MK Party calls for Public Procurement Act process to be corrected after ConCourt ruling - IOL

The MK Party says a Constitutional Court ruling against the Public Procurement Act should not derail transformation in public procurement.

The MK Party has called for the legislative process behind the Public Procurement Act to be urgently corrected after the Constitutional Court declared the law unconstitutional and invalid on Thursday.

The judgment focused on whether Parliament had properly allowed for public participation after changes were made to the legislation.

President Cyril Ramaphosa signed the Public Procurement Act into law in July 2024, but it had not yet come into effect when the Constitutional Court handed down its judgment.

The Western Cape Government and the amaBhungane Centre for Investigative Journalism had challenged Parliament’s process, including the treatment of Chapter 4, which deals with the use of public procurement to advance socioeconomic transformation.

The Constitutional Court found that Parliament had not met its constitutional obligation to facilitate reasonable public participation on the amended provisions.

It also found that Parliament had failed to provide a reasonable process for stakeholders to consider and respond to the amendments.

Because of that finding, the court said it was unnecessary to determine the other substantive challenges brought against the Act. The applicants were also awarded costs.

The MK Party said it could not celebrate a judgment which had stalled legislation intended to advance transformation in public procurement.

The party stressed that the court’s finding was based on the legislative process rather than a rejection of the transformation objectives contained in the Act.

It said Parliament’s failure to properly facilitate public participation reflected what it described as a broader problem with the use of parliamentary majorities at the expense of meaningful public involvement.

“It is deeply concerning that this approach appears to be continuing under the current coalition, the so-called Government of National Unity (GNU),” the MK Party said.

The party said the judgment demonstrated that transformation and constitutional compliance had to proceed together.

“The lesson is clear: transformation must proceed, but it must proceed constitutionally,” it said.

The party called for the legislative process to be urgently corrected, saying procurement transformation should continue while constitutional requirements are respected.

The Western Cape Government also welcomed the Constitutional Court ruling, saying it had vindicated the province’s challenge to Parliament’s handling of the legislation.

Western Cape Finance Minister Deidré Baartman said the judgment reinforced the constitutional importance of public participation.

“We welcome today’s judgment as a triumph for constitutional democracy,” Baartman said.

The provincial government said it had raised its concerns with Ramaphosa and Finance Minister Enoch Godongwana before approaching the court.

Western Cape Premier Alan Winde said the judgment also reinforced the principle of co-operative governance.

The province had also raised substantive concerns about provisions dealing with preferential procurement, mandatory subcontracting and set-asides, arguing that these could affect the procurement powers of provincial and local government.

The Western Cape Government said 57.15% of its procurement spend already went to black-owned businesses without set-asides or mandatory subcontracting.

''The Western Cape Government will now review the judgment in full to understand its immediate operational impact on provincial procurement and any specific directives issued by the Court.''