Cape Town Mayor Geordin Hill-Lewis has welcomed the Constitutional Court’s upholding of the City’s application to invalidate the Public Procurement Act, which the Mayor has warned would slow down local service delivery and undermine the constitutional autonomy of local government. The court further awarded costs to the City, to be paid by the President, and Speakers of the NA, NCOP and legislatures which opposed the application.
‘We are glad that the Constitutional Court agreed with our case that the Act was passed unlawfully, with insufficient public participation and parliamentary consideration.
‘Before we took the step of approaching the Court, we wrote to the Finance Minister and President several times raising fairly obvious constitutional concerns relating to this legislation. None of those warnings were heeded. But they have now been confirmed by the Court, also with costs awarded.
‘Most importantly, this ruling protects the rights of local and provincial government to pursue their own policies and approaches to procurement, to achieve better public outcomes. The Court has consistently upheld the independent powers and functions of local governments.
‘This Act would have slowed down local service delivery and infrastructure investment, making it much harder for municipalities to procure quickly for urgent local needs.
‘Municipalities must be able to act swiftly to resolve urgent water, sanitation, electrical, waste, and environmental issues.
‘That’s why we’re relieved at the striking down of this Act, which avoids a massive new red tape burden on Cape Town’s critical basic infrastructure investments – amounting to an SA-record R12,2bn in the last year, with 75% directly benefitting lower-income households,’ said Mayor Hill-Lewis.
The City’s application pointed out that the adoption of the Bill was unlawful due to various problems with public participation and parliamentary processes, including that seven of nine provinces did not have lawful final mandates to vote on the bill in the NCOP.
Mayor Hill-Lewis previously raised wide-ranging concerns about new red tape that would be introduced by the Act, including
Municipalities being unable to maintain their own database of accredited suppliers and payment records, instead integrating with a national databasE
Centralising all national procurement via a Public Procurement Office (PPO), running the risk of nationwide disruptions if the central system goes offline
Removal of municipal power to lawfully deviate from procurement regulations for urgent service delivery without centralised approval via the PPO
The Mayor further cited concerns that around 36 elements of the Act would have required new regulations, exposing local government to hidden cost implications and red tape burdens. The Act also attempted to position the National Finance Minister as a regulatory authority over local government, which is inconsistent with the Constitution, Municipal Systems Act and the Municipal Finance Management Act.
The Constitutional Court declared the Public Procurement Act, 2024 unconstitutional and invalid following legal challenges brought by the Western Cape Government and the City of Cape Town.
Reason for Invalidation: The Court ruled that Parliament failed to fulfill its constitutional duty to facilitate proper public participation. Significant, material changes were introduced to the draft legislation late in the process without giving the public, civil society groups, or affected municipalities adequate time or opportunity to present their input.
Core Legal Arguments:
Procedural Flaws: Advocacy groups (such as amaBhungane) demonstrated that the public was given as little as four hours to review heavily rewritten sections and only two minutes each to present their submissions.
Encroachment on Local Governance: The Western Cape Government and the City of Cape Town argued that centralized control under a national Public Procurement Office undermined municipal/provincial autonomy and introduced excessive bureaucratic red tape that would delay critical service delivery.
Impact of the Ruling:
The Act, which intended to create a single uniform framework for public tenders and preferential procurement across all government organs, has been struck down.
Government entities will continue operating under existing, decentralised procurement frameworks until Parliament properly re-engages the legislative and public consultation process.
