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On 17 September 2026, a significant legislative reform initiative encountered a constitutional procedural hurdle. That may be an overly simplistic way of describing the Constitutional Court’s judgment in Premier of the Western Cape Government and Another v Speaker of the National Assembly and Others; City of Cape Town and Others v Speaker of the National Assembly and Others [2026] ZACC 37, but the judgment nevertheless forms part of what appears to be an increasingly discernible feature of South African public law.
At a glance
- The Constitutional Court's judgment in Premier of the Western Cape Government and Another v Speaker of the National Assembly and Others; City of Cape Town and Others v Speaker of the National Assembly and Others [2026] ZACC 37 introduced a constitutional procedural hurdle to the legislative reform of the Public Procurement Act 28 of 2024 (Public Procurement Act).
- The judgment is not the end of procurement reform, nor is it necessarily a rejection of the objectives that informed the Public Procurement Act.
- If anything, it is a reminder that the legitimacy of significant institutional reform depends on the quality of the final product and on the process by which it is developed.
Major legislative and policy interventions are being subjected to ever closer constitutional scrutiny and, in some instances, are being invalidated not because the underlying policy objectives are necessarily objectionable, but because the processes followed to give effect to those objectives fall short of constitutional requirements. Whether that observation does in fact reflect an emerging trend in South African public law is perhaps a question best left for another day.
With respect to the Public Procurement Act 28 of 2024 (Public Procurement Act) and the judgment under consideration, the court said little about the substance of procurement reform itself. It did not determine whether the policy choices embodied in the Public Procurement Act were correct, whether the transformation measures contained in Chapter 4 were constitutionally sound, or whether a consolidated procurement framework is desirable. Those debates remain very much alive. The court’s concern was procedural: Parliament introduced material amendments, particularly to Chapter 4, without providing a constitutionally adequate opportunity for meaningful public participation.
For procurement practitioners, however, the outcome is somewhat paradoxical. One of the most ambitious attempts to create a single, coherent procurement framework has been invalidated, yet the practical consequences are largely unremarkable. The existing procurement regime remains substantially where it stood before the Public Procurement Act was passed, meaning that public procurement continues to be regulated through the familiar collection of legislation, regulations, National Treasury instructions and institutional supply chain management policies that have governed the sector for years. The fragmentation that the Public Procurement Act sought to address remains, at least for now.
What happens next?
In some respects, that may be the most useful takeaway from the judgment. Much commentary has understandably focused on what Parliament did wrong. A more interesting question may be: what happens next? The structural challenges that motivated the act have not disappeared. Public procurement remains dispersed across multiple legislative instruments (the court noted 34 pieces of legislation), often requiring procuring institutions and bidders to navigate overlapping obligations and evolving regulatory requirements. The policy rationale for reform therefore remains as compelling as it was before the judgment.
Stakeholder responses
The stakeholder responses to the judgment reflect this tension. National Treasury has accepted the judgment while reiterating the need for procurement reform and a more coherent procurement system. The Western Cape Government and the City of Cape Town have welcomed the decision as a vindication of meaningful public participation and constitutional process. Civil society organisations have largely framed the judgment as a victory for transparency and accountability, while legal commentators have generally observed that there is nothing preventing Parliament from pursuing similar reforms again, provided that the constitutional defects identified by the court are addressed.
Perhaps that is the point. The judgment is not the end of procurement reform, nor is it necessarily a rejection of the objectives that informed the Public Procurement Act. If anything, it is a reminder that the legitimacy of significant institutional reform depends on the quality of the final product and on the process by which it is developed. The destination may remain contested, and the policy choices may continue to generate debate, but what the court has made clear is that the journey matters too. Future reform efforts will therefore need to be accompanied by a process that affords stakeholders a meaningful opportunity to engage with, and influence, the development of procurement policy before it hardens into legislative text.
Equally, the judgment should not be understood as requiring the broader reform project to stand still while a replacement legislative process runs its course. While a future statutory framework will undoubtedly require further engagement and parliamentary consideration, there remains scope to continue targeted aspects of the reform journey and to make use of the considerable policy and technical work undertaken in recent years. Depending on the nature of the reform being pursued, this may include measures implemented through the existing regulatory architecture, such as an amendment to National Treasury Regulation 16 issued under the Public Finance Management Act 1 of 1999, further regulations or refinement to those already promulgated under the Municipal Finance Management Act 56 of 2003, or other ad hoc procurement initiatives adopted through National Treasury instructions. Not forgetting corresponding refinements to the internal supply chain management policies of procuring institutions by those procuring institutions themselves. The question arising from the judgment may therefore be less about whether procurement reform will continue, and more how that reform will be pursued in the interim while Parliament considers the next legislative vehicle for achieving it.
Moreover, notwithstanding the court’s declaration of invalidity, organs of state involved in procurement may still consider using certain mechanisms provided for under the Public Procurement Act, as long as such use complies with the Constitution. An example may be found in Chapter 3 of the act, which dealt with procurement integrity and debarment. The provisions in that chapter addressed matters such as codes of conduct for persons involved in procurement, due diligence and declaration of interest requirements, and the circumstances in which persons should be excluded from submitting bids due to conflict of interest, corruption or related misconduct. These provisions gave effect to constitutionally mandated principles including the requirement in section 217(1) that procurement systems be fair, equitable and transparent, and aligned with longstanding policy objectives relating to combating corruption and promoting integrity in public procurement. A procuring institution may choose to adopt or strengthen similar integrity measures within its own supply chain management policies, drawing on the conceptual framework developed in Chapter 3. Such measures could also be implemented through existing regulatory mechanisms, including National Treasury instructions and institutional codes of conduct.
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Read the full publication at Cliffe Dekker Hofmeyr
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