On Tuesday 2nd March 2010, four communities: Kalkfontein, Makuleke, Makgobistad, and Dixie appeared in Constitutional Court to challenge the constitutionality of the Communal Land Rights Act (CLaRA). The four communities are represented by the Legal Resources Centre and the Webber Wentzel Pro Bono Unit.

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.

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,. Even though the High Court judgment did not find the CLRA unconstitutional as a whole, the remaining provisions of the CLRA would have little or no substance. The matter was slated to be heard by the Constitutional Court for confirmation.

The Constitutional Court heard submissions by the four communities and respondents on both procedural and substantive issues.  In reviewing the High Court decision for confirmation, the Constitutional Court may find the CLaRA is wholly unconstitutional on procedural grounds but may also consider the substantive challenges against the CLaRA made by the communities.  The communities have submitted that the CLaRA undermines security of tenure, undermines gender equity, and grants authority to traditional leaders who have not been elected and whose interests do not reflect those of the communities.

Advocates for the communities urged the Court to consider afresh the substance of the CLaRA and to provide guidance to government regarding the how it should proceed in drafting new land tenure legislation.  A government respondent submitted that the government intends to repeal the CLaRA and proceed with a new drafting process on an expedited basis.

Ends.

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