Faculty of Commerce, Law and Management (ETDs)

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    Towards a competitive law of public procurement in South Africa
    (University of the Witwatersrand, Johannesburg, 2024) Khumalo, Phumelele
    Collusion among firms is widely recognized as a serious violation of competition law globally. Bid rigging, a form of collusion, is particularly concerning in public procurement, leading to the OECD's adoption of Guidelines for fighting Bid Rigging in Public Procurement in 2009.1 Collusive tendering is significant because it affects public spending, impacting the South African economy's production and supply of goods and services.2 The substantial sums involved in public procurement make it susceptible to corruption.3 Recently, a Public Procurement Bill was introduced in Parliament in May 2023, aiming to establish a comprehensive national law governing public procurement, including preferential procurement. Simplifying the legal framework is a crucial step the government can take to enhance the public procurement system. The research aims to analyse South Africa's current public procurement process and address concerns related to anticompetitive practices. Following South Africa’s transition to a constitutional state, key reforms were introduced, including establishing constitutional principles governing public procurement and creating a unified national legislative framework through the Public Finance Management Act (PFMA),4 and the Local Government: Municipal Finance Management Act (MFMA).5 A competitive public procurement system is not only constitutionally mandated but also vital for the proper functioning of the government and the delivery of services, which are crucial for the country’s advancement, development, and social welfare. The report will specifically examine the legal landscape of public procurement in the construction sector and seeks to contribute to the promotion of effective competition in South Africa’s public procurement process by exploring how the development and implementation of procurement procedures can enhance the competitive nature of public procurement law in the country. To achieve this, it's essential for the government to take action to ensure that the procurement process is characterized by openness, transparency, and fairness for all bidders. Developing procurement procedures that emphasize fairness, openness, and competitiveness is essential in mitigating unwarranted limitations on competition in South Africa. This can be accomplished through practices such as transparent and open tender processes, the use of clear and objective evaluation criteria, support for small and medium-sized enterprises (SMEs), and the adoption of e-procurement systems.
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    Public procurement as a driver of innovation demand in the South African water and sanitation sector
    (2020) Ntlemeza, Thembela
    Innovation is the solution to addressing societal problems in many countries. In South Africa, a country characterised by severe water scarcity, innovative solutions have a major role to play in addressing water and sanitation challenges accruing to water constraints. This being so, innovation activities alone are not sufficient, as addressing these challenges also requires an enabling policy environment which influences innovation from the demand side. Public procurement is a demand-side policy instrument viewed as having the potential to stimulate innovation. This study sought to understand the potential of public procurement to drive innovation demand in the South African water and sanitation sector. Thus, a sectoral innovation system analysis, driven by a focus on public procurement of innovation, was conducted in two metropolitan municipalities. The research questions were addressed through semistructured interviews of municipal officials and other sectoral actors to investigate the influence of sectoral innovation system drivers, i.e. demand, knowledge base & technologies, actors & networks, and policy & institutions on public procurement of innovation. A review of relevant public procurement documents was also undertaken as part of the literature review. The main findings from the participants and informants report the present procurement legislative framework as a barrier to innovation procurement. Additionally, lack of adequate skills and knowledge among municipal procurement officials, the riskaversion culture of municipalities and low revenue collection rates also constrain the adoption of innovative solutions by municipalities. As a remedy, a review and reconfiguration of present procurement regulations, among other interventions, is recommended.