Tongoane v Minister of Agriculture and Land Affairs

The Constitutional Court declared the Communal Land Rights Act 11 of 2004 (CLRA) invalid because Parliament had failed to follow the procedural requirements of section 76 of the Constitution. The Act affected provincial powers over land and customary law but was enacted under the section 75 procedure instead of the required section 76 procedure for legislation affecting provinces.

The CLRA was enacted in 2004 to provide for legal security of tenure for communities with rights in communal land. The Act regulated customary law matters and land administration, areas falling within concurrent national and provincial legislative competence. Parliament passed the Act using the ordinary section 75 procedure rather than the section 76 procedure applicable to matters affecting provinces.

Whether the CLRA was invalid due to Parliament's failure to follow the section 76 legislative procedure when enacting legislation affecting provincial competences.

The Constitutional Court declared the CLRA invalid in its entirety. The Act dealt with matters listed in Schedule 4 of the Constitution affecting provincial interests and therefore required the section 76 procedure, which had not been followed.

Legislation that substantially affects provincial interests or competences listed in Schedule 4 must be enacted following the section 76 procedure; failure to do so renders the legislation constitutionally invalid.

The Court found that the CLRA dealt extensively with matters falling under Schedule 4, including indigenous law, agriculture, and regional planning and development. Because these matters affected the provinces' functional areas and institutional integrity, the section 76 procedure was mandatory. Parliament's use of the incorrect legislative procedure was a material breach that could not be overlooked, requiring the declaration of invalidity.

The Court suspended the order of invalidity for 24 months to allow Parliament to remedy the defect by re-enacting the legislation following the correct procedure, but Parliament did not do so and the Act ultimately lapsed.

Tongoane is a leading authority on legislative procedures under the Constitution, particularly the distinction between sections 75 and 76 procedures and the requirement to follow section 76 when provincial competences are affected. It demonstrates the Court's willingness to enforce procedural constitutional requirements strictly, even when substantive goals may be legitimate.

Tongoane v Minister of Agriculture and Land Affairs 2010 (6) SA 214 (CC) [2010] ZACC 10