- The Constitutional Court declared the Public Procurement Act unconstitutional and invalid.
- Parliament failed to properly consult the public on major changes to the Bill.
- Government must now rewrite and pass the law through a fresh public participation process.
The Constitutional Court has scrapped South Africa’s new procurement law, meaning government cannot use the Public Procurement Act 28 of 2024 to regulate future state tenders.
Parliament must now rewrite and pass the legislation again after judges ruled that the public was denied a meaningful opportunity to participate in the law-making process.
In a unanimous judgment delivered on 17 September 2026, Acting Justice A Nuku held that both the National Assembly and the National Council of Provinces failed to fulfil their constitutional obligation to facilitate meaningful public participation before passing the legislation.
The court declared the entire Act unconstitutional and invalid, even though it had been signed into law by President Cyril Ramaphosa in July 2024.
The constitutional challenge was brought by the Premier of the Western Cape, the City of Cape Town, amaBhungane Centre for Investigative Journalism and Solidarity, who argued that Parliament fundamentally changed the Bill without allowing South Africans to comment on the revised provisions.
Parliament changed the Bill without consulting the public
The Public Procurement Act was designed to replace South Africa’s fragmented procurement system with a single national framework for how national, provincial and local governments buy goods and services.
It also introduced sweeping changes to preferential procurement, including new rules on set asides, prequalification criteria, subcontracting and local content requirements.
However, the applicants argued that Parliament invited public comment on the original Bill, then introduced extensive amendments to Chapter 4 without reopening the public participation process.
Justice Nuku rejected Parliament’s argument that the amendments merely refined the legislation. He said Chapter 4 created “a far more prescriptive statutory regime,” fundamentally changing how preferential procurement would operate across government.
The court found that the revised provisions introduced new legal mechanisms with significant constitutional, economic and practical consequences, making fresh public consultation essential before the Bill could lawfully be passed.
Public participation is a constitutional safeguard
Reaffirming the constitutional standard, Justice Nuku said members of the public must have “a reasonable opportunity… to know about the issues and to have an adequate say” before legislation is enacted.
He concluded, “The Act was adopted in a manner inconsistent with the Constitution.” He said this left the court with no option but to declare it invalid.
The judgment also dismissed Parliament’s reliance on earlier consultations conducted during previous procurement regulations, finding that executive consultation could never replace Parliament’s own constitutional duty to involve the public when passing primary legislation.
Parliament must start again
The Constitutional Court ordered Parliament to restart the legislative process in a manner that complies with the Constitution. The successful applicants were also awarded their legal costs.
The ruling means South Africa’s proposed procurement framework falls away for now, and any replacement law will have to undergo a fresh public participation process before it can be passed and brought into operation.
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