Constitutional Court invalidates the Public Procurement Act due to public participation failures
On 17 September 2026, the Constitutional Court unanimously declared the Public Procurement Act (PPA) 28 of 2024 unconstitutional and invalid in its entirety because Parliament failed to comply with its constitutional duty to facilitate meaningful public participation. This landmark decision underscores that public participation in the legislative process is not a procedural formality or box-ticking exercise. It is a constitutional mechanism that gives affected communities and institutions a reasonable opportunity to influence legislation.
Arguments
In this matter, the applicants, including the Premier of the Western Cape and the City of Cape Town, challenged the Act’s constitutionality on six principal grounds. The Court considered only the first three grounds, outlined below.
1) Failure to consult on material changes
The first ground concerned the National Assembly’s (NA) failure to consult on material changes made to Chapter 4 of the Act, which addresses preferential procurement. The applicants argued that these material changes were introduced without providing the public with a renewed and meaningful opportunity to comment. They further asserted that such changes necessitated additional public participation in the NA, and that this failure was fatal to the entire legislative process [paras 35-36].
The Speaker of the National Assembly, Chairperson of the National Council of Provinces (NCOP) and the Minister of Finance (the respondents) opposed this contention, submitting that Chapter 4 was informed by extensive prior research and consultation, including reliance on the Preferential Procurement Regulations, 2017. They further argued that Chapter 4 was incomplete and dependent on regulations yet to be promulgated, which would themselves be subject to public consultation. Relying principally on section 68, the respondents maintained that the Act preserved further opportunities for public participation [paras 37-39].
2) Failure to properly consider public comments
The Premier of the Western Cape, the City of Cape Town and AmaBhungane further argued that Parliament failed to consider all comments received during the public participation process. They contended that, of the 2 200 lines of commentary submitted, the National Assembly considered only a fraction. As a result of these overlooked submissions, the applicants maintained that Parliament denied the public a meaningful opportunity to be heard and to influence the lawmaking process, thereby undermining the purpose of public participation [paras 43-44].
Parliament and National Treasury disputed this assertion, submitting that they gave due consideration to the comments received. They argued that, although Parliament received a substantial volume of comments from more than 100 stakeholders, it was neither bound by stakeholders’ views nor required to accommodate every demand arising from the public participation process [paras 46-47].
3) Insufficient time for public comments
The City of Cape Town and amaBhungane also challenged the timeframes allocated for the public participation process, with amaBhungane characterising the process as marked by “debilitating haste at every stage”. They highlighted several time constraints, including rushed meetings and hearings. For instance, stakeholders reportedly received a copy of Chapter 4 of the Act only four hours before a meeting and were allotted just two minutes each to make submissions [para 48].
In addition, the City argued that neither the NA nor the National Council of Provinces (NCOP) complied with the five-week invitation requirement set out in Parliament’s Practical Guide for Members of Parliament and Provincial Legislatures. This framework requires Parliament to send invitations at least five weeks before public hearings.
In this case, invitations were sent only three weeks before the public hearings. The City further challenged the provincial legislatures’ notices of public participation, asserting that only a few complied with the seven-day notice requirement. Consequently, the City contended that Parliament failed to adhere to its own standard for a reasonable public participation process [paras 48-51].
In response, the Speaker of Parliament argued that the Practical Guide has not been formally adopted and is not binding. It submitted that imposing strict timeframes would limit Parliament’s discretion to issue notices it deems appropriate [para 52].
Decision of the Constitutional Court
The Constitutional Court reduced the parties’ issues to a single question: whether, in enacting the PPA, Parliament failed in its constitutional obligation to facilitate public involvement in the legislative process [para 61]. Declaring Parliament’s conduct unconstitutional, the Court reaffirmed established principles on public participation, noting that “while Parliament retains discretion to determine what form of public participation process will take, it must act reasonably in exercising that discretion.” In this context, the Court explained that “[r]easonableness means that members of the public and all interested parties are assured of a reasonable opportunity to … to know about the issues and to have an adequate say.” The opportunity must be “one capable of influencing the decision to be taken” [para 65].
