LEGISLATIVE AMENDMENT AND DEVELOPMENT NEWSLETTER - NOVEMBER 2022

This newsletter highlights the latest statutory amendments, enactments, case law, notices, and ancillary developments relevant to the SERR Synergy legal compliance products and services for the month.

Preferential Procurement Policy Framework Act, 2000 (Act No. 5 of 2000)

With regards to the February 2022 Constitutional Court ruling in Minister of Finance v Afribusiness NPC (CC) (16 February 2022), the Minister Finance, Enoch Godongwana, in Government Gazette No. 47452 dated 4 November 2022, published the revised Preferential Procurement Regulations, 2022.

Succinctly, Minister of Finance v Afribusiness NPC specifically dealt with the former Minister of Finance (Pravin Gordhan) exceeding his powers by acting ultra vires regarding the establishment of the Preferential Procurement Regulations, 2017.

 

Broad­-Based Black Economic Empowerment Act, 2003 (Act No. 53 of 2003) (B-BBEE Act)

In a media statement released by the South African National Treasury on 8 November 2022, it explained the purpose of the above Regulations. National Treasury reiterated that organs of state must comply with the B-BBEE Act when developing their own procurement policies. Furthermore, National Treasury highlighted that the Public Procurement Bill was in the process of being finalised and would empower the Minister of Finance to set preferential procurement criteria. The Preferential Procurement Regulations, 2022 published on 4 November 2022 are a “placeholder” while the Public Procurement Bill is being finalised. 

On 9 November 2022, the B-BBEE Commission released a statement indicating that “the [Preferential Procurement Regulations, 2022] have not removed the obligation for organs of state and public entities to implement the B-BBEE Act […] and its requirements concerning preferential procurement […] thus in implementing preferential procurement, an organ of state or public entity will have to comply with both the requirements of the [Preferential Procurement Regulations, 2022] and the B-BBEE Act, which means that B-BBEE criteria will still be part of the 20 and 10 points under the 80/20 and 90/10 procurement system which currently empowers organs of state and public entities to set a goal, which in this regard includes promoting access by black people and black enterprises to procurement opportunities in organs of state and public entities”.

To summarise, State Organs may apply the Preferential Procurement Regulations, 2017 until the Preferential Procurement Regulations, 2022 published on 4 November 2022 take effect on 16 January 2023. These Preferential Procurement Regulations, 2022 shall apply on an interim basis until a new set of procurement regulations are published. State Departments and Organs of State can also use their own procurement criteria. Either way, the B-BBEE requirements must be complied with.

We have published an article on our website for more information - please follow the link 'B-BBEE is here to stay!'
 

Protection of Personal Information Act, 2013 (Act No. 4 of 2013)

The Information Regulator published the Code of Conduct for the–

  • Banking Association South Africa (BASA) effective from the 28th day after its notification in Government Gazette No. 47257 dated 7 October 2022.
  • Credit Bureau Association (CBA) effective from the 28th day after its notification in Government Gazette No. 47257 dated 7 October 2022.
     
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