Note: Preferential Procurement Paused by the Constitutional Court: Reflections on B-BBEE Policies and Minister of Finance v Afribusiness NPC 2022 (4) SA 362 (CC)
Authors Stefan van Eck & Thiruneson Padayachy
Affiliations: Professor of Labour Law, Department of Mercantile Law, University of Pretoria, South Africa; Lecturer, Department of Mercantile Law, University of Pretoria, South Africa
Source: Industrial Law Journal, Volume 43 Issue 4, 2022, p. 2219 – 2236
In Minister of Finance v Afribusiness NPC 2022 (4) SA 362 (CC),  ZACC 4 (Afribusiness (CC)) the Constitutional Court confirmed the setting aside of the Preferential Procurement Regulations, 2017 (the 2017 regulations). This decision temporarily halted the processes in the public service before they were restarted after a follow-up decision by the same court in Minister of Finance v Sakeliga NPC (previously known as Afribusiness NPC) and Others 2022 (4) SA 401 (CC),  ZACC 17. In a closely split decision, the Constitutional Court judges in Afribusiness (CC) adopted two different approaches. The authors argue that the majority in Afribusiness (CC) adopted a technically correct approach in reaching its decision. However, they opine that the decision is yet another indication of the disjointed nature of South Africa’s broad-based black economic empowerment (B-BBEE) policies. The contribution also highlights a number of structural shortcomings that are inherent in legislation that seeks to give effect to the idealistic goals of economic transformation in the country. In their conclusion, the authors reflect on the way forward and raise unanswered questions that may still need to be addressed to enhance the effective and appropriate implementation of economic adjustment in the country.