The Constitutional Court is set to rule on whether an extension of eight months should be granted to Parliament to re-enact the Restitution of Land Rights Amendment Act.
The Land Access Movement of South Africa (Lamosa) and other community organisations challenged the act, which tried to extend the claims process to June 2019. They contested it on the basis that it created uncertainty between old and new land claimants, and that Parliament failed to fulfil its constitutional obligation of ensuring meaningful public participation before the bill is adopted as law.
In 2016, the court found the act to be constitutionally invalid, ruling in favour of communities, and saying that failure to enable public participation and uncertainty on what would happen to old claims rendered the amendment act invalid.
Parliament was given two years to rectify this. If it failed to re-enact in that time, the land claims commissioner or any party with direct interests could apply to the court for an order of how to process new claims lodged in 2014.
The court also interdicted the commissioner from processing new claims, and ordered the commission to focus on old claims lodged before 1998 in the interim.
Three days after the 24-month deadline of the 2016 court order had expired, the speaker of the National Assembly and the chairperson of the National Council of Provinces filed an application for an eight-month extension. On 6 November, the court heard arguments on whether the extension should be granted to Parliament.
More time requested
Advocate Terry Motau SC, who appeared on behalf of the speaker, told the court it was in the interest of justice that Parliament be granted the extension so it would be able to give effect to section 25 (7) of the Constitution, which addresses the injustices of colonialism and apartheid.
The process of re-enacting the amendment act was at an advanced stage, and Parliament needed more time to complete the process without the court enforcing its initial order, said Motau. But before he finished his argument, Justice Nonkosi Mhlantla asked what Parliament had been doing during the initial two years.
Before Motaul could respond, Chief Justice Mogoeng Mogoeng asked, “Why is it that it took this long to demonstrate commitment to the order? … What stopped Parliament from coming before 24 months expired?”
Mogoeng noted that Parliament had access to legal experts. “Why did they not flag this and apply timeously for variation of the order if they needed more time to correct the amendment? I don’t see any sense of urgency or seriousness from Parliament.”
In its founding affidavit, Parliament said it did everything in its power to work within the deadline of two years and where there was delay it was because of “important oversight businesses of Parliament”. The speaker further submitted that the complexity of the amendment and inclusion of public participation required an extension.
Four communities who were respondents in the matter did not oppose the speaker’s application on the basis that it was in the interest of separation of powers for Parliament to have more time. The court did not have the power to pass a law, which only Parliament can do, and the communities could benefit fully only when there was an amended act.
A lengthy delay
However, Lamosa contended that the delay was lengthy and that Parliament failed to tender satisfactory reasons for it. Advocate Alan Dodson SC, representing Lamosa, told the court that Parliament’s request was inappropriate, given that it had adequate time to draw up new legislation.
Dodson said that if an extension were granted, there was no evidence Parliament would meet its proposed deadline of March 2019. Contributing factors were the slow pace at which the amendment act had so far been processed and the absence of a timeline.
Therefore, the decision of the court was binding and could be changed only under exceptional circumstances, argued Dodson. By not doing anything in two years, Parliament had forfeited the opportunity to re-enact a clear statute, and only the court could rule on the matter, he said.
In terms of the main order of 2016, Lamosa also lodged a counter application in which it petitioned the court to make an order substantively prioritising old claims before processing new ones.
“We are opposing the extension … [Parliament] needed to give us a timeframe, a work plan of what do they want with the extension, given that they have been given 24 months and they haven’t done anything … The extension is to give them a chance to do nothing and get people frustrated,” said Constance Mogale, national co-coordinator of the Alliance for Rural Democracy and a Lamosa board member.
Chief Land Claims Commissioner Nomfundo Gobodo acknowledged the slow pace of land claims. “We have had our own challenges … we are putting up plans in terms of how we are going to fast-track,” she said.
Gobodo said progress had been made in provinces such as Free State, but there were still backlogs in KwaZulu-Natal, Limpopo and Mpumalanga.
“We are waiting for Parliament to finalise the new amendments so that we can start dealing with the new claims. We are a creature of statute and we can only do what is permitted by law. Law currently says 1998 was the cut-off date because the 2014 one was declared unconstitutional,” said Gobodo.
A twenty year wait
None of these arguments helps claimants such as Mack Nkuna, who, 20 years after he lodged a claim, is still waiting for his ancestral ground. “Until today, we have not received our land,” said the 65-year-old man from Makhado, Limpopo.
Nkuna is among those who filed claims in or before 1998 and still have not received any land. Most of his co-applicants have died and he alone is left to continue the struggle for his ancestral land.
Nkuna’s is one of about 5 757 outstanding claims lodged before 1998. Over and above those, Lamosa said there are between 17 000 and 20 000 settled claims or claims before court that have not been implemented because of budgetary constraints. According to Lamosa, it will take about seven years to finalise these claims.
The high-level panel appointed by the speaker’s forum, however, projected that it will take 35 years to process land claims, given the tight budget under which the commission operates.
It is clear from all these factors that the Constitutional Court’s latest ruling cannot come soon enough.