to offer with the period of time of uncertainty next the Constitutional Court’s judgment of February 15, 2022, lapse in line with the problem in the letters of exemptions.
  • From May 30, 2022, all new quotations need to be asked for and tenders have to be marketed, and dealt with, in accordance with the 2017 rules.
  • A quotation asked for or a tenders marketed right before Might 30, 2022 have to be dealt with in phrases of the exemption and the internal procurement policy in area for the length of the exemption, but an organ of state may make your mind up to withdraw this sort of a ask for for a quotation or an advert for a tender and request a new quotation or market a new tender that will be subject matter to 2017 polices.
  • The 2017 regulations will continue to be in position until finally February 15, 2023 unless new restrictions are promulgated prior to that date.

National Treasury mentioned it is at this time thinking of public comments on the draft Preferential Procurement Restrictions posted on March 10, 2022, and will put together last laws that accord with the Constitutional Court’s judgment of February 16, 2016.

Read through:

“Organs of condition should by February 16, 2023, be certain that procurement procedures in line with the Constitutional Court’s judgment of February 16, 2022, are in location or, if new Preferential Procurement Laws are promulgated, when these regulations consider effect,” it mentioned.

Economist Dr Roelof Botha beforehand warned that if authorities entities waited ahead of placing out a tender or investing revenue “they are suspending financial activity and eventually that is likely to effect GDP development in 2022”.

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