n South African Law Journal - The quest for clarity : an examination of the law governing public contracts

Volume 128, Issue 1
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



The term 'public contract' is used to describe a contract to which one of the parties is the administration, an organ or functionary of the executive branch of state, and the other is a private individual. Contracts of this type are frequently concluded and they serve a wide range of purposes, including the procurement of goods and services required to maintain the functioning of the state, the provision of public services on the state's behalf and the implementation and enforcement of government policy. The flexibility that contract allows for, as well as the range of legitimate governmental interests that can be pursued through its use, make it a valuable tool in the hands of the administration.

When the government utilises this tool and concludes public contracts, there is almost universal acknowledgement that these contracts cannot be fully equated with those that involve only private parties. There are various considerations underlying this conclusion, the most important of which is the recognition of the unique nature of the government as a contracting party. It is unlike a private contractant in several respects: first, it contracts not to further its own interests, but the public interest generally; secondly, the government is possessed of public powers and functions that it is required to exercise in the public interest; and thirdly, it is usually in a more powerful position vis-à-vis the party with whom it contracts than is ordinarily the case when only private parties contract.

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