Johannesburg — LAST week's Constitutional Court decision in the challenge by four rural communities against the Communal Land Rights Act of 2004 joins the ranks of four welcome judgments relating to the role of customary law under the constitution.

The case dealt with the responsibilities of Parliament to remain faithful to democratic legislative processes, to enact a truly democratic regime under which land rights eroded by colonialism and apartheid might be restored, and to facilitate customary law.

In the decision, Chief Justice Sandile Ngcobo, writing for the unanimous court, highlights a number of factors to guide future legislation in the "traditional law" arena.

First, to find that the disputed legislation was unconstitutional, the court invalidated the process by which it was passed - the provinces were excluded from playing the weighty role the constitution assigns them in the passing of legislation that affects their constituents. Here, the court emphasised that "our constitution manifestly contemplated public participation in the legislative and other processes of the National Council of Provinces, including those of its committees".

Second, the court demonstrates the continuity between the challenged act and old apartheid-imposed structures and legislation. As Deputy Chief Justice Dikgang Moseneke remarked: "To use the Black Authorities Act of 1951 as a platform for land reform after 1994 is simply incredible." This is something to which objectors to the Traditional Leadership and Governance Framework Act of 2003, the Communal Land Rights Act and the Traditional Courts Bill of 2008 have repeatedly drawn attention.

Ngcobo explicitly identifies the reality of the impugned act's relationship with the Traditional Leadership and Governance Framework Act in the judgment; namely, that the traditional councils that the latter establishes are in fact the very same old traditional authorities that existed under the Bantustan system. The unconstitutional act actually extends the powers held by these apartheid bodies.

Third, the court underscores that the presence of living customary law as a form of regulation on the ground is not tantamount to a legal vacuum but a real presence that, if to be interfered with, must be treated with due recognition. This sentiment is consistent with previous court decisions in the arena of customary law.

These court statements all come to be critical when one looks ahead to the legislation that Parliament must pass to replace the Communal Land Rights Act, and to the legislation that Parliament is in the process of passing - the Traditional Courts Bill.

The latter was drafted in consultation with traditional leaders to the exclusion of ordinary rural citizens; it is also founded on old apartheid jurisdictional boundaries and pays no heed to living customary law practices on the ground. When measured against the needs for public participation, abandonment of undemocratic structures, and catering for living customary law, articulated by the court, this bill too is therefore very arguably unconstitutional.

Regardless of our disappointment that the court declined the invitation to find the Communal Land Rights Act unconstitutional on substantive as well as procedural grounds, this is a court victory that should not be underestimated. We look forward to Rural Development and Land Reform Minister Gugile Nkwinti making good on his promise to the court that his department would promptly repeal the legislation as a whole and enact legislation consistent with the government's policy.

And, as we do so, we, the public, must stand on the fundamental points made by the court to hold him accountable and ensure that replacement legislation (and all future traditional law) is also consistent with both the constitution and the needs of the rural people it affects.

Real public participation is crucial to such outcomes. And, as this Constitutional Court judgment confirms, with the government's current tendency towards exclusion of the ordinary, rural public's voices from the legislative process, our constitutional democracy is what is on the line.

Mnisi is a senior researcher in the Law, Race and Gender Unit at the University of Cape Town.