Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces and Others (CCT40/15) [2016] ZACC 22; 2016 (5) SA 635 (CC); 2016 (10) BCLR 1277 (CC) (28 July 2016)

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Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces and Others (CCT40/15) [2016] ZACC 22; 2016 (5) SA 635 (CC); 2016 (10) BCLR 1277 (CC) (28 July 2016)

Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
40/15
In the matter
between:
LAND ACCESS
MOVEMENT OF SOUTH
AFRICA
First

Applicant
ASSOCIATION FOR
RURAL
ADVANCEMENT
Second
Applicant
NKUZI DEVELOPMENT
ASSOCIATION
Third
Applicant
MODDERVLEI
COMMUNAL PROPERTY ASSOCIATION
Fourth

Applicant
MAKULEKE COMMUNAL
PROPERTY ASSOCIATION
Fifth

Applicant
POPELA COMMUNAL
PROPERTY ASSOCIATION
Sixth

Applicant
and
CHAIRPERSON OF
THE NATIONAL COUNCIL
OF
PROVINCES
First

Respondent
SPEAKER OF THE
NATIONAL
ASSEMBLY
Second
Respondent
SPEAKER OF THE
EASTERN CAPE
PROVINCIAL
LEGISLATURE
Third

Respondent
SPEAKER OF THE
FREE STATE
PROVINCIAL
LEGISLATURE
Fourth

Respondent
SPEAKER OF THE
GAUTENG
PROVINCIAL
LEGISLATURE
Fifth

Respondent
SPEAKER OF THE
KWAZULU-NATAL
PROVINCIAL
LEGISLATURE
Sixth

Respondent
SPEAKER OF THE
LIMPOPO
PROVINCIAL
LEGISLATURE
Seventh

Respondent
SPEAKER OF THE
MPUMALANGA
PROVINCIAL
LEGISLATURE
Eighth

Respondent
SPEAKER OF THE
NORTH WEST
PROVINCIAL
LEGISLATURE
Ninth

Respondent
SPEAKER OF THE
NORTHERN CAPE
PROVINCIAL
LEGISLATURE
Tenth

Respondent
SPEAKER OF THE
WESTERN CAPE
PROVINCIAL
LEGISLATURE
Eleventh

Respondent
MINISTER OF RURAL
DEVELOPMENT AND
LAND
REFORM
Twelfth

Respondent
CHIEF LAND CLAIMS
COMMISSIONER
Thirteenth

Respondent
PRESIDENT OF THE
REPUBLIC OF SOUTH
AFRICA
Fourteenth

Respondent
MATABANE
COMMUNITY
F
ifteenth
Respondent
MAPHARI
COMMUNITY
Sixteenth
Respondent
MLUNGISI AND
EZIBELENI DISADVANTAGED
GROUP
Seventeenth
Respondent
LADY SELBORNE
CONCERNED
GROUP
Eighteenth
Respondent
Neutral
citation:
Land Access Movement of
South Africa and Others v Chairperson of the National Council of
Provinces and Others
[2016] ZACC 22
Coram:
Mogoeng CJ, Moseneke
DCJ, Bosielo AJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J
Judgments:
Madlanga J (unanimous)
Heard
on:
16 February 2016
Decided
on:
28 July 2016
ORDER
Application for the
exercise of exclusive jurisdiction and direct access:
Order:
1. It is declared that Parliament failed to satisfy its obligation to
facilitate public involvement in accordance with section 72(1)(a)

of the Constitution.
2. The Restitution of Land Rights Amendment Act 15 of 2014 is
declared invalid.
3. The declaration of invalidity in paragraph 2 takes effect from the
date of this judgment.
4. Pending the re-enactment by Parliament of an Act re-opening the
period of lodgement of land claims envisaged in section 25(7)
of the
Constitution, the Commission on Restitution of Land Rights,
represented in these proceedings by the Chief Land Claims
Commissioner
(Commission), is interdicted from processing in any
manner whatsoever land claims lodged from 1 July 2014.
5. The interdict in paragraph 4 does not apply to the receipt and
acknowledgement of receipt of land claims in terms of
section 6(1)(a)
of the
Restitution of Land Rights Act 22 of 1994
.
6. Should the processing, including referral to the Land Claims
Court, of all land claims lodged by 31 December 1998 be finalised

before the re enactment of the Act referred to in paragraph 4
above, the Commission may process land claims lodged from 1
July
2014.
7. In the event that Parliament does not re-enact the Act envisaged
in paragraph 4 within 24 months from the date of this order,
the
Chief Land Claims Commissioner must, and any other party to this
application or person with a direct and substantial interest
in this
order may, apply to this Court within two months after that period
has elapsed for an appropriate order on the processing
of land claims
lodged from 1 July 2014.
8. The National Council of Provinces must pay the applicants’
costs, including costs of two counsel.
JUDGMENT
MADLANGA J (Mogoeng
CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Mhlantla J, Nkabinde J and Zondo J
concurring):
Introduction
[1]
This matter concerns the painful, emotive subject of colonial
and apartheid era land dispossession.  A subject that –

despite the democratic government’s efforts at resolution
through the Restitution of Land Rights Act
[1]
(Restitution Act) – continues to plague South Africa’s
politico-legal landscape.  To those who personally experienced

the forced removals and those who – instead of inheriting the
illegitimately wrestled land – inherited the pain of
loss of
homes or property, the dispossessions are not merely colonial and
apartheid era memories.  They continue to be post-apartheid

realities.  And it is understandable why that should be so.
At the risk of being presumptuous, here was the upshot:
the ejection
from homes; the forcible loss of properties; severing from kin,
friends and neighbours; the wrenching of those affected
from their
beloved connection to place and community; immeasurable emotional and
psychological trauma; and the searing bitterness
of it all.
Concomitant to this was an untold assault upon the dignity of those
at the receiving end of this distressing treatment.
The
continuing post-apartheid realities of land dispossession are more so
in the case of those who are yet to enjoy the fruits
of restitution
or equitable redress in terms of the Restitution Act.
[2]
Land claims under the Restitution Act, whose main object was
the restitution of land rights or equitable redress, could be lodged

only up to 31 December 1998.
[2]
That date came and went without all who were entitled to lodge claims
having done so.  At the heart of this application
is the
constitutional validity of the Restitution of Land Rights Amendment
Act
[3]
(Amendment Act) which aims to re-open the window for the lodgement of
land claims.
The applicants’ case is
two-pronged.  The primary challenge seeks a declaration that the
Amendment Act is invalid
for failure by the National Council of
Provinces
[4]
(NCOP) and some or all of the Provincial Legislatures to facilitate
adequate public participation as required by sections 72(1)(a)
and
118(1)(a) of the Constitution.
[5]
On this, the applicants are invoking this Court’s exclusive
jurisdiction.  Alternatively, the applicants ask us
to declare
that section 6(1)(g), added to the Restitution Act by the
Amendment Act, is unconstitutional and invalid.
In respect of
the alternative challenge, the applicants seek direct access.
[3]
Should this Court declare the Amendment Act or section 6(1)(g)
to be constitutionally invalid, the applicants seek an 18-month
suspension
of the order of invalidity but also interim relief:
requiring the Commission on Restitution of Land Rights (Commission)
to continue
to process, settle and refer to the Land Claims Court
claims filed by 31 December 1998, notwithstanding that there may be
claims
lodged under the Amendment Act in respect of the same land;
and permitting the Commission to accept, but not investigate or
process
in any substantive manner, claims filed under the Amendment
Act.
[4]
The applicants base their constitutional attack upon
procedural defects in the passage of the Amendment Act.  They
allege that
Parliament failed to facilitate adequate public
participation before this Act was passed.  Their substantive
concerns about
the Amendment Act are twofold.  First, they are
of the view that re-opening the window for lodgement of land claims
will gravely
prejudice claimants who filed their claims by 31
December 1998 but whose claims remain unresolved.  This is
primarily due
to competing claims.  Under the re-opened process,
new claimants would be free to claim against land that has already
been
claimed or awarded to existing claimants.  The Amendment
Act contains no “ring-fencing” provisions; where people

or communities have already lodged a claim or been restored to their
land, the Amendment Act does not immunise the land against
claims
lodged under the Amendment Act.  The applicants also aver that
the Commission lacks capacity, which is why there are
still many
claims which are yet to be finalised.  If more claims are added
under the Amendment Act, that will exacerbate an
already intolerable
situation.  Second, the applicants argue that section 6(1)(g) is
impermissibly vague, and thus fails to
protect adequately the
interests of existing claimants.  The section requires the
Commission to “ensure that priority
is given” to claims
lodged by the 31 December 1998 deadline.
[6]
It does not, however, elaborate what this means in practice.
[5]
The application has been launched by a combination of
organisations with interests in land rights and agrarian reform and
various
Communal Property Associations (CPAs).  They have cited
as respondents the Chairperson of the NCOP,
[7]
the Speaker of the National Assembly,
[8]
the Speakers of each Provincial Legislature,
[9]
the Minister of Rural Development and Land Reform (Minister),
[10]
the Chief Land Claims Commissioner (Commissioner)
[11]
and the President of the Republic of South Africa.
[12]
Four other litigants applied to intervene and were joined as
respondents.
[13]
They comprise community organisations and entities with an interest
in land claims.
Jurisdiction
[6]
Section 167(4)(e) of the Constitution grants this Court
exclusive jurisdiction in respect of matters where it is alleged that
the
President or Parliament has failed to fulfil a constitutional
obligation.
[14]
The approach to this Court on the primary challenge is based on this
section.  This Court has dealt at length with circumstances

