Explanation of the TKLA judgment

​Traditional and Khoi-San Leadership Act: Explanation of the court order

1. It is declared that Parliament has failed to comply with its constitutional obligation to facilitate public involvement before passing the Traditional and Khoi-San Leadership Act 3 of 2019 (Act)

 
The Constitutional Court agrees that there was no adequate facilitation of public involvement with the applicants before the TKLA was passed. The Constitution requires the following from parliament:

1. Section 59(1)(a): “The National Assembly must facilitate public involvement in the legislative and other processes of the Assembly and its committees.”
2. Section 72(1)(a): “The National Council of Provinces must facilitate public involvement in the legislative and other processes of the Assembly and its committees.”
3. Section 118(1)(a) of the Constitution: “A provincial legislature must facilitate public involvement in the legislative and other processes of the Assembly and its committees.”

The Constitutional Court  held that public participation is a very important aspect of democracy, especially considering our country’s colonial and Apartheid past that was characterised by ignoring the views of marginalised people regarding laws that governed them.
 
The Court held that there must be reasonable steps taken to facilitate public participation. In considering whether the process was reasonable, the nature and importance of the legislation is significant: the greater the impact of the legislation on the rights of people, the better the process should be to be reasonable. In the judgment in the earlier case of Doctors For Life, the Court set out what would constitute as reasonable steps::

1. Did Parliament ensure that they provided meaningful opportunities for public participation?
2. Did Parliament ensure that the people affected were able to take advantage of the opportunities Parliament provided?

 
Parliament’s approach to public participation must be one that provides an opportunity that could influence the decision to be taken regarding legislation. Not only must people get the reasonable opportunity to make submissions, but those submissions must be placed before the lawmakers and thus be able to change the minds of the lawmakers. Even if Parliament decides to not make any changes, that decision must be taken after legitimately considering the public’s opinion. 

1. The Act was, as a consequence, adopted in a manner that is inconsistent with the Constitution and is therefore declared invalid.

 
The way in which parliament passed the TKLA was unconstitutional. As a result, the Constitutional Court declared the Act invalid. This means that the whole Act is set aside.

1. However, the order declaring the Act invalid is suspended for a period of 24 months to enable Parliament to re-enact the statute in a manner that is consistent with the Constitution or to pass another statute in a manner that is consistent with the Constitution.

 
The court, however, held that its order that the Act is invalid will only kick in after 24 months. That means the TKLA is not immediately invalid, but only after 2 years. They did this so that Parliament has time to reconsider the TKLA and fix it or write a new law, but this time following a constitutional process.
 
If Parliament fails to do so by 30 May 2025, the TKLA will immediately become invalid. Because the TKLA repealed the  Traditional Leadership and Governance Framework Act (TLGFA), it means that the TLGFA will come back into effect at the same time.

1. What does this mean for now?

The order means that the TKLA remains the law for either the next 2 years or earlier if Parliament passes new legislation before (although that is unlikely given how long Parliament takes to act).
A number of things that should happen in terms of the TKLA, like traditional council elections and the creation of traditional community accounts (like the D account), required regulations to be passed in terms of the TKLA first. It is unlikely that these regulations will be passed now given that the TKLA will become invalid in 2 years’ time. That would mean that elections won’t happen and probably very little else.
However, as the TKLA will be in force for another 2 years, if communities want elections to happen, we can demand that regulations are passed and elections go ahead. There is no legal reason, until 30 May 2025, why that should not happen.
The other big question is whether agreements can be signed in terms of s24 of the TKLA. Our preliminary view is that such agreements can be signed util 30 May 2025. However, there must be questions about the validity of such agreements: since all traditional councils are currently not validly constituted (because the deadline for elections was missed), can they sign agreements? And if an agreement is signed in terms of an Act that has already been declared unconstitutional even though it is still in force, what happens to such an agreement once the Act falls away (at 30 May 2025).
These are questions that don’t have clear answers, and we may want to be proactive in telling the Department how this should be dealt with. For example, one could demand that a circular be sent around (as the North West government did some years ago) warning traditional councils not to sign agreements as they have not had elections.
For now, we suggest:

• Getting a view from communities about what their priorities are: do they want elections to be pushed? Do they want a moratorium on agreements signed in terms of the TKLA?
• Encouraging constituencies to look out for powers exercised by traditional councils on the ground and where these are problematic, alerting our networks. The status of traditional councils is very questionable at present, so it is unclear whether they can exercise any powers.

Raise and document all abuses on the ground.