Land amendment act finding ‘vindicates the right to public participation’

28 July 2016 - 19:58 By TMG Digital

Urgent action is needed to finalise the thousands of outstanding restitution claims lodged before 1998‚ the Legal Resources Centre (LRC) and law firm Webber Wentzel said on Thursday.This was emphasised by the Constitutional Court’s finding that the Restitution of Land Rights Amendment Act is invalid in its entirety‚ they said in welcoming the decision‚ and added that the judgment “vindicates the right to public participation in the legislative process”. The LRC and Webber Wentzel petitioned the court on behalf of the Land Access Movement of South Africa‚ the Association for Rural Advancement‚ the Nkuzi Development Association‚ Moddervlei Communal Property Association‚ the Makuleke Communal Property Association‚ and the Popela Communal Property Association.“Our clients will now be able to meaningfully participate in the public participation processes leading up to the enactment of an amendment act‚” the LRC and Webber Wentzel said. They challenged the amendment act on the basis that Parliament and the provincial legislatures had failed to comply with their constitutional obligation to facilitate public involvement before passing it.“The National Council of Provinces (NCOP) and the provincial legislatures failed to afford people affected by the amendment bill a meaningful opportunity to comment on it. The NCOP created artificial urgency by insisting the bill should be passed before the 2014 elections. This meant that the provincial legislatures had insufficient time to enable public participation and to adequately consider the bill‚” the LRC and Webber Wentzel said.“The hearings themselves were inadequate because they were not properly advertised‚ there was insufficient time to prepare submissions‚ translated versions of the bill were not available‚ the bill was not properly explained‚ and people’s comments were not accurately recorded.“Moreover‚ members of the NCOP failed to attend the public hearings in their provinces‚ and the reports of public hearings prepared by the provincial legislatures were not distributed to the other members of the NCOP Committee. Finally‚ the NCOP failed to properly consider amendments proposed by several provincial legislatures as a result of the public hearings.The NCOP‚ National Assembly and eight Provincial Legislatures opposed the challenge‚ contending that the public participation process passed constitutional muster.“This judgment sends a clear message to Parliament to facilitate meaningful and reasonable public participation processes in its legislative process‚” the LRC and Webber Wentzel said.“As the judgment notes: ‘It is beneath the dignity of those entitled to be allowed to participate in the legislative process to be denied this constitutional right.’”The act amended the Restitution of Land Rights Act and allowed people who had not lodged land claims by the original cut-off date in 1998 a new chance to lodge claims for restitution of land.The Court said provincial legislatures should have objected to the unreasonably short timeline the NCOP sought to impose.It interdicted the Commission on Restitution of Land Rights from processing land claims lodged from July 1 2014 (when the Amendment Act was enacted‚ reopening the land claims process) pending the enactment of new legislation.It also ordered that‚ pending the enactment of new legislation to replace the amendment act and re-open the claims process‚ all land claims made before December 31 1998 should be processed before new claims.- TMG Digital/Johannesburg..

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