South Africa’s Constitutional Court unanimously declared the Public Procurement Act 28 of 2024 unconstitutional and invalid on Thursday, September 17, 2026, finding that Parliament failed to conduct a reasonable and meaningful public-participation process before approving the legislation.
The judgment, delivered by Acting Justice Lister Gcinikaya Nuku, focused on the handling of substantial amendments to Chapter 4 of the bill. The court found that the chapter had been materially reworked but that the revised provisions were not subjected to adequate further consultation.
“The court concludes that parliament failed in its constitutional obligation to facilitate reasonable public participation,” Nuku said, according to Business Day.
The ruling brings to an end, in its current form, legislation intended to overhaul South Africa’s public procurement framework. Although the act was signed into law more than two years earlier, it had not yet commenced because the required presidential proclamation had not been issued.
The litigation was brought by applicants including the Premier of the Western Cape, the City of Cape Town, the amaBhungane Centre for Investigative Journalism and the trade union Solidarity. They challenged both the procedure followed in passing the law and aspects of its substance.
Consultation timetable found unreasonable
A central issue was the limited opportunity stakeholders received to examine and respond to amendments made during the legislative process. Participants were given four hours to consider the changes and were then allowed two minutes each to raise their concerns before Parliament’s Standing Committee on Finance.
The Constitutional Court held that this timetable was unreasonable, particularly given the importance and extent of the changes to Chapter 4. Public participation, the court found, had to provide a genuine opportunity for affected parties to understand revised provisions and communicate their views to lawmakers.
National Treasury also conceded that time constraints meant it considered about 40 of the 112 submissions received. Nuku described the failure to consider the remaining submissions as a serious deficiency. The result was that a substantial number of public views did not reach the legislators responsible for considering the bill.
The court’s decision did not rest on whether Parliament was required to accept proposals made during consultation. Instead, it addressed whether the process gave the public a reasonable chance to participate and ensured that their representations were properly conveyed and considered.
Because the procedural failures were sufficient to invalidate the entire act, the Constitutional Court did not rule on the applicants’ remaining substantive objections to the legislation. Those challenges therefore remain undecided.
The court awarded costs to the applicants.
Act had not entered into force
The Public Procurement Act was assented to on July 18, 2024, and published in Government Gazette 50967 on July 23 of that year. Its commencement, however, depended on a presidential proclamation.
No such proclamation had been issued by the time of the Constitutional Court’s judgment, meaning the act had never taken legal effect. Preparations for a phased implementation were nevertheless underway, and draft procurement regulations were published in April 2026.
The judgment prevents those preparations from resulting in implementation of the invalidated statute. It also leaves the applicants’ policy and constitutional criticisms of the act unresolved, since the court determined that the defective legislative process alone disposed of the cases.
The finding reinforces Parliament’s constitutional duty to facilitate public involvement throughout lawmaking, including when significant revisions are introduced after an earlier round of consultation. In this case, the court concluded that the scale of the changes to Chapter 4 required another meaningful opportunity for public input rather than the compressed process that was provided.
