IN THE CONSTITUTIONAL COURT OF

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 OF EASTERN CAPE Third Respondent

THE PREMIER OF FREE STATE Fourth Respondent

THE Fifth Respondent

THE PREMIER OF KWAZULU-NATAL Sixth Respondent

THE PREMIER OF Seventh Respondent

THE PREMIER OF NORTHERN CAPE Eighth Respondent

THE Ninth Respondent

THE 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.

22 It was submitted that section 18 of CLARA conferred upon the Minister of

Land Affairs a broad and unstructured discretion to make determinations

laying down the future land rights regimes for communities. It was

submitted that section 18 of CLARA was in conflict with section 33 of the

Constitution and the rule of law.

23 Finally, it was submitted that the provisions of sections 9, 19(2)(a), 21(2) –

(5) and 24 of CLARA and sections 5 and 20 of the Traditional Leadership

and Governance Framework Act No. 41 of 2003 (“the TLGFA”) were

constitutionally invalid by reason of –

(a) the fact that they created an unconstitutional fourth

sphere of government (having regard to the broad

executive powers conferred on land administration

committees and traditional councils); and

(b) their non-compliance with sections 211 and 212 (1) of

the Constitution (section 212(1) limits the role which

legislation may confer on traditional leadership outside 9

of the ambit of section 211 to that of an institution “at

local level on matters affecting local communities”).

The challenge to the constitutionality of sections 5 and 20

of the TLGFA is referred to below as “the TLGFA

challenge”.

24 A separate point was raised on the papers, that Parliament failed to

comply with its constitutional obligation to facilitate public involvement in

the legislative process pertaining to CLARA, in breach of sections 59(1)(a)

and 72(1)(a) of the Constitution (“the public consultation challenge”).

However, this is a matter which lies in the exclusive jurisdiction of this

Court in terms of section 167(4)(e) of the Constitution. It was therefore not

pursued in the North Gauteng High Court. The public consultation

challenge is pursued in a separate application which will be filed

simultaneously with this application.

25 The matter was heard in the North Gauteng High Court on 14, 15 and 16

October 2008. Judgment was handed down on 30 October 2009. A copy

of the judgment is attached marked “A”.

26 In its judgment, the court –

27 dismissed the relief sought in prayer 1 of the above-quoted notice of

motion and accordingly declined to set aside CLARA as a whole; 10

28 granted the alternative relief sought in prayer 2 of the above-quoted notice

of motion and accordingly declared constitutionally invalid the specific

sections of CLARA impugned in paragraph 2 of the notice of motion;

29 dismissed the relief sought in prayers 3 and 4 of the above-quoted notice

of motion and accordingly declined to set aside sections 5 and 20 of the

TLGFA;

30 in terms of section 167(5) of the Constitution referred its order of

constitutional invalidity to this court for confirmation; and

31 ordered the respondents to pay the applicants’ costs.

32 The orders referred to in paragraphs 18.1 and 18.3 are the decisions

contemplated in rule 19(3)(a) of the rules of this court, against which

applicants apply for leave to appeal

33 In the applications to which this affidavit relates, the applicants –

34 apply for leave to appeal against the order of the High Court insofar as it

refused the relief sought in prayer 1 of the notice of motion and declined to

set aside CLARA as a whole;

35 seek the confirmation of the order of the High Court declaring

constitutionally invalid the specifically impugned sections of CLARA; and 11

36 apply for leave to appeal against the order of the High Court insofar as it

declined to hold sections 5 and 20 of the TLGFA to be constitutionally

invalid.

37 In this affidavit I focus on the grounds on which leave to appeal is sought.

These relate –

38 Firstly to the rejection by the High Court of the applicants’ challenge based

on the incorrect “tagging” of CLARA as a section 75 Bill instead of a

section 76 Bill; and

39 Secondly to the rejection by the High Court of the argument that sections 5

and 20 of the TLGFA are constitutionally invalid. In this regard, the

applicants do not persist in the argument that the provisions read with the

provisions of CLARA give rise to an unconstitutional fourth sphere of

government, but persist in the argument based on non-compliance with

sections 211 and 212(1) of the Constitution and the scheme for distribution

and allocation of power within the Constitution.