where it must exercise exclusive jurisdiction.
[15]
It has held that it needs to be careful not to denude the High
Court and Supreme Court of Appeal of their power to make declarations

of constitutional invalidity in terms of section 172(2)(a) of the
Constitution.
[16]
More specifically to the issue at hand,
Doctors for Life
has
held that a challenge that there has been a failure to fulfil the
obligation contained in section 72(1)(a) falls under
this
Court’s exclusive jurisdiction.
[17]
Thus I need not belabour this issue.  Suffice it to say, section
72(1)(a) imposes the obligation only on the NCOP, and
not Parliament
as a whole.
[18]
In
Doctors for Life
this Court pointed out that section
42(1) of the Constitution defines Parliament as being the
National Assembly and the NCOP.
[19]
Where either House fails to satisfy its own obligation to facilitate
public involvement in the process of making law,
[20]
Parliament as a whole has failed in its constitutional
obligation.
[21]
[7]
I am led to the holding that this Court has exclusive
jurisdiction to entertain the primary challenge.
Background
Re-opening of the land claims process
[8]
In 1994 Parliament passed the Restitution Act, legislation
envisaged by section 25(7) of the Constitution.
[22]
The Restitution Act established the Commission in order to
investigate and process land claims.  It also created the
Land
Claims Court for the resolution of disputes concerning land claims.
Between the date of the coming into operation of
the Restitution Act
and 31 December 1998, the deadline for the lodgement of claims under
this Act, about 80 000 claims were
filed.
[9]
In 2011 the Department of Rural Development and Land Reform
(Department) held a national workshop to evaluate the impact of the
land claims process.  The workshop was attended by nearly 1 300
delegates, many of whom called for the re opening
of the window
for the filing of claims (re-opening of claims).  Later that
year the Department announced that a task team
was preparing a
proposal for the government on the issue.
Public
consultation: Departmental process
[10]
In May 2013 the Minister published the first draft
Restitution of Land Rights Amendment Bill (Bill) providing for
the re-opening
of claims.  The Department then began to seek
public input.  First, it invited public comment on the Bill
during the
30 day period following publication.  Written
submissions received during this period raised concerns with the Bill
and
the claims process in general.  These included the backlog
in the finalisation of claims already lodged, continuing capacity

problems within the Commission and potential conflicts between
traditional leaders – who sought to claim separately from

communities – and the communities concerned.
[11]
Second, the Department undertook a Regulatory Impact
Assessment (impact assessment) on the feasibility of re-opening
the claims
process.  The impact assessment was completed in July
2013.  It estimated that approximately 397 000 valid claims

would be lodged.  It also noted concerns by some about the
sufficiency of the time for public consultation on the Bill.

Certain academics argued for the withdrawal of the Bill because the
time for consultation had been too scant.  Various
non governmental
organisations (NGOs) suggested that more time
be afforded for public comment.
Public
consultation: National Assembly process
[12]
The parties have explained in great detail the steps taken by
the National Assembly to facilitate public consultation in the

enactment of the Bill.  I do not find it necessary to recount
each of those steps.  Parallel with the Department’s

processes, the National Assembly also canvassed public opinion on the
re-opening of claims.  There were two principal mechanisms
for
this: an ad hoc committee (Ad Hoc Committee) established in
June 2013; and the Portfolio Committee on Rural Development
and
Land Reform (Portfolio Committee).  The Ad Hoc Committee’s
purpose was to review the legacy of the Natives Land
Act,
[23]
including whether the land claims process should be re opened.
To this end, it held a two-day workshop with parliamentary

committees, Members of Parliament and other interested people and
groups in June 2013, as well as another two-day workshop in
Stellenbosch.  The Ad Hoc Committee issued a report of its
findings in October 2013.  The report raised concerns about
the
limited time that members of the Portfolio Committee would have to
process the legislation, and also recommended that the Department

work with the Commission to prioritise claims lodged by the
31 December 1998 deadline.
[13]
On 15 October 2013 the Department presented the Bill to the
Portfolio Committee.  The Portfolio Committee initiated its
public
consultation process shortly thereafter.  Advertisements
were placed in all 11 official languages in national, provincial and

regional print media, as well as on the radio, explaining the Bill
and calling for submissions.  In November 2013 the Portfolio

Committee began a three month public consultation tour to
discuss the Bill in all the provinces.  The tour delegation

stopped in locations totalling 18 and, according to its report,
addressed 14 000 people
[24]
in all.  Members of the public raised a number of concerns.
The issues articulated included: a desire that the re-opening
of the
claims process be subject to the ring-fencing of old claims;
[25]
concerns that traditional leaders would exploit the re opened
process to lodge claims on land that had already been restored
to
CPAs; and a view that the Commission lacked capacity.  In
January 2014 the Portfolio Committee held two days of public
hearings
in Parliament.  In addition to some of the concerns raised
before, members of the public complained about the length
of time
that had already elapsed to finalise outstanding old claims and
corruption and maladministration at the Commission.
[14]
For three days in early February 2014 the Portfolio Committee
held deliberations on the Bill.  On 5 February 2014 the
Portfolio
Committee adopted the Bill with certain amendments.
One of these amendments now forms section 6(1)(g) of the
Restitution Act.
The National Assembly passed the Bill on
25 February 2014.
[15]
Although the applicants aver that the National Assembly’s
public consultation process had certain shortcomings,
[26]
they accept that it was constitutionally compliant.  I agree.
Public
consultation: NCOP process
[16]
On 26 February 2014 the Chairperson of the NCOP referred the
Bill to the NCOP Select Committee on Land and Environmental Affairs

(NCOP Select Committee) and the Provincial Legislatures.  It was
accompanied by the following “Draft Provisional Programme
for
the Select Committee”:
Briefing of NCOP
Select Committee by Department

28 February 2014
Briefing of
Provincial Legislatures by Department

5-7 March 2014
Public hearings in
provinces

10-14 March 2014
Negotiating
mandate
[27]
meeting

18 March 2014
Final mandate
[28]
meeting

25 March 2014
[17]
A few points in the timeline are worth highlighting.
First, from start to finish, the provinces had less than one calendar

month to process fully a complex piece of legislation with profound
social, economic and legal consequences for the public.
The
timeline gave the provinces a mere three to five calendar days to
notify the public of the hearings, from the date the Provincial

Legislatures were briefed
[29]
until the date the public hearings commenced.
[30]
The provinces had only eight calendar days to conduct the hearings,
consider public comments and confer appropriate negotiating
mandates,
from the start of the hearings until the negotiating mandate
meeting.
[31]
Although the timeline was marked “Draft Provisional”, it
did not function as a draft.  It was actually followed
by both
the NCOP and Provincial Legislatures.
[18]
On 28 February 2014, in accordance with the first item on the
timeline, the Department presented the Bill to the NCOP Select
Committee
together with two other Bills.
[32]
At the conclusion of that meeting, the chairperson stated that the
NCOP Select Committee intended to pass the Bill before
the term of
Parliament ended.
[33]
Between 4 and 7 March 2014, in accordance with the second item
on the timeline, the Department presented the Bill to
the Provincial
Legislatures or the relevant committee of each Provincial Legislature
dealing with the Bill.
[19]
The third item called for public hearings in each province.
The NCOP Select Committee opted to hold these hearings through
the
Provincial Legislatures.  This was not merely a matter of
convenience; the NCOP Select Committee Members were also Members
of
their respective Provincial Legislatures.  As such, Members were
in a position to participate in the hearings of their
respective
provinces – and were expected by the NCOP Select Committee to
do so.
Public
consultation: Provincial Legislature process
Eastern Cape
[20]
Leading up to the public hearings, posters were displayed on
the “notice boards in the towns” in the relevant
districts
during the week of 3 7 March 2014 inviting
members of the public to attend the hearings.  During that
period invitations
were addressed to various interested parties –
including the municipal Speakers and Councillors in the relevant
districts,
as well as Vulamasango, an NGO representing land claimants
– to attend or make written submissions.  Written
submissions
were received from the Democratic Alliance and Legal
Resources Centre.  The Eastern Cape Provincial Legislature held
hearings
in Mthatha and Port Elizabeth on 12 March 2014 and
Queenstown and East London on 13 March 2014.  The legal unit of

the Provincial Legislature prepared summaries of the Bill in
isiXhosa, Afrikaans and English.
[21]
The Mthatha hearing lasted approximately four hours, and was
attended by about 180 people at an overcrowded venue. Not only was
the Bill considered alongside four other bills,
[34]
it was the last to be presented with less than two hours remaining.
Copies of the Bill were distributed in English only;
neither isiXhosa
nor Afrikaans translations of the Bill were available.  The
first respondent insists that summaries in these
two languages were
distributed at the hearings.  Members of the public expressed
concerns which included: whether there was
adequate funding for the
re-opening of claims; whether outstanding claims should be re filed;
and the competing and divergent
interests of communities, on the one
hand, and traditional leaders, on the other.  The hearing was
brought to a close at a
time when – according to the applicants
– several people still wished to speak.
[22]
The Port Elizabeth hearing was attended by approximately 60
people.  Those in attendance questioned the wisdom of re-opening

claims when a significant number of old claims remained unresolved.
They also voiced concerns regarding pressure from traditional

leaders who wished to increase their control over land.  They
queried the fact that the hearing had been held in Port Elizabeth,

