In September 2023 NGInc appeared before Parliament's Standing Committee on Finance. We made submissions on the Public Procurement Bill on behalf of the International Women's Forum South Africa.
We asked for one thing above all. In August 2020 the president had announced that 40% of public procurement spend would go to women-owned businesses. We said that promise had to be written into the Bill itself. We asked for 50% rather than 40%, because women are 51% of the population. We asked that the figure sit in the Act and not be left to policy. And we asked that gender be scored when tenders are adjudicated, in the same way that black economic empowerment is scored.
Parliament did not do it.
The Act that emerged does name women. Section 17(3) of the Public Procurement Act 28 of 2024 lists the categories for which bids must be set aside: black people, black women, women, people with disabilities, black people with disabilities, military veterans and small enterprises owned by them. Women are there, in their own right and as black women.
But there is no number. Section 17(2) says only that the minister must prescribe targets for set-asides. The figure was left to regulations, and those regulations were never made.
So the answer to the question we took to Parliament is this: women were named. Women were never given a share.
On 17 September 2026 the Constitutional Court declared the whole Act unconstitutional and invalid.
The Court struck the Act down for one reason. Parliament did not give the public a proper chance to comment on it. That was enough to decide the case, so the Court did not rule on anything the Act actually said.
The test is whether Parliament acted reasonably. Two things must be true. The public must have a real chance to know what is being proposed and to say something about it. And what the public says must be capable of changing the outcome. The second is the one that matters. If comment cannot change anything, it is not consultation, whatever the parliamentary record calls it.
The Bill that went out for comment was not the Bill that was passed. Chapter 4, which deals with preferential procurement, was put in by National Treasury late in the process.
Parliament argued that no further comment was needed because the public already knew what Chapter 4 contained from earlier preferential procurement regulations. The Court rejected that argument.
A material amendment requires a fresh chance to comment. Comment attaches to the text in front of the legislature. A chapter added after comment has closed has never been commented on at all. Whatever was said before was said about a different document.
The Court also held that the importance of the chapter strengthened the obligation rather than weakened it. It described Chapter 4 as central to transforming the economy and to the constitutional promise of equality. That is why it could not be slipped in at the end.
This is where our own experience fits. We commented on the Bill as it stood in September 2023. Chapter 4 as enacted was not the chapter we had addressed. We were not asked again.
The timeframes tell the story. Those making submissions were given four hours to read the newly drafted Chapter 4 and two minutes each to put their submissions to the Committee.
Parliament may depart from its own rules for public comment, but it may not do so without explaining why. No proper explanation was given, and the Court held that the time allowed was unreasonable given the importance of the Bill.
The Court was equally critical of the failure to consider submissions that had in fact been received. It called this a serious defect that struck at the whole purpose of public participation. Submissions were made and never reached the people who had to vote on the Bill.
This matters, because it places the defect above Parliament rather than inside it. Where a government department collects public comment and passes it on, a failure at that stage damages everything that follows. Treasury did not process the submissions, so the National Assembly could not consider them. The committee said it had run out of time. The Court did not accept that, because the time pressure came from Treasury's own late changes.
The Court did not suspend its order. The Act had never come into force and the existing law continued to govern procurement, so there was no gap to protect against and no reason to keep an invalid statute alive. Parliament may start again.
For organs of state and for bidders, nothing changes. Public procurement is still governed by the Preferential Procurement Policy Framework Act 5 of 2000 and its regulations, the Public Finance Management Act, the Municipal Finance Management Act and the applicable instruction notes and supply chain management policies. No live tender is affected. No award is disturbed. Anyone who structured bids in anticipation of the new Act will need to revisit that planning, but nothing already done under the existing framework will be unwound, because the Act that has been struck down never replaced it.
The judgment is being read in some quarters as a ruling against race-based preferencing in state procurement. It is nothing of the kind. Not one provision of Chapter 4 was found to be unlawful. The Court did not consider the content of the Act at all. The Act failed because of how it was made, not because of what it said.
Those questions are postponed, not answered. They will be decided when the Bill comes back and is properly consulted on.
The real loss is not the one being discussed.
Chapter 4 was the empowerment chapter. It covered black people, women, people with disabilities, military veterans, small enterprises and businesses in townships and rural areas. Black women-owned businesses stood to gain twice over, having been held back by both race and gender.
Chapter 4 was also where the 2020 promise to women was supposed to become law. It got as far as naming women and no further. The number that would have made the promise mean something was left to a Minister who never prescribed it. Now even the naming is gone.
Six years after that promise, there is still no legal obligation on any organ of state to award a fixed share of public procurement to women-owned businesses. That was true before this judgment. It is still true today.
The judgment is a procurement case only incidentally. Its significance lies in what it says to every legislature that changes a Bill after the public has had its say.
A material amendment restarts the duty to consult. Earlier comment on related regulations does not satisfy it. Departures from the standard process must be explained. Submissions that are received must actually be read. And the department that collects them cannot stand between the public and the lawmakers. These are constitutional duties, not administrative formalities.
When the Bill returns, the question we asked in 2023 will have to be answered properly. Not whether women are mentioned. Whether a number is attached. We asked for that once and did not get it. We will ask again.
Parliament may pass this Act again. It will simply have to do it properly.