40 The matters referred to in paragraphs 21.1 and 21.2 are the constitutional

matters raised in the decision as contemplated in rule 19(3)(b).

41 The applicants’ submissions in relation to the matters in respect of which

their challenge was upheld by the High Court and in respect of which

confirmation is sought in terms of section 172(2)(d), read with rule 16(4),

will be dealt with fully when directions are received in relation to the filing 12

of the applicants’ written submissions, and in response to any appeal

which may be pursued by any of the respondents in this regard.

APPLICANTS

42 The first applicant is Stephen Segopotso Tongoane. He is one of the

leaders of the Kalkfontein B and C Community. He is also the chairperson

of the board of trustees of the Kalkfontein B and C Community Trust.

43 The second applicant is Phahlela Joas Mugakula, the chief of the

Makuleke tribe and the elected chairperson of the Executive Committee of

the Makuleke Communal Property Association. He resides at Ntlhaveni,

Malamulele District, in the Province of Limpopo.

44 The third applicant is Morgan Mogoelelwa, an adult male. He resides in a

village called Makgobistad. Makgobistad is a village situated on the

border between South Africa and Botswana within the area historically

known as the Molopo Reserve. He is a member of the Makgobistad

Community.

45 The fourth applicant is Reckson Ntimane. He is an adult male and resides

at Dixie Village on the farm Dixie 240 KU, Bushbuck Ridge, Pilgrims Rest

District, Limpopo Province. He is the chairperson of the community

development forum for the area and a member of the Dixie Community. 13

46 The particular circumstances of each community are described in the

extract from the heads of argument which is quoted directly in paragraph 2

of the judgment of the High Court.

RESPONDENTS

47 The first respondent is THE NATIONAL MINISTER FOR AGRICULTURE

AND LAND AFFAIRS, care of the State Attorney, 8th Floor 167 Andries

Street, Pretoria. The Minister is joined as the national executive authority

responsible for the administration of the Communal Land Rights Act No.

11 of 2004, which is the subject of a constitutional challenge in these

proceedings. The first respondent’s powers and duties are now exercised

by the NATIONAL MINISTER OF RURAL DEVELOPMENT AND LAND

REFORM.

48 The second respondent is THE NATIONAL MINISTER FOR PROVINCIAL

& LOCAL GOVERNMENT, care of the State Attorney, 8th Floor 167

Andries Street, Pretoria. The Minister is joined as the national cabinet

member charged with oversight of traditional leadership as a national

competence and as the national executive authority responsible for the

administration of the Traditional Leadership and Governance Framework

Act No. 41 of 2003, which is also the subject of constitutional challenge in

these proceedings. The second respondent’s powers and duties are now

exercised by the NATIONAL MINISTER OF COOPERATIVE

GOVERNANCE AND TRADITIONAL AFFAIRS. 14

49 The third respondent is THE PREMIER OF THE EASTERN CAPE, care of

the State Attorney, 8th Floor 167 Andries Street, Pretoria. The Premier is

joined as the office-bearer ultimately responsible for the concurrent

provincial competence in respect of traditional leadership (and other

relevant functional areas) and as the provincial executive authority in

terms of the Traditional Leadership and Governance Framework Act No.

41 of 2003.

50 The fourth respondent is THE PREMIER OF THE FREE STATE, care of

the State Attorney, 8th Floor 167 Andries Street, Pretoria. The Premier is

joined as the office-bearer ultimately responsible for the concurrent

provincial competence in respect of traditional leadership (and other

relevant functional areas) and as the provincial executive authority in

terms of the Traditional Leadership and Governance Framework Act No.

41 of 2003.

51 The fifth respondent is THE PREMIER OF GAUTENG, care of the State

Attorney, 8th Floor 167 Andries Street, Pretoria. The Premier is joined as

the office-bearer ultimately responsible for the concurrent provincial

competence in respect of traditional leadership (and other relevant

functional areas) and as the provincial executive authority in terms of the

Traditional Leadership and Governance Framework Act No. 41 of 2003.

