On 31 October 2009 the North Gauteng High Court handed down judgment in Tongoane and Others v National Minister of Agriculture and Land Affairs and Others. The judgment is a victory for four rural communities who challenged the Communal Land Rights Act of 2004 (CLRA) on the basis that it would undermine their right to tenure security as enshrined in the South African Constitution. The Court heard the matter over a year ago, from 14 to 16 October 2008.

The judgment declared invalid and unconstitutional the key provisions of the CLRA which 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. Although the judgment did not find the parliamentary process to have been procedurally flawed, and therefore did not strike down the CLRA as a whole, the numerous provisions that were declared invalid mean that if the judgment is confirmed by the Constitutional Court, the CLRA is toothless and that the drafters will have no option but to start afresh.

The judgment focused on the problems created when traditional councils are imposed on rural communities as land administration committees. It referred to the layered nature of land rights in customary systems including those existing at family, clan, village and group levels, and the problems that arise when these rights are subjected to the control of overarching traditional councils. The judgment found that the definition of community used in the CLRA fails to protect the land rights of smaller or independent communities living within the boundaries of large traditional councils (which exist wall-to-wall in the former homelands) from the powers vested in traditional councils to administer communal land.

The judgment also focused on the example of those communities, like the Makuleke community, who won title to their land through restitution, only to find a nearby traditional leader claiming powers of land administration over them. It found that their tenure is rendered vulnerable by the provisions of the CLRA which place them in a structural minority within a larger unit, especially given that that unit may not have been democratically elected.

Now the judgment must be referred to the Constitutional Court for confirmation, as only the Constitutional Court has the power to strike down legislation. It should be noted that despite having been enacted in 2004 the CLRA has still not been brought into operation. The Department of Rural Development and Land Reform has, however, been proceeding with plans to gazette regulations and implement the CLRA. These plans will now have to be put on hold pending the decision of the Constitutional Court.

It is estimated that the CLRA would have applied to at least 892 communities in South Africa.

Also read 'The recognition of customary law and redressing historical discrimination: The Communal Land Rights Act 11 of 2004 by Henk Smith' - http://www.plaas.org.za/newsevents/iasc/forum2009/customary-law-and-historical-discrimination-document/file  

The sections of the CLRA declared invalid are as follows:

• section 2(1)(a) in so far as it concerns land already owned or securely held by a community; (dealing with the application of the Act to state land in the former homelands)

• section 2(1)(c) and (d); (dealing with the application of the Act to land owned by communities and to redistribution land)

• section 2(2); (dealing with the Minister's power to include other land under the scope of the Act)

• section 3; (that makes communities 'juristic persons' capable of owning property without establishing a separate legal entity)

• section 4(2); (that deems 'old order' rights to belong to both spouses)

• sections 5 - 6; (that provide for the registration of communal land and 'new order' rights and for the transfer of title to 'communities')

• section 9; (that enables the conversion of 'new order' rights to freehold ownership)

• section 18, (that enables the Minister to determine the location and extent of the land to be transferred, and the content and vesting of 'new order' rights)

• section 19(2); (that provides for community rules to regulate the administration and use of communal land 'by the community as landowners')

• sections 20; (that provides for the amendment of community rules)

• section 21; (that provides for the establishment of land administration committees and authorises traditional councils to act as land administration committees)

• section 22; (that deals with the composition of land administration committees)

• section 23; (that deals with the term of office of land administration committees)

• section 24; (that sets out the powers and duties of land administration committees)

• section 39; (that extends the application of the Act to other land reform beneficiaries)