Mogale and Others v Speaker of the National Assembly and Others (CCT 73/22) [2023]  ZACC 14; 2023 (9) BCLR 1099 (CC); 2023 (6) SA 58 (CC) (30 May 2023),  Constitutional Court of South Africa. 

INTRODUCTION 

Mogale and Others v Speaker of the National Assembly and Others (2023) is a landmark  decision by the Constitutional Court of South Africa that addressed the constitutionality of  the Traditional and Khoi-San Leadership Act 3 of 2019 (TKLA). The applicants challenged  the legislative process, arguing that Parliament and the nine provincial legislatures failed to  reasonably facilitate public involvement, violating participatory democracy principles  enshrined in the Constitution of the Republic of South Africa. 

Background 

In Mogale and Others v Speaker of the National Assembly and Others, the Traditional and  Khoi-San Leadership Act 3 of 2019 (TKLA) was enacted to replace the Traditional  Leadership and Governance Framework Act (TLGFA), aiming to address its shortcomings.  However, civil society groups and affected communities raised concerns that the TKLA perpetuated systemic inequalities and failed to reflect the lived realities of rural and  traditional communities, particularly those in former Bantustans.  

The applicants-activists and community representatives had actively participated in the  legislative process and documented procedural flaws. Their challenge was rooted in the belief  that meaningful public participation had not occurred. 

Facts of the case 

• The TKLA was introduced in Parliament in 2015 and passed in 2019. • Public hearings were held by the National Assembly and provincial legislatures  between 2016 and 2018. 
• Applications monitored these hearings and recorded numerous deficiencies: i. Inadequate notice to poor accessibility. 

Lack of translated materials and pre-hearing education. 

Misrepresentation of the Bill’s content. 

1. Prioritisation of traditional leaders over ordinary citizens. 
2. Inaccurate recording and transmission of public input

• The applicants wrote to the President before and after the Bill was signed, urging  reconsideration. 
• The TKLA came into force on 1 April 2021. 
• The application was launched in December 2021. 

Legal Issues  

• Jurisdiction: Did the Constitutional Court of the Republic of South Africa have  exclusive jurisdiction under section 167(4)(e) of the Constitution of the Republic of  South Africa? 
• Standing: Did the applicants have legal standing to bring the challenge to the  Constitutional Court of the Republic of South Africa? 
• Public Participation: Was the process constitutionally compliant under sections  59(1)(a), 72(1)(a), and 118(1)(a) of the Constitution of the Republic of South Africa? • Remedy: What is the appropriate legal consequence if the process was  unconstitutional? 

Arguments by the parties  

Applicant’s Arguments: 

• Parliament failed to meet its constitutional obligation to facilitate meaningful public  participation. 
• Hearings were inaccessible, poorly advertised, and inadequately documented. • The TKLA affects millions of people in the country and requires thorough  consultation. 
• Requested a declaration of invalidity and suspension to avoid disruption. 

Respondent’s Arguments: 

• Argued that the applicants delayed bringing their challenge to court. • Claimed that the public participation process was adequate.
• Raised procedural objections, including jurisdiction and standing. 

Court Analysis  

The Court confirmed its exclusive jurisdiction under section 167(4)(e) of the Constitution of  the Republic of South Africa to determine whether Parliament failed to fulfil a constitutional  obligation. The applicants had standing as they participated in the public interest. The delay  in bringing the challenge was justified due to the complexity of the case and the early notice given to Parliament. The court assessed the process holistically, identifying systemic flaws of  insufficient notice and lack of pre-hearing, poor accessibility and inadequate translation of the  act, misrepresentation of the Bill’s scope, silencing of dissenting voices and prioritisation of  traditional leaders, and inaccurate and incomplete transmission of public input to lawmakers. 

Legal Reasoning and Relevant Laws 

1. Constitutional Provisions: 
2. Section 59(1)(a) of the Constitution: 

The National Assembly must facilitate public involvement. 

Section 72(1)(a) of the Constitution: 

The National Council of Provinces must facilitate public involvement. 

Section 118(1)(a) of the Constitution:  

Provincial legislatures must facilitate public involvement. 

Section 118(1)(a) of the Constitution: 

The Constitutional Court has exclusive jurisdiction over failures to fulfil  constitutional obligations. 

Precedents: 

2. Doctors for Life International v Speaker of the National Assembly (2006): This case amplifies the need for both the National Assembly and the National  Council of Provinces to facilitate public involvement when making laws. 
3. Land Access Movement of South Africa and Others v Chairperson of the  National Council of Provinces and Others (2016):

The court held that Parliament had failed to satisfy its obligation to facilitate  public involvement in accordance with section 72(1)(a) of the Constitution. 

Moutse Demarcation Forum v President of the Republic of South Africa  (2011):  

In this case, the applicants also bought a challenge to the Constitutional Court, which challenged the constitutional validity of a constitutional amendment and  a law. 

Interpretation:  

The Court emphasised that public participation must be meaningful, not symbolic. That  reasonableness is assessed based on the nature of the legislation, its impact, and  Parliament’s own standards. The Court rejected cost-saving and logistical excuses for  procedural failures. 

Judgement 

• The TKLA was declared constitutionally invalid due to inadequate public  participation. 
• The declaration of invalidity was suspended for 24 months to allow Parliament to  re-enact the law with proper consultation. 
• Costs were awarded against the respondents who opposed the application,  including the costs of three counsel. 

Significance  

• The case reinforces the constitutional imperative of participatory democracy. • It sets a high bar for public involvement in law-making, especially for legislation  affecting marginalised communities. 
• It affirms the role of civil society in holding institutions accountable.
• It provides a blueprint for future legislative processes involving traditional  governance and land rights. 

Conclusion  

The Constitutional Court’s decision in Mogale and Others v Speaker of the National  Assembly and Others (2023) is a powerful affirmation of democratic values and the rights of  rural and traditional communities to shape the laws that govern them. It underscores that  public participation is not a procedural formality but a substantive constitutional requirement.  The ruling compels Parliament to revisit its processes and engage meaningfully with those  most affected by legislation. 

Sources  

1. Mogale and Others v Speaker of the National Assembly and Others (CCT73/22)  (2023) ZACC 14; 2023 (9) BCLR 1099 (CC); 2023 (6) SA 58 (CC) (30 May 2023) https://www.saflii.org/za/cases/ZACC/2023/14.html accessed 29 August 2025. 
2. The Constitution of the Republic of South Africa, 1996. https://www.justice.gov.za/constitution/SAConstitution-web-eng.pdf accessed 29  August 2025. 
3. Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11;  2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August 2006) https://www.saflii.org/za/cases/ZACC/2006/11.html accessed 29 August 2025. 
4. Land Access Movement of South Africa and Others v Chairperson of the National  Council of Provinces and Others (CCT40/15) [2016] ZACC 22; 2016 (5) SA 635  (CC); 2016 (10) BCLR 1277 (CC) (28 July 2016) https://www.saflii.org/za/cases/ZACC/2016/22.html accessed 29 August 2025.
5. Moutse Demarcation Forum and Others v President of the Republic of South Africa  and Others (CCT40/08) [2011] ZACC 27; 2011 (11) BCLR 1158 (CC) (23 August  2011) https://www.saflii.org/za/cases/ZACC/2011/27.html accessed 29 August 2025.