Enhancing public energy procurement through constitutionalism: a comparative study of South Africa and Zimbabwe

Abstract

This paper compares the manner in which the Constitution and administrative law influences energy procurement in South Africa and Zimbabwe. South African courts have been called upon to test the validity of government procurement on several occasions, and most recently the Western Cape High Court invalidated the South African-Russian nuclear procurement agreement based on non-compliance with administrative law tenets and the Constitution. On the other hand, we have not witnessed judicial intervention in Zimbabwe pertaining to the Gwanda solar energy procurement project. This dissertation explored how the South African experience may enhance future developments in respect of adherence to constitutional and administrative law in government procurement projects in Zimbabwe, considering the challenges encountered on the Gwanda solar energy project. The research has identified the different challenges affecting procurement in Zimbabwe and provides recommendations to improve public energy procurement based on the South African experience. Overall, the constitutional entrenchment of government procurement has the potential to ensure that public energy procurement is conducted in a manner that is fair, equitable, transparent, competitive and cost-effective. If supported by the appropriate legislative framework and independent state institutions.