Legality review as a mechanism for South African municipalities to curb corruption in their award of contracts for goods or services

Abstract

South Africa is a State Party to international and African regional instruments dedicated to combatting corruption. These instruments oblige South Africa implement legal and policy measures to address corruption in public procurement. These instruments also call on governments to strengthen the role of the judiciary in fighting corruption by guaranteeing their independence. In line with these international commitments, the Constitution of the Republic of South Africa, 1996, various pieces of legislation and policy are committed to promoting good fiscal management in public procurement. In addition, the Constitution guarantees the independence of the courts and puts them in an important position to ensure that constitutional and legislative principles underpinning public procurement are met. The courts execute this role by interpreting, enforcing, and developing procurement laws. They ensure compliance with the rule of law. In South Africa, corruption in the award of contracts for goods and services threatens to derail the capacity of municipalities to advance their broad developmental role. Recently, state officials and organs of state that appear to be committed to self-correcting corruption in the award of contracts for goods and services have frequently gone to courts to help them undo such illegal contracts. In three cases (Khumalo v Member of the Executive Council for Education: KwaZulu Natal 2014 (3) BCLR (CC); State Information Technology Agency Soc Ltd v Gijima Holdings (Pty) 2018 (2) BCLR 240 (CC); and Buffalo City Metropolitan Municipality v ASLA Construction (Pty) Ltd 2019 (b) BCLR 661 (CC), the Constitutional Court laid down guidelines which organs of state must follow if they wish to use state (legality) self-review to review and set aside unlawful contracts. The principles laid down by the Court in these cases has been applied by the Supreme Court of Appeal and the High Court in procurement cases. This dissertation investigated how the legality review standard developed by courts can be used by municipalities to curb corruption in the award of contracts for goods and services. Based on a review of relevant case-law, this dissertation makes recommendations on important principles that municipalities must consider when they wish to launch a self-review application to set aside an unlawful contract for the provision of goods and services that was tainted by corruption.