Tongoane v. Minister of Agriculture and Land Affairs

South Africa’s parliament created the Communal Land Rights Act, 2004 (CLARA) to address the government’s obligations to provide more secure land tenure for the indigenous African population. Before CLARA, the laws of apartheid limited and often precluded African ownership and control of land, creating uncertainty for the African people. CLARA’s purpose was to provide legal security for land-ownership tenure for the African population. However, opponents argued that CLARA would create more uncertainty and shift the involvement of indigenous tribal councils in land management. Stephen Segopotso Tongoane (plaintiff) and others brought a constitutional challenge to CLARA in the high court in Pretoria against the minister of agriculture and land affairs and other government entities (the government) (defendant). Part of the challenge asserted that the method of CLARA’s enactment was unconstitutional because the government passed the law as one that does not affect the provinces (§ 75 of the South African constitution) and not as a law that affects the provinces (§ 76 of the constitution). Section 76 requires a more extensive process involving input from the provinces. Tongoane also alleged that CLARA was substantively unconstitutional because the act undermined land-tenure security. The high court determined that CLARA was, in part, substantively infirm from a constitutional standpoint. The high court also ruled that parliament had invoked the wrong procedure but declined to use that as a basis to overturn the law. As required by law, the high court referred the constitutional questions to the South Africa Constitutional Court.