ConCourt says Public Procurement Act is invalid, deals blow to Treasury’s plans

The Constitutional Court has declared the Public Procurement Act invalid, delivering a blow to the National Treasury’s plan to form a single framework for state organs in handling contracts and tenders.

The court declared the act invalid after finding parliament failed in its constitutional obligation to facilitate meaningful public participation on the legislation, which affects state departments in their procurement of goods and services.

In a unanimous judgment on Thursday, delivered by acting justice Gcinikaya Nuku, the court found parliament’s public participation process had “serious deficiencies”.

“The court concludes that parliament failed in its constitutional obligation to facilitate reasonable public participation,” Nuku said.

The act, signed into law by President Cyril Ramaphosa in June 2024, attracted pushback, including from the ANC’s biggest GNU partner, the DA, and triggered litigation directly to the Constitutional Court.

Western Cape premier Alan Winde last year initiated a legal challenge against the National Assembly speaker and the National Council of Provinces chair, seeking an order to invalidate the act. Minister of finance Enoch Godongwana was cited as a third respondent.

Winde was not alone. Other applicants included the City of Cape Town, amaBhungane Centre for Investigative Journalism, and trade union Solidarity.

Central to the litigation was that parliament failed in its constitutional obligation to ensure meaningful public participation.

Winde argued that there were substantial changes to the bill and parliament did not seek public submissions on the changes, thus rendering the public participation process flawed.

This flaw led to the top court declaring the act invalid.

Nuku said changes made to the bill were material and warranted submissions from the public. The court found the failure was one of the deficiencies in the public participation process.