The Constitutional Court of South Africa has invalidated the Public Procurement Act in its entirety due to Parliament's failure to facilitate meaningful public participation. This legislation aimed to replace a fragmented procurement framework with a more coherent system, determining how the state spends hundreds of billions of rand, constraining corruption, securing value for money, and providing economic opportunities to previously excluded South Africans. The Act's failure has resulted in the existing procurement regime remaining in place, with Parliament required to return to the legislative drawing board.
The haste with which Parliament processed the legislation has been criticized, with warnings raised about the inadequate time afforded to consider the National Treasury's responses. Professor Geo Quinot of the African Procurement Law Unit warned the Standing Committee on Finance on 17 November 2023 that the time constraints would prevent meaningful public participation, citing Constitutional Court jurisprudence. Despite these warnings, the committee pressed ahead with the legislation, with some members expressing concerns about the process.
Various stakeholders, including Cosatu, AmaBhungane, and Corruption Watch, questioned the integrity of the process, citing the limited time allowed for submissions and the lack of consideration for some submissions. National Treasury itself acknowledged that time constraints had prevented it from responding thoroughly to all submissions. Committee member PG Masualle described the limited response to public submissions as worrying, cautioning that ignoring public voices could cast doubt on the legitimacy of the process.
The process was overseen by MJ Maswanganyi of the ANC, with other members present, including PN Abraham of the ANC, W Alexander of the DA, and EM Buthelezi of the IFP. The publicly available Parliamentary Monitoring Group account shows that some individual actions were recorded, but it does not provide a member-by-member voting record. The account states only that the Bill and the motion of desirability were "duly adopted," with the DA reserving its position and objecting to the motion.
The lack of transparency in the voting process has been criticized, with calls for Parliament to establish rules to prevent a recurrence of such a failure. The Inclusive Society Institute's CEO, Daryl Swanepoel, argues that public participation is not an administrative inconvenience or a legal box to be ticked, but a democratic right, an accountability mechanism, and a means of producing better law. Swanepoel's book, The People's Voice, argues that Parliament's failure to respect the constitutional process has resulted in the delay of transformation.
To prevent similar failures in the future, Swanepoel recommends that every committee vote advancing legislation should be formally recorded and published by name, identifying every member present and their vote. He also suggests that minimum public-participation periods must be prescribed, with substantial amendments reopening the Bill for public comment. Furthermore, Parliament must publish a participation report before adopting a Bill, listing submissions received, explaining how they were considered, and stating which proposals were accepted.
The failure of the Public Procurement Act has significant implications for South Africa's procurement regime, with taxpayers carrying the costs of avoidable litigation and duplicated legislative work. The Constitutional Court's decision highlights the importance of public participation in the legislative process, and Parliament must take steps to ensure that such a failure does not recur. By establishing transparent and accountable processes, Parliament can ensure that legislation is developed in a manner that respects the constitutional rights of citizens.
Key points
- Parliament's failure to facilitate meaningful public participation has resulted in the Constitutional Court invalidating the Public Procurement Act.
- The haste with which Parliament processed the legislation has been criticized, with warnings raised about the inadequate time afforded to consider the National Treasury's responses.
- To prevent similar failures, Parliament must establish rules for recording committee votes, prescribe minimum public-participation periods, and publish participation reports.
