Department of Public Law

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Browsing Department of Public Law by Author "Alberts, Tobias Vivian"

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    A human dignity approach to public procurement in South Africa
    (Stellenbosch : Stellenbosch University, 2024-03) Alberts, Tobias Vivian; Quinot, Geo; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: Public procurement law in South Africa is underpinned by a paradigm that can best be described as state-supplier oriented. This paradigm entails an almost exclusive concern with the state, on the one hand, and suppliers, on the other, as role players in public procurement. The state-supplier procurement paradigm does not appear inadequate in and of itself. However, the paradigm maintains itself to the exclusion of the involvement of non-state actors in public procurement, notwithstanding the accompanying disadvantage for end users in any given circumstance. "End user" refers herein to beneficiaries of public goods and services, typically members of the public at large or of particular communities served by a procurement at issue. From the perspective of end users – especially those who have to finance public procurement – the arrangement of public procurement law around the interests of the state and suppliers as main actors is inadequate. Contemporary preferential procurement policies in South Africa are the epitome of the state-supplier paradigm. By promoting political or factional government objectives, suppliers can claim certain advantages in procurement processes regardless of the accompanying disadvantages for end users. Such approaches frustrate the necessary respect required for the human dignity of end users. It appears that legal scholars are not considering reform of public procurement law from a human dignity perspective. Research of this nature can be helpful for law reform purposes. With reference to the regard for human dignity in constitutional history and in contemporary legal conceptions, research with this aim is indispensable. Despite the confusion caused by the contemporary entanglement of human dignity with discourse on socio-economic rights, earlier conceptions of human dignity over the centuries are conducive to a concrete constitutional meaning of the concept. Human dignity can be considered a description of the uniquely human capacity for self-determination in terms of one’s moral conviction and intelligent assessment of pursuitworthy interests. The state must act with utmost deference to the aforementioned capacities. Public procurement law, as determined in the Constitution, legislation, jurisprudence, and other primary sources, does not promote room for self-determination as regards end users and the procurement of goods and services of a public nature. On the contrary, the instrumentalisation of end users and taxpayers for the benefit of some suppliers features prominently in procurement policies. Therefore, it is foreseen that a legal framework that gives varying degrees of recognition to community organisations to undertake municipal procurement can be valuable. Public procurement law should be reformed with the human dignity of end users in mind. This necessarily also means that preferential procurement policies that are focused on a mutually beneficial relationship between the state and some suppliers must be abolished.