CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 73/22
In the matter between:
MINISTER OF COOPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS Applicant
and
SPEAKER OF THE NATIONAL ASSEMBLY First Respondent
CHAIRPERSON OF THE NATIONAL
COUNCIL OF PROVINCES Second Respondent
CONSTANCE MOGALE Third Respondent
LAND ACCESS MOVEMENT OF SOUTH AFRICA Fourth Respondent
MASHONA WETU DLAMINI Fifth Respondent
VICTOR MODIMAKWANE Sixth Respondent
NATIONAL KHOI AND SAN COUNCIL Seventh Respondent
CONGRESS OF TRADITIONAL LEADERS
OF SOUTH AFRICA Eighth Respondent
SPEAKER OF THE EASTERN CAPE
PROVINCIAL LEGISLATURE Ninth Respondent
SPEAKER OF THE FREE STATE
PROVINCIAL LEGISLATURE Tenth Respondent
SPEAKER OF THE GAUTENG
PROVINCIAL LEGISLATURE Eleventh Respondent
SPEAKER OF THE KWAZULU-NATAL
PROVINCIAL LEGISLATURE Twelfth Respondent
SPEAKER OF THE LIMPOPO PROVINCIAL
LEGISLATURE Thirteenth Respondent
SPEAKER OF THE MPUMALANGA
PROVINCIAL LEGISLATURE Fourteenth Respondent
SPEAKER OF THE NORTH WEST
PROVINCIAL LEGISLATURE Fifteenth Respondent
SPEAKER OF THE NORTHERN CAPE
PROVINCIAL LEGISLATURE Sixteenth Respondent
SPEAKER OF THE WESTERN CAPE
PROVINCIAL LEGISLATURE Seventeenth Respondent
CHAIRPERSON OF THE NATIONAL HOUSE
OF TRADITIONAL LEADERS Eighteenth Respondent
In re:
CONSTANCE MOGALE First Applicant
LAND ACCESS MOVEMENT OF SOUTH AFRICA Second Applicant
MASHONA WETU DLAMINI Third Applicant
VICTOR MODIMAKWANE Fourth Applicant
and
SPEAKER OF THE NATIONAL ASSEMBLY First Respondent
CHAIRPERSON OF THE NATIONAL
COUNCIL OF PROVINCES Second Respondent
SPEAKER OF THE EASTERN CAPE
PROVINCIAL LEGISLATURE Third Respondent
SPEAKER OF THE FREE STATE
PROVINCIAL LEGISLATURE Fourth Respondent
SPEAKER OF THE GAUTENG
PROVINCIAL LEGISLATURE Fifth Respondent
SPEAKER OF THE KWAZULU-NATAL
PROVINCIAL LEGISLATURE Sixth Respondent
SPEAKER OF THE LIMPOPO
PROVINCIAL LEGISLATURE Seventh Respondent
SPEAKER OF THE MPUMALANGA
PROVINCIAL LEGISLATURE Eighth Respondent
SPEAKER OF THE NORTH WEST
PROVINCIAL LEGISLATURE Ninth Respondent
SPEAKER OF THE NORTHERN CAPE
PROVINCIAL LEGISLATURE Tenth Respondent
SPEAKER OF THE WESTERN CAPE
PROVINCIAL LEGISLATURE Eleventh Respondent
MINISTER OF COOPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS Twelfth Respondent
CHAIRPERSON OF THE NATIONAL HOUSE
OF TRADITIONAL LEADERS Thirteenth Respondent
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA Fourteenth Respondent
CONGRESS OF TRADITIONAL LEADERS
OF SOUTH AFRICA Fifteenth Respondent
NATIONAL KHOI AND SAN COUNCIL Sixteenth Respondent
Neutral citation: Minister of Co operative Governance and Traditional Affairs v
Speaker of the National Assembly and Others In re Mogale and
Others v Speaker of the National Assembly and Others [2025]
ZACC 22
Coram: Madlanga ADCJ, Dambuza AJ, Goosen AJ, Kollapen J,
Majiedt J, Mhlantla J, Opperman AJ, Rogers J and Theron J
Judgment: Theron J (unanimous)
4
Order issued on: 29 May 2025
Reasons issued on: 10 October 2025
Summary: Suspended declaration of invalidity — urgent application for
extension of a suspension of invalidity — prejudice to Traditional
and Khoi-San communities — extension granted
REASONS FOR ORDER
THERON J ( Madlanga ADCJ, Dambuza AJ, Goosen AJ, Kollapen J, Majiedt J,
Mhlantla J, Opperman AJ and Rogers J concurring):
Introduction
[1] This application to extend the suspension of invalidity of the Traditional and
Khoi-San Leadership Act 1 (Act) was brought on 2 7 March 2025 and flows from this
Court’s decision in Mogale.2 The applicant sought an extension of the suspension
period to 29 May 2027.
