The FW de Klerk Foundation’s position on redress has never been a retreat from non-racialism, nor has it ever been an embrace of racial permanence. It is, instead, a disciplined constitutional position: South Africa must remedy the living consequences of apartheid, but it must do so in a manner that remains faithful to legality, dignity, competence, non-racialism and good government. To pretend that history no longer matters is not constitutionalism. But to build a permanent administrative state around racial classification is not constitutionalism either. The Foundation’s position has always stood between those two errors.

That is why the Public Procurement Act of 2024 must be judged carefully. The problem with the Act is not that it seeks to reform procurement, fight corruption or widen economic participation. Those are necessary aims. South Africa desperately needs a procurement system that is cleaner, faster, more transparent and more capable of turning public money into public value. The problem is that the Act, especially Chapter 4 and the proposed 2026 regulations, appears to move beyond constitutionally disciplined redress into a rigid and centralised procurement architecture in which preference risks becoming the first organising principle, rather than one constitutional consideration among several.

This distinction matters because the Constitution does not speak in slogans. Section 217 requires public procurement to be fair, equitable, transparent, competitive and cost-effective. Section 217(2) then makes clear that this does not prevent organs of state from implementing preference policies for categories of persons disadvantaged by unfair discrimination. The structure is important. The Constitution permits preferential procurement, but it does not require procurement to become permanently raced, centrally standardised and subordinated to compliance choreography. Redress is constitutionally allowed, but it must live inside fairness, competition, transparency and cost-effectiveness, not above them.

Section 195 reinforces this reading. Public administration must be efficient, economic, accountable and development-oriented, while also advancing representivity and redressing past imbalances. This is the Foundation’s constitutional middle ground. The state must not pretend that inherited disadvantage has disappeared. But it also cannot use inherited disadvantage to justify blunt instruments that weaken capability, delay delivery or open new spaces for patronage. Redress without legality becomes arbitrary engineering. Non-racialism without redress becomes historical denial. The Constitution requires neither. It requires disciplined transformation.

This is also why criticism of the Act should not be confused with hostility to redress itself. The Foundation’s concern is not with the constitutional possibility of preference, but with the statutory design now being placed before the country. Section 16 of the Act does not merely allow institutions to consider preference where appropriate. It creates a structured ladder: first set-asides, then pre-qualification, then subcontracting or other preference mechanisms, with reasons to be recorded and reported where these tools are not used. Sections 17 and 18 then make set-asides and pre-qualification central mechanisms of procurement design. The draft regulations go further. They propose set-asides for contracts up to R20 million where qualifying suppliers exist, mandatory preference filters for contracts between R20 million and R100 million and subcontracting mechanisms for contracts above R100 million.

The ownership and qualification rules are especially concerning. The proposed regulations contemplate strict ownership requirements, including 100% ownership by members of specified categories for certain set-asides and pre-qualification rules involving prior procurement from firms at least 51% black-owned and managed, or substantial subcontracting to targeted categories. That is not a minor administrative adjustment. It is a major re-engineering of state contracting. In some sectors, it may be workable. In others, it may shrink bidder pools, increase prices, delay urgent projects, produce repeated re-advertisements and turn procurement officials into compliance clerks rather than delivery agents.

South Africa cannot afford that. When water systems fail, roads collapse, electricity infrastructure breaks down or hospitals need equipment, procurement is not an abstract policy field. It is the machinery through which constitutional promises become real services. A procurement system that cannot deliver on time, at fair cost and through clean processes does not advance the poor. It harms them first.

The municipal dimension makes this even more serious. Section 151 of the Constitution protects the ability of municipalities to govern local affairs and perform their functions. National legislation may regulate, but it may not compromise or impede municipal capacity. If a centralised procurement framework forces high-performing municipalities and failing municipalities into the same rigid mould, the law risks legislating for the lowest common denominator. Corruption must be fought everywhere, but the cure cannot be so bureaucratic that it slows the very service delivery it claims to protect. True constitutionalism is not only about what the state intends. It is also about what the state is capable of doing.

The procedural challenge before the Constitutional Court is therefore not a side issue. It goes to the heart of constitutional democracy. If Chapter 4 was materially changed without proper public participation and if Parliament failed to meaningfully consider submissions before passing one of the most consequential procurement laws in democratic South Africa, then judicial scrutiny is justified. Good ends do not excuse defective process. A law aimed at transparency cannot be born through inadequate deliberation.

The deeper issue, however, is substantive. South Africa’s procurement crisis is not caused only by insufficient preference. It is caused by weak planning, poor contract management, corruption, cadre deployment, inadequate professionalisation, delayed payments, fragmented systems and a lack of real-time transparency. Adding heavier racial and identity filters to a weak state may not fix procurement. It may simply create a more complicated system behind which the same failures can hide.

A better model is available. The Foundation argues (and has always argued) for needs-based, capability-building and anti-corruption procurement that keeps redress but changes the instrument. Preference should increasingly target actual disadvantage: small and emerging enterprises, township and rural suppliers, youth-owned businesses, persons with disabilities, new entrants, local job creation, apprenticeship commitments, supplier development, household poverty, geographic exclusion and proven barriers to market entry. Race explains much of South Africa’s inherited exclusion, but it should not remain the state’s permanent administrative shortcut.

This is not hollow race-neutralism. It is not a denial of apartheid’s consequences. It is a more serious form of redress because it asks whether policy actually builds capability, opens opportunity and improves lives. Public procurement should build capable suppliers, not merely classify them. It should open markets, not close competition. It should develop black and poor entrepreneurs through transparent pipelines, mentorship, payment discipline and skills transfer, not through rigid formulas that can be gamed by connected insiders.

The Foundation therefore parts ways with both extremes in this debate. We do not share the view, advanced in some quarters of the Institute of Race Relations and allied advocacy spaces, that the Constitution should be read as though section 9(2) were an unfortunate deviation from non-racialism rather than part of the constitutional settlement itself. Equally, we reject the increasingly fashionable assumption within parts of government that every developmental failure can be solved through more rigid racial administration. 

The Foundation’s position is more constitutionally demanding than either instinct. It accepts that apartheid created enduring structural exclusion which democratic South Africa is entitled and indeed obliged, to remedy. But it also insists that remedial measures must remain disciplined by legality, evidence, proportionality, capability and the constitutional destination of a genuinely non-racial society. That is not ideological compromise. It is constitutional fidelity.

For more on this topic read: (past published article/statement suggestion): The Contradiction at the Heart of Public Procurement – https://fwdeklerk.org/the-contradiction-at-the-heart-of-public-procurement/