Public Procurement Bill: NT response to additional public input & Final Mandates

Meeting report

The Chairperson welcomed all those who were present. Thereafter, he asked if any apologies were tabled.

Mr Nkululeko Mangweni (Committee Secretary) said no apologies were recorded.

The Chairperson outlined that the Committee would first be taken through the department’s matrix report before deliberating on the PP Bill.

PP Bill Comments Matrix

Mr Willie Mathebula (Chief Procurement Officer at the NT) indicated that the department received comments from the National Research Foundation (NRF), Public Affairs Research Institute (PARI), the Congress of South African Trade Unions (COSATU), the South African Clothing and Textile Union (SACTWU), Business Unity South Africa (BUSA) and the Department of Trade, Industry and Competition (DTIC). A revised draft bill was submitted to stakeholders for input.

NRF Submission

In its submission, the NRF proposed removing the recommended wording ‘of a procuring institution’ in Clause 12 (1)(b). It also requested that the department review the definition of ‘official’ to ensure that all instances in which the term appears in the draft are comprehensive. The department responded that ‘official’ refers to an official of a procuring institution, the Public Procurement Office (PPO), and provincial treasuries. As a result, it did not see the need to amend the proposed clause.

The Chairperson requested that the department take the Committee through each submission and their responses.

He asked if any of the provincial finance committee chairpersons were present.

No response was received to his question.

Mr Mathebula said the NRF proposed removing the words ‘officials or employees of departments’ from the list of automatic exclusions in Clause 13 as they gave the impression that governmental departments and provincial employees are allowed to submit bids. In its response, the department pointed out that Clause 13 (1)(c) excluded a person appointed in terms of Section 9 or 12A of the Public Service Act from submitting bids.

The Chairperson mentioned that the provincial chairpersons could pose questions on the proposals.

Mr Mathebula highlighted that the NRF was pleased with the proposal made to Clause 20 (6)(b), as it promoted transparency. However, it requested that the department insert the ‘deeming’ clause in other sections of the Bill, such as those, for instance, that deal with the Tribunal. However, the department felt that this would not be possible due to the nature of the Tribunal’s functions. Instead, it proposed including ‘period’ in the exemption and departure clauses.

This change would require the Minster to respond within 30 days to an application made to him for exemption or departure from the usual bid processes, based on the submission of all the necessary documentation to process the application.

On Clause 24 (1)(a)(i), the NRF submitted that the phrase ‘strategic procurement in other countries’ was ambiguous, led to many interpretations, and could be void for vagueness. After considering its recommendation, the department proposed a new provision, which would read: ‘the promotion of strategic procurement when procuring in other countries for use in those countries.’ The department believed that this covered government officials placed in other countries.

Mr D Ryder (DA, Gauteng) was pleased with the proposed amendment.

The Chairperson also supported the proposed amendment.

Mr Mathebula remarked that the NRF proposed replacing the phrase ‘without limiting’ with ‘which encourages, where feasible’ in Clause 24 (1)(d) or creating two new preference categories, namely ‘new entrants’ and ‘emerging suppliers.’ The department rejected these proposals as it felt that the clause was correctly legally drafted. Moreover, it believed that the various preferences measured in Chapter 4 already catered for these suppliers under the mechanisms provided.

The department noted the NRF’s view that the term ‘technical expert’ was unclear in Cause 27 and proposed changing Clause 27 (2) to read: ' a procuring institution must ensure that persons who participate in bid committees have the relevant knowledge, skills and technical expertise to achieve the intended result required during the relevant committee process.’

Mr Tumelo Gopane (Board Member of the Construction Industry Development Board) asked if he could pose a question.

The Chairperson said the Committee could not do so as the public participation process had concluded. Furthermore, when it was not obliged to do so, the Committee gave stakeholders two and a half days to respond to the draft text sent to them on Friday. He asked the PLA for advice.

He suggested that Mr Gopane raise his concern with the Standing Committee in a written letter today so that he could receive a response by either Thursday or Friday.

