Why amaBhungane is challenging the Public Procurement Act

In early 2024, the absurdity of the Public Procurement Act legislative process was laid bare to me.

On 19 March 2024, I attended a workshop at National Treasury where the results of an assessment of South Africa’s procurement system were being presented.

MAPS (Methodology for Assessing Procurement Systems) is a global initiative which examines a country’s entire procurement system, checking its regulatory framework, operations and accountability, integrity and transparency mechanisms.

In their presentation at Treasury, the MAPS assessors highlighted what weaknesses their thorough assessment had uncovered in the current system and how it could be strengthened.

On the very same day, Treasury was appearing before Parliament’s National Council of Provinces (NCOP) to present their response to the public submissions on the draft Public Procurement Bill.

These two processes were happening in parallel.

While the MAPS assessors were earnestly making their suggestions – to National Treasury – for a more effective and resilient procurement system, other Treasury officials gave what the NCOP committee chair called an “inadequate presentation” on the Bill which paid only lip service to its flaws.

(Despite this the NCOP would soon pass the Bill in much the same form as that presented to them by Treasury – with no sign of the MAPS recommendations.)

And as if it couldn’t get any more absurd, during the tea break at the Treasury workshop, one senior Treasury official came up to another civil society colleague and me and said, “You NGOs must try and stop the Bill in Parliament.”

This from a representative of the very government department driving the drafting and adoption of that Bill.

We were too gobsmacked to respond with much alacrity, but I think we managed to stammer that we were trying our best.

FOR BACKGROUND

Why we must do all we can to prevent the Public Procurement Bill from becoming law

December 5, 2023

Because, by March 2024, nothing could surprise me anymore in how this legislation was being passed.

We went through a frenetic couple of months in which two parliamentary committees had called for written public submissions, heard oral submissions, introduced an entirely new chapter to the draft Bill, made some snarky comments, briefly debated the clauses of the Bill, acknowledged the electioneering at play and eventually voted to pass the Bill, but, in an admission of its imperfections, including a clause calling for a review of the entire legislation after two years.

And so, when just less than two weeks before the general election in May 2024, the two houses of Parliament – the National Assembly and the NCOP – pushed through the Public Procurement Act, it felt more like the “Political Posturing Act”.

We could not let it stand unchallenged.

And now we are in a position to make our formal legal arguments about why we believe that the manner in which the Act was passed was not only shambolic but also unconstitutional.

Last year we were admitted as a party to the challenges brought by the premier of the Western Cape and the City of Cape Town to the passing of the Act. All the papers have been filed and the matter has been set down for hearing on 16 and 17 May 2026. Read all the court papers here.

What we saw in Parliament demonstrated an utter lack of respect for the public participation process, for the citizens and institutions seeking to improve the Bill, and for the need to ensure legislators pass good-quality legislation.

This is why we applied to intervene in the case. We explained to the Constitutional Court that our “case is based on [our] first-hand experience of the legislative process” and that we would provide the court with our “direct account of how the process unfolded”.

We have asked the court to declare the legislation unconstitutional and invalid.

A failure of process

There are two ways to challenge the constitutionality of new legislation that is passed: a challenge to the substance of the legislation or a challenge to the procedure by which it was passed.

What the law actually does and says is substantive. If that breaches constitutional standards, you have to go to the high court first and only after that court has ruled will the Constitutional Court consider the matter. It takes time.

Because the Constitutional Court is the only court that can decide whether Parliament has failed to fulfil a constitutional obligation, procedural challenges enjoy direct access.

And in this case there were glaring failures in the process.

The timelines were ludicrously short, the majority of public submissions were not considered, and National Treasury introduced an entirely new chapter to the draft legislation after the public submissions had been received.

South Africa’s democracy is representative and participatory, which means that public participation in lawmaking is a constitutional requirement.

In our heads of argument we stress that “the Constitution contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered”.

The standard for the facilitation of public participation is reasonableness; Parliament can determine how to conduct participation but this must be done reasonably. This cannot be a mere box-ticking exercise and so the public must be given a real opportunity to influence the content of the laws.

This means that legislators must engage meaningfully with all the submissions made by the public – and consider the content of those submissions when deciding whether to pass or amend the draft legislation.

Our experience of the parliamentary process showed very little of this.

First, the timelines for public participation were farcical.

In the National Assembly, the call for comments was published on 18 August 2023 with a deadline of 11 September. So less than a month for the public to get to grips with the text of a vitally important piece of legislation, do research into comparative systems and present arguments in a cogent manner.

