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Provision of Reasonable Time for Public Participation is Mandatory Before The Enactment of a Statute

Provision of Reasonable Time for Public Participation is Mandatory Before The Enactment of a Statute

In the matter between Land Access Movement of South Africa & 5 Others and Chairperson of the National Council of Provinces & 17 Others

Constitutional Court of South Africa

Case CCT 40/15

Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J

July 28, 2016

Reported by Linda Awuor & Kakai Toili

Download the Decision

Constitutional law – statutes – enactment of statutes – public participation – whether the National Council of Provinces acted reasonably in facilitating public involvement in the process of enacting the Restitution of Land Rights Amendment Act 15 of 2014 – Constitution of the Republic of South Africa, 1996, sections 59, 72(1) (a), 118; Rules Of The National Council of Provinces 9th Edition, section 240

Constitutional law – statutes – enactment of statutes – public participation –whether the Restitution of Land Rights Amendment Act 15 of 2014 was unconstitutional – Constitution of the Republic of South Africa, sections 25 (7), 172 (1) (a)

Brief Facts:

The Restitution Act had been enacted in 1994 to give effect to the constitutional imperative of restitution of land. Section 25(7) of the South African Constitution provided that persons or communities dispossessed of land after June 19, 1913 as a result of past racially discriminatory laws or practices were entitled to restitution or equitable redress. The Restitution Act provided that all claims for restitution were to be lodged by December 31, 1998.

In 2014, a draft Restitution of Land Rights Amendment Bill (Bill) providing for, amongst other things, the re-opening of claims was tabled and passed by the National Assembly. The Bill was subsequently referred to the National Council of Provinces (NCOP), which sent the Bill to the provincial legislatures to facilitate public participation on its behalf. Less than two weeks were made available to the provincial legislatures to advertise and hold public hearings, invite and consider all oral and written submissions from members of the public, and provide negotiating and final mandates. By the end of March 2014, all but one of the provincial legislatures had approved the Bill. The NCOP passed the Bill in the same month and it was assented by the President on June 29, 2014 and duly enacted into law as the Amendment Act on July 1, 2014.

Issues:

(i) Whether National Council of Provinces acted reasonably in facilitating public involvement in the process of enacting the Restitution of Land Rights Amendment Act 15 of 2014 by giving the public less than 2 weeks to give their input.

(ii)  Whether the Restitution of Land Rights Amendment Act 15 of 2014 was unconstitutional for failure to give the public adequate time to participate in theprocess of its enactment.

Relevant Provisions of the Law:

Constitution of the Republic of South Africa

Section 25 – Property

(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

Section 59 – Public access to and involvement in National Assembly

(1)  The National Assembly must—

(a)facilitate public involvement in the legislative and other processes of the Assembly and its committees; and

(b)conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken—

(i)  to regulate public access, including access of the media, to the Assembly and its committees; and

(ii)  to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person.

(2)  The National Assembly may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.

Section 118 – Public access to and involvement in provincial legislatures

(1)  A provincial legislature must—

(a) facilitate public involvement in the legislative and other processes of the legislature and its committees; and

(b)conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken—

(i)    to regulate public access, including access of the media, to the legislature and its committees; and

(ii)  to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person.

(2)  A provincial legislature may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.

Section 72 – Public access to and involvement in National Council

(1)  The National Council of Provinces must—

(a) facilitate public involvement in the legislative and other processes of the it is reasonable and justifiable to do so in an open and democratic society.

Section 172 – Powers of courts in constitutional matters

(1)  When deciding a constitutional matter within its power, a court—

 (b) may make any order that is just and equitable, including—

(i)   an order limiting the retrospective effect of the declaration of invalidity;

RULES OF THE NATIONAL COUNCIL OF PROVINCES 9th Edition: March 2008

Section 240 – Legislative Cycle

(3) In the event that the substance of the Bill requires sufficient time beyond the six – weeks period, the cycle may be extended with the approval of the Chairperson of the Council.