52 The sixth respondent is THE PREMIER OF KWAZULU-NATAL, care of

the State Attorney, 8th Floor 167 Andries Street, Pretoria. The Premier is 15

joined as the office-bearer ultimately responsible for the concurrent

provincial competence in respect of traditional leadership (and other

relevant functional areas) and as the provincial executive authority in

terms of the Traditional Leadership and Governance Framework Act No.

41 of 2003.

53 The seventh respondent is THE , care of

the State Attorney, 8th Floor 167 Andries Street, Pretoria. The Premier is

joined as the office-bearer ultimately responsible for the concurrent

provincial competence in respect of traditional leadership (and other

relevant functional areas) and as the provincial executive authority in

terms of the Traditional Leadership and Governance Framework Act No.

41 of 2003.

54 The eighth respondent is THE PREMIER OF THE NORTHERN CAPE,

care of the State Attorney, 8th Floor 167 Andries Street, Pretoria. The

Premier is joined as the office-bearer ultimately responsible for the

concurrent provincial competence in respect of traditional leadership (and

other relevant functional areas) and as the provincial executive authority in

terms of the Traditional Leadership and Governance Framework Act No.

41 of 2003.

55 The ninth respondent is THE PREMIER OF LIMPOPO, care of the State

Attorney, 8th Floor 167 Andries Street, Pretoria. The Premier is joined as

the office-bearer ultimately responsible for the concurrent provincial 16

competence in respect of traditional leadership (and other relevant

functional areas) and as the provincial executive authority in terms of the

Traditional Leadership and Governance Framework Act No. 41 of 2003.

56 The tenth respondent is THE PREMIER OF NORTH WEST, care of the

State Attorney, 8th Floor 167 Andries Street, Pretoria. The Premier is

joined as the office-bearer ultimately responsible for the concurrent

provincial competence in respect of traditional leadership (and other

relevant functional areas) and as the provincial executive authority in

terms of the Traditional Leadership and Governance Framework Act No.

41 of 2003.

57 The eleventh respondent is THE PREMIER OF THE WESTERN CAPE,

care of the State Attorney, 8th Floor 167 Andries Street, Pretoria. The

Premier is joined as the office-bearer ultimately responsible for the

concurrent provincial competence in respect of traditional leadership (and

other relevant functional areas) and as the provincial executive authority in

terms of the Traditional Leadership and Governance Framework Act No.

41 of 2003.

58 The twelfth respondent is THE SPEAKER OF THE NATIONAL

ASSEMBLY elected in terms of section 52 of the Constitution of the

Republic of South Africa Act No. 108 of 1996 (“the Constitution”), care of

the State Attorney, Liberty Life Building, 22 Long Street, Cape Town. The

Speaker is joined as the senior parliamentary official responsible for the 17

business of the National Assembly and the passage of legislation in the

National Assembly and in her capacity as a constituent member of the

Joint Tagging Mechanism provided for in rule 151 of the Joint Rules of

Parliament.

59 The thirteenth respondent is THE CHAIRPERSON OF THE NATIONAL

COUNCIL OF PROVINCES elected in terms of section 64 of the

Constitution, care of the State Attorney, Liberty Life Building, 22 Long

Street, Cape Town. The Chairperson is joined as the senior parliamentary

official responsible for the business of the National Council of Provinces

and for the passage of legislation in the National Council of Provinces and

as a constituent member of the Joint Tagging Mechanism.

60 The fourteenth respondent is THE NATIONAL HOUSE OF TRADITIONAL

LEADERS, a National House established in terms of the National House

of Traditional Leaders Act (1997), care of the State Attorney, 8th Floor 167

Andries Street, Pretoria.

61 With reference to rule 19(3)(a) and (c), the grounds upon which the

decision of the court below is disputed and the supplementary information

and argument which the applicant considers necessary, are as set out

below. 18

RULE 19: APPLICATION FOR LEAVE TO APPEAL: THE INCORRECT

CLASSIFICATION OF CLARA BY PARLIAMENT (“THE CLASSIFICATION

CHALLENGE”)

62 The factual background to the classification of CLARA as a section 75 bill

is set out in paragraph 6 of the judgment of the High Court and is not

repeated here.

