Cape Town mayor takes Ramaphosa and government to ConCourt

City of Cape Town mayor Geordin Hill Lewis has approached the Constitutional Court challenging government and President Cyril Ramaphosa over the Public Procurement Act which he claims will slow down service delivery and undermine the constitutional autonomy of local government. 

Hill-Lewis said the challenge in the apex court points out problems which render parliament’s adoption of the bill unlawful.

The bill was enacted in July 2024 with the Presidency announcing it complies with the stipulation in the constitution that “contracting of goods and services by organs of state in all spheres of government must occur in accordance with a system which is fair, equitable, transparent, competitive and cost-effective”.

The Presidency at the time said national legislation must prescribe a framework within which a procurement policy must be implemented.

The bill was intended to address weaknesses in the procurement of goods and services by organs of state that have in the past enabled corruption, including state capture.

Previously, the legislation regulating procurement was said to be fragmented and constraining.

Hill-Lewis pointed out that seven of nine provinces did not have lawful final mandates to vote on the bill in the National Council of Provinces (NCOP). He added there were inadequate public participation timeframes and notice periods by provinces and the NCOP.

There was also incorrect information in reports considered by the NCOP and National Assembly and the Assembly failed to consult on changes to chapter 4, did not consider all public comments and failed to comply with the rules for introducing a bill. 

“We believe this [act] should be invalidated due to fatal shortcomings in public participation and parliament’s procedures. Beyond these issues, it is vital that any new consideration of the [act] takes into account the huge red tape burden it will place on local government and the unconstitutional interference it permits in municipalities.

“At a local level, we often have to procure fast to respond to urgent water, sanitation, electrical, waste and environmental issues. This [act] impedes the ability to respond swiftly to local needs by introducing more red tape to complicate procurements. This inefficiency will have a direct effect on service delivery to residents.”

He said it allows direct interference in municipal procurements by provincial treasuries and a new national public procurement office (PPO), which will be empowered to dictate instructions to municipalities without proper co-operative governance arrangements or consultation.

“This is unconstitutional and undermines local government autonomy and direct accountability to serving residents,” Hill-Lewis said.

Municipalities won’t be able to maintain their own database of accredited suppliers. Payments to suppliers will need to be integrated with a national database centralising all national procurement via a PPO which he said further runs the risk of nationwide disruptions to municipal procurements if the central system goes offline.

Municipalities will no longer have the power to lawfully deviate from procurement regulations for urgent service delivery without centralised approval via the PPO.

He added that spurious tender appeals may hold up service delivery as the act limits the ability to conclude contracts while tender awards are reviewed.

“Infrastructure can often be delivered much faster via public-private partnerships [PPPs], but the [act] mirrors existing municipal legislation which makes PPPs too complex and time-consuming for municipalities to attempt.

“Cutting red tape around infrastructure upgrades is vital to us here in Cape Town as we aim to deliver on our SA-record R120bn infrastructure pipeline over 10 years, with 75% of infrastructure spending directly benefiting lower income households. The [act] further contains no provision for municipalities to leverage procurement for local socioeconomic development, as required by the constitution. 

“The city is further concerned that about 36 elements of the [act] require new regulations, exposing local government to hidden cost implications and red tape burdens. The [act] also positions the national finance minister as a regulatory authority over local government, which is inconsistent with the constitution, Municipal Systems Act and the Municipal Finance Management Act,” he said.

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