Adv Frank Jenkins (Senior Parliamentary Legal Advisor) indicated that stakeholders could not participate in the meeting as it was not a public hearing. However, as the Committee is in charge of its processes and procedures, it could amend its agenda to allow their participation in the proceedings.

Mr Ryder noted that the CIDB was an internal stakeholder.

The Chairperson asked if Mr Gopane represented a government institution.

Mr Gopane mentioned that he sat on the CIDB Board. He clarified that he had sought to ask a question of clarity earlier and not to make any proposals on the Bill.

The Chairperson asked the PLA what it thought should be done.

Adv Jenkins remarked that this was permitted if the department responded briefly.

The Chairperson pointed out that the question was not about the length of the answer but the process. Nevertheless, he permitted all stakeholders to ask clarity-seeking questions if required, highlighting that very few changes had been made in the draft text sent.

Mr Gopane asked if the department’s proposal on Clause 27 meant that, going forward, consultants would not sit on bid committees.

Mr Mathebula clarified that the department’s proposal implied that whenever anybody participates in a bid committee, the committee should have the relevant knowledge, skills, and expertise, regardless of whether they are sourced internally or externally.

Mr Gopane noted the department’s explanation.

He continued and said the department did not support the NRF’s proposal to insert a new Clause 47 (4), which would provide that the tribunal must, in writing, within 60 days respond to the application for review by the bidder, giving reasons for the decision to reject. It did not support it because Clause 51 (3)(a) outlined that the panel for review proceedings envisaged in Section 47 or 48 must make an order in terms of subsection (1) within 30 days after the submission of the application for review. On request by the panel chairperson, the tribunal chairperson may extend the 30-day period for not more than 30 days.

The Chairperson supported the department’s response to the proposal.

Mr Mathebula said the NRF proposed inserting a new Clause 61 (4), which requires the Minister to respond, in writing, within 60 days to the application for exemption by the procuring institution, giving reasons for the decision. The department noted the submission and proposed including a 30-day period after receipt of all documents in the clause.

The Chairperson supported the department’s proposal. He was surprised that the Committee had not made this suggestion before.

PARI Submission

Mr Mathebula indicated that the department had previously dealt with PARI’s submission on Clause 5, as stakeholders had felt the Bill overreached by tampering with the powers of municipalities. After much consideration, the department removed the compulsory instructions and circulars for municipalities, which aligned with the Constitution. However, PARI argued that the instructions issued are binding to municipalities.

As such, the proposed amendments in the D-Bill were posed to address the concerns of infringing on the constitutional powers of local government. These changes entailed that only the regulations and the Act would apply to municipalities, whereas circulars would be subject to adoption by councils as required by Section 156 of the Constitution.

The Chairperson asked if COSATU had not raised this concern as well.

Mr Mathebula confirmed that it had.

The Chairperson said that while he agreed with COSATU and PARI in principle that the weakest link in the legislation was local government, he accepted that not much could be done.

Mr Mathebula repeated that the regulations and Act will apply to the municipalities.

The Chairperson noted the response.

Mr Mathebula said PARI believed that Chapter 4 did not refer to open competition being adjudicated through a preferential points system. In response, the department elaborated that the evaluation criteria will be prescribed in Clauses 17, 18, and 19 and should be read together with Clause 24 (1)(d). Therefore, there was no need for a preference points system at this stage.

PARI also proposed amending Clause 24 (1)(d) to remove the word ‘may’ and include ‘must’, which the department agreed to.

COSATU and SACTWU submission

The Chairperson mentioned that the majority of the Committee considered this Bill temporary and transitional. As such, it recommended in its report that the Bill be reviewed within 24 months after it is promulgated, at the National Economic Development and Labour Council (NEDLAC). This recommendation was made considering that a new minister and committee may be in place. He stressed that the recommendation was not binding, and would only act as a guide.

He asked the PLA to consider a softer version of the recommendation and requested that the Bill be reviewed within 24 months, including through appropriate consultation with stakeholders, to see if any amendments are necessary.