63 With reference to the letter from the Legal Resources Centre referred to in

paragraph 6.7 of the judgment, it bears mentioning that the letter

specifically pointed out to Parliament that –

“It is our view that the Parliamentary procedure will be constitutionally flawed if the Bill is dealt with as a section 75 matter.”

and ended with the following paragraph –

“Our instructions are to request you to reclassify or reintroduce the Bill to be dealt with under section 76. Our instructions are further to challenge and prosecute the constitutional validity of the Bill on procedural and other grounds should it become necessary. We sincerely hope that this will not be necessary.”

64 The letter was ignored.

65 The argument advanced by the applicants in support of the application for

leave to appeal on the classification point is summarised in the ensuing

paragraphs. 19

66 Schedule 4 to the Constitution sets out the functional areas of concurrent

national and provincial legislative competence. Schedule 5 sets out the

functional areas of exclusive provincial legislative competence. If a matter

falls outside of the areas listed in these two schedules, then it is a

functional area of exclusive national legislative competence.

67 There are two situations in which it becomes necessary to characterise

legislation with reference to the areas of competence listed in schedule 4

and schedule 5.

68 The first situation, which has arisen more commonly, is in order to

determine whether a legislature in a particular sphere of government had

the constitutionally-determined legislative competence to pass a particular

Bill.

69 Thus, by way of example, an Act passed by a provincial legislature would

only be valid if it could be characterised as dealing with one or more of the

functional areas of concurrent legislative competence listed in schedule 4

or one of the areas of exclusive provincial legislative competence listed in

schedule 5.

70 Where a law deals with more than one subject matter and one of those

subjects is not within the legislative competence of the legislature

concerned, this Court has held that the substance of the law must be

determined. If the substance of the law is a matter which is within the

areas of legislative competence of the legislature concerned, the Bill is 20

valid. This was the approach adopted in Ex Parte Speaker of the

KwaZulu-Natal Provincial Legislature : in re KwaZulu-Natal Amakhosi &

Iziphakanyiswa Amendment Bill of 1995; Ex Parte Speaker of the

KwaZulu-Natal Provincial Legislature : in re payment of salaries,

allowances and other privileges to the Ingonyama Bill of 19951 and in

Western Cape Provincial Government & Others : in re DVB Behuising

(Pty) Limited v North West Provincial Government & Another2.

71 The second situation in which the Constitution requires legislation to be

characterised is under section 76(3). The purpose there is not to

determine whether the legislation is within the legislative competence of a

particular legislature. Rather, the characterisation process there is to

determine whether the legislation affects the provinces. That is because

section 76 provides for a special procedure for the enactment by

Parliament of legislation affecting the provinces.

72 If the legislation is legislation which affects the provinces, the procedure in

either section 76(1) or 76(2) must be followed.3 Section 76(1) and (2)

afford a far greater role to the National Council of Provinces (“the NCOP”)

in the enactment of legislation and, importantly, require the NCOP to be

differently constituted when passing such legislation.

1 1996 (4) SA 653 (CC). 2 2000 (1) SA 500 (CC) at paras 37 – 39. 3 Depending on whether the Bill affecting the provinces is initially passed by the National Assembly – s76(1) – or the National Council of Provinces – s76(2). 21

73 On the other hand if the legislation does not affect the provinces, then it

may be enacted in accordance with the ordinary procedure under section

75 of the Constitution, which affords the NCOP a significantly lesser role.

This difference is reflected in the headings of the respective sections -

section 75 is headed “Ordinary Bills not affecting provinces” and section

76 is headed “Ordinary Bills affecting provinces”.

