How parliamentary haste sabotaged procurement reform and delayed transformation

Parliament’s haste has sabotaged critical procurement reform, resulting in the Constitutional Court invalidating the Public Procurement Act. This rushed legislation causes delayed transformation, and to prevent this in the future, there needs to be strict public participation rules and recorded votes to prevent failures.

The Constitutional Court has invalidated the Public Procurement Act in its entirety because Parliament failed to facilitate meaningful public participation. An ambitious attempt to transform the procurement regime has consequently been stopped in its tracks, not principally because of what the legislation sought to achieve, but because Parliament failed to respect the constitutional process required to achieve it.

The result is bitterly ironic. In its haste to deliver transformation, Parliament has delayed transformation.

This was not an insignificant piece of legislation. Public procurement determines how the state spends hundreds of billions of rand, how corruption is constrained, how value for money is secured and how previously excluded South Africans gain access to economic opportunity. The Act was intended to replace a fragmented procurement framework with a more coherent system.

Now that reform has been lost. The existing procurement regime remains in place, Parliament must return to the legislative drawing board, and taxpayers must carry the costs of avoidable litigation and duplicated legislative work.

Public participation did not cause this delay. Parliament’s failure to conduct it properly did.

Even more disturbing is that Parliament cannot claim that it did not know.

The danger was raised explicitly before the Standing Committee on Finance. At its meeting of 17 November 2023, Professor Geo Quinot of the African Procurement Law Unit warned that the time afforded to consider the National Treasury’s responses was inadequate. He specifically referred the committee to Constitutional Court jurisprudence governing public participation and urged it to provide stakeholders with a further opportunity to respond.

He was not alone. Cosatu questioned the integrity of a process in which only about 20% of submissions had reportedly been considered. AmaBhungane questioned whether the process could be regarded as meaningful. Corruption Watch asked for more time . Other stakeholders complained that documents had arrived late and that they had been given only two minutes each to comment. National Treasury itself acknowledged that time constraints had prevented it from responding thoroughly to all the submissions.

The warning even came from within the ANC. Committee member PG Masualle described the limited response to public submissions as worrying and cautioned that allowing public voices to be ignored could cast doubt on the legitimacy of the process. Yet the committee pressed ahead.

The haste is difficult to comprehend. On 1 December 2023, the committee was asked to consider a final version of the Bill that had reportedly been submitted only two hours earlier.