Public Procurement Act challenged in court for 'shambolic' and 'unconstitutional' legislative process

South Africa's newly enacted Public Procurement Act faces a significant legal challenge, with opponents arguing its passage was procedurally flawed and unconstitutional. This specific type of procedural challenge bypasses initial lower courts, granting direct access to the Constitutional Court. This court holds sole authority to determine if Parliament has failed its constitutional obligations in law-making. The legal action focuses squarely on the process by which the Act was adopted, rather than its substantive content.

The legislative journey of the Public Procurement Act has drawn sharp criticism for multiple procedural shortcomings. Public engagement faced a restricted timeline; the call for submissions opened on August 18, 2023, with a deadline of September 11, 2023, giving citizens less than a month for input. Of the 112 public submissions made on the draft Bill, National Treasury did not consider 71. Reports indicate an "inadequate presentation" on the Bill was given to Parliament’s National Council of Provinces (NCOP) by Treasury officials. Further adding to concerns, Parliament passed the Act fewer than two weeks before the country's May 2024 general election. This swift timeline suggests a hurried legislative push. Additionally, an entirely new chapter appeared in the draft legislation after the public consultation period had concluded, raising further questions about transparency and due process.

This legal challenge highlights the constitutional imperative for robust public participation in South African law-making, a cornerstone of its representative and participatory democracy. Critics argue the process demonstrated a disregard for citizens and institutions attempting to improve the legislation. The case, brought before the Constitutional Court, seeks a declaration that the Act is unconstitutional and invalid due to these procedural failures. The court hearing is scheduled for May 18 and 19, 2026. This case will critically test constitutional standards for legislative processes, emphasizing Parliament's duty to ensure thorough and inclusive public engagement. Observers will watch for how this ruling might shape future legislative practices regarding transparency and public involvement, potentially impacting the legitimacy of future legislation.