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Refereed articles

The use of e-procurement in South African public procurement law: challenges and prospects, pg. 39 - 47

The debate on the use of electronic methods to create a more efficient public procurement system has featured prominently in the international public procurement arena. To date many countries have implemented e-procurement procedures and have promulgated legislation in order to legally regulate these methods. In South Africa, however, the State has been slow to respond to this global trend of legal regulation of e-procurement. Public procurement in South Africa is regulated by section 217 of the Constitution which requires that when the government contracts for goods and services, it should do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective. Legislation which directly regulates public procurement in South Africa makes no express provision for the promotion of e-procurement. The Electronic Communications and Transactions Act 25 of 2002 although not directly regulating public procurement, appears to promote the use of e-procurement for commercial purposes. It therefore appears that there is in principle no impediment to the implementation of e-procurement procedures in South Africa, provided that the principles in section 217 of the Constitution are complied with. It has been noted that the use of e-procurement has immense potential to decrease costs, increase transparency and limit corruption in competitive bidding processes. However, along with its advantages, the use of e-procurement may have a number of drawbacks. Little research has been conducted in this field, and as such this article seeks to add to the existing vacuum which exists. In doing so, this article will, by way of a legal analysis of the relevant legislation, determine what e-procurement entails, whether the current South African public procurement legal framework provides room for the regulation of e-procurement, how South Africa can benefit from e-procurement and the extent to which the principles in section 217 of the Constitution may be affected.

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