On 17 September 2026, the Constitutional Court of South Africa issued a unanimous judgment invalidating the highly anticipated Public Procurement Act 28 of 2024 (PPA) in its entirety. The landmark ruling, in Premier of the Western Cape Government v Speaker of the National Assembly; City of Cape Town v Speaker of the National Assembly, struck down the legislation, not on its substantive policy goals, but due to Parliament’s failure to facilitate adequate public participation during its drafting. The PPA had not entered into operation as yet.
The Ambition of the PPA
Historically, South Africa’s public procurement has been governed by a highly fragmented system, relying on over 34 different pieces of legislation, including the Preferential Procurement Policy Framework Act (PPPFA), the Public Finance Management Act (PFMA) and the Municipal Finance Management Act (MFMA). The fragmentation of the procurement regime has created risks of inconsistency across statutory provisions and potential confusion among government procuring institutions and service providers. The Public Procurement Act aimed to consolidate these disparate frameworks into a single, cohesive regulatory regime in accordance with the Constitution.
Why the Constitutional Court Intervened
The main question before the Constitutional Court was whether Parliament failed in its constitutional obligation to facilitate public involvement in the legislative process for the Act. According to the Court, Parliament did indeed violate its constitutional obligations to reasonably facilitate public involvement for various reasons.
First, the Court highlighted several critical failures in the legislative process. Most notably, lawmakers made material amendments to Chapter 4 of the PPA — shifting it from a broad enabling framework that conferred the procuring institutions with considerable discretion on how to craft and implement their own preferential procurement policies, and moved it to a highly prescriptive, exclusionary regime — without giving the public a chance to comment on the changes. That change raised complex economic and practical considerations concerning competitiveness, fairness, cost-effectiveness – certainly material enough to warrant additional public participation in Parliament. The material changes did not end there.
There was a further important difference. The new Chapter 4 also significantly expanded the detail of beneficiary categories adding categories of qualifying enterprises, geographically targeted enterprises, co-operatives, military veterans, youth-owned enterprises and small enterprises. All this needed public scrutiny.
Secondly, the Court found that Parliament had failed to consider all written public comments and rushed the legislative timeline, due to alleged ‘time constraints’.
Because the flaws in public consultation were so deeply intertwined with the Act’s core provisions, the Constitutional Court declared the entire Act unconstitutional and invalid.
Strategic Implications for International Trade
The nullification of the PPA carries several immediate and long-term implications for international trade policy:
- A Reprieve on Strict Local Content Mandates – Foreign companies concerned about the immediate implementation of Chapter 4’s mandatory set-asides and prequalification criteria can breathe a sigh of relief. The rigid mechanisms that would have routinely excluded certain categories of foreign or non-compliant bidders from participating in high-value state contracts are off the table, for now. This means that designation is once again, dead. The dtic cannot designate new sectors for local production and content. Of course, it is still unclear if the currently designated 29 sectors are still binding. The PPA did not answer this question, so it’s as you were.
- A Return to the Status Quo – Because the Act is invalid, South Africa’s public procurement will continue to be governed by the existing, albeit fragmented, legislative framework (including the 2022 PPPFA Regulations). While this means international firms must continue navigating a complex web of municipal and national regulations, it is a system the global market already understands and knows how to navigate.
- A Second Chance for Advocacy – The South African government is highly likely to reintroduce a new version of the procurement bill to achieve its transformation and consolidation goals. However, this time, Parliament will be strictly bound to conduct a thorough, transparent, and reasonable public participation process. This presents a vital window for international chambers of commerce, foreign trade missions, and multinational corporations to actively participate in the legislative process. By submitting well-reasoned comments on how specific local content requirements or subcontracting mandates might inadvertently stifle foreign direct investment or inflate state costs, international stakeholders can help shape a more balanced regulatory framework.
In short, the first rule of public participation as an interested party is that you participate. As this case shows, you can only shape policy or in this, shape the process of making policy by participating in it. We can help you make these submissions when the PPA will definitely make its way back through Parliament.