74 I elaborate below on the enhanced role of the NCOP in the case of a

section 76 Bill. Before considering that role, it is necessary to establish

what the test is which is applied by the courts in order to decide whether a

Bill is or is not one which affects the provinces. The relevant constitutional

provision is section 76(3) of the Constitution which provides as follows :

“A Bill must be dealt with in accordance with the procedure established by either subsection (1) or subsection (2) [of section 76] if it falls within a functional area listed in schedule 4 …”

75 In interpreting this provision, this Court in Ex Parte President of the

Republic of South Africa : in re Constitutionality of the Liquor Bill4 said the

following :

“This subsection [section 76(3)] requires that a bill must be dealt with under the procedure established by either section 76(1) or section 76(2), amongst others, ‘if it falls within a functional area listed in schedule 4’. It must be borne in mind, moreover, that section 76 is headed ‘ordinary bills affecting provinces’. This is, in my view, a strong textual indication that section 76(3) must be understood as requiring that any bill whose provisions in substantial measure fall within a functional

4 2000 (1) SA 732 (CC) at para 27. 22

area listed in schedule 4 be dealt with under section 76.” (emphasis added)

76 The court went on to make it clear that this “substantial measure” test is

not the same as the test one applies when one characterises legislation to

determine whether it falls within the legislative competence of a

legislature. Cameron AJ, writing for the Court, said: “Whatever the proper

characterisation of the [Liquor] Bill – a question to which I return below”, it

had to be enacted in terms of section 76 because “a large number of its

provisions” fell within a functional area in schedule 4.5

77 Thus legislation has to be enacted in terms of section 76 if it substantially

entrenches upon the provincial functional areas of competence in

schedule 4, whether or not the statute as a whole can be characterised as

a schedule 4 matter.

78 The applicants argued, and the High Court in its judgment accepted, that

whatever the overall characterisation of CLARA may be, CLARA in

substantial measure falls within two functional areas of concurrent national

and provincial legislative competence listed in schedule 4. These are –

79 “Indigenous law and customary law”; and

80 “Traditional leadership”. 6

5 Para 28. 6 See paras 21 and 22 of the judgment of the court below. 23

81 Despite accepting that CLARA fell in substantial measure within two

functional areas in schedule 4, the High Court held that –

“That, in my view, does not per se mean the bill is invalid and unconstitutional.”

82 The High Court went on to hold as follows :

“[24]I am well aware of the fact that in this case a less cumbersome procedure was adopted. However, I do not think that the NCOP acted in bad faith in adopting the section 75 procedure. They did not intend to stop the views of the provinces because the provinces were duly represented and there was a public hearing on the matter. [25] Mr Trengrove’s submission that the proceeding is either right or wrong is not casting stones [this is presumably a typographical error and should read ‘cast in stone’]. The court in determining the validity of the procedure adopted should, in my view, consider if there is a substantial or material breach of the audi alteram parti rule. [26] The procedural points raised, by Mr Trengrove cannot in my view, render CLARA invalid and unconstitutional.”

83 The High Court relied, for its conclusion, on paragraph 26 of this Court’s

judgment in the Liquor Bill case, which reads as follows :

“[26]It would be formalistic in the extreme to hold a bill invalid on the ground that those steering it through Parliament erred in good faith in assuming that it was required to be dealt with under the section 76 procedure, when the only consequence of their error was to give the NCOP more weight, and to make passage of the Bill by the National Assembly in the event of inter-cameral disputes more difficult. It is hard to see how a challenge based on the first two differences between the relevant Parliamentary procedures can invalidate the enactment of a statute. The third is however of import, since whether a provincial delegation votes corporately through its head of delegation, as prescribed by section 65, or individually by each member casting a vote, as prescribed by section 75(2), may in defined circumstances be determinative as to whether the NCOP passes a bill.” 24

(The underlining of the words “erred in good faith” was the underlining of the High Court).

84 In relying on good faith, the High Court essentially held that in the absence

of bad faith, the procedural error did not provide a basis for invalidating

legislation. For the reasons set out below, it is submitted that this

represents a misreading of paragraph 26 of the judgment of this Court in

the Liquor Bill case.

