More power for the provinces?

The Constitutional Court today declared invalid the entire Communal Land Rights Act (also referred to as CLARA). In the case of Tongoane and Others v Minister for Agriculture and Land Affairs and Others the Court today found that CLARA was invalid in its entirety because it was not adopted in terms of the correct procedure prescribed by the Constitution.

The Act, which was adopted in 2004, purported to give effect to the constitutional obligations set out in section 25(9) of the Bill of Rights. This section, inter alia, places a duty on Parliament to enact legislation to deal with the following situation:

A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

In other words, the Constitution places a duty on Parliament to enact legislation “diligently and without delay” to deal with the consequences of the 1913 Land Act and the consequent apartheid-era regulation of communal land rights which did not provide secure tenure for those living on communal land in terms of indigenous law. CLARA, rather belatedly, tried to fulfill this duty.

However the Act was heavily criticized because it seemed to transfer far too much power to traditional authorities to deal with the use and the enjoyment of rights of those living on communal land. Gender activists have been particularly concerned about the effects of this law on the rights of women living in traditional communities on communal land, while the unelected traditional leaders have welcomed the Act because it was perceived as fortifying their powers over their “subjects”.

In any event, the Court did not deal with these issues, but rather chose to declare the Act invalid because it was not passed by Parliament in the manner prescribed by the Constitution. Instead of treating the Bill as one that affects the provinces (requiring a more active role for the National Council of Provinces and its provincial delegations), Parliament adopted the law as if it dealt only with issues relating to the exclusive powers of the national Parliament (and hence requiring far less input from the NCOP and the provincial delegations).

This all seems rather technical and academic because the Act would have been passed by Parliament no matter what procedure was followed. This is because the ANC at present controls the provincial legislatures in 8 of the 9 provinces and party discipline would have ensured that the NCOP provincial delegations of at least 8 of the 9 provinces would have obtained a mandate from their provincial legislatures to support the Bill. But the judgment is nevertheless important because to my mind it confirms a slight shift in the thinking of Constitutional Court over the past few years about the appropriate constitutional relationship between the national and provincial governments.

Some commentators criticized the Constitutional Court for its extremely narrow interpretation of the powers of provinces in earlier cases – most notably in the Liquor Bill case. In today’s judgment the Constitutional Court, through some nifty legal footwork, emphasized the important role of provinces in adopting legislation affecting them and ruled that whenever legislation would substantially relate to the competences of the provincial legislatures, the NCOP – which represents the interests of provinces in the national Parliament – would have a greater role to play in the adoption of that legislation.

This would become more significant if the political balance of power shifts and more provinces are ruled by parties other than the ANC. In that sense, the judgment confirms the unique quasi-federal nature of our system of government and accords the provinces the power to play a decisive role in the adoption of any legislation affecting the provinces – even when broadly speaking, the legislation deals with an issue primarily within the exclusive competence of the national parliament.

The case also confirms the view adopted in the Doctors for Life case that Parliament had a duty to comply with the so called “manner and form” requirements for the adopting legislation. Where the Constitution prescribes a more onerous path for the adoption of legislation and Parliament followed the less onerous path, the Court will declare invalid that legislation – even where the legislation would have been adopted in any case. This, the Court said, was a necessary consequence of the Rule of Law and the supremacy of the Constitution.

These judgments place a rather important onus on the the Speaker and the Deputy Speaker of the National Assembly, and the Chairperson and the permanent Deputy Chairperson of the NCOP, who must decide what procedure must be followed when Bills are adopted by Parliament. If they wrongly tag the Bill to be adopted, the Court willl declare the Act passed in terms of this wrong procedure unconstitutional.

The judgment is to be welcomed as it strengthens the hand of provinces vis-a-vis the national legislature and fleshes out the nature of the quasi-federal system established by our Constitution.

There is, however, one perplexing aspect of the judgment that I do not understand. (This is a bit technical, so I hope, dear reader, you are still following me.) In developing the argument that the NCOP had a greater role to play in the adoption of legislation that affected the interests of provinces, Chief Justice Ngcobo argues that it would make no sense to accord enhanced powers to the NCOP only where the legislation deals with issues relating to the concurrent powers of the national and provincial legislature.

This is because their concurrent legislative powers would enable them [provinces] to enact their own preferred legislation in the same field, which indeed would enjoy some precedence, subject only to the national override provided for in section 44(2).

Unless I am seriously missing something, this statement embarrassingly confuses the exclusive powers of the provincial legislatures (to which section 44(2) applies) with the powers they exercise concurrently with the national legislature (to which section 146 applies). The reference to section 44(2) therefore seems just plain wrong as it applies to legislation regarding the exclusive powers of provinces – not to the concurrent powers they hold along with the national legislature. What Ngcobo must have meant was to refer to section 146 of the Constitution, which deals with the situation where both the national parliament and a provincial parliament have passed legislation dealing with one of the concurrent competencies.

This is the kind of mistake that students often make in exams and many a student have failed Constitutional Law because they have confused section 44(2) and section 146 of the Constitution. Section 44(2) deals with the exclusive powers given to provinces – not with the concurrent powers they share with the national legislature (as asserted by the Constitutional Court in the passage quoted above).

The mistake is more serious than a mere slip of the pen, because while section 44(2) does state that provincial legislation dealing with any of their exclusive competencies enjoy some precedence subject to an override, section 146 is far more equivocal. The national legislation enacted on any topic on which provinces and the national legislature share competence will prevail over provincial legislation as long as one of the long list of rather broadly phrased conditions are met.

As far as I can tell the Constitutional Court confused two very different sections of the Constitution. If I am correct, it might be helpful if the Constitutional Court corrected this mistake before the judgement is published and my students are further confused. If I am wrong, I would be happy to hear why.

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