Cape Town Mayor Geordin Hill-Lewis says the city has approached the Constitutional Court to invalidate the Public Procurement Act.

The city previously warned that the Bill would slow down local service delivery and undermine the constitutional autonomy of local government.

Notice of the city’s application has been served on Parliament and President Cyril Ramaphosa.

The city’s application points out what it believes to be various issues that render Parliament’s adoption of the Bill unlawful.

These include concerns that seven of nine provinces did not have lawful final mandates to vote on the Bill in the National Council of Provinces (NCOP); inadequate public participation timeframes and notice periods by provinces and the NCOP; incorrect information in reports considered by the NCOP and National Assembly; as well as failure by the National Assembly to consult on changes to Chapter 4, to consider all public comments, and to comply with Rule 276 for introducing a Bill.

“We believe this Bill should be invalidated due to fatal shortcomings in public participation and Parliament’s procedures,” says Hill-Lewis.

“Beyond these issues, it is vital that any new consideration of the Bill takes into account the massive 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, but this Bill impedes the ability to respond swiftly to local needs by introducing more red tape to complicate procurements.

“This inefficiency will have a direct impact on service delivery to residents.”

Hill-Lewis adds that the Bill allows for direct interference in municipal procurements by provincial treasuries and a new national Public Procurement Office (PPO), which he says will be empowered to dictate instructions to municipalities without proper cooperative governance arrangements or consultation.

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

The City of Cape Town’s objections against the Bill also include concerns that municipalities will not be able to maintain their own database of accredited suppliers, that payments to suppliers will need to be integrated with a national database, and that the centralision of all national procurement via a PPO runs the risk of nationwide disruptions to municipal procurements if the central system goes offline.

The city also believes that municipalities will no longer have the power to lawfully deviate from procurement regulations for urgent service delivery without centralised approval via the PPO; and that spurious tender appeals may hold up service delivery as the Bill limits the ability to conclude contracts while tender awards are reviewed.

Hill-Lewis says the Bill will also undermine infrastructure investment.

“Infrastructure can often be delivered much faster via public-private partnerships, but the Bill mirrors existing municipal legislation, which makes PPP’s too complex and time-consuming for municipalities to even attempt.

“The Bill further contains no provision for municipalities to leverage procurement for local socioeconomic development, as required by Section 151 and 152 of the Constitution.”

Cape Town is also concerned that around 36 elements of the Bill require new regulations, exposing local government to hidden cost implications and a higher red tape burden.

The Bill 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.