Mogale and others v Speaker of the National Assembly and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ, Rogers J and Theron J
• Judgment Date: 30 May 2023
• Docket Number: CCT 73/22
• Hearing Date: 23 February 2023
• Court: Constitutional Court

Theron J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ and Rogers J concurring):

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Theron J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ and Rogers J concurring)

Introduction

[1]

This is an application in terms of section 167(4)(e) [1] of the Constitution for an order declaring that the National Assembly, the National Council of Provinces (NCOP) and the nine provincial legislatures have failed to fulfil their constitutional obligations to reasonably facilitate public involvement in the passing of the Traditional and Khoi-San Leadership Act [2] (TKLA). The applicants seek a declaration that the Act is unconstitutional and invalid, together with consequential relief.

[2]

The Constitution's vision of democracy includes representative and participatory elements. In August, this Court said that the ability to participate in the electoral process through voting is "a badge of dignity and of personhood". [3] Similarly, when people – particularly the disempowered – participate in the making of laws that affect them, as is their constitutional entitlement, this enhances their dignity. [4] Before Parliament enacts legislation, it must take reasonable steps to facilitate public participation. [5]

[3]

The importance of public participation in South Africa cannot be understated. Affected persons must be afforded the opportunity to meaningfully participate in the legislative process. Public participation acts as a safeguard to prevent the interests of the marginalised being ignored or misrepresented. The significance of public participation for the advancement of South Africa's democratic project is underscored

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Theron J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ and Rogers J concurring)

by the colonial and apartheid governments' complete disregard of the views of the people in legislating their lives.

[4]

Most contemporary democratic theorists view democracy as "government by discussion". [6] The Nobel economic sciences laureate, Amartya Sen, theorises an expansive notion of democracy to which public reasoning is central. [7] Under this model, democracy through the ballot is only the beginning. People must have access to information and the ability to speak freely about state conduct – in this case, law-making. Deliberative democracy is familiar to South Africans and, certainly, to the traditional communities affected by the TKLA. In Doctors for Life, this Court recognised the South African tradition of participatory democracy as practised through, for example, imbizo, lekgotla and bosberaad. [8] Former President Nelson Mandela, in his autobiography, reflected on witnessing deliberative democracy of this nature in local meetings when he was a child:

"Everyone who wanted to speak did so. It was democracy in its purest form . . . everyone was heard: chief and subject, warrior and medicine man, shopkeeper and farmer, landowner and labourer . . . all . . . were free to voice their opinions and were equal in their value as citizens." [9]

Parties

[5]

The first applicant is Ms Constance Mogale, the National Coordinator of the Alliance for Rural Democracy (ARD), a grouping of activist organisations and individuals who contest policy and legislation that threaten the land rights of citizens

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Theron J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ and Rogers J concurring)

living in the former Bantustans. [10] The second applicant is the Land Access Movement of South Africa (LAMOSA), an independent federation of community-based organisations advocating for land and agrarian rights, democracy and sustainable development. The third applicant is Mr Mashona Wetu Dlamini, an elder of the Umgungundlovu community and an iNduna of the iNkosana's Council, a body established in terms of customary law. The fourth applicant is Mr Victor Modimakwane, a member of the Bakgatla ba Kgafela community.

[6]

The first respondent is the Speaker of the National Assembly. The second respondent is the Chairperson of the NCOP. I refer to the first and second respondents collectively as "Parliament". The third to eleventh respondents are the Speakers of the Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Mpumalanga, Limpopo, North West, Northern Cape and Western Cape Provincial Legislatures. The twelfth respondent is the Minister of Cooperative Governance and Traditional Affairs (Minister), who is cited in her official capacity as the national executive authority responsible for the TKLA. The thirteenth respondent is the Chairperson of the National House of Traditional Leaders, who is cited because the TKLA affects the National House. The fourteenth respondent is the President of the Republic of South Africa. The fifteenth respondent is the Congress of Traditional Leaders of South Africa (CONTRALESA), a voluntary organisation of traditional leaders in South Africa. The sixteenth respondent is the National Khoi and San Council, a formal negotiating forum that engages with the state regarding the constitutional rights and other interests of the Khoi and San peoples.

