Back to the Drawing Board: ConCourt Strikes Down the Public Procurement Act

On 17 September 2026, South Africa’s Constitutional Court struck down the Public Procurement Act 28 of 2024 in its entirety, finding that Parliament had failed to meet its constitutional obligations to facilitate public involvement in the law-making process.

The unanimous judgment, written by Acting Justice Lister Gcinikhaya Nuku 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, concerned more than a procedural defect. It addressed whether the public had been given a genuine opportunity to influence legislation intended to reshape procurement across the state.

The Court's answer was clear: receiving public submissions is not the same as meaningfully considering them. Nor can Parliament rely on an earlier consultation process when the legislation changes materially, leaving those affected without a reasonable opportunity to engage with the new proposals.

The result was consequential. Rather than preserve the Act while Parliament corrected the process, the Court declared the entire statute invalid, without suspending the declaration. Parliament remains free to pursue the same objectives through a new, constitutionally compliant legislative process.

The judgment therefore leaves two questions in its wake: what went wrong with the procurement reform, and what must change if the state is to legislate on a matter of such public importance without repeating the same constitutional failure?

South Africa's public procurement system has long operated across multiple legislative frameworks. The Public Finance Management Act, the Preferential Procurement Policy Framework Act and the Municipal Finance Management Act, among other laws and regulations, govern different parts of public purchasing and expenditure.

The Public Procurement Act was designed to bring this fragmented system under a more coherent national framework. It sought to consolidate no fewer than 34 pieces of legislation and their associated regulations, establish a Public Procurement Office within National Treasury, clarify institutional responsibilities and introduce a framework for preferential procurement. It also provided for an independent Public Procurement Tribunal to review certain procurement and bidder-debarment decisions.

The policy case for reform was substantial. A fragmented legal environment can create inconsistent rules, uncertainty for suppliers and difficulties for public institutions trying to comply with overlapping requirements. A more unified framework could improve consistency, strengthen procurement oversight and clarify the rules governing the award of public contracts.

The Act was also connected to constitutional commitments extending beyond administrative efficiency. Sections 195 and 216 of the Constitution address public administration and financial management, while section 217 establishes the core principles governing state procurement. These include fairness, equity, transparency, competitiveness and cost-effectiveness. Section 217 also provides for legislation establishing a framework for preferential procurement policies.

That framework matters because procurement is not merely an internal government function. It determines how public money is spent, which businesses can compete for state contracts, how public institutions acquire goods and services, and how the state implements its responsibilities to communities.

The Court emphasised the breadth of the proposed reform: the legislation would affect hundreds of public institutions, state entities and organs of government, as well as people seeking to contract with the state or relying on public-sector service delivery. The greater the reach of a law, the more important it becomes that the legislative process gives affected people a meaningful opportunity to be heard.

The constitutional challenge did not establish that this reform was unnecessary. It exposed a fundamental problem with how Parliament attempted to enact it.

The Constitutional Court considered two related applications: one brought by the Western Cape government and another by the City of Cape Town. Both challenged the constitutionality of the process through which the Act had been adopted.

The proceedings also involved the amaBhungane Centre for Investigative Journalism, which had participated in the public consultation process, and the trade union Solidarity. The applications raised concerns about the National Assembly's handling of public submissions, the treatment of significant amendments to the Bill and the participation process conducted through the National Council of Provinces and provincial legislatures.

At the heart of the challenge were sections 59(1)(a) and 72(1)(a) of the Constitution. These provisions require the National Assembly and the National Council of Provinces, respectively, to facilitate public involvement in their legislative processes.

The obligation is not satisfied simply because Parliament announces a consultation, receives documents or convenes a hearing. The process must be reasonable in the circumstances and provide people with a genuine opportunity to make their views known.

That distinction was decisive. The challengers did not merely object to the substance of the final Act or argue that Parliament had failed to adopt their preferred policies. They challenged the adequacy of the process itself: whether the public had been afforded a real chance to engage with the legislation that Parliament ultimately passed.

The Court agreed that the constitutional duty had not been fulfilled.

One of the judgment's central findings concerned Chapter 4 of the Bill, which dealt with preferential procurement.

The earlier version of Chapter 4 was comparatively permissive. It gave procuring institutions considerable discretion to develop and implement their own preferential procurement policies. During the legislative process, however, the chapter was materially amended and replaced with a more detailed, prescriptive framework.

The revised provisions addressed several distinct areas, including procurement frameworks, set-asides, prequalification criteria, subcontracting, local production and content, sustainable development, beneficiation and innovation, and contracting conditions. They also introduced mandatory prequalification criteria in specified circumstances, potentially excluding categories of bidders from participating in particular procurement processes.

These were not minor drafting adjustments. They changed the structure and potential practical effects of the proposed law.

The judgment assessed materiality by considering both the extent of the changes from the earlier provisions and the seriousness of their possible consequences for members of the public and the institutions required to apply them. Parliament's own counsel conceded during the hearing that the amendments to Chapter 4 were material.

