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- University Of South Africa (Unisa)
This is a summary of different cases that are dealt with in LCP4804.
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1SUMMARY OF CASES LCP4804
Ex parte Minister of Native Affairs: In re Yako v Beyi 1948 (1) SA 388 (A)
Judge Schreiner held:
I find no support in the language of Act 38 of 1927 for the president’s [president of the
Native Appeal Court] view that native law should be treated as prima facie applicable
in cases between natives. On the contrary, the indications are rather that common law
was to be followed unless the native commissioner in his discretion saw fit in a proper
case to apply native law. That view is supported by the general shape of the sub-
section, which does not provide that the native commissioner shall have the discretion
to apply common law or native law. Framed as it is, it appears to me that the sub-
section assumes that the native commissioner should in general apply common law
and on that assumption empowers him in a proper case to apply native law.
Some argue that the decision in Yako v Beyi continued the British colonial policy of
indirect rule into the apartheid era. In other words, customary law was to apply only to the
individual in exceptional cases. Roman-Dutch law was seen as the general law of the
land resulting in the neglect of customary law.
According to Church, the decision in Yako v Beyi resulted in the recognition of customary
law ‘only as a special and personal law that operated outside of but only as determined
by the general law’. Customary law was not recognised as being itself general law but
was applied in exceptional circumstances where it was relevant to the individual before
the court. The state law remained the law of general application and customary law
therefore continued to be viewed through the common law lens and would only be applied
if it was consistent with common law values.
Bennett’s view is that the recognition of customary law was marked by lack of autonomy
(that is, there was no individual choice) as culture formed the basis of legal segregation.
Hence, the individual did not have the opportunity to decide whether customary law
should apply to his or her case. If the court determined that the individual was of a
particular culture, it applied the customary law believed to belong to that culture to that
individual.
S v Makwanyane (CCT3/94)[1995] ZACC 3
[Ubuntu] places some emphasis on communality and on the interdependence of the members
of a community. It recognises a person’s status as a human being entitled to unconditional
respect, dignity, value and acceptance … The person has a corresponding duty to give the
same.
Tongoane and Others v Minister for Agriculture and Land Affairs and Others CCT
100/09 [2010] ZACC 10
, 2
On 11 May 2010 the Constitutional Court delivered judgment in a matter which arose out
of a declaration of invalidity made by the North Gauteng High Court, Pretoria (the High
Court) on 30 October 2009, in respect of various provisions of the Communal Land Rights
Act 11 of 2004 (CLARA). In this Court the applicants sought confirmation of the
declaration of invalidity. In addition, they sought leave to appeal against the High Court’s
refusal to declare CLARA invalid for failure to enact it in accordance with the correct
procedure and applied for direct access to challenge the validity of CLARA on the basis
that Parliament failed to comply with its constitutional obligations to facilitate public
involvement in the legislative process. Accordingly, there were three applications before
this Court: (i) the application for confirmation; (ii) the application for leave to appeal
concerning the “tagging” of CLARA; and (iii) the application for direct access concerning
the public participation challenge.
The four applicants represent a community which occupies land to which CLARA applies.
They act in their own interest, on behalf of the communities of which they are a part, and
in the public interest. Only five of the fourteen respondents participated in these
proceedings: the Minister for Agriculture and Land Affairs, now the Minister for Rural
Development and Land Reform; the Minister for Provincial and Local Government, now
the Minister for Cooperative Governance and Traditional Affairs; the Speaker of the
National Assembly; the Chairperson of the National Council of Provinces (NCOP); and
the National House of Traditional Leaders.
CLARA was enacted in accordance with section 75 of the Constitution; the procedure for
“[B]ills not affecting the provinces”. The applicants argued that the enactment in
accordance with this procedure was incorrect and invalid. They argued that CLARA was
incorrectly classified or “tagged” as a section 75 Bill, rather than a section 76 Bill, as a
result of Parliament adopting the incorrect “tagging” test.
In a unanimous judgment, Ngcobo CJ held that there is a difference between determining
whether the National Assembly or NCOP has the competence to legislate in a particular
field, and determining how a Bill ought properly to be tagged and ultimately enacted.
These are two different processes for which two different tests are to be applied.
After analysing the provisions of CLARA Ngcobo CJ held that the inescapable conclusion
is that various provisions of CLARA affect, in substantial measure, indigenous law and
traditional leadership – areas of concurrent national and provincial competence. He found
that 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 accordingly concluded that Parliament followed an incorrect procedure in enacting
CLARA.
, 3
In considering the appropriate remedy Ngcobo CJ held that where the Constitution
prescribes a legislative procedure, that procedure must ordinarily be followed. Enacting
legislation that affects the provinces in accordance with the procedure prescribed in
section 76 is a material part of the law-making process relating to legislation that
substantially affects the provinces. He held that failure to comply with the requirements
of section 76 renders the resulting legislation invalid.
He accordingly held CLARA to be unconstitutional and invalid for want of compliance with
the procedures set out in section 76 of the Constitution.
In the light of the finding that CLARA was unconstitutional in its entirety due to its improper
enactment, no order was made on Parliament’s alleged failure to facilitate public
involvement in the legislative process. In addition, Ngcobo CJ held that the conclusion
that CLARA was invalid in its entirety rendered it unnecessary to consider whether its
provisions were consistent with the Constitution. He did, however, emphasise that
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, and that they will be accorded secure
land tenure or comparable redress.
The application for leave to appeal was granted and the appeal was upheld with costs.
Certification of the final Constitution
To be certified by the Constitutional Court, the final Constitution had to comply with
Constitutional Principles XI and XIII mentioned above. Therefore, the final Constitution of
1996 included the following provisions:
•Section 9(3) on the protection of equality includes among its listed grounds ethnic or
social origin and culture. Culture includes ‘a people’s entire store of knowledge and
artefacts, especially the languages, systems of belief, and laws that give social groups
their unique characters’. Therefore, this section gives people the right to be governed by
the law applying to their particular cultural group.
•Section 15 expands on section 14 of the interim Constitution, declaring that nothing in
the section prevents legislative recognition of marriages concluded under any tradition or
religious, personal or family law systems.
•Section 30 entrenches the individual’s right to participate in a culture of his or her choice
and section 31 protects a group’s right to participate in cultural activities of their choosing.
Distinguishing these two provisions from all others in the Bill of Rights, the Constitution
specifically qualifies these provisions by stating that neither the rights in section 30 nor
31 can be exercised in a way contrary to the provisions of the Bill of Rights.
•Section 39 treats customary law and its development as equal to the common law.
Section 39(2) states that ‘[w]hen interpreting any legislation and when developing the
common law or customary law, every court, tribunal or forum must promote the spirit,
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