07/10/2026
Newsflash: The invalidity of the Public Procurement Act
On the 17th of September 2026, the Constitutional Court, in Premier of the Western Cape Government and Another v Speaker of the National Assembly and Others; City of Cape Town and Others v Speaker of the National Assembly and Others [2026] ZACC 37, declared that Parliament failed to comply with its constitutional obligation to facilitate public involvement in accordance with sections 59(1)(a) and 72(1)(a) of the Constitution before passing the Public Procurement Act 28 of 2024 (“the Act”) and thus declared the Act inconsistent with the Constitution and consequently invalid.
The Act, which is not yet operative, sought to give effect to the constitutional mandates governing state procurement and expenditure. It aimed to consolidate multiple existing legislative statutes into a single regime, supplemented by regulations. Chapter 4 of the Act, which governs preferential procurement, drew considerable attention, and aimed to achieve representation of the economically active population by providing those disadvantaged by past unfair discrimination with access into the economy.
The concerns regarding the legislative process of the Public Procurement Bill which eventually became the Act arose in the two houses of the Parliament, the National Assembly (“NA”) and the National Council of Provinces (“NCOP”). The applicants raised several grounds alleging Parliament’s failure in its public participation duties:
1. The NA’s failure to consult material amendments;
2. Incorrect information pertaining to cost implications;
3. Failure to consider all comments received;
4. Insufficient timeframes given by Parliament and Provincial Legislature;
5. The deficiencies in the negotiating and final mandates of the provincial delegations; and
6. Failure to provide necessary information.
The court found that while Parliament retains discretion to determine what form the public participation process will take, it must act reasonably in exercising that discretion. Reasonableness in this context meant that the members of the public and all interested parties are assured of a ‘reasonable opportunity…to know about the issues and to have an adequate say’ where such opportunity can influence the decision taken.
A main point of contention was that material amendments had been made to certain aspects of the Bill which may have required further public participation. More specifically, the court established that in terms of Chapter 4, the modification made which introduced a mandatory prequalification criteria, raised complex constitutional, economic and practical concerns regarding the competitiveness, fairness, cost-effectiveness and the relationship between equity measures and the broader procurement principles outlined in section 217(1) of the Constitution, warranting additional public participation.
Parliament sought to justify the amendment’s impact by noting that the new Chapter 4 was foreshadowed by the 2017 PPPFA Regulations however it was noted that these regulations are not the most recent regulations under the PPPFA and that by the time the Bill was introduced to the NA, the PPPFA Regulations in force were those promulgated in November 2022. The 2017 PPPFA Regulations were also ultimately declared unlawful. The changes to Chapter 4 between the first and second versions of the Bill were material and the NA had an obligation to ensure that the public received further opportunity to comment on the amended version and this obligation could not be satisfied by reference to the 2017 PPPFA Regulations, nor by relying on public participation that might occur in respect of future regulations.
The court also found that the legislative process in the NA failed to properly consider all public views expressed in the written comments and that this failure defeated the primary objective of public participation - to afford the public a meaningful opportunity to participate in the legislative process and strengthen the legitimacy of legislation in the eyes of the people. It was further evident that Parliament and Provincial Legislature gave notice periods shorter than those set out in the Framework and Practical Guide and offered no explanation for these shortcomings.
In its declaration of invalidity, the court found that there was no need to confine it to specific sections as the failures of the public participation process attach both to specific provisions in Chapter 4, which were not the subject of further public participation in the NA and to the Act as a whole, including the failure to consider all the comments and the unreasonable timeframes. The court found it inappropriate to direct the process that Parliament must follow to remedy the defects. Accordingly, procurement will continue in the existing framework at this stage.
Name: Anisa Govender
Position: Director
Department: Maritime and Litigation
Tel: 031 536 7566
Email: [email protected]
Name: Tanatswa Chinyanga
Position: Associate
Department: Maritime and Litigation
Tel: 031 536 7512
Email: [email protected]
The content of this document is intended only to provide a summary and general overview of matters of interest. It is not intended to be comprehensive, nor does it constitute legal or other professional advice. You should seek legal or other professional advice before acting or relying on any content.