Held:

  1. Section 72(1) (a) of the South African Constitution on public access to and involvement in National Council, imposed an obligation on the National Council of Provinces(NCOP) to facilitate a consultative process with the public during law making. Section 59 on public access and involvement in National Assembly and section 118 on public access to and involvement in provincial legislatures, imposed separate but parallel obligations on the National Assembly and Provincial Legislatures respectively to have facilitated public participation.
  2. It was tempting to have asked why the Constitution specifically imposed the duty, as Parliament and Provincial Legislatures were elected by the people to represent them in, amongst others, the law making process. The answer was not far to be sought. The notion was a direct enunciation that South Africa’s democracy contained both representative and participatory elements. The elements were not mutually exclusive, rather they supported and buttressed one another. The argument that the public needed not to have participated in the legislative process as its elected representatives were speaking on the public’s behalf was rejected.
  3. Jurisprudence dealt at length with why the South African Constitution imposed the obligation that Parliament facilitate public participation in the legislative process. It was beneath the dignity of those entitled to have been allowed to participate in the legislative process to have been denied the constitutional right.
  4. The South African Constitution demanded that the public had to be afforded a meaningful chance of participating in the legislative process. The standard that could have been applied in determining whether Parliament had met its obligation of facilitating public participation was one of reasonableness. The reasonableness of South Africa’s Parliament’s conduct depended on the peculiar circumstances and facts at issue
  5. When determining the question whether Parliament’s conduct was reasonable, some deference should have been paid to what Parliament considered appropriate in the circumstances, as the power to have determined how participation in the legislative process would have been facilitated rested upon Parliament. There had to have been regard to issues like time constraints and potential expense and the importance of the legislation in question, and its impact on the public.
  6. Relevant factors that Parliament ought to have considered when determining how it would have involved the public in its legislative process included: the rules it had adopted for the purpose, the nature of the legislation in question and any need for its urgent adoption. They too bore relevance to the determination of the reasonableness of Parliament’s conduct.
  7. The right to restitution of land was sourced from the South African Constitution itself. The Amendment Act gave effect to that right. The subject to which the right related touched nerves that continued to be raw after many decades of dispossession. The importance of the right to restitution, therefore, could not have been overstated. Restitution of land rights equaled restoration of dignity. The sudden availability of land also facilitated the enjoyment of other constitutional rights. Compensation under the amended Restitution Act was also of great significance.
  8. Axiomatically, the re-opening of the land claims process was of paramount importance and public interest. It was crucial that there should have been reasonable public participation in the legislative process that resulted in the enactment of the Amendment Act.
  9. Given the gravitas of the legislation and the thorough going public participation process that it warranted, the truncated timeline was inherently unreasonable. Objectively, on the terms stipulated by the timeline, it was simply impossible for the NCOP and by extension the Provincial Legislatures to have afforded the public a meaningful opportunity to have participated.
  10. On a conspectus of all that was relevant, the adoption of the timeline was a classic breach of the timetable that had to have been subordinated to the rights guaranteed in the Constitution, and not the rights to the timetable. In drawing a timetable that included allowing the public to participate in the legislative process, the NCOP could not have acted perfunctorily. It had to have applied its mind taking into account: whether there was real and not merely assumed urgency, the time truly required to have completed the process and the magnitude of the right at issue.
  11. The views and opinions expressed by the public at the provincial hearings did not filter through for proper consideration when the mandates were being decided upon. That deprived the process of the potential to have achieved its purpose. Public involvement had to have been an opportunity capable of influencing the decision to have been taken.
  12. The relevance of the conduct of Provincial Legislatures was that it was open to the NCOP not to have conducted public hearings itself and to have had the Provincial Legislatures done them instead. There was commonality between the participation process at the Provincial Legislatures and the NCOP’s legislative process.
  13. There were indeed flaws in the facilitation of public participation by the Provincial Legislatures. Although these flaws could not have been divorced from the truncated timeframes that the Provincial Legislatures were given, it was necessary to have assessed whether the Provincial Legislatures’ efforts were themselves adequate.
  14. As with the National Assembly and NCOP, the South African Constitution placed an obligation, in terms of section 118 on the Provincial Legislatures to facilitate public involvement in their legislative processes. The obligation was central to a representative and participatory democracy. When compared to Parliament, Provincial Legislatures were closer to, and more in touch with the people and better placed to have reached the nooks and crannies of the country. As a result of their collectively wide, but geographically focused reach and ability to have penetrated even the most remote areas of South Africa, their contributions to participatory democracy could not have been overstated. Public participation facilitated by Provincial Legislatures enabled direct, formal input by affected people into the legislative process.
  15. Amongst the measures considered important was notice of and information about the relevant legislation. A notice did not only provide details of the place, time and purpose of a public hearing but it also assisted in building awareness. Without notice, the public would have been denied an opportunity to have participated in the legislative process.
