Amabhungane challenges the Public Procurement Act

Added: 2026-05-17

[00:00:00]Amabhungane is heading to the Constitutional Court arguing that Parliament passed the Public Procurement Act without giving the public a meaningful opportunity to shape the legislation. The Investigative Journalism Unit says serious concerns were raised during the drafting process including questions around transparency and accountability in South Africa's procurement system. For more on this, we are joined by advocacy coordinator at the Amabhungane Centre for Investigative Journalism, Caroline James. Caroline, thank you so much for your time and for joining us this morning. Perhaps maybe let's start with you explaining the impetus and the spirit around the Public Procurement Act. What is that about?

[00:00:43]Morning Ketho. Thank you very much for having me on. So, the Public Procurement Act is a piece of legislation which has the potential to completely change South Africa's procurement system, to change the way government tenders are operated in the country. And this piece of legislation has been in the works since 2014. So, it's been a very long period of time that it's been drafted. And it's there to to replace the various little bits of legislation that govern provincial and national governments and local governments and state-owned entities and there's a very fragmented system at the moment that exists to govern the way tenders are done. And this act in principle is really, really positive cuz it creates um a far more coherent, a centralized understanding of how the framework for the tender system in South Africa should operate. But, we've been involved in the process and we have, as you've mentioned, some very serious concerns about the way that the act was passed, but also more fundamentally, the content of the act, which isn't the main focus of our constitutional challenge this week, but it is something that we have been speaking out about over the years.

[00:01:50]>> Yeah, so maybe let's just touch on that um before we get into other things because as Amabhungane, you're taking that legal step um to challenge the public procurement act. What specific aspects of the process or the content do you believe are unconstitutional?

[00:02:05]So, in the process, the problems that we have with that, which is what we're highlighting in the Constitutional Court this week, we feel that there just simply wasn't proper respect given to the constitutional obligation on Parliament to provide the public with a meaningful opportunity to influence the content of the legislation. And there are number of different reasons why we believe this so strongly. And the first was that there were a number of different public submissions made to Parliament. I think at in our papers, we talk about that 112 different submissions were received from civil society groups as well as individuals who are involved in in procurement in the country. And very few of those were actually considered. Uh we speak about only 40% of them having been looked at by National Treasury, who were running the whole the whole process on sort of behalf of Parliament, and then by Parliament itself. So, a large percentage of the public submissions that were made were simply not considered. And then we say that even those submissions that were considered weren't engaged with thoroughly. A lot of the points that had been raised by members of the public or civil society groups were simply noted by by Parliament and by National Treasury or sort of kicked down the can for discussion at a later stage. One example of this is the entity that is created to monitor all procurement in the country is located within National Treasury. And AS and various other civil society organizations expressed concern about the lack of independence of having a system or an entity which is supposed to create accountability of procurement within the very system that conducts procurement. So, that was one of the serious concerns we had, and we just felt that those submissions were just never engaged with on a sufficiently detailed level. And then the final really important era in the process that we believe was that after the submissions had been made and after the process was now before Parliament, a whole new chapter of the legislation was introduced. And this chapter is around preferential procurement and the way in which BEE points and set asides and various other elements of sort of creating the transformative element of public procurement will be dealt with was all introduced into the draft legislation only after there'd been any opportunity for the public to make submissions. So, there was no opportunity for the public to make meaningful submissions on this brand new chapter.

[00:04:37]>> Mhm. So, what it seems what you're describing here, Caroline, is that it simply was a tick box exercise. It was rushed. Um a few of the submissions were considered. Why do you think this approach was taken?

[00:04:51]So, I think you're absolutely correct that it was a rushed process and that is something we've raised quite a lot in our legal papers.

[00:04:58]I think that it is it has been seen as a tick box exercise. Earlier on in our democracy, when the courts were asked to decide whether Parliament had sufficiently offered the opportunity for public submission. In those situations, there'd been no public hearings. And then it was very clear that there had just simply not been sufficient public participation. But now, as you're saying, they are holding these public submissions. They're allowing people to to make submissions, but then, as you say, it's just a tick box. Okay, we've done that. We don't actually need to consider what they've been said. And the constitution requires that there be a meaningful opportunity to influence the legislation. And if Parliament isn't considering the submissions, then there is no opportunity to to influence the content of that legislation, as I've said. And then, we also believe that one of the reasons that it was rushed was because there was a political imperative to get this legislation passed before the 2024 general election. And so, even though it had been a very lengthy process, as I mentioned from 2014, it was squeezed into the last few months before the elections to try and get it done. And so, it was just this real really rushed process to sort of, okay, we're going to have public the submissions are going to be submitted by the Monday. We'll hold the hearings on the Tuesday. Then we're going to vote on the bill and move it on. And so, it really did feel that it was a political goal to get it done before the elections.

[00:06:26]>> So, Caroline, just looking ahead, what reforms or changes do you think need to be advocated for in order to ensure that procurement legislation promotes that transparency, the accountability, and the anti-corruption measures effectively?

[00:06:40]So, one of the things that we were really arguing for is that, as I mentioned, that there needs to be an accountability body that's situated outside of National Treasury that can really interrogate the way tenders are operated and to identify flaws in those processes before it gets too late, before the tenders awarded to through a corrupt process. So, that's one aspect that we really would like to see as an independent body responsible for monitoring and holding corrupt officials accountable. But, we also believe, as you mentioned, the need for greater transparency. And before Parliament, we argued that we need to have some more innovative approaches to that. Instead of just publishing the documents around the tender, which we believe is is vital, there are other options around the world that we could draw on. There's some situations in Latin America where you create a citizens committee who then sits and monitors the process as it happens. And often these are citizens from the community that is affected by by tender.

[00:07:40]So, if a school is being built in a rural community, you will then appoint members of that community to sit on this citizens monitoring committee to ensure that the process is operated fairly and freely and that there are no corrupt influences. So, we really believe that there's a need to look a little bit more deeper into how we can create an innovative mechanisms to prevent the corruption that we all know is so inherent in our current procurement system.

[00:08:07]>> certainly, Caroline. Thank you so much for your time and just unpacking to us the work that Amabhungane Center, the investigative journalism um Caroline James speaking to us there on their argument to Parliament having passed that public procurement act without giving the public sufficient meaningful opportunity.