That concession mattered because public participation must relate to the legislation that is actually being developed. An earlier opportunity to comment cannot automatically legitimise a substantially different proposal introduced later in the process.

If a Bill changes in ways that affect who can qualify for public contracts, how preferential procurement policies must operate, or how much discretion procurement institutions retain, stakeholders may need a fresh opportunity to understand and address those changes.

The constitutional problem was therefore not simply that Parliament amended the Bill. Legislatures must be able to amend legislation. The problem was that the scale and significance of the amendments were not matched by a renewed opportunity for meaningful public participation.

The Court found that the failure to reopen participation on the materially amended Chapter 4 could itself have been sufficient to establish a constitutional defect.

The second major issue concerned Parliament's treatment of the submissions it had already received.

According to the judgment and reporting on the decision, more than 2,000 public comments were submitted, but only about 20% were considered in the process described before the Court. The committee's limited consideration of submissions was attributed to time constraints, even though new provisions had been introduced by National Treasury.

The distinction between receiving and considering submissions was central to the Court's reasoning.

Parliament is not required to accept every recommendation, satisfy every stakeholder or produce a law that reflects all the views submitted during consultation. Public participation does not give each participant a veto over legislation.

But Parliament must give public input due consideration. It must have an adequate understanding of the submissions before it and conduct the legislative process in a way that allows those submissions a genuine chance to influence the outcome.

The Court rejected the suggestion that the applicants' complaint was simply that the Act did not accommodate stakeholder demands. Their case was that a significant number of submissions had not been properly considered at all, depriving those who made them of a meaningful opportunity to influence the legislative process.

This distinction has practical importance for legislative committees. Public submissions can identify consequences that may not be apparent from the text of a Bill alone: compliance costs for smaller suppliers, the effect of eligibility rules on particular businesses, implementation difficulties for municipalities, or unintended consequences of a new regulatory framework.

The constitutional obligation does not require Parliament to agree with these concerns. It does require a process in which the concerns can be heard and considered rather than rendered irrelevant by administrative pressure.

National Treasury could assist by summarising or relaying submissions. But outsourcing that work did not transfer Parliament's constitutional responsibility. Parliament still had to satisfy itself that it had been adequately apprised of the public input so that proper consideration could be given to it.

The lesson is not that every submission must receive an individual response in a particular format. It is that a consultation process becomes constitutionally vulnerable when a substantial portion of the public's input has no meaningful prospect of being considered.

The Court also examined the time available to stakeholders to engage with the Bill, particularly after the major changes to Chapter 4.

The concerns included approximately three and a half weeks for written comments, a short interval between the close of written submissions and the first public hearings, and the limited time available to consider and present views on the revised provisions.

On 17 November 2023, stakeholders reportedly received the new Chapter 4 only four hours before their meeting with the National Assembly's Standing Committee on Finance. Each stakeholder had two minutes to present concerns at that meeting.

The Court considered those timeframes against the importance of the legislation and the extent of the amendments. Four hours to review a substantially revised chapter, followed by two minutes to present concerns, did not provide a reasonable opportunity for meaningful engagement.

The problem was cumulative. The short timeframes, the failure to reopen participation on material amendments and the inadequate consideration of submissions reinforced one another. The Court assessed the process as a whole rather than treating each procedural defect in isolation.

The judgment also addressed the apparent pressure to complete the legislative process before the 2024 national elections. While the Court did not present this as an established, independent motive for every decision made during the process, it observed that the record suggested the desire to pass the Bill before the election may have contributed to the haste.

The constitutional principle was unambiguous: a legislative timetable must yield to the rights guaranteed by the Constitution. The wish to finish a Bill before the end of a parliamentary term does not, on its own, create an objective urgency that justifies curtailing public participation.

This is a significant message for governments and legislatures. Administrative deadlines, election calendars and political priorities may influence when lawmakers want a statute enacted. They cannot determine how much constitutional participation the public is entitled to receive.

The Court's remedy was broader than removing the provisions most directly affected by the inadequate consultation.

Under section 172(1)(a) of the Constitution, a court deciding a constitutional matter must declare law or conduct inconsistent with the Constitution invalid to the extent of its inconsistency. The Court considered whether the defect could be addressed by invalidating only part of the Act.

It concluded that it could not.

Chapter 4 was central to the Act's operation. Even if the participation failure had been confined to that chapter, severing it would have created a gap in the legislation's intended regulatory framework. More fundamentally, the failures identified in the proceedings affected the process through which the Act as a whole was adopted.

The Court therefore declared the entire Public Procurement Act 28 of 2024 invalid.

The order was not suspended.

That decision reflected the Act's legal status at the time. The judgment recorded that the Act had not yet been brought into operation and that existing legislation continued to govern public procurement. Invalidating the new Act would therefore not leave a regulatory vacuum or disrupt the existing procurement institutions.