[2] On 30 May 2023, this Court declared that Parliament had failed to comply with
its obligation to facilitate public involvement before passing the Act, and
consequently, the Act was adopted in a manner that is inconsistent with the
Constitution. This Court declared the Act invalid, and suspended the declaration o f
invalidity for a period of 24 months to enable Parliament to re -enact the statute or to
pass another statute in a manner that is consistent with the Constitution. The 24 -
month suspension period was due to expire on 30 May 2025.
1 3 of 2019.
2 Mogale v Speaker of the National Assembly [2023] ZACC 14; 2023 (6) SA 58 (CC ); 2023 (9) BCLR 1099
(CC).
THERON J
5
[3] This matter was decided without a hearing and o n 29 May 2025 , this Court
issued the following order:
“1. The declaration of invalidity in paragraph 2 of the order of this Court in
Mogale and Others v Speaker of the National Assembly and Others [2023]
ZACC 14 is further suspended from 29 May 2025 to 29 May 2027.3
2. The applicant and first and second respondents are directed to pay the costs
occasioned by this application.
3. Reasons for this order shall be given at a later date.”
[4] These are the reasons for the order made.
Application for extension
[5] In this application, the applicant, the Minister of Co operative Governance and
Traditional Affairs (Minister), sought to extend the suspension period for a further two
years, until 29 May 2027. The first respondent, the Speaker of the National Assembly
(Speaker), supported the relief sought by the applicant. The third to sixth respondents
were the applicants in Mogale and filed notices to abide the deci sion of this Court .4
3 The order in Mogale reads:
“1. It is declared that Parliament has failed to comply with its constitutional obligation to
facilitate public involvement before passing the Traditional and Khoi -San Leadership
Act 3 of 2019 (Act).
2. The Act was, as a consequence, adopted in a manner that is inconsistent with the
Constitution and is therefore declared invalid.”
3. The order declaring the Act invalid is suspended for a period of 24 months to enable
Parliament to re-enact the statute in a manner that is consistent with the Constitution,
or to pass another statute in a manner that is consistent with the Constitution.
4. Those respondents that opposed the application are directed to pay the applicants ’
costs, including the costs of three counsel, in the following proportion:
(a) The sixth, eleventh and twelfth respondents are directed to pay the costs
occasioned by their respective opposition to the application.
occasioned by their respective opposition to the application.
(b) The first and second respondents are to pay all remaining costs.”
4 In this application, some of the initial applicants were replaced by related parties. The third respondent is
Ms Tshepo Fokane, the national coordinator of the Alliance for Rural Democracy, a group of civil society
organisations and activists who contest policy and legislation that negatively impact rural citizens in the former
Bantustans. Ms Fokane, is the successor to Ms Constance Mogale, the first applicant in Mogale, who has since
passed away. The fourth respondent is the Land Access Movement of South Afric a, an independent federation
of community-based organisations advocating for land and agrarian right s, and substantive democracy through
facilitating sustainable development and was the second applicant in Mogale. The fifth respondent,
Mr Mashona Wetu Dla mini, was the third applicant in Mogale. Mr Dlamini is cited in his representative
THERON J
6
The third to fifth respondents also filed papers seeking remedial relief aimed at
ensuring that the Minister and Parliament timeously and properly do what is required
of them within the new timeframe imposed by this Court.
