Tongoane and Others v National Minister for Agriculture and Land Affairs and Others (CCT100/09) [2010] ZACC 10; 2010 (6) SA 214 (CC) ; 2010 (8) BCLR 741 (CC) (11 May 2010)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2010
>>
[2010] ZACC 10
|

|

Tongoane and Others v National Minister for Agriculture and Land Affairs and Others (CCT100/09) [2010] ZACC 10; 2010 (6) SA 214 (CC) ; 2010 (8) BCLR 741 (CC) (11 May 2010)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 100/09
[2010] ZACC 10
In the matter between:
STEPHEN SEGOPOTSO TONGOANE First Applicant
PHAHLELA JOAS MUGAKULA Second Applicant
MORGAN MOGOELELWA Third Applicant
RECKSON NTIMANE Fourth Applicant
and
MINISTER FOR AGRICULTURE
AND LAND AFFAIRS First Respondent
MINISTER FOR PROVINCIAL AND
LOCAL GOVERNMENT Second Respondent
PREMIER OF EASTERN CAPE Third Respondent
PREMIER OF FREE STATE Fourth Respondent
PREMIER OF GAUTENG Fifth Respondent
PREMIER OF KWAZULU-NATAL Sixth Respondent
PREMIER OF MPUMALANGA Seventh Respondent
PREMIER OF NORTHERN CAPE Eighth Respondent
PREMIER OF LIMPOPO Ninth Respondent
PREMIER OF NORTH WEST Tenth Respondent
PREMIER OF WESTERN CAPE Eleventh Respondent
SPEAKER OF THE NATIONAL ASSEMBLY Twelfth Respondent
CHAIRPERSON OF THE NATIONAL
COUNCIL OF PROVINCES Thirteenth Respondent
NATIONAL HOUSE OF TRADITIONAL
LEADERS Fourteenth Respondent
Heard on : 2 March 2010
Decided on : 11 May 2010
JUDGMENT
NGCOBO CJ:
Introduction
This
case raises important constitutional questions concerning one of
the most crucial pieces of legislation enacted in our
country since
the advent of our constitutional democracy: the
Communal Land
Rights Act, 2004
1
(CLARA). This legislation is intended to meet one of the
longstanding constitutional obligations of Parliament to enact

legislation to provide legally secure tenure or comparable redress
to people or communities whose tenure of land is legally insecure

as a result of the racist policies of apartheid that were imposed
under the colour of the law. The people and communities
who were
primarily victimised by these laws were African people.
Section 25(6) of the
Constitution provides:
“
A person or community
whose tenure of land is legally insecure as a result of past
racially discriminatory laws or practices is
entitled, to the extent
provided by an Act of Parliament, either to tenure which is legally
secure or to comparable redress.”
2
This
case concerns first, the procedure that must be followed in
enacting this legislation; second, whether Parliament complied
with
its constitutional obligation to facilitate public involvement in
the legislative process that culminated in the enactment
of CLARA;
and, third, whether the provisions of CLARA, instead of providing
legally secure tenure, undermine it. But it also
raises the
question whether, if we should uphold any of the procedural
challenges, it is still necessary for us to consider
the
substantive challenges to the provisions of CLARA.
Four
communities whose land rights are affected by CLARA mounted a
two-pronged constitutional challenge to this legislation
in the
North Gauteng High Court, Pretoria (the High Court).
3
One was substantive, challenging CLARA on the ground that its
provisions undermine security of tenure. The other was procedural,

contending that the manner in which CLARA was enacted was
incorrect. This latter challenge was premised on Parliament’s

decision to pass CLARA as a Bill which does not affect the
provinces, under section 75 of the Constitution,
4
instead of as a Bill which affects the provinces, under section 76
of the Constitution.
5
The
substantive challenge was partially successful. The High Court
declared certain provisions of CLARA invalid. Although
it found
that Parliament should have followed the procedure for the passing
of Bills affecting the provinces prescribed by
section 76, it
declined to grant relief on that account because Parliament had
committed an error in good faith and did not
intend to suppress the
views of the provinces. It accordingly dismissed this part of the
application. The High Court, as
it was required to do, referred
the order of invalidity to this Court for confirmation.
In this Court, the applicants
seek confirmation of the order of invalidity. In addition, they
seek leave to appeal against
the dismissal of their application to
have CLARA declared constitutionally invalid in its entirety for
Parliament’s failure
to enact it in accordance with the
procedure prescribed by section 76. The applicants also lodged an
application for direct
access to this Court in which they seek an
order declaring CLARA constitutionally invalid on the ground that
Parliament failed
to comply with its constitutional obligations to
facilitate public involvement in the legislative process in terms
of sections
59(1)(a)
6
and 72(1)(a)
7
of the Constitution.
There
are four applicants, each of whom
represents a community
that occupies land to which CLARA applies. They all act in their
own interest, on behalf of the communities
of which they are a part
and in the public interest. Only five of the cited respondents
participated in these proceedings:
the Minister for Agriculture and
Land Affairs, now the Minister for Rural Development and Land
Reform, who is the first respondent;
the Minister for Provincial
and Local Government, now the Minister for Co-operative
Governance and Traditional Affairs,
who is the second respondent;
the Speaker of the National Assembly, the twelfth respondent; the
Chairperson of the National
Council of Provinces (NCOP), the
thirteenth respondent; and the National House of Traditional
Leaders, the fourteenth respondent.
I
use the terms applicants, communities, and applicant communities
interchangeably. For convenience, the twelfth and thirteenth

respondents will be referred to jointly as Parliament. Any
reference to “the Minister” is a reference to the
Minister for Rural Development and Land Reform.
In order to put the issues
presented into context, I consider it desirable to sketch briefly
the legislative scheme which brought
about our colonial and
apartheid geography and which facilitated land dispossession of
African people, the resultant insecure
land tenure for the majority
of our country, and the history of land occupation by the four
applicant communities.
Colonial and apartheid laws
Until 1905, the practice in
the former Transvaal or Zuid-Afrikaansche Republic
8
was that ownership of land could not be registered in the name of a
“native”.
9
This was justified on the basis of two instruments, namely, the
Volksraad Resolution of 14 August 1884 and article 13 of the

Pretoria Convention, 1881. The latter provided that: “Natives
will be allowed to acquire land, but the grant or transfer
of such
land will in every case be made to and registered in the name of
the Native Location Commission hereinafter mentioned,
in trust for
such natives.”
10
However, in 1905, and
following the decision in
Tsewu v Registrar of Deeds
11
which held that neither of these instruments had the force of law
and that title could be registered in the names of “natives”,

African people were able to purchase land from white farmers. It
is said that subsequent to 1905 and before June 1913, African

people purchased some 399 farms.
12
All this changed in June 1913, when the Natives Land Act, 1913
13
(now the Black Land Act) was enacted.
The Black Land Act and the
Native Trust and Land Act, 1936
14
(now the Development Trust and Land Act) were the key statutes that
determined where African people could live. The former
contained a
schedule which set out areas in which only African people could
purchase, hire or occupy land. In terms of section
2(1), the sale
of land between whites and African people in respect of land
outside of the scheduled areas referred to in the
Act was
prohibited. The effect of this legislation was to preclude African
people from purchasing land in most of South Africa.
In exceptional circumstances,
sales of land to African people could be approved by the
Governor-General, later the State President,
under the Native
Administration Act, 1927
15
(now the Black Administration Act). African people purchasing land
pursuant to such approval had to accept, however, that
land would
not be registered in their names but would be held in trust on
their behalf by the Minister of Native Affairs who
would recognise
their permanent rights of use and occupation of the land consistent
with the position of an owner.
The Development Trust and Land
Act was enacted in 1936 to make provision for the establishment of
the South African Native Trust
(the Trust) and the release of more
land for occupation by African people. In terms of section 6 of
this Act, all land “which
[was] reserved or set aside for the
occupation of natives” and “land within the scheduled
native areas, and . .
. within the released areas” vested in
the Trust. However, there was a limit on the amount of land that
could be acquired
by the Trust, and by implication, land that could
be occupied by African people.
16
The affairs of the Trust were administered by the Governor-General
in his capacity as the Trustee who, in turn, could delegate
his
powers and functions to the Minister of Native Affairs.
17
The land that vested in the
Trust was “held for the exclusive use and benefit of
natives”.
18
The Trustee had the power to “grant, sell, lease or
otherwise dispose of land . . . to natives”

and “on such conditions as he [deemed] fit”.
19
Further, the Governor-General had the power to make regulations,
among other things, “prescribing the conditions upon
which
natives may purchase, hire or occupy land held by the Trust”
20
and “providing for the allocation of land held by the Trust
for the purposes of residence, cultivation, pasturage and

commonage”.
21
The
conditions under which African people could lawfully purchase, hire
or occupy land held by the Trust were comprehensively
dealt with in
the Bantu Areas Land Regulations
22
and the Township Regulations.
23
The former dealt with rural areas while the latter dealt with
townships in African areas.
24
The
Bantu Areas Land Regulations recognised two forms of land tenure,
namely, quitrent tenure of land
25
and occupation of land under permission to occupy.
26
Although quitrent title was defined to mean a “title deed
relating to land”, it did not confer full ownership
on the
holder. This title was subject to strict conditions prescribed in
the regulations which included the right of the Bantu
Affairs
Commissioner, uNdabazabantu (People’s Affairs)
27
or any person authorised by him to “enter upon and inspect
the land” to ensure compliance with the regulations
28
and a prohibition against transferring title or disposing of land
without the consent of the Bantu Affairs Commissioner.
29
In addition, the rights of the holder could be cancelled if the
holder failed to comply with any condition upon which the
right to
occupy land was granted;
30
or upon conviction for certain offences such as theft, stock theft,
cultivation or possession or dealing in drugs, or, if a
person is
on a second occasion sentenced to imprisonment for 12 months.
31
Substantially
similar conditions applied to the permission to occupy. However,
in the case of the permission to occupy, the
regulations made it
clear that “[p]ermission granted to occupy the allotment
shall not convey ownership”.
32
In
addition, African people could not be absent from the land allotted
to them without written permission issued by the Bantu
Affairs
Commissioner. Where a person absented himself from the land
allotted to him for more than a year without permission,
that
person was presumed no longer to require the land and it reverted
to what was called “commonage” and could
be
re-allocated to another person.
33
These
regulations recognised the application of indigenous law in the
areas reserved for African people. This is apparent from

provisions of the regulations dealing with succession to land.
Succession to land allotted under the regulations was governed
by
indigenous law.
34
In addition, tribal authorities or, where they did not exist,
traditional leaders played a role in the allocation of arable
and
residential allotments.
35
To occupy land in these areas, African people required the
permission of the Bantu Affairs Commissioner who would grant

permission after consultation with the tribal authority having
jurisdiction or a traditional leader, as the case may be.
36
What
emerges from these regulations therefore is that (a) the tenure in
land which was subject to the provisions of the Black
Land Act and
Development Trust and Land Act and which was held by African people
was precarious and legally insecure; (b) indigenous
law governed
succession to land in these areas, and the application of
indigenous law in relation to land in these areas subject
to
regulations was recognised; and (c) tribal authorities and
traditional leaders played a role in the allotment of land in
these
areas.
The Black Land Act and the
Development Trust and Land Act, together with the regulations made
under these statutes, must be
read together with the Black
Administration Act and the Bantu Authorities Act, 1951
37
(now the Black Authorities Act). The latter statutes formed part
of the colonial and apartheid legislative scheme for the
control of
African people. As indicated previously, the Bantu Areas Land
Regulations were made under section 25(1) of the
Black
Administration Act read with section 21(1) and 48(1) of the
Development Trust and Land Act.
38
The Township Regulations were made under the provisions of both
the Development Trust and Land Act and the Black Administration

Act.
39
As will appear below, the Black Authorities Act established a
tribal structure for the administration of African people in

