The Public/Private Divide in South African Construction Procurement Law: The Suitability of the Private Law of Contract
The debate regarding the so-called public/private divide in law is a long standing one. Some authors argue that the division is an accurate representation of the law and others are of the view that it should not exist based on various arguments. This article is once again an attempt at determining the use of this divide. It looks at the role of the private law in public procurement in South Africa specifically in order to determine its usefulness and therefore its value in public procurement. The argument is made that the private law unnecessarily complicates and creates many obstacles to the fulfilment of constitutional rights in the field of public procurement law. In a subsequent article, a new form of public procurement law is recommended based on the American relational contract theory. A new relational procurement law is thus suggested in an attempt to remove the obstacles created by the private law of contract and to ensure better compliance with constitutional requirements in public procurement law.
Keywords: public procurement; relational contract theory