since most affected people would be unable to attend.  Some
indicated that they had learned of the hearing because they
coincidentally
happened to be in Port Elizabeth that day.
[23]
The Queenstown hearing was attended by approximately 150
people.  Attendees voiced frustration that isiXhosa translations
of
the Bill were unavailable, and were unhappy that the Bill was
discussed only after other bills had been presented.  They too

expressed concern about the intentions of traditional leaders.
[24]
Members of the Eastern Cape Provincial Legislature failed to
attend the East London hearing.  Apparently this was due to

a communication breakdown.
[25]
It is worth noting that at the hearing before this Court,
Parliament could not explain what exactly is meant by “notice
boards
in the towns” where the notices of the Eastern Cape
hearings are said to have been displayed.  Nor could it
enlighten
us on who reads what has been put up on these notice boards
and under what circumstances.  In short, we were left in the
dark
as to how accessible to the public this mode of notification
was.
Free State
[26]
Invitations to interested people and groups were issued on 5
March 2014.  The hearings were advertised in local print media

on 7 March 2014.  The hearings were to be held in Senekal
on 10 March 2014, Ficksburg on 11 March 2014 and Phuthaditjhaba
on 13
March 2014.  Subsequently, all the hearings were conducted
predominantly in Sesotho and translated into either English
or
Afrikaans, while summaries of the Bill were made available in both
Sesotho and English.  The Legal Resources Centre
lodged
written submissions on 7 March 2014.
[27]
The Senekal hearing was attended by approximately 220 people.
Public concerns included the need for State-funded legal assistance
–
if required – for both claimants and land owners, whether the
State would provide certain guarantees to land owners
whose
properties were subject to claims and how the Bill was to deal with
fraudulent claims.
[28]
The Ficksburg hearing was attended by approximately 250
people.  Attendees questioned whether the Department would be
able
to fund new claims given its budgetary constraints.  They
also pleaded for the speeding up of the registration of restored

land.
[29]
Approximately 185 people attended the Phuthaditjhaba hearing.
Their concerns were similar to those raised at the Senekal and

Ficksburg hearings.
Gauteng
[30]
The Gauteng Provincial Legislature advertised the single
hearing it was to hold in local print media on 9 and 10 March 2014.

The notice also invited written submissions.  These were
received from various NGOs including the first applicant and the

Legal Resources Centre.  The hearing took place in Johannesburg
on 12 March 2014.  It lasted three hours.
The Bill
was the last of three bills discussed at the hearing.
[35]
Both the presentation and copies of the Bill were in English.
The chairperson stated that no questions would be answered
as the
purpose of the hearing was only to receive comments.
[31]
Members of the public demanded that the re-opening of claims
should commence only after all outstanding old claims had been
settled.
They observed that the timing of the Bill was
suspiciously close to the then upcoming elections and that the
Commission engaged
in “staged” and “piecemeal”
restoration of claimed land.  They questioned the unavailability
of the
Bill in indigenous languages and in braille.
KwaZulu-Natal
[32]
The KwaZulu-Natal hearings were advertised on local radio, and
print advertisements were placed in English and isiZulu newspapers.

The hearings were to be held in Newcastle on 12 March 2014 and
Pietermaritzburg on 13 March 2014.  The invitations were also

for submission of written comment by 13 March 2014.  Submissions
were lodged by both public interest legal organisations and

organisations operating in the agricultural sector.  It is not
clear when the advertisements began to run; the extracts before
the
Court are dated 7 March and 10-12 March.  It is telling,
however, that the second applicant, an NGO that is deeply involved
in
land reform in KwaZulu-Natal, was unable to attend either hearing due
to the short notice provided.  Many community based

organisations and community members with whom the second applicant
works were also unable to attend the Pietermaritzburg hearing.
[33]
Based on the attendance registers, there were approximately 85
and 120 people at the Newcastle and Pietermaritzburg hearings
respectively.
At the Pietermaritzburg hearing, people expressed
unhappiness that the Bill had not been translated into isiZulu.
Many voiced
dissatisfaction with the fact that their claims remained
unresolved, but this was deemed irrelevant to the Bill by those
running
the hearing.  There was loud approval by the people of a
suggestion by the Legal Resources Centre that the Bill provide for

the ring-fencing of old claims to protect them from competing new
claims.
Limpopo
[34]
Following the Limpopo Provincial Legislature’s briefing
session with the Department on 5 March 2014, this Legislature issued

invitations to interested parties to attend a public hearing that was
to be held on 14 March 2014 in Polokwane.  The general
public
was given notice of the hearing through radio advertisements.
During the week prior to the hearing, the advertisements
were
broadcast seven times daily on all public radio stations, and daily
on community radio stations, in Sepedi, English, Tshivenda,
Xitsonga,
Afrikaans and isiNdebele.  Written submissions were invited from
various stakeholders.  These were lodged by
the Legal Resources
Centre, Platinum City Development Corporation (Pty) Ltd, the third
applicant, various CPAs, traditional leaders,
current land claimants
and prospective land claimants.  The Provincial Legislature
arranged transport to the hearing for residents
of all districts and
municipalities within the province at its own cost.
[36]
[35]
Despite these commendable efforts at notifying the public of
the hearing, many interested parties remained unaware.  The
third
applicant, a prominent land reform NGO, only learnt of the
hearing through its sister organisations.  It was unable to
inform
the communities with which it works or arrange for their
attendance at the hearing.  The fourth applicant only learned of
the hearing in July 2014.  That was when it was contacted about
the current proceedings.  It thus had no opportunity to
make
representations.  The fifth applicant learned of the hearing
from the Centre for Law and Society two days before it took
place.
Three community members were able to attend on its behalf.  The
sixth applicant too had only two days’
notice of the hearing.
One person attended the hearing on its behalf.  Numerous
community members were unable to attend
because they could not miss
work or other commitments on such short notice.
[36]
The Limpopo hearing appears to have been attended by several
hundred people.  According to the first to tenth respondents,
“more than 500” people attended, while the third
applicant estimates “about 250 to 300 participants”.

Those whose concerns involved outstanding land claims were not
permitted to raise them inside the venue of the hearing.
Instead, they were directed to a table outside to present their
issues there.  Of the 15 people permitted to comment within
the
hearing, 10 were traditional leaders who voiced their support for the
Bill.  Three of the remaining five objected to the
Bill.
At the end of the hearing, the chairperson announced that written
submissions would be accepted until 17 March 2014;
a mere
three days later, two of which were a Saturday and Sunday.  And
this in Limpopo, a predominantly rural province where
access to email
and fax is not widespread.
Mpumalanga
[37]
The Mpumalanga Provincial Legislature was briefed on the Bill
by the permanent delegate to the NCOP on 5 March 2014.  It
scheduled
three public hearings, all on 12 March 2014, in Thaba
Chweu, Elukwatini and Belfast.  Following the briefing, written
and
telephonic invitations were extended to various parties.
The hearings were advertised in print media during the week of 10

March 2014.  Both the invitations and advertisements requested
written submissions by 13 March 2014.  Submissions were
lodged
by the Legal Resources Centre, Centre for Law and Society and South
African Local Government Association.
[38]
The Thaba Chweu hearing came to an early end “because of
the failure of community members to attend as a result of a last
minute logistical problem”.  All invited guests were
present.
[39]
The Elukwatini hearing was attended by approximately 270
people.  Copies of the Bill were distributed in English.  A
concern
was raised that re-opening the claims process would interfere
with outstanding land claims adversely.
[40]
It is unclear how many people attended the Belfast hearing.
People in attendance interacted “robustly” with Members

of the Mpumalanga Provincial Legislature.  They complained about
the slow pace of restitution and sought clarity on how the
re-opening
would affect existing outstanding claims.
Northern Cape
[41]
On 7 March 2014 the Northern Cape Provincial Legislature sent
invitations to interested people and groups to attend the single
public
hearing that it had scheduled.  The hearing was to be
held on 11 March 2014 in Douglas.  Community development workers

in Siyancuma Municipality were requested to distribute flyers and
pamphlets advertising the hearing.  These were also displayed
on
municipal office notice boards in Douglas, Bongani and Breipaal.
The residents of Douglas, Bongani, Breipaal and Buckland
were
informed of the hearing by means of a loudhailer.  At the
hearing written submissions were called for, and lodged by
the Centre
for Law and Society.
[42]
The hearing was attended by approximately 168 people.
Summaries of the Bill in Afrikaans and isiXhosa were distributed.
Interpreters
were available for those unable to express
themselves in Afrikaans or English.  Both oral and written
submissions were presented
at the hearing.  These included a
written submission by the Centre for Law and Society that highlighted
various concerns about
the Bill, such as budgetary constraints upon
the re-opening of claims, the challenges faced by rural communities
in respect of
the current restitution programme and the Department’s
alleged failure to honour approved claims.
[43]
At the hearing before this Court, Parliament conceded that –
in context – the available information meant that the flyers

and pamphlets were not only distributed by Siyancuma Municipality
community development workers, but were distributed within this

municipality only and that Douglas, Bongani, Breipaal and Buckland
are all within Siyancuma Municipality.  I pause to note
that the
Northern Cape is South Africa’s largest province in terms
of land mass.  It is rural and sparsely populated.