African areas.
The Black Administration Act
made the Governor-General (later the State President) the “supreme
chief of all Natives in
the Provinces of Natal, Transvaal and
Orange Free State” (later extended to the Cape Province),
40
and vested in him the legislative, executive and judicial authority
over African people. Specifically, it gave him the power
to govern
African people by proclamation,
41
to establish tribes,
42
and to “order the removal of any tribe or portion thereof or
any Native from any place to any other place”.
43
It dealt with, among other matters, the organisation and control
of African people,
44
land administration and tenure,
45
and the establishment of separate courts for African people which
had the authority to apply indigenous law.
46
It proclaimed the “Code of Zulu Law” to be the “Law
for Blacks in Natal”.
47
The Black Authorities Act gave
the State President the authority to establish
“with
due regard to native law and custom” tribal authorities for
African “tribes” as the basic unit
of administration in
the areas to which the provisions of CLARA apply.
48
These tribal authorities had the power to “advise and assist
the Government and any territorial or regional authority
. . . in
connection with matters relating
to . . .
[among
other things] the development and improvement of any land within
[their areas of jurisdiction]”.
49
And they were required to exercise their powers and perform their
functions “with due regard to the rules, if any, applicable

in the case of similar bodies in terms of the native laws or
customs of the respective tribes or communities in respect of
which
[they have been] established”.
50
It is these tribal authorities that have now been transformed into
traditional councils for the purposes of
section 28(4)
of the
Traditional Leadership and Governance Framework Act, 2003
51
(the Traditional Leadership Act). And in terms of section 21 of
CLARA, these traditional councils may exercise powers and
perform
functions relating to the administration of communal land.
Under apartheid, these steps
were a necessary prelude to the assignment of African people to
ethnically-based homelands.
52
This commenced with the creation of “legislative assemblies”
which would mature into “self-governing territories”

and ultimately into “independent states”.
53
According to this plan, there would be no African people in South
Africa, as all would assume citizenship of one or other
of the
newly created homelands, where they could enjoy social, economic
and political rights.
54
Section 5(1)(b) of the Black Administration Act became the most
powerful tool to effect the removal of African people from
“white”
South Africa into areas reserved for them under this Act and the
Development Trust and Land Act. And as
we noted in
DVB
Behuising
, “[t]hese removals resulted in untold
suffering.”
55
The forced removals of African people from the land which they
occupied to the limited amount of land reserved for them by
the
apartheid state resulted in the majority of African people being
dispossessed of their land. It also left a majority of
them
without legally secure tenure in land.
The Bantu Homelands
Citizenship Act, 1970
56
and the Bantu Homelands Constitution Act, 1971
57
further entrenched land dispossession as a key policy of the
apartheid edifice. African people would, as a consequence, have
no
claim to any land in “white” South Africa. African
people were tolerated in “white” South Africa
only to
the extent that they were needed to provide labour to run the
economy. They had precarious title to the land they
occupied to
remind them of the impermanence of their residence in “white”
South Africa.
58
Relentlessly, African people
were dispossessed of their land and given legally insecure tenure
over the land they occupied.
One of the goals of our
Constitution is to reverse all of this. It requires the
restoration of land to people and communities
that were
dispossessed of land by colonial and apartheid laws after 19 June
1913. It also requires that people and communities
whose tenure of
land is legally insecure as a result of racially discriminatory
colonial and apartheid laws be provided with
legally secure tenure
or comparable redress. CLARA was enacted with the declared purpose
to “provide for legal security
of tenure”.
It
is against this background that the occupation of land to which
CLARA applies by African people and, in particular, the four

communities and the issues presented in this case, must be
understood.
Factual background
The four communities occupy
land to which the provisions of CLARA apply. The Kalkfontein and
Makuleke communities, which are
represented by the first and second
applicants respectively, own the land.
59
The Makgobistad community, which is represented by the third
applicant, allegedly established rights in respect of land in
the
area known as Mayayane in the North West province. The Dixie
community, which is represented by the fourth applicant,
occupies
the farm, Dixie 240 KU, in the Pilgrims Rest District in the
Limpopo province. The Dixie Community exercises independent

control over the farm. In the case of each community, the land
that they occupy falls under the jurisdiction of a tribal
authority.
60
The applicant communities all
allege that the use and occupation of the land that they occupy is
regulated by indigenous law.
In the case of the Kalkfontein
community, the farms were managed and administered according to
indigenous law through a
Kgotla –
a customary
decision-making body. It recognised the individual rights of
co-owners and their families in respect of particular
plots of land
which they came to occupy for purposes of residence and
cultivation. These functions are now performed on a
similar basis
through the institution of the Kalkfontein B and C Community
Trust.
61
In the case of the Makuleke
community, access to land held in common was determined by shared
rules of indigenous law. The
use of communal land and veld
resources was regulated by traditional leaders. The allocation,
use and occupation of other
land was administered in accordance
with indigenous land tenure. The same applies to the Makgobistad
community. In the case
of the Dixie community, land vests in the
families who make up the community. Residential sites and fields
for cultivation
are recognised as being exclusive to a family.
Grazing land is used on a communal basis with every member of the
community
having the right to make use of communal grazing land.
Decisions pertaining to the community’s land are taken by the

community at village-level in meetings which are convened by the
traditional leader.
The communities are concerned
that their indigenous-law-based system of land administration will
be replaced by the new system
that CLARA envisages. They are
concerned that this will have an impact on the evolving indigenous
law which has always regulated
the use and occupation of land they
occupy. They are further concerned that their land will now be
subject to the control
of traditional councils which, as is
apparent from the record, they consider to be incapable of
administering their land for
the benefit of the community. All the
communities claim that the provisions of CLARA will undermine the
security of tenure
they presently enjoy in their land, and those
who own the land fear that they will be divested of their ownership
of the land.
While some of these claims are disputed by the
government respondents, what is not disputed is that the land
occupied by the
communities is administered in accordance with
indigenous law, and that traditional leaders, in particular the
tribal authorities,
play a role in the administration of communal
land. There is some issue as to the extent to which the role of
traditional
leaders and tribal authorities accords with indigenous
law.
High Court proceedings
During 2006, these four
communities launched a constitutional challenge to CLARA and to
certain provisions of the Traditional
Leadership Act. This
application was resisted by the Minister, Parliament, the Minister
for
Co-operative Governance and Traditional
Affairs (the second respondent) and the National House of
Traditional Leaders (the fourteenth
respondent)
. Parliament
limited its opposition to the procedural challenge based on the
failure to enact CLARA in accordance with the
provisions of section
76 of the Constitution. The second and fourteenth respondents
limited their opposition to the challenge
to the provisions of the
Traditional Leadership Act. The Minister, responsible for the
administration of CLARA, opposed both
the substantive challenge to
the provisions of CLARA as well as the procedural challenge. The
Premiers of the nine provinces,
although cited, did not participate
in the proceedings.
The High Court held that in
classifying CLARA for the purposes of “tagging”,
Parliament had applied the incorrect
test, namely, the “pith
and substance” test, instead of the “substantial
measure” test foreshadowed
in this Court’s decision in
Liquor Bill
.
62
I refer to this question as the “tagging” question
because this is the term used by Parliament in classifying
Bills
for the purposes of determining the procedure to be followed in
enacting a Bill.
The High Court accordingly
concluded that CLARA should have been classified as a section 76
Bill and that the procedure set
out therein should have been
followed in enacting CLARA. However, despite this conclusion, the
High Court declined to declare
CLARA unconstitutional, reasoning
that Parliament did not act in bad faith when adopting the
procedure prescribed in section
75 of the Constitution. In
addition, it held that, in determining the validity of the
procedure adopted in enacting legislation,
a court should “consider
if there is [a] substantial or material breach of the
audi
alteram partem
rule.”
63
It concluded that there was no breach of the audi
rule
because Parliament did not suppress the views of the provinces as
they were duly represented, and that “there was
a public
hearing on the matter.”
64
On the substantive challenge,
the High Court held that the impugned provisions of CLARA were
inconsistent with the Constitution
and accordingly declared those
provisions invalid.
65
It declined, however, to declare unconstitutional the impugned
provisions of the Traditional Leadership Act. It thereafter

referred the order of invalidity to this Court for confirmation.
These proceedings are a
sequel.
Proceedings in this Court
What lies at the heart of the
confirmation proceedings is the question whether CLARA undermines
the security of tenure of the
applicant communities. The
applicants submit that it does, and that for this reason CLARA is
inconsistent with section 25(6)
read with section 25(9) of the
Constitution which requires Parliament to enact legislation to
provide for legally secure tenure
or comparable redress. At the
centre of the application for leave to appeal is the question of
the proper test for the tagging
of Bills and the application of
that test to CLARA. Parliament alone resists this aspect of the
relief. Insofar as the application
for direct access is concerned,
the applicant communities allege that whatever public hearings may
have taken place on the
Bill, the adequacy of which they deny, the
fundamental amendments that were effected to the Bill required
Parliament to facilitate
public involvement on the amended version
of the Bill.
66
Parliament is also alone in resisting this procedural challenge.
On 18 February 2010, the
Minister filed an affidavit in which he stated that CLARA needs to
be reviewed. He went further to
state that it would either be
repealed
in toto
or drastically amended. He expressed the
view that CLARA “does not accurately reflect current
government policy regarding
communal land”. In the course of
oral argument, we were informed by counsel for the Minister that
CLARA would be repealed
in toto
.
The affidavit by the Minister
triggered further directions calling upon the parties to lodge
written submissions on whether
it was still necessary for this
Court to consider the substantive challenges to CLARA, including
the confirmation of the order
of invalidity. In addition, the
parties were required to make submissions as to why the hearing
should not be limited to the
tagging challenge and the failure to
comply with the constitutional obligation to facilitate public
involvement in the legislative
process. The parties did not agree
on the proper course to be followed in the light of the Minister’s
affidavit. The
applicants urged us to hear the entire case as
originally presented, while the respondents submitted that all the
constitutional
challenges had become moot given CLARA’s
imminent repeal.
At the commencement of the
hearing we heard argument on these issues. Having regard to the
undesirability of pre-empting the
outcome of the litigation, and
the need to avoid hearing the case piecemeal, we considered it
appropriate to hear argument
on all the issues presented, and ruled
accordingly.
The issues presented
Four main questions arise:
Did Parliament follow the
correct procedure in enacting CLARA?
Did Parliament comply with
its constitutional obligation to facilitate public involvement in
the legislative process in enacting
CLARA?
Should the order of
invalidity be confirmed?
What relief, if any, are the
applicant communities entitled to?
It is convenient to consider
first whether Parliament followed the correct procedure in enacting
CLARA, or the classification
or tagging question.
Tagging
The Constitution regulates the
manner in which legislation may be enacted by the legislature. It
prescribes different procedures
for Bills
amending the
Constitution;
67
ordinary Bills not affecting provinces;
68
ordinary Bills affecting provinces;
69
and money Bills.
70
These provisions require Parliament first to classify a Bill
submitted to it, in order to determine which procedure should
be
followed in enacting the Bill. Section 76(1) prescribes a more
burdensome procedure than section 75. It provides that
“[w]hen
the National Assembly passes a Bill referred to in subsection (3),
(4) or (5), the Bill must be referred to the
National Council of
Provinces and dealt with in accordance with [the procedure set out
in that provision]”. Section
76(3) in turn provides that
“[a] Bill must be dealt with in accordance with the procedure
established by either subsection
(1) or subsection (2) if it falls
within a functional area listed in Schedule 4”. When a Bill
is introduced in the National
Assembly, the sponsor of the Bill
will indicate the proposed classification of it. However, this
classification is not conclusive
as Parliament itself must still
classify the Bill.
Part 18 of the Joint Rules of
Parliament
71
sets out the procedure to be followed in classifying Bills. The
Joint Rules establish the Joint Tagging Mechanism (JTM) which

consists of the Speaker and Deputy Speaker of the National Assembly
and the Chairperson and Deputy Chairperson of the NCOP.
The
function of the JTM is, among other things, to make final rulings
as to the classification of Bills in accordance with
joint rule
160. Joint rule 160(3) provides:
“
When a Bill introduced
as a section 75 Bill is referred to the JTM, [the JTM] must make a
finding on whether the Bill— (a)
is in fact a section 75 Bill;
[and] (b) includes any provisions to which the procedure prescribed
in section 76 of the Constitution
applies”.
Similarly, where a Bill is
introduced as a section 76 Bill, joint rule 160(4) requires the JTM
to “make a finding on whether
the Bill—(a) is in fact a
section 76 Bill and if so, which of subsections (3), (4) or (5) of
that section applies to
the Bill”. The JTM must also
establish whether the Bill “includes any provisions to which
the procedure prescribed
in section 75 applies”.
It is common cause that CLARA
was introduced in the National Assembly, subsequently classified by
the JTM and accordingly enacted
as a section 75 Bill. In her
answering affidavit before the High Court, the former Speaker of
the National Assembly, Ms Baleka
Mbete, gave the following
explanation for tagging CLARA as a section 75 Bill:
“
[I]n order to determine
whether CLARA falls within a functional area listed in Schedule 4
[in accordance with section 76(3)] it
is necessary to determine the
subject-matter or the substance thereof, its essence, or true
purpose and effect. The latter is
also referred to as its ‘pith
and substance’. It is furthermore necessary in this regard to
have regard to the purpose
for which CLARA was enacted. In this
enquiry the preamble and the legislative history of CLARA are
relevant considerations.
They serve to illuminate its
subject-matter and to place it in context, to provide an explanation
for its provisions and to
articulate the policy behind them.
. . . .
Having regard to all the
relevant factors, including the provisions of CLARA, it is readily
apparent that the substance of CLARA
relates to the issue of
security of land tenure or comparable redress which are
constitutional imperatives and matters clearly
falling within the
legislative competence of Parliament only. The substance of CLARA
accordingly does not fall within any of
the areas listed in Schedule
4 to the Constitution and CLARA was therefore correctly tagged as a
section 75 Bill.”
Contentions of the parties
The communities contended that
CLARA should have been classified as a section 76 Bill because it
affects the provinces. They
relied upon the decision of this Court
in
Liquor Bill
.
72
They submitted that in
Liquor Bill
, this Court formulated
the test for the classification of Bills when it held that a “Bill
whose provisions in substantial
measure fall within a functional
area listed in Schedule 4” must be dealt with under section
76. They submitted that
the provisions of CLARA in substantial
measure deal with “indigenous and customary law” and
“traditional
leadership” which are functional areas
listed in Schedule 4.
In its written argument,
Parliament contended that the test for tagging a Bill was the
substance of the legislation which was
referred to as the “pith
and substance” test. The phrase “pith and substance”
is borrowed from other
jurisdictions and refers to what we term the
“substance”, the “purpose and effect” or
the “subject-matter”
of legislation. The “purpose
and effect” test was developed by this Court to determine
whether the National Assembly
or a provincial legislature has the
competence to legislate in a particular field.
73
Based on this test, which Parliament contended should also apply
to the process of determining the manner in which a Bill
should be
tagged, Parliament submitted that the “pith and substance”
of CLARA was land tenure. Any provision of
CLARA that deals with
indigenous law or traditional leadership, matters listed in
Schedule 4, is incidental to land tenure.
These provisions were
irrelevant for the purposes of tagging CLARA.
Parliament contended further
that there should be no difference between the test for classifying
legislation for the purposes
of tagging on the one hand, and on the
other hand, determining whether legislation falls within the
competence of a legislature.
This is so, the argument went,
because both have the same end in mind, namely, to determine
whether the legislation falls
within one of the relevant schedules
to the Constitution.
However, in response to
questions put to counsel for Parliament in the course of oral
argument, there was a noticeable shift
in Parliament’s
position. Counsel for Parliament accepted that there is a
difference between the test for determining
legislative competence
and the test for determining how a Bill should be tagged. He also
accepted that if a substantial part
of a Bill is concerned with a
functional area listed in Schedule 4 then the Bill falls to be
classified as a section 76 Bill.
However, he maintained that no
substantial part of CLARA affected the provinces and that CLARA was
correctly tagged as a section
75 Bill. This argument suggests that
in tagging a Bill, Parliament looks not only at the substance, or
purpose and effect,
of the Bill but also at the provisions of the
Bill in order to determine whether any of its provisions affect a
functional
area listed in Schedule 4.
This modified argument was
apparently based on the provisions of joint rule 160(3)(b) which
requires the JTM, when classifying
a Bill, to determine whether it
“includes any provisions to which the procedure prescribed in
section 76 of the Constitution
applies”. I did not, however,
understand Parliament to abandon its reliance on the “pith
and substance”
test as the proper test for tagging. Nor did
counsel for Parliament abandon the argument that the provisions of
CLARA, which
do not form part of its substance, are merely
incidental to land tenure and therefore irrelevant to the question
of tagging.
The issue for determination,
therefore, is whether Parliament properly classified CLARA as a
section 75 Bill. There are two
related issues which arise. The
first relates to the proper test to be adopted in determining
whether a Bill should be classified
as a section 75 Bill or a
section 76 Bill. The second relates to the application of the
proper test to CLARA and the result
this yields.
The proper test
The
Liquor Bill
case
involved a Bill which was introduced in Parliament, and dealt with
as a Bill affecting provinces, in terms of section
76 read with
section 44(1)(b)(ii)
74
and section 44(2)
75
of the Constitution – the override provisions. The
question which was submitted by the President to this Court for
consideration
was whether the invocation of the override provisions
of the Constitution was justified. This was on the basis of a
common
understanding that the legislation concerned liquor
licenses, an exclusive provincial area of competence. In his
answering
affidavit, the Minister for Trade and Industry contended
that matters regulated by the Bill fell within national legislative
competence. Against this background, the Western Cape Province
then raised the question whether, if the legislation dealt with
a
matter within the national competence, the section 76 procedure had
been rightly adopted. The Province contended that if
the Bill was
not legislation with regard to a matter within Part A of Schedule 5
of the Constitution then it should have been
enacted in accordance
with section 75.
In resolving this issue, this
Court held that the heading of section 76, namely, “Ordinary
Bills affecting provinces”
provides “a strong textual
indication that section 76(3) must be understood as requiring that
any Bill whose provisions
in substantial measure fall within a
functional area listed in Schedule 4, be dealt with under section
76.”
76
It went on to hold that “[w]hatever the proper
characterisation of the Bill . . . a large number of provisions
must
be characterised as falling ‘within a functional area
listed in Schedule 4’, more particularly, the concurrent