Issues
[6] This matter raises the following issues:
(a) Whether it is just and equitable to further extend the suspension of the
declaration of invalidity; and
(b) If the period of suspension is to be extended, what specific relief should
be granted.
Analysis
Power of this Court to grant an extension
[7] This Court has held that it has the power to extend orders made in terms of
section 172 of the Constitution. 5 This power is located in section 172(1)(b) which
provides that when deciding a constitutional matter, a court may make any order that
is just and equitable. 6 The predominant consideration governing the exercise of this
power is the interests of justice.7 It is a power that should be exercised with caution.8
[8] The factors to be considered to determine wheth er to grant an extension
include: (a) the sufficiency of the explanation provided for failing to comply with the
original period of suspension; (b) the prejudice likely to be suffered if the suspension
is not extended; (c) the prospects of correcting the d efect within the extended period;
capacity as a member of the council of the Umgungundlovu community and of the Amadiba Traditional
Council. The sixth respondent is Mr Victor Modimakwane, a member of the Bakgatla ba Kgafela community
and the fourth applicant in Mogale.
5 Speaker of the National Assembly v New Nation Movement NPC [2023] ZACC 12; 2023 (7) BCLR 897 (CC)
(New Nation) at para 22.
6 Speaker of the National Assembly v Women ’s Legal Centre Trust [2024] ZACC 18; 2025 (1) BCLR 103 (CC)
at para 17; and New Nation id at para 22.
7 New Nation above n 5 at para 22.
at para 17; and New Nation id at para 22.
7 New Nation above n 5 at para 22.
8 Minister of Justice and Correctional Services v Ramuhovhi [2019] ZACC 44; 2020 (3) BCLR 300 (CC) at
para 9.
THERON J
7
and (d) the need to promote a functional and orderly state administration for the
benefit of the general public.9
Explanation for non-compliance
[9] The Minister and the Speaker of Parliament set out the reasons why Parliament
failed to remedy the defect in the legislation by 29 May 2025. In essence, it was the
Minister’s case that Parliament would have been able to comply with the order within
eight months had it not been for two unforeseen events. First, the alleged incorrect
finding in the provisional certification that there was no need for a notice in terms of
section 154(2) of the Constitution ,10 and second , the Deputy President’s
announcement in February 2024, that no new legislation should be introduced in
Parliament until th e establishment of the seventh Administration after the 2024
national elections.
[10] I set out the backdrop against which this explanation must be measured. On
8 June 2023, Parliament was alerted to the urgency of remedying the Act by the
Constitutional and Legal Services Office (CLSO). Parliament was advised to decide,
by 30 November 2023, whether the Act would be remedied by way of a B ill
introduced by the Executive, or by a Committee Bill, in other words a Bill developed
and introduced by a Parliamentary Committee.
[11] On 27 July 2023 , the CLSO requested a timeline from the Department of
Cooperative Governance and Traditional Affairs (Department) to ensure compliance
with this Court’s order in Mogale. The Department was reminded of the fact that
9 Acting Speaker of the National Assembly v Teddy Bear Clinic for Abused Children [2015] ZACC 16; 2015
(10) BCLR 1129 (CC) (Teddy Bear Clinic) at para 12.
10 Section 154(2) of the Constitution reads:
“Draft national or provincial legislation that affects the status, institutions, powers or functions
of local government must be published for public comment before it is introduced in
of local government must be published for public comment before it is introduced in
Parliament or a prov incial legislature, in a manner that allows organised local government,
municipalities and other interested persons an opportunity to make representations with regard
to the draft legislation.”
THERON J
8
2024 was an election year and that this could exacerbate time pressure for the
Traditional and Khoi-San Leadership Bill (TKL Bill).
