Concourt hears application to extend consultations on land restitution bill
Parliament wants more time to finalise the proposed legislation, after missing its original deadline
06 NOVEMBER 2018 – 19:39 THETO MAHLAKOANA
The speaker of the National Assembly and the chair of the National Council of Provinces failed to give “sufficient” explanation for not re-enacting the Restitution of Land Rights Amendment Bill, the Constitutional Court heard on Tuesday.
The amendments to the act sought to reopen the period for land claims beyond July 2014, which had otherwise been the cut-off date for old claims.
The court was hearing an application by parliament to be granted an extension until March 29 2019 to finalise the bill, which had to be enacted within 24 months as ordered by the court in July 2016.
In 2016, the Constitutional Court ordered parliament to review provisions in the bill after it was found to have failed to fulfil its obligation to facilitate public involvement in the legislation process.
The ruling also meant the Commission on Restitution of Land Rights was interdicted from processing land claims in accordance with section 25 (7) of the constitution until the amendments are enacted in accordance with the law.
On Tuesday counsel for the speaker Terry Motau SC told the court the National Assembly sought to be afforded an opportunity to bring about a new statute. He said the delay was caused by, among others, clashing schedules and parliamentary recesses.
Chief justice Mogoeng Mogoeng grilled Motau for further details, asking for “material that demonstrates the explanation given was sufficient to justify a departure from what was supposed to have happened”.
According to the 2016 order, in the event that parliament fails to re-enact the amendments within the stipulated timeline, the chief land claims commissioner “must … apply to the court within two months after that period has lapsed for an appropriate order on the processing of land claims lodged from July 2014”.
Neither parliament nor the commission approached the court ahead of the 24-month deadline or after, with proceedings for the extension application getting under way in September.
The Land Access Movement of SA (Lamosa), which lodged the original 2016 application that ruled the amendment act was invalid, filed a counter application to the extension request.
Alan Dodson SC, who appeared on behalf of Lamosa, opposed the request by parliament, saying there was no guarantee they would complete the required work before March 29.
He explained that the legislators still have to embark on public consultation processes and it is common knowledge that parliament does not operate in December and January, which means two months of the requested four months are out of the picture.
“We are back into precisely the same situation as far as public participation is concerned. We know that not nearly enough time has been set aside for the public participation process … Once one looks at the facts, it is not going to happen. There is not enough time anymore for a proper process to be followed,” Dodson said.
Lamosa wanted the court to make a determination on how the matter should be dealt with going forward as envisaged in the 2016 order. Judgment was reserved.
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