30 May 2023 – Constitutional Court declares the Traditional and Khoi-San Leadership Act Unconstitutional

For Immediate Release

30 May 2023

Constitutional Court Declares the Traditional and Khoi-San Leadership Act Unconstitutional

Johannesburg — In a unanimous judgment handed down this morning, the Constitutional Court has declared the Traditional and Khoi-San Leadership Act unconstitutional as “parliament overwhelmingly failed in facilitating public participation”.

Rural communities, activists and land rights organisations approached the court in December 2021 arguing that parliament did not comply with its constitutional duty to facilitate meaningful public participation when passing the legislation. The Act, they said, would have devastating impact upon the lives of rural people as it gave new and extended powers over land to traditional authorities and clawed back the few democratic principles previously captured in traditional leadership legislation. Most of all, they argued, the Act does not provide for a single mechanism that would allow a community to hold a traditional authority to account.

Members of traditional communities told the court that for nearly two decades since the passing of the Traditional Leadership and Governance Framework Act in 2003, they have tried unsuccessfully to raise the alarm about corrupt and unlawful practices by their leaders that, in some cases, have led to communities losing land and other assets. They told the court that this new legislation entrenches and exaggerates the problems of the old Framework Act. Had the legislature facilitated meaningful participation of the people who would be directly affected, it would have known not to pass the legislation in its current form.

While the new Bill finally provided statutory recognition to Khoi and San leadership positions, it was widely criticised during the public hearings by traditional and Khoi-San communities alike.

The court has suspended the invalidity of the Act for 24 months to afford parliament the time to facilitate a constitutionally compliant process.