While the department may not view it as desirable, he said, this had been done in other bills.

Mr Ryder noted that many stakeholders agreed such a review would be important. Even though he understood it was the role of the National Council of Provinces (NCOP) to have oversight over the impact of legislation once it is implemented, he thought based on the process that had been followed so far, which included the short time period allocated for the preparation of the public consultation process as well as the fact that the changes made to the B-version of the Bill were not taken back to NEDLAC, the proposed review should be binding, and not just a recommendation.

He suggested that the Committee, in its report, stress the need for the department to review the Bill within 24 months after it is adopted as an act, hold consultations with the stakeholders, submit a report to the committees of both Houses, which will consider the additional inputs and potentially draft another Bill, and include a timeline.

The Chairperson felt that Mr Ryder’s suggestion was too complicated as it spoke of a review process, followed by the submission of a report and a decision on whether a new Bill should be discussed. Instead, he suggested that proposed amendments to the Bill should be made within 24 months. He asked if this process was possible.

Adv Jenkins confirmed that it was, as it has been done with a previous bill processed by the Committee.

The Chairperson asked if the PLA and department had prepared a new line to be included in the Committee report on the proposed review process.

Adv Jenkins confirmed that they had.

The Chairperson mentioned that this would be discussed after the presentation.

Mr Mathebula said both organisations felt that the Bill was unclear on whether Clauses 17, 18, and 19 were mutually exclusive and could not be applied simultaneously. Moreover, they believed that layering the clauses would cause issues in procurement. In response, the department said the provisions in Chapter 4 are meant to be implemented in a staggered manner within the prescribed thresholds.

The Chairperson noted that the department had covered this point extensively in previous meetings.

Mr Mathebula outlined that both organisations supported the inclusion in Clause 24 of a framework of elements against which to judge procurement relating to price. However, they believed the obligations to assess or evaluate contracts in 24 (1)(d) should be compulsory and include the term ‘must’ and not ‘may’, which was supported by the department.

The Chairperson supported the proposal.

BUSA Submission

Mr Mathebula indicated that the department supported BUSA’s proposed new definition for procurement.

The Chairperson also supported the proposal.

Mr Ryder asked if Members could have time to look at the clause and respond to it later.

The Chairperson accepted the request.

Mr Mathebula stated that BUSA was concerned that Chapter 4 did not provide for preferences and evaluation for companies making a concerted effort towards skills development.

Mr F Du Toit (FF+, North West) expressed the FF+’s objection to including B-BBEE in the Bill, as it was discriminatory to other groups of people. He underlined that preference should not be given based on racial considerations.

The Chairperson said the FF+’s rejection of the Bill had already been recorded in the report.

DTIC submission

Mr Mathebula mentioned that the DTIC took issue with Clause 16 (3) as it believed it created a perverse incentive for some procuring institutions not to implement government objectives not embedded in Clauses 17, 18, or 19. In response, the department said Clause 16 (3) was drafted with the knowledge that these preference measures may not always be possible to be applied. For example, there may not be suppliers in the market for particular goods and services being procured. Moreover, the requirement to report is intended to ensure that where the preference measures cannot be applied, the Public Procurement Office (PPO) or relevant treasury would be able to guide and support officials and procuring institutions to ensure compliance with this Act.

The Chairperson pointed out that the department had previously gone through this with members and asked what the department’s decision on this matter was.

Mr Mathebula said the department did not see a need to change Clause 16 (3).

Mr Ryder indicated that it was concerning that another government department/entity raised concerns around Clauses 17, 18, and 19, especially as the DTIC held dual responsibility for implementing the provisions. He was concerned that Parliament was being asked to pass a Bill on which the Cabinet was not united. This had to be taken seriously by the Committee, he said.

He asked if this was the full text of the DTIC’s comments or if the NT had summarised them.

The Chairperson clarified that disagreements between departments on certain provisions of bills were not new and had happened over the years. This usually occurs when a Cabinet member cannot impress upon his or her colleagues on a matter and tries to do so when a bill is before Parliament. Having noted the frequency of the practice, the ruling party intervened and asked Ministers to desist from doing so.

