IN A landmark ruling on Friday, the North Gauteng High Court declared as unconstitutional key provisions of a law that seeks to privatise communal land.

If the Constitutional Court confirms the decision, it could pave the way for a radical rethink on improving tenure security for millions of South Africans living in former homelands.

It could also hamstring the Comprehensive Rural Development Programme launched by President Jacob Zuma in August. The programme would have piloted implementation of the act's regulations published last year.

The ruling declared 14 sections of the Communal Land Rights Act unconstitutional, which renders it unworkable.

The Department of Land Reform and Rural Development (previously called Land Affairs) claimed the act, which was promulgated in 2004 but never implemented, would unlock the economic potential of former homelands by providing investors and residents with secure, bankable tenure.

But the high court agreed with arguments presented by a public interest law firm, the Legal Resources Centre, and by Webber Wentzel that parts of the act were unconstitutional. They claimed it gave unelected traditional leaders and the land reform and rural development minister draconian powers to impose decisions that undermine existing property rights.

The case was brought on behalf of four communities - Kalkfontein, Makuleke, Makgobistad and Dixie in Limpopo, Mpumalanga and the North West respectively.

"I feel really great - that act was oppressing us," says Morgan Mogulelwa of Makgobistad, near Mafikeng.

Court papers show their traditional leader had unilaterally allocated the community's fields to his uncle, a headman, who had established a housing project on them for outsiders "for a fee".

He had also given the provincial public works department permission to build a road through communal fields, against the wishes of farmers, and is facing "serious theft charges in relation to payments made" during construction, the court papers show.

"The (Lucas) Mangope regime gave the traditional leaders the power to use our land in any way they wanted without consulting the community," Mogulela says. "With this act the traditional leader (also) controls the land without any resolution from the community."

The Legal Resources Centre's Henk Smit, who has worked on the case since 2003, says customary laws and practices should be woven into a formal ownership system, not the other way around. There is plenty of legal precedent to show traditional custom could be adapted to comply with the c onstitution and statutes for this purpose, he says.

"It has to be a bottom- up process and that can't be imposed from above in a process even supporters of the act agree will take over 50 years to implement," Smit says.

"The constitution doesn't envisage you having to wait for the formal legal system to catch up. "

Prominent advocates involved in the trial, which was argued last year, included Wim Trengove, Nobahle Mangcu and Geoff Budlender.

The case is expected to go to the Constitutional Court early next year. The Department of Land Reform and Rural Development could not be reached for comment on Friday.

 Stephan Hofstatter