Tongoane and Others v National Minister for Agriculture and Land Affairs and Others (11678/2006) [2009] ZAGPPHC 127; 2010 (8) BCLR 838 (GNP) (30 October 2009)

Tongoane and Others v National Minister for Agriculture and Land Affairs and Others (11678/2006) [2009] ZAGPPHC 127; 2010 (8) BCLR 838 (GNP) (30 October 2009)

The court held that CLARA was incorrectly classified and passed as a section 75 Bill, when it should have been processed under section 76 due to its substantial impact on provinces and its subject matter falling within Schedule 4 functional areas, including indigenous and customary law. However, the procedural defect was not found to be material enough to render the entire Act invalid. The court found that several sections of CLARA and related provisions of the TLGFA undermine secure land tenure, particularly for communities who have acquired land through their own efforts, by transferring control to traditional councils and the Minister, often without adequate representation or...

Citation
[2009] ZAGPPHC 127
Parties
Applicant: Stephen Segopotso Tongoane; Applicant: Phahlela Joas Magakula; Applicant: Morgan Mogoelelwa; Applicant: Reckson Ntimane; Respondent: National Minister for Agriculture & Land Affairs; Respondent: Provincial & Local Government; Respondent: Premier of Eastern Cape; Respondent: Premier of Free State; Respondent: Premier of Gauteng; Respondent: Premier of KwaZulu-Natal; Respondent: Premier of Mpumalanga; Respondent: Premier of Northern Cape; Respondent: Premier of Limpopo; Respondent: Premier of North West; Respondent: Premier of Western Cape; Respondent: Speaker of the National Assembly; Respondent: Chairperson of the National Council of Provinces; Respondent: National House of Traditional Leaders
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 October 2009
Case Number
11678/2006
Procedural Posture
Constitutional Application / First Instance Judgment
Outcome
Sections 2(1)(a) (insofar as it concerns land already owned or securely held by a community), 2(1)(c) and (d), 2(2), 3, 4(2), 5, 6, 9, 18, 19(2), 20, 21, 22, 23, 24 and 39 of CLARA are declared unconstitutional and invalid. The order is referred to the Constitutional Court for confirmation. Costs awarded against...
Judges
Lepwaba
Legal Topics
Bill of Rights Limitation, Customary Law Land Tenure, Parliamentary Procedure, Communal Land Rights Act, Traditional Leadership and Governance Framework Act, Ministerial Discretion
Constitutional Law Land and Property Administrative Law Bill of Rights Limitation Customary Law Land Tenure Parliamentary Procedure Communal Land Rights Act Traditional Leadership and Governance Framework Act +1 more

Case Brief

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Parties

Stephen Segopotso Tongoane

Applicant

Phahlela Joas Magakula

Applicant

Morgan Mogoelelwa

Applicant

Reckson Ntimane

Applicant

National Minister for Agriculture & Land Affairs

Respondent

Provincial & Local Government

Respondent

Premier of Eastern Cape

Respondent

Premier of Free State

Respondent

Premier of Gauteng

Respondent

Premier of KwaZulu-Natal

Respondent

Premier of Mpumalanga

Respondent

Premier of Northern Cape

Respondent

Premier of Limpopo

Respondent

Premier of North West

Respondent

Premier of Western Cape

Respondent

Speaker of the National Assembly

Respondent

Chairperson of the National Council of Provinces

Respondent

National House of Traditional Leaders

Respondent

Procedural Posture

Constitutional Application / First Instance Judgment

Legal Issues

  1. 1 Whether the Communal Land Rights Act 11 of 2004 (CLARA) was correctly classified and passed in accordance with the constitutional procedure for bills affecting provinces.
  2. 2 Whether CLARA and certain sections of the Traditional Leadership and Governance Framework Act 41 of 2003 (TLGFA) are unconstitutional for undermining secure land tenure and creating a fourth sphere of government.
  3. 3 Whether the powers conferred on traditional councils under CLARA and TLGFA infringe constitutional rights, including equality and property rights.

Ratio Decidendi

The court held that CLARA was incorrectly classified and passed as a section 75 Bill, when it should have been processed under section 76 due to its substantial impact on provinces and its subject matter falling within Schedule 4 functional areas, including indigenous and customary law. However, the procedural defect was not found to be material enough to render the entire Act invalid. The court found that several sections of CLARA and related provisions of the TLGFA undermine secure land tenure, particularly for communities who have acquired land through their own efforts, by transferring control to traditional councils and the Minister, often without adequate representation or...

Court Disposition

Sections 2(1)(a) (insofar as it concerns land already owned or securely held by a community), 2(1)(c) and (d), 2(2), 3, 4(2), 5, 6, 9, 18, 19(2), 20, 21, 22, 23, 24 and 39 of CLARA are declared unconstitutional and invalid. The order is referred to the Constitutional Court for confirmation. Costs awarded against...

Orders

  • Prayers 1, 3 and 4 of the Notice of Motion are dismissed.
  • Sections 2(1)(a) (insofar as it concerns land already owned or securely held by a community), 2(1)(c) and (d), 2(2), 3, 4(2), 5, 6, 9, 18, 19(2), 20, 21, 22, 23, 24 and 39 of CLARA are declared unconstitutional and invalid.