On Tuesday 19 March 2019 at 10h00, the Constitutional Court handed down judgment in an application by the Speaker of the National Assembly and Chairperson of the National Council of Provinces (Parliament) for an extension of an interdict issued by the Constitutional Court in Land Access Movement of South Africa v Chairperson, National Council of Provinces (LAMOSA 1) against the processing of any land claims lodged between 1 July 2014 and 28 July 2016 (interdicted claims) pursuant to the now repealed Restitution of Land Rights Amendment Act (repealed Amendment Act).
In LAMOSA 1, the Land Access Movement of South Africa (LAMOSA) and other applicants brought an application challenging the constitutionality of the now repealed Amendment Act on the basis that Parliament failed to satisfy its constitutional obligation to facilitate public participation in the promulgation of the repealed Amendment Act. On 28 July 2016, the Constitutional Court declared the now repealed Amendment Act to be invalid. The Constitutional Court afforded Parliament an opportunity to enact a new Amendment Act within a period of 24 months from the date of the declaration of invalidity. Furthermore, the Court ordered that if Parliament failed to meet the aforementioned deadline, the Chief Land Claims Commissioner must (and any other party to the LAMOSA 1 application or person with a direct and substantial interest in the LAMOSA 1 Order may) apply to this Court within two months after the 24 months elapsed for an appropriate order on the processing of land claims lodged between 1 July 2014 and 28 July 2016 (interdicted claims).
Parliament failed to enact a new Amendment Act within the 24-month period. As a result, it launched this application seeking an extension of the interdict against the processing of the interdicted claims until 29 March 2019. It argued that this period was sufficient for the new Amendment Bill to pass through both the National Assembly and the National Council of Provinces. It argued further that it has already taken reasonable steps towards the expeditious processing of the Bill.
The first to sixth respondents (LAMOSA respondents) opposed the application. They argued that upon expiry of the 24-month period, the responsibility for determining the fate of the interdicted claims shifted to the Constitutional Court. The LAMOSA respondents also argued that the LAMOSA 1 Order was final and binding, and that this Court has no power to vary its previous order. If it does have this power, they argued that it is a discretionary power which must be used in very exceptional circumstances, and that Parliament has not shown that exceptional circumstances exist. The seventh to tenth respondents (Communities) did not oppose the relief sought by Parliament. They argued that no prejudice would be suffered and that it is in the interests of justice that the extension be granted.
In a unanimous judgment written by Mhlantla J, the Constitutional Court noted that it has wide discretionary powers pursuant to the Constitution and is required to make a just and equitable order. The Court held that although there was no suspension of the declaration of invalidity of the repealed Amendment Act, the act of interdicting the processing of the interdicted claims until either the enactment of a new Amendment Act or the processing of old claims operated like a suspension of a declaration of invalidity. Accordingly, the Court considered and applied the factors and considerations outlined in its previous jurisprudence in relation to extensions of a suspension of a declaration of invalidity. In doing so, it noted that Parliament had delayed in bringing the application before the Court and the explanations offered for its inaction were insufficient. Parliament had failed to show that there were exceptional circumstances justifying the order sought and, further, it had failed to show that a new Amendment Act would be enacted, and with the necessary public participation processes, by 29 March 2019. Thus, the application was dismissed.
In recognition of its remedial powers pursuant to the Constitution, the Court upheld the counter-application and granted the alternative relief proposed by the LAMOSA respondents. The Court held that the alternative relief creates a default position for regulating the old claims and interdicted claims and allows the Commission to consider the interdicted claims, albeit to a limited extent. This limits the prejudice outlined by the Communities as the processing of claims will, in theory, be faster. Further, the Court held that the alternative relief represents compromise, in that the Court provides relief pursuant to LAMOSA 1 and determines the process regarding the prioritisation of claims. It has the effect of being flexible and equitable by allowing Parliament to depart from this position by passing new legislation in respect of the prioritisation.
Finally, the Court held that the alternative relief, while lifting the supervisory role of the Court, makes provision for appropriate judicial oversight by the Land Claims Court. The Commissioner will be required to file reports on a range of aspects, including both constraints and the solutions thereto and the Land Claims Court will have the necessary expertise to assist where need be. This will ensure accountability by the Commissioner and the opportunity for the Commission to reflect on its progress in this arduous process.