On 17th September 2026, the Constitutional Court declared the Public Procurement Act 28 of 2024 (the Act) unconstitutional and invalid. Fasken partner Hlengiwe Zondo-Kabini unpacks South Africa’s complex procurement laws, the problems the Act sought to address and what the judgment means for organs of state and government suppliers.

Unconstitutional and invalid

The unanimous judgment was handed down in two linked applications led by the Premier of the Western Cape Government and the City of Cape Town. AmaBhungane Centre for Investigative Journalism was an applicant in both cases, while Solidarity joined the City’s application.

The Act was invalidated because Parliament failed to meet its constitutional duty to facilitate meaningful public involvement before passing it.

At the centre of the dispute was Chapter 4, which dealt with preferential procurement. The first version of the Bill contained an enabling framework that left procuring institutions with considerable discretion. The final iteration of Chapter 4 replaced this with a much more detailed and prescriptive regime covering mandatory set-asides, prequalification criteria, subcontracting obligations, local-content requirements and specified beneficiary categories.

These were material changes with potentially wide consequences for procuring institutions and companies bidding for state work. Yet stakeholders received the revised Chapter 4 only about four hours before a parliamentary meeting on 17 November 2023 and were given two minutes each to raise concerns. National Treasury also told the parliamentary committee that it had not been able to consider all the submissions because of time constraints. Also, the National Council of Provinces and/or the standing committee did not consider the submissions that were not considered by National Treasury.

The court found that the public required a further opportunity to comment on the revised chapter. It also found serious deficiencies in the consideration of written submissions and in the shortened consultation timeframes. Because the defects affected Chapter 4 as well as the legislative process more broadly, the court invalidated the entire Act.

“The now invalidated Act sought to introduce wide-ranging measures that would have affected procurement systems across the entire public sector. Chapter 4 introduced a far more prescriptive statutory regime, thereby curtailing the discretion of organs of state. For private companies intending to bid for government contracts, it framed procurement as an ‘unreasonably narrow gate’ and would have encouraged the routine exclusion of certain bidders from participation as a matter of law,” says Zondo-Kabini.

The declaration of invalidity was not suspended. The court found that the Act had never been brought into operation and that existing legislation already regulated the matters it was intended to address. Its immediate invalidation therefore did not create a legal vacuum or disrupt state procurement institutions.

The invalid Act does not simply revert to a Bill. The court declined to direct Parliament on how to remedy the defects. Government and Parliament may introduce new legislation, including a measure based on similar policy objectives, but it will have to proceed through a fresh constitutionally compliant process with meaningful public participation.

What governs procurement now?

“Currently there are thirty four pieces of legislation that govern State procurement and expenditure. Additionally, organs of state would have to consider their own enabling legislation which contain some aspects of procurement. Procurement is fragmented and the Act aimed to consolidate the varied legislative regime by enacting a single piece of legislation which cuts across all three spheres of government,” states Zondo-Kabini.

Municipalities, public entities and bidders must continue to work within the existing procurement framework. This includes section 217 of the Constitution, the Public Finance Management Act, the Municipal Finance Management Act, the Preferential Procurement Policy Framework Act, the Broad-Based Black Economic Empowerment Act, applicable treasury regulations and instruction notes and circulars, and sector-specific enabling legislation.

“Under the Preferential Procurement Regulations of 2022, an acceptable tender for goods or services with a value equal to or below R50 million is evaluated using the 80/20 preference point system. Up to 80 points are allocated for price and 20 for the specific goals stated in the tender. For a value above R50 million, the 90/10 system applies, with up to 90 points for price and 10 for the stated specific goals,” says Zondo-Kabini.
She adds that this comparative scoring follows the assessment of mandatory requirements and any technical or functionality criteria contained in the tender.

“The ruling therefore does not remove existing compliance duties or give procuring institutions or bidders a period in which procurement rules are relaxed.”

The judgment also affects the draft General Public Procurement Regulations of 2026, which were developed under the now invalid Act. Those draft regulations included dedicated infrastructure procurement provisions, such as infrastructure procurement plans, gateway reviews, feasibility requirements and risk-management measures.

These proposals were intended to strengthen project preparation and reduce the risk of projects reaching the market before designs, funding, approvals and site conditions had been properly addressed. However, they cannot be implemented under an Act that has been declared invalid. “This does not necessarily mean that the underlying project-preparation measures have been abandoned. Similar provisions could return in future legislation or regulations, but they would need a valid enabling Act and an appropriate consultation process,” maintains Zondo-Kabini.

Balancing consistency with practical discretion

Although the need to simplify the procurement landscape remains, Zondo-Kabini questions whether a highly prescriptive national framework can account for the operational differences between municipalities, state-owned entities and other organs of state.

“The intentions of the Act were noble but misplaced,” she says.

A unified system, in her view, must still give procuring institutions enough discretion to respond to the realities of their sectors and to align procurement with their own enabling legislation.

That balance is particularly important in infrastructure procurement. Roads, water systems, energy projects and public buildings involve different technical standards, risk allocations, contracting strategies and market conditions. Rules intended to promote uniformity and transformation must also allow institutions to assess competence, quality, whole-life value and delivery risk.

The ruling returns procurement reform to the starting blocks, but it does not remove the need for reform. The challenge is to develop a coherent system that reduces fragmentation and strengthens integrity without creating rigid rules that overlook sector-specific realities or unnecessarily narrow the pool of capable bidders. Meaningful public participation will be central to getting that balance right.