Prevent amendment of favourable PPPFA order on BEE in state tenders

PROTECT THE PPPFA JUDGMENT

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Why this case?

The Minister of Finance brought an urgent court application to vary the Constitutional Court’s order of 16 February 2022 (judgment in Sakeliga’s favor) on BEE in state tenders. Sakeliga opposes the application, as the Minister, under the veneer of seeking an explanation from the court about the ruling, is actually trying to vary its scope.

Background:

• The Supreme Court of Appeal (SCA) ruled in 2020 that the Minister of Finance’s 2017 Procurement Regulations (PPPFA Regulations), which provide for BEE pre-disqualification in tenders, are illegal and invalid.
• However, the SCA suspended the invalidity of the regulations for 12 months, to provide the Minister with adequate time to make new regulations.
• The Minister appealed the SCA’s decision in the Constitutional Court, and the Constitutional Court dismissed the appeal on 16 February 2022.
• The legal question arises whether the SCA’s order was suspended when the Minister appealed to the Constitutional Court – in other words, whether the 12-month period for making new regulations only commenced when the case was finalised in the Constitutional Court. In his urgent application (the current one), the Minister wants to have the Constitutional Court order of 16 February 2022 varied to make it “clear” that the 12-month period during which the invalidity of the regulations remains suspended, only commenced at the date of the Constitutional Court’s ruling.

Case details

Status: Finalised. Judgment in Sakeliga’s favour, with costs.

Case commenced: 18 March 2022

Court: Constitutional Court

Last court date: 30 May 2022 10:00. Judgment delivered.

Timeline of EventsCourt papers

EVENTS IN THIS CASE

​30 May 2022

​The Constitutional Court delivers unanimous judgment in Sakeliga’s favour, with costs.

​19 April 2022

​The registrar of the Constitutional Court notifies the parties that the parties will be informed of when written judgment can be expected.

24 March 2022​

​The Minister of Finance files a replying affidavit (a response to Sakeliga’s answering statement of 16 March).

​16 March 2022

Business League files an answering affidavit at the Constitutional Court in opposition to the Minister’s urgent application.

​4 March 2022

The Minister of Finance files an urgent application with the Constitutional Court to obtain "clarity" on the scope and implication of the court’s order in Sakeliga’s favor on 16 February 2022.

​28 February 2022

​Sakeliga writes to the Director-General demanding that the illegal instruction of 25 February be withdrawn.

​25 February 2022

​The Director-General of the National Treasury issues a type of instruction to state organs to stop tender processes. Tender processes nationwide are grinding to a standstill.

​16 February 2022

​The Constitutional Court rules in Sakeliga’s favor in Afribusiness NPC v Minister of Finance. The case is a victory for Sakeliga over the application of BEE pre-disqualification in state tenders (declared illegal by the court).

COURT PAPERS

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MEDIA STATEMENTS ON THIS CASE

Latest on Tender Regulations in South Africa

Lees Meer »Sakeliga Staff 15 March 2022

Treasury concedes to Sakeliga: organs of state may proceed with procurement

Lees Meer »Sakeliga Staff 4 March 2022

Treasury must withdraw unlawful tender instructions; government tenders may proceed without BEE pre-requirements

Lees Meer »Sakeliga Staff 28 February 2022