The Court did not order Parliament to restart the legislative process at a specified stage. It explained that determining the precise point at which the process had ceased to be constitutionally compliant would be difficult, and that directing Parliament's legislative affairs was inappropriate in the circumstances.

Instead, the Court left the next move to Parliament and the executive. They may introduce the Act again or pursue similar legislation, provided the process complies with the Constitution.

The legal consequence is therefore specific: the 2024 Act is invalid. The judgment does not permanently prohibit procurement reform, nor does it declare that every policy choice in the Act was unlawful on its merits.

The judgment has implications beyond the immediate fate of one statute.

For government institutions, it reinforces the need to plan public consultation as part of the legislative process rather than as a preliminary administrative step. When material amendments are made, lawmakers must consider whether the public needs a further opportunity to engage.

For businesses seeking public contracts, the decision highlights the importance of following legislative developments, especially where proposed rules could change qualification criteria, subcontracting arrangements, local-content obligations or preferential procurement policies. The invalidation of the Act does not itself settle the future content of those rules; it means any renewed legislation must pass through a constitutionally compliant process.

For smaller suppliers and groups affected by procurement policy, the ruling reinforces the principle that access to public consultation must be meaningful. A right to submit views offers little protection if the time available is inadequate or if the process does not give those views a real chance to be considered.

For Parliament and provincial legislatures, the judgment makes clear that consultation cannot be evaluated solely by counting meetings, notices or submissions. Its quality matters: whether the public had sufficient information, whether the process allowed reasonable engagement with significant amendments, and whether public input was properly considered.

These implications should not be mistaken for a judicial endorsement or rejection of any particular procurement policy. The Court's ruling concerned the constitutionality of the law-making process. It did not determine that centralised procurement is inherently unlawful, that preferential procurement is impermissible, or that every provision in the Act would fail a substantive constitutional challenge.

The distinction matters. A country may have compelling reasons to simplify procurement rules and strengthen oversight. Those objectives must still be pursued through procedures that respect the Constitution.

The broader constitutional principle: participation must be real

The judgment sits within South Africa's wider constitutional commitment to participatory democracy.

Public involvement is not a substitute for representative government. Elected lawmakers retain responsibility for making decisions, weighing competing interests and passing legislation. But their authority is exercised within a constitutional system that requires them to facilitate reasonable public participation.

That obligation is particularly important when legislation has far-reaching consequences. Procurement rules influence the use of public funds, access to commercial opportunities, institutional accountability and the delivery of public services. Those affected must have a reasonable opportunity to understand proposed changes and contribute to the legislative process.

The Public Procurement Act case draws a line between procedural activity and constitutional substance. A hearing may take place, thousands of comments may be received, and a committee may still fail to meet its constitutional duty if material amendments are not opened to further participation or significant public input is not properly considered.

The Court's message is not that legislation must wait indefinitely until every interested party is satisfied. It is that Parliament cannot treat public participation as a box to tick before reaching an outcome already constrained by its timetable.

That is a demanding standard, but it is not an unreasonable one. It protects the legitimacy of legislation by ensuring that the process through which laws are made remains open to the people who will live under them.

The Court did not prescribe a detailed legislative roadmap. It left Parliament and the executive free to decide whether and how to proceed with the same Act or a similar Bill, subject to compliance with the Constitution.

A renewed process would need to confront the weaknesses identified in the judgment. In practical terms, that means allowing adequate time for public submissions, ensuring that material amendments receive appropriate public scrutiny, and enabling parliamentary committees to consider the submissions rather than allowing time constraints to determine which voices are heard.

The judgment also leaves policy questions to the political and legislative process. How should national consistency be balanced against the needs of provincial and municipal institutions? How should preferential procurement be designed? What criteria should govern access to state contracts, and what safeguards should accompany the powers of procurement institutions?

The Court did not answer those questions. It established a constitutional condition for answering them: the law must be developed through a process that reasonably facilitates public involvement.

For businesses and institutions, the immediate point is that the invalidated 2024 Act cannot be treated as the operative replacement framework. Existing procurement legislation remains relevant unless and until new legislation is validly enacted and brought into operation.

Conclusion: Parliament can begin again—but not in the same way

The Constitutional Court's decision is a landmark reminder that the constitutional validity of legislation depends not only on what Parliament enacts, but also on how it gets there.

The Public Procurement Act sought to consolidate a fragmented system and establish a more unified framework for state purchasing. Those objectives remain available to lawmakers. But the importance of the reform made meaningful public participation more not less necessary.

The decisive failures were interconnected: a materially revised procurement framework was not subjected to a renewed public participation process; significant public submissions were not properly considered; and the time allowed for stakeholders to engage with the amendments was inadequate.

The Court invalidated the Act in its entirety and declined to suspend that declaration because the new framework had not yet come into operation and existing laws continued to govern procurement.

Parliament is free to return to the task. Its next attempt must recognise that public participation is not a delay to be managed around the legislative timetable. It is a constitutional obligation integral to making the law.

For South Africa's procurement reform, the drawing board is open again. The constitutional standard is not.