WARNING: SA procurement system makes it easy to manipulate tenders, expert says

Cape Town – South Africa’s public procurement system remains vulnerable to corruption and manipulation, with governance expert Professor Alex van den Heever warning that flaws in the system make it easier for state contracts to be captured.

Van den Heever, a Wits Business School governance expert, made the comments following the Constitutional Court’s decision to declare the Public Procurement Act of 2024 invalid.

The court ruled that Parliament had failed to meet its constitutional obligation to facilitate meaningful public participation before passing the legislation. The unanimous judgment found that the public participation process was inadequate and declared the Act invalid.

Speaking to Newzroom Afrika, Van den Heever said the existing procurement system contains structural weaknesses that make it vulnerable to manipulation.

“There are many flaws in the procurement process that exist today. It is a capturable structure in South Africa,” he said.

“That is why we see the systematic corruption that we have today. It is because it is so easy to manipulate tender processes and procurement processes.”

He also raised concerns about political interference in procurement decisions, saying ministers and MECs can still influence processes.

“It is still possible for ministers and MECs to interfere in the procurement process. That political contamination of the procurement process allows the capture of the process,” Van den Heever said.

He criticised what he described as a “tickbox” approach to public participation and anti-corruption compliance, arguing that administrative requirements can create the appearance of lawful processes without addressing deeper weaknesses.

Illusion of legality 

“You have to properly consider all participants, all people, who may be affected by a piece of legislation and cannot merely run a tickbox process when something is being considered,” he said.

Van den Heever said compliance measures could also create an “illusion of legality” while leaving procurement processes vulnerable to manipulation.

“There are requirements where people can basically tick a box and create the veneer of lawfulness. In reality, the whole process is still contaminated.”

The Constitutional Court’s ruling does not amount to a finding that the policy substance of the Public Procurement Act was unconstitutional. Instead, the Act was struck down because Parliament failed to comply with its constitutional public-participation obligations.

National Treasury has said it remains committed to procurement reform and will engage Parliament on the way forward following the judgment.