The Public Procurement Act never got off the starting blocks. Signed into law in July 2024, it was never proclaimed into force. On 17 September 2026, the Constitutional Court struck it down anyway.
The unanimous judgment means the legislation intended to replace South Africa’s fragmented procurement system will not take effect. The system it was supposed to replace remains.
That leaves the government with a familiar problem: how to reform public procurement without simply reproducing the legislation that has just been invalidated.
The Act was intended to replace the patchwork of rules governing how the state buys goods and services with a single procurement framework. That reaches from infrastructure and equipment to services bought by national departments, provinces, and municipalities, and is closely tied to public money, corruption, irregular expenditure, and preferential procurement.
That web extends into financial services. Public-sector funds and institutions buy financial and administrative services; government employees and institutions are clients of advisers and intermediaries; and insurers, asset managers, administrators, and other financial-services businesses can contract with government entities. For compliance professionals, procurement is also part of the wider public-finance, governance, and accountability framework.
It was also meant to replace the Preferential Procurement Policy Framework Act (PPPFA), the State Tender Board Act, the National Supplies Procurement Act, and the supply-chain management provisions of the Municipal Finance Management Act (MFMA).
Now that reform framework has fallen away. The question is what happens next.
The next Bill is unlikely to be the old Bill
The case was brought in two applications. In Premier of the Western Cape Government and Another v Speaker of the National Assembly and Others (CCT 103/25), the Western Cape government and amaBhungane Centre for Investigative Journalism were the applicants. In City of Cape Town and Others v Speaker of the National Assembly and Others (CCT 144/25), the City of Cape Town, amaBhungane, and Solidarity challenged the Act.
The Court found that Parliament had failed to facilitate the public involvement required by the Constitution, particularly after substantial changes were made to the Bill’s preferential procurement provisions.
It did not suspend the declaration of invalidity.
Because the Act had never commenced, procurement continues under the existing framework, including the Public Finance Management Act (PFMA), MFMA, PPPFA, and applicable regulations, as Deneys attorneys Michelle David and Ntokozo Ngubane explain in their analysis of the judgment.
Technically, Parliament could pass the same legislation again, provided it followed a constitutionally compliant public-participation process. But there is a new Parliament to consider it.
The 2024 election changed the composition of the National Assembly and brought the Government of National Unity (GNU) into being.
Busisiwe Nhlapo, a partner at Bowmans, told Stephen Grootes on The Money Show that the change matters.
“If they did go through a consultation process, then they absolutely would be able to pass the same Bill,” she said.
But given that Parliament has changed, “it is unlikely that the considerations that were considered in the previous regime might be the ones that are at the forefront of the current government”.
There are already signs that the debate has moved on.
On 18 August, before the Constitutional Court judgment, Parliament introduced the Public Procurement Amendment Bill, which proposed removing provisions in the 2024 Act dealing with set-asides, prequalification, subcontracting, and designated sectors for local production and content.
Nhlapo said National Treasury still wants a more coherent procurement framework, while recommendations arising from consultation on the draft procurement regulations could feed into a new Bill.
She favours consolidation rather than leaving procurement spread across multiple instruments, which can produce inconsistent interpretation and application.
But consolidation does not mean simply bringing back the 2024 Act. Nhlapo said the previous legislation may have been too prescriptive, particularly around preferential procurement.
Chapter 4 changed – and the public did not get another say
Chapter 4 was at the centre of the Constitutional Court judgment.
When the Bill was introduced, preferential procurement was dealt with in a single enabling provision. By the time the Standing Committee on Finance had processed it, that provision had become an entirely new Chapter 4 covering set-asides, prequalification, subcontracting, and local-content requirements.
The Court found these were substantive changes. There was no further public participation on them.
About 112 stakeholders had submitted more than 2 200 lines of comments, but National Treasury acknowledged that time constraints meant it had not processed all of them.
Then, on 17 November 2023, stakeholders received the new Chapter 4 provisions four hours before the committee meeting. They were given two minutes each to comment.
The Court found that the push to complete the Bill before the 2024 election did not justify the compressed process.
That leaves the next Parliament with more than a procedural instruction. If it changes the substance of the procurement framework, the public must have an opportunity to engage with those changes.
And some of the people involved in the case want considerably more than a better consultation process.
amaBhungane’s problem was the Act itself
amaBhungane was a co-applicant in both Constitutional Court matters.
