Constitutional Court: Public Procurement Act Invalid, Lacked Public Participation

• The Constitutional Court declared the Public Procurement Act 28 of 2024 unconstitutional and invalid on September 17, 2026.
• The invalidation was due to a failure to meet constitutional requirements for public involvement in the legislative process.
• Sections 59, 72, and 118 of the Constitution ZA mandate public participation in law-making by national and provincial legislatures.
• The Legislative Sector Public Participation Framework outlines detailed requirements for inclusive public consultation, including multi-language summaries and extensive lead times.
• Challenges to effective public participation include linguistic diversity, synthesizing disparate views, and resource disparities among civil society groups.

Lawyers and compliance officers must note the Constitutional Court's emphasis on robust public participation as a constitutional requirement for valid legislation.

On September 17, 2026, the Constitutional Court delivered a highly anticipated judgment concerning the Public Procurement Act 28 of 2024. In a decision that met the hopes of some and the concerns of the government, the Act was declared unconstitutional and subsequently invalid.

This ruling marks a significant moment in South African jurisprudence, particularly regarding the legislative process. The declaration of invalidity stems from a failure to adequately adhere to constitutional requirements for public involvement during the Act's formulation.

The foundation for public participation in law-making is firmly established in the Constitution of the Republic itself. Specifically, sections 59, 72, and 118 explicitly obligate the National Assembly, the National Council of Provinces (NCOP), and provincial legislatures to facilitate public involvement in their legislative and other processes. This constitutional imperative means that when new laws are proposed, the public must be afforded a genuine opportunity to contribute to their development.

To guide this process, the Legislative Sector Public Participation Framework was developed, outlining what constitutes reasonable public involvement. Key features of this framework include conducting pre-hearing workshops to build stakeholder relationships, implementing effective communication and awareness campaigns, and mobilizing communities to convene consultation meetings. Furthermore, summaries of proposed bills are required to be translated into at least three languages spoken within a particular province, and invitations to public hearings must be dispatched several weeks in advance. Permanent delegates to the NCOP are expected to attend provincial public hearings, and crucially, detailed public comments must accompany the negotiating mandates that inform final deliberations. This comprehensive framework is designed to ensure inclusivity across the entire spectrum of public consultation.

Despite these frameworks, the process of public consultation presents inherent complexities, particularly within South Africa's diverse linguistic and social landscape. Relying on a single language for engagement is insufficient, as communities with varied social and linguistic profiles must feel that public consultation genuinely addresses them without language barriers. Given that bills are primarily drafted in English, the necessary processes for translations and explanations demand considerable lead time to prevent rushing stakeholders.

Another significant challenge lies in synthesizing the often diverse, polarizing, and even irreconcilable views expressed by the public during consultations. Moreover, the technical nature and complexity of some legislative proposals can narrow the range of citizens capable of engaging meaningfully. In such scenarios, access to resources—including technical, legal, and policy specialists—becomes crucial for citizens to inform their viewpoints. This model, however, inadvertently favors better-resourced community and civil society structures, which are more likely to mobilize and inform affected citizens and constituencies in a timely manner, thereby enabling substantive contributions. Consequently, the depth of consultation is not merely a matter of numerical participation but also the quality and substance of the input received. For highly contentious issues, public hearings can sometimes devolve into simple affirmations or rejections without detailed justification.

The Constitutional Court's decision to declare the South Africa Public Procurement Act 28 of 2024 invalid due to insufficient public participation establishes a critical precedent. This ruling unequivocally underscores the constitutional requirement for robust public participation in the legislative process, emphasizing that such involvement is not merely procedural but fundamental to the validity of laws.

Lawyers and compliance officers must note the Constitutional Court's emphasis on robust public participation as a constitutional requirement for valid legislation. This ruling sets a critical precedent for challenging future laws that fail to demonstrate adequate public involvement, potentially impacting their enforceability and requiring closer scrutiny of new regulatory frameworks. The judgment signals a heightened expectation for legislative bodies to ensure comprehensive and inclusive public engagement, potentially leading to what some might term 'law-making paralysis South Africa' if these standards are not met.

Lawyers and compliance officers must note the Constitutional Court's emphasis on robust public participation as a constitutional requirement for valid legislation. This ruling sets a critical precedent for challenging future laws that fail to demonstrate adequate public involvement, potentially impacting their enforceability and requiring closer scrutiny of new regulatory frameworks.

Source: Original reporting via legal news analysis