Traditional and Khoi-San Leadership Act: Explanation of the court order
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:
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::
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.
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.
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 Because the TKLA repealed the Traditional Leadership and Governance Framework Act (TLGFA), it means that the TLGFA will come back into effect at the same time.
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:
0 Comments
Leave a Reply. |
LandNNES mediaThis blog features news from the network Archives
January 2024
Categories |