Siyancuma Municipality is but one of 27 municipalities in the
Northern Cape.  Many communities are located a vast distance

away, in areas where dirt roads and poor infrastructure may render
already-remote towns even more inaccessible.  I have difficulty

understanding how the publicity efforts in Siyancuma Municipality
could reasonably have been expected to reach the residents of
these
communities.  Even assuming some residents were miraculously
informed of the hearing, in view of the challenges I have
just
described, I find it unlikely that many would have been in a position
to travel to Douglas on what seems to have been less
than four days’
notice.  In any event, it is a generous assumption to even think
the Siyancuma hearing was meant to
be a province-wide hearing.
In truth, it appears to have been meant for the area of Siyancuma
Municipality only.  What
of the rest of the province then?
This is a mystery.
[44]
Also surprising is the fact that translations of the Bill were
in isiXhosa and Afrikaans only.  Setswana is widely spoken in

the Northern Cape.
North West
[45]
The North West public hearings were advertised in the print
media and community radio stations.  The advertisements were
issued
after the North West Legislature had been briefed on the Bill
by the Department on 7 March 2014.  The hearings were scheduled

to be held on 13 March 2014 in Ngaka Modiri Molema District, Dr
Kenneth Kaunda District, Dr Ruth Segomotsi Mompati District
and
Bojanala District.
[46]
The hearing in Ngaka Modiri Molema District was attended
by approximately 200 people, the one in Dr Kenneth Kaunda District
by
about 172 people, the one in Dr Ruth Segomotsi Mompati District
by approximately 185 and the hearing in Bojanala District
by about
197.  All the hearings were addressed in Setswana.
Attendees suggested that the government – and not
land owners –
should fix the price of land, and that registration of land claims
should be advertised using local radio and
print media.  People
also expressed a strong desire to get their land back and were
concerned that they had previously received
wrong advice regarding
the land claims process.  They were optimistic that the Bill
would come to their rescue.
Western Cape
[47]
The Western Cape public hearing was advertised on 7 March 2014
in four provincial newspapers in English and Afrikaans.  Only

one hearing was scheduled; and it was to be on 12 March 2014 in Cape
Town.  The advertisement requested written submissions
by 11
March 2014.  Written submissions were received from: the Western
Cape Government: Department of the Premier; Institute
for Poverty,
Land and Agrarian Studies; Rural Women’s Action Research
Programme of the Centre for Law and Society; and the
Legal Resources
Centre.  The hearing was attended by approximately 30 people,
including Members of the Griqua Royal House
and some claimant
communities.  It lasted a little over 90 minutes.
Presentations were made by the Commission, the Legal
Resources
Centre, Centre for Law and Society and Institute for Poverty, Land
and Agrarian Studies.  In addition to the concerns
expressed in
other provinces about the Bill’s lack of protection for
existing claims and capacity problems at the Commission,
attendees
were frustrated by the Department’s failure to honour approved
claims because of perceived lobbying by traditional
leaders.
Negotiating
mandates
[48]
Apparently following the prescription in the penultimate stage
of the timeline, the NCOP Select Committee met on 18 March 2014 to

consider the provinces’ negotiating mandates on the Bill.
As mentioned, it was the practice that NCOP Select Committee
Members
attended hearings conducted by Provincial Legislatures.
[37]
Subject to a few exceptions,
[38]
however, the evidence before us suggests that the NCOP Select
Committee Members failed to do so.  It follows that the vast

majority of Members at the 18 March 2014 meeting had no personal
knowledge of what had transpired at the hearings conducted by
the
Provincial Legislatures.
[49]
Also, Members could only have been able to inform themselves
of what had happened at provinces other than their own through
reports
from each Provincial Legislature.  However, following a
discussion that ensued when a Member of the Free State
delegation
asked for a report on the public hearings in the Eastern
Cape, the NCOP Select Committee ruled that provinces were not obliged
to circulate reports of their hearings.  Two provinces, Free
State and Gauteng, had prepared no reports.  The Eastern
Cape,
Mpumalanga and North West had prepared reports that were never
shared.  As a result, the remaining provinces were oblivious
to
the public consultation process in these five provinces.  It was
an absolute impossibility for the NCOP Select Committee
Members to
achieve a uniform understanding of public concerns across the
country.  This – in turn – must have
limited their
ability to enrich the deliberations within the NCOP.
[50]
Eastern Cape’s negotiating mandate included a suggestion
regarding the appointment of Judges to the Land Claims Court, as well

as detailed amendments proposed by the Democratic Alliance and the
Legal Resources Centre.  The NCOP Select Committee was
unable to
consider the proposed amendments because they were not distributed
until after the meeting.  Free State’s
negotiating mandate
proposed the appointment of retired Judges with appropriate expertise
to the Land Claims Court.
KwaZulu-Natal’s
negotiating mandate noted the limited time for public consultation
and required the KwaZulu Natal delegation
to support the Bill
subject to consideration of various detailed amendments.
Limpopo’s negotiating mandate required
its delegates to take
specific concerns into account when voting, including the protection
of existing claims, the objections of
traditional leaders to the
establishment of CPAs and a variety of proposed amendments.
According to Northern Cape’s
negotiating mandate, the delegates
had to raise specific concerns, including a request for the
establishment of satellite offices
in remote areas of the province to
assist people in lodging claims.  Finally, Western Cape’s
negotiating mandate described
the public participation process as
inadequate and stated that Western Cape would only support the Bill
subject to specific amendments,
including changes to the deadline and
cut-off period for the re-opening.
[51]
Despite the substantive nature of these issues, they were
considered only in part.  The proposals from Northern Cape and
Limpopo
were not considered.  The proposals from Eastern Cape,
Free State, KwaZulu-Natal and Western Cape were not accepted.

Western Cape’s suggested changes were noted but not voted upon,
because they were not tabulated as substantive proposed amendments.

I am rather perplexed by this stance; the Mandates Act indicates that
negotiating mandates “may include” amendments,
[39]
but does not require proposed changes to be framed as formal
legislative amendments.  KwaZulu-Natal was the only province
to
frame its suggestions this way, and each of its detailed amendments
was voted down.  Its delegate was given no opportunity
to take
comments back to the KwaZulu-Natal Provincial Legislature for further
deliberation.
[52]
The applicants take issue with a few other features of the
process.  The second applicant is adamant that the KwaZulu-Natal

summary of oral submissions contained in the negotiating mandate is
“a completely inaccurate reflection” of the hearing

attended by its representative.
[40]
Likewise, the first applicant avers that the description of
submissions at the public hearings is “false”.
I
also note that the Limpopo Provincial Legislature conferred its
negotiating mandate on 17 March 2014, the very same day written

submissions were due from the public.  This timing would have
made it difficult, if not impossible, meaningfully to consider
those
written submissions for possible inclusion in the negotiating
mandate.
Final mandates
[53]
The final stage of the timeline was the NCOP Select Committee
meeting on 25 March 2014 for the purpose of considering the
provinces’
final mandates.  At the meeting, Eastern Cape,
Limpopo, Mpumalanga and Northern Cape presented final mandates in
favour of
the Bill.  North West’s final mandate contained
certain conditions but voted in favour of the Bill.  Western
Cape
voted against the Bill.  Free State and Gauteng
presented no mandate at the meeting, but subsequently presented final

mandates in favour of the Bill.  KwaZulu-Natal also presented no
mandate at the meeting, but subsequently voted in favour
of the Bill
even though its amendments were not incorporated.  Based on
these mandates, the NCOP Select Committee recommended
approval of the
Bill and submitted a report to that effect.
[54]
On 27 March 2014 the NCOP passed the Bill.  This occurred
following a motion by the NCOP Whip to suspend rule 239(1) of the

NCOP Rules.  This rule provides that three working days must
lapse between the tabling of the NCOP Select Committee report
and the
consideration of a Bill.  The motion was granted, and the Bill
was passed under the accelerated timeline.
[55]
The Bill was subsequently submitted to the President for
assent.  He signed it on 29 June 2014.  It took effect as
the
Amendment Act on 1 July 2014.
[41]
Facilitation of
public participation
[56]
Section 72(1)(a) of the Constitution imposes an obligation on
the NCOP to facilitate a consultative process with the public during

law making.  The section provides:
“(1) The National Council of Provinces must—
(a) facilitate public involvement in the legislative and other
processes of the Council and its committees.”
Sections 59 and 118
impose separate but parallel obligations on the National Assembly
and Provincial Legislatures respectively
to facilitate public
participation.
[57]
It is tempting to ask why the Constitution specifically
imposes this duty, as Parliament and Provincial Legislatures are
elected
by the people to represent them in, amongst others, the law
making process.  The answer is not far to seek.  The notion

is a direct enunciation that South Africa’s democracy contains
both representative and participatory elements.  These
elements
are not mutually exclusive.  Rather they support and buttress
one another.
[42]
This Court has rejected the argument that the public need not
participate in the legislative process as its elected representatives

are speaking on the public’s behalf.
[43]
[58]
This Court’s jurisprudence deals at length with why the
Constitution imposes the obligation that Parliament facilitate public

participation in the legislative process.  It is beneath the
dignity of those entitled to be allowed to participate in the

legislative process to be denied this constitutional right.  In
a concurring judgment in
Doctors for Life
, Sachs J took the
view that “[p]ublic involvement . . . [is] of particular
significance for members of groups that have been
the victims of
processes of historical silencing”.
[44]
He added:
“It is constitutive of their dignity as citizens today that
they not only have a chance to speak, but also enjoy the assurance

they will be listened to.  This would be of special relevance
for those who may feel politically disadvantaged at present
because
they lack higher education, access to resources and strong political
connections.  Public involvement accordingly
strengthens rather
than undermines formal democracy, by responding to and negating some
of its functional deficits.”
[45]
[59]
On whether Parliament has met the obligation of facilitating
public participation, the Constitution demands that the public must

