In a landmark, unanimous judgment handed down on 17 September the Constitutional Court of South Africa declared the Public Procurement Act 28 of 2024 unconstitutional and invalid in its entirety.

The Apex court unanimously invalidates Act 28 of 2024 after Parliament rushed through sweeping procurement overhaul without meaningful public consultation on major amendments.

The court ruled that Parliament and provincial legislatures failed to fulfil their constitutional obligations under sections 59(1)(a), 72(1)(a), and 118(1)(a) to facilitate a reasonable public participation process prior to enacting the statute.

The invalidated statute was intended to execute a massive overhaul of South Africa’s public sector procurement framework by consolidating no fewer than 34 existing pieces of legislation into a single national regime. First approved by Cabinet on 10 May 2023, and introduced in the National Assembly, the law aimed to eliminate fragmentation, administrative confusion, and corruption risks across hundreds of organs of state, parastatals and municipalities. It sought to establish uniform treasury norms and standards pursuant to sections 216(1) and 217 of the Constitution.

Pres. Cyril Ramaphosa assented to the legislation on 18 July 2024, and it was officially published in the Government Gazette on 23 July 23 2024.

Ambitious reform collapses

However, the ambitious reform collapsed after legal challenges were brought under section 167(4)(e) of the Constitution. Two consolidated applications were brought by the Premier of the Western Cape Government and the City of Cape Town, who were joined by investigative journalism organisation amaBhungane Centre for Investigative Journalism NPC and trade union Solidarity. The respondents included the speaker of the National Assembly, the chairperson of the National Council of Provinces (NCOP), the Minister of Finance, the president, and speakers of several provincial legislatures.

The crux of the constitutional challenge focused on chapter 4 of the act, which governed preferential procurement. While the initial draft of the bill published for public comment contained a permissive, enabling framework that granted procuring institutions discretion, National Treasury introduced a drastically altered, highly prescriptive version on 17 November 2023. The new chapter 4 introduced rigid mandatory prequalification criteria, routine exclusions of certain bidder categories, mandatory set-asides, subcontracting requirements and specific preference targets for groups such as military veterans.

Truncated timeline criticised

The Constitutional Court heavily criticised the truncated timeline under which these major changes were pushed through. Public stakeholders were given a mere four hours to review the new chapter 4 before meeting with the National Assembly’s Standing Committee on Finance, where each presenter was allocated just two minutes to speak. No subsequent public hearings were conducted in the National Assembly regarding these material amendments.

Furthermore, the court highlighted a severe failure by lawmakers to consider public feedback. Out of more than 112 stakeholders who submitted over 2 200 lines of commentary on the bill, National Treasury admitted to reviewing only about 20% of submissions due to self-imposed “time constraints”. The court found no evidence that members of Parliament ever read or discussed the remaining 1 000 plus rows of unaddressed public comments, relying instead on Treasury’s summarised presentations.

Process deficiencies continued in the NCOP and provincial legislatures. Both houses violated Parliament’s own Public Participation Framework by failing to issue invitations five weeks prior to public hearings, offering late notices without justification. Reaffirming principles from precedent cases such as Mogale and Doctors for Life, the court emphasised that public involvement must afford citizens a meaningful opportunity to influence legislative outcomes, rather than serving as a superficial exercise.

Because material amendments to primary legislation trigger a mandatory duty for additional consultation, the court concluded that Parliament’s process was constitutionally defective. Pursuant to section 172(1)(a) of the Constitution, the court ordered that the act be declared invalid in full. Parliament and opposing provincial legislatures were ordered to pay the legal costs of the successful applicants, including the costs of two counsel.

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