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[In Legalbrief Case Law Briefs]

WCLAA REGULATIONS 4(1) AND 4(6) DECLARED UNCONSTITUTIONAL

In Adonisi and Others v Minister for Transport and Public Works, Western Cape and Others; Minister of Human Settlements and Another v Minister for Transport and Public Works, Western Cape and Others, Constitutional Court struck down as constitutionally invalid the Western Cape land disposal regulations that provides for public comment only after a sale contract was already signed.

Reasons: Section 3 of the Western Cape Land Administration Act 6 of 1998 (WCLAA) requires the Premier, before disposing of provincial state land, to publish notice of the "proposed disposal" and invite written representations within 21 days. Regulation 4(6) and the proviso in regulation 4(1) of the Regulations (Provincial Notice 595, Gazette 5296, 16 October 1998) redefined "proposed disposal" to mean only a contract already duly signed by the Province after internal valuation processes, with public comment sought only thereafter, subject to a right to resile. Relying on Minister of Finance v Afribusiness, the Court held delegated legislation cannot narrow an empowering Act's purpose. By deferring participation until after a binding contract existed, the regulations reversed the onus onto the public to undo a decision already made, rather than to influence it — undermining meaningful participation, especially given the historical significance of land access rights under sections 25 and 26. This rendered the regulations inconsistent with section 3 of the WCLAA and unconstitutional.

The Court declared Regulation 4(6) and the proviso in regulation 4(1) of the WCLAA Regulations unconstitutional and invalid, suspended for 12 months to allow the defect to be remedied.

Read the summary (subscribers only) or view the judgment.

Judgment: https://bit.ly/4wsaz1t

Summary: https://bit.ly/4wropRw

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