The Economic Freedom Fighters (EFF) and Finance Minister Tito Mboweni have become unlikely allies in a bid to salvage controversial broad-based black economic empowerment (B-BBEE) legislation which lets government automatically disqualify tender hopefuls whose businesses aren’t majority black-owned.
The Constitutional Court will on Tuesday hear a bid from Mboweni to overturn a November ruling from the Supreme Court of Appeal (SCA), setting aside the revised Preferential Procurement Regulations promulgated in 2017 and the race-based “pre-qualification” criteria they provide for.
The EFF has been admitted as an amicus curiae – or friend of the court – and in its papers agrees it believes the appellate court got it wrong.
The case was originally brought by Sakeliga (previously AfriBusiness), which believed tenders should be awarded in line with the legislated preference points system, with race only coming into play during the preference point adjudication, when it can earn tenderers additional points.
The SCA in November ruled in favour of the organisation, finding the regulations were not aligned to section 217 (1) of the Constitution, which states when an organ of state contracts out work “it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost effective”.
But, says the minister and EFF, it did not properly consider section 217 (2), which provides that this doesn’t prevent these organs of state from “implementing a procurement policy providing for categories of preference in the allocation of contracts; and the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination”.
The EFF’s legal team, instructed by Ian Levitt Attorneys, said in written submissions filed last week: “It is absurd to suggest that an organ of state would determine what policy it wants to follow for tendering, and by extension who it wishes to invite, and at the same time require of it to receive any tender bid despite such bids not qualifying.
“That is the very essence of an invitation to bid – prerequisite qualification criteria with an aim of limiting the bids an organ of state is interested to consider in line with its policies.”
Mboweni and the red berets have repeatedly found themselves at odds over the years, with Floyd Shivambu, the EFF’s chief whip, this month calling the minister a “drunkard” after he reprimanded the party for its conduct in Parliament.
On the face of it, Mboweni and the EFF do seem to make for strange bedfellows.