[12] The applicant explained that until 27 July 2023, he was not certain of the role
of the Department in taking steps to ensure the order of this Court in Mogale was
complied with. There was uncertainty between the applicant and Parliament as to
what process needed to be followed in order to reintroduce the TKL Bill to
Parliament.
[13] At a meeting held on 16 August 2023 between t he Department and the CLSO,
the latter made it clear that the only way s to bring legislation to Parliament were
through an Executive Bill or a Bill introduced by a Parliamentary Committee. I t was
later resolved that the process to be followed in this instanc e was by way of an
Executive B ill, where a Bill is developed and introduced in Parliament by the
Executive.
[14] An Executive B ill was drafted and referred to the Office of the Ch ief
Parliamentary Legal Adviser on 30 October 2023. On 8 December 2023 , the Socio-
Economic Impact Assessment System request was submitted to the Presidency f or
certification. This entails that d epartments are mandated to analyse the socio -
economic impact of policies or Bills and is an essential step in the legisl ative process.
Once the final a ssessment report is received, it goes to different groupings of
Ministers and Director s-General (clusters) for sign off, followed by public comment
and thereafter, it is sent to Cabinet t o be introduced to Parliament. In the present
instance, the Department advised the Presidency that in order to meet this Court’s 24 -
month timeframe, the clusters and Cabinet stages of the process must be finalised by
April 2024.
[15] The Department had planne d, after the preliminary certificat ion, to place the
TKL Bill before the Forum of Directors -General in early 2024. Thereafter, the
THERON J
9
TKL Bill would have been presented to Cabinet. The Office of the Chief State Legal
Adviser finalised its preliminary certification opinion on 22 December 2023.
[16] On 7 February 2024, the Deputy President issued a directive that Parliament
should prioritise consideration of Bills that were due to be passed by Parliament
before the 2024 elections, and that no additional legislation should be submitted to
Cabinet until the end of the sixth Administration.11 The TKL Bill was not listed as a
priority Bill.
[17] On 18 September 2024, Cabinet approved the TKL Bill for tabling in
Parliament. On 20 September 2024, the Department sough t an urgent opinion f rom
the Office of the Chief Parliamentary Legal Adviser on whether the TKL Bill had to
be published for public comment in terms of section 154(2) of the Constitution before
it was introduced in Parliament. This was the first unforeseen event relied upon by the
Minister.12
[18] The opinion was delivered on 27 September 2024 ; it confirmed that the
TKL Bill had to be published for public comment in the Government Gazette before
being tabled in Parliament . Accordingly, it c ould not be tabled in Parliament on 31
October 2024 as planned. A second opinion was sought from senior counsel on 22
November 2024 on the issue of compliance with section 154(2) of the Constitution ,
which opinion confirmed that the TKL Bill had to be pub lished in the Government
Gazette prior to being tabled in Parliament.
[19] The TKL Bill was published in the Government Gazette on
29 November 2024. Following the receipt of submissions from the public that the 30-
day comment period was inadequate, th e Minister extended the period within which
members of the public could comment on the TKL Bill to 28 February 2025. Given
11 The sixth Administration was established on 25 May 2019 and ended on 29 June 2024. The seventh
Administration was established on 30 June 2024, after the national elections.
12 See [9].
THERON J
10
that the Department, inter alia, still had to take into account public comments received
and obtain Cabinet approval prior to tablin g the TKL Bill, it anticipated that the TKL
Bill would only be tabled in Parliament by 31 July 2025. It was at that stage that it
became clear that the Department would not be able to meet the deadline of 29 May
2025.
[20] Taking into account factors such as the local government elections scheduled to
be held in 2026 and Parliamentary Committees’ budgetary reporting processes,
Parliament could not guarantee that the TKL Bill would be processed by the end of
2026. It was o n this basis that the Minister, suppor ted by the Speaker, sought an
extension of the suspension of invalidity until 29 May 2027.