  16. In almost all the provinces, advertisements of the public hearings were made not more than seven days before the hearings and in others, such as Mpumalanga, only two days prior to the hearings. The obvious result was that some who, had they been aware of the impending hearings, might have participated in them were deprived of that opportunity. The period between the notice and the public hearings was too limited to have allowed the public to study the Bill and prepare for the hearings adequately. That was likely to have had an adverse impact on the quality of submissions to the Provincial Legislatures.
  17. In the Eastern Cape the notice did not meet the required standard. The manner of advertisement was not likely to have resulted in the notices reaching any significant number of intended recipients. The Northern Cape process was a complete disaster. A hearing was advertised within and for one municipality. The municipality, Siyancuma, in the Douglas area was in the eastern part of the Northern Cape. The farthest areas from the municipality in the very vast expanse of land were no less than 900 kilometers away. The reality was not only that people from those areas were not given notice at all, it was also that even if they had somehow become aware of the Siyancuma hearing, many would have most likely not been able to have attended it.
  18. Provincial Legislatures were not appendages of the NCOP. They were constitutionally created entities with their own separate existence and powers. Although the NCOP may have facilitated the public participation process through them, that in no way subordinated them to the authority of the NCOP. They did not exist to have been at the beck and call of the NCOP. They too had a duty to have played their part properly in affording the public an opportunity to participate in the legislative process.
  19. Provincial Legislatures performed their task as an important cog in the NCOP public participation process, but they did not lose their separate identity. If a timeline received from the NCOP made it impossible for them to have performed the function well, nothing precluded them from telling the NCOP as much, that would have helped cause the NCOP to apply its collective mind properly to the question of the timeline, and if need be to have extended it beyond that envisaged in rule 240(3) of its Rules on legislative cycle. Accepting the timeline as they did, the seven Provincial Legislatures acted unreasonably.
  20. Where the NCOP had decided that public hearings should have taken place at the Provincial Legislatures, in truth those hearings were part of the NCOP process. Notwithstanding the fact that Provincial Legislatures had their own distinct obligation to have facilitated public participation and were separate from and not mere appendages of the NCOP. Any shortcomings in the processes of the Provincial Legislatures fell to be imputed to the NCOP.
  21. The NCOP public participation process was unreasonable and thus constitutionally invalid. Failure by one of the Houses of Parliament to have complied with a constitutional obligation amounted to failure by Parliament. The deficient conduct of the NCOP in facilitating public participation in passing the Bill tainted the entire legislative process and was a lapse by Parliament as a whole. That was of particular significance where there was a heightened need for the involvement of the NCOP.
  22. Section 172(1) (a) of the South African Constitution on powers of courts on constitutional matters, enjoined the Court to declare that the conduct of the NCOP and Provincial Legislatures was inconsistent with the Constitution and therefore invalid.
  23. The invalidity of the Amendment Act was not as a result of any inherent turpitude in its character. Rather, the Act sought to vindicate the very important constitutional right guaranteed in section 25(7) of the South African Constitution on property.
  24. In the circumstances, it seemed unjust to have invalidated the claims that had been lodged already. Section 172(1)(b)(i) of the South African Constitution on powers of courts on constitutional matters gave the Court a discretion to have made a just and equitable order, including an order limiting the retrospective effect of the declaration of invalidity.
  25. It was just and equitable that the order of invalidity should have taken effect from the date of judgment. That would have left new applications already lodged when judgment was handed down intact. If the Amendment Act were to have been declared invalid without limiting the retrospective effect of the declaration, the lodged new applications would have ceased to exist. The new Applicants’ right to restitution would have been extinguished with the Amendment Act because the right to restitution in section 25(7) on property only existed to the extent provided by an Act of Parliament.
  26. There was no reason why costs should not have followed the result. Although effectively Parliament as a whole had failed to fulfil a constitutional obligation, only the NCOP was to pay costs. Although the Provincial Legislatures also failed to fulfil their constitutional obligations, although they and the President, Minister and Commissioner opposed the application and although there might well have been a basis for mulcting the Provincial Legislatures, the President, Minister and Commissioner for costs, the primary cause of what the Applicants were complaining about was the truncated process imposed by the NCOP. In the exercise of discretion, it was proper to have awarded costs only against the NCOP as represented by the Chairperson of the NCOP.
  27. It was declared that Parliament failed to satisfy its obligation to facilitate public involvement in accordance with section 72(1)(a) of the Constitution.
  28. Restitution of Land Rights Amendment Act 15 of 2014 declared invalid.
  29. Declaration of invalidity in paragraph 2 to take effect from the date of judgment.
  30. Pending the re-enactment by Parliament of an Act re-opening the period of lodgement of land claims envisaged in section 25(7) of the Constitution, the Commission on Restitution of Land Rights, was interdicted from processing in any manner whatsoever land claims lodged from July 1, 2014.
  31. The interdict in paragraph 4 did not apply to the receipt and acknowledgement of receipt of land claims in terms of section 6(1) (a) of the Restitution of Land Rights Act 22 of 1994.
  32. Should the processing, including referral to the Land Claims Court, of all land claims lodged by December 31, 1998 be finalised before the re-enactment of the Act referred to in paragraph 4 above, the Commission may process land claims lodged from July 1, 2014.
  33. In the event that Parliament did not re-enact the Act envisaged in paragraph 4 within 24 months from the date of the order, the Chief Land Claims Commissioner should, and any other party to the application or person with a direct and substantial interest in the order may, apply to within two months after that period had elapsed for an appropriate order on the processing of land claims lodged from July 1, 2014.
  34. The National Council of Provinces to pay the Applicants’ costs, including costs of two counsel.

