South Africa: Constitutional Court strikes down public procurement law

The ruling nullifies the entire Public Procurement Act 28 of 2024, which was intended to establish a common framework for state, provincial, and municipal procurement. Although the law was enacted in 2024, it had not yet come into effect, meaning that the existing legal framework continues to govern public procurement.

The litigation focused particularly on substantial amendments made to the chapter concerning preferential procurement. According to the judgment reported by GroundUp, participants received a revised version of the chapter approximately four hours before a meeting, and each was given only two minutes to present their comments.

The Court also highlighted the limitations in addressing the contributions received. The National Treasury acknowledged that only 40 out of 112 submissions made during one stage of the process could be reviewed due to time constraints. The judges determined that this procedure did not meet the constitutional requirements for public participation.

The appeals were brought by the Premier of the Western Cape and the City of Cape Town, with the investigative center amaBhungane and the Solidarity union among the applicants. The Court ruled on the legislative process without validating or invalidating the various preferential mechanisms included in the law.

The invalidation was not suspended since the law was not yet in effect. Parliament may undertake a reform of public procurement, but the Court requires that any new process adhere to constitutional consultation obligations. Finance Minister Enoch Godongwana stated that he would review the judgment before discussing it with the leaders of both houses of Parliament.