The Western Cape government says it will consider legal action should the Public Procurement Act be implemented without their concerns having been resolved.
Finance MEC Deidre Baartman said on Wednesday the provincial government had not received any feedback from the Presidency regarding their concerns about the act apart from an acknowledgement of receipt.
Her comments come after the National Treasury gave a clear indication that it would push ahead with implementation of the new law.
The province wants President Cyril Ramaphosa to postpone the proclamation of the act and to institute a review process in consultation with provinces and municipalities.
The Western Cape recently requested that the law, which aims to regulate public procurement and establish a unified framework for the implementation of preferential procurement by state organs, not be enforced until their concerns have been addressed.
At the centre of their concerns is the autonomy of provinces and municipalities to adopt their own preferential procurement policies and the periods provided by parliamentary committees to comment on the draft legislation were reportedly too short.
On Wednesday, Ramaphosa’s spokesperson, Vincent Magwenya, declined to comment on whether Ramaphosa had addressed the Western Cape government’s concerns or on when the Public Procurement Act would be enacted.
“The President has assented to the bill,” Magwenya said.
National Treasury said in a statement that the provisions of the act were not in force yet, and the current procurement framework remained in place until the new legislation and accompanying regulations took effect.
“The President will bring the provisions of the act into operation through a proclamation in the Gazette,” read the statement.
It said the new law enabled Ramaphosa to bring the provisions into operation on different dates and to determine different dates for different categories of procuring institutions such as national and provincial departments, national and provincial public entities and municipalities and municipal entities.
“Many provisions of the act require regulations before the accompanying provisions of the act could be brought into operation. The process of making regulations involves consultation with affected ministers, Salga (South African Local Government Association), and the public and parliamentary scrutiny as outlined in section 64 of the act.”
Baartman said the provincial government would be sending a follow-up letter to the president to ask for an update on the future of this legislation.
She maintained that the new law was fundamentally unconstitutional and phasing it into operation will do little to address the concerns. “We are imploring the president to postpone the proclamation of the act and to institute a review process in consultation with provinces and municipalities.”
She said they would approach the court if the act was brought into operation without resolving the Western Cape government’s concerns.
“We will consider and pursue legal action,” Baartman said.
Cosatu parliamentary coordinator Matthew Parks said the claims made by the province would not hold water in court.
“The bill was discussed at length for years at Nedlac and also at both the Houses of Parliament. Substantial changes were made at Nedlac and in the National Council of Provinces where the Western Cape has representation.
This act was engaged substantially.
“There is a legal gap in terms of supporting local procurement and BEE. We have a delay where municipalities and provinces can do as they want.
It is strange that the Western Cape is opposing a law that will tackle crime and corruption,” Parks said.
ANC Dullah Omar region chairperson Ndithini Tyhido urged Ramaphosa to stand firm against the DA’s threats and accused the party of being reluctant to integrate black businesses into the economy.
“We urge the DA not to waste public resources on litigation. The black majority in Cape Town must unite in defence of this transformative legislation and must recognise the DA for what it truly is: a party that is opposed to the interests of the poor and resistant to transformation,” he said.
Cape Times