In assessing the reasonableness of Parliament’s public participation process, the Court endorsed the three factors identified in the Mogalecase [para 37]:
a. What Parliament itself has determined is reasonable, and how it has decided it will facilitate public involvement;
b. The importance of the legislation and its impact on the public; and
c. Time constraints on the passage of a particular bill and the potential expense [para 66].
Significantly, the Court held that legislation must be set aside if the NA or NCOP fails to reasonably facilitate public participation [para 67].
a) Duty to consult on material amendments
The Court agreed with the applicants that the duty to facilitate further public participation extends to material amendments made to an Act as well. It held that the failure to undertake a public participation process for material amendments will render the Act unconstitutional.
The Court clarified that this “should not be understood to mean that further public participation is automatically required when a change goes beyond what is purely semantic or technical.” The Court explained that the appropriate standard remains reasonableness, “where the question must always be whether, taking into account the degree of materiality of the amendments, further public consultation is needed” [para 73].
On the facts, having due regard to the objects of the PPA and its impact on the public, the Court held that it was essential that the “public be afforded the fullest opportunity to have their voices heard during the legislative process” [para 77].
The Court accepted that the changes to Chapter 4 of the Act were material and required further public scrutiny [para 83]. It was not a mere “elaboration or refinement” of the old Act. For example, the new Chapter 4 established a far more prescriptive statutory regime setting out in detail what a preferential procurement policy should include, which raises complex constitutional considerations, especially the broader procurement principles in section 217 [para 82].
The Court further rejected the respondent’s reliance on the public participation process conducted for the 2017 PPPFA regulations as misplaced. It held that ‘public participation undertaken in relation to delegated regulations promulgated by the Executive in 2017 cannot substitute Parliament’s constitutional role to facilitate meaningful public participation’ [para 85]. Thus, the Court ruled that reliance cannot be placed on the 2017 PPPFA regulations, nor on public participation that might occur in respect of future regulations, as the respondents claimed.
b) Duty to consider all comments
Parliament’s failure to consider most of the written comments received during the public participation process goes to the heart of its duty to facilitate meaningful public participation [para 93].
While criticising Parliament, the Court held that public participation cannot be meaningful without a willingness to consider all views expressed. This means that Parliament cannot “brush aside or ignore” the views of the public and stakeholders. This is because Parliament is obligated to “keep an open mind” during a public participation process and the public is entitled “to have an adequate say” on legislative matters that affect them [para 95].
In other words, where Parliament fails to engage with a significant number of submissions, those comments will “fall on deaf ears”, meaning their submitters lose their right to be heard and an opportunity to influence the legislative process [para 93-95].
In this matter, the Court found no evidence that National Treasury had considered the comments submitted. Since the National Assembly relied on the National Treasury to collate and respond to the comments, its failure also impaired the NA’s ability to consider the written comments. This was “a serious deficiency” in the words of the Court, which resulted in Parliament failing in its obligation to facilitate public participation [para 103].
c) Timeframes
The Court accepted the respondents’ contention that the timelines provided in the Practical Guide are not strictly binding on Parliament. It clarified that the Guide merely sets out what Parliament considers reasonable, and that any deviation from it requires Parliament to explain its choices under specific circumstances.
In this matter, Parliament gave shorter notice periods than those set out in the Guide, without explaining these shortcomings. The Court held that Parliament’s failure to explain its approach cast doubt on the reasonableness of the process. The Court specifically criticised the accelerated timeframes imposed on stakeholders as unreasonable and inferred that Parliament adopted them to ensure the Act was passed before the 2024 National elections [paras 104-109].
The Court accordingly declared the Act unconstitutional.
Comment
The judgment confirms that a court may invalidate a law enacted without meaningful public participation. It calls on legislatures across all three spheres of government not to rush the legislative process, but to treat public participation with the same seriousness as the legislation’s substantive content, requiring timely consultation and ensuring all comments are considered.
While the judgment strengthens participatory democracy, it also delays reforms aimed at replacing the fragmented public procurement system. The existing fragmentation has long created inconsistency and uncertainty for procuring institutions, and the PPA was intended to replace at least 34 legislative instruments. By invalidating the Act, the judgment imposes substantial implementation costs on National Treasury and Parliament, as they must restart the legislative process before enacting a replacement procurement law. This will cause further delays and renew demands for participation. In the interim, the existing procurement system remains in place, prolonging the fragmentation that the Act sought to address.
