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

Four African communities (Kalkfontein, Makuleke, Makgobistad, and Dixie) challenged the constitutional validity of the Communal Land Rights Act 11 of 2004 (CLARA). The communities occupied communal land governed by indigenous law and administered through traditional structures. They claimed their land had been administered according to indigenous law, with traditional leaders and tribal authorities playing a role. CLARA was intended to fulfil the constitutional obligation under section 25(6) to provide legally secure tenure to people whose land tenure was legally insecure as a result of apartheid laws. However, the communities contended that CLARA would undermine their security of tenure rather than strengthen it. The challenge was two-fold: (1) procedural - CLARA was enacted under section 75 (Bills not affecting provinces) rather than section 76 (Bills affecting provinces); and (2) substantive - CLARA's provisions undermined security of tenure. The High Court found that Parliament applied the incorrect "pith and substance" test instead of the "substantial measure" test when classifying the Bill. Despite this, the High Court declined to declare CLARA invalid on procedural grounds, reasoning that Parliament acted in good faith and provinces were duly represented. The High Court did declare certain substantive provisions of CLARA invalid and referred the order to the Constitutional Court for confirmation.

• Whether CLARA should have been classified as a section 76 Bill (affecting provinces) rather than a section 75 Bill (not affecting provinces)
• What is the correct test for 'tagging' Bills under section 76(3) of the Constitution
• Whether the provisions of CLARA substantially affect functional areas listed in Schedule 4 (indigenous and customary law, and traditional leadership)
• Whether Parliament's failure to follow the section 76 procedure renders CLARA invalid
• Whether Parliament complied with its constitutional obligation to facilitate public involvement in the legislative process
• Whether the substantive provisions of CLARA undermine security of tenure

The appeal was upheld. The order of the High Court was set aside and replaced with an order declaring CLARA invalid in its entirety for want of compliance with section 76 of the Constitution. The challenge to the Traditional Leadership and Governance Framework Act was dismissed. The respondents were ordered to pay costs, including costs of three counsel. No order was made on the direct access application. The Court provisionally set aside the High Court's costs order (which awarded costs of five counsel) and substituted it with costs of three counsel, but allowed parties 10 days to make submissions on the costs issue.

A Bill must be classified as a section 76 Bill and follow that procedure when its provisions in substantial measure fall within a functional area listed in Schedule 4, even if the main subject-matter or "pith and substance" of the Bill falls within exclusive national competence. The test for tagging Bills is broader than the test for determining legislative competence. Tagging focuses on whether the Bill's provisions substantially affect the interests of provinces, not merely on whether provinces have concurrent legislative competence over the subject-matter. Section 76 procedures are material constitutional requirements. Failure to comply with these manner and form requirements renders the resulting legislation invalid. Courts have a duty to declare such legislation invalid under section 172(1)(a). Good faith or substantial compliance cannot cure a failure to follow constitutionally prescribed procedures where those procedures are material to the law-making process. Legislation that replaces or substantially affects indigenous law governing communal land and that confers wide-ranging powers on traditional councils falls within the Schedule 4 functional areas of "indigenous and customary law" and "traditional leadership" and must be enacted under section 76.

The Court noted, without deciding, that different considerations might apply where Parliament follows the more burdensome section 76 procedure instead of the less exacting section 75 procedure (as opposed to the reverse, which occurred here). The Court emphasized the delay of approximately 13 years in enacting legislation to fulfill the section 25(6) constitutional obligation was "unfortunate" and that such legislation "must be enacted with a sense of urgency and diligence". The Court described section 237 (constitutional obligations must be performed diligently and without delay) and Item 21 of Schedule 6 (legislation required by the Constitution must be enacted within a reasonable period). The Court criticized the one-year delay between argument and judgment in the High Court as "most regrettable". The Court also noted that when a Minister responsible for legislation under constitutional challenge reflects that the legislation is not supportable, the Minister has a duty to convey this to the Court, which is commendable and expected in a constitutional democracy founded on accountability, openness and responsiveness. The Court made observations about the appropriate award of costs, noting that awarding costs of five counsel in the High Court was "excessive and unjustified" and that costs of three counsel was appropriate given the complexity of the case.

This case is a landmark judgment on the legislative process under the Constitution and the classification ("tagging") of Bills. It clarifies that the test for tagging Bills differs from the test for determining legislative competence. The "substantial measure" test requires Parliament to look at whether a Bill's provisions substantially affect functional areas in Schedule 4, not just at the Bill's main substance or "pith and substance". The judgment emphasizes the constitutional importance of cooperative government and the role of provinces in legislation affecting them. It establishes that failure to follow prescribed legislative procedures is a material constitutional violation that ordinarily results in invalidity, regardless of Parliament's good faith. The judgment is also significant for its discussion of the history of land dispossession under colonial and apartheid laws, and the constitutional imperative to provide secure land tenure to communities whose tenure is legally insecure as a result of past racially discriminatory laws. It reinforces that constitutional obligations, particularly those relating to land reform, must be performed diligently and without delay (section 237).