No shortcuts to legitimacy - Constitutional Court strikes down Public Procurement Act over flawed public participation

By Prelisha Singh, Thomas Greig and Ukhanyo Mdakane from Webber Wentzel

South Africa's constitutional democracy is founded on a simple but powerful idea: the public must have a meaningful opportunity to shape the laws by which it is governed.[1] On 17 September 2026, the Constitutional Court handed down judgment in Premier of the Western Cape Government v Speaker of the National Assembly.[2] The Court declared the Public Procurement Act 28 of 2024 unconstitutional for Parliament's failure to comply with its obligation to facilitate adequate public participation during the law-making process.

The judgment is significant in at least two respects. First, it adds to the growing jurisprudence concerning Parliament's constitutional duty to facilitate meaningful public participation in the legislative process. Second, it concerns a key piece of legislation – the Public Procurement Act, which has now been declared unconstitutional in its entirety, with no suspension of the declaration of invalidity as the Act had not yet come into operation. The decision therefore offers important lessons for the meaningful conduct of public participation and represents yet another setback for Government in its efforts to reform procurement law.

Parliament's failure to facilitate meaningful public participation

The Public Procurement judgment reaffirms that the public must be afforded a reasonable opportunity to understand the issues addressed by proposed legislation and to express their views in a manner capable of influencing the decision-making process, particularly where the proposed legislation has a greater impact on, and importance to, the public.[3] Additionally, the Constitutional Court emphasised that a material amendment to a Bill may trigger a duty on the part of the legislative body to facilitate a further round of public participation, particularly where the amendment introduces issues on which the public has not previously had an adequate opportunity to comment.[4]

The Constitutional Court found that Parliament had failed to comply with these fundamental principles. Most notably, Parliament failed to afford the public a meaningful opportunity to comment on the Bill. In one instance, stakeholders were presented with a revised version of the Bill for the first time during a meeting and given only two minutes to comment on the new provisions. Parliament also introduced material amendments without facilitating a further round of public participation. Furthermore, new provisions were inserted into the chapter dealing with preferential procurement without affording the public an opportunity to comment on them.

Importantly, the Constitutional Court was careful not to prescribe a one-size-fits-all formula and reaffirmed that Parliament retains discretion over the form its public participation process takes. The outcome here turned on the cumulative weight of several specific, unexplained shortcomings, rather than on a rigid checklist that every Bill must satisfy in the same way.

Another setback for the reform of procurement laws

The Public Procurement judgment concerned a challenge to the lawfulness of the legislative process that culminated in the enactment of the now-defunct Public Procurement Act. Historically, South Africa's public procurement framework has been governed by a fragmented collection of statutes and regulations, including the Public Finance Management Act (1999), the Preferential Procurement Policy Framework Act (2000), and the Municipal Finance Management Act (2003). The Act sought to address this fragmentation by consolidating the various procurement regimes into a single legislative framework and, most importantly, in a manner that gives effect to the constitutional imperative that, whenever an organ of state contracts for goods or services, it must do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.

The existing patchwork of legislation has resulted in several undesirable outcomes, including inconsistencies, uncertainties and administrative inefficiencies for procuring institutions and service providers alike. Another unfortunate consequence has been the proliferation of procurement-related disputes before the courts, many of which could arguably have been resolved through specialised internal administrative mechanisms. To address this concern, the Act sought to establish the Public Procurement Office and a Public Procurement Tribunal to strengthen institutional oversight and provide an effective mechanism for resolving procurement disputes without having to resort to the overburdened court system.

The long-awaited overhaul of the procurement regime will need to wait as National Treasury (as custodian of procurement laws) and Parliament (as the legislative authority) must begin the legislative and regulatory processes afresh. But all is not lost, particularly since the Constitutional Court did not pronounce on the substance of the Act and instead declared it invalid for failure to comply with public participation requirements. The judgment also presents opportunities: National Treasury can refine those parts of the Act that attracted the most scrutiny and thus warrant further consideration; Parliament can enhance public involvement; and stakeholders can shape the future public procurement framework through renewed submissions and engagement.

What next?

The ripple effects of the Public Procurement judgment are already visible. The Public Procurement Amendment Bill has been withdrawn (likely in response to the judgment) and the draft Public Procurement Regulations published for comment will need to be withdrawn too, since their empowering legislation has fallen away. The Minister of Finance, who is the Cabinet member responsible for procurement laws, has clarified that the judgment does not create a vacuum in procurement law as the existing framework remains in place. The Minister further indicated during his presentation of the Medium-Term Budget Policy Statement last month that the Public Procurement Bill is being redeveloped.[5]

Stakeholders should monitor these developments closely as lawmakers revisit the procurement framework in the next legislative round. There is, however, no guarantee that a properly conducted public participation process will produce the same legislative outcome. The political landscape has changed significantly since the Bill was first considered, particularly following the 2024 general elections and the ensuing formation of a Government of National Unity.

The Public Procurement judgment underscores an important lesson for Parliament: the pursuit of legislative reform, while pressing, cannot come at the expense of constitutional process. As the Constitutional Court has made clear, legislation enacted without reasonable public involvement is susceptible to legal challenge and risks being struck down in court. Parliament must therefore strike a delicate balance between advancing legislative reform without delay and complying fully with its constitutional obligations. The Constitutional Court's judgment stands as a stark reminder that in a constitutional democracy, the legitimacy of legislation depends as much on how it is made as on what it seeks to achieve, regardless of whether the next iteration of the public procurement reform mirrors the original Act or takes a different course.

Webber Wentzel is a full-service African law firm founded in South Africa in 1868. We have more than 520 lawyers in Johannesburg and Cape Town, providing legal and tax advice to clients in South Africa and across Sub-Saharan Africa. Our work spans complex transactions, disputes, regulation, tax, projects and sector-specific matters, supported by relationships with leading law firms across the continent and internationally.

[1]     Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11.

[2]     Premier of the Western Cape Government and Another v Speaker of the National Assembly and Others; City of Cape Town and Others v Speaker of the National Assembly and Others [2026] ZACC 37.

[3]     Minister of Health v New Clicks South Africa (Pty) Ltd [2005] ZACC 14; Moutse Demarcation Forum v President of the Republic of South Africa [2011] ZACC 27.

[4]     SA Veterinary Association v Speaker of the National Assembly [2018] ZACC 49; South African Iron and Steel Institute v Speaker of the National Assembly [2023] ZACC 18.

[5]     "Minister Enoch Godongwana: Medium-Term Budget Policy Statement 2026" available at https://www.gov.za/news/speeches/minister-enoch-godongwana-medium-term-budget-policy-statement-2026-21-oct-2026 accessed on 10 November 2026.