In the application of:
SPEAKER OF THE NATIONAL ASSEMBLY First Applicant
CHAIRPERSON ON THE NATIONAL COUNCIL Second Applicant OF PROVINCES
and
LAND ACESS MOVEMENT OF SOUTH AFRICA First Respondent
ASSOCIATION FOR RURAL ADVANCEMENT Second Respondent
NKUNZI DEVELOPMENT ASSOCIATION Third Respondent
MODDERVLEI COMMUNAL PROPERTY ASSOCIATION Fourth Respondent
MAKULEKE COMMUNAL PROPERTY ASSOCIATION Fifth Respondent
POPELA COMMUNAL PROPERTY ASSOCIATION Sixth Respondent
MATABANE COMMUNITY Seventh Respondent
MAPHARI COMMUNITY Eighth Respondent
MLUNGISI AND EZIBELENI DISADVANTAGED Ninth Respondent GROUP
LADY SELBOURNE CONCERNED GROUP Tenth Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH Eleventh Respondent AFRICA
MINISTER OF RURAL DEVELOPMENT AND Twelfth Respondent LAND REFORM
CHIEF LAND CLAIMS COMMISSIONER Thirteenth Respondent
SPEAKER OF THE EASTERN CAPE Fourteenth Respondent PROVINCIAL LEGISLATURE
SPEAKER OF THE FREE STATE Fifteenth Respondent PROVINCIAL LEGISLATURE
SPEAKER OF THE GAUTENG Sixteenth Respondent PROVINCIAL LEAGISLATURE
SPEAKER OF THE KWAZULU – NATAL Seventeenth Respondent PROVINCIAL LEGISLATURE
SPEAKER OF THE LIMPOPO Eighteenth respondent PROVINCIAL LEGISLATURE
SPEAKER OF THE MPUMALANGA Nineteenth Respondent PROVINCIAL LEGISLATURE
SPEAKER OF THE NORTH WEST Twentieth Respondent PROVINCIAL LEGISLATURE
SPEAKER OF THE NORTHERN CAPE Twenty-first Respondent PROVINCIAL LEGISLATURE
SPEAKER OF THE WESTERN CAPE Twenty second Respondent PROVINCIAL LEGISLATURE
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APPLICANTS’ PRACTICE NOTE
INTRODUCTION
1. This is an application for an order extending the period of 24 months being the period which Parliament was afforded to re-enact the new Amendment Act as set out in paragraph 4, read with paragraph 7 of the order of this Court.
2. The judgement and order were handed down on 28 July 2016 and the period of 24 months within which Parliament was to re-enact expired on 28 July 2018 and was extended by this Honourable Court pending the hearing of this application. The Court is requested to grant an extension for a period of 8 months until 29 March 2019 by which time Parliament’s legislative process shall be concluded.
ISSUES TO BE ARGUED
3. Whether this court is precluded by the common law doctrine of functus officio from granting the extension sought by Parliament.
4. Whether if this court is not precluded, Parliament has made out a case for the extension it seeks.
PORTIONS OF THE RECORD NECESSARY FOR THE DETERMINATION
5. The entire record.
ESTIMATED DURATION OF THE ORAL ARGUMENT
6. It is estimated that the duration of the hearing will be less than a full day.
SUMMARY OF THE ARGUMENT
7. This application arises from this court’s judgement in Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces and Others1 (“the LAMOSA Judgement”). In that judgement this court declared the Restitution of Land Rights Amendment Act, No. 15 of 2014 (“the Amendment Act”) to be invalid and Parliament was declared to have failed to satisfy its obligations to facilitate public involvement in accordance with section 72(1)(a) of the Constitution.
8. This court afforded Parliament an opportunity to re-enact the Amendment Act within a period of 24 months from the date of the declaration of invalidity.
1 2016 (5) SA 635 (CC).
This court also left the “the question of how new claims should be dealt with whilst there are outstanding old claims” to Parliament to resolve.
9. This application is opposed by the LAMOSA respondents principally on the grounds that this court is functus officio – once it has made its order it cannot revisit it except on the limited grounds recognised in terms of the common law, or where the declaration of invalidity of a statute or conduct has been suspended and Parliament has been directed to cure the defect within a specified period, and has failed to do so.
10. We submit that this court has the power in terms of sec 172(1)(b) of the Constitution to grant the extension sought by Parliament. The application to seek extension of the period of 24 months is in order to enable it to discharge its constitutional obligations as well as to protect the right of the public to civic dignity, and is thus a constitutional matter as well as is an issue connected with a decision on a constitutional matter
11. The reliance by the LAMOSA respondents on the common law doctrine of functus officio as excluding the exercise by this court of its constitutionally ordained power to make just and equitable orders is misplaced. There is no basis, we submit, in attempting to restrict the remedial power to make a just and equitable order only to cases where the extension sought relates a declaration of invalidity that has been suspended, and not in cases such as the present where the declaration of invalidity takes effect immediately.
12. Even if there was a common law rule that precluded this court from granting the extension sought by Parliament, this would not mean that the granting of
the extension would not be competent because the authority of our courts to adjudicate disputes and issue orders does not derive from the common law, but from the constitution.
13. On the facts, Parliament has demonstrated that its failure to re-enact the Amendment Act within a period of 24 months was not as a result of remissness on its part, but rather as a result of the period of 24 months being inadequate for it to conclude its legislative process.
LIST OF AUTHORITIES
14. Acting Speaker of the National Assembly v Teddy Bear Clinic Abused Children and Another 2016 (10) BCLR 1129 (CC).
15. Doctor’s for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC).
16. Head of Mpumalanga Department of Education v Hoerskool Ermelo and Others 2010 (3) BCLR 177 (CC).
17. MEC for Health and Social Development, Gauteng v DZ [2017] ZACC 37.
18. My Vote Counts NPC v Minister of Justice and Correctional Services [2018]
ZACC 17.
19. Sibiya and Others v DPP, Johannesburg High Court and Others 2006 (2) BCLR 293 (CC).
20. Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another [2013] ZACC 35; 2014 (2) SA 168 (CC).
21. Zondi v MEC, Traditional and Local Government Affairs and others 2006 (3) SA 1 (CC).
TERRY MOTAU SC GCOBANI NGCANGISA
