Constitutional Court Invalidates Public Procurement Act Over Public Participation Failures

The Constitutional Court has declared the Public Procurement Act invalid and unconstitutional after finding that Parliament failed to meet its constitutional obligations on public participation during the legislation’s passage.

The judgment, delivered on Thursday, concerns Chapter 4 of the Act, which governs the use of public procurement to advance socioeconomic transformation in line with Broad-Based Black Economic Empowerment (B-BBEE) legislation.

The legislation, which was signed into law by President Cyril Ramaphosa last year, has not yet come into effect. Its implementation was being prepared in phases, with draft procurement regulations published in April.

The Western Cape government and the amaBhungane Centre for Investigative Journalism challenged Parliament’s process in relation to the Act, specifically the way Chapter 4 was introduced without being subjected to adequate public consultation.

Court Finds Parliament Failed To Facilitate Meaningful Participation

Acting Judge Lister Nuku found that Parliament had failed to meaningfully subject the additional chapter to public participation.

The judgment also found that Parliament had effectively deferred a substantial part of its responsibility to the National Treasury. The Treasury received more than 100 submissions but responded to only a handful of them.

“The ineluctable conclusion is that the National Assembly failed in its obligation to facilitate public participation. At the very least, Chapter 4 stands to be invalidated on this basis.”

The court further found that Parliament had acted unreasonably by giving stakeholders only four hours to consider the amendments and allowing them two minutes each to present their concerns to the Standing Committee on Finance.

“Parliament failed in its constitutional obligations to facilitate a reasonable public participation process.”

Amendments Introduced Without Adequate Consultation

The challenge centred on the introduction of a new chapter between different drafts of the Public Procurement Bill.

The applicants argued that the changes required proper public participation. The court agreed that the process followed by Parliament did not provide stakeholders with a meaningful opportunity to consider and respond to the amendments.

The finding affects legislation intended to overhaul the state’s procurement framework, although the Act had not yet entered into force.

Court Does Not Reach Further Merits

Because of its finding that Parliament had failed to meet its constitutional obligations on public participation, the court said it was unnecessary to consider the further merits of the applicants’ challenge.

The applicants were also awarded costs in the matter.