When the public is left out, the law falls short

12 May 2026

This Constitutional Court matter centres on whether Parliament fulfilled its constitutional obligation to ensure meaningful public participation during the adoption of the Public Procurement Act. The applicants argue that the public was not given a genuine opportunity to engage with legislation that will shape how billions in public funds are spent and how essential services are delivered across South Africa.

Public procurement regulates how government purchases goods and services to meet its service delivery obligations. In turn, the Public Procurement Act shapes how government spends public money and delivers services across the country.

Public participation is a constitutionally entrenched feature of South Africa’s legislative process. Parliament is obliged to ensure the participation of the public in the law-making process, allowing the public an opportunity to meaningfully influence the mind of lawmakers. The more impactful a piece of legislation is, the greater Parliament’s obligation to ensure reasonable public participation.

Simply put, Parliament failed in its obligation to ensure reasonable public participation when passing the Public Procurement Act, effectively shutting out the public from the legislative process.

In 2025, assisted by the Legal Resources Centre, amaBhungane Centre for Investigative Journalism were joined as the Second Applicant in the consolidated applications of Premier of Western Cape Government v Speaker of the National Assembly and City of Cape Town v Speaker of the National Assembly, challenging the process that led to the adoption of the Public Procurement Act.

It is important to be clear about the focus of this challenge. This case is not a substantive challenge to the contents of the Act, it does not consider the substance of the broader policy choices embedded in the Act. The focus is on the constitutional requirement of meaningful public participation in the drafting of legislation that will have immense consequences for the public.

The Public Procurement Act governs how government procures goods and services, how tenders are awarded, and how vast public resources are managed. It influences nearly every aspect of service delivery, from infrastructure and transport to healthcare and education. Procurement is also one of the areas of governance most vulnerable to corruption and abuse. Over many years, billions of rands in public funds have been lost through unlawful, irregular, and ineffective procurement processes, often with devastating consequences for communities reliant on public services.

This is precisely why transparency in procurement legislation matters so deeply. But transparency does not begin only once a law is implemented. It begins in the process through which the law itself is created.

The Public Procurement Act seeks to regulate the public procurement process, creating greater uniformity and certainty in a highly fragmented system. The Act also seeks to embed a framework to guide the enactment of preferential procurement measures and procuring official’s creation of procurement policies. The Act also attempts to provide critical measures promoting transparency in the procurement process and introduce measures for oversight and consequence management. These are vital issues that the public has a right to make input on during the legislative process, knowing that their submissions will be considered and engaged with by Parliament.

Transparency in procurement legislation matters so deeply. But transparency does not begin only once a law is implemented. It begins in the process through which the law itself is created.

The Constitution requires Parliament to facilitate meaningful public participation during the legislative process. This obligation is not procedural window dressing or a tick box exercise. It is one of the safeguards that protects democratic accountability and helps ensure that laws are shaped in the public interest. Public participation creates space for people, civil society organisations, experts, and affected communities to identify risks, raise concerns, and contribute to legislation before it is enacted.

Where legislation has far-reaching implications, the standard for public participation must be correspondingly higher. A law governing how billions in public money are spent and how state contracts are awarded is one such example.

Public participation also serves another vital purpose. It strengthens public trust in democratic institutions and the lawmaking process itself. When people are given a genuine opportunity to participate, and when their submissions are meaningfully considered, it reinforces confidence that government is acting transparently and in the interests of the public it serves. When participation becomes superficial or performative, that trust is weakened.

Parliament’s own processes recognise the importance of this participation. When legislation is introduced, the public is invited to make written or oral submissions to parliamentary committees. These submissions are intended to assist Members of Parliament in understanding the possible consequences, concerns, and practical realities connected to proposed legislation. Members of the public can follow open calls for comment through Current calls for comments on bills and can review the process that was followed for the Public Procurement Bill through Public Procurement Bill call for comment.

In this case, however, the applicants contend that the public participation process fell significantly short of constitutional requirements.

As outlined in the litigation and in public reporting on the matter, the timeline provided for public comment was extremely limited given the scale and complexity of the legislation. Interested parties were expected to analyse and respond to legislation with profound national implications within a short period of time. Material changes to the Act were also introduced without providing the broader public with sufficient time to comment on these changes. For many individuals, organisations, and affected communities, meaningful engagement with legislation of this complexity requires time to consult internally, obtain expert input, and prepare considered submissions. The process did not adequately allow for this.

Concerns have also been raised about the way in which submissions were handled once they were received. While hearings and comment processes formally took place, the applicants argue that there was little meaningful engagement with the substance of many of the concerns raised by civil society organisations, legal experts, and other participants. In some instances, significant concerns raised during submissions were either inadequately addressed or not engaged with at all in any substantive manner.

The concern is therefore not simply whether the public was permitted to submit comments, but whether Parliament genuinely fulfilled its constitutional obligation to consider those contributions in a meaningful way.

Meaningful public participation requires more than publishing notices and opening a comment period. It requires a genuine and transparent process in which public submissions are taken seriously, engaged with thoughtfully, and incorporated into deliberations in a meaningful manner. If participation exists only on paper, the constitutional purpose behind it is undermined.

This is especially important in legislation such as the Public Procurement Act because procurement systems have historically been linked to some of the most serious governance failures in South Africa. Public participation in the drafting of such legislation is one of the mechanisms through which the public can identify weaknesses, call for stronger safeguards, and push for greater accountability before the law is finalised.

This case therefore raises broader questions about democratic lawmaking in South Africa. It asks what meaningful participation should look like in practice, and what obligations Parliament must meet when developing legislation with profound public consequences.

This matter goes beyond one Act. It speaks to the principle that people must have a meaningful opportunity to shape the laws that govern their lives, especially laws that regulate how public resources are managed and distributed.

When public participation is weak, the law risks becoming disconnected from the people it is meant to serve. But when participation is genuine, transparent, and meaningful, it strengthens both the law itself and the democratic institutions responsible for creating it.

Co-funded by the EU