Tongoane and Others v Minister for Agriculture and Land Affairs and Others

Four applicants, representing rural communities occupying communal land, challenged the constitutional validity of the Communal Land Rights Act 11 of 2004 (CLARA). CLARA was enacted to fulfil Parliament’s obligation under section 25(6) of the Constitution to provide legally secure tenure to people whose land tenure was rendered insecure by racially discriminatory laws. The applicants contended that CLARA undermined rather than enhanced tenure security and that Parliament had enacted it using the incorrect legislative procedure. In particular, Parliament passed CLARA as a section 75 Bill (ordinary Bill not affecting provinces) instead of a section 76 Bill (ordinary Bill affecting provinces), and allegedly failed to facilitate adequate public involvement as required by sections 59 and 72 of the Constitution. The North Gauteng High Court partially upheld the substantive challenge by declaring certain provisions invalid but refused to invalidate CLARA in its entirety on procedural grounds. The matter came before the Constitutional Court for confirmation and appeal.

The Communal Land Rights Act 11 of 2004 was declared unconstitutional and invalid in its entirety for failure to comply with the legislative procedure prescribed by section 76 of the Constitution.

This case is a leading authority on the distinction between section 75 and section 76 Bills and affirms the central role of provinces and the NCOP in legislation affecting provincial competencies. It underscores that strict compliance with constitutional legislative procedures is essential and that procedural defects render legislation invalid regardless of Parliament’s good faith. The judgment had major implications for land reform policy and delayed the statutory framework for communal land tenure.