The Constitutional Court declared the Public Procurement Act unconstitutional in its entirety on 17 September 2026, ruling that Parliament failed to ensure meaningful public participation when it passed the law. The Act, signed in 2024, had not yet come into operation, so state bodies continue to buy goods and services under the existing framework.
What the court decided
The unanimous judgment, written by Acting Justice Nuku, came in two consolidated cases: Premier of the Western Cape Government v Speaker of the National Assembly and City of Cape Town v Speaker of the National Assembly. The amaBhungane Centre for Investigative Journalism, represented by the Legal Resources Centre, was a second applicant in both. The trade union Solidarity also challenged the Act.
According to the Legal Resources Centre, the court found Parliament breached sections 59(1)(a) and 72(1)(a) of the Constitution, which deal with public involvement in law-making. It identified three failings. Parliament did not reopen public participation after making substantive amendments to Chapter 4 of the Bill. It did not give due regard to a significant number of the public submissions it received. And the timetable was compressed: three and a half weeks for written comments, four hours to review the Chapter 4 changes and two minutes for each stakeholder presentation. In the court’s words, “The timetable must be subordinated to the rights guaranteed in the Constitution, and not the rights to the timetable.”
GroundUp reported that Chapter 4 was rewritten from permissive to prescriptive language without consultation, that the National Treasury conceded it had considered only about 40 of 112 submissions because of time constraints, and that costs were awarded to the applicants.
What the applicants argued
The Act was meant to set one national framework for how national, provincial and local government award tenders. It gave the Minister of Finance power to impose uniform rules on all state bodies, and it included mandatory “set-aside” provisions that reserved certain contracts for designated categories of bidder instead of open bidding, according to BusinessTech.
The Western Cape Government said sweeping national legislation cannot be rushed through Parliament without giving the public and affected spheres of government a fair opportunity to be heard. It also argued that mandatory quotas are unnecessary, noting that 57.15% of its own procurement spending already supports black-owned businesses without set-asides or forced subcontracting.
Solidarity objected to provisions under which a bidder would be disqualified from a tender if race criteria were not met. Deputy Chief Executive Anton van der Bijl said: “Today, yet another important card in that house of cards has fallen.” The court’s ruling rested on the way the law was made, not on whether the race provisions were lawful.
Cape Town Mayor Geordin Hill-Lewis said the Act would have created a large red tape burden for the city’s infrastructure investment. He said the city spent R12.2 billion on infrastructure in the past year, 75% of it directly benefiting lower-income households. The city’s concern, also cited in the challenge, was that the rules would hamper municipalities in responding quickly to urgent water, sanitation, electricity, waste and environmental problems.
What happens next
Finance Minister Enoch Godongwana said Treasury would start again. “We are going to go back to the drawing board for a new procurement act,” he said, according to TimesLIVE. In the meantime government will keep using existing law, including the Public Finance Management Act and the Preferential Procurement Policy Framework Act.
TimesLIVE noted that the Act took about 16 years to develop and had drawn opposition from partners in the Government of National Unity, including the Democratic Alliance, and that Parliament’s composition has changed since the Bill passed in 2023.
For suppliers, that means current tender rules and each province’s and municipality’s own procurement policy stay in force, and the national set-asides in the struck-down Act do not apply. The state’s annual procurement spend is put at around R1 trillion, which is why the rules matter to small firms that bid for government work. More coverage of policy changes is in our regulatory and policy section, and public-sector contracting for smaller firms is covered under SME and entrepreneurship.
