RESEARCH UNIT: THEMBISA PEPETEKA
8 July 2010
JUDGEMENT ON COMMUNAL LAND RIGHTS ACT, 2004 (Act NO.11 of 2004) AND ITS IMPLICATIONS
1. Introduction
The Communal Land Rights Act (CLARA) was passed into law in July in 2004, but since then it has not been implemented due largely to the court challenge by four communities. On the 30th October 2009, the North Gauteng High Court declared that 15 key provisions of the Act were invalid and unconstitutional and that Parliament erred in tagging Communal Land Rights Bill as a Section 75 Bill. The Court did not render the entire Act unconstitutional. The judgement has to be referred to the Constitutional Court for confirmation, as it is only the Constitutional Court that has the power to strike off legislation. On 11 May 2010, the Constitutional Court declared the entire Act invalid because it was not adopted in terms of the correct procedure prescribed in the Constitution.
2. Objectives of the Act
The purpose of the Act is to give effect to the constitutional obligation set out in section 25(6) which places an obligation on Parliament to enact legislation to provide secure tenure for those living on communal land. Section 25(6) of the Constitution reads as follows:
"A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled to the extent provided by an Act of Parliament, either to tenure which legally secure or to comparable redress.
The Act was therefore enacted to help people and communities whose tenure of land (right to land) is not secure as a result of past racially discriminatory laws. It is specifically meant to give secure land tenure rights to people and communities who reside and occupy land in areas previously reserved for African people, namely in the former homelands. Most of this land is registered in the name of the State or is held in trust for communities by the Minister of Rural Development and Land Reform or by the Ingonyama Trust in the case of KwaZulu-Natal.
The land tenure rights available to people living in communal areas was largely based on customary law or on insecure permits such as Permits to Occupy (PTOs) referred to as old order rights. These rights are informal, often lack legal status and the holders of such rights cannot use them as security to obtain loan in order develop their land. The Act seeks to reverse this legacy of colonialism and apartheid by strengthening land tenure rights of people living in communal areas by granting them full legal rights to the land they occupy, and back their land rights with the full protection of law ( through transition from old order rights to new order rights).
As the Act became effective, the land would no longer be registered in the name of other persons, or traditional leaders or traditional councils or in the name of State, or held in trust by the Minister or in the Ingonyama Trust in KwaZulu-Natal. Instead, depending on the form of tenure chosen by persons or communities concerned, the land in question will be transferred to a clan or community in its own name, or can choose individual freehold ownership. The land will be administered by the land administration committee established by community or where a traditional council exists, the traditional council may administer the land. Traditional Councils established in terms of the Traditional Leadership and Governance Framework Act, 2003 (TLGFA - Act No.1 of 2003) are based on the old tribal/Bantu/Black Authorities created by the Black Authorities Act of 1951 (Act No. of 1951) but are suppose to be transformed with 40% elected members and 30% women.
It should be noted that despite having been enacted in the 2004, CLARA has not been implemented due to court challenge and failure to finalise regulations. The Interim Protection of Informal Land Rights Act, 1996 (IPILRA), is used as an interim measure to protect land rights in communal areas as it prohibits the taking of land without the consent of the right holder. According to IPILRA, the right holder can only lose his or her rights to communal land if the custom and usage of the community is followed and if he or she is paid compensation. In terms of the Act custom implies that there should be a majority community decisions with enough notice and opportunity to ask questions and participate in the decision before anyone can be deprived of their land rights.
3. Court Challenge and Judgement on CLARA
In April 2006, the then Minister for Agriculture and Land Affairs was served with court papers consisting of the affidavits of four (4) communities and others with regard to the CLARA. The applicants sought an order declaring all the provisions of CLARA, or alternatively only certain provisions to be unconstitutional and invalid.
The substantive challenge on CLARA was based on the following grounds:
· Its provisions seriously undermine the security of tenure on land the communities are currently occupying and using
· It undermines customary law-based systems of land administration, which will be replaced by the new system that CLARA envisages.
· It introduces a new system of land administration under traditional councils, which confirms old Tribal Authority boundaries and they considered to be incapable of administering their land for the benefit of the community.
· If read together with section 5 and 20 of Traditional Leadership and Governance Framework Act (TLGFA), 2003 (Act No.41 of 2003), the Act creates a fourth sphere of government - traditional leaders.
· Women's land rights still not adequately secured as women in the past were not allowed on their own to have land rights (old order rights).
The procedural challenge was on the manner in which CLARA was enacted. The applicants contested the fact that Parliament tagged CLARA as section 75 Bill (a bill which does not affect provinces) and not section 76 Bill (a bill that affects the provinces).
The case was held at North Gauteng High Court and the judgement was handed down on 30 October 2009. On the substantive challenge, the High Court declared certain provisions of the Act, in particular those providing for transfer and registration of communal land, the determination of rights by the Minister and the establishment and composition of land administration committees, invalid and unconstitutional. The Court rejected the argument that CLARA together with TLGFA creates a fourth sphere of government because it gives powers to traditional leaders which are recognised by the Constitution.
