ConCourt strikes down Public Procurement Act over flawed public participation process

The Constitutional Court has ruled that the Public Procurement Act of 2024 is unconstitutional and invalid, citing flawed public participation in the law-making process. The unanimous judgment, delivered by Acting Judge Lister Gcinikhaya Nuku, found that Parliament did not provide the public with a reasonable opportunity to scrutinize and comment on the bill.

The case was brought by the City of Cape Town, Western Cape government, Solidariteit, and the amaBhungane Centre for Investigative Journalism. The National Assembly's Standing Committee on Finance had conducted briefings and public hearings, but the court noted that over 2,000 public comments were received, but only 20% were considered.

The court also found that the Select Committee on Finance in the National Council of Provinces did not consider public submissions at all. The court concluded that Parliament failed in its constitutional obligation to facilitate a reasonable public participation process. The entire Act is declared invalid, not just specific provisions.

The court did not prescribe steps for lawmakers or the executive to remedy the PPA, but stated that if the respondents wish to enact the Act or a similar bill, they must comply with a constitutionally compliant public participation process. The respondents were ordered to pay the applicants' costs. Premier Alan Winde welcomed the decision, stating that the court confirmed provinces need the power to design procurement systems tailored to their own communities.