Western Cape Government welcomes Constitutional Court ruling declaring Public Procurement Act unconstitutional and invalid

The Western Cape Government (WCG) welcomes the ruling handed down by the Constitutional Court today declaring the Public Procurement Act, 2024 unconstitutional and invalid.

The Court upheld the Western Cape Government’s legal challenge, confirming that the National Assembly failed to fulfill its constitutional obligations by neglecting to facilitate reasonable public participation after material changes were introduced to the legislation.

This judgment is a victory for the rule of law and meaningful public participation. The Western Cape Government has long held the view that sweeping national legislation cannot be rushed through Parliament without giving the public and affected spheres of government a fair opportunity to be heard.

Before approaching the courts, the Western Cape Government repeatedly sought to engage the President and the National Minister of Finance, Enoch Godongwana, to resolve these constitutional concerns through intergovernmental channels. Given that these concerns were not addressed, the province was left with no other option than to seek legal recourse.

Attending the proceedings at the Constitutional Court today, the Western Cape Minister of Finance, Deidré Baartman, said, “We welcome today’s judgment as a triumph for constitutional democracy. Public participation should not be treated as a mere box-ticking exercise but as a fundamental democratic right. By striking down this flawed Act, the Constitutional Court has sent a message that due process must be respected.”

Premier Alan Winde echoed Minister’s Baartman sentiment adding, “The ruling represents an important safeguard of the constitutional principles of meaningful public participation and cooperative governance. We urge national government to implement the court’s ruling in full and to regard this judgment as pertinent in other areas of governance.”

In addition to the public participation concerns surrounding its adoption, the Public Procurement Act, 2024 also unduly imposed an excessive number of public procurement policy prescripts which included preferential procurement policy on all organs of state and would have empowered the Minister of Finance to prescribe such requirements in regulations. This would have usurped the constitutionally protected powers of provincial and municipal governments to design and implement procurement systems and preferential procurement policies that are tailored to their unique circumstances and that comply with the values in Section 217(1) of the Constitution.

Additionally, the inclusion of mandatory sub-contracting and ‘set-aside’ provisions (which deal with the allocation of certain procurement opportunities for exclusive categories) would have interfered in the autonomy of provincial and local governments to determine their own systems and policies regarding these aspects. In the Western Cape Government, 57.15% of our total procurement spend already goes toward black-owned businesses without set-asides or mandatory sub-contracting, proving that you don’t need rigid tick-box exercises to achieve transformation and that you can prioritise value-for-money in procurement.

The Western Cape Government will now review judgment in full to understand its immediate operational impact on provincial procurement and any specific directives issued by the Court.