The Use of Exclusions for Corruption in Developing Country Procurement: The Case of South Africa

Abstract

The South African public procurement system is regulated by a constitutional framework and legislation applicable to all tiers of government. An interesting feature of the system is that suppliers may be excluded from government contracts for breaches of procurement or anti-corruption legislation. This article critically examines corruption-related exclusions. It is suggested that there is likely to be a number of problems with the implementation of these exclusions. First, it is not clear how effective they will be in meeting the government's anti-corruption policy. Secondly, in respect of the exclusions imposed through a non-judicial process, there are no guidelines to ensure procedural safeguards, and furthermore, these exclusions may lead to delays and costs in the procurement process – especially when it comes to deciding whether persons or firms related to an excluded firm ought to be excluded. Thirdly, there are issues regarding proportionality of the measures. Fourthly, it may be difficult to maintain a consistent approach in deciding whether to exclude under the non-judicial exclusions. In view of these, for the regime to be effective, the South African government must be prepared to bear the attendant financial and procedural burden.