according to section 217(2) of the Constitution, read with section 2 of the Act, organs of state must determine a preferential procurement policy.It was further advised in the 3 March 2022 communication that. In this communication of organs of state were informed that the communication of 25 February 2022 was an advisory note in response to the numerous requests for guidance regarding how to deal with the implications of the Constitutional Court judgment. This advice was furnished to curtail the risk of awarding tenders based on regulations that may no longer be valid.įollowing queries from many organs of state, a follow up advisory note was sent to organs of states by the DG: NT on 3 March 2022 (available on NT’s website). no new tenders be advertised (available on NT’s website).tenders advertised on or after 16 February 2022 be held in abeyance and.tenders advertised before 16 February 2022 be finalised in terms of the 2017 Regulations.Organs of state were further advised (not instructed/directed) that while awaiting the outcome of the Constitutional Court’s clarity, that. On 25 February 2022, through a communication by the Director-General of the National Treasury (DG: NT), organs of state were informed of the above legal position requiring clarity from the Constitutional Court. are no longer valid from 16 February 2022, the date of the Constitutional Court judgment.remain valid until 15 February 2023, unless repealed sooner or.This to establish whether the 2017 Regulations. ![]() Confirmation is sought by way of declaration, variation and/or clarification. To address the uncertainty, the Minister decided to bring an application to the Constitutional Court, on an urgent basis, to seek confirmation from the Court that the order of invalidity of the 2017 Regulations has been and continues to be suspended. The minority judgment addresses the issue at footnote 28, where it asserts that “the period of suspension expired on 2 November 2021”. It did not address itself to the specific issue of the status of the SCA’s order of suspension. The majority judgment was silent on the question of remedy. The majority judgment of the Constitutional Court dismissed the appeal against the SCA judgment. ![]() According to section 18(1) of the Superior Courts Act, a SCA judgment and order are suspended when an application for leave to appeal is lodged. The declaration of invalidity was suspended for 12 months. Due to what the SCA held to be the interconnectedness of the regulations, the entirety of the 2017 Regulations was declared invalid on the basis that the content of the 2017 Regulations exceeded what the Minister could permissibly regulate in terms of section 5 of the Act and section 217 of the Constitution. The SCA held that the Minister’s promulgation of regulations 3(b), 4 and 9 of the 2017 Regulations was unlawful. This application was brought by the Minister of Finance (the Minister) against Afribusiness NPC, and concerns the validity of the Preferential Procurement Regulations, 2017 (the 2017 Regulations) made by the Minister on 20 January 2017, in terms of section 5 of the Preferential Procurement Policy Framework Act, 2000 (the Act). On 16 February 2022, the Constitutional Court in Minister of Finance v Afribusiness NPC ZACC 4 handed down judgment in the application for leave to appeal against a judgment and order of the Supreme Court of Appeal (SCA). (3) The amount of any allowance deducted under subsection (2) in any year of assessment shall be deemed to be income received by or accrued to the taxpayer in the following year of assessment.Notice on the Constitutional Court judgment regarding Preferential Procurement Regulations, 2017 - Steps taken by National Treasury (2) If the income of any taxpayer in any year of assessment includes or consists of an amount received by or accrued to them in terms of any contract and the Commissioner is satisfied that such amount will be utilised in whole or in part to finance future expenditure which will be incurred by the taxpayer in the performance of their obligations under such contract, there shall be deducted in the determination of the taxpayer’s taxable income for such year such allowance (not exceeding the said amount) as the Commissioner may determine, in respect of so much of such expenditure as in their opinion relates to the said amount. (b) in respect of the acquisition of any asset in respect of which any deduction will be admissible under the provisions of this Act. ![]() (a) in such manner that such amount will be allowed as a deduction from income in a subsequent year of assessment or Commissioner is satisfied will be incurred after the end of such year.
0 Comments
Leave a Reply. |