The Constitutional Court has declared the Public Procurement Act, 28 of 2024 unconstitutional and invalid.
In handing down judgement todsay, it was declared that Parliament failed to comply with its constitutional obligation to facilitate public involvement in accordance the Constitution before passing the Public Procurement Act 28 of 2024. It was declared that the Public Procurement Act was adopted in a manner inconsistent with the Constitution and is therefore invalid.
As a result of this finding, the court did not find it necessary to deal with the other matters raised by the applicants.
It follows that the published draft regulations (including proposals around preference thresholds, set-asides, and mandatory subcontracting) cannot be enacted into law in their current form.
So what hapens now?
Parliament must re-open the legislative process, conduct proper and meaningful public participation, and either re-pass a corrected version of the Public Procurement Act or amend the defective provisions.
Once a constitutionally sound Act is enacted, National Treasury will have to re-draft and re-publish the General Public Procurement Regulations for a fresh public comment period under the newly valid parent legislation.
The draft regulations are therfore stalled indefinitely and cannot be operationalised until Parliament rectifies the primary legislation's constitutional flaws.
