ConCourt voids Public Procurement Act over flawed public participation

The Constitutional Court has declared the Public Procurement Act unconstitutional and invalid, finding that Parliament did not facilitate meaningful public involvement before passing the law that governs how the state spends taxpayers’ money.

The judgment, handed down on Thursday, follows challenges to Public Procurement Act 28 of 2024 brought by the City of Cape Town and the Western Cape Government, among others. The court found that the legislative process fell short of the public participation obligations set out in sections 59, 72 and 118 of the Constitution.

The City had asked the court to strike down the entire Act, arguing that the process leading to its adoption was unlawful on several grounds. Chief among them was the claim that seven of the nine provinces did not hold lawful final mandates when the Bill was voted on in the National Council of Provinces.

What the court was asked to decide

The central question before the court was whether Parliament had met its duty to enable meaningful public involvement before passing the Act, and if it had not, whether the legislation should be invalidated. The City’s original application sought an order declaring that both Parliament and the provincial legislatures had failed in that duty.

The dispute has been building for more than a year. In July 2025, the Constitutional Court granted the City direct access to pursue its challenge. The matter was heard in May this year.

Cape Town Mayor Geordin Hill-Lewis welcomed the ruling, saying the court had agreed with the City’s case that the Act was passed unlawfully due to insufficient public participation and parliamentary consideration.

“We are glad that the Constitutional Court agreed with our case that the Act was passed unlawfully, with insufficient public participation and parliamentary consideration,” Hill-Lewis said.

He said the City had repeatedly raised its constitutional concerns with the Finance Minister and the President before approaching the court, and that costs were awarded.

“None of those warnings were heeded. But they have now been confirmed by the Court, also with costs awarded.”

Why municipalities were watching closely

Beyond the procedural finding, the judgment protects the ability of provincial and local governments to pursue their own approaches to procurement. Hill-Lewis argued that the legislation would have added red tape and made it harder for municipalities to respond quickly to urgent water, sanitation, electricity, waste and environmental problems.

The City had also raised concerns about a national supplier database, the centralisation of procurement through a Public Procurement Office, and restrictions on municipalities’ ability to deviate from standard processes when urgent service delivery needs arose.

Solidarity, which also challenged the legislation, welcomed the judgment and characterised it as a victory against race-based requirements in state procurement.

The Act was intended to establish a single framework governing procurement across organs of state, including provisions dealing with preferential procurement. With the Act now invalid, that framework is no longer in force.

What happens next

The judgment leaves a gap in the rules that govern how the state buys goods and services, and how it awards contracts worth billions of rand each year. Municipalities that were preparing to align their procurement policies with the new Act now face uncertainty over which rules apply.

The court’s order, including the terms on which the invalidity takes effect, will determine how quickly Parliament must return to the drawing board. Until a new law is passed, the previous procurement framework is likely to govern, though the exact position will depend on the wording of the order.

For ordinary South Africans, the practical effect is that the rules governing how their money is spent remain unsettled, and the promised consolidation of procurement law has been pushed back.

Source: IOL, ConCourt strikes down Public Procurement Act after flawed public participation