Government’s loss in public procurement case may herald law-making paralysis

On 17 September, the Constitutional Court delivered the eagerly awaited judgment relating to the Public Procurement Act.

As some had hoped, and the government had feared, the act was declared unconstitutional and invalid.

The genesis of the story is that in designing the Constitution of the Republic, the need to engage the public when drafting laws that would ultimately affect them was cast in stone.

In sections 59, 72 and 118 of the Constitution, it is quite explicit that the National Assembly, the National Council of Provinces (NCOP) and provincial legislatures must facilitate public involvement in the legislative and other processes.

This means that when new laws are mooted, there is an expectation that the public will indeed be offered a chance to be involved in the process.

Public consultation, a complex task

Lawmakers who are elected to represent the public are expected to put the public interest at the heart of the binding laws they propose and pass – and the best way to ensure alignment with the public interest is to actually canvass it.

South Africa’s linguistic and social diversity cannot be ignored in the process of engaging the public.

This means the practice of using a single language does not suffice and communities of different social and linguistic profiles have to feel that public consultation engages them at a level where language barriers are not a hurdle to participation.

As the bills are primarily drafted in English, the processes involved in ensuring that translations and explanations where required are properly prepared call for a long lead time where no one gets rushed in the process.

At some point, the Legislative Sector Public Participation Framework was developed to codify “reasonable public participation”.

Under this guidance, features of reasonable public participation include holding pre-hearing workshops in order to establish relationships with stakeholders, running effective communication and awareness programmes, and ensuring that communities are mobilised and consultation meetings convened.

In addition, summaries of proposed bills are meant to be translated into at least three languages spoken in a particular province and invitations to public hearings must be sent weeks in advance.

When public hearings are heard in provinces, permanent delegates to the National Council of Provinces are required to attend. Most crucially, negotiating mandates that ultimately inform deliberations must be accompanied by detailed public comments.

Such a framework essentially captures the entire spectrum of public consultation and promotes – if not ensures – inclusivity.

Synthesising often irreconcilable views

What it perhaps cannot do equally explicitly is determine how public comments and views that will naturally be diverse, polarising and often irreconcilable, must all be synthesised in final deliberations.

The obvious difficulty is that in spite of parliament’s best intentions, some bills are complex and technical and hence the range of citizens who can engage meaningfully on their own starts to shrink.

When citizens have access to resources – technical, legal and policy specialists – they can at least rely on such resources to inform their viewpoints.

The downside of this model is that only the better-resourced community and civil society structures stand a fair chance of mobilising and informing affected citizens and constituencies timeously enough to enable meaningful participation and contributions.

The implication of such a model is that substantive consultation is not just a question of numbers but also the substance of contributions made.

If a public hearing involves a contentious and polarising issue like the land-related bills, the public hearings can degenerate into a dichotomy between massively mobilised constituents who simply state ‘No’ without offering any substantive justification for their position.

On the other side, fewer but well-justified submissions that say otherwise may be presented on the same platform.

The challenge then is to avoid a blind counting exercise where the number of ‘No’ submissions prevails just because they have volume and the number of substantively reasoned rebuttals are overwhelmed.

Bills with flaws and blind spots

The hard reality is that some bills are proposed with serious flaws and blind spots that benefit from a public consultation process where multiple stakeholders can make contributions.

While the law does not guarantee that everyone’s viewpoint will ultimately be reflected in the bill and the resultant act, the requirement is for public consultations to be approached with an open mind, and the public consultation process must have an ability to influence the deliberations.

When laws are enacted that appear to have paid little attention to the range of public inputs, the involved stakeholders will reasonably question whether the process was a consultative one or a compliance exercise.

To this end, the responses to the public comments themselves are instrumental.

They should articulate how lawmakers engaged each issue raised and can – if nothing else – give assurance that contributions are not wholly ignored.

Despite these provisions, badly conceptualised laws can still emerge if those responsible for the process are able to skirt the margins of consultation and then use their voting power to usher in a flawed process.

ANC legislative dominance, then came the GNU …

Over the past 30 years, the process of making laws has been subject to two distinct political phases – the pre-government of national unity (GNU) phase and the current phase where the GNU is in place.

In the previous phase, the ANC held a majority in the National Assembly and all but one delegation in the National Council of Provinces. Given the way bills get introduced in the first place, the majority would have emerged from the ANC and would presumably have been reflective of the party’s view and position in relation to the issue at hand.

If the public consultation process could be ticked as a pass mark, then the follow-up processes of National Assembly and National Council deliberations could still mirror a position of the ANC rather than the reflections of a wider stakeholder group including citizens.

As it turns out, such laws have come to pass, and it was when the Constitutional Court was asked to intervene where the spirit of the law-making process could be emphasised.

