In a judgment that damned Parliament for its failure to facilitate public participation in its legislative process, the Constitutional Court yesterday (Thursday) declared invalid in its entirety the Restitution of Land Rights Amendment Act, notes Daily News. ‘The NCOP public participation process was unreasonable and thus constitutionally invalid‚’ Judge Mbuyiseli Madlanga found in a unanimous judgment. According to a TimesLIVE report, 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 SA‚ the Association for Rural Advancement‚ the Nkuzi Development Association‚ Moddervlei Communal Property Association‚ the Makuleke Communal Property Association‚ and the Popela Communal Property Association. 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 31 December 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.

Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces and Others  

‘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’ he said. Madlanga ordered that claims made under the Amendment Act before yesterday's judgment would continue to exist‚ but that no more could be lodged. The TimesLIVE report notes 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 31 December 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.

Full TimesLIVE report  

The Act was rushed through Parliament in 2014 ahead of national and provincial elections, notes a Business Day report. It points out that, at the time, concerns were raised that the government had not sufficiently taken into account the huge budgetary burden it would place on the state to deal with an anticipated huge number of new claims. Critics said the new claims would affect the capacity to finalise the old claims, some of which had been languishing for more than a decade. The report notes some viewed the legislation as a last-minute effort to ingratiate the government with the electorate on an emotive issue.

Full Business Day report (subscription needed)  

The government will comply with the order, says Minister of Rural Development and Land Reform Gugile Nkwinti‚ one of the prime movers behind the Act. A TimesLIVE report notes a statement from the Minister's office said a more detailed response would be provided ‘in due course’. The report notes that in July 2014‚ just after President Jacob Zuma had signed the Amendment Act, News24 reported that Nkwinti told a media briefing that the government had ‘heeded the cries’ of more than 1 000 people whom it had consulted and who felt unfairly excluded from the previous process which had a cut-off date of 1998. He gave the assurance that the process would be smoother and less open to criminal abuse this time round as there would be no manual submissions.

Full TimesLIVE report