85 Before elaborating, it is necessary to identify what this Court meant in the

Liquor Bill case when it referred in paragraph 26 to the three differences

between the relevant Parliamentary procedures in section 75 and 76

respectively. These three differences were explained by this Court in the

Liquor Bill case in paragraph 25 as follows :

“[25]There are three principal differences between the procedure stipulated in section 75 for ordinary bills not affecting provinces and that in section 76. First, the latter gives more weight to the position of the National Council of Provinces. This occurs chiefly through the invocation of the Mediation Committee. If one House rejects a Bill passed by the other, or if one House refuses to accept a Bill as amended by the other, the legislation must be referred to the Mediation Committee, which consists of nine members of the National Assembly and one delegate from each provincial delegation in the NCOP. Second, if the NCOP raises objections to a version of the Bill approved by the Mediation Committee in circumstances where the Bill was introduced in National Assembly, the Bill lapses unless the National Assembly passes it again with a two-thirds majority. Third, when the NCOP votes on a question under section 75, the provisions of section 65 – in terms of which each province has a single vote in the NCOP ‘cast on behalf of the province by the head of its delegation’, and in terms of which questions before the NCOP are ‘agreed when at least five provinces vote in favour of the question’ – do not apply. Instead, in terms of section 75(2), each delegate in a provincial delegation has one vote and the 25

question is decided by a majority of the votes cast (the presiding delegate having a casting vote), subject to a quorum of one-third of the delegates.”7

86 Reading paragraphs 25 and 26 of this Court’s judgment together, it

becomes apparent that the High Court misunderstood and wrongly applied

paragraph 26 (quoted in paragraph 62 above) of this Court’s judgment in

the Liquor Bill case, for the following reasons:

87 In the first place, this Court in the Liquor Bill case was dealing with the

reverse situation. In that case, the Bill was passed according to the more

onerous procedure provided for in section 76, and the constitutional

challenge was on the basis that it ought to have been passed in

accordance with the simpler procedure provided for in section 75. The

Court’s comments about erring in good faith must be seen in this context.

88 Secondly, the Court only considered the first two differences in procedure

mentioned in paragraph 25 of the Liquor Bill judgment to be ones which

7 Section 65(1) of the Constitution provides as follows: “Except where the Constitution provides otherwise – (a) each province has one vote, which is cast on behalf of the province by the head of its delegation; and (b) all questions before the National Council of Provinces are agreed when at least five provinces vote in favour of the question.” Section 75(2) of the Constitution provides as follows: “(2) When the National Council of Provinces votes on a question in terms of this section, section 65 does not apply; instead- (a) each delegate in a provincial delegation has one vote; (b) at least one third of the delegates must be present before a vote may be taken on the question; and (c) the question is decided by a majority of the votes cast, but if there is an equal number of votes on each side of the question, the delegate presiding must cast a deciding vote.” 26

bore little significance in terms of an error in choice of procedure made in

good faith.

89 Thirdly, and by contrast, in the latter part of paragraph 26 in the Liquor Bill

judgment, this Court made it clear that in relation to the third difference in

procedure, an error in the choice of procedure may have very real and

significant constitutional consequences. The Court said –

“The third is however of import, since whether a provincial delegation votes corporately through its head of delegation, as prescribed by section 65, or individually by each member casting a vote, as prescribed by section 75(2), may in defined circumstances be determinative as to whether the NCOP passes a bill.” (emphasis added)

90 In other words, this Court recognised that if the NCOP was wrongly

constituted for purposes of voting on the Bill, no Bill will have been

passed. That, it is submitted, is precisely what took place in the case of

CLARA. Once it is accepted (as the High Court correctly found) that

CLARA in substantial measure fell within the functional areas of provincial

legislative competence in schedule 4, then in order for it to be validly

passed, the NCOP had to be constituted as required by section 65 of the

Constitution and had to vote on the basis of one vote per each of the nine

provincial delegations. Instead, CLARA was passed by each delegate in

the NCOP voting individually. As a result CLARA was not passed by a

properly constituted NCOP. 27

91 Accordingly, it is submitted that the High Court ought to have found

CLARA to be constitutionally invalid in its entirety on the basis that the

procedure required by the Constitution was not followed.