On the procedural grounds, the High Court concluded that CLARA should have been classified as a section 76 Bill instead of 75 Bill as it has provisions that fell within functional area listed in schedule 4 of the Constitution and the procedure set out there should have been followed in enacting CLARA. However, the Court did not declare CLARA unconstitutional solely on these grounds because Parliament did not act in bad faith when adopting the procedure prescribed in section 75 of the Constitution and that in any event the views of the provinces have been represented through the Parliament process and there had been public hearings.
Applicants approached the Constitutional Court seeking confirmation of the order of invalidity, and leave to appeal against the dismissal of their application to have CLARA declared constitutionally invalid in its entirety because of Parliament's failure to enact it in terms of procedure prescribed by section 76. On 11 May 2010, the Constitutional Court declared the entire Act invalid because it was not adopted in terms of the correct procedure prescribed by the Constitution. The judge argued that various provisions of CLARA affect, in substantial measure, indigenous law and traditional leadership, which are areas of concurrent national and provincial competence.
The judge found that CLARA replaces the indigenous law system that regulates the occupation, use and administration of communal land. Therefore, CLARA was declared unconstitutional in its entirety, which rendered it unnecessary for the Constitutional Court to consider whether its provisions were consistent with the Constitution. The judge, however emphasised that Parliament should urgently enact the legislation that will ensure secure land tenure for people and communities in communal areas as obligated by the Constitution He further noted that CLaRA relied and built upon old apartheid laws such as Bantu Authorities Act of 1951 that created tribal boundaries. The CLaRA in actual fact gave these authorities wide ranging land administration powers which they did not have under state law or customary law.
4. Impact of the Judgement
The implication of the judgement is that there is no legislation that provides secure land tenure for people in communal areas. The IPLRA, which is only an interim measure requiring land occupiers/users to be consulted before any disposal of land can occur is in force until 31 December 2010. Since section 25 (6) of the Constitution obliges Parliament to enact legislation that will provide security of tenure for people and communities living and occupying land in communal areas, it means that it has to revive CLARA or enact a new legislation as a priority. In any event, even before the judgement, the Minister of Rural Development and Land Reform informed the Court that CLARA needs to be reviewed. He stated that it would either be repealed in toto or drastically amended because it "does not accurately reflect current government policy regarding communal land.
The implication of the Court Judgement and the submission by the Minister in court is that a new draft bill on communal land tenure must be enacted in terms of the procedure prescribed in section 76 of the Constitution. Section 76 requires that each provincial legislature instructs its delegates on how to vote in the National Council of Provinces (NCOP). The section envisages that the relevant Provincial Assembly Committee hold hearings in its province to afford people who are affected by the new legislation to comment and inform their position on the legislation. This implies that the National Assembly, the NCOP and the Provincial Assemblies will be required to plan and budget for public hearings and public awareness programme to ensure that there is meaningful participation during public hearings. Since the law is going to affect rural people, Parliament must also arrange public hearings and other methods of consultation that makes it possible and easy for rural people especially women to speak about the bill. It might mean public hearings in provinces and places accessible to rural people.
It is of critical importance that the Department when drafting the new legislation should consider substantive objections raised by stakeholders and ultimately the applicants in respect of CLARA in order to ensure that it does not face the court challenge again, which would delay its implementation. Although, the judge did not rule on substantial issues raised he made reference to the substance and the wording of CLaRA. The judge noted that "the field that CLARA now seeks to cover is not unoccupied. There is at present a system of law that regulated the use, occupation and administration of communal land. ... It a system which CLARA will repeal, replace or amend. ln fact, the earlier High Court judgement declared certain provisions of the Act invalid and unconstitutional because they might undermine the security of tenure as they rely on existing undemocratic traditional councils to administer land in communal areas. All this implies that CLARA must be sourced from living customary law and must do away with unconstitutional statutory powers that was created under apartheid and re-establish a system of customary law that regulates communal land on the ground.9
5. Conclusion
The judgement on CLARA has created an urgent need for legal and institutional framework within which secure tenure for communities in former homelands can be processed. People in communal areas have waited for more than 13 years since the final Constitution came into effect to have their land tenure rights strengthened so that they can be able to develop their areas. Any delay in enacting legislation providing land tenure security for communal areas means a continuation of chaotic land administration in those areas, and is delaying economic development and investment in those poor rural areas.
6. Issues to be raised
· The Minister needs to explain to the Portfolio Committee on Rural Development and Land Reform in what way the Act is not in line with current government policy regarding communal land and to brief the Committee on the plans and progress on policy/legislation providing legal land tenure in communal areas.
· The Department has history of shifting goal posts for finalising policy or legislation providing land tenure for people in communal areas and on the farms. The Committee needs to understand whether the Department is treating this matter with the urgency it deserves.
· In the absence of any law ensuring secure land tenure for rural people, what protection is going to be provided to ensure that people in rural areas do not lose their right to land?
· In 2009, the High Court declared 15 provisions of CLARA invalid and unconstitutional and the Constitutional Court did not rule on those. It is of interest to know how the Department has dealt with those in the new policy, particularly the role of traditional leaders in the administration of land.
· Does the Department has the capacity to enact and implement the new law?
· One of the challenges that the Department has to deal with in addressing land issue in communal areas is that most of land is unsurveyed. How far is process of surveying land in communal areas?