Public Procurement Act, 2024 Invalid says the Constitutional Court: What It Means for South Africa

Authored by Michelle David and Ntokozo Ngubane.

The Constitutional Court has struck down the Public Procurement Act, 2024 in its entirety. In a unanimous judgment delivered on 17 September 2026 in Premier of the Western Cape Government v Speaker of the National Assembly [2026] ZACC 37, the court found that Parliament failed to facilitate adequate public participation before passing the Act.  The Act had not yet commenced, so the rules governing procurement remain unchanged.  But government must now follow a proper process if it wants a unified procurement framework.

The background to the challenge is as follows.

1. South Africa’s public procurement system has long been governed by a patchwork of statutes that were never designed to work together. The Act was Parliament’s attempt to fix that. Signed by the President on 18 July 2024, it was intended to repeal the PPPFA, the State Tender Board Act, the National Supplies Procurement Act and the supply chain management provisions of the Municipal Finance Management Act (MFMA) and replace them all with a single statute. But it had not yet come into force. Section 69 required the President to proclaim a commencement date, and no such proclamation had been made.
2. Two consolidated applications were brought for direct access under section 167(4)(e) of the Constitution. In CCT 103/25, the Premier of the Western Cape Government and the amaBhungane Centre for Investigative Journalism NPC were the applicants. In CCT 144/25, the City of Cape Town, amaBhungane and Solidarity were the applicants. The respondents in both matters were the Speaker of the National Assembly, the Chairperson of the National Council of Provinces and the Minister of Finance.  In CCT 144/25, the President and the Speakers of all nine Provincial Legislatures were cited as additional respondents.  Parliament and the Speakers of the Eastern Cape, Free State, Mpumalanga, Northern Cape and North-West opposed the applications.
3. The matter was heard on 18 May 2026.  On 17 September 2026, Nuku AJ delivered the judgment, with every member of the bench concurring.  The applicants’ central complaint was that the Bill had gone through four versions during the parliamentary process and that material amendments, particularly the wholesale replacement of Chapter 4 on preferential procurement, had been introduced without adequate public participation. 

The court identified three failures in the legislative process, each serious on its own:

1. When the Bill was first introduced, Chapter 4 was a single enabling provision, clause 17, that left procuring institutions with broad discretion over preferential procurement.  By the time the Standing Committee had finished with it, clause 17 had been replaced by an entirely new regime of eight sections covering set-asides, prequalification criteria, subcontracting obligations and local content requirements. No further public participation took place.  The court found that this was a change in substance, not a technical expansion and that it required a further round of public comment. Parliament’s argument that the 2017 PPPFA Regulations had foreshadowed these changes was rejected. Those regulations were made by the executive under a different statutory framework, and public participation on delegated legislation seven years earlier could not substitute for Parliament’s own constitutional obligation.
2. The Bill attracted strong public interest.  About 112 stakeholders submitted more than 2 200 lines of commentary. National Treasury responded to a fraction.  At the meeting of 17 November 2023, it told the Standing Committee that time constraints had prevented it from reviewing all submissions.  A week later, it reported that it had addressed 16 more, but the majority remained untouched.  The court’s finding was pointed.  This was not a case of Parliament disagreeing with the public.  The public’s views never reached the lawmakers in the first place. 
3. Then there was the question of time in that on 17 November 2023, stakeholders received the new Chapter 4 amendments four hours before a meeting with the Standing Committee on Finance.  Each stakeholder was given two minutes to speak.  The court found no objective justification for the rush. Parliament’s desire to pass the Bill before the 2024 national elections was not the kind of urgency that could override the constitutional right to meaningful participation.

On the strength of these findings, the court declared the Act invalid under section 172(1)(a) of the Constitution. Critically, it did not suspend that declaration and the same is immediate.

The effect of the Constitutional’s court’s ruling is that: 

1. The Act is a nullity, and as such, it cannot be commenced, and no proclamation under section 69 can revive it.  But because it had never commenced   in the first place, and no commencement date was ever proclaimed, the existing procurement framework remains effective.  The PFMA, the MFMA, the PPPFA and their regulations remain in force across all spheres of government.
2. The draft General Regulations and Tribunal Regulations that National Treasury published for public comment are now orphaned.  They have no parent statute under which they can operate.  Any future regulations will need to be made under new legislation.
3. For municipalities, the position is clear in that procurement continues under Chapter 11 of the MFMA and the supply chain management regulations. Current tenders, procurement disputes and governance challenges, including matters arising from commissions of enquiry or reported irregularities in tender processes are unaffected by this judgment.  But the reform that was intended  to close the gaps used to give effect to irregularities has been set back indefinitely.

The court did not give direction to Parliament on next steps.  If government wishes to proceed, it must introduce the Bill, or a revised version, from scratch, with a public participation process that meets constitutional standards.  Given what the court said about Chapter 4, any future consultation on preferential procurement will need to be thorough, meaningful and demonstrably capable of influencing the legislation. 

The takeaway is that the constitutional right to public participation is not a box to tick.  It is a substantive requirement, and failing to comply will impact proposed legislation regardless of the harm that such legislation seeks to prevent.   This judgment does not end the conversation on procurement reform but redirects it.  The constitutional imperatives in sections 216 and 217 of the Constitution remain and South Africa still needs a unified procurement framework.  The only question now is whether this will give government a further opport8unity at effecting change and when will the change arrive.

Premier of the Western Cape Government and Another v Speaker of the National Assembly and Others. City of Cape Town and Others v Speaker of the National Assembly and Others [2026] ZACC 37 (17 September 2026).