Mogale and Others v Speaker of the National Assembly and Others (CCT 73/22) [2023] ZACC 14; 2023 (9) BCLR 1099 (CC); 2023 (6) SA 58 (CC) (30 May 2023)

Mogale and Others v Speaker of the National Assembly and Others (CCT 73/22) [2023] ZACC 14; 2023 (9) BCLR 1099 (CC); 2023 (6) SA 58 (CC) (30 May 2023)

The Constitutional Court found that Parliament and the provincial legislatures failed to fulfil their constitutional obligation to reasonably facilitate public involvement in passing the Traditional and Khoi-San Leadership Act. The Court identified numerous and material deficiencies in the public participation process, including inadequate notice, lack of pre-hearing education, inaccessible venues, insufficient communication and translation of the Bill, prioritisation of traditional leaders over ordinary community members, and inaccurate or incomplete reporting of public input. These failures collectively deprived affected communities of a meaningful opportunity to participate and...

Citation
[2023] ZACC 14
Parties
Applicant: Constance Mogale; Applicant: Land Access Movement of South Africa; Applicant: Mashona Wetu Dlamini; Applicant: Victor Modimakwane; Respondent: Speaker of the National Assembly; Respondent: Chairperson of the National Council of Provinces; Respondent: Speaker of the Eastern Cape Provincial Legislature; Respondent: Speaker of the Free State Provincial Legislature; Respondent: Speaker of the Gauteng Provincial Legislature; Respondent: Speaker of the KwaZulu-Natal Provincial Legislature; Respondent: Speaker of the Limpopo Provincial Legislature; Respondent: Speaker of the Mpumalanga Provincial Legislature; Respondent: Speaker of the North West Provincial Legislature; Respondent: Speaker of the Northern Cape Provincial Legislature; Respondent: Speaker of the Western Cape Provincial Legislature; Respondent: Minister of Cooperative Governance and Traditional Affairs; Respondent: Chairperson of the National House of Traditional Leaders; Respondent: President of the Republic of South Africa; Respondent: Congress of Traditional Leaders of South Africa; Respondent: National Khoi and San Council
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
30 May 2023
Case Number
CCT 73/22
Procedural Posture
Constitutional Application / Final Judgment on Merits
Outcome
Application granted. The Traditional and Khoi-San Leadership Act declared invalid due to failure to facilitate reasonable public participation. Order of invalidity suspended for 24 months.
Judges
Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ, Rogers J, Theron J
Legal Topics
Public Participation, Legislative Process, Declaration of Invalidity, Traditional Leadership, Constitutional Obligation, Suspension of Invalidity
Constitutional Law Civil Procedure Land and Property Public Participation Legislative Process Declaration of Invalidity Traditional Leadership Constitutional Obligation +1 more

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Parties

Constance Mogale

Applicant

Land Access Movement of South Africa

Applicant

Mashona Wetu Dlamini

Applicant

Victor Modimakwane

Applicant

Speaker of the National Assembly

Respondent

Chairperson of the National Council of Provinces

Respondent

Speaker of the Eastern Cape Provincial Legislature

Respondent

Speaker of the Free State Provincial Legislature

Respondent

Speaker of the Gauteng Provincial Legislature

Respondent

Speaker of the KwaZulu-Natal Provincial Legislature

Respondent

Speaker of the Limpopo Provincial Legislature

Respondent

Speaker of the Mpumalanga Provincial Legislature

Respondent

Speaker of the North West Provincial Legislature

Respondent

Speaker of the Northern Cape Provincial Legislature

Respondent

Speaker of the Western Cape Provincial Legislature

Respondent

Minister of Cooperative Governance and Traditional Affairs

Respondent

Chairperson of the National House of Traditional Leaders

Respondent

President of the Republic of South Africa

Respondent

Congress of Traditional Leaders of South Africa

Respondent

National Khoi and San Council

Respondent

Procedural Posture

Constitutional Application / Final Judgment on Merits

Legal Issues

  1. 1 Did Parliament and the provincial legislatures fulfil their constitutional obligation to reasonably facilitate public involvement in passing the Traditional and Khoi-San Leadership Act?
  2. 2 Is the Act invalid due to failure of public participation?
  3. 3 What is the appropriate remedy for the constitutional breach?

Ratio Decidendi

The Constitutional Court found that Parliament and the provincial legislatures failed to fulfil their constitutional obligation to reasonably facilitate public involvement in passing the Traditional and Khoi-San Leadership Act. The Court identified numerous and material deficiencies in the public participation process, including inadequate notice, lack of pre-hearing education, inaccessible venues, insufficient communication and translation of the Bill, prioritisation of traditional leaders over ordinary community members, and inaccurate or incomplete reporting of public input. These failures collectively deprived affected communities of a meaningful opportunity to participate and...

Court Disposition

Application granted. The Traditional and Khoi-San Leadership Act declared invalid due to failure to facilitate reasonable public participation. Order of invalidity suspended for 24 months.

Orders

  • It is declared that Parliament failed to comply with its constitutional obligation to facilitate public involvement before passing the Traditional and Khoi-San Leadership Act 3 of 2019.
  • The Act was adopted in a manner inconsistent with the Constitution and is declared invalid.