be afforded a meaningful chance of participating in the legislative
process.
[46]
In
New Clicks
Sachs J wrote:
“The forms of facilitating an appropriate degree of
participation in the law-making process are indeed capable of
infinite
variation.  What matters is that at the end of the day
a
reasonable opportunity
is offered to members of the public
and all interested parties to know about the issues and to have an
adequate say.”
[47]
(Emphasis added.)
[60]
So, the standard to be applied in determining whether
Parliament has met its obligation of facilitating public
participation is
one of reasonableness.
[48]
The reasonableness of Parliament’s conduct depends on the
peculiar circumstances and facts at issue.
[49]
When determining the question whether Parliament’s
conduct was reasonable, some deference should be paid to what
Parliament
considered appropriate in the circumstances,
[50]
as the power to determine how participation in the legislative
process will be facilitated rests upon Parliament.
[51]
The Court must have regard to issues like time constraints and
potential expense.
[52]
It must also be alive to the importance of the legislation in
question, and its impact on the public.
[53]
[61]
Relevant factors that Parliament ought to consider when
determining how it will involve the public in its legislative process
include:
the rules it has adopted for this purpose; the nature of the
legislation in question; and any need for its urgent adoption.
[54]
These too bear relevance to the Courts’ determination of the
reasonableness of Parliament’s conduct.
[55]
[62]
Did the NCOP act reasonably in facilitating the involvement of
the public in its process of enacting the Amendment Act?  I
answer this by looking at the following issues:  the nature and
importance of the Amendment Act; the self-imposed timeline;
mandates
of Provincial Legislatures at the NCOP; and public participation at
Provincial Legislatures.
The nature and
importance of the Amendment Act
[63]
The right to restitution of land is sourced from the
Constitution itself.
[56]
The Amendment Act gives effect to this right.  As I state in the
introduction, the subject to which the right relates
touches nerves
that continue to be raw after many decades of dispossession.
The importance of the right to restitution, therefore,
cannot be
overstated.  Restitution of land rights equals restoration of
dignity.  The sudden availability of land –
a commodity
which was pie in the sky for many – also facilitates the
enjoyment of other constitutional rights.  Families
which –
because of lack of land – lived in overcrowded shelters
will be afforded an opportunity to enjoy privacy.
[57]
This is also closely linked to the enjoyment of the right of access
to housing.
[58]
Lack of land results in unacceptably high levels of population
density.  This in turn does not conduce to a healthy

environment.  Restored land affords the recipients a wholesome
environment.
[59]
Compensation under the amended Restitution Act is also of great
significance.
[64]
Axiomatically, the re-opening of the land claims process is of
paramount importance and public interest.  It was crucial that

there be reasonable public participation in the legislative process
that resulted in the enactment of the Amendment Act.
Self-imposed
timeline
[65]
Upon receipt of the Bill from the National Assembly, the NCOP
treated it as urgent.  The only reason the NCOP proffers for
having done so is that Parliament had to finalise the Bill before the
end of Parliament’s term, which was fast approaching
at the
time.  The NCOP adds that had the Bill not been finalised, it
would have lapsed.
[60]
[66]
Nothing was placed before the Court indicating that –
besides the desire by Parliament to finalise it before the end of
term
– the Bill itself was objectively urgent.  In that
case, why did the NCOP not allow the Bill to lapse and subsequently

invoke its power to reinstate it under rule 238(1)?  No cogent
reason was given.  It is so that the term of the “fourth

Parliament”
[61]
was fast coming to an end and the election of new Members of
Parliament had to take place.  But it has not been suggested

that post the elections the Bill might not have been reinstated.
All of this notwithstanding, the NCOP adopted a truncated
timeline
for itself and Provincial Legislatures to facilitate the involvement
of the public in the legislative process.  This
timeline is the
root cause of all the deficiencies in the process.  I deal with
the deficiencies later.
[67]
Given the gravitas of the legislation and the thoroughgoing
public participation process that it warranted, the truncated
timeline
was inherently unreasonable.  Objectively, on the terms
stipulated by the timeline, it was simply impossible for the NCOP –

and by extension the Provincial Legislatures – to afford the
public a meaningful opportunity to participate.
[68]
The NCOP attempted to justify the timeline on the basis that
the period of approximately four weeks to deal with the Bill was

not unusual and fell comfortably in line with its rule regulating
legislative cycles.  Rule 240 provides:
“(1) All section 76 or 74(1), (2) and (3) Bills should be dealt
with in a manner that will ensure that provinces have sufficient
time
to consider the Bill and confer mandates.
(2) Depending on the substance of the Bill, the period may not exceed
six weeks.
(3) In the event that the substance of the Bill requires sufficient
time beyond the six-week period, the cycle may be extended
with the
approval of the Chairperson of the Council.”
[69]
Although I have serious doubts that even the six weeks would
have been sufficient,
[62]
no reason was given as to why the full six weeks was not utilised by
the NCOP in respect of the Bill.  All that we are aware
of is
the unexplained rush to be done by the end of Parliament’s
term.
[70]
On a conspectus of all that is relevant, the adoption of the
timeline was a classic breach of what was held in
Doctors for
Life
, that is “[t]he timetable must be subordinated to the
rights guaranteed in the Constitution, and not the rights to the
timetable”.
[63]
In drawing a timetable that includes allowing the public to
participate in the legislative process, the NCOP cannot act
perfunctorily.  It must apply its mind taking into account:
whether there is real – and not merely assumed – urgency;

the time truly required to complete the process; and the magnitude of
the right at issue.
Mandates of
Provincial Legislatures at NCOP
[71]
I highlighted
[64]
shortcomings in the manner in which the NCOP dealt with and
considered the negotiating and final mandates of Provincial
Legislatures.
[65]
I will not burden the judgment by repeating them.  Suffice it to
say that the views and opinions expressed by the public
at the
provincial hearings did not filter through for proper consideration
when the mandates were being decided upon.  This
deprived the
process of the potential to achieve its purpose.
[66]
In
Moutse
this Court held that public involvement must be an
opportunity capable of influencing the decision to be taken.
[67]
Public
participation at Provincial Legislatures
[72]
The relevance of the conduct of Provincial Legislatures is
that it is open to the NCOP not to conduct public hearings itself and

to have the Provincial Legislatures do this instead.
[68]
Therefore, although later I emphasise the separateness of Provincial
Legislatures from the NCOP, in this context there is
commonality
between the public participation process at the Provincial
Legislatures and the NCOP’s legislative process.
[73]
The conduct of the Provincial Legislatures has not been spared
in the challenge.  The applicants aver that – in many
respects – the efforts made by the Provincial Legislatures were
flawed and did not pass constitutional muster.  As will
be
demonstrated shortly, there were indeed flaws in the facilitation of
public participation by the Provincial Legislatures.
Although
these flaws cannot be divorced from the truncated timeframes that the
Provincial Legislatures were given, it is necessary
to assess whether
the Provincial Legislatures’ efforts were themselves adequate.
[74]
As with the National Assembly and NCOP, the Constitution
places an obligation, in terms of section 118, on the Provincial
Legislatures
to facilitate public involvement in their legislative
processes.
[69]
This obligation is central to a representative and participatory
democracy.  When compared to Parliament, Provincial
Legislatures
are closer to, and more in touch with, the people and better placed
to reach the nooks and crannies of the country.
As a result of
their collectively wide, but geographically focused reach and ability
to penetrate even the most remote areas of
our vast country, their
contributions to participatory democracy cannot be overstated.
Public participation facilitated by
Provincial Legislatures thus
enables direct, formal input by affected people into the legislative
process.
[75]
Three aspects regarding the public participation facilitated
by the Provincial Legislatures warrant attention.  The first
relates
to the notices issued by the various provinces to advertise
the public hearings.  The notices were the genesis of the
process
of public involvement.  In
Doctors for Life
Ngcobo J had this to say about two aspects of the duty to facilitate
public involvement:
“The first is the duty to provide meaningful opportunities for
public participation in the law-making process.  The
second is
the duty to take measures to ensure that people have the ability to
take advantage of the opportunities provided.”
[70]
[76]
Amongst the measures considered important was notice of and
information about the relevant legislation.  A notice does not
only provide details of the place, time and purpose of a public
hearing but it also assists in building awareness.  Without

notice, the public will be denied an opportunity to participate in
the legislative process.  According to
Doctors for Life
:
“Legislatures must facilitate participation at a point in the
legislative process where involvement by interested members
of the
public would be meaningful.  It is not reasonable to offer
participation at a time or place that is tangential to the
moments
when significant legislative decisions are in fact about to be made.
Interested parties are entitled to a reasonable
opportunity to
participate in a manner which may influence legislative
decisions.”
[71]
[77]
In almost all the provinces, advertisements of the public
hearings were made not more than seven days before the hearings and
in
others, such as Mpumalanga, only two days prior to the
hearings.
[72]
The obvious result is that some who – had they been aware of
the impending hearings – might have participated
in them were
deprived of that opportunity.  Also, the period between the
notice and the public hearings was too limited to
have allowed the
public to study the Bill and prepare for the hearings adequately.
This is likely to have had an adverse
impact on the quality of
submissions to the Provincial Legislatures.
[78]
I take the view that in the Eastern Cape the notice did not
meet the required standard.  The manner of advertisement
[73]
is not likely to have resulted in the notices reaching any
significant number of intended recipients.  The Northern Cape
process was a complete disaster.  A hearing was advertised
within and for one municipality.
[74]
This municipality, Siyancuma, in the Douglas area is in the eastern
part of the Northern Cape.  The farthest areas from
this
municipality in this very vast expanse of land are no less than 900
kilometres away.  The reality is not only that people
from these
areas were not given notice at all, it is also that even if they had
somehow become aware of the Siyancuma hearing,
many would most likely
have not been able to attend it.
[79]
What of the quality of the public hearings themselves?
The applicants raise a number of complaints about this.  First,