RULE 16(4): APPLICATION FOR CONFIRMATION: THE

SUBSTANTIVE CHALLENGE

92 In the event that this Court –

93 grants leave to appeal on the classification challenge and allows the

appeal on this basis, and/or

94 grants the application based on the public consultation challenge,

the applicants still ask that this court confirm prayer (ii) of the order of the

court below in terms of section 172(2)(d) of the Constitution read with rule

16(4), on the basis of the substantive challenge (ie the arguments set out

in paragraphs 15.2.1 to 15.2.6 above and to be elaborated upon when the

applicants file their written submissions).

95 The substantive challenge formed the heart of the application before the

court below. It is submitted that it is in the interests of justice and in the

public interest that this Court address the substantive challenge. If the

case is decided only on the basis of the classification challenge, or only on

the basis of the public consultation challenge, there will be enormous

prejudice, particularly to the millions of rural people who will be affected by

the legislation envisaged by section 25(6) of the Constitution. 28

96 It has already been 5 years since CLARA was passed. If the legislative

process starts afresh without any ruling on the substantive challenge, that

process will be conducted in circumstances of complete uncertainty as to

what is constitutionally required of the legislature by section 25(6) and a

later substantive challenge will be inevitable. This will lead to years of

further delay to the great detriment of the rural communities for whom

section 25(6) was included in the Constitution in 1996.

97 The applicants accordingly ask that prayer (ii) of the order of the Court

below be confirmed.

RULE 19: APPLICATION FOR LEAVE TO APPEAL: UNCONSTITUTIONAL

CONFERRAL OF GOVERNMENTAL POWERS ON TRADITIONAL

COUNCILS (“THE TLGFA CHALLENGE”)

98 The applicants challenged the constitutionality of sections 9, 21(2) – (5)

and 24 of CLARA as well as sections 5 and 20 of the TLGFA on the bases

that –

99 they gave rise to an unconstitutional fourth tier of government; and

100 they conferred on traditional councils governmental powers in conflict with

sections 211 and 212 of the Constitution.

101 In regard to these arguments, the High Court held as follows : 29

“[56]In my view, CLARA and TLGFA in giving certain powers to traditional leaders does not make it to be unconstitutional in that it creates a fourth sphere of government. [57] The applicants further submit that section 5 and 20 of TLGFA is contrary to the provisions of section 212(1) of the Constitution, in that it also permits delegation of governmental powers by provincial legislation. I disagree because the status and role of traditional leadership is recognised by the Constitution. [58] The role which traditional leaders would be involved is mentioned in section 5 and 20 of TLGFA is in my view not unconstitutional. Customarily traditional leaders played an important role in the administration of land.”

102 On this basis, the High Court dismissed the challenge to sections 5 and 20

of the TLGFA. The challenge to sections 21(1) – (5) of CLARA was

upheld, but on the basis of other components of the substantive challenge.

103 The applicants seek leave to appeal against the decision of the High Court

to reject the challenge to the constitutionality of sections 5 and 20 of the

TLGFA.

104 In doing so, the applicants do not persist in the argument that the quantum

of powers conferred upon traditional councils by CLARA and sections 5

and 20 of the TLGFA cumulatively create a fourth sphere of government.

105 However, the applicants persist in the argument that sections 21(2) – (5)

of CLARA read with sections 9 and 24 of CLARA (for purposes of the

confirmation application on the substantive challenge) as well as sections

5 and 20 of the TLGFA (for purposes of the application for leave to appeal

on the TLGFA challenge) – 30

106 confer governmental powers upon traditional councils which exceed the

constitutional space for traditional authorities in a republican democracy,

afforded them under Chapter 12 of the Constitution; and

107 provide for the transfer of governmental power in a manner and to an

extent which is non-compliant with the mechanism envisaged in section

212(1) of the Constitution.

