Speaker of the National Assembly and Another v Land Access Movement of South Africa and Others

This case is a sequel to LAMOSA 1 where the Constitutional Court struck down the Restitution of Land Rights Amendment Act 15 of 2014 on 28 July 2016 due to inadequate public participation. The Court interdicted the Commission on Restitution of Land Rights from processing claims lodged between 1 July 2014 and 28 July 2016 (interdicted claims) and gave Parliament 24 months to enact new legislation. The interdict would remain until Parliament enacted a new Amendment Act, all old claims (lodged before 31 December 1998) were finalised, or if Parliament failed to act within 24 months, interested parties could apply to the Constitutional Court for an appropriate order. Parliament failed to enact the required legislation within the 24-month period. Three days after the deadline expired on 30 July 2018, Parliament applied for an 8-month extension until 29 March 2019, citing that the legislative process was at an advanced stage. The LAMOSA respondents opposed the application and filed a counter-application seeking a permanent order on how the interdicted claims should be processed, prioritising old claims over interdicted claims.

• Whether the Constitutional Court has power to extend the 24-month period after it has expired and whether the Court is functus officio
• Whether it is just and equitable to grant Parliament an extension to enact the required legislation
• What is the appropriate remedy for processing the interdicted claims in the absence of legislation
• Whether the Court's order should prioritise old claims over interdicted claims
• Whether making such an order would violate the separation of powers doctrine
• The extent of the Court's remedial powers under section 172(1)(b) of the Constitution

1. Parliament's application for an extension was dismissed. 2. The counter-application by the first to sixth respondents was upheld to the extent set out in the order, subject to Parliament legislating otherwise. 3. The Commission is prohibited from processing interdicted claims until all old claims are settled/referred to the Land Claims Court or the Land Claims Court grants permission. 4. Interdicted claimants may only participate as interested parties in old claim proceedings to the extent their participation assists in establishing or rejecting old claims. 5. Interdicted claimants cannot obtain relief altering finalised old claim awards or be awarded land subject to pending old claims, unless the Land Claims Court orders otherwise in exceptional circumstances. 6. The Chief Land Claims Commissioner must file six-monthly reports to the Land Claims Court on progress in processing old claims. 7. Parliament was ordered to pay costs of the first to sixth respondents, including costs of two counsel.

The binding legal principles established are: (1) Where a court order expressly reserves the power to make further orders, the court is not functus officio and may make subsequent orders within the scope reserved. (2) Applications to extend time periods in constitutional orders must be brought before the period expires and must meet the requirements set out in Teddy Bear Clinic: sufficient explanation for delay, likelihood of meeting the extended deadline, consideration of prejudice, and promotion of orderly state administration. (3) Under section 172(1)(b) of the Constitution, courts have wide remedial powers to make just and equitable orders, but these powers must be exercised sparingly and in a manner that respects the separation of powers by not usurping legislative functions. (4) Where constitutional orders provide interim measures pending legislative action, courts may craft default positions that apply unless and until Parliament legislates otherwise, thereby balancing the need for effective remedies with respect for parliamentary authority. (5) In the land restitution context, where legislation has been declared invalid but claims lodged under it have been kept alive, courts may prioritize old claims over new claims as an interim measure, subject to legislative amendment, to protect legitimate expectations and promote orderly processing of claims.

The Court made several notable observations: (1) It emphasized the fundamental importance of land restitution to the constitutional project, stating "There can be no freedom, without land" and linking land restitution to dignity and healing historical trauma. (2) The Court noted that expeditious land restitution could contribute to wider constitutional values including equality, dignity, social justice, economic development, gender equality, and rural livelihoods. (3) The Court warned that continued delays in processing land claims have a "debilitating effect on the land reform project." (4) The Court observed that while the main relief sought by LAMOSA respondents (permanently prioritizing old claims) had merit, it was overly broad and would require the Court to dabble in legislating to an extent beyond its proper role. (5) The Court noted that nothing in its order would prevent Parliament from enacting fresh legislation on processing interdicted claims. (6) The Court declined to rule on the constitutionality of section 6(1)(g) as it was no longer necessary given the remedy crafted, leaving this for Parliament to address. (7) The Court expressed concern about Parliament's tardiness, noting it took no action for almost 11 of the 24 months provided and that public participation only commenced 18 months after the LAMOSA 1 judgment.

This case is significant for several reasons: (1) It confirms that the Constitutional Court retains jurisdiction to vary or supplement orders where it has expressly reserved that power, distinguishing such orders from truly final orders subject to the functus officio doctrine. (2) It articulates the requirements for extending time periods in constitutional orders, emphasizing that extensions will only be granted where there is sufficient explanation for delay, reasonable prospects of meeting the extended deadline, and exceptional circumstances. The Court warned that Parliament cannot assume extensions will be granted as a matter of course. (3) It demonstrates the Court's remedial powers under section 172(1)(b) to craft interim measures protecting rights while respecting separation of powers by explicitly making orders subject to legislative amendment. (4) It provides important guidance on prioritizing land restitution claims, establishing a default framework while preserving parliamentary authority. (5) It emphasizes the constitutional importance of the land restitution process and the need for expeditious processing of claims as linked to dignity and other constitutional rights. (6) It establishes ongoing judicial oversight mechanisms through the Land Claims Court to ensure accountability in processing claims. The judgment balances constitutional imperatives for land reform with institutional respect for Parliament's legislative authority.