Regardless, he, too, questioned why the department had come at the last minute to lodge this objection when it had time to do so in the National Assembly (NA) via the Minister in Cabinet. He proposed that the Committee, in its report, suggest that the DTIC’s submission be referred to the NA.

While many amendments were made in the original bill, most remained the same. Considering this, some of the issues raised by stakeholders, such as those raised by the Institute for Race Relations (IRR) in its letter, were fundamentally ideological differences.

Nonetheless, he suggested that the Committee’s report outline its serious concern that the DTIC had lodged this issue on the Bill at such a late stage and its belief that it should have been settled in the Cabinet process. Furthermore, the Committee would refer the matter to the NA and recommend that the NT meet with the DTIC as soon as possible so that the NA can process the bill.

He asked the NT why the DTIC had not settled this with the department earlier.

Mr Mathebula mentioned that the DTIC’s comments related to the D-Bill, which had undergone further changes.

The Chairperson still felt that these issues could have been resolved earlier. Thereafter, he asked the department to flight the prepared proposal to include in Clause 68, which speaks to the review of the Act. After it was put before Members, he read it out. It read as: ‘The Minister must review the implementation of the Act 24 months after it is published; consult stakeholders, including NEDLAC; and within 30 months after the publishing of the Act make a report public on the review and submit it to Parliament.’

He was not pleased with the 30-month timeline for producing and submitting the report or with the department's decision to review only the Act’s implementation, not all of its provisions.

Adv Van Schoor believed that this was covered in subsection (a) of Clause 68, which included ‘and the need for amendments to the Act’.

The Chairperson noted the response.

Adv Jenkins indicated that the word ‘implementation’ corresponded to Parliament’s obligation to have oversight over the implementation of legislation.

The Chairperson asked if the PLA wanted the word left in the clause.

Adv Jenkins stated that this depended on how it was perceived, but in his opinion, the word ‘implementation’ was broad enough, as it looked at the performance reports and whether the objectives were met.

Mr Ryder asked if the South African Local Government Association (SALGA) could also be included alongside NEDLAC as a stakeholder to be consulted on the review process.

The Chairperson asked the PLA if this was necessary.

Adv Jenkins said the Act required SALGA to be consulted only on matters affecting local governments.

The Chairperson settled on a 30-month timeline. However, he asked why six months was required to publish the report.

Adv Van Schoor said that this could be reduced.

The Chairperson recommended that it be done within three months.

Adv Van Schoor noted the suggestion.

Mr Ryder was pleased with this clause.

Ms D Mahlangu (ANC, Mpumalanga) supported the clause.

Mr Ryder asked if the Committee could then deal with the letter sent to it by the IRR.

The Chairperson accepted his request and asked that it be flighted.

IRR letter to the Committee

The Chairperson outlined that the IRR objected to the length of time between the issuance of the B18D draft of the Bill and the deadline for stakeholder submissions on the draft, the reliability of the NT’s claim that over a trillion Rand’s worth of procurement projects had been given to black-owned companies.

He asked the department to comment on the IRR’s suggestion that if procurement under Clauses 17, 18 and 19 is not cost-effective, the procuring institution must record and report the reasons to the PPO and the relevant treasury.

Mr Mathebula indicated that the IR had confused two pieces of legislation. Here, the department spoke to preferential procurement, a function of the Constitution.

The Chairperson said the Committee was aware of this, and that was not what he had asked. He had asked for the department’s reply on the IRR’s point that a procuring institution must record and report the reasons.

Mr Mathebula outlined that Black Economic Empowerment (BEE) premiums referred to the B-BBEE Act, which went beyond procurement. The department highlighted that procurement was but one element of the B-BBEE Act.

The Chairperson repeated that the department had not responded to the question directly. Nevertheless, while he appreciated the IRR’s idea in principle, he felt that it would complicate matters as it would reinforce the view that cost-effectiveness superseded everything else. Moreover, the proposal did not go with the Standing Committee’s rejection of price as a major determining factor during the evaluation of bids.

