ConCourt Invalidates Procurement Act Over Public Participation

On 17 September 2026, the Constitutional Court handed down judgment in the consolidated cases of Premier of the Western Cape Government v Speaker of the National AssemblyCCT 103/25 and City of Cape Town v Speaker of the National Assembly144/25. The Legal Resources Centre had represented amaBhungane Centre for Investigative Journalism as the second applicant in both matters.

As a participant in the public participation process, amaBhungane challenged the constitutionality of the public participation that accompanied the adoption of the Public Procurement Act, arguing that the process failed to afford the public an opportunity to meaningfully participate in the legislative process. This was despite sections 59(1)(a) and 72(1)(a) of the Constitution obliging Parliament to facilitate reasonable public participation when adopting legislation.

In a unanimous judgment penned by Nuku AJ, the Constitutional Court ruled in amaBhungane’s favour, declaring that Parliament had failed to comply with its constitutional obligations and that the Public Procurement Act had been adopted in a manner inconsistent with the Constitution. The Act was consequently declared unconstitutional in its entirety.

amaBhungane’s submissions regarding Parliament’s failure to consider all public comments received on the Bill and the rushed and truncated timeframes for public participation were central in the Court’s reasoning.

The Court emphasised the importance of the Public Procurement Act, stating that:

“The Act is an important piece of legislation designed to have a wide ranging impact on how the state procures goods and services. The Act seeks to give effect to constitutional imperatives set out in sections 195, 216 and 217 of the Constitution. It seeks to remedy the fragmented public procurement system and replace it with a unified regulatory system. This will affect the procurement systems of the entire public sector, no doubt affecting hundreds of public institutions, parastatals and organs of state. Such a regulatory framework has important consequences for members of the public, including those who might want to contract with the state or depend on the public sector for service delivery.” [1]

The Court emphasised the importance of public participation as vehicle for ensuring due consideration is given to the views of the public in the legislative process, a concept that embodies the democratic nature of South Africa.

The Court first considered submissions pertaining to Parliament’s failure to re-open the public participation process after substantive and material amendments to the Bill were introduced during the public participation process. The Court concluded that this defect alone could have established that Parliament had failed in its constitutional obligations.

With regards to Parliament’s failure to consider all the public submissions it received, the Court dismissed the respondent’s argument that it was not under any obligation to “accommodate all stakeholders’ demands”, finding that:

“While this is so, the argument misses the point: what the applicants challenge is not the end result or the fact that the Act does not reflect the stakeholders’ concerns. Instead, they argue that Parliament failed to give due regard to, or properly consider, a significant number of public submissions, with the result that those submissions could not have stood a chance of influencing the legislative process, rendering the public participation process illusory.”

The Court went on to find that:

“Simply put, where Parliament does not engage with a significant number of comments, those comments fall on deaf ears; their submitters lose the right to be heard and a meaningful opportunity to influence legislative decisions; and Parliament closes its door to considering and responding to those comments, thereby flouting its obligation to facilitate meaningful public participation.”

While conceding that Parliament could rely on National Treasury to summarise or relay public submissions, the Court emphasised that the involvement of National Treasury did not absolve Parliament of its own obligation to satisfy itself that it had been adequately apprised of all public submissions, to ensure that it could give due consideration to all public input.

Finally, with regards to the truncated timeframes the process was subjected to, the Court held that the undue haste with which the public participation process was conducted could not be justified and deprived the public of a real or meaningful opportunity to participate in the public participation process.

“AmaBhungane’s challenge concerns a list of alleged accelerated timeframes provided to stakeholders. These include the approximately three and a half weeks that stakeholders had for written comment; the short interval between the close of submission of written comments and the first public hearings; the four hours that stakeholders had on 17 November 2023 between receiving copies of the new Chapter 4 and the start of their meeting with the Standing Committee; and the two minutes that each stakeholder had to present at that meeting. Given the importance of the Bill and the nature and extent of the amendments to Chapter 4, it does not strike me as reasonable to afford stakeholders only four hours to consider the amendments and two minutes each to present their concerns. That, in my view, would affect their ability to engage meaningfully with the Bill.

Viewed holistically, the complaints raised by amaBhungane, together with the deviations from the Framework and Practical Guide, and National Treasury’s statement that it could not respond to all comments “[d]ue to time constraints”, indicate an overall truncated timeline for the public participation process. Although the respondents do not explain the reasons for this haste in their written submissions, the record suggests that one reason Parliament may have acted perfunctorily was to pass the Bill before the 2024 National Elections. This Court has, however, repeatedly held that “[t]he timetable must be subordinated to the rights guaranteed in the Constitution, and not the rights to the timetable”60 and that a parliamentary desire to finalise a legislative process before the end of term does not create any objective urgency. herefore, I can find no justification for the truncated timeframe. As this Court recognised in LAMOSA, and as the preceding paragraphs show, such a timeline also intertwines with other deficiencies that the applicants challenge, making it clear that Parliament failed in its constitutional obligations to facilitate a reasonable public participation process.”

The Constitutional Court’s decision re-enforces the fundamental importance of public participation in the legislative process, a vital tool to ensuring both the realisation and reflection of South Africa’s democratic impulse. Public participation has to be conducted in a manner in which ensures that meaningful consideration can be given to the views of the public and the process cannot be reduced to a mere tickbox exercised to be rushed through to ensure the passing of legislation a time suitable to Parliament.