they aver that during the public hearings in several provinces,
neither the Bill nor summaries of it were provided in translated

versions.  They also say that more than one Bill was dealt with
during the public hearings, the substance of the complaint
being that
as a result, little time was dedicated to the Bill.  Some of the
complaints appear to have merit.  In certain
instances some of
Parliament’s denials seem to be bald.  Based on the
ultimate conclusion I reach, I do not find it
necessary to determine
the complaints referred to in this paragraph one way or the other.
[80]
It passes more than strange that only the KwaZulu-Natal and
Western Cape Provincial Legislatures voiced concerns about the
timeline
set by the NCOP.  I would be surprised if the other
seven Provincial Legislatures did not realise that the timeline was
not
suited for purpose.  And yet all seven accepted it without
demur.  Provincial Legislatures are not appendages of
the
NCOP.  They are constitutionally created entities with their own
separate existence and powers.  Although –
as was held in
Doctors for Life
– the NCOP may facilitate the public
participation process through them,
[75]
this in no way subordinates them to the authority of the NCOP.
They do not exist to be at the beck and call of the NCOP.
They
too have a duty to play their part properly in affording the public
an opportunity to participate in the legislative process.
In
this context, they perform their task as an important cog in the NCOP
public participation process; but they do not lose
their separate
identity.  If a timeline received from the NCOP makes it
impossible for them to perform this function well,
nothing precludes
them from telling the NCOP as much.  This would help cause the
NCOP to apply its collective mind properly
to the question of the
timeline, and – if need be – extend it beyond that
envisaged in rule 240(3) of its Rules.
Accepting the timeline
as they did, the seven Provincial Legislatures acted unreasonably.
[81]
Where the NCOP has decided that public hearings should take
place at the Provincial Legislatures, in truth these hearings are
part
of the NCOP process.
[76]
This is so notwithstanding the fact that Provincial Legislatures have
their own distinct obligation to facilitate public
participation and
are separate from and not mere appendages of the NCOP.  Thus –
in this context – any shortcomings
in the processes of the
Provincial Legislatures fall to be imputed to the NCOP.
[77]
Conclusion
[82]
For all the reasons I have given, the NCOP public
participation process was unreasonable and thus constitutionally
invalid.
Failure by one of the Houses of Parliament to comply
with a constitutional obligation amounts to failure by Parliament.
The
deficient conduct of the NCOP in facilitating public
participation in passing the Bill taints the entire legislative
process and
is a lapse by Parliament as a whole.  This is of
particular significance where – as here – there was a
heightened
need for the involvement of the NCOP.
[78]
[83]
This conclusion makes it unnecessary to consider the
alternative prayer for a declaration of invalidity of section 6(1)(g)
of the
amended Restitution Act in respect of which the applicants are
seeking direct access.
Remedy
[84]
Section 172(1)(a) of the Constitution enjoins this Court to
declare that the conduct of the NCOP and Provincial Legislatures is
inconsistent with the Constitution and therefore invalid.
[85]
The issue here, as in
Doctors for Life
, is that the
Amendment Act has come into operation.
[79]
Members of the public have already taken steps in terms of it.
As at the time the applicants deposed to their affidavits,
the number
of new applications that had been filed since the re opening of
the claims period ranged between 75 000 and
80 000.
[80]
That being the case, an order of invalidity that has retrospective
effect will be disruptive and prejudicial to those who
have filed new
claims.  And it should be borne in mind that when these
claimants lodged the new claims, they did so in good
faith believing
that the Amendment Act was valid.  That is not all: crucially,
the invalidity of the Amendment Act is not
as a result of any
inherent turpitude in its character.  Rather, the Act sought to
vindicate the very important constitutional
right guaranteed in
section 25(7) of the Constitution.
[86]
In the circumstances, it seems unjust to invalidate the claims
that have been lodged already.  Section 172(1)(b)(i) of the
Constitution gives this Court a discretion to make a just and
equitable order, including an order limiting the retrospective effect

of the declaration of invalidity.  I consider it to be just and
equitable that the order of invalidity should take effect
from the
date of judgment.  That will leave new applications already
lodged when judgment is handed down intact.  If
the Court were
to declare the Amendment Act invalid without limiting the
retrospective effect of the declaration, the lodged new
applications
would cease to exist.  The new applicants’ right to
restitution would be extinguished with the Amendment
Act because the
right to restitution in section 25(7) only exists “to the
extent provided by an Act of Parliament”.
[87]
The applicants are asking for a suspension of the declaration
of invalidity for 18 months, with accompanying prayers for: a
mandamus
that the Commissioner
[81]
continues to settle or refer to the Land Claims Court all land
restitution claims filed by 31 December 1998,
[82]
notwithstanding that a claim has been lodged under the amended
Restitution Act in respect of the same land;
[83]
the grant of permission to the Commissioner to continue accepting new
applications under the amended Restitution Act; and
an interdict
that claims lodged under the amended Restitution Act not be
investigated or processed in any manner.
[88]
I am loath grant the suspension prayed for.  That is so
because it will have the effect of heaping more new applications on

the Commissioner when there are difficulties regarding how to handle
those that have been lodged already.
[84]
The prospective declaration of invalidity I propose means no new
applications will continue being filed after judgment, which
would
have been the case if we were to suspend the declaration of
invalidity.  In a manner of speaking, all affected parties
get
something.  First, no further new applications can be lodged,
thus diminishing the number of claims filed under the impugned
Act.
This ameliorates the situation that troubles the applicants.
Second, new applications that have already been lodged
are not
invalidated.
[89]
In the face of the prospective order of invalidity, a question
arises as to when and how the preserved new claims that compete with

old claims will be considered.
[85]
The effect of the prospective nature of the declaration of
invalidity is to keep alive the contentious section 6(1)(g) of
the
Restitution Act
[86]
insofar as the disposal of the old and preserved new claims is
concerned.  In terms of this section the Commission must “ensure

that priority is given” to old claims.  This raises all
the problems that the applicants are complaining about and brings

about uncertainty that may be prejudicial to claimants whose claims
were lodged by 31 December 1998.  Because the Amendment
Act has
been declared invalid in its entirety, I do not find it necessary to
grapple with what exactly section 6(1)(g) means merely
for purposes
of how it should apply to old and preserved new claims.  It
seems to me that a just and equitable remedy is to
interdict the
settlement, and referral to the Land Claims Court, of all new claims,
whether competing with the old or not.
Our wide remedial power
under section 172(1)(b) of the Constitution permits us to do so.
Even though the new claims have
been kept alive, the reality is that
the Restitution Act under which they were lodged has been found to be
invalid.  The interdict
is consonant with this reality.  In
the face of the declaration of invalidity, there cannot be much cause
for complaint for
keeping the new applications in abeyance.
Also, the question how new claims should be dealt with whilst there
are outstanding
old claims is fraught with imponderables.  It is
best left to the Legislature to resolve.
[90]
It is not inconceivable that – because of a shift in
government policy or any other reason – Parliament may decide
not
to re enact an amending Act, or only do so after many
years.  For that reason, it becomes necessary to make provision

for what should become of the interdict against the processing,
referral to Court or finalisation of new claims by the Commission.

It seems fitting that if, when a period of 24 months elapses,
Parliament shall not have passed the envisaged amending legislation,

the Chief Land Claims Commissioner must be directed to approach us
for appropriate relief on the settlement, and referral to the
Land
Claims Court of outstanding new claims.  Other parties to this
application or any person with a direct and substantial
interest in
its outcome are at liberty to seek that same relief.
Costs
[91]
There is no reason why costs should not follow the result.
I take the view that, although effectively Parliament as a whole
has
failed to fulfil a constitutional obligation, only the NCOP must pay
costs.  Two issues remain.  First, there is
the question
whether it must be the NCOP only that is saddled with costs or
whether the other respondents who also opposed must
pay.
Second, the applicants asked for costs of three counsel.  Must
we accede to that?  Starting with the first:
although the
Provincial Legislatures also failed to fulfil their constitutional
obligations; although they and the President, Minister
and
Commissioner opposed the application; and although there might well
have been a basis for mulcting the Provincial Legislatures,
the
President, Minister and Commissioner for costs, the primary cause of
what the applicants are complaining about was the truncated
process
imposed by the NCOP.  In the exercise of discretion, I think it
proper to award costs only against the NCOP as represented
before us
by the Chairperson of the NCOP.
[92]
The papers are voluminous.
[87]
But I do not consider this matter to be of such magnitude –
both in terms of volume and complexity – as to warrant
the
award of costs of three counsel.  Costs of two counsel will be
awarded.
Order
[93]
The following order is made:
1. It is declared that Parliament failed to satisfy its obligation to
facilitate public involvement in accordance with section 72(1)(a)