And then the National Assembly held public hearings on 12 and 13 September – one day after the submissions had closed, meaning no parliamentarians would have had time to engage with them properly.

It was a similar situation in the NCOP. The call for comments was published on 30 January 2024, with an initial deadline of 12 February which was – after an outcry from stakeholders – extended to 22 February. Again, the public hearings were held the day after the submission deadline, 23 February.

As we point out in our papers, National Treasury admitted to the National Assembly that the two months between the submission deadline and their own appearance to present their report in Parliament had not been enough time for them to consider all the submissions.

So how could the parliamentary committee members have been expected to, in less than a day, consider these submissions and be familiar enough with the content to be able to engage with the stakeholders in the hearing?

It was impossible.

And that leads to the other fundamental flaw in the process: Treasury, which analysed the submissions on Parliament’s behalf, admitted that it did not read and assess all the submissions made.

Our evidence before the court is that 112 submissions were made to the National Assembly, and Treasury did not get to 71 of those.

That means that 71 members of the public and organisations did not have their views on this legislation considered by Treasury and thus by Parliament.

In Parliament’s own arguments before the court they rely on the fact that there was not enough time to consider all the submissions; they say: “Due to time constraints, we could not respond to all comments received, however, we were able to consider the principal concerns, including revision of Chapter 4.”

There are two glaring flaws in this argument.

First, the time constraints were created by Parliament itself.

The need for a new overarching law to govern public procurement was first proposed more than a decade ago, in 2014, and a version of this Bill was first published by National Treasury for public comment in 2020.

The only reason there were any “time constraints” was because Treasury and Parliament wanted to get the Bill passed before the 2024 national elections.

The chair of the NCOP’s committee acknowledged this. Yunus Carrim said: “The majority party needed to get this Bill through because it was part of its election manifesto, so it wanted to do it as quickly as possible. The opposition parties opposed this Bill, so they would create stumbling blocks like going to court, to prevent this from happening. This was so they could tell the public they had stopped the Bill and should be voted for in the upcoming elections. This was politics.”

But that was not a valid reason for rushing the process in a manner that fundamentally undermined the public participation process.

In our papers we state that “there was no urgent need to unify the procurement system”, and this is strengthened by the fact that despite the President signing the Bill into law in July 2024, it has still not come into effect.

Second, it is frankly laughable for Parliament to use Chapter 4 as an example of how they were able “to consider the principal concerns” and meet their obligations to consult.

Treasury introduced a brand-new Chapter 4 to the draft Bill – not really a “revised” version of the chapter.

This chapter addressed preferential procurement – a core issue that had been dealt with in a solitary clause in the Bill published for public comment.

So, after the deadline for public consultation had already passed, a radically rewritten Chapter 4 was introduced during the National Assembly committee process.

In our court papers we highlight that the new chapter was “presented to stakeholders at the… same meeting at which Treasury acknowledged it had only considered 20% of the public submissions”.

The scope of the changes meant that there was no meaningful public participation on a large and important part of the legislation that was eventually passed.

Parliament explains in their papers that this introduction was legitimate because the stakeholders who had made initial written submissions and were part of the oral hearings were able to comment on the new chapter.

But the chapter was only shared with those stakeholders hours before the meeting, it was read out by the Treasury representative in the meeting “to have it on record that stakeholders were briefed”, and the stakeholders present were given only two minutes to respond.

As we explain in our papers, Chapter 4 introduced significant changes to the legislative framework, and went far beyond what had been included in the initial provision. We noted that the “revised Chapter 4 introduced a level of prescriptive detail that significantly constrained organs of state’s discretion to design and implement preferential procurement policies, constraints that did not exist under [the original] clause”.

And so this fundamental chapter, governing, among other things, which companies would face disqualification from tenders at the first stage, was never presented to the broader public for comment.

Our counsel describe this as “fatal” to Parliament’s argument that its public participation process was constitutional.

These failures should invalidate the Bill in its entirety.

But we felt it was important to draw the court’s attention to other aspects of the lawmaking process that we believe irredeemably undermine the passing of the Bill.

A cauldron of insults

Watching and participating in the public hearings was an eye-opening experience. It’s nothing new that many parliamentarians hold their constituents in contempt, but to see it so openly on display was nevertheless jarring.

I describe our experience in the court papers as “one of frustration and disappointment”.

This contrasts directly with the ideal standard. Our counsel, in our heads of argument, make the point that “quality of engagement matters” as the obligation to facilitate public participation obliges Parliament “not merely to receive submissions, but to engage them with an open mind”.

