Land amendment act 'invalid'‚ top court rules

The Constitutional Court has declared invalid in its entirety the Restitution of Land Rights Amendment Act.

"The NCOP public participation process was unreasonable and thus constitutionally invalid‚" Judge Mbuyiseli Madlanga found in a unanimous judgment delivered on Thursday.

The court pointed out that provinces gave out notices just days before hearings‚ which were held only in certain municipalities and excluded many of those affected. Those who did get to attend were not given an opportunity to share their views.

The finding upheld a challenge brought by the Land Access Movement of South Africa‚ the Association for Rural Advancement‚ the Nkuzi Development Association‚ Moddervlei Communal Property Association‚ the Makuleke Communal Property Association‚ and the Popela Communal Property Association.

They had contended that the NCOP and provincial legislatures had failed in their constitutional obligation to facilitate public participation by leaving less than two weeks for the advertising and holding of public hearings; invitations for and consideration of all oral and written public submissions; and provision of negotiating and final mandates.

The NCOP‚ National Assembly and eight Provincial Legislatures had opposed the challenge‚ contending that the public participation process passed constitutional muster.

The Restitution of Land Rights Act enacted in 1994 gave people or communities until December 31 1998 to lodge claims for restitution or redress for being dispossessed of land after 19 June 1913 as a result of past racially discriminatory laws or practices.

A draft Restitution of Land Rights Amendment Bill providing for‚ among other things‚ the reopening of claims‚ was tabled and passed by the National Assembly in 2014. All but one of the provincial legislatures had approved the bill by March that year‚ the NCOP passed it the same month‚ the president assented to it in June and it was enacted on July 1.

"Failure by one of the Houses of Parliament to comply with a constitutional obligation amounts to failure by Parliament‚" Madlanga said in his judgment.

"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‚" he said.

The court reiterated that the right to restitution of land plays a pivotal role in South Africa's constitutional democracy‚ and is a means to achieving the guarantee of dignity for those who continue to suffer from the racist practices and laws of the past.

Madlanga ordered that claims made under the Amendment Act before Thursday's judgment would continue to exist‚ but that no more could be lodged.

He also interdicted the Land Claims Commission from considering‚ processing and settling new claims for two years pending Parliament's re-enactment of the Amendment Act or finalising of the claims filed by December 31 1998‚ whichever happened first.

Failing this‚ the Chief Land Claims Commissioner was directed to approach the court for further relief.

The NCOP was ordered to pay the applicants' costs.