Prejudice to be suffered if the suspension is not extended
[21] The Minister submitted that the Khoi -San community w ould be prejudi ced if
the extension wa s not granted. The third respondent agreed that there would have
been “severe repercussions” in the event that the Act became invalid. Sections 51 to
58 of the Act recognised Khoi -San community structures and the Minister ha d
appointed a commission to re ceive, research and investigate applications for
recognition of the Khoi -San communities and make recommendations to the Minister
for their recognition. If the extension had not been granted, the invalidity of t he Act
would have taken effect, and as a con sequence the commission would have been
disestablished and its functions rendered obsolete. Further, without the enabling
statute, the Khoi -San communities w ould continue to be excluded from the Houses
and Councils of Traditional Leadership, as was the ca se under the repealed Traditional
Leadership and Governance Framework Act,13 which served to remove traditional
leaders and Khoi-San leaders from formal leadership structures.
[22] The Minister drew this Court’s attention to vario us provisions of the Act which
[22] The Minister drew this Court’s attention to vario us provisions of the Act which
were already in effect , and that the invalidity of the Act would have wide -reaching
13 41 of 2003.
THERON J
11
implications if this Court refused to grant the extension . He referred to sections 8, 10,
12, 13 and 14 of the Act which make provision for the recognition of traditional
leaders. Some traditional leaders have been legally recognised in terms of these
provisions. If this Court was minded not to grant the extension, these structures would
not be recognised and the consequence would be that there would be no interim
measure to regulate matters relating to traditional communities and traditional
leadership. This would result in an untenable state of affairs.
[23] Sections 16 and 17 of the Act introduced traditional leadership councils and
promoted transformation through particip ation of community members. Without the
extension, the transformation of councils, specifically kingship and queenship
councils, would be unlikely, resulting in increased instability and friction in the
affected communities. The Minister also indicated that sections 27, 49 and 50 of the
Act, which established Houses of Traditional and Khoi -San leaders, are currently in
operation. If the extension were not granted, the Houses would be automatically
disestablished, leading to instability and exclusion from governmental development
programmes.
[24] The fourth to sixth respondents submit ted that they were “compelled
reluctantly” to support a further extension of the suspension of invalidity period, given
the prejudicial consequences which would follow if the exte nsion wa s not granted,
namely the undermining of the dignity and citizenship rights of rural people living in
former Bantustans and the threat to Khoi -San peoples’ ability to assert traditional
leadership rights.
[25] These respondents submitted that if Parlia ment failed to re-enact the Act or
enact a new law, the Act would be invalid retrospectively and any conduct pursuant to
the Act would be void or voidable, including the appointment of traditional leaders.
the Act would be void or voidable, including the appointment of traditional leaders.
This would seriously erode the efforts to establi sh Khoi -San leadership structures,
leaving a lacuna in which no legislation would make provision for the Khoi-San.
THERON J
12
Will Parliament be able to remedy the defect within the extended period?
[26] The Minister submitted that there were good prospects that the TKL Bill would
be enacted within the two -year extension period. In this regard, the Minister
submitted a detailed timeline to this Court taking into account Parliament’s planned
programme. The Minister further undertook to take reasonable measures to ensure the
timeline is strictly adhered to.
[27] The Speaker noted that there were four primary events which will cause some
delay: (a) the 2026 local government elections would affect the parliamentary
programme, which meant that the programme could not yet be confi rmed; (b) the
Parliamentary Committees’ Budgetary Review and Recommendations Reporting
processing will be taking place during October to November 2025, resulting in limited
meeting slots; (c) the Appropriation Bill and Budget Votes would be processed in
March 2026, further limiting meeting slots; and (d) the public interest i n the TKL Bill
might result in the extension of the legislative process . The Speaker submitted that
these anticipated periods of activity mean that the TKL Bill was unlikely to be
processed by the end of 2026.
[28] The fourth respondent raised a number of concerns regarding the Department’s
ability to adhere to its proposed timeline. It was submitted that the Minister, the
Department and Parliament’s past performance s did not provide a “basis for
optimism” in relation to public participation for the TKL Bill. The fourth respondent
further highlighted concerns regarding the deadline for public submissions; the
education and awareness programme; and the absence of a stake holder analysis.