of the Constitution.
2. The Restitution of Land Rights Amendment Act 15 of 2014 is
declared invalid.
3. The declaration of invalidity in paragraph 2 takes effect from the
date of this judgment.
4. Pending the re-enactment by Parliament of an Act re-opening the
period of lodgement of land claims envisaged in section 25(7)
of the
Constitution, the Commission on Restitution of Land Rights,
represented in these proceedings by the Chief Land Claims
Commissioner
(Commission), is interdicted from processing in any
manner whatsoever land claims lodged from 1 July 2014.
5. The interdict in paragraph 4 does not apply to the receipt and
acknowledgement of receipt of land claims in terms of
section 6(1)(a)
of the
Restitution of Land Rights Act 22 of 1994
.
6. Should the processing, including referral to the Land Claims
Court, of all land claims lodged by 31 December 1998 be finalised

before the re enactment of the Act referred to in paragraph 4
above, the Commission may process land claims lodged from 1
July
2014.
7. In the event that Parliament does not re-enact the Act envisaged
in paragraph 4 within 24 months from the date of this order,
the
Chief Land Claims Commissioner must, and any other party to this
application or person with a direct and substantial interest
in this
order may, apply to this Court within two months after that period
has elapsed for an appropriate order on the processing
of land claims
lodged from 1 July 2014.
8. The National Council of Provinces must pay the applicants’
costs, including costs of two counsel.
For the Applicants:
G Budlender SC, A Dodson SC, M Bishop, S Magardie and L Siyo
instructed by the Legal Resources Centre and
Webber Wentzel
For the First to
Tenth Respondents: D Potgieter SC, I Semenya SC, N Mayosi and N
Mbangeni instructed by the State Attorney
For the Twelfth and
Fourteenth Respondents: J Gauntlett SC and F Pelser instructed by the
State Attorney
For the Thirteenth
Respondent: M Chaskalson SC and M Majozi instructed by the State
Attorney
For the Fifteenth to
Eighteenth Respondents: C R Jansen SC and V Mtsweni instructed by
Lawyers for Human Rights
[1]
22 of 1994.
[2]
Section 2(1)(e) of the Restitution Act previously provided that a
claim for restitution had to be lodged not later than 31 December

1998.
[3]
15 of 2014.
[4]
Even though it is alleged that the failure was by the NCOP, the
complaint is directed at Parliament of which the NCOP is a

constituent part.
[5]
Section 72(1)(a) of the Constitution requires the NCOP to
“facilitate public involvement in the legislative and other
processes of the Council and its committees”.  Section
118(1)(a) imposes a corresponding obligation upon the Provincial

Legislatures.
[6]
The applicants contend that section 6(1)(g) is impermissibly vague
as: (i) the words “ensure priority is given” are
capable
of multiple interpretations and as the term is not defined it will
be up to Executive and administrative officials to
give it meaning;
(ii) this leads to a likelihood of conflicting interpretations by
different officials at different times with
regard to different
claims; and (iii) this is itself problematic as the provision has
the potential to affect various rights
in the Constitution including
that contained in section 25(7), and it is a principle of law that
legislation should give proper
guidance to administrators when
exercising a discretion if fundamental rights may be limited.
They also allege that various
organs of State have adopted different
interpretations of the provision already, none of which is outright
correct, as they are
all plausible.  Thus, the applicants
argue, the provision is in conflict with the doctrine against
vagueness of laws which
“requires that laws must be written in
a clear and accessible manner” (see
Affordable Medicines
Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at para 108).
According to the
applicants, the following are plausible interpretations of the words
“ensure that priority is given”:
(a) old claims have
substantive priority over new claims competing for restoration of
the same land; (b) land already restored
to an old claimant
cannot be expropriated and restored to a new claimant; (c) all
old claims must be finalised before new
claims can be processed; (d)
old and new claims competing for the same land must be processed
simultaneously, but non-competing
new claims must only be dealt with
after all old claims are finalised; or (e) a competing new claimant
will only be treated as
an interested party in respect of a
corresponding existing claim.
[7]
First respondent.
[8]
Second respondent.
[9]
Third to eleventh respondents.
[10]
Twelfth respondent.
[11]
Thirteenth respondent.
[12]
Fourteenth respondent.
[13]
Fifteenth to eighteenth respondents.
[14]
Section 167(4) provides:
“Only the Constitutional Court may—
(a) decide disputes between organs of state in the national or
provincial sphere concerning the constitutional status, powers
or
functions of any of those organs of state;
(b) decide on the constitutionality of any parliamentary or
provincial Bill, but may do so only in the circumstances anticipated

in section 79 or 121;
(c) decide applications envisaged in section 80 or 122;
(d) decide on the constitutionality of any amendment to the
Constitution;
(e) decide that Parliament or the President has failed to fulfil a
constitutional obligation; or
(f) certify a provincial constitution in terms of section 144.”
[15]
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
[1998] ZACC 21
;
1999 (2)
SA 14
(CC);
1999 (2) BCLR 175
(CC) (
SARFU I
) at para 25;
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) at para 12;
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)
(
Doctors for Life
) at para 22;
Von Abo v President of
the Republic of South Africa
[2009] ZACC 15
;
2009 (5) SA 345
(CC);
2009 (10) BCLR 1052
(CC) at para 37;
Women’s Legal
Centre Trust v President of the Republic of South Africa and Others
[2009] ZACC 20
;
2009 (6) SA 94
(CC) (
Women’s Legal Centre
)
at paras 23-5;
My Vote Counts NPC v Speaker of the National
Assembly and Others
[2015] ZACC 31
;
2016 (1) SA 132
(CC);
2015
(12) BCLR 1407
(CC) (
My Vote Counts
) at paras 23-4 and 131-5;
and
Economic Freedom Fighters v Speaker of the National Assembly
and Others; Democratic Alliance v Speaker of the National Assembly

and Others
[2016] ZACC 11
;
2016 (3) SA 580
(CC);
2016 (5) BCLR
618
(CC) (
EFF
) at paras 19-23.  In
Doctors for Life
this is what Ngcobo J held at para 23:
“The purpose of giving this Court exclusive jurisdiction to
decide issues that have important political consequences is
‘to
preserve the comity between the judicial branch of government’
and the other branches of government ‘by
ensuring that only
the highest court in constitutional matters intrudes into the
domain’ of the other branches of government.”
[16]
See
SARFU I
above n 15 at para 25;
Doctors for Life
above n 15 at para 20;
Von Abo
above n 15 at para 34;
Women’s
Legal Centre
above n 15 at para 20;
My Vote Counts
above
n 15 at para 23; and
EFF
above n 15 at para 17.  In
SARFU I
at para 25 Chaskalson P held:
“If [section 167(4)] were to be construed as applying to
all questions concerning the constitutional validity of conduct
of
the President it would be in conflict with section 172(2)(a)
which empowers the High Court and the Supreme Court of Appeal
to
make orders concerning the constitutional validity of any conduct of
the President.”
Section 172(2)(a)
provides:
“The Supreme Court of Appeal, the High Court of South Africa
or a court of similar status may make an order concerning
the
constitutional validity of an Act of Parliament, a provincial Act or
any conduct of the President, but an order of constitutional

invalidity has no force unless it is confirmed by the Constitutional
Court.”
[17]
Doctors for Life
above n 15 at para 27.
[18]
The National Assembly has its own obligation to facilitate public
involvement in its legislative process under section 59(1)(a).
[19]
Doctors for Life
above n 15 at para 29.
[20]
Ngcobo J in
Doctors for Life
above n 15 at para 29 observes
that it is important that the obligation to facilitate public
involvement is thrust upon both
Houses of Parliament as they
represent interrelated but distinct interests in the national
legislative sphere.  The importance
of this observation to this
case will be discussed later.
[21]
Id.
[22]
Section 25(7) provides:
“A person or community dispossessed of property after 19 June
1913 as a result of past racially discriminatory laws or
practices
is entitled, to the extent provided by an Act of Parliament, either
to restitution of that property or to equitable
redress.”
[23]
27 of 1913.
[24]
The first applicant asserts that the Portfolio Committee’s
report inflated the number of attendees.  Nothing turns
on this
because – as will appear later – the applicants do not
challenge the National Assembly’s public consultation
process.
[25]
That is, claims lodged by the 31 December 1998 deadline.
[26]
These include that: the Portfolio Committee was not provided with
copies of the impact assessment until February 2014; the version
of
the impact assessment received by the Portfolio Committee omitted
certain portions which contained suggested amendments to
the Bill,
which formed part of a different and later version; as a consequence
the Portfolio Committee was deprived of an opportunity
to consider
the proposed amendments even though the later version of the impact
assessment was in existence when the Portfolio
Committee finally
considered the Bill; there were certain defects in the public
hearings themselves; and the Portfolio Committee’s
own report
on its public consultation process was presented to the Portfolio
Committee, and made available to the rest of the
membership of the
committee, only after the Portfolio Committee had adopted the Bill.
[27]
In terms of the Mandating Procedures of Provinces Act 52 of 2008
(Mandates Act), a negotiating mandate is—
“the conferral of authority by a committee designated by a
provincial legislature on its provincial delegation to the NCOP
of
parameters for negotiation when the relevant NCOP select committee
considers a Bill after tabling and before consideration
of final
mandates, and may include proposed amendments to the Bill.”
[28]
In terms of the Mandates Act, a final mandate is—
“the conferral of authority by a provincial legislature on its
provincial delegation to the NCOP to cast a vote when the
relevant
NCOP select committee considers a Bill or prior to voting thereon in
[an ordinary sitting of the NCOP].”
[29]
5-7 March 2014.
[30]
10 March 2014.
[31]
18 March 2014.
[32]
These were the National Environmental Management Laws Third
Amendment Bill and the National Environmental Management: Waste
Amendment Bill.
[33]
Because this was a general election year, Parliament would have
dissolved prior to the commencement of the elections.  Upon

dissolution, Parliament’s term would have come to an end.
Following the elections, a newly constituted Parliament
would be
sworn in and a new parliamentary term would commence.
[34]
These were the National Environmental Management Laws Third
Amendment Bill, National Environmental Management: Waste Amendment

