The pre-qualifying criteria included tenderers having a stipulated minimum broad-based black economic empowerment status level.
It held that the preliminary disqualification was impermissible as it was not consonant with the approach envisaged by the constitution.
In the majority judgment by justice Mbuyiseli Madlanga, with four other judges concurring, he said section 2 of the Procurement Act provided that a preferential procurement policy must be determined by each individual organ of state.
The question was: does a minister have the power to make regulations of this nature in the first place?
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