Top court strikes down Traditional and Khoi-San Leadership Act

The Constitutional Court on Tuesday declared parliament failed to comply with its constitutional obligation to facilitate public involvement before passing the Traditional and Khoi-San Leadership Act.

The application was brought by Constance Mogale, national co-ordinator for the Alliance for Rural Democracy, the Land Access Movement of SA, Mashona Wetu Dlamini and Victor Modimakwane, as well as the organisations and communities they represent.

Modimakwane is a member of the Bakgatla ba Kgafela community and an applicant in his personal capacity.

The applicants applied directly to the Constitutional Court for an order declaring that parliament, the National Council of Provinces and the provincial legislatures failed to fulfil their constitutional obligations to facilitate reasonable public involvement in the passing of the Traditional and Khoi-San Leadership Act 3 of 2019.

In its unanimous order, the court agreed with the applicants and declared the act invalid, because it said it was, as a consequence, adopted in a manner that is inconsistent with the constitution. The court however, suspended the order declaring the act invalid for two years to enable parliament to re-enact the statute in a manner that is consistent with the constitution.

“The importance of public participation in SA cannot be [overstated]. Affected people must be afforded the opportunity to meaningfully participate in the legislative process,” the judgment penned by justice Leona Theron reads.

“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 SA’s democratic project is underscored by the colonial and apartheid governments’ complete disregard of the views of the people in legislating their lives,” the judgment reads.

Short notice

The applicants challenged the adequacy of the public hearings held by parliament and eight of the nine provincial legislatures.

The alleged deficiencies include short and inadequate notice of the hearings, lack of prehearing education, that attendees were not provided copies of the bill or were provided with insufficient copies, translation issues, that the content of the bill was misrepresented, and that members of traditional communities were sidelined in favour of traditional leaders.

“At both the National Assembly and provincial legislature levels, the deficiencies in the hearings were endemic. Insufficient notice was given ahead of many hearings. At some hearings there was a failure to conduct prehearing education.

“Some hearings were inaccessible. Limited transport was provided and hearings took place in venues far from where people lived. At many public hearings, no copies of the [bill] were provided.

“Where copies of the bill were provided, an insufficient number were provided. Further, copies provided were often in a language the local community could not understand. Where there were no written copies of the bill in the appropriate language, oral presentations were not given or were inadequate or inaccurate. At many hearings there were translation issues,” the judgment reads.

TimesLIVE previously reported the provisions of the act has far-reaching consequences for traditional and Khoi-San communities.

Flawed model

In terms of section 24, a traditional or Khoi-San council could enter into a partnership or agreement with third parties without the consent of those who would be directly affected.

The applicants said section 23 repeats the flawed model of financial accountability previously provided for in the North West Traditional Leadership and Governance Act for traditional and Khoi-San councils.

“This model has proved to be ineffective, as shown by the Commission into Traditional Succession Disputes and Claims in its inquiry relating to the Bakgatla Ba Kgafela.

“The Bakgatla traditional community lost an estimated R5bn in community funds through dubious deals by traditional leadership structures operating without the appropriate oversight.”

They said the notorious “D-account” model that previously applied in the North West would be applicable in all provinces. In terms of this clause, all community money derived from any source would go into a government-controlled bank account that has no proper accountability mechanisms.

“This leaves traditional and Khoi and San communities without any concrete way of tracking deals, investments or benefits derived from their land and property.”

TimesLIVE