In a landmark judgment handed down on 17 September 2026, the Constitutional Court declared the Public Procurement Act 28 of 2024 unconstitutional and invalid in its entirety.
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, the Court held that Parliament had failed to comply with its constitutional obligation to facilitate meaningful public involvement before passing the Act.
The judgment is significant not only because an entire Act was invalidated, but also because it reinforces a fundamental principle of our constitutional democracy: public participation in the legislative process must be meaningful, not merely procedural.
What was the Public Procurement Act intended to do?
The Act was intended to establish a single, consolidated framework for public procurement across all spheres of government. It sought to replace the fragmented system currently governed by various statutes, including the Public Finance Management Act (PFMA), the Preferential Procurement Policy Framework Act (PPPFA) and the Municipal Finance Management Act (MFMA).
Among other things, the Act provided for a central Public Procurement Office within National Treasury, a Public Procurement Tribunal, and a new framework for preferential procurement.
Chapter 4 of the Act contained measures dealing with set-asides, prequalification criteria, subcontracting requirements, local production and content, sustainable development, beneficiation, and innovation.
Although the Act was signed into law in July 2024, it had not yet been brought into operation.
Why was the Act declared unconstitutional?
The Constitutional Court identified three central defects in the legislative process.
Parliament did not consult on material amendments
The version of Chapter 4 initially published for public comment contained a broad and largely enabling framework for preferential procurement.
It was subsequently replaced by a considerably more detailed and prescriptive regime. The revised Chapter 4 introduced mandatory prequalification criteria, set-asides, subcontracting obligations, local content requirements, and additional categories of intended beneficiaries.
The Court found that these were not merely technical changes or refinements. They materially altered the nature and practical effect of the proposed procurement framework.
The amendments raised important constitutional, economic, and practical considerations, particularly regarding competitiveness, fairness, cost-effectiveness, and transformation. Parliament was therefore required to provide the public with a further opportunity to comment on the revised provisions.
The brief opportunity afforded to certain stakeholders to comment on the new Chapter 4 was inadequate. Stakeholders received the revised provisions approximately four hours before the relevant meeting and were given only two minutes each to make submissions.
The Court also rejected the argument that earlier public consultation on the 2017 Preferential Procurement Regulations could substitute for consultation on the new Act. Consultation on earlier regulations made by the executive could not satisfy Parliament’s separate constitutional obligation to facilitate public participation on new primary legislation.
Parliament did not properly consider all public comments
Approximately 112 stakeholders submitted commentary on the Bill.
National Treasury initially responded to only 25 submissions and subsequently considered a further 16. It acknowledged that it had not reviewed all the submissions because of the volume of comments and time constraints.
There was also no evidence that the relevant parliamentary committee or the National Assembly independently considered the comments that National Treasury had not addressed.
The Court emphasised that Parliament is not required to accept every submission or amend proposed legislation in accordance with the public’s views. However, it must genuinely consider the views presented to it.
Public participation becomes meaningless where comments are invited, but a substantial number of them are never properly considered or brought to the attention of lawmakers.
The legislative process was unjustifiably rushed
The Court found that the public participation process was conducted within unreasonably short timeframes.
Parliament and several provincial legislatures departed from the timeframes contemplated in their own public participation guidance without adequately explaining those departures.
The record suggested that the process may have been accelerated to finalise the Bill before the 2024 national elections. The Court held that an electoral or parliamentary timetable could not justify a failure to comply with constitutional obligations.
The timetable had to be adapted to constitutional requirements, rather than constitutional rights being curtailed to meet the timetable.
Why was the entire Act invalidated?
Although the failure to consult on material amendments related particularly to Chapter 4, the other defects affected the legislative process as a whole.
Chapter 4 was also central to the Act’s purpose and operation. Removing it while leaving the remainder of the Act intact would have created a substantial gap in the new procurement framework.
The Court accordingly declared the entire Act unconstitutional and invalid.
The declaration of invalidity was not suspended. Because the Act had not commenced, its immediate invalidation would not disrupt existing procurement processes or create a legislative gap.
The Court also declined to direct Parliament on how to correct the defects. Parliament remains free to introduce the same or similar legislation, provided that it follows a constitutionally compliant public participation process.
What does the judgment mean for the procurement framework?
The Act cannot be brought into operation in its current form.
The existing procurement framework therefore remains in force, including the PFMA, the MFMA, the PPPFA and the regulations made under those statutes.
Importantly, the Court did not find that preferential procurement, transformation measures, set-asides, prequalification criteria or subcontracting requirements are substantively unconstitutional.
The finding relates to the process through which the Act was adopted. The Court referred to the potential consequences of the measures in Chapter 4 to demonstrate that the amendments were material and required further public consultation.
Parliament may therefore reintroduce similar procurement reforms. However, the public must be given sufficient information and time to participate meaningfully, and the submissions received must be properly considered.
Key takeaways
The Act is unconstitutional and invalid in its entirety. The declaration of invalidity took immediate effect and was not suspended. The existing public procurement legislative framework remains in force. The judgment does not declare preferential procurement or transformation measures substantively unconstitutional.
Material amendments to a Bill may require further public participation. Parliament must genuinely consider public submissions, although it is not required to accept them. Consultation on previous regulations cannot substitute for consultation on materially different primary legislation. Future consultation on regulations cannot cure an inadequate legislative process.
Legislative or electoral deadlines cannot justify limiting constitutional public participation.
Parliament may introduce the procurement reforms again, but it must follow a constitutionally compliant process.
Conclusion
The judgment represents a constitutional reset for public procurement reform in South Africa. It does not prevent the adoption of a unified procurement system or legislation intended to advance transformation.
Instead, it confirms that legislation of this importance must be enacted through a process that gives the public a genuine opportunity to understand the proposals, make representations and influence the outcome.
The Constitutional Court’s message is clear: public participation is not a box-ticking exercise. The legitimacy of legislation depends not only on what Parliament enacts, but also on how it enacts it.
For advice on the judgment and its implications for your organisation, contact Riona Kalua.