The Constitutional Court has declared the Public Procurement Act of 2024 unconstitutional and invalid, after finding that Parliament failed to properly facilitate public participation when significant changes were made to the legislation.
The ruling follows legal challenges by the Western Cape Government and the City of Cape Town.
Western Cape Premier Alan Winde welcomed the judgment, saying it protects the ability of provinces and municipalities to make procurement decisions based on their local circumstances.
“The ruling represents an important safeguard of the constitutional principles of meaningful public participation and cooperative governance,” Winde said.
He said more than 57% of the Western Cape Government’s procurement spending goes to black-owned businesses, while 34% goes to women-owned companies.
Western Cape Finance MEC Deidré Baartman, who led the province’s legal challenge, described the judgment as “a triumph for constitutional democracy”.
“Public participation should not be treated as a mere box-ticking exercise but as a fundamental democratic right,” Baartman said.
She said the judgment sends a message that proper legal processes must be followed when legislation is passed.
Cape Town Mayor Geordin Hill-Lewis also welcomed the ruling, saying the Act could have created additional red tape for municipalities and slowed down service delivery.
“We are glad that the Constitutional Court agreed with our case that the Act was passed unlawfully, with insufficient public participation and parliamentary consideration,” Hill-Lewis said.
He said the ruling protects the rights of local and provincial governments to develop their own procurement approaches.
Hill-Lewis also warned that the Act could have made it harder for municipalities to respond quickly to urgent water, sanitation, electricity, waste and other infrastructure needs.
The City says the Act could also have centralised aspects of procurement under a national Public Procurement Office.
The Western Cape Government says it will now study the full judgment to determine its immediate impact on provincial procurement and any specific instructions issued by the Court.