national and provincial legislative competence in regard to ‘trade’
and ‘industrial promotion.’”
77
Accordingly, “[o]nce a Bill ‘falls within a functional
area listed in Schedule 4’”
78
it must be enacted in accordance with the procedure in section 76.
The import of the submissions
made on behalf of Parliament is that the statement in
Liquor
Bill
that “any Bill whose provisions in substantial
measure fall within a functional area listed in Schedule 4”
was not
intended to formulate the test for tagging. This is so, as
I understand the argument, because this Court did not say it was
formulating the test nor did it elaborate on this test. This view
was bolstered by the submission that the test for tagging
and for
determining legislative competence is the same. In effect,
therefore, the argument invites us to revisit what we said
in
Liquor Bill
.
The contention of the
communities that the statement, “whose provisions in
substantial measure” in
Liquor Bill
, formulates the
test for determining the procedure to be followed in enacting a
Bill must, in my view, be upheld. It is apparent
from the passages
in
Liquor Bill
to which I have referred, that the Court
distinguished between the characterisation of a Bill and its
tagging. What matters
for the purposes of tagging is not the
substance or the true purpose and effect of the Bill, rather, what
matters is whether
the provisions of the Bill “in substantial
measure fall within a functional area listed in Schedule 4”.
This statement
refers to the test to be adopted when tagging Bills.
This test for classification or tagging is different from that
used by
this Court to characterise a Bill in order to determine
legislative competence. This “involves the determination of

the subject-matter or the substance of the legislation, its
essence, or true purpose and effect, that is, what the
[legislation]
is about”.
79
There is an important
difference between the “pith and substance” test and
the “substantial measure”
test. Under the former,
provisions of the legislation that fall outside of its substance
are treated as incidental. By contrast,
the tagging test is
distinct from the question of legislative competence. It focuses
on all the provisions of the Bill in
order to determine the extent
to which they substantially affect functional areas listed in
Schedule 4 and not on whether any
of its provisions are incidental
to its substance.
The test for tagging must be
informed by its purpose. Tagging is not concerned with determining
the sphere of government that
has the competence to legislate on a
matter. Nor is the process concerned with preventing interference
in the legislative
competence of another sphere of government. The
process is concerned with the question of how the Bill should be
considered
by the provinces and in the NCOP, and how a Bill must be
considered by the provincial legislatures depends on whether it
affects
the provinces. The more it affects the interests, concerns
and capacities of the provinces, the more say the provinces should

have on its content.
That this is so emerges from a
consideration of the broader provisions of section 76. These
provisions show that legislative
competence is not determinative of
when the Constitution requires the more burdensome processes
prescribed by section 76 to
be followed. Thus section 76(3) lists
certain additional classes of legislation that must follow its
process, over which provinces
have no legislative competence at
all. This legislation is concerned with section 65(2)
80
– the uniform procedure as to how provincial legislatures
confer authority to vote on their NCOP delegations; section
163
81
– national legislation to recognise national and provincial
organisations representing municipalities; section 182
82
– functions of the Public Protector; section 195
83
– values and principles governing public administration;
section 196
84
– Public Service Commission; and section 197
85
– Public Service.
That the Constitution requires
that a Bill providing for legislation envisaged in any of these
provisions must follow the section
76 procedure shows that
concurrent legislative competence is not the key to unlocking the
applicability of processes prescribed
in section 76. The key,
instead, lies in those measures that substantially affect the
provinces.
Indeed, as counsel for the
communities pointed out, if the section 76 process were limited
only to Bills involving subject-matter
over which the provinces
themselves had concurrent legislative competence, the need for a
legislative process that took special
account of their interests
would hardly arise. This is because their concurrent legislative
powers would enable them to enact
their own preferred legislation
in the same field, which would indeed enjoy some precedence,
subject only to the national override
provided for in section 146
of the Constitution. Yet it is where matters substantially affect
them
outside
their concurrent legislative competence that it
is important for their views to be properly heard during the
legislative process.
This too shows that concurrent provincial
legislative competence provides no conclusory guide to the
rationale behind the
section 76 process.
The purpose of tagging is
therefore to determine the nature and extent of the input of
provinces on the contents of legislation
affecting them. Indeed,
all the legislation mentioned in section 76(3) is legislation that
substantially affects the interests
of provinces.
The importance that the
Constitution attaches to the voice of the provinces in legislation
affecting them can be illustrated
by referring to two parliamentary
processes. The first is the voting procedure in the NCOP. When
the NCOP votes on a section
76 Bill, each province has a single
vote which is cast on behalf of the province by the head of its
delegation.
86
The heads of provincial delegations vote in accordance with the
instructions given by their respective provincial legislatures.

The second is the mediation process mandated if there is a
disagreement between the National Assembly and the NCOP. The
Constitution establishes a Mediation Committee consisting of an
equal number of representatives of members of the National Assembly

and the NCOP to resolve differences between them on Bills.
87
Agreement on a Bill by the Committee must be supported by at least
five representatives of the National Assembly and five

representatives of the NCOP.
88
If the Committee is unable to agree on a Bill passed by the
National Assembly, it lapses. The National Assembly may only
pass
the same Bill with a supporting majority of at least two-thirds of
its members.
89
None of these procedural safeguards applies to the enactment of a
section 75 Bill.
These procedural safeguards
are designed to give more weight to the voices of the provinces in
legislation substantially affecting
them. But they are more than
just procedural safeguards; they are fundamental to the role of the
NCOP in ensuring “that
provincial interests are taken into
account in the national sphere of government”, and for
“providing a national
forum for public consideration of
issues affecting the provinces.”
90
They also provide citizens within each province with the
opportunity to express their views to their respective provincial

legislatures on the legislation under consideration. They do this
through the public involvement process that provincial
legislatures, in terms of section 118(1)(a) of the Constitution,
must facilitate.
91
There is another consideration
that should inform the proper test for tagging Bills; it is the
model of our government. Government
under our Constitution “is
constituted as national, provincial and local spheres of government
which are distinctive,
interdependent and interrelated.”
92
One of its defining features is that legislative functions between
the national and provincial spheres of government are not
rigidly
assigned to each sphere and many important functions are shared.
In order to give effect to this model of government,
the
Constitution “introduces a new philosophy which obliges all
organs of government to co-operate with each other and
to discharge
various functions.”
93
And to this extent, it introduces principles of co-operative
government and intergovernmental relations. These include the

requirement that each sphere of government must “respect the
constitutional status, institutions, powers and functions
of
government in the other spheres”
94
and “co-operate with one another in mutual trust and good
faith by . . . co-ordinating their actions and legislation
with one
another”.
95
The NCOP is an important
institution which facilitates co-operative government in the
law-making process. It has rightly been
observed that the design
of our constitutional democracy “integrates the national and
provincial legislative institutions
and builds the concept of
multi-sphere government directly into the parliamentary process
[and] [t]his principle carries over
to the decision-making process
in the NCOP.”
96
Our model of government therefore anticipates that all powers will
be exercised within the framework of co-operative government
but
recognises the integrity of each sphere of government and
encourages co-operation among all spheres.
The tagging of Bills before
Parliament must be informed by the need to ensure that the
provinces fully and effectively exercise
their appropriate role in
the process of considering national legislation that substantially
affects them. Paying less attention
to the provisions of a Bill
once its substance, or purpose and effect, has been identified
undermines the role that provinces
should play in the enactment of
national legislation affecting them. The subject-matter of a Bill
may lie in one area, yet
its provisions may have a substantial
impact on the interests of provinces. And different provisions of
the legislation may
be so closely intertwined that blind adherence
to the subject-matter of the legislation without regard to the
impact of its
provisions on functional areas in Schedule 4 may
frustrate the very purpose of classification.
To apply the “pith and
substance” test to the tagging question, therefore,
undermines the constitutional role of
the provinces in legislation
in which they should have a meaningful say, and disregards the
breadth of the legislative provisions
that section 76(3) requires
to be enacted in accordance with the section 76 procedure. It does
this because it focuses on
the substance of a Bill and treats
provisions which fall outside its main substance as merely
incidental to it and consequently
irrelevant to tagging. In so
doing, it ignores the impact of those provisions on the provinces.
To ignore this impact is
to ignore the role of the provinces in the
enactment of legislation substantially affecting them. Therefore
the test for determining
how a Bill is to be tagged must be broader
than that for determining legislative competence.
On the other hand, the
“substantial measure” test permits a consideration of
the provisions of the Bill and their
impact on matters that
substantially affect the provinces. This test ensures that
legislation that affects the provinces will
be enacted in
accordance with a procedure that allows the provinces to fully and
effectively play their role in the law-making
process. This test
must therefore be endorsed.
To summarise: any Bill whose
provisions substantially affect the interests of the provinces must
be enacted in accordance with
the procedure stipulated in section
76. This naturally includes proposed legislation over which the
provinces themselves have
concurrent legislative power, but it goes
further. It includes Bills providing for legislation envisaged in
the further provisions
set out in section 76(3)(a)-(f), over which
the provinces have no legislative competence, as well as Bills the
main substance
of which falls within the exclusive national
competence, but the provisions of which nevertheless substantially
affect the
provinces. What must be stressed, however, is that the
procedure envisaged in section 75 remains relevant to all Bills
that
do not, in substantial measure, affect the provinces. Whether
a Bill is a section 76 Bill is determined in two ways. First,
by
the explicit list of legislative matters in section 76(3)(a)-(f),
and second by whether the provisions of a Bill in substantial

measure fall within a concurrent provincial legislative competence.
The next question is whether
the provisions of CLARA in substantial measure fall within
functional areas listed in Schedule
4.
Do the provisions of CLARA
affect, in substantial measure, indigenous and customary law and
traditional leadership?
There are two important
considerations that must be borne in mind when determining whether
the provisions of CLARA in substantial
measure fall within the
functional area of indigenous law. The first is to recognise that
statutes do not ordinarily deal
with indigenous law in the
abstract. They do so in the context of specific subject-matter of
indigenous law, such as matrimonial
property,
97
intestate succession,
98
or the occupation and use of communal land, as CLARA does.
Therefore any legislation with regard to indigenous law will

ordinarily and indeed, almost invariably, also be legislation with
regard to the underlying subject-matter of the indigenous
law in
question. The mere fact that a statute that repeals, replaces or
amends indigenous law might have a different subject-matter
of its
own, does not detract from the fact that it also falls within the
functional area of indigenous law.
The second, which also applies
to traditional leadership, is that the phrase “falls within”
in section 76(3) must
be construed purposively to ensure that
ordinary Bills that affect provinces are enacted in accordance with
the procedure prescribed
in section 76(1). This is manifestly the
purpose of section 76(3), as its heading plainly conveys. In the
context of indigenous
law or traditional leadership, a Bill deals
with Schedule 4 matters if it repeals, replaces or amends
indigenous law or the
powers and functions of traditional councils.
So too, does a Bill that requires indigenous law to be “recorded”,