Over the years, cases relating to the question of whether the process was constitutionally-compliant have been adjudicated and the principles have been continuously reinforced.

This means parliament and the ANC in particular have access to a rich archive of reference points that explain how such consultations ought to work.

With all this in mind, the question of how so many cases still make their way to the Constitutional Court and how the government lost its most recent case relating to the Public Procurement Act naturally emerges.

The salient part of the judgment is that in completing the process of passing the bill, parliament seems to have been fixated on truncated timelines that made little sense in light of the vast number of affected stakeholders who attempted to make submissions.

There’s also the fact that a wholly new chapter on preferential procurement was smuggled into the final versions without being subject to a public consultation process.

Some of this was evidently influenced by the need to complete it all before the general election of 2024.

Election urgency is not ‘objective’ urgency

But what the government and parliament knew – thanks in part to the Land Access Movement of South Africa (Lamosa) – was that a parliamentary desire to finalise a legislative process before the end of term does not create any objective urgency.

This means that it is not open to lawmakers to bypass the public consultation process simply because they forgot to plan on time and are chasing a deadline.

The tempting proposition is that an ANC government, whose pre-election internal polling started predicting a less assured governance pathway after the 2024 general election, woke up to the reality that bills already passed when it had the majority in both houses – and were simply waiting for presidential assent – only required the presidential signature to be cast in stone.

While the gap between NCOP concurrence and presidential assent has no timelines and the president can simply wait and not explain the delay, the period around and since the 2024 general elections coincided with a sense of urgency.

Bills that had long lingered across the corridors of deliberation suddenly found favour with the presidential pen.

The National Health Insurance (NHI) Bill, the first version of which was introduced by then minister of health Dr Zweli Mkhize in 2019, went on to traverse a long and complicated journey

It was signed into law in May 2024 (shortly after Panyaza Lesufi declared that NHI was indeed imminent provided voters gave the ANC a mandate).

The Expropriation Bill, with a stop-start history much longer than most people can recall, was signed into law in January 2025 after being available for the president to sign since March 2024.

The highly contentious Basic Education Laws Amendment Bill, which was passed by the NCOP in May 2024 with noted dissent from the Western Cape delegation, was signed into law in September 2024.

But so contentious were its components that Basic Education Minister Siviwe Gwarube of the DA did not attend the signing ceremony.

The president then offered the range of disaffected stakeholders a post-event consultation window before all clauses came into force in December 2024.

Which brings us to the Public Procurement Act …

The Public Procurement Act itself was passed by the NCOP in May 2024 and signed into law in July 2024, just weeks into the GNU when the rules of engagement were still contested.

As parliament had failed in its duty, the president was asked to sign a law whose rushed development created the defects that ultimately proved fatal.

Some of the glaring flaws included a comment window of just three-and-a-half weeks and a limited period of just four hours for stakeholders who wanted to review the new chapter on Preferential Procurement.

For those who had something to say directly to lawmakers, parliament allocated a grand total of just two minutes per presentation.

Of the 112 submissions received by the finance committee, just 41 merited responses from National Treasury.

The DA-led Western Cape government was one of the parties that fought to have the Public Procurement Act set aside, even though the DA is a member of the GNU.

The result of the law being struck down in its entirety is that it leaves the procurement system subject to the prevailing litany of rules that remain in desperate need of alignment and the timeline for drafting a new bill is still unknown.

Risky gamble

If such bills were signed into law just to ensure that they cast laws reflective of ANC preferences into stone – ensuring that future governments would ‘have’ to make the best of what had been etched into law – then bypassing critical public consultations was a risky exercise, precisely because of the possibility that such bills can get reviewed and set aside due to this

Across all these laws, the ANC did not always find common ground with its newfound GNU partner, the DA, and could still get the laws passed.

In some of the laws, the dissent was across the political spectrum and not just a matter of the DA in its capacity as the official opposition.

Consequences

When these laws get invalidated on the basis of the ANC-dominated parliament’s failure to do the basics, the process has to start afresh – and given how contentious some of the issues are, it is rather difficult to see this as an easy process.

Missteps in consultation that leave bills open to reviews of this nature have consequences.

It means key legislation the ANC thought it had got over the line – like the NHI – may ultimately have to be restarted if they are subjected to judicial review and do not survive scrutiny.

For a party not used to convincing other parties on the merits of its proposals – and also not always keen on following the labour of public consultation processes – the ANC needs to learn how to negotiate and consult with other political parties at every step.

Because avoiding the pitfalls of flawed public consultations is the only way we can avoid a law-making paralysis under the GNU.

This article was republished from Moneyweb. Read the original here.