Based on these concerns, the fourth respondent strongly advocated for this Court to
grant supervisory relief to ensure that the Minister, the Department and Parliament
report on their progress in having the TKL Bill enacted.
THERON J
13
Should the extension be granted?
[29] The explanation proffered by the Minister was not completely satisfactory.
The Minister does not explain why the TKL Bill was not considered a high -priority
Bill, to be dealt with by Parliament before th e 2024 elections were held . The
Deputy President’s announcement that no new legislation, except priority legislation,
was allowed to be passed before th e establishment of the seventh Administration
ought to have been anticipated and catered for.
[30] The Minister’s explanation regarding t he Department’s apparent
misapprehension that the TKL Bill did not have to be published for public comment in
terms of section 154(2) of the Constitution was a fundamental error on his part. In
any event, the Department only sought the urgent opinion late in 2024. It is clear that
the national elections of 2024 resulted in the TKL Bill being deprioritised. It would
appear that there was a lack of political motivation to take the requisite steps to
timeously remedy the constitutional deficiencies of the Act.
[31] Deliberate non-compliance with this Court’s orders is offensive to the rule of
law. In Teddy Bear Clinic, this Court deplored such conduct and said:
“All state institutions must – with due deference to the rule of law, the separation of
powers and the accepted checks and balances – treat this Court with the respect which
the Court accords to organs of state in its dealing with them.”14
[32] Non-compliance with this Court’s order in this matter presents significant
prejudice to traditional communities. The Court explained the importance and impact
of the Act in Mogale, where it stated:
“This case is about the significance of participatory democracy for millions of South
Africans who for the most part live away from centres of power, in rural areas and in
some of the poorest parts of our country. These are people who have the least access
some of the poorest parts of our country. These are people who have the least access
to power, wealth and influence. This case is about their ability to participate in the
14 Teddy Bear Clinic above n 9 at para 15.
THERON J
14
making of law that governs virtually every aspect of their daily lives, including access
to land, basic services and rights to the benefits of the land upon which they live.”15
[33] The Minister’s unsatisfactory explanation for the delay must be weighed
against the potentially disastrous consequences which would arise should the
extension not be granted. The Act is undoubtedly significant legislation, with far -
reaching implications for traditional communities. 16 The Act has already been partly
implemented and the recognition granted to Khoi -San communities and traditional
leaders, as well as the reconstitution of a large number of traditional councils ,
potentially depend on its enactment and validity. 17 These considerations were
important in determining what the interests of justice demand and were taken into
account when this Court first suspended the order of invalidity.18
[34] To have the Act , an important statute representing a step forward in the
recognition of traditional and Khoi -San leadership structures, lapse would continue to
sideline a significant proportion of our population. T his Court cannot countenance
such a consequence.
[35] In the circumstances, it was in the interests of justice for this Court to invoke its
powers under section 172 of the Constitution to suspend the period of invalidity. It
was on this basis that the further extension was granted.
What relief should this Court grant?
[36] The Minister sought an extension of two years to allow Parliament to enact
constitutionally compliant legislation. All the respondents agree d that the extension
should be granted and, with differing levels of enthusiasm, supported the relief sought.
15 Mogale above n 2 at para 46.
16 Id at para 82.
17 Id at para 84.
18 Id.
THERON J
15
[37] In addition, the third to fifth respondents sought an order setting out the steps
and prescribed dates for the public participation process to be followed by Parliament,
the Minister and the ninth to seventeenth respondents (the Speakers of the various
provincial legislatures) . In effect, the relief they sought wa s aimed at ensuring
sufficient public participation and that the public consultation process occurred within
the timeframe imposed by this Court. They also sought an order that the Minister, the
Speaker and the Chairperson of the National Council of Provinces report at regular
intervals on whether they have complied with the timetable proposed by the Mini ster,
and if not, what they would do to remedy the failure.
