South Africa’s public procurement system is a powerful tool for advancing inclusive development. It is also contested. The DA’s proposed Public Procurement Amendment Bill, 2025 would change this system in a fundamental way. It would repeal B-BBEE as we know it by removing race-based criteria for empowerment and replacing it with what the Bill’s authors call a “race-neutral” framework aligned to the Sustainable Development Goals (SDGs). The DA argues that B-BBEE has not addressed socioeconomic disadvantage and that its implementation entrenches elite capture. The Bill also claims that race neutrality is the most effective and constitutionally faithful route to promoting economic inclusion.
The DA’s Bill misreads our Constitution and our social reality. At the core of the Bill is that the party erroneously assumes that the only problems faced by the beneficiaries of our public procurement system is overt racial discrimination in an otherwise “neutral marketplace” that would benefit all. This ignores the fact that markets are not neutral when capabilities, assets and networks reflect past exclusion. Without race consciousness, public procurement would entrench inequality, because price and capacity favour incumbents who benefited from apartheid’s economy.
Our society was built on racial dispossession, domination and oppression – creating the architecture of the prevailing deeply entrenched structural inequality that did not miraculously end in 1994. The Constitution has committed itself to addressing this legacy as an ongoing project through a deeper commitment, rather than simply eliminating overt racial discrimination.
The DA’s Bill should also be seen in the context of the transnational backlash against race-conscious measures that aim to redress the legacy of white supremacy, such as the efforts in the US to roll back on diversity, equity and inclusion and the 2023 clampdown on race-conscious university admissions in the US.
The constitutional mandate is not neutral, it is committed to addressing the legacy of racial dispossession
Section 217(2) of the Constitution is clear. Organs of state may adopt procurement policies that prefer and advance persons disadvantaged by unfair discrimination. This provision must be read alongside section 9(2) of the Constitution, which empowers the state to take measures to advance and protect persons disadvantaged by unfair discrimination. Read together, sections 217(2) and 9(2) commit the state to addressing the legacy of racial dispossession, domination and oppression in a marketplace that would otherwise champion the winners of the apartheid economy. Thus, our public procurement system’s race consciousness is not an afterthought to section 217(1)’s fairness and cost-effectiveness. It is an essential qualification to stop a neutral system from reproducing patterns of white privilege and power in South Africa’s economy.
The Public Procurement Act, 2024 aims to remove the structural barriers faced by black people, women, persons with disabilities, youth, military veterans, cooperatives and small enterprises. Given that most of these beneficiaries form part of the socioeconomically disadvantaged groups in South Africa, measures to enable their economic inclusion, advance rather than thwart South Africa’s efforts to meet the SDGs.
B-BBEE’s limits are real but its principles are sound
It bears emphasis that the critique of B-BBEE has some force. Elite capture, fronting and abuse of the procurement system are real. However, the problems with B-BBEE are not a consequence of the use of race as criterion; any public procurement system can be subject to abuse and corruption. To suggest that the problem with our public procurement system is rooted in race consciousness perpetuates the racist assumption that Black people are inherently corrupt. We hope that this is not the DA’s position.
At its core, B-BBEE aims to change who owns, controls and benefits from the economy, not to reward the connected. When linked to enterprise and supplier development, skills investment and real market access for SMEs and micro firms, B-BBEE has created local multipliers and widened participation. When reduced to narrow equity transfers and box-ticking, it has underperformed.
We should not abandon a tool because some misuse it, especially if it is to be replaced with a tool which misdiagnoses the nature of the problem – the DA’s race-neutral SDG alternative. We do not scrap competition law because firms collude. We do not end environmental rules because some projects greenwash. The answer is better design, tighter accountability and sharper targeting. Not repeal.
The SDG alternative is vague
Another problem with the DA’s Bill and its proposed scorecard is its vagueness. It’s not at all clear what a neutral, SDG-aligned procurement system would entail. To be clear, there is nothing inherently wrong with aligning procurement to the SDGs, and a well-designed, race-conscious procurement framework can in fact strengthen South Africa’s efforts to meet them.
The DA’s proposed Bill also ignores the fact that South Africa’s commitment to redressing racial dispossession and eliminating structural inequality is aligned with its other obligations in international law, including the International Convention on the Elimination of All Forms of Racial Discrimination (Icerd) (which imposes obligations towards achieving racial equality), the Convention on the Elimination of All Forms of Discrimination against Women (Cedaw) (which imposes obligation towards achieving gender equality) and the Convention on the Rights of Persons with Disabilities (CRPD) (which imposes obligation towards achieving equality for persons with disabilities). Our public procurement system is one of the tools towards meeting these obligations.
Defending the promise of redress and substantive equality
Public procurement must do more than buy cheaply. It must buy justly. Our Constitution promises both fairness and competition, and advancement for those locked out. The right response to abuse and disappointment is repair. Fix the tools of redress so they work for the many. Do not swap them for a false neutrality that will entrench existing patterns of inequality.
It’s important to also note that public procurement is only one tool in the struggle to redress the legacy of racial dispossession and eliminate structural inequality. Placing our race-conscious public procurement system as the root course of ongoing social and economic inequality, as the DA’s bill seems to do, is at best an incomplete telling of the story and at worst, a dishonest ploy to reverse some of the gains that have been made – all for the benefit of an already privileged and powerful white minority class. DM
Dr Nomfundo Ramalekana is a senior lecturer in law at the University of Cape Town. Her research is in the area of constitutional and human rights law. Dr Jonty Cogger is a public interest attorney working at the intersection of climate justice, land rights and systemic inequality.