Mr Ryder suggested that the IRR’s view on cost-effectiveness should be considered during the bid evaluation in the Committee report. He was cautious about defining cost-effectiveness, as it would set a new baseline. He admitted that defining ‘cost-effective’ was difficult.

The Chairperson asked for Mr Ryder to send the Committee a draft on how it should craft his suggestion in the report.

He mentioned that the Committee would then deliberate on the provincial mandates.

He asked the PLA whether permanent delegates or the provincial legislature's representative were expected to present the mandates.

Adv Jenkins indicated that usually, it was a representative from a provincial legislature’s finance committee.

Final Mandates on PP Bill

Eastern Cape Legislature

Ms Z Nchita (ANC, Eastern Cape) presented the mandate on behalf of the province. She mentioned that the Eastern Cape (EC) voted in favour of the Bill.

Free State Legislature

Mr M Moletsane (EFF, Free State) presented the mandate on behalf of the province. He said the Free State (FS) voted in favour of the Bill.

Gauteng Legislature

Mr Sochayile Khanyile (Member of the Gauteng Provincial Legislature) presented the mandate on behalf of the province. He indicated that the provincial finance committee sat in the morning to confirm its decision to support voting in favour of the Bill.

KwaZulu-Natal Legislature

The Chairperson presented the mandate on behalf of the province. He said KZN voted in favour of the Bill.

He suggested that the Committee report note the quality of the reports submitted by the provincial legislatures.

Limpopo Legislature

Ms M Mamaregane (ANC, Limpopo) presented the mandate on behalf of the province. She mentioned that Limpopo voted in favour of the Bill.

Mpumalanga Legislature

Ms D Mahlangu (ANC, Mpumalanga) presented the mandate on behalf of the province. She said Mpumalanga voted in favour of the Bill.

Northern Cape Legislature

Mr W Aucamp (DA, Northern Cape) presented the mandate on behalf of the province. He mentioned that the Northern Cape (NC) voted in favour of the Bill.

The Chairperson indicated that the Committee’s final report will highlight the need to address the issues leading to poor attendance at public hearings in NC.

North West Legislature

Mr Du Toit presented the mandate on behalf of the province. He said the North West (NW) voted in favour of the Bill.

The Chairperson asked the PLA if the Committee should wait until it finished deliberating on the PP Bill before voting on the final mandates.

Adv Jenkins said voting on the provincial mandates was unnecessary as the provinces had already done so.

The Chairperson clarified that he was asking if the Committee had to adopt the final mandates before or after its deliberations on the Bill.

Adv Jenkins advised that the Committee do so after deliberating on the Bill.

Ms Mahlangu indicated that the Western Cape (WC) had not presented its mandate.

The Chairperson noted this and asked that the representative present it on the province’s behalf.

Western Cape Provincial Parliament

Ms L Moss (ANC, WC) presented the mandate on behalf of the province. She said the WC voted not in favour of the Bill.

The Chairperson asked which version of the Bill Members should look at.

Mr Ryder said the D-version would be more appropriate.

The Chairperson acknowledged the contribution made by his personal assistant to format the Bill and others.

Clause-by-clause deliberations on the D-Version of the PP Bill

The Chairperson asked if he was correct in saying that members only had to go through the proposed amendments.

Adv Jenkins confirmed this was correct.

Mr Ryder highlighted that the D-Version showed many changes made in the last phase of processing the Bill, not those made earlier. He asked if the department could flight a version of the Bill that contained all the changes made to it by the Committee.

Adv Van Schoor explained that all the changes made to the Bill were highlighted in red. All the proposed amendments included on Thursday were highlighted in yellow, and those emanating from the stakeholder's comments were highlighted in green.

Mr Ryder noted the response.

The Chairperson asked the department not to go over matters already dealt with by the Committee.

Adv Van Schoor outlined that the department added three changes, one of which is the review of the Act.

