On 6 May 2021, the Free Market Foundation’s Rule of Law Project was admitted as an amicus curiae (friend of the court) by the Constitutional Court in the matter of Minister of Finance v AfriBusiness (CCT 279/20). The matter concerns ministerial regulations issued in terms of the Preferential Procurement Policy Framework Act that were set aside by the Supreme Court of Appeal as ultra vires. This is the second time the Project has been recognised as a friend of the Constitutional Court.
Non-racialism and the separation of powers, as aspects of the Rule of Law, are both founding values found in section 1(b) and (c) of the Constitution respectively. As founding values they are more entrenched than any other provision in the Constitution, and can therefore be amended only by a 75% supermajority of the National Assembly. Since its inception in 2016, the Rule of Law Project has sought to give jurisprudential content to the founding values in general, and to the Rule of Law as a founding value in particular.
The Project believes the AfriBusiness matter is of significant public importance, because “it places at the forefront the application of the rule of law as it relates to the limitation of executive powers. The matter also addresses certain issues pertaining to non-racialism, as a founding constitutional value alongside the rule of law, and the proper application of section 217 of the Constitution”, according to the amicus application.
The Project is of the view that the Minister of Finance’s regulations must be construed strictly in line with the constraints found in the Act and may not move beyond them. In other words, the Minister may not, in his regulations, create rules and requirements that are not clearly sanctioned by the legislation.
In this respect, the Minister must respect the specific provisions of the Act, found in sections 2 and 3 (read alongside section 217 of the Constitution), which provide that organs of state may create preferential procurement policy for their portfolios. In other words, the singular Minister of Finance may not centralise procurement policy within his own department, in deviance of the Act and the Constitution. Constitutional law in this respect provides explicitly for the separation of powers within the executive government.
The Minister’s reliance on section 5 of the Act, which provides a general power to regulate, cannot succeed because a general legal norm like that found in section 5 can never overrule a specific legal norm like those found in sections 2 and 3 of the Act.
Finally, the Minister’s regulations are almost exclusively concerned with the race of the owners of companies that are entitled to submit tenders to government. Not only does this fall foul of the overriding commitment to non-racialism found in section 1(b) of the Constitution, but the Project is additionally of the view that it falls foul of section 217 of the Constitution which must not be construed as being for the benefit of a small elite of tenderpreneurs but instead for the benefit of the communities for whom state contractors must provide services. “The regulations improperly shift the focus away from the persons in need of service delivery to the service provider’s race,” according to the amicus application.
The preoccupation with race also ignores the fact that other grounds of discrimination, such as language or sexual orientation, might also have disadvantaged potential contractors.
The Project is represented in this matter by Kriek Wassenaar & Venter and Adv Mark Oppenheimer.
In 2019, the Project was admitted as an amicus curiae in South African Human Rights Commission v Masuku & Others (CCT 14/2019), a case dealing with freedom of expression in the context of equality law.