codified or “registered” or, to use the words of CLARA,
“converted, confirmed or cancelled”.
99
This is the context within
which the question whether the provisions of CLARA in substantial
measure affect indigenous and customary
law as well as traditional
leadership, both functional areas listed in Schedule 4, must be
understood.
The convenient starting point
in determining this question is CLARA’s preamble. Its
proclaimed purpose is:
“
To provide for legal
security of tenure by transferring communal land, including
KwaZulu-Natal Ingonyama land, to communities,
or by awarding
comparable redress; to provide for the conduct of a land rights
enquiry to determine the transition from old order
rights to new
order rights; to provide for the democratic administration of
communal land by communities; to provide for Land
Rights Boards; to
provide for the co-operative performance of municipal functions on
communal land; to amend or repeal certain
laws; and to provide for
matters incidental thereto.”
It is plain from the preamble
that CLARA foreshadows a new system for the administration of
communal land. To facilitate the
transfer of communal land, land
enquiries will be conducted to determine the transition from “old
order rights”,
which include indigenous law. A new system of
administering communal land is introduced, in terms of which
communal land will
be administered by land administration
committees. Where traditional councils exist, these councils will
perform the functions
of land administration committees. To
facilitate the administration of communal land under the new
regime, communities are
required to adopt rules that will regulate
the use, occupation and administration of communal land.
But, the field that CLARA now
seeks to cover is not unoccupied. There is at present a system of
law that regulates the use,
occupation and administration of
communal land. This system also regulates the powers and functions
of traditional leaders
in relation to communal land. It is this
system which CLARA will repeal, replace or amend. The communities
contended that
the land which they presently occupy is administered
by them in accordance with the rules of indigenous law that have
evolved
over time. This is true of all land to which the
provisions of CLARA apply, they contended. Indeed all the parties
approached
the matter on the footing that the land which the four
applicant communities occupy
is
regulated by indigenous law.
However, the experts on both sides differed on the content of the
indigenous law that applied
in respect of the land which the
communities occupy.
It seems to me that once it is
accepted, as it must be, that CLARA’s purpose is to introduce
a new regime that will regulate
the use, occupation and
administration of communal land, a field presently regulated to a
large extent by indigenous law, it
follows that CLARA, in
substantial measure, deals with indigenous law, a functional area
listed in Schedule 4. To the extent
that traditional leaders,
through traditional councils, will now have wide-ranging powers in
relation to the administration
of communal land, the Act deals, in
substantial measure, with traditional leadership, another
functional area listed in Schedule 4.
The attempt by CLARA,
as I will indicate later in this judgment, to reclassify the acts
of traditional councils when performing
the functions and powers of
land administration committees as functions in respect of the
“administration of land”,
simply emphasises the
conclusion.
An analysis of the provisions
of CLARA amply demonstrates that they have a substantial impact on
indigenous law and traditional
leadership. I do not propose to go
through all its provisions. It will be sufficient to refer to the
main features of CLARA.
There are three features of
CLARA which are crucial to the assessment of its impact on
indigenous law and traditional leadership.
First, CLARA deals with
land tenure not as it relates to any land, but as it relates to
“communal land”. Second,
it deals with the transition
from “old order rights”, which include rights derived
from indigenous law, to “new
order rights”, which
include indigenous law rights which have been confirmed or
converted by the Minister in terms of
section 18. Third, it
introduces a new system of administration of communal land in which
traditional councils are given wide-ranging
powers and functions.
These features can conveniently be considered under three broad
topics: the scope of the application
of CLARA; the system of
administration of communal land that CLARA introduces; and the
functions and powers of traditional
councils.
The scope of the
application of CLARA
CLARA applies only to
“communal land”. This much is apparent from its
preamble. And communal land is land “which
is, or is to be,
occupied or used by members of a community subject to the rules or
custom of that community”.
100
A community is in turn defined as “a group of persons whose
rights to land are derived from shared rules determining
access to
land held in common by such group”.
101
It is true that the definition
of “community” makes no reference to indigenous law.
There can be no doubt, however,
that “shared rules
determining access to land held in common” refers to the
indigenous-law-based system of land
tenure which typically includes
communal land as a central feature. Indeed this is implicit, if
not explicit, in the definition
of communal land.
Support for this conclusion
can be found in section 2 of CLARA which specifies the land to
which CLARA applies.
102
It applies to communal land formerly held by the South African
Development Trust, which land later vested in the former

“self-governing” territories and the “independent”
homelands, including land to which the provisions
of the
KwaZulu-Natal Ingonyama Trust Act, 1994
103
applies. It is important to recall that the apartheid-era
legislation to which section 2 refers, namely, the Black Land Act

and the Development Trust and Land Act, demarcated the areas in
which African people
could
live.
104
These statutes, read together with the Black Administration Act
and the Black Authorities Act, regulated the lives of African

people in the areas reserved for them.
From the provisions of these
statutes, and the regulations made under them, it is apparent that
African people who lived in
the areas set aside for them under the
1913 and 1936 land statutes were governed by indigenous law.
Indeed section 25 of the
Black Administration Act made the
provisions of the Natal Code of Zulu Law applicable to the province
of Natal. The use, occupation
and administration of communal land
was regulated by indigenous law as it evolved over time. Colonial
law and apartheid legislation
may have determined, to a certain
extent, “titles” to land that African people could hold
through, for example,
quitrent titles, certificates of occupation,
105
deeds of grant,
106
or permission to occupy.
107
These “titles”, however, do not detract from the fact
that indigenous law applied where it had not been supplanted
by
statute. Indeed the evidence on the record, provided by the
communities and supported by some of the government respondents,

bears testimony to this.
I should note here that under
the Traditional Leadership Act, the functions of the traditional
council include the administration
of the affairs of traditional
communities in accordance with customs and traditions;
108
and performing any functions conferred by indigenous law, customs
and statutory law consistently with the Constitution.
109
The land to which CLARA
applies, therefore, is almost entirely land which was racially
separated out for occupation by African
people in terms of the
Black Land Act and the Development Trust and Land Act. Originally,
before colonisation and the advent
of apartheid, this land was
occupied and administered in accordance with living indigenous law
as it evolved over time. Communal
land and indigenous law are
therefore so closely intertwined that it is almost impossible to
deal with one without dealing
with the other. When CLARA speaks of
land rights, it speaks predominantly of rights in land which are
defined by indigenous
law in areas where traditional leaders have a
significant role to play in land administration. This is more
apparent when
CLARA refers to “old order rights” which
include rights derived from indigenous law. While the
subject-matter
of CLARA may well be land tenure, as it relates to
communal land it is also legislation that necessarily affects
indigenous
law and traditional leadership. And substantially so.
Land administration system
CLARA introduces a new system
of land administration in relation to communal land. This system
is to be based on community
rules envisaged in section 19. These
rules regulate “the administration and use of communal land
by the community as
land owner within the framework of law
governing spatial planning local government”.
110
Under this system, land is administered by the land administration
committee whose duties and powers in relation to the administration

of communal land will be contained in the community rules. It
replaces the entire indigenous-law-based system that regulates
the
administration and use of communal land. What matters for the
purposes of tagging is not whether the system contemplated
by CLARA
is good or bad. What matters is that the new system contemplated
by CLARA replaces the indigenous-law-based system
currently
managing the administration of communal land.
The argument by Parliament
that communities are entitled to incorporate the indigenous law
rules of land tenure into the rules
to be made under CLARA misses
the point. Were this to happen, it would amount to the
codification of indigenous law. Therefore,
whether the community
rules adopted under the provisions of CLARA replicate, record or
codify indigenous law or represent an
entirely new set of rules
which replace the indigenous-law-based system of land
administration, the result is the same: a substantial
impact on the
indigenous law that regulates communal land in a particular
community. We are concerned merely with determining
the impact
that the adoption of community rules under CLARA will have on
indigenous law. Evidently, this will have a substantial
effect on
indigenous law.
The powers and functions of
traditional leadership
Section 21
111
permits traditional councils to assume the powers and duties of
land administration committees. It provides that traditional

councils must comprise vulnerable community members including
women, children and the youth.
112
This alters the composition of traditional councils.
113
Section 21(2) provides for the exercise of powers of land
administration committees by traditional councils. All the various

and wide-ranging provisions of CLARA which confer powers and
functions and imposes duties on land administration committees,

through the mechanism of section 21(2), become applicable to
traditional councils. These powers and functions are set out
in
section 24 and they unquestionably pertain to the functional area
of traditional leadership listed in Schedule 4 of the

Constitution.
114
It is true that section 21(2)
permits communities to decide whether or not existing traditional
councils should assume the role
of land administration committees.
This means, Parliament argued, that traditional councils are not
imposed on the community.
They may or may not assume the role of
land administration committees and if they do not, they would not
feature at all in
the context of CLARA.
The issue is not whether
traditional councils do in fact assume the role of land
administration committees; what is significant
for the purposes of
tagging is that CLARA makes provision for traditional councils to
assume that role and confers on them
wide-ranging powers and
functions pertaining to traditional leadership. Whether they
assume those powers is irrelevant for
the purposes of tagging.
The provisions of section
21(4) do not assist Parliament either. This section provides that
when a traditional council performs
the functions of the land
administration committee “its functional area of competence
is the administration of land affairs
and not traditional
leadership as contemplated in Schedule 4”. But legislation
is tagged under section 76(3) by the
tag test prescribed by that
section. Parliament cannot therefore alter CLARA’s proper
classification under section 76(3)
by asserting that it falls
within a functional area that is outside of Schedule 4. Section
21(4) cannot therefore affect the
proper tagging of CLARA.
Counsel for Parliament
contended that any effect that the provisions have on indigenous
law is indirect and incidental, and
submitted that CLARA “could
only conceivably have an impact on indigenous law and customary law
to the extent that the
latter do not secure land tenure”.
However, he made no attempt to analyse the extent to which
indigenous law provided
or did not provide secure communal land
tenure. It seems to me that once it is accepted, as Parliament
does, albeit in a faint
tone, that the provisions of CLARA may have
an impact on the indigenous law of communal land tenure, it must be
accepted that
the provisions of CLARA, in substantial measure,
affect indigenous law and customary law.
To sum up, therefore, CLARA
replaces the living indigenous law regime which regulates the
occupation, use and administration
of communal land. It replaces
both the institutions that regulated these matters and their
corresponding rules. CLARA also
gives traditional councils new
wide-ranging powers and functions. They include control over the
occupation, use and administration
of communal land.
I conclude, therefore, that
the provisions of CLARA in substantial measure affect “indigenous
law and customary law”
and “traditional leadership”,
functional areas listed in Schedule 4. It follows therefore that
CLARA was incorrectly
tagged as a section 75 Bill, that it should
have been tagged as a section 76 Bill, and that the procedure set
out in that section
should have been followed. But what are the
consequences of Parliament’s failure to enact CLARA in
accordance with the
procedure prescribed in section 76(1)?
The consequences of a
failure to follow the section 76 procedure
Despite its conclusion that
the provisions of CLARA in substantial measure fall within
functional areas listed in Schedule 4
and, by implication, that
CLARA should have been enacted in accordance with the procedure in
section 76(1), the High Court
declined to declare CLARA
unconstitutional on this basis. It reasoned that a “court in
determining the validity of the
procedure adopted should . . .
consider if there is substantial or material breach of the
audi
alteram partem
rule”.
115
As I understand its reasoning, there was no material breach of
this rule because the NCOP “did not intend to stop the
views
of the provinces because the provinces were duly represented and
there was a public hearing on the matter.”
116
The High Court appears to have
been influenced by an observation in
Liquor Bill
to the
effect that it might be too formalistic to hold that a Bill is
invalid because “Parliament erred in good faith”
in
enacting legislation before it under the section 76 procedure.
117
The High Court expressed the view that the NCOP did not act “in
bad faith in adopting the section 75 procedure.”
118
Counsel for Parliament
supported the decision of the High Court in this regard. He
submitted that adopting an incorrect procedure
does not
automatically result in invalidity. Relying on
Liquor Bill
,
he submitted that the “issue is dependent upon the particular
circumstances of the matter.” He argued that because
the
“Bill was passed unanimously by both Houses of Parliament . .
. [w]hatever procedure was followed would not have
resulted in a
different outcome.” It is therefore “of no moment
whether the NCOP voted corporately or individually
. . . [because
the] Bill would have been passed in any event”, counsel
argued. There was, therefore, substantial compliance
with the
Constitution, counsel for Parliament submitted.
The reliance on
Liquor Bill
is misplaced. It misconceives the nature of the enquiry involved
in determining whether failure to comply with the manner
and form
requirements of the Constitution should result in the invalidity of
legislation. More importantly, the approach of
counsel for
Parliament to the problem fails to appreciate the purpose of
section 76(3), namely, to give more weight to the
voice of the
provinces in legislation affecting them.
In addition, this approach
ignores what was said in the last sentence of the paragraph in
Liquor Bill
on which they rely. There, we said “
whether
a provincial delegation votes corporately through its head of
delegation, as prescribed by section 65, or individually
by each
member casting a vote, as prescribed by section 75(2), may in
defined circumstances be determinative as to whether
the NCOP
passes a Bill.”
119
To this, I should add that the procedure followed in enacting a
Bill may also be determinative as to whether a Bill introduced
in
the National Assembly is enacted into law. This is so because to
override the NCOP’s objection to a section 76 Bill,
the
National Assembly would require a supporting vote of at least
two-thirds of its members to pass the same Bill.
Moreover, the reference to
“good faith” in
Liquor Bill
was made in the
context of a complaint that Parliament followed the more cumbersome
section 76 procedure rather than the less
exacting one prescribed
by section 75. This is not the case here. It may well be that
different considerations apply where
the section 76 procedure is
followed instead of the one prescribed by section 75. I need not
express any opinion on this issue.
Apart from this, this Court
has held that—
“
[c]onstitutional cases
cannot be decided on the basis that Parliament or the President
acted in good faith or on the basis that
there was no objection to
action taken at the time that it was carried out. . . . The
Constitution itself allows this Court to
control the consequences of
a declaration of invalidity if it should be necessary to do so. Our
duty is to declare legislative
and executive action which is
inconsistent with the Constitution to be invalid, and then to deal
with the consequences of the
invalidity in accordance with the
provisions of the Constitution.”
120
Both the High Court and
counsel for Parliament, therefore, approached the matter
incorrectly.
In
Doctors for Life
,
this Court considered the consequences of a failure to enact
legislation in accordance with a procedure prescribed by the

