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In the Constitutional Court of South Africa

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In the Constitutional Court of South Africa IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CC CASE NO: NGHC CASE NO: 11678/2006 In the matter between: STEPHEN SEGOPOTSO TONGOANE First Applicant PHAHLELA JOAS MUGAKULA Second Applicant MORGAN MOGOELELWA Third Applicant RECKSON NTIMANE Fourth Applicant and THE NATIONAL MINISTER FOR AGRICULTURE AND LAND AFFAIRS First Respondent THE NATIONAL MINISTER FOR PROVINCIAL & LOCAL GOVERNMENTSecond Respondent THE PREMIER OF EASTERN CAPE Third Respondent THE PREMIER OF FREE STATE Fourth Respondent THE PREMIER OF GAUTENG Fifth Respondent THE PREMIER OF KWAZULU-NATAL Sixth Respondent THE PREMIER OF MPUMALANGA Seventh Respondent THE PREMIER OF NORTHERN CAPE Eighth Respondent THE PREMIER OF LIMPOPO Ninth Respondent THE PREMIER OF NORTH WEST Tenth Respondent THE PREMIER OF WESTERN CAPE Eleventh Respondent THE SPEAKER OF THE NATIONAL ASSEMBLY Twelfth Respondent THE CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES Thirteenth Respondent 2 THE NATIONAL HOUSE OF TRADITIONAL Fourteenth Respondent LEADERS _______________________________________________________________ AFFIDAVIT _______________________________________________________________ I, the undersigned : TEMBEKA NGCUKAITOBI state as follows under oath : 1 I am an attorney and the director of the Constitutional Litigation Unit of the Legal Resources Centre. The Legal Resources Centre has, throughout, acted as attorneys for the first, third and fourth applicants. I am authorised to make these applications on behalf of the first, third and fourth applicants. 2 I have personal knowledge of the facts set out in this affidavit, unless I state or imply otherwise, and they are true and correct. THE BACKGROUND TO THESE APPLICATIONS 3 Section 25(6) of the Constitution provides as follows : “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.” 3 4 Section 25(9) of the Constitution provides as follows : “Parliament must enact the legislation referred to in subsection (6)”. 5 The Communal Land Rights Act No. 11 of 2004 (“CLARA”) was assented to on 14 July 2004. Section 47 provides that it comes into operation on a date to be determined by the President by proclamation in the Gazette. The President has not yet proclaimed a date for CLARA to come into operation. 6 As appears from its preamble, CLARA is the legislation which is intended to meet Parliament’s obligation to enact legislation to provide legal security of tenure or comparable redress in accordance with section 25(6) of the Constitution. The preamble states that the purpose of the Act is “to provide for legal security of tenure by transferring communal land… to communities, or by awarding comparable redress”. 7 The applicants represent four communities who exercise rights in rural land. Each community has a unique history. Each enjoys a set of rights in the rural land concerned which is particular to that community. Each community and its rights in land are directly impacted upon by the provisions of CLARA. 8 The Traditional Leadership and Governance Framework Act No. 41 of 2003 (“the TLGFA”) regulates the various institutions of traditional leadership in South Africa. Central to the TLGFA is the concept of a traditional council. The traditional council is a successor to the old tribal 4 authorities established under the Bantu Local Authorities Act No. 68 of 1951. In this regard section 28(4) of the TLGFA provides as follows : “A tribal authority that, immediately before the commencement of this Act, had been established and was still recognised as such, is deemed to be a traditional council contemplated in section 3 and must perform the functions referred to in section 4…” 9 The TLGFA can be considered sister legislation of CLARA. This is so because traditional councils (as now defined in and governed by the TLGFA) are given broad powers over rural communities under CLARA. In particular, in terms of section 21(2) of CLARA, a traditional council has the power to replace the elected land administration committee of a community. 10 These powers are taken further by sections 5 and 20 of the TLGFA which make provision for the conferral upon traditional councils of executive governmental powers affecting land administration. 11 A feature common to each of the communities which the applicants represent, is that they have historically suffered and will under CLARA continue to suffer, serious intrusions upon and abuse of their land rights at the hands of traditional councils and their leaders. 