The Constitutional Court has declared the Public Procurement Act, 2024 unconstitutional and invalid, upholding legal challenges brought by the Western Cape Government and the City of Cape Town.
The Court found that the National Assembly failed to fulfil its constitutional obligation to facilitate reasonable public participation after material changes were introduced to the legislation during the parliamentary process. The ruling marks a significant victory for the applicants, who had argued that sweeping national legislation was rushed through Parliament without affording the public and affected spheres of government a fair opportunity to be heard.
The Act, signed into law in 2024 but not yet brought into full operation, sought to overhaul South Africa’s public procurement framework by centralising procurement oversight under a national Public Procurement Office and imposing uniform preferential procurement prescripts across all organs of state. Critics warned it would undermine the constitutional autonomy of provincial and municipal governments and introduce onerous red tape that would slow service delivery.
Background to the challenge
The Western Cape Government launched its Constitutional Court application in May 2025, arguing that the National Assembly did not facilitate adequate public participation on material amendments to the Bill – as required by Section 59(1)(a) of the Constitution – particularly after changes were introduced by the National Council of Provinces (NCOP) to the chapter on preferential procurement. The City of Cape Town was granted direct access to the Constitutional Court in July 2025 and the consolidated applications – which also included amaBhungane Centre for Investigative Journalism as a party – were heard on 18 and 19 May. Judgment was reserved.
Before approaching the courts, both the Western Cape Government and the City of Cape Town said they had repeatedly written to the President and the Minister of Finance, Enoch Godongwana, to raise constitutional concerns through intergovernmental channels. Those warnings, they said, went unheeded.
Provincial government response
Western Cape Minister of Finance Deidré Baartman, who attended the proceedings at the Constitutional Court, welcomed the judgment.
“We welcome today’s judgment as a triumph for constitutional democracy. Public participation should not be treated as a mere box-ticking exercise but as a fundamental democratic right. By striking down this flawed Act, the Constitutional Court has sent a message that due process must be respected,” Minister Baartman said.
Premier Alan Winde echoed the sentiment, describing the ruling as an important safeguard of constitutional principles.
“The ruling represents an important safeguard of the constitutional principles of meaningful public participation and cooperative governance. We urge national government to implement the court’s ruling in full and to regard this judgment as pertinent in other areas of governance,” Premier Winde said.
The Western Cape Government said it would now review the judgment in full to understand its immediate operational impact on provincial procurement and any specific directives issued by the Court.
City of Cape Town response
Cape Town Mayor Geordin Hill-Lewis welcomed the ruling, noting that the Court awarded costs to the City, to be paid by the President, the Finance Minister and the Speaker of the National Assembly as opposing respondents.
“We are glad that the Constitutional Court agreed with our case that the Act was passed unlawfully, with insufficient public participation and parliamentary consideration. Before we took the step of approaching the Court, we wrote to the Finance Minister and President several times raising fairly obvious constitutional concerns relating to this legislation. None of those warnings were heeded. But they have now been confirmed by the Court, also with costs awarded,” Mayor Hill-Lewis said.
He emphasised that the ruling protects the rights of local and provincial government to pursue their own procurement policies to achieve better public outcomes, adding that the Act would have slowed local service delivery and infrastructure investment.
“Municipalities must be able to act swiftly to resolve urgent water, sanitation, electrical, waste, and environmental issues. That’s why we’re relieved at the striking down of this Act, which avoids a massive new red tape burden on Cape Town’s critical basic infrastructure investments — amounting to an SA-record R12.2bn in the last year, with 75% directly benefiting lower-income households,” Mayor Hill-Lewis said.
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Concerns about the Act’s provisions
Beyond the public participation deficiencies, the applicants raised wide-ranging substantive concerns about the Act’s provisions:
Centralisation of procurement: The Act would have required municipalities to integrate with a national supplier database rather than maintaining their own accredited supplier records. All national procurement would have been routed through a Public Procurement Office (PPO), creating a risk of nationwide disruptions if the central system went offline.
Removal of deviation powers: Municipalities would have lost the power to lawfully deviate from procurement regulations for urgent service delivery without centralised approval via the PPO.
Preferential procurement overreach: The Act imposed an excessive number of procurement policy prescripts – including preferential procurement policy – on all organs of state and would have empowered the Minister of Finance to prescribe such requirements in regulations. The applicants argued this would have usurped the constitutionally protected powers of provincial and municipal governments to design and implement procurement systems tailored to their unique circumstances, as contemplated by Section 217(1) of the Constitution.
Mandatory sub-contracting and set-asides: The inclusion of mandatory sub-contracting and set-aside provisions would have interfered with the autonomy of provincial and local governments to determine their own systems and policies. The Western Cape Government noted that 57.15% of its total procurement spend already goes toward black-owned businesses without set-asides or mandatory sub-contracting, which it said demonstrated that rigid tick-box exercises are not necessary to achieve transformation.
Regulatory burden: The City identified approximately 36 elements of the Act that would have required new regulations, exposing local government to hidden cost implications and red tape burdens. The Act also attempted to position the National Finance Minister as a regulatory authority over local government, which the applicants said was inconsistent with the Constitution, the Municipal Systems Act and the Municipal Finance Management Act.
Parliamentary process concerns
The City’s application further pointed out that the adoption of the Bill was unlawful due to problems with parliamentary processes, including that seven of nine provinces did not have lawful final mandates to vote on the Bill in the NCOP. During the May hearing, counsel for the Western Cape Government argued that by Treasury’s own admission, 67.4% of written public comments received on the Bill were not properly considered.
What happens next
The Public Procurement Act, 2024 had been signed by the President but had not yet been brought into full operation. With the Constitutional Court having declared it unconstitutional and invalid, the legislation falls away in its entirety, unless the Court’s order includes any suspensive or remedial provisions directing Parliament to re-run the public participation process.
The Western Cape Government said it would study the full judgment to assess any operational impact on provincial procurement. The ruling is expected to have far-reaching implications for how Parliament conducts public participation in future legislative processes, particularly when material amendments are introduced during the passage of a Bill.