108 The argument which the applicants advance in support of the application

for leave to appeal on the TLGFA challenge may be summarised as

follows :

109 Traditional leaders were co-opted by the colonial and apartheid regimes

through a process of conferring statutory powers on them and subjecting

them to a system of statutory control;

110 Traditional leaders were, under apartheid, statutorily conferred with

governmental powers over African people in “black areas”, particularly at

local government level;

111 Those powers and the statutory structures within which they were

exercised formed the building blocks of the apartheid-era homeland

system;

112 The Interim Constitution (the “IC”) dismantled the homeland system and

removed governmental powers given to traditional authorities at national

and provincial level; 31

113 The IC and the Local Government Transition Act No. 209 of 1993 (“the

LGTA”) dismantled inter alia the homeland local government system and

removed governmental powers given to traditional authorities at local

government level;

114 In return for the loss of governmental powers suffered by traditional

leaders in the process of establishing a constitutional democracy, the IC in

section 182 gave traditional leaders a non-governmental role in local

government as ex officio members of municipal councils;

115 The IC in section 181 preserved only those residual customary functions

which are not governmental in nature;

116 This process of divestment of governmental powers from traditional

authorities was recognised and confirmed by this Court in African National

Congress & Another v Minister of Local Government and Housing,

KwaZulu-Natal, 1998 (3) SA 1 (CC);

117 The final Constitution (“the FC”) in Chapter 12 recognises traditional

leaders in their residual, customary roles after divestment of their

governmental powers under the IC and the LGTA;

118 Legislative and executive authority under the FC is allocated to the

legislative and executive authorities created by the Constitution at

national, provincial and local levels, to the exclusion of traditional

authorities; 32

119 That Chapter 12 does not allow for the exercise by traditional authorities

of governmental powers was confirmed by this Court in Ex Parte

Chairperson of the Constitutional Assembly: in re Certification of the

Constitution of the Republic of South Africa 19968;

120 The only non-customary role provided for in respect of traditional leaders

is that envisaged by section 212(1) of the Constitution which provides that

–

“National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities”,

this being the successor provision to section 182 of the IC which

provided for ex officio membership by traditional leaders on

municipal councils;

121 Section 212(1) however has three internal limiting features –

122 the role must be provided by the mechanism of national legislation, no

other;

123 the role does not contemplate the exercise of governmental powers (vide

the use of the word “role” as opposed to the word “authority” which is used

in the Constitution in allocating power to the legislative and executive

institutions established by the Constitution); and

124 it can only be at the level of local government;

8 1996 (4) SA 744 (CC) at paras 189 – 197. 33

125 By contrast, the impugned provisions of CLARA and sections 5 and 20 of

the TLGFA –

126 employ mechanisms for the transfer of power other than national

legislation;

127 confer governmental powers upon traditional councils; and

128 in the case of CLARA and section 20 of the TLGFA, do so outside of the

local sphere of government.

129 The High Court rejected these arguments on the basis that :

“The status and role of traditional leadership is recognised by the Constitution.”

and

“Customarily, traditional leaders played an important role in the administration of land.”

130 The applicants have no quarrel with either of these assertions. However

the applicants submit that –

131 The role of traditional leadership must be confined to that which is

recognised in Chapter 12 of the Constitution, and the judgment fails to

deal with the argument that the powers conferred go beyond what is

envisaged in Chapter 12; and

132 The fact that traditional leaders have historically played and continue to

play (and will do so in the future) an important role in the administration of 34

land under customary law does not provide a justification for the conferral

of governmental powers in relation to the administration of land.

INTERESTS OF JUSTICE

133 Having regard to the fact that this Court is already and necessarily seized

of the matter by reason of the referral order of the High Court in terms of

section 167(5) on the substantive challenge, it is submitted that it is in the

interests of justice that leave be granted to appeal directly to the

Constitutional Court in respect of the above applications for leave to

appeal on the classification challenge and the TLGFA challenge. The

applicants have accordingly not applied, and do not intend to apply, for

leave to appeal to any other court.

134 I accordingly ask that orders be granted as prayed for in the notice of

application to which this affidavit is attached.

______TEMBEKA NGCUKAITOBI

I CERTIFY that this affidavit was signed and sworn to before me at ………………………. on this the day of 2009, by the deponent who acknowledged that he knew and understood the contents of this affidavit, had no objection to taking this oath, considered this oath to be binding on his conscience and who uttered the following words: “I swear that the contents of this affidavit are true, so help me God.” 35

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