By LARC
On 23 February 2023, oral arguments were heard by the Constitutional Court in the matter of Constance Mogale and Others v Speaker of the National Assembly and Others, CCT 73/2022.
The application made was to declare the Traditional and Khoi-San Leadership Act 3 of 2019 invalid on procedural grounds. This was on the basis that Parliament and the provincial legislatures did not reasonably facilitate public participation, as the Constitution obliges them to do.
The case is supported by the Stop the Bantustans campaign, which advocates for democratic rights in rural areas and forms of governance (including traditional leadership) that abide by customary law and the Constitution and are accountable to the people that they serve.
Watch an interview given about the case by Wilmien Wicomb, an attorney from the Legal Resources Centre who co-represents the applicants, here: https://www.youtube.com/watch?v=WsfD9B7uEro.
Wicomb is a practising attorney, experienced in matters regarding customary law, land rights and traditional leadership. She has represented the interests of people living within rural communities in the former homelands in several matters, including headmanship disputes, financial accountability in traditional institutions, consent to mining, and customary fishing rights:
- Ntamo v Premier of the Eastern Cape
- Gongqose v Minister of Agriculture, Forestry and Fisheries
- Bafokeng Land Buyers Association v Royal Bafokeng Nation
- Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy
Interviews were also given by Kgoshi Mokoena, President of the Congress of Traditional Leaders of South Africa (Contralesa), partially in response to Wicomb.
See at https://www.youtube.com/watch?v=39HB6-tRSYU
and
https://www.youtube.com/watch?v=gdGKWd-I8KM.
Contrary to comments made in the interview, Contralesa was cited as the Fifteenth Respondent in the Mogale case and legal papers were served on Contralesa, as with all the other parties in the case. Contralesa did not oppose the case and thus decided to abide by the Court’s judgment.
A statement has also been released by the fourth applicant in the matter, Victor Modimakwane, in response to remarks made by the President of Contralesa. Read it here.
The Amadiba Crisis Committee released their own statement responding to Contralesa, stating: “We fight this battle on the ground and in the Courts, with traditional leaders who we respect, or without them if they don’t deserve our respect. Respect is only earned if it goes in both directions, Mr Mokoena.” Read the statement here (part 1) and here (part 2).
