AmaBhungane is challenging South Africa’s Public Procurement Act in the Constitutional Court, arguing that the flawed legislative process and weak transparency measures risk entrenching corruption and undermining public trust in government spending.
Introduction
AmaBhungane has launched a decisive legal challenge against South Africa’s newly enacted Public Procurement Act, taking the matter to the Constitutional Court. The investigative journalism organisation argues that the law, passed through a rushed and flawed parliamentary process, fails to address the systemic corruption that has plagued the country’s procurement system for decades. For AmaBhungane, this case is not just about legislation it is about defending transparency, accountability, and the constitutional right of the public to meaningfully participate in shaping the laws that govern public spending.
AmaBhungane’s Role in Exposing Procurement Corruption
For years, AmaBhungane has been at the forefront of uncovering corruption in South Africa’s public procurement system. Through meticulous investigative work, AmaBhungane has revealed how politically connected individuals and entities have manipulated tender processes for personal gain, often at the expense of service delivery to communities. From uncovering inflated contracts in local municipalities to exposing questionable deals within state-owned enterprises, AmaBhungane’s reporting has consistently highlighted the urgent need for reform. This history of watchdog journalism has positioned the organisation as a credible and determined voice in the current legal challenge.
The Persistent Shadow of Procurement Corruption
Corruption in public procurement has been a recurring theme in South African politics for decades. The system, intended to ensure fair and efficient use of taxpayer money, has instead become an easy target for exploitation.
Reports over the years have revealed how state-owned enterprises and local governments awarded contracts that benefitted politically connected individuals rather than the public. In many cases, goods and services were delivered late, over budget, or not at all.
The Special Investigating Unit has acknowledged that a large proportion of its cases involve procurement irregularities. This level of misuse highlights the urgent need for a procurement system that prioritises accountability, transparency, and public oversight.
The Promise and Disappointment of the Public Procurement Act
When the Public Procurement Act was first introduced, it was presented as a landmark reform. The aim was to create a unified legal framework for all public procurement processes, replacing fragmented regulations and improving efficiency.
However, critics like AmaBhungane believe the Act fails to introduce the necessary safeguards to stop corruption. Instead of tightening rules, it maintains broad discretionary powers for procurement officials. Such powers, without strong oversight, have historically opened the door to manipulation and abuse.
The Act also relies heavily on internal monitoring by the Treasury rather than establishing independent mechanisms for transparency. Without mandatory proactive disclosure of tender details, the public and watchdog organisations remain in the dark.
A Flawed Legislative Process
AmaBhungane’s court challenge focuses not only on the weaknesses of the law itself but also on how it was passed. They argue that Parliament did not comply with the constitutional requirement to ensure meaningful public participation in lawmaking.
Their legal papers highlight several key issues:
- Public submissions on the bill were not comprehensively reviewed, with officials reportedly examining only a small portion.
- A major section on preferential procurement was introduced after the public consultation period had ended, meaning it received no input from citizens or civic organisations.
- The timeline for legislative hearings was extremely short, leaving little opportunity for careful debate or analysis.
- Concerns raised during the process were often recorded but not addressed in any substantive way.
Even members of the National Council of Provinces expressed unease about the speed with which the bill was pushed through, particularly in the months before the national elections.
Why the Constitutional Court Is Now Involved
AmaBhungane has joined a legal action that questions the constitutionality of the Act’s adoption process. This case will be heard by the Constitutional Court, the only court empowered to decide such matters.
Their argument is straightforward: the law was passed without giving the public a fair opportunity to influence its content. In a democracy, public participation is not optional; it is a constitutional obligation.
AmaBhungane’s affidavit explains how their repeated calls for more consultation were ignored. They emphasise that their involvement in the legislative process since 2020 has given them direct insight into its shortcomings.
The Broader Significance of the Challenge
The implications of this case go far beyond one piece of legislation. At its core, the challenge is about the kind of democracy South Africans want.
If laws affecting billions in public spending can be passed without proper consultation, it sets a dangerous precedent. It signals that efficiency and expediency take priority over accountability and transparency.
Without change, procurement processes will continue to favour insiders, discourage honest competition, and drain public resources that should be used for essential services such as education, healthcare, and infrastructure.
Ignored Warnings
Observers have long warned that corruption in public procurement will persist unless systemic changes are made. This includes publishing all contract information, introducing independent oversight bodies, and setting strict limits on the discretionary powers of procurement officials.
Despite these warnings, the Public Procurement Act largely maintains the status quo. For many, this confirms the suspicion that political leaders are reluctant to disrupt a system that provides financial and political benefits to those in power.
What Could Happen if the Challenge Fails
If the Constitutional Court rules in favour of the Act’s adoption process, the risks are clear:
- Corruption could become further entrenched, making it even harder to remove in future.
- Public confidence in democratic institutions may decline as citizens feel their voices are ignored.
- Legitimate businesses could be discouraged from competing for tenders, knowing the playing field is uneven.
- Public money could continue to be wasted on inflated contracts and incomplete projects.
The Case for Reform
AmaBhungane insists that the fight against corruption in procurement is not a fight against government itself, but against systems that fail the public. They argue that reform should focus on proactive transparency, where all tender documents, evaluations, and decisions are published openly.
Such openness would allow journalists, civil society, and ordinary citizens to scrutinise procurement decisions in real time, deterring misconduct before it occurs.
In countries that have embraced open contracting principles, corruption in public spending has decreased, and trust in institutions has grown. South Africa has the capacity to do the same if there is political will.
Conclusion: A Defining Moment for South Africa
The legal battle over the Public Procurement Act is more than a dispute about technical procedures. It is a test of whether South Africa’s democracy can still protect the public interest in the face of entrenched corruption.
AmaBhungane’s decision to take this case to the Constitutional Court is a statement of principle: that public money belongs to the people, and the people must have a say in how it is spent.
Whether the court sides with them or not, the case has already sparked a vital national conversation about transparency, accountability, and the future of governance.
For more on global best practices in procurement transparency, visit Open Contracting Partnership.
