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KwaZulu-Natal - The Department of Transport has defended its Vukuzakhe policy, saying that it addresses the economic imbalances brought about by apartheid and promotes the achievement of economic equality in the road construction industry.
The policy is being challenged by the SA Federation of Engineering Contractors, which has taken the department to the Pietermaritzburg High Court to stop it from setting aside work for specific tenderers to the exclusion of other competent contractors.
The matter was supposed to be argued yesterday but was adjourned to May 10 because the minister of finance needs to be joined in the application.
Vukuzakhe is a programme that aims to develop emerging contractors. It focuses on wealth and job creation in communities that have been most disadvantaged historically.
The thrust of the federation’s case is that the policy “envisages an exclusionary basis upon which general members of the public are limited in their ability to garner themselves contracts with the department for the performance of construction and/ or allied work in road maintenance, construction and related services”.
According to the department’s heads of argument, the issue to be determined is whether the policy “is indeed repugnant to the constitution”.
The department submitted that the road construction industry had been, “prior to 1999 and subsequently until the policy, grossly unrepresentative of race and gender due to past discrimination”.
“There is no dispute that the road construction industry is dominated by white contractors and that it is through the Vukuzakhe programme that, in this province, there has been the advent of emerging black contractors in the road construction industry.
“Because of the inequalities created by the injustices of the past, something positive had to be done, hence the adoption of the policy by the department.”
If the court were to rule in the federation’s favour, it was submitted, then unfortunately there would be “a regression of any constitutional achievements of equality via transformation by state organs”.
The existing legislation, the Preferential Procurement Policy Framework Act, was insufficient to address the obligations set out in the constitution to achieve economic equality.
“It does not allow for the development of skills which black persons in general, and black contractors in part, would have lacked and do lack because of the disadvantage to which they were exposed in the apartheid era.”
Marumo Moerane SC, for the department, said that its argument was that the act did not go far enough in addressing the imbalances of the past.
Since the minister of finance was responsible for the act, it was felt that he needed to be joined in the application.
In court papers, the executive director of the engineering federation, Neville Gurry, said that the tender process should be credible and allow open competition among the public.
He said that in 2008 the Vukuzakhe programme policy document had been updated. The department had created a register comprising emerging contractors in several categories. In one of these categories there had been 50 Vukuzakhe contractors, and this figure had remained static.
“In short, it has become an exclusive club,” said Gurry.
In terms of tenders, preference was applied to all Vukuzakhe tenders.
Over the years, the federation of contractors had registered its concerns with the department “regarding the unfair and unlawful nature of the programme”.
The complaints had been instigated by the federation’s members as well as other non-member civil engineering contractors in KZN who found themselves outside the pool of Vukuzakhe-registered entities.
Gurry said he understood that the National Treasury itself had told the department that the exclusion of non-Vukuzakhe-registered entities from tenders was not lawful. - The Mercury