Chapter 1

Definitions, Objects, Application and Administration of Act

Adv Van Schoor indicated that no new proposals were made in this, except for distinguishing goods and services used for construction, repair, and maintenance based on the definition of procurement.

Mr Ryder was pleased with the proposal, which clarified the definition.

The Chairperson thought it was good that Members of the majority party accepted and noted the suggestions made by smaller parties.

He asked if the PLA agreed with the definition of strategic procurement, as he was displeased with it.

Adv Jenkins felt the definition was fine as is.

The Chairperson informed Members that the final mandates were accompanied by reports. Most of the information in them was covered in the Bill. He further told Members that he discussed the difference in ideology between the ANC and DA on the Bill with the chairperson of the WC finance committee.

Chapter 4

Clause 18: Prequalification criteria for preferential procurement

The Chairperson asked if the department included all the submissions from stakeholders.

Adv Van Schoor said that it had considered their suggestions and proposed amendments.

She then took Members to Clause 18 (4), which was highlighted earlier during the discussions on the DTIC’s submission.

Mr Ryder felt that this currently formulated clause only encouraged procuring institutions to make purchases even when not necessary. He felt it should be tightened so that they only go out on procurement when required. He advised adding the word ‘when’ before the word ‘procuring’.

Mr Mathebula said the addition could be made.

The Chairperson was pleased with the amendment.

Adv Jenkins was also pleased with it.

The Chairperson pointed out that the department and PLA would investigate the cross-referencing in the Bill and resolve it in the Announcements, Tablings, and Committee Reports (ATC) version of the Bill. He asked the PLA if the Committee report would be included in the ATC.

Adv Jenkins confirmed that it would be.

The Chairperson suggested that the Committee include in its minutes an appreciation of the contribution made by the department. He asked the PLA if the Committee could not also include this in its final report on the Bill.

Adv Jenkins said the Committee could do so.

The Chairperson said it would do so.

Thereafter, he said the Committee would vote on the Bill after going through its draft report.

Draft Report of the Select Committee on Finance on the PP Bill, Dated 07 May

The Chairperson took the Committee through the report. He mentioned that the draft report summarised the submissions made on the Bill and the Committee’s observations and recommendations.

Referring to paragraph 6.24 of the report, he suggested that the report include the DA’s opposition to the Bill and race-based quotas alongside that of the FF+.

Mr Du Toit disputed that the DA opposed the Bill based on racial quotas. He underlined that only the FF+ had done so.

Mr Aucamp said this was incorrect.

The Chairperson mentioned that the DA had also opposed the Bill based on its preferential procurement clauses, which would be captured in the report.

Mr Du Toit asked why it would be captured if this was false.

The Chairperson proposed that the report state the FF+ is the main party in the Committee, which is opposed to race-based legislation.

Mr Aucamp opposed this suggestion.

Mr Du Toit also opposed it as he believed the phrasing was unfair to other parties. He recommended that 6.24 remain as is.

Mr Ryder indicated that this was the FF+’s view, and the Committee could not instruct it on what it should be.

Mr Du Toit recommended that the minority view rather state that the party had strongly opposed race-based legislation since 1996.

Ms Mahlangu asked how the term ‘race-based’ related to the PP Bill, as it only concerned public procurement. She stressed that the FF+ could not rename the Bill despite its opposition.

Mr Du Toit said the Bill was race-based legislation.

Ms Mahlangu said it was not.

The Chairperson proposed that the first line of 6.24 states that the FF+ has always vigorously opposed race-based legislation.

Mr Du Toit suggested adding the words ‘unlike political parties’.

The Chairperson would not allow this.

Ms Mahlangu mentioned that the FF+ was abusing the platform. She recommended that the report capture that the FF+ opposed the Bill because it favoured previously disadvantaged people.

Mr Du Toit took issue with Ms Mahlangu’s suggestion as he felt it insinuated that all white people had benefited from Apartheid. This legislation, he continued, sought to benefit black people as a whole.

