Advocate Tembeka Ngcukaitobi, who was representing Parliament, said the application should be dismissed because the matter was moot
THE WESTERN Cape High Court has reserved judgment in an application brought by AfriForum challenging the legality of the decision of the joint constitutional review committee in adopting its report.
Parliament had in 2018 undertaken public hearings on whether to amend the constitution in order to allow expropriation of land without compensation.
It has since appointed an ad hoc committee, which has formulated a bill.
Arguing before the court, advocate Etienne Labuschagne said at the time of the relief was formulated, the matter was not moot but has since been overtaken by subsequent developments.
“The relief we persist with is declaratory. We submit that it is in itself substantive and effective relief,” Labuschagne said.
Labuschagne said his client sought the endorsement of the right of the public to participate meaningfully in pre-legislative processes.
He also said the excluded submissions infringed on the right to a fair administrative action.
He charged that the decision to exclude the thousands of submissions could not pass constitutional muster.
“It is irrational to permit a service provider to make assessment and to exclude submissions. It is compounded by Parliament endorsing that exclusion without itself considering the submissions,” Labuschagne said.
But advocate Tembeka Ngcukaitobi, who was representing Parliament, said the application should be dismissed because the matter was moot.
“The entire work of this committee has been overtaken by events. Its report was not binding on anyone,” Ngcukaitobi said.
He also said the work of the committee had led to production of a bill aimed to amend the constitution driven by another committee with its own agenda and programme, among others.
Ngcukaitobi said if the relief that was sought had no practical effect, it was moot.
“It could not be for this court’s function to give advice to Parliament,” Ngcukaitobi said.
He also said AfriForum accepted the appointment of the service provider was proper and that it couldn’t have been expected to conduct every aspect of the related work.
Ngcukaitobi said the national legislature had explained to the court why it had supported the exclusion of the duplicate submissions and that was accepted.
Ngcukaitobi also said AfriForum has not changed substance in their challenge other than the “cut and paste” argument based on comparison of the reports of the committee and service provider.
“All of the flaws in the AfriForum case were explored fully. Nothing has changed.”
He also said if there was failure by the Parliament to fulfil its constitutional obligation, the challenge should be mounted in the Constitutional Court.
