Western Cape Minister of Finance and Economic Opportunities David Maynier has written to Finance Minister Enoch Godongwana to request that a note – ‘Preferential Procurement Regulations, 2017 – Minister of Finance vs Afribusiness NPC [2022] ZACC 4’ – issued by the Office of the Chief Procurement Officer on February 25 be withdrawn immediately.

“The effect of the note, which was in response to a Constitutional Court judgment on the invalidity of the 2017 Preferential Procurement Policy Framework Regulations, is to bring to a halt the entire supply chain, making it impossible for government to buy goods and services and to deliver on infrastructure projects,” Maynier pointed out in a statement on February 28.

The note states that tenders advertised before February 16, 2022, be finalised in terms of the procurement regulations and that tenders advertised on or after February 16, 2022, be held in abeyance. The note also instructed that no new tenders be advertised.

This is while the Minister awaits confirmation from the Constitutional Court that the invalidity of the procurement regulations has been and continues to be suspended. Confirmation will be sought by way of declaration, variation and/or clarification.

That is, guidance is required as to whether the procurement regulations remain valid until March 15, 2023, unless repealed sooner, the note indicates.

Maynier noted that, in the Western Cape, the direct impact of this would be to immediately halt 86 tenders to the value of R1.85-billion planned for March, which had been planned for immediate implementation in the 2022/23 financial year.

In his letter to Godongwana, Maynier states that the various localisation designations and related National Treasury circulars must be recalled with immediate effect and calls for urgent steps to be taken to draft new regulations for those areas in which the Finance Minister has the authority to issue regulations, and for those regulations to be issued without delay.

“We cannot allow the entire supply chain system of all organs of State across the country to seize up, and so it is now imperative that the note be withdrawn urgently so that certainty be re-established for procurement processes.”

Meanwhile, nonprofit organisation Sakeliga has also written to Godongwana and the National Treasury about the matter.

"The National Treasury has issued unlawful instructions to organs of State in what amounts to a deliberate attempt to sidestep the Constitutional Court's recent public procurement judgment.

"These instructions also threaten to cause virtually all government tenders countrywide to grind to a halt without reason and to expose other tenders that are awarded in terms of unlawful regulations, to judicial review," the organisation points out.