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Theron J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ and Rogers J concurring)

[7]

Only Parliament, the KwaZulu-Natal Provincial Legislature, the Western Cape Provincial Legislature and the Minister oppose the application. I refer to these parties as the "respondents".

Background

[8]

The TKLA purports to address the failings of the Traditional Leadership and Governance Framework Act [11] (TLGFA). The High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, chaired by former President Kgalema Motlanthe, expressed concern that public submissions that it received indicated that the TLGFA and amendments to it [12] "[deny] people living in areas under traditional leaders several constitutional rights, distinguishing them from those living in the rest of the country who enjoy the full benefits of post-apartheid citizenship". [13]

[9]

The Traditional and Khoi-San Leadership Bill (TKLB or Bill) was introduced in the National Assembly on 21 September 2015. According to the Department of Cooperative Governance and Traditional Affairs (COGTA), the TKLB was a product of public hearings focused on drafting the Bill's content.

[10]

During January 2016, the National Assembly's Portfolio Committee on Cooperative Governance and Traditional Affairs (Portfolio Committee) invited submissions from stakeholders and began conducting public hearings the following month. Over the period from February 2016 to August 2017, meetings were held in the nine provinces. The ARD arranged to have monitors present at the public hearings. These monitors recorded many alleged deficiencies in the public participation process.

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Theron J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ and Rogers J concurring)

The Bill was passed by the National Assembly and referred to the NCOP on 7 November 2017.

[11]

The NCOP initially intended to conduct its own hearings but later decided to defer the holding of hearings to the provincial legislatures. Between 10 April 2018 and 14 August 2018, the provincial legislatures conducted public hearings and adopted their negotiating mandates. [14] The applicants had monitors present at these hearings, where they recorded alleged deficiencies similar to those in the National Assembly process. On 4 December 2018, the NCOP Select Committee on Cooperative Governance and Traditional Affairs, Water and Sanitation and Human Settlements (Select Committee) met to cast votes according to the provinces' final mandates. The Select Committee voted to adopt an amended version of the TKLB and referred it to a plenary vote in the NCOP. [15] On 10 January 2019, the NCOP voted in favour of an amended version of the TKLB, which was referred back to the National Assembly. The TKLB, as amended by the NCOP, was adopted by the National Assembly on 26 February 2019.

[12]

On 4 September 2019, before the TKLB was signed by the President, the applicants' attorneys wrote to the President requesting that the TKLB be referred back to Parliament, as recommended by the President's Expert Advisory Panel on Land Reform and Agriculture (Expert Advisory Panel). On 20 November 2019, the TKLB was signed into law by the President. The applicants' attorneys wrote to the President

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Theron J (Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ and Rogers J concurring)

on 10 April 2020 informing him of their instructions to challenge the constitutionality of the TKLA due to deficient public involvement in passing the Act. They also urged the President not to bring the TKLA into operation until the challenge was determined. The applicants' attorneys received no response. On 2 December 2020, the President published a notice determining that the TKLA would come into force on 1 April 2021. The applicants launched their application on 20 December 2021.

[13]

The questions before this Court are:

(a)

Does this Court have exclusive jurisdiction?

(b)

Do the applicants have standing?

(c)

What are the standards prescribed by law for public participation?

(d)

Did Parliament and the provincial legislatures meet these standards?

(e)

If not, what is the most appropriate remedy?

Jurisdiction

[14]

Under section 167(4)(e) of the Constitution, this Court has exclusive jurisdiction to decide whether Parliament or the President has failed to fulfil a constitutional obligation. Parliament's alleged failure to reasonably facilitate public involvement implicates its constitutional obligations in terms of sections 59(1)(a), 72(1)(a) and 118(1)(a)...