This case dealt with the constitutional validity of the Restitution of Land Rights Amendment Act (“the Amendment Act”). The aim of the Act was to revive the lodgement of land claims in the Post-Apartheid era. The Applicant’s case was two-fold. The primary challenge sought a declaration that the Amendment Act, in its entirety, was invalid for failure by the National Council of Provinces (“NCOP”) and some, or all, of the Provincial Legislatures to facilitate adequate public participation as required by sections 72(1)(a) and 118(1)(a) of the Constitution. In the alternative, the Applicants prayed for a declaration that section 6(1)(g) be declared unconstitutional and invalid.
The Applicant’s alleged that the Amendment Act was unconstitutional as it would prejudice claimants who filed their claims by 31 December 1998 but whose claims remained unresolved. This was primarily due to competing claims as new claimants would be free to claim against land that has already been claimed or awarded to existing claimants. Furthermore, the Commission lacked capacity and many claims still sought finalisation. Secondly, the Applicants avered that section 6(1)(g) was vague, and thus failed to protect adequately the interests of existing claimants. The section required the Commission to “ensure that priority is given” to claims lodged by the 31 December 1998 deadline, however, it did not set out the consequences of applying same.
In addition, it was argued that the NCOP’s public participation procedure in approving the Amendment Act was not constitutionally valid as appears in more detail below.
The court took in to account Sections 72(1)(a), 59 and 118 in coming to its ruling.
Section 72(1)(a) of the Constitution imposed an obligation on the NCOP to facilitate a consultative process with the public during law making. The section provided that “the National Council of Provinces must facilitate public involvement in the legislative and other processes of the Council and its committees.”
Sections 59 and 118 imposed separate but parallel obligations on the National Assembly and Provincial Legislatures, respectively, to facilitate public participation.
Given the failure to comply with the aforementioned sections, the court needed to consider the representative and participatory elements in South Africa’s democracy. These elements are not mutually exclusive. The standard to be applied in determining whether Parliament met its obligation of facilitating public participation is one of reasonableness.
The court considered the procedures followed by the provinces and the fact that they had less than one calendar month to process fully a complex piece of legislation with profound social, economic and legal consequences for the public. The provinces had merely 3 to 5 calendar days to notify the public of the hearings, from the date the Provincial Legislatures were briefed until the date the public hearings commenced. The provinces had only 8 calendar days to conduct the hearings, consider public comments and confer appropriate negotiating mandates, from the start of the hearings until the negotiating mandate meeting. Although the timeline was marked “Draft Provisional”, it did not function as a draft and was in fact followed by both the NCOP and Provincial Legislatures.
The court considered further that the NCOP Select Committee met to consider the provinces’ negotiating mandates on the Bill. In practice the NCOP Select Committee Members attend hearings conducted by Provincial Legislatures, however, the NCOP Select Committee Members failed to do so and the vast majority of Members at the meeting had no personal knowledge of what had transpired at the hearings conducted by the Provincial Legislatures.
Members could only have been able to inform themselves of what had happened at provinces other than their own through reports from each Provincial Legislature. However, the NCOP Select Committee ruled that provinces were not obliged to circulate reports of their hearings. Thus, certain provinces failed to prepare reports and others failed to circulate same. The Applicants thus took issue with certain features of the process.
The Court held that the re-opening of the land claims process is of paramount importance and public interest. Reasonable public participation in the legislative process that resulted in the enactment of the Amendment Act was crucial. On this basis the NCOP’s public participation process was unreasonable and failed to comply with the envisaged procedure.
The Court held further that failure by one of the Houses of Parliament to comply with a constitutional obligation amounts to failure by Parliament as a whole. It was thus unnecessary to consider the alternative prayer for a declaration of invalidity of section 6(1)(g) of the amended Restitution Act in respect of which the applicants sought direct access.
In light of the above, the Court ordered that Parliament had failed to satisfy its obligation to facilitate public involvement in accordance with section 72(1)(a) of the Constitution; the Restitution of Land Rights Amendment Act 15 of 2014 is declared invalid from the date of judgment; and the Commission on Restitution of Land Rights is interdicted from processing in any manner whatsoever land claims lodged from 1 July 2014.
The Restitution of Land Rights Amendment Act has been declared invalid due to an unconstitutional public participation process by the National Council of Provinces.