Constitution.
121
This was in the context of the obligation to facilitate public
involvement in the law-making process. We held that the answer
to
this question depends, among other things, upon the importance that
the Constitution attaches to the process in question.
122
And we said the following of the failure to comply with the manner
and form requirements of the Constitution and the duty
of courts in
that regard:
“
It is trite that
legislation must conform to the Constitution in terms of both its
content and the manner in which it was adopted.
Failure to comply
with manner and form requirements in enacting legislation renders
the legislation invalid. And courts have
the power to declare such
legislation invalid.”
123
(Footnote omitted.)
And
we concluded:
“
[T]his Court not only
has a right but also has a duty to ensure that the law-making
process prescribed by the Constitution is
observed. And if the
conditions for law-making processes have not been complied with, it
has the duty to say so and declare
the resulting statute invalid.
Our Constitution manifestly contemplated public participation in the
legislative and other processes
of the NCOP, including those of its
committees. A statute adopted in violation of section 72(1)(a)
precludes the public from
participating in the legislative processes
of the NCOP and is therefore invalid.”
124
The principles that we
enunciated in
Doctors for Life
apply equally to this case.
They are deeply rooted in the supremacy of our Constitution, a
founding value of our constitutional
democracy which is given
expression in section 172(1)(a) of the Constitution.
125
In
Doctors for Life
, we said:
“
The provisions of
section 172(1)(a) are clear, and they admit of no ambiguity; ‘[w]hen
deciding a constitutional matter
within its power, a court . . .
must declare that any law or conduct that is inconsistent with the
Constitution is invalid’.
This section gives expression to
the supremacy of the Constitution and the rule of law, which is one
of the founding values
of our democratic State. It echoes the
supremacy clause of the Constitution, which declares that the
‘Constitution is
supreme . . . ; law or conduct inconsistent
with it is invalid’. It follows therefore that, if a court
finds that the
law is inconsistent with the Constitution, it is
obliged to declare it invalid.”
126
(Footnote omitted.)
Under section 44(4) of the
Constitution, when Parliament exercises its legislative authority
it is “bound only by the
Constitution, and must act in
accordance with, and within the limits of, the Constitution.”
It is implicit, if not explicit,
from this provision that, where
the Constitution prescribes a procedure that must be followed in
enacting a law, that procedure
must ordinarily be followed.
In
Executive Council of the Western
Cape
,
127
this Court said the following concerning section 37 of the interim
Constitution, the predecessor to section 44(4):
“
The new Constitution
establishes a fundamentally different order to that which previously
existed. Parliament can no longer claim
supreme power subject to
limitations imposed by the Constitution; it is subject in all
respects to the provisions of the Constitution
and has only the
powers vested in it by the Constitution expressly or by necessary
implication.
. . .
The supremacy of the
Constitution is reaffirmed in section 37 in two respects. First,
the legislative power is declared to be
‘subject to’ the
Constitution, which emphasises the dominance of the provisions of
the Constitution over Parliament’s
legislative power . . .
and, secondly, laws have to be made ‘in accordance with this
Constitution.’”
128
(Reference omitted.)
I have already described in
detail the purpose of the section 76 procedure and the importance
of the constitutional role that
the provinces must play in
considering legislation which affects them.
129
Apart from this, the provisions of section 76(3) are couched in
peremptory terms. Having regard to this, and the purpose
of
section 76(3), I consider that enacting legislation that affects
the provinces in accordance with the procedure prescribed
in
section 76 is a material part of the law-making process relating to
legislation that substantially affects the provinces.
Failure to
comply with the requirements of section 76(3) renders the resulting
legislation invalid.
For all these reasons, I
conclude that CLARA is unconstitutional in its entirety.
It follows, therefore, that
the High Court erred in not striking down CLARA in its entirety on
the ground that Parliament failed
to enact it in accordance with
the procedures set out in section 76. The High Court should have
upheld the tagging challenge.
The application for leave to appeal
must therefore be granted and the appeal must be upheld.
In the event, the order of
invalidity made by the High Court should be set aside and in its
place an order declaring CLARA invalid
for want of compliance with
section 76 should be made.
The next question which arises
is whether, in the light of the conclusion reached above, we should
reach the remaining issues,
namely, (i) whether Parliament complied
with its obligation to facilitate public involvement in the
legislative process; and
(ii) the appropriateness of entertaining
the substantive challenge to the provisions of CLARA declared to be
unconstitutional
by the High Court.
Should we reach the
remaining issues?
Counsel for the applicants
properly conceded, in my view, that if tagging is decided in their
favour it is not necessary to
consider the argument based on the
failure to facilitate public involvement in the legislative
process. Nothing more need
be said in this regard and, therefore,
no order will be made in respect of the direct access application.
Insofar as the substantive
challenge to CLARA is concerned, however, counsel for the
applicants urged us to consider the constitutionality
of the
impugned provisions of CLARA. In urging us to consider the
substantive challenge, he referred to the delay in enacting
this
legislation and the amount of energy and expense invested by the
applicants in litigating this matter. These efforts
included
compiling large amounts of evidence on which the substantive
challenge was based and which informed the decision of
the High
Court. Counsel submitted further, that it would be unfortunate to
require the applicants, at some point in the future,
to mount
another challenge to the provisions of a new Act – provisions
which may mirror those contained in CLARA.
Once it is concluded that
CLARA is unconstitutional in its entirety because it was not
enacted in accordance with the provisions
of section 76, it seems
to me that that is the end of the matter. Although the anxiety of
the applicants to finalise the matter
in the light of the energy
and time they invested in it is understandable, there is nothing
left for this Court, as a court
of final appeal, to consider.
Counsel for the applicants
sought to caution us against being influenced by the statement of
the Minister to the effect that
CLARA would be repealed
in toto
.
I can see nothing wrong with the Minister informing this Court
that CLARA, as it stands, is not consistent with government
policy.
If anything, the Minister performed his constitutional duty to
draw to the attention of this Court any matter that
should properly
be brought to our attention. The Minister cannot be faulted.
Indeed, it would have been unfortunate if the
Minister, with full
knowledge of the fact that the entire statute was going to be
repealed, chose not to disclose this information
to the Court.
This Court has in the past
required that a Minister responsible for the administration of any
legislation under challenge must
make representations to it on
whether the legislation in issue limits any of the constitutional
rights and, if so, whether
the limitation is justifiable in terms
of section 36 of the Constitution. This is to assist the Court in
the proper execution
of its functions. This is not merely a
question of form. It goes to the very heart of our constitutional
democracy. It is
a matter of comity between the branches of
government. Other organs of state are required by the Constitution
to “assist
and protect the courts to ensure [their]
independence, impartiality, dignity” and to enhance access
to, and the effectiveness
of, the courts.
130
These are not idle words randomly inserted into the Constitution.
They must be given meaning.
In
Mabaso v Law Society of
the Northern Provinces and Another
,
131
we said the following concerning Rule 5 of the Constitutional Court
Rules, which requires joinder:
132
“
In a constitutional
democracy, a Court should not declare the acts of another arm of
government to be inconsistent with the Constitution
without ensuring
that that arm of government is given a proper opportunity to
consider the constitutional challenge and to make
such
representations to the Court as it considers fit. There are at
least two reasons for this. First, the Minister responsible
for
administering the legislation may well be able to place pertinent
facts and submissions before the Court necessary for the
proper
determination of the constitutional issue. Secondly, a
constitutional democracy such as ours requires that the different

arms of government respect and acknowledge their different
constitutional functions. Rule 5, therefore, is a manifestation of

the respect which this Court must pay to the other arms of
government. It cannot lightly be waived.”
133
On a number of occasions this
Court has emphasised that when the constitutional validity of an
Act of Parliament is impugned,
the Minister responsible for its
administration must be a party to the proceedings inasmuch as his
or her views and evidence
tendered ought to be heard and
considered.
134
When a Minister, upon
reflection, considers that legislation is not supportable, he or
she has a duty to convey this to the
Court. This is what the
Minister did in this case. That he did so was commendable.
Indeed, this is what we expect of a cabinet
minister in a
constitutional democracy that is founded on the supremacy of the
Constitution and the principles of accountability,
openness and
responsiveness.
135
What is regrettable is that the Minister communicated his
intention regarding the legislation so late.
Accordingly, while the
applicants ardently wish to have finality regarding the
constitutional propriety of the legislation that
will be enacted,
the invitation to us to express an opinion on provisions in a
statute which we have declared invalid in its
entirety, and which
we have been told will, in any event, be repealed
in toto
,
must be declined.
I
should note, however, that the substance of the submissions in
respect of the Minister’s intention to repeal CLARA lies
in
the real concern that further delay will be occasioned in the
process of finalising new legislation. I understand these

concerns. African people were deprived of their land by the
apartheid legal order. They were confined to areas where they
were
not given any secure tenure. The Constitution recognises this –
for it not only provides for restitution of land
to people or
communities that were dispossessed of their land as a result of
past racially-discriminatory laws and practices,
but it also
recognises that African people were deprived of any secure tenure
of land by reason of racially-discriminatory
laws enacted by a
white minority government. Against this background, the
Constitution envisages that Parliament will enact
legislation that
will ensure that there is restitution of land to the people and
communities that were dispossessed of their
land, and that they
will be accorded secure land tenure or comparable redress.
This is a constitutional
imperative which must be achieved. I accept the magnitude of the
problem created by apartheid laws
and practices, as well as the
amount of time and effort necessary to undo these consequences.
The core problem created by
colonial and apartheid geography is
that millions of African people were forced into labour reserves
that were distant from
employment opportunities, impoverished and
overcrowded. The repressive machinery of apartheid, from the pass
laws to forced
removals, evolved in a way that restricted those
affected to these impoverished zones. African communities were
uprooted from
their land and dumped onto foreign land. They were
denied secure tenure in these areas. While the deep sense of
humiliation
and untold suffering cannot be fully compensated, at
the very least, lost dignity can be partially restored by providing
for
security of tenure.
Land restitution and security
of tenure must be given priority. We are mindful that Parliament’s
legislative plate is
overflowing. These matters have, however, now
become pressing and should be treated with the urgency that they
deserve.
Section 237 of the
Constitution provides that “[a]
ll
constitutional obligations must be performed diligently and without
delay.”
Item 21(1) of Schedule 6 to the Constitution
provides:
“
Where
the new Constitution requires the enactment of national or
provincial legislation, that legislation must be enacted by the

relevant authority within a reasonable period of the date the new
Constitution took effect.”
It is now some 13 years since
the final Constitution came into effect. By any standard, a
13-year delay is unfortunate. Further
delay as a consequence of
this judgment and what we are now told is the inevitable repeal of
the entire statute is unavoidable.
This judgment will, however,
provide Parliament with the opportunity to take a second look at
the substantive objections raised
by the applicants in respect of
CLARA when it considers the proper way to give effect to section
25(6) of the Constitution.
Suffice it to say that the legislation
contemplated by section 25(9) read with section 25(6) must be
enacted with a sense
of urgency and diligence.
Before concluding this
judgment, there is one matter to which reference must be made.
That is the delay of one year between
argument before the High
Court and the delivery of its judgment on 30 October 2009. This
delay, coming on top of the other
delays to which I have alluded,
is most regrettable.
Costs
That the applicants are
entitled to costs is not in issue. In this Court, counsel for the
applicants asked for the costs of
three counsel. Usually, in a
difficult case the costs of two counsel are warranted. But the
unusual complexity of the legal
issues in the case, and the depth
and breadth of research that the procedural and substantive
challenges to the validity of
the statute necessitated, entitle the
applicants to the costs of a third counsel. However, the High
Court awarded the applicants
the costs of five counsel. This is a
most unusual, and it would seem unprecedented, award.
136
The High Court judgment is not expansive in justifying it. The
judgment merely notes that seven counsel represented the
applicants, and that “[a] lot of research had to be done in
respect of each topic that was argued by each counsel representing

the applicants”, concluding that the costs of five counsel
“would not be unreasonable”.
In this Court, the
respondents, in resisting both the application to confirm and the
appeal, made no moment of this unusual
costs order. Nevertheless,
it seems to me necessary to reconsider the basis on which it was
granted. While the considerations
mentioned by the High Court have
weight, it does not seem to me that they justify the award of the
costs of more than three
counsel. This Court has had the benefit
of perusing the full record, and of hearing full argument on all
the issues in the
case. A just costs award is for that of three
counsel, and it is hard to conceive of any basis on which a more
generous award
could have been justified in the High Court. It
seems to me that awarding the costs of five counsel was excessive
and unjustified.
The discretion to award costs
is one with which an appellate court is loath to interfere.
Interference will usually occur only
where the discretion to award
costs has not been exercised judicially or has been exercised based
on a wrong appreciation of
the facts or wrong principles of law.
137
In my view, the costs award in the High Court gave markedly
over-generous weight to the complexity of the issues in the case,

and to the research the case required. The award therefore failed
to reflect fairly the position as between the parties, and

