On Tuesday 11^th May 2010, the Constitutional Court declared the Communal Land Right Act (CLaRA) unconstitutional.

Represented by Legal Resources Centre and the Webber Wentzel Pro Bono Unit, the four communities challenged the CLaRA on basis that it undermines security of tenure and gender equity, and grants authority to traditional leaders who have not been elected and whose interests do not reflect those of the communities.

On 31 October 2009, the four communities won a victory in the North Gauteng High Court. The judgment declared invalid and unconstitutional key provisions of the CLaRA that provide for the transfer and registration of communal land, the determination of rights by the Minister and the establishment and composition of land administration committees.

The communities then took the matter to Constitutional Court (ConCourt) for the confirmation of invalidity of the Act.  The communities also appealed against the High Court's refusal to declare CLaRA invalid for failure to enact it in accordance with the correct procedure, and brought a new challenge to the validity of CLaRA on the basis that the South African Parliament failed to comply with its obligations to facilitate public involvement in the legislative process.

The CLaRA , which applies to all communal land, deals with the transfer of land title from the state to traditional communities; the registration of individual land rights with ‘communally owned' areas; and the use of traditional structures to administer the land and represent the ‘community' as owner.

Giving the judgment analysis, Chief Justice Sandile Ngcobo held that the inescapable conclusion is that various provisions of CLaRA affect indigenous law and traditional leadership. He found that the CLaRA replaces the living indigenous law regime which regulates the occupation, use and administration of communal land. It further replaces both the institutions that regulated these matters and their corresponding rules. He concluded that the Parliament followed an incorrect procedure in enacting CLaRA. Where the Constitution prescribes a legislative procedure, that procedure must be followed.

Chief Justice Ngcobo also emphasised that the Parliament should urgently and diligently enact the constitutionally envisaged legislation that will ensure that there is restitution of land to the people and communities that were dispossessed of their land during the apartheid era.

This judgment is a fundamental victory for the rural communities who challenged the Act.  They have persevered with their objections since the CLRA was enacted in 2004 and despite the odds being stacked against them.  We salute them.

Ends.

NOTE: For more information on the background of the case please go to www.lrc.org.za or contact Thulani Cele, Communications & Marketing Officer, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or 011 836 6601/ 082 706 2641