Traditional and Khoi-San Leadership Act fails the test, says Concourt

Cape Town - The Constitutional Court has sent Parliament back to the drawing board after it found provincial legislatures failed to fulfil their constitutional obligations to facilitate public involvement when passing the Traditional and Khoi-San Leadership Act 3 of 2019.

The Constitutional Court declared the Traditional and Khoi-San Leadership Act unconstitutional and invalid as “Parliament overwhelmingly failed in facilitating public participation” and called on it to make the necessary changes within a year to ensure they facilitate a constitutionally-compliant process.

The Legal Resources Centre welcomed the historic judgment.

According to the background of the litigation, the high level panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, chaired by former President Kgalema Motlanthe, expressed concern that public submissions that it received indicated that the Traditional Leadership and Governance Framework Act (TLGFA) and amendments to it “(deny) people living in areas under traditional leaders several constitutional rights, distinguishing them from those living in the rest of the country who enjoy the full benefits of post-apartheid citizenship”.

A statement by the LRC said: “Rural communities, activists and land rights organisations approached the court in December 2021 arguing that parliament did not comply with its constitutional duty to facilitate meaningful public participation when passing the legislation.”

The Act, they said, would have devastating impact upon the lives of rural people as it gave new and extended powers over land to traditional authorities and clawed back the few democratic principles previously captured in traditional leadership legislation.

Most of all, they argued, the Act does not provide for a single mechanism that would allow a community to hold a traditional authority to account.

“Members of traditional communities told the court that for nearly two decades since the passing of the Traditional Leadership and Governance Framework Act in 2003, they have tried unsuccessfully to raise the alarm about corrupt and unlawful practices by their leaders that, in some cases, have led to communities losing land and other assets. They told the court that this new legislation entrenches and exaggerates the problems of the old Framework Act. While the new Bill finally provided statutory recognition to Khoi and San leadership positions, it was widely criticised during the public hearings by traditional and Khoi-San communities alike,” the LRC said.

Founding member and chair of the A/Xarra Restorative Justice Forum, Tauriq Jenkins, said: “The case illustrates the vitality of upholding the values of consent and meaningful participation.

It also indicates the need for a deepening of democratic and constitutionally sound interventions to an Act that seemingly possesses a residual ‘colonial and apartheid hangover’ reminiscent of the former Bantustans era.

“Hopefully, Parliament will embrace the opportunity for this Act to embody a deeper meaning and fuller sense of belonging for traditional communities one that is not focused on propping a traditional leadership cluster that will form part of an artificial edifice of convenience for the State,” said Jenkins.

Parliament’ Spokesperson, Mr Moloto Mothapo said: “Public participation is a cornerstone and an indispensable feature of a democratic parliament.

In this regard, Parliament developed the public participation model with a view to strengthen public involvement in its decision-making processes.

“Parliament is in the process of creating an enhanced and better public participation capacity in order to deepen this important constitutional function.

“We view today’s judgment as an important enrichment to Parliament’s endeavour to continually improve its public participation function.”