The DA’s Bill misreads our Constitution and our social reality, and should also be seen in the context of the transnational backlash against race-conscious measures that aim to redress the legacy of white supremacy. The DA’s Bill misreads our Constitution and our social reality. At the core of the Bill is that the party erroneously assumes that the only problems faced by the beneficiaries of our public procurement system is overt racial discrimination in an otherwise “neutral marketplace” that would benefit all.
This ignores the fact that markets are not neutral when capabilities, assets and networks reflect past exclusion. Without race consciousness, public procurement would entrench inequality, because price and capacity favour incumbents who benefited from apartheid’s economy. Our society was built on racial dispossession, domination and oppression – creating the architecture of the prevailing deeply entrenched structural inequality that did not miraculously end in 1994.
The Constitution has committed itself to addressing this legacy as an ongoing project through a deeper commitment, rather than simply eliminating overt racial discrimination. The DA’s Bill should also be seen in the context of the transnational backlash against race-conscious measures that aim to redress the legacy of white supremacy, such asthe efforts in the US to roll back on diversity, equity and inclusionand the 2023 clampdown onrace-conscious university admissions in the US. The constitutional mandate is not neutral, it is committed to addressing the legacy of racial dispossession Section 217(2) of the Constitution is clear.
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Organs of state may adopt procurement policies that prefer and advance persons disadvantaged by unfair discrimination. This provision must be read alongside section 9(2) of the Constitution, which empowers the state to take measures to advance and protect persons disadvantaged by unfair discrimination. Read together, sections 217(2) and 9(2) commit the state to addressing the legacy of racial dispossession, domination and oppression in a marketplace that would otherwise champion the winners of the apartheid economy.
Thus, our public procurement system’s race consciousness is not an afterthought to section 217(1)’s fairness and cost-effectiveness. It is an essential qualification to stop a neutral system from reproducing patterns of white privilege and power in South Africa’s economy. The Public Procurement Act, 2024 aims to remove the structural barriers faced by black people, women, persons with disabilities, youth, military veterans, cooperatives and small enterprises.
Given that most of these beneficiaries form part of the socioeconomically disadvantaged groups in South Africa, measures to enable their economic inclusion, advance rather than thwart South Africa’s efforts to meet the SDGs. It bears emphasis that the critique of B-BBEE has some force. Elite capture, fronting and abuse of the procurement system are real.
However, the problems with B-BBEE are not a consequence of the use of race as criterion; any public procurement system can be subject to abuse and corruption. To suggest that the problem with our public procurement system is rooted in race consciousness perpetuates the racist assumption that Black people are inherently corrupt. We hope that this is not the DA’s position.
At its core, B-BBEE aims to change who owns, controls and benefits from the economy, not to reward the connected. When linked to enterprise and supplier development, skills investment and real market access for SMEs and micro firms, B-BBEE has created local multipliers and widened participation. When reduced to narrow equity transfers and box-ticking, it has underperformed.
We should not abandon a tool because some misuse it, especially if it is to be replaced with a tool which misdiagnoses the nature of the problem – the DA’s race-neutral SDG alternative. We do not scrap competition law because firms collude. We do not end environmental rules because some projects greenwash.
The answer is better design, tighter accountability and sharper targeting. Not repeal. Another problem with the DA’s Bill and itsproposed scorecardis its vagueness.
It’s not at all clear what a neutral, SDG-aligned procurement system would entail. To be clear, there is nothing inherently wrong with aligning procurement to the SDGs, and a well-designed, race-conscious procurement framework can in fact strengthen South Africa’s efforts to meet them.
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