Striking a balance between processing land claims and enacting legislation that meets Constitutional muster
4 April 2019
On 19 March 2019, the Constitutional Court (the Court) handed down judgment in Speaker of the National Assembly and Another v Land Access Movement of South Africa and Others (LAMOSA 2). The matter was an application brought by the Speaker of the National Assembly (NA) and the Chairperson of the National Council of Provinces (NCOP) for an extension of an interdict granted by the same Court in Land Access Movement of South Africa v Chairperson, National Council of Provinces (LAMOSA 1).
In LAMOSA 1, LAMOSA brought an application challenging the constitutionality of the (now repealed) Restitution of Land Rights Amendment Act (Amendment Act) on the grounds that Parliament had failed to meet its constitutional obligation to facilitate adequate public participation when promulgating the Amendment Act.
The Court granted an interdict against the processing of any land claims by the Commission on Restitution of Land Rights (Commission) that were lodged between 1 July 2014 and 28 July 2016 (interdicted claims) in terms of the Amendment Act. The Amendment Act sought to re-open the restitution process, permitting new claims to be lodged until 30 June 2019. The effect of the interdict was that none of the claims could be processed until Parliament enacted new and constitutional legislation governing the processing of any new claims.
The Court declared the Amendment Act invalid and gave Parliament 24 months from the date of declaration of invalidity within which to enact new legislation that met constitutional muster (the meaningful public participation criteria). The Court stipulated that should Parliament fail to meet the deadline, the Chief Land Claims Commissioner (Commissioner) was to apply to the Court within two months of the lapsing of the initial 24 months for the appropriate order regarding the processing of the interdicted claims.