Strategic objectives in public procurement, such as environmental or social considerations, are being increasingly referred to under the umbrella term of sustainable public procurement (SPP). The concept of sustainability is intrinsically multidimensional, encompassing environmental, social, and economic aspects. However, the existing literature on SPP highlights the generalization that the regulation and practices of public procurement are biased toward the environmental dimension. There is conflicting evidence from countries in Sub-Saharan Africa (SSA) that calls for further investigation. Analyzing how SPP is actually constituted in SSA and contrasting it with the situation in the European Union (EU), as a spotlight on the Global South and North, contributes to a better understanding of sustainability in public procurement. The comparative analysis will help with understanding processes related to the integration or disintegration of sustainability dimensions in SPP. Our results indicate a contrary orientation on the environmental and the social dimensions in the EU and SSA. Although there is no sign of a comprehensive integration of all dimensions in SPP, there are developments toward the integration of the ‘missing’ dimension in the respective regional setting. Thus, at the moment, achieving a multidimensional implementation of SPP appears to be more a matter of expanding SPP practices of the ‘missing’ dimension than of pushing for integrated concepts.

Public procurement is a key instrument in the post-apartheid South African government’s broad-based black economic empowerment (BBBEE), a legislative and policy framework aimed at reversing the country’s legacy of injustice and inequality through pursuing a range of socio-economic objectives that favour the majority black population. This paper employs a theoretical and derived logic model to analyse the design and implementation of BBBEE by means of literature and document review as well as key stakeholder interviews. It seeks to answer two key research questions: (1) has BBBEE achieved its intended outcomes? and (2) what lessons can be drawn from the South African experience for sustainable public procurement? The study finds a significant knowledge gap that precludes definitive conclusions on the impact of BBBEE, largely due to the limited rigorous evidence, particularly evaluations, on whether BBBEE is achieving the desired outcomes. Instead, the paper’s key contribution is the development of a derived logic model that clearly outlines how BBBEE is intended to work and is used to provide insight into how BBBEE has performed against aspects of its intended outcomes. The paper finds that the intervention’s effectiveness has largely been undermined by various challenges and demonstrates that it remains unclear whether BBBEE’s observed achievements have translated into targeted impact of meaningful participation of all black people in the economy. Considering the scale of BBBEE and its implementation for over 16 years, the paper concludes that the limited evidence on how it is performing against its key objectives is both a design and implementation shortcoming.

One of the main characteristics of constitutional transformation in South Africa is what Etienne Mureinik called the shift towards a culture of justification, in which 'every exercise of power is expected to be justified'. He argued that within such a culture, constitutional rights 'are standards of justification - standards against which to measure the justification of the decisions challenged under them'.

The potential of capstone learning experiences in addressing perceived shortcomings in LLB training in South Africa

The doctrine of legitimate expectation was authoritatively accepted as part of South African administrative law in the landmark case of Administrator, Transvaal v Traub in 1989. In that case Chief Justice Corbett extended the scope of application of the rules of natural justice, specifically the audi principle, beyond the traditional “liberty, property and existing rights” formula to cases where something less than an existing right, a legitimate expectation, required a fair procedure to be followed. This acceptance followed the trend in other Commonwealth jurisdictions to extend the application of the rules of natural justice and hence afford greater procedural protection to individuals affected by administrative decisions. Although Chief Justice Corbett expressly stated that the content of the expectation may be substantive or procedural in nature, the protection of that expectation, if found to be legitimate, was exclusively procedural. Since the Traub decision, the doctrine of legitimate expectation has been deeply entrenched in South African administrative law to extend the scope of procedural rights afforded individuals affected by administrative action. It is now an established principle of South African administrative law that a person, who has a legitimate expectation, flowing from an express promise by an administrator or a regular administrative practice, has a right to be heard before administrative action affecting that expectation is taken. The doctrine, has however, by and large, remained one that provides procedural protection in South Africa. In a number of recent decisions by South African courts, ranging from the High Court to the Supreme Court of Appeal and the Constitutional Court, there have been increasing calls for the application of legitimate expectations beyond procedural claims.

This paper explores emerging contemporary trends in the development of South Africa’s public procurement law. Using a doctrinal legal analysis, it identifies two main trends in such development post-democratization, one structural and one substantive. It argues that these two trends pose particular challenges to the public procurement system. At the structural level, the paper shows that while law has played a key role in the development of South Africa’s public procurement system right from the outset, it constituted a light touch regulatory regime prior to the constitutional transition in 1994. The changes that the new constitutional dispensation brought about necessitated an adjustment in the regulation of public procurement as well. The development of public procurement law to effect such adjustment has, however, created a fragmented, uncoordinated and overly burdensome regulatory regime. At the substantive level, the paper argues that law has not managed to effectively create a framework for the use of public procurement for social policy purposes with specific reference to the pursuit of equality. Based on these findings, the paper argues that legal reform is urgently needed in order to avoid law undermining the public procurement function in South Africa.