consequently imposed an undue burden on the respondents.
In these circumstances, it
would seem that intervention in the costs award granted by the High
Court is necessary. It seems
to me that the order should be set
aside, and replaced with one that grants the applicants the costs
of the same number of
counsel as in this Court, namely three.
However, this question, as already indicated, was not canvassed
before us. For this
reason, the portion of the order below that
sets aside the High Court costs award will be provisional. Any
party wishing to
draw any facts or circumstances relating to the
High Court’s costs award to our attention, or to make
submissions on
it, will be entitled to do so within ten days of the
date of this judgment.
Order
In the event, the following
order is made:
The application for leave to
appeal is granted.
The appeal is upheld.
The order of the North
Gauteng High Court, Pretoria, under
Case No
11678/2006
is set aside and replaced with the following:
“
(i) It
is declared that the
Communal Land Rights Act 11 of 2004
is invalid
in its entirety for want of compliance with the procedures set out
in section 76 of the Constitution.
(ii) The
constitutional challenge to the provisions of the
Traditional
Leadership and Governance Framework Act 41 of 2003
is dismissed.
(iii) The
first, second, twelfth, thirteenth and fourteenth respondents are
ordered to pay the costs of the applicants, jointly
and severally,
including those consequent upon the employment of three counsel.”
Any party wishing to draw to
the attention of the Court any facts or circumstances, or to make
submissions, on the costs order
in (c)(iii) above, may do so
within ten days of the date of this judgment.
No order is made on the
application for direct access.
The first, second, twelfth,
thirteenth and fourteenth respondents are ordered to pay the costs
of the applicants in this Court,
jointly and severally, including
those consequent upon the employment of three counsel.
Moseneke
DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J,
Nkabinde J, Skweyiya J, Van der Westhuizen J and Yacoob
J concur in
the judgment of Ngcobo CJ.
For the Applicants:
For the First Respondent:
For the Second and Fourteenth
Respondents:
For the Twelfth and Thirteenth
Respondents:
Advocate W Trengove SC,
Advocate G Budlender SC, Advocate A Dodson, Advocate M
Sikhakhane, Advocate N Mangcu-Lockwood
and Advocate S Cowen
instructed by the Legal Resources Centre and Webber Wentzel.
Advocate N Cassim SC and
Advocate MM Mokadikoa instructed by the State Attorney, Pretoria.
Advocate MNS Sithole SC and
Advocate MC Baloyi instructed by the State Attorney, Pretoria.
Advocate D Potgieter SC
instructed by the State Attorney, Cape Town.
1
11 of 2004.
2
Subsection (6) must be read with subsection (9) which provides that
“Parliament must enact the legislation referred to
in
subsection (6).” Although CLARA was enacted on 14 July 2004
to fulfil this obligation, it has not yet been brought
into
operation.
3
Tongoane and Others v Minister for Agriculture
and Land Affairs and Others
, Case No
11678/2006, North Gauteng High Court, Pretoria, 30 October 2009,
unreported. The communities also challenged the constitutional

validity of certain provisions of the Traditional Leadership and
Governance Framework Act 41 of 2003. This challenge was dismissed

by the High Court. The communities initially sought leave to appeal
against the dismissal of this challenge. They no longer
persist in
seeking this relief.
4
Section 75 of the Constitution provides:
“
Ordinary Bills not affecting provinces
(1) When the National Assembly passes a Bill other than
a Bill to which the procedure set out in section 74 or 76 applies,
the
Bill must be referred to the National Council of Provinces and
dealt with in accordance with the following procedure:
The
Council must—
pass
the Bill;
pass
the Bill subject to amendments proposed by it; or
reject
the Bill.
If
the Council passes the Bill without proposing amendments, the Bill
must be submitted to the President for assent.
If
the Council rejects the Bill or passes it subject to amendments,
the Assembly must reconsider the Bill, taking into account
any
amendment proposed by the Council, and may—
pass
the Bill again, either with or without amendments; or
decide
not to proceed with the Bill.
A
Bill passed by the Assembly in terms of paragraph (c) must be
submitted to the President for assent.
(2) When the National Council of Provinces votes on a
question in terms of this section, section 65 does not apply;
instead—
(a) each delegate in a provincial delegation has one
vote;
(b) at least one third of the delegates must be present
before a vote may be taken on the question; and
(c) the question is decided by a majority of the votes
cast, but if there is an equal number of votes on each side of the
question,
the delegate presiding must cast a deciding vote.”
5
Section 76 of the Constitution provides:
“
Ordinary Bills affecting provinces
(1) When the National Assembly passes a Bill referred
to in subsection (3), (4) or (5), the Bill must be referred to the
National
Council of Provinces and dealt with in accordance with the
following procedure:
The
Council must—
pass
the Bill;
pass
an amended Bill; or
reject
the Bill.
If
the Council passes the Bill without amendment, the Bill must be
submitted to the President for assent.
If
the Council passes an amended Bill, the amended Bill must be
referred to the Assembly, and if the Assembly passes the amended

Bill, it must be submitted to the President for assent.
If
the Council rejects the Bill, or if the Assembly refuses to pass an
amended Bill referred to it in terms of paragraph (c),
the Bill
and, where applicable, also the amended Bill, must be referred to
the Mediation Committee, which may agree on—
the
Bill as passed by the Assembly;
the
amended Bill as passed by the Council; or
another
version of the Bill.
If
the Mediation Committee is unable to agree within 30 days of the
Bill's referral to it, the Bill lapses unless the Assembly
again
passes the Bill, but with a supporting vote of at least two thirds
of its members.
If
the Mediation Committee agrees on the Bill as passed by the
Assembly, the Bill must be referred to the Council, and if the

Council passes the Bill, the Bill must be submitted to the
President for assent.
If
the Mediation Committee agrees on the amended Bill as passed by the
Council, the Bill must be referred to the Assembly, and
if it is
passed by the Assembly, it must be submitted to the President for
assent.
If
the Mediation Committee agrees on another version of the Bill, that
version of the Bill must be referred to both the Assembly
and the
Council, and if it is passed by the Assembly and the Council, it
must be submitted to the President for assent.
If a
Bill referred to the Council in terms of paragraph (f) or (h) is
not passed by the Council, the Bill lapses unless the
Assembly
passes the Bill with a supporting vote of at least two thirds of
its members.
If a
Bill referred to the Assembly in terms of paragraph (g) or (h) is
not passed by the Assembly, that Bill lapses, but the
Bill as
originally passed by the Assembly may again be passed by the
Assembly, but with a supporting vote of at least two thirds
of its
members.
A
Bill passed by the Assembly in terms of paragraph (e), (i) or (j)
must be submitted to the President for assent.
(2) When the National Council of Provinces passes a
Bill referred to in subsection (3), the Bill must be referred to the
National
Assembly and dealt with in accordance with the following
procedure:
(a) The Assembly must—
(i) pass the Bill;
(ii) pass an amended Bill; or
(iii) reject the Bill.
(b) A Bill passed by the Assembly in terms of paragraph
(a) (i) must be submitted to the President for assent.
(c) If the Assembly passes an amended Bill, the amended
Bill must be referred to the Council, and if the Council passes the
amended
Bill, it must be submitted to the President for assent.
(d) If the Assembly rejects the Bill, or if the Council
refuses to pass an amended Bill referred to it in terms of paragraph
(c),
the Bill and, where applicable, also the amended Bill must be
referred to the Mediation Committee, which may agree on—
(i) the Bill as passed by the Council;
(ii) the amended Bill as passed by the Assembly; or
(iii) another version of the Bill.
If
the Mediation Committee is unable to agree within 30 days of the
Bill's referral to it, the Bill lapses.
If
the Mediation Committee agrees on the Bill as passed by the
Council, the Bill must be referred to the Assembly, and if the

Assembly passes the Bill, the Bill must be submitted to the
President for assent.
If
the Mediation Committee agrees on the amended Bill as passed by the
Assembly, the Bill must be referred to the Council, and
if it is
passed by the Council, it must be submitted to the President for
assent.
If
the Mediation Committee agrees on another version of the Bill, that
version of the Bill must be referred to both the Council
and the
Assembly, and if it is passed by the Council and the Assembly, it
must be submitted to the President for assent.
If a
Bill referred to the Assembly in terms of paragraph (f) or (h) is
not passed by the Assembly, the Bill lapses.
(3) A Bill must be dealt with in accordance with the
procedure established by either subsection (1) or subsection (2) if
it falls
within a functional area listed in Schedule 4 or provides
for legislation envisaged in any of the following sections:
(a) section 65(2);
(b) section 163;
(c) section 182;
(d) section 195(3) and (4);
(e) section 196; and
(f) section 197.
(4) A Bill must be dealt with in accordance with the
procedure established by subsection (1) if it provides for
legislation—
(a) envisaged in section 44(2) or 220(3); or
(b) envisaged in Chapter 13, and which includes any
provision affecting the financial interests of the provincial sphere
of government.
(5) A Bill envisaged in section 42(6) must be dealt
with in accordance with the procedure established by subsection (1),
except
that—
(a) when the National Assembly votes on the Bill, the
provisions of section 53(1) do not apply; instead, the Bill may be
passed
only if a majority of the members of the Assembly vote in
favour of it; and
(b) if the Bill is referred to the Mediation
Committee, the following rules apply:
(i) If the National Assembly considers a Bill envisaged
in subsection (1)(g) or (h), that Bill may be passed only if a
majority
of the members of the Assembly vote in favour of it.
(ii) If the National Assembly considers or reconsiders
a Bill envisaged in subsection (1)(e), (i) or (j), that Bill may be
passed
only if at least two thirds of the members of the Assembly
vote in favour of it.
(6) This
section does not apply to money Bills.”
6
Section 59(1)(a) of the Constitution provides: “T
he
National Assembly must facilitate public involvement in the
legislative and other processes of the Assembly and its committees”.
7
Section 72(1)(a) of the Constitution provides: “T
he
National Council of Provinces must facilitate public involvement in
the legislative and other processes of the Council and
its
committees”.
8
The Transvaal included the present provinces of
Limpopo and Mpumalanga, as well as part of North West province,
where the applicant
communities reside.
9
The word “native” refers to African
people. Depending on what the government thought to be the
acceptable term to
refer to African people, the terms “Bantu”
and “Blacks” were later used. The names of statutes
referring
to African people changed to coincide with the official
term used to refer to African people from time to time. So, the
Natives
Land Act 27 of 1913 became the Bantu Land Act 27 of 1913 and
later the Black Land Act 27 of 1913.
10
Article 13 of the Pretoria Convention, as amended
in 1910.
11
1905 TS 130
at 135. The
judgment cites article 13 of the Pretoria Convention as follows:
“Leave shall be given to natives
to obtain ground, but the passing of transfer of such ground shall
in every case be made
to and registered in the name of the
Commission for Kafir Locations hereinafter provided for, for the
benefit of such natives.”
The citation refers to the
Convention as it was at the time the matter was heard.
12
Feinburg “Pre-apartheid African land
ownership and the implications for the current restitution debate in
South Africa”
(1995) 40
Historia
48 at 50. It is not necessary for the purposes of this case to
detail the history of land dispossession in the rest of the country.

Suffice it to say that colonial settlement and expansion initiated
a process whereby indigenous people were dispossessed of
the land
they occupied to a greater or lesser extent. The nomadic Khoi and
San people in the Cape Colony were dispersed. After
eight frontier
wars all Xhosa people were finally colonised by the British by the
end of the 19
th
century. So were the Zulu people in the colony of Natal. The Sotho
people lost much of their land in the wars in the Orange
Free State
and eventually sought and found protection under the British in what
is now Lesotho. Efforts at providing individual
ownership to land,
such as the Glen Grey Act in the Cape Colony and ownership of their
land granted to the Griqua people, were
generally not successful.
See Davenport and Saunders
South
Africa: A Modern History
5ed
(Macmillan Press, Great Britain 2000) 129-93.
13
27 of 1913.
14
18 of 1936.
15
38 of 1927. On the practical effect of the
prohibition, see Feinburg and Horn “South African territorial
segregation: new
data on African farm purchases” (2009) 50
Journal of African History
41.
16
In terms of section
10(1) of the
Development
Trust and Land Act, land to be acquired for African people could not
exceed seven and one-quarter million morgen in
extent. The result
was that the majority of people were confined to 13% of South
African land while the minority occupied the
remaining 87% of land.
17
Section
4(3).
18
Section
18(1).
19
Section 18(2).
20
Section 48(1)(g).
21
Section 48(1)(i).
22
Proclamation R188, GG 2486, 11 July 1969, made under section 25(1)
of the Black Administration Act 38 of 1927 read with section
21(1)
and 48(1) of the Development Trust and Land Act 18 of 1936.
23
Regulations for the Administration and Control of Townships in Bantu
Areas, Proclamation R293, GG 373, 16 November 1962, made
pursuant to
sections 6(2) and 25(1) of the Black Administration Act 38 of 1927
read with section 21 of the Development Trust
and Land Act 18 of
1936.
24
It must be recalled that there were African areas that were located
near towns or cities which, by the stroke of a pen, were
consigned
to “native areas” and were thus made subject to
provisions of the Development Trust and Land Act, 1936.
Areas that
come to mind are Umlazi and KwaMashu which are approximately 16
kilometres from the city of Durban. Occupation of
land in these
townships was governed by the Township Regulations. These townships
must of course be distinguished from townships
located in “white”
urban areas which include Soweto in Johannesburg, Lamontville in
Durban and Khayelitsha in Cape
Town. These townships were governed
by the Native (Urban Areas) Consolidation Act 25 of 1945. The
proximity of all African
townships to cities and towns was
deliberate. These townships served as labour reservoirs to supply
cheap labour to run the
economy in urban areas and in “white”
areas. Employment or possession of a work-seeker’s permit was
a condition
for residence in the urban areas. See, for example,
Mabasa and Another v West Rand Bantu Affairs Administration Board
1976 (4) SA 1002
(A) at 1009F-H;
In re Dube
1979 (3) SA
820
(N);
Rikhoto v East Rand Administration Board and Another
1983 (4) SA 278
(W); and
In re Duma
1983 (4) SA 466
(N).
Government officials and politicians of the time were candid about
their motives. Thus Dr HF Verwoerd, then Minister of
Native Affairs
and later the Prime Minister, made this point in a parliamentary
debate:
“
The
only alternative [to African domination] is deliberately to see to
it that the whole of South Africa does not become a country
occupied
by Natives and therefore run by Natives. . . . If we could succeed
just to this extent in keeping the Native population
in the reserve
– and getting them to live there, even if they do work in the
white area in industries which are scattered
about near to their
areas – if we could achieve that measure of separation, then
even if the 2,000,000 or so who are now
there remain behind in our
towns, and the 3,000,000 approximately who are in the rural areas
remain there, white South Africa
will be saved.”  Senate,
1 May 1951, cols. 2896-8.
African people occupying houses in these areas had no right to own
the houses they occupied. They occupied these houses under
a
permission to occupy or a 99-year lease. These titles were
thoroughly insecure as they could be withdrawn if the holder ceased