What we experienced from some parliamentarians was anything but.

Mzwanele Manyi, of the EFF, took aim at us particularly, questioning why our submissions pushed for greater procurement transparency. He asked “was amaBhungane willing to have the same rigour that they were espousing placed on themselves? Were they willing to disclose their sources in the spirit of transparency? It was easy to demand something be done, but [I am] interested to know if [amaBhungane] applied these same conditions to their own functions”.

It is an accepted principle that journalists protect the anonymity of their sources; this is a foundation of the right to freedom of expression. Demanding transparency in the spending of public money can never be equated to journalists revealing sources.

The ANC’s Phoebe Noxolo Abraham also questioned our bona fides, saying “[amaBhungane] should not question the objects of the Bill. The Bill sought to deal with transformation. There should not be an assumption that because the Bill was transformative, it would be ineffective.”

Manyi jumped on the transformation train, grumbling that “I become annoyed when institutions like Corruption Watch and the [Institute for Race Relations], which [are] not known for transformation, come to Parliament and [play] advocate for the poor. [I do] not like to be patronised. If these institutions want to show interest in the poor, they should reflect this in their work.”

In the NCOP, chairperson Yunus Carrim also took the opportunity to take swipes at civil society. He moaned that “civil society had sought to co-govern and not assist Parliament in executing its fiduciary duties”.

All stakeholders making oral submissions had only two minutes to respond to questions from the committees, and having to field these ad hominem attacks prevented them from focusing on their main concerns with the Bill.

But even more fundamentally, the political positions (whether interpreted correctly or not) of a stakeholder should not impact on the respect given to them by legislators.

We certainly felt that, as we explained to the court, “the detailed analysis, research and submissions we had done would not be taken seriously by the parliamentarians because of perceived political differences and, certainly in amaBhungane’s case, an incorrect interpretation of our position on transformation”.

The stakeholders participating in the hearings were simply seeking to exercise their constitutional right to participate in the legislative process, and to add their expertise to an important – and technical – piece of legislation.

They had a right to be there, and the legislators had an obligation to listen to their concerns and suggestions on the Bill.

In fact, the purpose of public participation is to ensure that the legislation that is passed is of the highest quality possible, with the legislators taking advantage of subject matter experts from the public and civil society.

We highlighted for the court that “Parliament’s conduct towards stakeholders affects the quality of engagement during hearings, sessions and meetings” and that the legislators’ “hostility diminished stakeholders’ ability to persuade members, both because they feel personally undermined and because it suggests that members’ minds may be closed to being persuaded”.

No chance of a meaningful contribution

It was clear that the members of the two parliamentary committees – and National Treasury to whom the consideration of the public submissions was outsourced – were not interested in amending the main content of the Bill based on any submissions received from the public.

Not only did those responsible not consider all the submissions, as we discussed above, they did not grapple with the content of the submissions that they did examine.

Take one example.

One of the key concerns from many of the stakeholders was the independence of the Public Procurement Office (PPO) – the former Office of the Chief Procurement Officer, now codified in the legislation.

AmaBhungane was one of the stakeholders who expressed deep concerns about the consequences of locating this unit within National Treasury. The legislation gives all oversight, monitoring and accountability responsibility to the PPO – a bit like enabling procurement officials to mark their own homework.

We referred to conclusions from former chief justice Zondo in his lengthy section on procurement failures in his State Capture Commission report to demonstrate the importance of independence of a procurement regulatory body.

However, Treasury merely “noted” these concerns, referred to the constitutional provision conferring power on Treasury and suggested that Parliament address the concerns.

Needless to say, this was not done. The parliamentary committees were never fully apprised of the arguments made by stakeholders on the PPO’s independence and had no meaningful debate about it.

And so, the Bill was passed and the PPO remains squarely within Treasury.

Interestingly, the term “noted” was used extremely widely by Treasury – we explain to the court that we calculated it to be in response to an astonishing 38% of comments made to the NCOP.

A weak law passed unconstitutionally

It is predicted that the government will spend R1.5-trillion in public procurement over the next three years.

Our work has clearly shown that public procurement is particularly vulnerable to corruption.

We believe that the new Act will not fix this.

As we have argued repeatedly, the content of the legislation simply does not create a procurement system able to withstand the pressures of those who see public procurement as their route to patronage and wealth.

But one of the main reasons for this is because the legislature simply failed to consider the submissions from the public and organisations who were trying to tell them why. DM

This story was produced by the amaBhungane Centre for Investigative Journalism. Sign up for their newsletter.