[38] The remedy sought by the third to fifth respondents was essentially a structural
interdict. This Court has the power to grant such an interdict in order to ensure that
the Constitution is upheld.19 However, when considering how such a power should be
exercised, due regard must be given to the roles of the legislat ive and executive arms
of state,20 the separation of powers21 and generally, “whether considerations of justice
and equity . . . dictate that the order be made”.22
[39] It is no t generally this Court’s role to interfere with the legislative process,
unless there is a constitutional imperative to do so. Structural interdicts allow this
Court to look into the conduct of Parliament and to direct its functions. This type of
invasive oversight interferes with Parliament’s ability to regulate its own processes
and should be employed only in exceptional circumstances . In OUTA, this Court, in
considering temporary restraining orders against the exercise of statutory power,
stated:
19 Minister of Health v Treatment Action Campaign (No 2) [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10)
BCLR 1033 (CC) at para 129.
20 Id at para 98.
BCLR 1033 (CC) at para 129.
20 Id at para 98.
21 National Treasury v Opposition to Urban Tolling Alliance [2012] ZACC 18; 2012 (6) SA 223 (CC); 2012
(11) BCLR 1148 (CC) (OUTA) at para 44.
22 Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo [2009] ZACC 32; 2010 (2)
SA 415 (CC); 2010 (3) BCLR 177 (CC) at para 96.
THERON J
16
“The common law annotation to the Setlogelo test is that courts grant temporary
restraining orders against the exercise of statutory power only in exceptional cases
and when a strong case for that relief has been made out. Beyond the common law,
separation of powers is an even more vital tenet of our constitutional democracy.
This means that the Constitution requires courts to ensure that all branches of
government act within the law. However, courts in turn must refrain from entering
the exclusive terra in of the executive and the legislative branches of government
unless the intrusion is mandated by the Constitution itself.”23
[40] This Court, in Mogale, suspended the order of invalidity in order to afford
Parliament the opportunity to correct the constitutio nally deficient public participation
process in re -enacting the Act or enacting an entirely new Act.24 This Court made it
clear that the new legi slative process would be determined by Parliament and did so
for good reason. 25 It would be inappropriate for t his Court to direct the legislative
process, except where the Constitution demands it.
[41] A structural interdict requiring Parliament to report on its progress, whether to
this Court or to the fourth and fifth respondents, is in appropriate in the current cas e.
This Court has not positively mandated Parliament to take steps to enact the TKL Bill,
but, in the interests of justice, afforded Parliament the opportunity to re -enact it or
enact another statute, while causing as little prejudice to the interests of justice as
possible. Parliament’s obligation to facilitate a constitutionally compliant public
participation process in terms of sections 59(1)(a), 72(1)(a) and 118(1)(a) of the
Constitution remains extant whenever it seeks to enact legislation, including the TKL
Bill or another statute. The third to fifth respondents’ concern that there is a risk of
non-compliance by Parliament with its proposed schedule is understandable, but does
non-compliance by Parliament with its proposed schedule is understandable, but does
not weigh more heavily than the separation of powers consideration in this case.
23 OUTA above n 21 at para 44.
24 Mogale above n 2 at para 84.
25 Id.
THERON J
17
Costs
[42] Even though the Minister and Parliament did not wilfully fail to cure the defect
within the two -year period, the delay and the consequent need for the current
application must primarily be laid at their feet. The Minister and the Department were
lax, misguided and inattentive to the urgency of the matter. The third to fifth
respondents did not oppose the relief sought by the Minister and the Speaker. The
third to fifth respondents provided valuable information to this Court in supporting the
relief sought by the Minister, and although their prayer for further and alternative
relief was unsuccessful, their participation in this application came about because of
the action s of the Minister and Parliament. Parliament comprise s the National
Assembly and the National Council of Provinces and on this basis , both houses are
liable for costs.
[43] In these circumstances, the Minister, the Speaker, and the Chairperson of the
National Council of Provinces are directed to pay the costs occasioned by this
application.