Relevance to Kenyan Situation

The Constitution of Kenya 2010 introduces the element of public participation into our legal regime. The Constitution under article 10 (1) provides that the national values and principles of governance in this article bind all state organs, state officers, public officers and all persons whenever any of them applies or interprets this Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions. Article 10 (2) (a) provides that the national values and principles of governance include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people.

Kenyan Courts have handled several cases touching on public participation with respect to the amount of time to be afforded to the public for there to be effective public participation. In Republic v County Government of Kiambu Exparte Robert Gakuru & Jamofastar Welfare Association the Court held that it should be appreciated that the yardstick for public participation was that a reasonable opportunity had been given to the members of the public and all interested parties to know about the issue and to have an adequate say. The Court went on to hold that It could not have been expected of the legislature that a personal hearing would be given to every individual who claimed to be affected by the laws or regulations that were being made and that what was necessary was that the nature of concerns of different sectors of the parties should have been communicated to the law maker and taken in formulating the final regulations. The Court further held that what mattered was that at the end of the day a reasonable opportunity was offered to members of the public and all interested parties to know about the issues and to have an adequate say and that what amounted to a reasonable opportunity would depend on the circumstances of each case.

In Coalition For Reform And Democracy (Cord) & another v Republic Of Kenya & another, Petition Nos. 628 & 630 Of 2014, the Bill was published on December 8, 2014 the same was only made available to the public on December 9, 2014. The Court held that through the limited use of digital technology only and the tight timeline given by the departmental committee on Administration and National Security for making submissions, the sheer volume of the bill and the difficulty in accessing the Bill seriously limited public participation and made it impossible for any meaningful public participation and engagement with the Bill.

This case is important to the Kenyan situation as it will go a long way in assisting the Kenyan Courts in handling cases dealing with public participation and the amount of time required for effective public participation.

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