Urban Planning and Governance: Principles of Law and Sources in South Africa

DEPARTMENT OF URBAN PLANNING COOPERATIVE GOVERNACE AND TRADITIONAL AFFAIRS Portfolio Committee Expenditure to Date 01 September 2022 01 September 2022 1

Index Principle of legality Sources of law Sources of law -SCM COGTA Performance Challenges Mitigating Activities

Principle of legality The President must also act in good faith and must not misconstrue the nature of his powers The President of the Republic of South Africa and Others V South African Rugby Football and Others CC16/98 2000 It seems central to the conception of our constitutional order that the Legislature and Executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon the by law The Pharmaceutical Manufacturers Association of South Africa and others : Ex Parte President on the Republic of South Africa and others CCT31/99 2000

Sources of South African Law Binding Sources The Constitution of the Republic of South Africa , 1996 National/ Provincial Legislations (Including municipal by-laws) Common Law Judicial Precedents/ Case Law/ Stare Decisis Customary Law (revenant is : delegata potestas non delegari ) Persuasive International Foreign Law

Sources of law Supply Chain Management Section 217 of the Constitution reads: (1) When an organ of state in the national, provincial and local sphere of government or any other institution identified in the national legislation , contracts for goods or services , it must do so in accordance with a system which is fair , equitable, transparent, competitive and cost-effective. (2) Subsection (1) does not prevent organs of state or institutions refered to in that subsection from implementing procurement policies providing for- a) Categories of preference in the allocation of contract; and b) The protection or advancement of persons, or categories of persons disadvantages by unfair discrimination. c) National legislation must prescribe a framework within which the policy referred in subsection (2) must be implemented.

Sources of law Supply Chain Management (1) The national legislation contemplated in s 217 (3) of the Constitution is the Preferential Procurement Policy Framework Act which defines as: acceptable tender to mean any tender which , in all respect , complies with the specifications and condition of the tender as set out in the tender document Section 2 of the Legislation contemplated above reads: (1) An organ of state must determine its preferential procurement policy and implement it within the the following framework: a) A preference point systems that must be followed b) (I) for contracts within a Rand value a prescribed amount of maximum of 10 points may be allocated for a specific goal as contemplated in paragraph (d) provided that the lowest accepted score 90 points for price (above R50m)

Sources of law Supply Chain Management (II) For contracts with a Rand value equal to or below a prescribed amount a maximum of 20 point may be allocated for specific goal as contemplated in paragraph (d) provided that the lowest acceptable tender score 80 point for price (c ) any other acceptable tenders which are higher in price in price must score fewer points on pro-rata basis , calculated on their tender price in relation to the lowest acceptable tender , in accordance with prescribed formular (d) specific goals may include : i. Contracting with persons, or categories of persons , historically disadvantaged by unfair discrimination on the basis of race, gender or disability: ii. Implementation of the Reconstruction and Development program . iii. Any specific goal in which a point may be awarded , must be clearly specified in an invitation to submit a tender: Para 1.1.7 of Practice Note 2 0f 2006 reads :The practice of using bid documents that contain conditions that promote set-asides or exclude certain categories of potential bidders from bidding for government contract must be refrained from. (f) The contract must be awarded to the tenderer who score the highest point, unless objective criteria in addition to those contemplated in paragraph (d) and (e) justify the award to another tenderer: In Afribusiness NPC v The minister of Finance 1050/2019 2020 SCA it was held that if after the evaluation of the tenders , there are equally ranked , there can no be an objection to B-BBEE

COGTA Performance- Women Woman spend Total Expenditure Percentage April 6 041 436 37 607 255,39 16.06% May 1 481 743 14 468 129,88 10.24% June 1 792 658 10 402 551,09 17,23% Total 9 315 837 62 477 936.36 14.91% July 7 421 130,00 16% 1 187 458

COGTA Performance- Youth Youth Spend Total Expenditure Percentage April 536 000 37 607 255,39 1,42% May 3 120 14 468 129,88 0.008% June 0 10 402 551,09 0.% Total 539 120 62 477 936.36 0,86% July 0.18% 13 625

COGTA Performance- People with disability PwD Total Expenditure Percentage April 119 010 37 607 255,39 0.31% May 0.00 14 468 129,88 0% June 0.00 10 402 551,09 0% Total 119 010 62 477 936.36 0.19% July 0.00

COGTA Performance- Military Veterans Military Veterans Total Expenditure Percentage April 0.00 37 607 255,39 0% May 0.00 14 468 129,88 0% June 0.00 10 402 551,09 0% Total 0.00 62 477 936.36 0% July 0.00

Challenges The budget allocation of the Department remains small in particular the goods and services budget (capital) The existing laws seems to be insufficient for empowerment purposes. A significant targeted group business seems to lack compliance or know how. Lack of working capital service providers

Challenges Economic classification MAIN BUDGET R 000 Total Budget allocation 610 789 Less : Compensation of employees 380 488 230 301 Less : Transfers, Households and payment to financial assets 25 633 Budget available for Procurement 204 668 Other things before procurement 39 500 Cell phones and data 18 000 Fleet 13 000 Office automation 2 000 Security and cleaning 6 500

Mitigating Activities For township-based activities such as events and similar, the Department procure the required services from the relevant townships and localities. The Department also makes concerted efforts to request quotation (RFQ) from targeted groups Additional will be requested during the biding period, as was the case in the past.

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