Ms Mahlangu asked him not to bring political debates into the discussion, as Members were focused on the Bill. The ruling party has, on several occasions, explained that the beneficiation of the previously disadvantaged would not be at the exclusion of white people. For instance, even though black women faced greater oppression than others, women as a whole are considered a category of historically disadvantaged persons.

Mr Du Toit requested that the Committee not influence the FF+’s view on the matter in the report.

Mr Moletsane pointed out that the rules required for opposing views to simply be recorded in a final report when dealing with a Section 76 Bill, with the debates on the bill done within the provincial legislatures.

The Chairperson indicated that the reports usually noted the opposition’s view. However, the rules do not provide for a committee to draft a minority report.

Even though he thought the matter should not have been put up for debate, he asked Members to be careful about their language when expressing their views.

Nevertheless, he suggested that the report also set out the ANC’s fundamental disagreement with the DA and FF+ approach to the Bill, as is clear from the amendments effected to the Bill and its overall support, and that the party did not accept that this is race-based legislation because it also considers women and small enterprises in general.

The ANC believed that without the empowerment of the historically disadvantaged, racial polarisation would deepen, widen and threaten the stability of the country, he added.

He asked the PLA if these changes could be changed as suggested.

Adv Jenkins indicated that the Committee could do so if it chose; however, the rules did not require it. The rules required that those who opposed a Bill be noted in the report.

The Chairperson asked if the Committee report could say that the FF+ has always been vigorously opposed to what it sees as essentially race-based legislation.

Mr Du Toit suggested a compromise for it to state the FF+ vigorously opposed race-based legislation.

The Chairperson said the Committee would not agree to that.

Ms Moss indicated that the FF+ was present in the meeting last week when she explained that the Bill sought to provide redress to all previously disadvantaged groups, and not only black people.

The Chairperson asked if the DA had any comments on this matter.

Mr Ryder highlighted that Rule 120.4 allowed for minority views to be expressed. Whilst he acknowledged that there had to be sensitivity in the language used by Members, he believed freedom of speech should be allowed.

Ms Mahlangu felt that the Committee should follow the PLA’s advice. She said it was not fair to raise issues of race on the Bill, considering how Members have treated each other over the years.

The Chairperson said the debate on redress as a government policy should be had in the House, not the Committee.

Nowhere could it be found that individuals had an abstract right to say whatever they wanted and provoke other Members. He added that the FF+ has been given several opportunities to express its points on the matter.

He asked the PLA if the Committee report could read: ‘The FF+ has always been vigorously opposed to what it sees as essentially race-based legislation’. This suggestion did not take away from the party’s position; it was just mindful of people’s sensitivities.

He mentioned that the bottom of the page would state that ‘The majority party will state that it fundamentally disagrees with the positions of the DA and FF+, and strongly believes that without the empowerment of black people, this country’s polarisation – class, racial and gender divisions – will dramatically increase, and the stability, security and prospects of economic growth in this country will be severely undermined’.

If the FF+’s version is put forward on the report, the ANC will state that, ultimately, in some or other sense, whites benefited from Apartheid, whether they were poor or rich, because they did not carry a passbook and were not threatened by the South African Defence Force. A few white people took the brave step to oppose the system, he noted.

He added that the matter would be put to a vote if needed.

Adv Jenkins said the Chairperson's proposal aligned with the NCOP Rule 120, which states that a committee may include the minority’s views in the report.

The Chairperson included the FF+’s view and then below the view of the majority party.

Mr Du Toit said the Chairperson had created a perception that the FF+’s minority view had only been submitted on the Bill shortly before the meeting started when it was sent last Saturday. Not once during the day's communication did the Chairperson voice his dissatisfaction with the wording. To him, the Chairperson seemed to be threatening the FF+ through his language.

The Chairperson did not agree that the Committee had changed the meaning of the FF+’s view on preferential procurement in the report.

After the report was discussed, he asked the PLA if the Committee had to go through the Bill clause-by-clause before putting it up for a vote.

Adv Jenkins indicated it could be put up for a vote without further deliberation.

