Constitutional Court voids Public Procurement Act, Godongwana to engage Parliament on way forward

Finance Minister Enoch Godongwana has noted and respects the Constitutional Court judgment that declared the Public Procurement Act, 2024 was adopted in a manner inconsistent with the Constitution, and is consequently invalid.

The ruling was handed down in two matters, the Premier of the Western Cape Government against the Speaker of the National Assembly, the Chairperson of the National Council of Provinces and the Minister of Finance, Case No: CCT103/25/2024, and the City of Cape Town against the Speaker of the National Assembly and Others, Case No: CCT: 144/25.

In a statement, the Minister said he respects the judgment of the highest court in the Republic. He said public procurement remains a key enabler of economic growth and development, but that this cannot be realised in a weak public procurement ecosystem that is not governed by a legislative framework geared to achieve what section 217 of the Constitution requires.

That section, the Minister said, requires a procurement system which is fair, equitable, transparent, competitive and cost effective, and which provides for the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination.

The Minister’s own account of the problem

The statement sets out the Minister’s position that procurement in its current state will not realise these constitutional principles. He lists the challenges as corrupt activities, fraud, financial loss, poor planning, inferior deliverables, weak institutional capacity, irregular expenditure and a failure to sufficiently stimulate local industries.

He said this is evident from the various reports, media exposés and commissions of inquiry that have taken place or are underway.

Public procurement remains a key enabler to economic growth and development.

What the court said, in the Minister’s words

The statement quotes paragraph 119 of the judgment, in which the court held that it should avoid directing Parliament’s affairs unless the Constitution demands it.

The quoted passage reads: “The Court should avoid directing Parliament’s affairs unless the Constitution demands it. In my view, it is inappropriate for this Court, in the present circumstances, to direct the process that Parliament must follow to remedy the defects. Should the respondents wish to proceed with enacting Act or a similar Bill, they are, of course, free to do so, provided that they comply with a constitutionally compliant public participation process. The appropriate order, in my view, is simply to declare the Act invalid, without suspending the declaration or giving directions on how Parliament is to remedy the defects.”

The order the court describes in that passage is the one the Minister has now confirmed he is working from. The Act is invalid, the declaration is not suspended, and no directions were given on how Parliament is to remedy the defects.

The next step

Godongwana said that, after studying the implications of the judgment, he will engage the Speaker of the National Assembly and the Chairperson of the National Council of Provinces on the way forward.

He said it remains his commitment, with the support of the National Treasury, to advance the requisite public procurement legislative reforms as guided by the Constitutional Court judgment.

The statement does not set out a timetable for those engagements, and it does not say when a replacement Bill might be introduced. What it does establish is who is answerable for the next move, being the Minister of Finance, the National Treasury, and the two presiding officers he has named.

Source: South African Government (www.gov.za), Minister Enoch Godogwana notes and respects judgement of Constitutional Court i, https://www.gov.za/news/media-statements/minister-enoch-godogwana-notes-and-respects-judgement-constitutional-court-i