12 Against this background, the applicants applied to the North Gauteng High court for an order in the following terms : “1. Declaring that the Communal Land Rights Act No. 11 of 2004 is unconstitutional and invalid; 5 2. Alternatively to paragraph 1 and in any event, declaring the following provisions of the Communal Land Rights Act No. 11 of 2004 to be unconstitutional and invalid; 2.1 Section 2(1)(a) insofar as it concerns land already owned or securely held by a community; 2.2 Section 2(1)(c) and (d); 2.3 Section 2(2); 2.4 Section 3; 2.5 Section 4(2); 2.6 Sections 5 – 6; 2.7 Section 9; 2.8 Section 18; 2.9 Section 19(2); 2.10 Sections 20 – 24; 2.11 Section 39; 3. Declaring the following provisions of the Traditional Leadership and Governance Framework Act No. 41 of 2003 to be unconstitutional and invalid; 3.1 Section 5; 3.2 Section 20; 3.3 Section 28(1) – (4). 4. Alternatively to paragraph 3.2, declaring that the word ‘role’ in section 20 is to be read wherever it appears as ‘customary, non-governmental role’. 5. Granting such further or alternative relief as this Honourable Court may deem fit. 6. Ordering the first respondent and any other party opposing this application to pay the costs of the application jointly and severally.” 13 The application was opposed by the respondents. The 14th respondent, the National House of Traditional Leaders, applied to intervene in the proceedings and was joined as 14th respondent with the agreement of the applicants. 6 14 At the hearing of the matter, the applicants did not persist in the attack on section 28(1) – (4) of the TLGFA. 15 The grounds of constitutional attack were as follows. 16 It was submitted that CLARA, when in bill form, was passed by Parliament as an ordinary bill not affecting the provinces as contemplated in section 75, when it ought to have been passed as an ordinary bill affecting the provinces as contemplated in section 76 of the Constitution. It was pointed out that CLARA falls within the functional areas of customary law and traditional leadership, being matters listed in schedule 4 to the Constitution. In these circumstances, section 76(3) of the Constitution determined that the Bill should have been passed in accordance with section 76(1) of the Constitution. It was common cause that this was not done. On this basis it was contended that CLARA in its entirety was invalid. This point is referred to below as the “classification challenge”. 17 In the alternative to the challenge to the constitutionality of the whole of CLARA, the applicants challenged the constitutionality of particular sections of CLARA on the basis that they infringed various fundamental rights contained in the Bill of Rights. This was the main focus of the proceedings. It was based on extensive factual and expert evidence from which it could be anticipated what the impact of CLARA would be on rural communities. This challenge is referred to below as “the substantive challenge”. The substantive challenge included, inter alia, the following points: 7 18 It was submitted that if regard was had to the consequences of CLARA for the applicants at both community and individual level, sections 5, 6, 9, 18, 21(2) – (5) and the words “subject to section 21(2)” in section 22(2) of CLARA had the effect of undermining rather than securing security of tenure. Section 25(6) of the Constitution, read with section 25(9), was required to advance, not impede, security of tenure of persons and communities whose tenure of land was insecure. In those circumstances, the impugned sections of CLARA did not comply with the requirements of section 25(6) of the Constitution. 19 It was pointed out further that the regime which CLARA creates for land which is owned by a community is not made applicable to land owned by similarly-situated white persons. In those circumstances, sections 2, 5, 6, 18 and 39 were challenged on the basis that they discriminated unfairly on the grounds of race. 20 Sections 2, 5, 6, 18 and 39 of CLARA have the effect that the regime established by CLARA is made applicable to private land owned by communities who obtained title during the colonial or apartheid areas through a trust arrangement, or who obtained title as a result of post-1994 land restitution and reform programmes. CLARA has the effect of depriving those communities’ land holding entities of their ownership of the land and transferring them to a different entity, being a community as contemplated in CLARA. It was accordingly submitted that the impugned provisions of CLARA were unconstitutional because they gave rise to an arbitrary deprivation of property. 8 21 It was further submitted that, having regard to the inevitably patriarchal nature of traditional councils, their power to replace the land administration committee referred to above would have the investible consequence that women were discriminated against. On this and other related grounds it was argued that sections 21(2) - (5) and the words “subject to section 21(2)” in section 22(2) of CLARA were constitutionally invalid on the grounds that they discriminated unfairly on the grounds of gender.
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