Mr Ryder informed Members that he would take them through the paragraph he was asked to draft earlier. It said: ‘As part of the review process, the department must perform an assessment of the cost-effectiveness of procurement, taking into account price, social cohesion, the need to redress past disadvantages entrenched through legislated and societal mechanisms, together with the effective delivery of government objects.’

The Chairperson suggested that he replace the word ‘price’ with the phrase ‘value for money.’ He asked the department if this was consistent with the Bill.

Adv Van Schoor said the department preferred to continue using the word ‘cost-effective’ in the Bill because it was mentioned in the Constitution.

Adv Jenkins advised that the word competitiveness be included as well because the purpose of procurement was to develop the market and create a wider supply chain within a country. Set-asides are also included to empower people and develop supply chains so there is greater competition. This was in line with constitutional judgements, which stated that the government has a duty to develop them.

The Chairperson asked if anything in the wording undermined the prospects of disadvantaged emerging African entrepreneurs in public procurement.

Mr Ryder said there was nothing in the paragraph that did. Price gouging was something the Committee and government should be against. The DTIC set this example during the COVID-19 pandemic.

Empowerment can be seen as cost-effective, he added.

The Chairperson mentioned that the Committee has consistently highlighted that B-BBEE has failed to benefit the broader majority. He asked the department for comment on whether it believed the wording undermined the prospects of disadvantaged emerging African entrepreneurs in public procurement.

Mr Mathebula stated that several stakeholders said the use of price as part of the evaluation criteria had been discredited worldwide. The Standing Committee on Finance also raised that price was used as a gatekeeping mechanism.

The Chairperson said the Committee was aware of this. He was asking if the paragraph undermined the Bill.

Mr Mathebula confirmed that it would not.

Vote on the PP Bill

The Chairperson requested a mover to adopt the Bill.

Ms Mamaregane moved for its adoption.

Ms Nchita seconded the mover.

Mr Ryder indicated that the DA was opposed to the Bill.

Mr Du Toit expressed the FF+’s opposition to the Bill.

The Bill was adopted, noting the opposing views of the DA and FF+.

Vote on the Committee Report

The Chairperson requested a mover to adopt the report.

Mr T Xula (ANC, KZN) moved for its adoption.

The Chairperson asked if a provincial delegate could vote on Committee reports.

Adv Jenkins clarified that only permanent delegates could do so.

Ms Mahlangu moved for its adoption.

Ms Nchita seconded the mover.

The report was duly adopted, noting the FF’s opposing view.

Read: Read: ATCC240509:Report of the Select Committee on Finance on the Public Procurement Bill (National Assembly- Section 76, B18d-2023), Dated 07 May 2024

The Chairperson thanked Members and the department for their work on the Bill.

Mr Ryder indicated that both the DA and FF+ had not been given the opportunity to state their opposition to the report on the record.

The Chairperson pointed out that their opposition was recorded in the report.

Mr Ryder expressed gratitude to the Parliamentary Monitoring Group for the standard and quality of its recording and reporting of the proceedings.

The Chairperson asked if the proposed paragraph should be included in the report.

Adv Jenkins stated that it formed part of the Committee’s recommendation on the review process.

The Chairperson did not understand what else needed to be included in the report, as it already stated that this was a first-phase Bill and that a review process would be conducted 24 months after it was adopted.

Adv Jenkins cautioned the Committee against including a recommendation that would disadvantage the next committee. Mr Ryder’s recommendation provided direction and circumscribed the scope of the review process.

The recommendation may assist the department in how to conduct its report on the 24-month review. Once the committee receives that report, it will interrogate it, and if there are issues, it can raise them, as was the case with the resolution on the role of the Standing Committee on Public Accounts (SCOPA) and the Joint Investigation Team in the Arms Deal saga. The PLA was tasked with looking into the resolution of the House to see if SCOPA should form part of the Joint investigation team.

He felt that the paragraph narrowed the review process.

The Chairperson said the paragraph should not be added to the report if it would narrow the review process. Clause 68 should remain as is, he added.

The meeting was adjourned.