Caroline James, its advocacy co-ordinator, told 702’s Drive with John Perlman that the organisation had concerns about the substance of the legislation, as well as the way it was processed.
It did not believe the Act went far enough to address corruption in public procurement.
James also questioned whether the proposed Public Procurement Office, which would sit within National Treasury and manage the procurement system and identify irregularities, was sufficiently independent.
Her concern was that Treasury would effectively oversee aspects of a system it also administered – “Treasury almost marking its own homework”.
James’s public-participation concern was also that people were asked to comment on one version of the legislation and then confronted with materially different provisions.
Meaningful participation, she said, requires an opportunity to make views known in circumstances where those views can genuinely influence the decision.
So, if procurement legislation returns, Parliament will be dealing with several questions at once: how to run a constitutionally compliant process, how prescriptive the legislation should be, how to strengthen safeguards against corruption, and whether the proposed oversight structure is sufficiently independent.
Where municipalities fit in
The City was a co-applicant in CCT 144/25, and its concern was not only how the national framework was developed, but how much control a national framework should have over municipalities.
Mayor Geordin Hill-Lewis told Amy MacIver on Afternoon Drive with John Maytham on CapeTalk that municipalities needed room to develop their own procurement approaches within the Constitution.
“We can’t be subjected to a centralised national procurement system,” he said.
For Hill-Lewis, independently elected municipalities need room to respond to local circumstances rather than applying one national model.
“There cannot be one size fits all rules for procurement policy,” he said.
He gave an example from Cape Town’s response to informal-settlement fires. Hill-Lewis said the City could not procure emergency-response kits in advance because the function fell under the national Department of Human Settlements. The result, he said, could be a wait of six to eight weeks for equipment that should be available within hours.
He expects the answer will not come quickly.
“They have to go back to the drawing board,” he said, with any new Bill having to be drafted, taken through public participation and tabled again.
But he also pointed to a change since the original Bill was passed: the City is now represented in the GNU.
“We will obviously have a lot more influence in it,” he said, adding that Cape Town would make the case for protecting local-government policy autonomy.
The old system remains
For now, procurement continues under the legislation that was already in place.
That includes the PFMA, MFMA, PPPFA, and their regulations. For municipalities, procurement continues under Chapter 11 of the MFMA and the supply-chain management regulations.
The draft General Procurement Regulations and Procurement Tribunal Regulations are in a different position.
They were intended to operate under the 2024 Act. With the Act invalid, they have no parent legislation.
David and Ngubane describe them as “orphaned”.
Any replacement regulations will have to follow new legislation.
So, there is no immediate change for an institution issuing a tender today. The change is further up the road: the framework the government intended to put in place has to be redesigned and taken through Parliament again.
The NHI question
There is another Constitutional Court case that makes the procurement judgment relevant to the wider policy landscape.
The Court is still considering the challenge to the National Health Insurance Act, after hearing the case from 5 to 7 May. Judgment has been reserved, but no date has been announced.
Read: NHI case hinges on one question: was the public truly heard?
For now, the Act remains on the statute book but cannot be brought into operation. In February, President Cyril Ramaphosa undertook not to proclaim any provision until the Constitutional Court has delivered its judgment. That undertaking was made an order of court.
The two public-participation challenges were brought by the Board of Healthcare Funders (BHF) and the Western Cape government. The BHF argues that Parliament did not provide enough information for the public to engage properly with issues such as the cost and operation of the proposed NHI system. Parliament points to more than 330 000 submissions, public hearings in all provinces and several rounds of engagement.
The Western Cape’s case focuses on the National Council of Provinces and whether the province was given a meaningful opportunity to influence the legislation.
The NHI case will be decided on its own facts. But the procurement judgment provides a recent example of the Court examining not simply whether consultation took place, but whether the process gave people a reasonable opportunity to engage with legislation before Parliament.
Back to procurement
The procurement rules that were in place before the 2024 Act remain in place. The reform project is the part that has been reset.
Treasury wants a coherent framework. Nhlapo sees room to rethink how prescriptive it should be. amaBhungane wants stronger safeguards against corruption and more independent oversight. Cape Town wants room for municipalities to do things differently.
The first attempt was about bringing those competing interests into one law. The next attempt must do that again – in a different Parliament, with a different political balance, and with a Constitutional Court judgment that has made the process of getting there part of the story.
