## Facts

- Parliament enacted the Communal Land Rights Act 11 of 2004 (CLARA) to address legally insecure tenure in communal areas and to give effect, in part, to the constitutional right to legally secure tenure or comparable redress.
- Rural community representatives challenged CLARA, asserting both substantive constitutional defects and procedural defects in how Parliament enacted the statute.
- The applicants contended, among other things, that CLARA should have been processed as a bill “affecting the provinces” under section 76 of the Constitution, not as a section 75 bill.
- The High Court invalidated certain provisions on substantive grounds but declined to invalidate the entire Act on the tagging/procedure ground.
- In the Constitutional Court, the applicants sought confirmation of the partial invalidity, appealed the refusal to strike down the entire Act for mis-tagging, and sought direct access to add a public-involvement challenge.
- The Constitutional Court considered whether the constitutionally required legislative procedure had been followed for CLARA’s enactment.

## Issues

1. Whether CLARA should have been enacted under the section 76 procedure (bills affecting provinces), rather than the section 75 procedure.
2. Whether Parliament complied with constitutional duties to facilitate public involvement in the legislative process for CLARA.
3. Whether CLARA substantively complied with constitutional protections for tenure security and related rights.

## Decision

- The Constitutional Court held unanimously that Parliament followed the wrong legislative procedure in enacting CLARA.
- Applying the “substantial measure” test, the Court concluded CLARA’s provisions fell in substantial measure within functional areas implicating provincial interests, requiring section 76 tagging and procedure.
- Because CLARA was enacted using section 75 rather than section 76 procedures, the Court declared CLARA unconstitutional and invalid in its entirety for noncompliance with section 76 requirements.
- Having invalidated the Act on procedural grounds, the Court declined to decide the public participation and substantive constitutional challenges.

## Legal Principles

- Tagging (section 75 vs section 76) is a constitutional procedural inquiry distinct from determining legislative competence.
- The proper tagging inquiry applies the “substantial measure” test: whether the bill’s provisions fall in substantial measure within functional areas listed in Schedule 4 and thereby substantially affect the provinces.
- Where a bill substantially affects provinces, the Constitution requires enactment under section 76 procedures that provide a formal role for provincial participation through the National Council of Provinces.
- Failure to follow the constitutionally prescribed legislative procedure for a bill is a fatal defect that renders the resulting statute invalid.

## Conclusion

The Constitutional Court invalidated CLARA in full because Parliament used the incorrect constitutional process for a bill that substantially affected provincial functional areas, and it therefore did not reach the statute’s public-involvement or substantive-rights challenges.


Tongoane v. Minister of Agric. & Land Affs., 2010 (6) S. Afr. L.R. 214 (S. Afr. Const. Ct. 2010)