You would think that the pressing need to redistribute land to formerly dispossessed people would mean that legislation aimed at supporting land distribution would get special attention. This was clearly not the case with the Communal Land Rights Act of 2004 (also known as 'CLARA' to her friends).

CLARA was aimed at giving individuals tenure in respect of communal rural land falling under tribal authorities. The Act set out the rights and responsibilities of tribal authorities, and dealt with a number of old laws to provide a seamless law applicable to this kind of land.

Stephen Tongoane did not feel that CLARA adequately addressed the situation and he applied to the High Court to have poor CLARA declared invalid. Parliament had failed, he argued, to comply with its constitutional obligation to facilitate public involvement in the legislative process.

The Constitution requires Parliament to classify bills depending on whether or not they affect the provinces. Bills that do not affect the provinces fall under section 75 of the Constitution, which provides for a relatively simple legislative process. While section 76 applies a more complex process of consultation and mediation to bills that do have implications for provinces. Stephen argued that CLARA affected the provinces and should have been referred to the National Council of Provinces under section 76, for the more complex public participation process.

The High Court agreed that certain provisions of CLARA were invalid, but declined to declare the entire Act invalid for failure to follow the correct procedures. Stephen took his complaint to the Constitutional Court.

The Constitutional Court, in the case of Stephen Segopotso Tongoane v The Minister for Agriculture and Land Affairs, found that CLARA was unconstitutional in its entirety. CLARA had been improperly enacted due to Parliament's failure to facilitate public involvement in the legislative process as required by section 76. The question that needs to be asked, said the court, is: Did the enactment of CLARA affect the provinces or not? If it did, then the complex consultation procedure set out in section 76 applied. The test for classifying a Bill "must be informed by the need to ensure that the provinces exercise their appropriate role, full and effectively, in the process of considering national legislation that substantially affects them".

Having regard to the aims of CLARA, the Constitutional Court held that CLARA did, in fact, affect the provinces. Parliament had, therefore, followed an incorrect process in enacting CLARA.

The challenge has now been left to Parliament to urgently and diligently enact constitu-tionally-compliant legislation that will address the needs of people and communities who were dispossessed of rural communal land during the apartheid era.

We await CLARA's new birthday with bated breath!