Bill, National Credit Amendment Bill and Infrastructure Development
Bill.
[35]
The other two were the National Environmental Management Amendment
Bill and the National Environmental: Waste Management Amendment

Bill.
[36]
The applicants challenge this and aver that the fifth applicant had
to provide transportation to various communities –

Mpeni-Nghotsa, Mahonisi, Shitaci, Mahatlani, and Duvula –
although the Legislature did reimburse it afterwards.
[37]
See [19].
[38]
These were Ms Ponco and Ms Qikani in the Eastern Cape and Mr Moiloa
in the North West.  However, Mr Moiloa did not
attend the
meeting on 18 March 2014 at the NCOP.
[39]
See the definition of “negotiating mandate” in the
Mandates Act in n 27 above.
[40]
As stated in [32] above, the second applicant was unable to attend
either public hearing in KwaZulu-Natal.  A representative
from
the Legal Resources Centre attended the Pietermaritzburg hearing on
the second applicant’s behalf.
[41]
1 July 2014 is the date of publication.  In terms of section 81
of the Constitution—
“[a] Bill assented to and signed by the President . . . takes
effect when published or on a date determined in terms of
the Act.”
In this instance
the Amendment Act did not indicate the date upon which it was to
come into effect.  Therefore its date of
publication was the
day it became law.
[42]
Doctors for Life
above n 15 at para 115;
Matatiele
Municipality and Others v President of the Republic of South Africa
and Others (2)
[2006] ZACC 12
[2006] ZACC 12
; ;
2007 (6) SA 477
(CC);
2007 (1) BCLR 47
(CC) (
Matatiele
) at paras 59-60.
[43]
Matatiele
above n 42 at para 56.
[44]
Doctors for Life
above n 15 at para 234.
[45]
Id.
[46]
Id at para 145.
[47]
Minister of Health and Another v New Clicks South Africa (Pty)
Ltd and Others
[2005] ZACC 14
;
2006 (2) SA 311
(CC);
2006 (8)
BCLR 872
(CC) (
New Clicks
) at para 630.  This extract
was quoted with approval by Ngcobo J in
Doctors For Life
above n 15 at para 125.
[48]
New Clicks
above n 47 at para 630;
Doctors for Life
above n 15 at paras 120, 125-6 and 146.
[49]
Doctors for Life
above n 15 at para 127.  There
reference was made to this Court’s decision in
Khosa and
Others v Minister of Social Development and Others, Mahlaule and
Another v Minister of Social Development
[2004] ZACC 11
;
2004
(6) SA 505
(CC);
2004 (6) BCLR 569
(CC) where Mokgoro J held at para
49:
“In dealing with the issue of reasonableness, context is all
important.”
[50]
Doctors for Life
above n 15 at para 145.
[51]
Section 70(1) of the Constitution provides:
“The National Council of Provinces may—
(a) determine and control its internal arrangements, proceedings and
procedures; and
(b) make rules and orders concerning its business, with due regard
to representative and
participatory democracy
,
accountability, transparency and
public involvement
.”
(Emphasis added.)
[52]
Doctors for Life
above n 15 at para 126.
[53]
Id.
[54]
Id at para 146.
[55]
Id.
[56]
Section 25(7).
[57]
Section 14 of the Constitution stipulates:
“Everyone has the right to privacy, which includes the right
not to have—
(a) their person or home searched;
(b) their property searched.”
[58]
Section 26 of the Constitution states:
“(1) Everyone has the right to have access to adequate
housing.
(2) The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive

realisation of this right.
(3) No one may be evicted from their home, or have their home
demolished, without an order of court made after considering all
the
relevant circumstances.  No legislation may permit arbitrary
evictions.”
Section 28(1)(c) of
the Constitution provides further that in addition to the general
section 26(1) right, “[e]very child
has the right to . . .
shelter”.
[59]
Section 24 of the Constitution provides:
“Everyone has the right—
(a) to an environment that is not harmful to their health or
wellbeing.”
[60]
Rule 238(1) of the NCOP’s Rules provides:
“All Bills introduced in the [NCOP] and which have not yet
been passed by the [NCOP] in terms of Rule 197, when it rises
on the
last sitting day in any annual session, lapse, but may be reinstated
on the Order Paper during the next ensuing session
by resolution of
the [NCOP].”
[61]
Of the five-year term democratic Parliaments, the first was elected
in 1994 and the fourth in 2009.
[62]
Something I do not have to pronounce on.
[63]
Doctors for Life
above n 15 at para 194.
[64]
Above at [48] to [55].
[65]
These include: the failure to actually attend provincial hearings by
a majority of the NCOP Select Committee Members; the failure
by some
to attach reports to the mandates of some provinces, and the failure
by others to even produce reports of the hearings
at all; the ruling
that the reports need not be circulated; and the failure to properly
consider – and in some cases the
non-consideration of –
the substantive amendments which arose from the hearings.
[66]
I should not be understood to be saying that every suggestion made
by the public must be adopted.  See
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 968
(CC) where Van der Westhuizen J stated the following at para 50:
“[B]eing involved does not mean that one’s views must
necessarily prevail.  There is no authority for the proposition

that the views expressed by the public are binding on the
legislature if they are in direct conflict with the policies of
Government.
Government certainly can be expected to be
responsive to the needs and wishes of minorities or interest groups,
but our constitutional
system of government would not be able to
function if the legislature
were
bound by these views.”
[67]
Moutse Demarcation Forum and Others v President of the Republic
of South Africa and Others
[2011] ZACC 27
;
2011 (11) BCLR 1158
(CC) (
Moutse)
at para 62.
[68]
Doctors for Life
above n 15 at paras 159-164.
[69]
See [56].
[70]
Doctors for Life
above n 15 at para 129.
[71]
Id at para 171.
[72]
See [37].  See also [20] to [47] for deficiencies in notice
periods of the hearings conducted by the Provincial Legislatures.
[73]
Posters were displayed on the notice boards in the towns in the
selected districts.
[74]
See [43].
[75]
Doctors for Life
above n 15 at paras 159-164.
[76]
Id at paras 159-164.
[77]
Compare id at para 165.
[78]
Section 76 of the Constitution, which sets out the procedures that
must be followed when considering Bills that affect the provinces,

gives more weight to the position of the NCOP than does the
constitutional procedure for Bills that do not affect the
provinces.
This Bill was designated as falling under this
category by the Joint Tagging Mechanism of Parliament when it
was received
from the Department.  Section 76(3) of the
Constitution requires any bill which falls within a functional area
of Schedule
4 to the Constitution to be dealt with in terms of the
section 76 procedure.  In this instance the Bill indeed fell
under
the functional area of “urban and rural development”
listed in Schedule 4.
[79]
Doctors for Life
above n 15 at para 214.
[80]
This means that there are already more claims filed under the
re-opened period than there were claims filed under the Restitution

Act.  According to the Commissioner, by 31 December 1998
approximately 80 000 applications had been filed.
[81]
In context, in these proceedings the Commissioner appears to have
been cited as representing the Commission.  None of the
parties
has taken issue with this mode of citation.  For purposes of
the resolution of this matter, it will be assumed that
the citation
is proper.
[82]
In relation to settling a claim for restitution, section 42D(1) of
the Restitution Act contemplates a role for the Minister.
It
provides:
“If the Minister is satisfied that a claimant is entitled to
restitution of a right in land in terms of section 2, and
that the
claim for such restitution was lodged not later than 30 June
2019, he or she may enter into an agreement with the
parties who are
interested in the claim providing for one or more of the following:
(a) The award to the claimant of land, a portion of land or any
other right in land: Provided that the claimant shall not be
awarded
land, a portion of land or a right in land dispossessed from another
claimant or the latter’s ascendant,
. . .
(b) the payment of compensation to such claimant;
(c) both an award and payment of compensation to such claimant;
(d) . . .
(e) the manner in which the rights awarded are to be held or the
compensation is to be paid or held; or
(f) such other terms and conditions as the Minister considers
appropriate.”
A referral to the
Land Claims Court is dealt with under section 14 of the Act.
Subsection (1) provides:
“If upon completion of an investigation by the Commission in
respect of specific claim—
(a) the parties to any dispute arising from the claim agree in
writing that it is not possible to settle the claim by mediation
and
negotiation;
(b) the regional land claims commissioner certifies that it is not
feasible to resolve any dispute arising from such claim by
mediation
and negotiation; or
(c) . . .
(d) the regional land claims commissioner is of the opinion that the
claim is ready for hearing by the Court,
the regional land claims commissioner having jurisdiction shall
certify accordingly and refer the matter to the Court.”
[83]
Section 13(1)(a) of the Restitution Act envisages the simultaneous
consideration of competing claims, in that it provides for
mediation
“where there are two or more competing claims in respect of
the same land”.  Similarly, section 13(1)(b)
envisages
mediation for community claims where “there are competing
groups within the claimant community”.
[84]
See [4].
[85]
See the interdict asked for by the applicants referred to in [87].
[86]
For example, see the applicants’ concerns regarding section
6(1)(g) in [4].
[87]
Amounting to well over 3 000 pages.