to qualify to remain in the city.
25
Bantu Areas Land Regulations above n 22 at chapter 4.
26
Id at chapter 5.
27
The Bantu Affairs Commissioners served a dual purpose: they were
judicial officers who adjudicated disputes between African people

only, and administrators who administered the affairs of African
people under apartheid laws.
28
Bantu Areas Land Regulations above n 22 at annexure 4, item 1(2).
29
Id at item 2(a).
30
Id at annexure 5, item 10(c); for failure to “beneficially
occupy” the land, see item 10(d).
31
Id at item 10(g).
32
Id at annexure 28, item 4.
33
Id at regulation 51(2) read with regulation 61.
34
Id at regulations 35-40 (for quitrent land) and regulation 53 (for
permission to occupy).
35
Id at regulation 49.
36
Id at regulations 19 and 49.
37
68 of 1951.
38
Bantu Areas Land Regulations above
n 22.
39
Township Regulations above
n 23.
40
Black Administration Act above n 15 at s
ection 1.
41
Id at s
ection 25.
42
Id at
section 5(1)(a).
43
Id at
section 5(1)(b).
44
Id at c
hapter 2.
45
Id at chapter 3.
46
Id at chapter 4, in particular, section 11.
47
Id at s
ection 24, as amended.
48
Black Authorities Act above n 37. Under section 4(1)(a), t
he
powers of these tribal authorities was “generally [to]
administer the affairs of the tribes and communities in respect
of
which [they have] . . . been established”, and under section
4(1)(b) they were to assist traditional leaders in the
performance
of their “powers, functions or duties conferred or imposed
upon [them] . . . under any law, as are in accordance
with any
applicable native law or custom”. The definition of the areas
to which CLARA applies is set out below n 102.
49
Black Authorities Act above n 37
at section
4(1)(c).
50
Id at s
ection 4(2)(a).
51
41 of 2003.
52
In
Western Cape Provincial Government and Others: In re DVB
Behuising (Pty) Ltd v North West Provincial Government and Another
[2000] ZACC 2
;
2001 (1) SA 500
(CC);
2000 (4) BCLR 347
(CC) this
Court stated, at para 42, as follows:
“
The
Promotion of Bantu Self-Government Act 46 of 1959 divided Africans
into ten ‘national units’ on the basis of their
language
and ethnicity. These were North Sotho, South Sotho, Tswana, Zulu,
Swazi, Xhosa (arbitrarily divided into two groups),
Tsonga, Venda,
and Ndebele. On the basis of these ‘national units’ ten
homelands were established, namely Lebowa,
Qwaqwa, Bophuthatswana,
KwaZulu, KaNgwane, Ciskei, Transkei, Gazankulu, Venda and
KwaNdebele. The Black Homelands Citizenship
Act 26 of 1970 sought
to assign to each African citizenship of one or other of these
homelands. It is in these homelands that
Africans were required to
exercise their political, economic and social rights.”
(Footnotes omitted.)
53
See [26]-[27] below.
54
See
Ex Parte
Moseneke
1979 (4) SA 884
(T) at 889D-G
and 890A-C.
55
DVB Behuising
above
n 52 at para 41.
56
26 of 1970.
57
21 of 1971.
58
See [16]-[21] above.
59
The Kalkfontein B and C Community Trust owns two farms known as
Kalkfontein B and Kalkfontein C. Members of Kalkfontein Community

are descendants of the original purchasers of the land. Their
forebears purchased the land in 1923 and 1924 from white farmers.

However, in accordance with the Black Land Act, the land was
transferred to the Minister of Native Affairs who held the land
in
trust for the purchasers and their successors in title. It was only
in 2008 that the community’s ownership was recognised
and the
two farms were transferred to the Trust. The co-owners of the farms
exercised all rights associated with full ownership
of the land.
Over the years, and as a result of the
Kalkfontein Community’s belief that the Ndzundza Tribal
Authority sought to mismanage
the Community’s affairs in
respect of its land, it took various steps to secure its land rights
via court action. The
Community’s efforts bore fruit when it
was declared the beneficial owner of the land. The Community
subsequently established
a community trust in 1996 to receive and
hold the registration of the transfer of the land on its behalf. It
was only in 2008,
and after further court action in the Land Claims
Court, that the Community’s ownership of the farms was
recognised and
the farms were transferred to the Trust.
The
Makuleke community initially occupied approximately 26 500 hectares
of land known as the Pafuri Triangle in what is now
the Limpopo
province. A portion of this land was designated as a scheduled
area for Africans pursuant to the provisions of
the Black Land Act.
And the remainder was later designated as part of the released
areas in terms of the Development Trust
and Land Act. The
community occupied this land from the early 19
th
century and remained there until it was forcibly removed in 1969.
Subsequently, the community had the Pafuri Triangle restored
to it
under the
Restitution of Land Rights Act 22 of 1994
. A Communal
Property Association (CPA) was formed by the community. Pursuant
to a settlement, 22 733 hectares in the Kruger
National Park were
transferred to the Makuleke CPA in 1999. In terms of the
settlement agreement, the community does not occupy
Pafuri but
co-manages it with the South African National Parks for eco-tourism
projects through a Joint Management Board made
up of equal
representatives of the CPA and the South African National Parks.
60
The Kalkfontein B and C community falls under the
Ndzundza Tribal Authority; the Makuleke community falls under the
Mhinga Tribal
Authority; the Makgobistad community falls under the
Motsewakhumo Tribal Authority; and the Dixie community falls under
the Mnisi
Tribal Authority.
61
See above n 59.
62
Ex Parte President of the Republic of South
Africa: In re Constitutionality of the Liquor Bill
[1999]
ZACC 15
;
2000
(1) SA 732
(CC);
2000 (1) BCLR 1
(CC).
63
Tongoane
above n 3
at para 25.
64
Id at para 24.
65
The High Court declared
section 2(1)(a)
, in so
far as it concerns the land already owned or securely held by a
community, and sections
2(1)(c)
and (d),
2
(2),
3
,
4
(2),
5
,
6
,
9
,
18
,
19
(2),
20
-
24
and
39
of CLARA to be
invalid.
66
The public participation process in respect of the Communal Land
Rights Bill, 2002, occurred at two levels. First, a process
was
initiated by the Department of Land Affairs that informed the
drafting of the Bill between 1997 and 2002 which was followed
by a
further “comment” process initiated by the Department
pursuant to the publication of the draft Bill in August
2002. Many
organisations participated in this comprehensive consultative
process. Second, a process of public involvement facilitated
by the
National Assembly Portfolio Committee on Agriculture and Land
Affairs took place in the form of written submissions (received

before 10 November 2003) and oral submissions (received between 11
and 14 November 2003). The dispute in these proceedings relates
to
the second level of the process. The draft Bill as gazetted by the
Minister for public comment in August 2002 provided for
a
consultative role for traditional leadership in the administration
of communal land. It did not give traditional leadership
executive
powers over land. More particularly, clause 33(1)(a) of the draft
Bill provided for the appointment by a community
of an
“administrative structure”. Clause 33(2) provided as
follows:
“
Where
applicable, the institution of traditional leadership which is
recognised by a community as being its legitimate traditional

authority may participate in an administrative structure in an
ex-officio capacity; provided that the ex-officio membership in
the
administrative structure should not exceed 25 percent of the total
composition of the structure”.
The
draft Bill provided that the ex officio component of the structure
would have no veto powers in the decision-making structure.
In
other words, the 2002 version of the Bill provided a limited role
for traditional authorities in the administration of
communal land.
When the 2003 version of the Bill was tabled in Parliament, clause
21(1) (which is identical to
section 21(1)
of CLARA) accorded a
greater role to traditional leadership in administering communal
land.
67
Section 74 of the Constitution.
68
Id at
section 75.
69
Id at section 76.
70
Id at section 77.
71
As approved by the Joint Rules Committee, April
2009 4ed (reprint).
72
Above n 62.
73
Liquor Bill
above n 62 at paras 63-4;
DVB Behuising
above n 52 at para 36; and
Ex
parte Speaker of the KwaZulu-Natal Provincial Legislature: In re
KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of
1995; Ex
Parte Speaker of the KwaZulu-Natal Provincial Legislature: In re
Payment of Salaries, Allowances and Other Privileges
to the
Ingonyama Bill of 1995
[1996] ZACC 15
;
1996 (4) SA 653
(CC);
1996 (7) BCLR 903
(CC)
at para 19.
74
Section 44(1)(b)(ii) provides:
“
The
national legislative authority as vested in Parliament
—
confers
on the
National Council of Provinces the power
—
(ii) to pass, in accordance with section 76,
legislation with regard to any matter within a functional area
listed in Schedule
4 and any other matter required by the
Constitution to be passed in accordance with section 76”.
75
Section 44(2) provides:
“
Parliament may intervene, by passing legislation
in accordance with section 76(1), with regard to a matter falling
within a functional
area listed in Schedule 5, when it is necessary—
to
maintain national security;
to
maintain economic unity;
to
maintain essential national standards;
to
establish minimum standards required for the rendering of services;
or
to
prevent unreasonable action taken by a provi
nce
which is prejudicial to the interests of another province or to the
country as a whole.”
76
Liquor Bill
above n 62 at
para 27.
77
Id at para 28.
78
Id at para 29.
79
DVB Behuising
above n 52 at para 36 and the other sources
cited in n 73 above.
80
Section 65(2) of the Constitution provides:
“
An Act of Parliament, enacted in accordance with
the procedure established by either subsection (1) or subsection (2)
of section
76, must provide for a uniform procedure in terms of
which provincial legislatures confer authority on their delegations
to cast
votes on their behalf.”
81
Section 163 of the Constitution provides:
“
An
Act of Parliament enacted in accordance with the procedure
established by section 76 must—
provide
for the recognition of national and provincial organisations
representing municipalities; and
determine
procedures by which local government may—
consult
with the national or a provincial government;
designate
representatives to participate in the National Council of
Provinces; and
participate
in the process prescribed in the national legislation envisaged in
section 221(1)(c).”
82
Section 182 of the Constitution provides:
“
(1)
The
Public Protector has the power, as regulated by national
legislation—
to
investigate any conduct in state affairs, or in the public
administration in any sphere of government, that is alleged or

suspected to be improper or to result in any impropriety or
prejudice;
to
report on that conduct; and
to
take appropriate remedial action.
(2) The Public Protector has the additional powers and
functions prescribed by national legislation.
(3) The
Public Protector may not investigate court decisions.
(4) The
Public Protector must be accessible to all persons and communities.
(5) Any report issued by the Public Protector must be
open to the public unless exceptional circumstances, to be
determined in
terms of national legislation, require that a report
be kept confidential.”
83
Section 195 of the Constitution provides:
“
(1) Public administration must be governed by
the democratic values and principles enshrined in the Constitution,
including the
following principles:
A
high standard of professional ethics must be promoted and
maintained.
Efficient,
economic and effective use of resources must be promoted.
Public
administration must be development-oriented.
Services
must be provided impartially, fairly, equitably and without bias.
People's
needs must be responded to, and the public must be encouraged to
participate in policy-making.
Public
administration must be accountable.
Transparency
must be fostered by providing the public with timely, accessible
and accurate information.
Good
human-resource management and career-development practices, to
maximise human potential, must be cultivated.
Public
administration must be broadly representative of the South African
people, with employment and personnel management practices
based on
ability, objectivity, fairness, and the need to redress the
imbalances of the past to achieve broad representation.
(2) The
above principles apply to—
administration
in every sphere of government;
organs
of state; and
public
enterprises.
(3) National legislation must ensure the promotion of
the values and principles listed in subsection (1).
(4) The appointment in public administration of a
number of persons on policy considerations is not precluded, but
national legislation
must regulate these appointments in the public
service.
(5) Legislation regulating public administration may
differentiate between different sectors, administrations or
institutions.
(6) The nature and functions of different sectors,
administrations or institutions of public administration are
relevant factors
to be taken into account in legislation regulating
public administration.”
84
Section 196 of the Constitution provides:
“
(1) There
is a single Public Service Commission for the Republic.
(2) The Commission is independent and must be
impartial, and must exercise its powers and perform its functions
without fear,
favour or prejudice in the interest of the maintenance
of effective and efficient public administration and a high standard
of
professional ethics in the public service. The Commission must be
regulated by national legislation.
(3) Other organs of state, through legislative and
other measures, must assist and protect the Commission to ensure the
independence,
impartiality, dignity and effectiveness of the
Commission. No person or organ of state may interfere with the
functioning of
the Commission.
(4) The
powers and functions of the Commission are—
to
promote the values and principles set out in section 195,
throughout the public service;
to
investigate, monitor and evaluate the organisation and
administration, and the personnel practices, of the public service;
to
propose measures to ensure effective and efficient performance
within the public service;
to
give directions aimed at ensuring that personnel procedures
relating to recruitment, transfers, promotions and dismissals

comply with the values and principles set out in section 195;
to
report in respect of its activities and the performance of its
functions, including any finding it may make and directions
and
advice it may give, and to provide an evaluation of the extent to
which the values and principles set out in section 195
are complied
with; and
either
of its own accord or on receipt of any complaint—
to
investigate and evaluate the application of personnel and public
administration practices, and to report to the relevant
executive
authority and legislature;
to
investigate grievances of employees in the public service
concerning official acts or omissions, and recommend appropriate

