In this particular case before the Court, the applicants alleged that the NCOP and some of the provincial legislatures had failed to facilitate a sufficient degree of public participation as required by the Constitution. The applicants further challenged the validity of the Amendment Act on the basis that by re-opening the window for new land claims, claimants who filed their claims by 31 December 1998 but whose claims remained unresolved would be prejudiced. In terms of the re-opened process, new claimants would be free to claim against land which has already been claimed or awarded to existing claimants, thus creating uncertainty. The applicants also contended that the Land Claims Commission lacked capacity, as seen by the number of claims yet to be finalised. The Amendment Act would only serve to exacerbate the currently intolerable situation. Additionally, the Amendment Act was said to be impermissibly vague, and therefore incapable of adequately protecting the interests of existing claimants. 

The Court noted that the provinces had less than one calendar month to process the legislation, with only three to five calendar days to notify the public of the hearings. The Court rejected the argument that the public need not participate in the legislative process as its elected representatives are speaking on the public’s behalf – emphasising that South Africa’s democracy contains both representative and participatory elements which required direct public participation in the legislative process. On this basis, the Court found that the NCOP had acted unreasonably in failing to facilitate the involvement of the public in its process of enacting the Amendment Act and for this reason it was declared invalid.

This decision is important, not least because of its significance for the Expropriation Bill. It is, in a sense, a reflection of what is wrong with land reform in the nation – the dissonance between the Constitution on the one hand, and government policies on the other hand, meant to realise the State’s constitutional obligations. It appears as if Amendment Act was hastily pushed through the legislative process without due regard to either ensuring sufficient public participation or even considering the workability of its provisions. The Amendment Act was passed despite concerns that 25.9% of the total land claims registered with the Department of Rural Development and Land Reform had not yet been finalised. Also, a further 50% of the land already acquired for restitution has still not been transferred to the beneficiaries. The Department of Rural Development and Land Reform had estimated that 379 000 new claims would be lodged between 2014 and 2019 in terms of the Amendment Act. According to the Land Claims Commission’s track record, it would take 144 years to resolve all the claims.

In passing the Expropriation Bill, much like the Amendment Act, there were, at provincial level, allegations of insufficient public participation in the legislative process. Various media reports revealed how, for example, in the Eastern Cape, the public was only made aware of the scheduled public hearings three days before they began. The Free State reportedly saw last minute venue changes, different from those initially advertised, which created confusion. It is doubtful whether the provinces managed to solicit a sufficient degree of public participation, which therefore casts doubt over the legitimacy of the NCOP’s final mandate.

Ultimately, failure by one of the Houses of Parliament to comply with a constitutional obligation amounts to failure by Parliament. The courts have made it abundantly clear that the legislature has a duty to involve the public in the legislative process. It stands to reason that good laws are made, and citizenship is enhanced, when legislators are required to invite and attend to public input. Parliament fails its constitutional duty if either the National Assembly or the NCOP do not adequately facilitate public participation.

By Phephelaphi Dube: Director, Centre for Constitutional Rights