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SIGN SAKELIGA’S PETITION TO PRIVATISE POWER GENERATION
Dear Minister Gordhan, Minister Mboweni and Mr Hadebe
In the recent words of Minister Gordhan: the electricity crisis in South Africa will require a team effort to solve. As concerned members of the business community and public we write to you because certain race-related tender requirements at Eskom currently make such a team effort impossible.
We have either directly experienced or have recently noted that Eskom increasingly stipulates race-based pre-qualification criteria in its tender documents. Today, businesses who are not 51% black-owned are frequently pre-emptively disqualified from consideration for award of a tender. This is not fair to those of us who have personally suffered such a fate. This is not fair to the multitude of consumers who now have less secure access to affordable electricity.
By disqualifying contractors based on race, Eskom precludes – at a critical time for the economy and society – electricity consumers in South Africa from the full range of cost-effective expertise available on the market.
In light of the gravity of the electricity crisis, we would like to request that you, as the three executives dealing respectively with public enterprises, procurement and electricity provision, consider suspending race-based pre-qualification criteria for contractors at Eskom. Just the importance of the team effort you evidently support is already sufficient grounds for doing so.
However, there is also the matter of a pending court case between business organisation Sakeliga and the Minister of Finance. The case revolves around the legality of the 2017 procurement regulations, in terms of which Eskom sets its race-based pre-qualification criteria. Sakeliga argues that these regulations of 2017 are ultra vires and unconstitutional, because it allows SOEs to set pre-qualification criteria beyond the criteria for tender validity determined by the Preferential Procurement Policy Framework Act. The Act does not allow for the BBBEE status of a tender to become a pre-qualification criterion, in the way that Eskom now frequently stipulates that a contractor or sub-contractor should be 51% black-owned or be rejected out of hand.
We ask you to consider Sakeliga’s argument and their upcoming appeal and suspend, pending the outcome of the court case, all race-based pre-qualification criteria for contractors at Eskom. Should Eskom wish to continue taking race into account when scoring a tender, then let that be so. But in the spirit of the team effort required to restore secure, affordable access to electricity in this county, let us at least suspend – even if it is only for now – the use of race to pre-emptively disqualify those who would like to help.