remedies;
to
monitor and investigate adherence to applicable procedures in the
public service; and
to
advise national and provincial organs of state regarding personnel
practices in the public service, including those relating
to the
recruitment, appointment, transfer, discharge and other aspects of
the careers of employees in the public service; and
to
exercise or perform the additional powers or functions prescribed
by an Act of Parliament.
(5)
The
Commission is accountable to the National Assembly.
(6) The
Commission must report at least once a year in terms of subsection
(4)(e)—
to
the National Assembly; and
in
respect of its activities in a province, to the legislature of that
province.
(7) The
Commission has the following 14 commissioners appointed by the
President:
Five
commissioners approved by the National Assembly in accordance with
subsection (8)(a); and
one
commissioner for each province nominated by the Premier of the
province in accordance with subsection (8)(b).
(8)
(a) A commissioner appointed in terms of subsection (7)(a) must
be—
(i) recommended by a committee of the National Assembly
that is proportionally composed of members of all parties
represented
in the Assembly; and
(ii) approved by the Assembly by a resolution adopted
with a supporting vote of a majority of its members.
(b) A commissioner nominated by the Premier of a
province must be—
(i) recommended by a committee of the provincial
legislature that is proportionally composed of members of all
parties represented
in the legislature; and
(ii) approved by the legislature by a resolution
adopted with a supporting vote of a majority of its members.
(9) An Act of Parliament must regulate the procedure
for the appointment of commissioners.
(10) A commissioner is appointed for a term of five
years, which is renewable for one additional term only, and must be
a woman
or a man who is—
a
South African citizen; and
a
fit and proper person with knowledge of, or experience in,
administration, management or the provision of public services.
(11) A
commissioner may be removed from office only on—
the
ground of misconduct, incapacity or incompetence;
a
finding to that effect by a committee of the National Assembly or,
in the case of a commissioner nominated by the Premier
of a
province, by a committee of the legislature of that province; and
the
adoption by the Assembly or the provincial legislature concerned,
of a resolution with a supporting vote of a majority of
its members
calling for the commissioner's removal from office.
(12) The
President must remove the relevant commissioner from office upon—
the
adoption by the Assembly of a resolution calling for that
commissioner's removal; or
written
notification by the Premier that the provincial legislature has
adopted a resolution calling for that commissioner's
removal.
(13) Commissioners referred to in subsection (7)(b) may
exercise the powers and perform the functions of the Commission in
their
provinces as prescribed by national legislation.”
85
Section 197 of the Constitution provides:
“
(1)
Within public
administration there is a public service for the Republic, which
must function, and be structured, in terms of national
legislation,
and which must loyally execute the lawful policies of the government
of the day.
(2) The terms and conditions of employment in the
public service must be regulated by national legislation. Employees
are entitled
to a fair pension as regulated by national legislation.
(3) No employee of the public service may be favoured
or prejudiced only because that person supports a particular
political party
or cause.
(4) Provincial governments are responsible for the
recruitment, appointment, promotion, transfer and dismissal of
members of the
public service in their administrations within a
framework of uniform norms and standards applying to the public
service.”
86
Section 65 of the Constitution.
87
In terms of section 78(1) of the Constitution, the Mediation
Committee
consists of nine members of the
National Assembly and one delegate from each of the nine provincial
delegations in the NCOP.
88
Section 78(2) of the Constitution.
89
Id at
section 76(1)(e).
90
Id at section
42(4).
91
See generally,
Merafong Demarcation Forum and
Others v President of the Republic of South Africa
and Others
[2008]
ZACC 10
;
2008 (5) SA 171
(CC);
2008 (10) BCLR 969
(CC);
Matatiele
Municipality and Others v President of the RSA and Others
(No 2)
[2006] ZACC
12
;
2007 (6) SA 477
(CC);
2007 (1) BCLR 47
(CC);
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC); and
Matatiele Municipality and Others v President
of the RSA and Others
[2006] ZACC 2
;
2006
(5) SA 47
(CC);
2006 (5) BCLR 622
(CC).
92
Section 40(1) of the Constitution.
93
Ex Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,

1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at para 469.
94
Section 41(1)(e) of the Constitution.
95
Id at
section 41(1)(h)(iv).
96
Murray and Simeon “‘Tagging’ Bills in Parliament:
Section 75 or Section 76?”
(2006) 123
SALJ
232
at 237.
97
Recognition of Customary Marriages Act
120
of 1998
. See
Gumede v President of the Republic of South Africa
and Others
[2008] ZACC 23; 2009 (3) SA 152 (CC); 2009 (3) BCLR
243 (CC).
98
Intestate Succession Act 81 of 1987
read with
the Black Administration Act.
See
Bhe and Others v
Magistrate, Khayelitsha and Others (Commission for Gender Equality
as Amicus Curiae)
[2004] ZACC 17
;
2005 (1) SA 580
(CC);
2005 (1)
BCLR 1
(CC).
99
Section 18(3)(d) read with section 1(c) of CLARA.
100
S
ection 1 of CLARA.
101
Id
.
102
Section 2 of CLARA provides:
“
(1) This Act
applies to—
(a) State land
which is beneficially occupied and State land which—
(i) at any time
vested in a government contemplated in the Self-governing
Territories Constitution Act, 1971 (Act No. 21 of 1971),
before its
repeal or of the former Republics of Transkei, Bophuthatswana, Venda
or Ciskei, or in the South African Development
Trust established by
section 4 of the Development Trust and Land Act, 1936 (Act No. 18 of
1936), but not land which vested in
the former South African
Development Trust and which has been disposed of in terns of the
State Land Disposal Act, 1961 (Act
No. 48 of 1961);
(ii) was listed in
the schedules to the Black Land Act, 1913 (Act No. 27 of 1913),
before its repeal or the schedule of released
areas in terms of the
Development Trust and Land Act, 1936 (Act No. 18 of 1936), before
its repeal;
(b) land
to which the KwaZulu-Natal Ingonyama Trust Act, 1994 (Act No. 3 KZ
of 1994), applies, to the extent provided for in Chapter
9 of
this
Act
;
(c) land
acquired by or for a
community
whether registered in its name or not; and
(d) any
other land, including land which provides equitable access to land
to a community as contemplated in section 25(5) of
the
Constitution
.
(2) The
Minister
may, by notice in the
Gazette
,
determine land contemplated in subsection (1)(d) and may in such
notice specify which provisions of this Act apply to such land.”
103
3 KZ of 1994.
104
See the discussion at
[14]-[22] above.
105
Township Regulations above n 23 at regulation 8(1)
.
106
Id at
regulation 1.
107
Bantu Areas Land Regulations above n 22 at regulation 47
.
108
Traditional Leadership Act above n 51 at section
4(1)(a).
109
Id at
section 4(1)(l). Section 20(1)(b)
contemplates that national legislation would be enacted to “provide
a role for traditional
councils or traditional leaders in respect of
land administration.”
110
Section 19(2)(a).
111
Section 21 of CLARA provides:
“
(1) A community must establish a land
administration committee which may only be disestablished if its
existence is no longer
required in terms of this Act.
(2) If a community has a recognised traditional
council, the powers and duties of the land administration committee
of such community
may be exercised and performed by such council.
(3) In the exercise of the powers and the performance
of the duties of a land administration committee as contemplated in
subsection
(2), a traditional council must ensure that the
composition of its membership satisfies the requirements of section
22(4) and
(5).
(4) When a traditional council acts as a land
administration committee as contemplated in this section, its
functional area of
competence is the administration of land affairs
and not traditional leadership as contemplated in Schedule 4 to the
Constitution.
(5) Any provision in this Act which refers, or is
applicable, to a traditional council is intended to establish norms
and standards
and a national policy with regard to communal land
rights, to effect uniformity across the nation.”
112
Subsection 22(3) provides: “At least one third of the total
membership of a land administration committee must be women.”

Subsection 22(4) provides: “One member of a land
administration committee must represent the interests of vulnerable
community members, including women, children and the youth, the
elderly and the disabled.”
113
See section 3(2) of the Traditional Leadership Act which provides:
“
(a) A traditional council may have no more than
30 members, depending on the needs of the traditional community
concerned.
At
least a third of the members of a traditional council must be
women.
The
members of a traditional council must comprise–
(i) traditional leaders and members of the traditional
community selected by the senior traditional leader concerned in
terms
of that community's customs, taking into account the need for
overall compliance with paragraph (b); and
(ii) other members of the traditional community who are
democratically elected for a term of five years, and who must
constitute
40% of the members of the traditional council.
Where
it has been proved that an insufficient number of women are
available to participate in a traditional council, the Premier

concerned may, in accordance with a procedure provided for in
provincial legislation, determine a lower threshold for the
particular traditional council than that required by paragraph
(b).”
114
Under section 24(1) of CLARA, the traditional council has the power
to represent the community that owns the land; is entitled
to
exercise powers and duties conferred by CLARA on a land
administration committee; and has all the powers conferred on the

land administration committee by the rules of the community.
Under section 24(3) of CLARA, the traditional council has the power
to: allocate “new order rights”; register communal
land
and “new order rights”; establish and maintain registers
and records of all “new order rights” and
transactions
affecting such rights; promote and safeguard the interests of the
community and its members in their land; promote
co-operation among
community members and as between community members and any other
person in matters pertaining to the land;
assist in the resolution
of land disputes; liaise with the relevant municipality, the
relevant land rights board and any other
institution concerning the
provision of services and the planning and development of the land;
“perform any other duty
prescribed by or under this Act or any
other law”; and generally to deal with all matters necessary
for or incidental to
the exercise of its powers and the performance
of its duties.
Under section 9 of CLARA, the traditional council has the power to
grant or refuse conversion of “new order rights”
to
freehold ownership and to impose conditions upon a grant of freehold
ownership.
Under section 19(2) of
CLARA, read with the community rules, the traditional council has
the power to regulate the administration
and use of communal land by
the community, as land owner, within the framework of law governing
spatial planning and local government.
115
Tongoane
above n 3 at para
25.
116
Id at para 24.
117
Liquor Bill
above n 62 at para 26.
118
Tongoane
above n 3 at para
24.
119
Liquor Bill
above n 62 at para 26.
120
Executive Council, Western Cape Legislature, and Others v
President of the Republic of South Africa and Others
[1995] ZACC
8
;
1995 (4) SA 877
(CC);
1995 (10) BCLR 1289
(CC) at para 100.
121
Doctors for Life
above n 91 at para 202 (SA); 1463D-E (BCLR).
122
Id.
123
Id at para 208 (SA);1464F-G (BCLR).
124
Id at para 211 (SA); 1466A-B (BCLR).
125
Section 172(1)(a) of the Constitution provides:
“
When
deciding a constitutional matter within its power, a court—
(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency”.
126
Doctors for Life
above n 91 at para 201 (SA); 1463B-C (BCLR).
127
Executive Council of the Western Cape
above n 120.
128
Id at para 62.
129
See the discussion at
[61]-[69] above.
130
Section 165(4) of the
Constitution provides that “[o]
rgans
of state, through legislative and other measures, must assist and
protect the courts to ensure the independence, impartiality,

dignity, accessibility and effectiveness of the courts.”
131
[2004] ZACC 8
;
2005 (2) SA 117
(CC);
2005 (2) BCLR 129
(CC).
132
Rule 5 of the Constitutional Court Rules, 2003, provides:
“
1. In any matter, including any appeal, where
there is a dispute over the constitutionality of any executive or
administrative
act or conduct or threatened executive or
administrative act or conduct, or in any inquiry into the
constitutionality of any
law, including any Act of Parliament or
that of a provincial legislature, and the authority responsible for
the executive or
administrative act or conduct or the threatening
thereof or for the administration of any such law is not cited as a
party to
the case, the party challenging the constitutionality of
such act or conduct or law shall, within five days of lodging with
the
Registrar a document in which such contention is raised for the
first time in the proceedings before the Court, take steps to join

the authority concerned as a party to the proceedings.
2. No order declaring such act, conduct or law to be
unconstitutional shall be made by the Court in such matter unless
the provisions
of this rule have been complied with.”
133
Mabaso
above n 131
at para 13.
134
Van der Merwe v Road Accident Fund and Another (Women’s
Legal Centre Trust as Amicus Curiae)
[2006] ZACC 4
;
2006 (4) SA
230
(CC);
2006 (6) BCLR 682
(CC) at paras 7-8 and 10;
Jooste v
Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening)
[1998] ZACC 18
;
1999 (2) SA 1
(CC);
1999 (2) BCLR 139
(CC) at paras
7-8;
Parbhoo and Others v Getz NO and Another
[1997] ZACC 9
;
1997 (4) SA 1095
(CC);
1997 (10) BCLR 1337
(CC) at para 5. See also
JT Publishing (Pty) Ltd v Directorate of Publications and Another
(Minister of Home Affairs Intervening)
1995 (1) SA 735
(T) at
738C-F;
1995 (1) BCLR 70
(T) at 73D-F.
135
Section 1(c) and (d) of the Constitution provide as follows:
“
(1) The Republic of South Africa is one,
sovereign, democratic state founded on the following values:
. . .
Supremacy
of the constitution and the rule of law.
Universal
adult suffrage, a national common voters roll, regular elections
and a multi-party system of democratic government,
to ensure
accountability, responsiveness and openness.”
136
In
Commissioner, South African Revenue
Service v Hawker Aviation Services Partnership and Others
2005 (5) SA 283
(T), the High Court awarded the costs of four
counsel, but the judgment was overturned on appeal: see
Commissioner, South African Revenue Service v
Hawker Aviation Partnership
[2006] ZASCA 51
;
2006 (4) SA 292
(SCA).
137
See
Biowatch Trust v Registrar Genetic Resources and Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at
para 29; and
Giddey NO v JC Barnard and Partners
[2006] ZACC
13
;
2007 (2) BCLR 125
(CC);
2007 (5) SA 525
(CC) at para 19.