Challenge over public participation in Public Procurement Act

LRC joins Constitutional Court challenge over inadequate public participation in Public Procurement Act process

The Legal Resources Centre (LRC) is representing amaBhungane Centre for Investigative Journalism in a Constitutional Court challenge concerning the process that led to the adoption of the Public Procurement Act.

AmaBhungane is an applicant in the consolidated matters of Premier of Western Cape Government v Speaker of the National Assembly and City of Cape Town v Speaker of the National Assembly. Assisted by the LRC, amaBhungane joined the proceedings in 2025 to challenge the constitutionality of the public participation process that preceded the adoption of the Act.

The matter will be heard in the Constitutional Court on 18 and 19 May 2026.

The case focuses specifically on whether Parliament fulfilled its constitutional obligation to facilitate meaningful public participation during the legislative process. It is not a substantive challenge to the contents of the Public Procurement Act itself, nor does it concern the preferential procurement aspects of the legislation.

The Public Procurement Act regulates how government procures goods and services and establishes the framework governing the expenditure of vast public resources. Given the scale and impact of the legislation, the applicants contend that Parliament was required to ensure a particularly high standard of public participation during the drafting and adoption process.

The applicants argue that this constitutional standard was not met.

Among the concerns raised in the litigation are that the timelines for public comment were inadequate given the complexity and significance of the legislation, material changes to the Bill were introduced without sufficient opportunity for further public engagement, and submissions made during the legislative process were not meaningfully considered or engaged with by Parliament.

The LRC says the matter raises broader constitutional questions about democratic lawmaking, accountability, and the role of public participation in legislation with far reaching consequences for the public.

“The Constitution requires more than a formal opportunity to comment,” said the Legal Resources Centre. “Meaningful public participation requires genuine engagement with the substance of public submissions, particularly where legislation governs matters of immense public importance.”

The LRC further noted that public participation is a constitutional safeguard designed to strengthen transparency, accountability, and public trust in democratic institutions.

“Public procurement legislation shapes how public money is spent and how government services are delivered. Legislation of this significance must be developed through a process that meaningfully includes the public and properly considers the concerns raised during that process.”

The applicants contend that where participation becomes superficial or procedural, the constitutional purpose of public participation is undermined.

The matter is expected to contribute significantly to constitutional jurisprudence concerning public participation and Parliament’s obligations in the legislative process.