ZACC 31
Date of Hearing: 21 May 2018
Judgement Date: 22 August 2019
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 22 August 2019 at 10h00, the Constitutional Court handed down judgment in confirmation proceedings concerning legislation that sought to extend the scope of the Upgrading of Land Tenure Rights Act 112 of 1991 (Upgrading Act), to cover the whole country. The High Court of South Africa, Eastern Cape Division, Grahamstown (High Court), declared section 1 of the Land Affairs General Amendment Act 61 of 1998 (Amendment Act) and section 25A of the Upgrading Act to be inconsistent with the Constitution and invalid.
The Upgrading Act, which commenced in the final years of apartheid, was passed in order to grant Africans a secure form of land tenure which until then they could not have, owing to discriminatory laws of that era. Before 1991, Africans were in the main not afforded secure rights in land. This dated back to 1913. When the Upgrading Act was passed, some parts of South Africa had been balkanised into the so-called TBVC states which were not subject to the laws passed by the South African Parliament. This meant that when the Upgrading Act was passed, its application did not extend to the TBVC states. When the interim Constitution came into force in 1994, all the homelands including the TBVC states became part of South Africa. The operation of the Upgrading Act was extended to the rest of the country by the Amendment Act which came into effect on 28 September 1998.
The South African Native Trust owned 13% of the land that was reserved for use by Africans. However, access to this land by Africans was governed by a Proclamation which afforded Africans rights in land in the form of permission to occupy or a deed of grant. This could not be equated to ownership. Teba Property Trust (Trust), represented in these proceedings by its trustees, claimed to be the holder of a right in land described as a permission to occupy. It asserted that this right was granted to its predecessor in terms of legislation that preceded the Proclamation. The permission was granted in September 1949. The right relates to the piece of land situated in the small town of Sterkspruit which was part of the independent Transkei.
In May 2016, the Trust, through its trustees, the applicants, launched an application in the High Court for an order declaring that its permission to occupy constitutes a land tenure right referred to in item 2 of Schedule 2 of the Upgrading Act. The Municipality pointed out that section 3 of the Upgrading Act on which the Trust relied for its claim did not apply to the area that formed part of the former Transkei. The Trust responded by challenging the validity of the provision in terms of which the extension of the Upgrading Act was effected. Section 25A provides that the Upgrading Act, except for sections 3, 19 and 20, shall apply throughout the country.
The Trust invoked sections 9(1) and 25(1) of the Constitution in impugning the Amendment Act and section 25A of the Upgrading Act. With regard to the equality claim, the Trust asserted that its right to equality before the law and the right to equal protection and benefit of the law were limited unjustifiably by excluding section 3 from the extended territorial application of the Upgrading Act. Regarding deprivation of property, the Trust contended that the impugned exclusion deprives it of the legally secure tenure which would otherwise be provided to it by virtue of section 3.
The High Court held that the exclusion of section 3 in the extended geographical application of the Upgrading Act was inconsistent with section 9 of the Constitution. That Court also concluded that the relevant exclusion denied the Trust an opportunity to convert its right into ownership and that constituted deprivation of property proscribed by section 25(1) of the Constitution. The High Court declared that section 1 of the Amendment Act and section 25A of the Upgrading Act were inconsistent with the Constitution, to the extent that they excluded section 3 of the Upgrading Act from applying to the entire Republic. To remedy the defect, the High Court declared that section 25A should be read as not making any reference to section 3.
The matter was referred to the Constitutional Court for confirmation of the declaration of invalidity. In a unanimous judgment penned by Jafta J (with Cameron J, Froneman J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ and Theron J concurring), the Constitutional Court held that when determining whether the impugned provision is inconsistent with section 9(1), the test laid down in Harksen v Lane is applied. At the first stage, a court has to determine whether the provision differentiates between people or categories of people. Once the existence of a differentiation is established, the inquiry may proceed to the second stage which is to determine whether there is a rational link between the differentiation in question and a legitimate government purpose.
The Court found that section 25A of the Upgrading Act differentiates between holders of land tenure rights by not allowing those who hold rights governed by section 3 to convert their rights to ownership if these people are in the homelands. In contrast, holders of the same rights in the area that constituted the old South Africa were permitted to convert their rights as from September 1991. Furthermore, section 25A differentiates between the holders of land tenure rights in the former homelands. The differentiation is between the holders of rights which may be converted under section 2 and those whose rights may be converted in terms of section 3. In the former homelands, the latter group is denied the right to convert. With regards to the second stage, the Court found that the relevant Minister failed to identify any purpose served by the differentiation. In the circumstances the Court concluded that the impugned provisions limit the rights in section 9(1) of the Constitution.
The Court proceeded to consider whether the limitation established meets the requirements of section 36 of the Constitution which requires that a limitation of a right in the Bill of Rights must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The Court concluded that here the limitation is in the form of an irrational differentiation and naturally an irrational limitation cannot be reasonable nor can it be justifiable. The Court found that by enacting section 25A of the Upgrading Act, Parliament acted in a manner that was at odds with the obligation to promote the fulfilment of the rights in the Bill of Rights. The Court took note of the Minister’s concession that there was no plausible reason for the differentiation.
The Court confirmed the High Court’s declaration of invalidity of section 1 of the Amendment Act and section 25A of the Upgrading Act to the extent that they did not extend the applicability of section 3 of the Upgrading Act to the entire Republic of South Africa.
The Court refused to suspend the declaration of invalidity noting that millions of black people who live in former homelands have been denied secure rights in land 25 years after the attainment of democracy. In this regard, the Court pointed out that access to land in rural areas continues to be regulated by laws passed during the apartheid era and which afford Africans insecure rights such as the right to occupy. The Court repeated the warning it made in DVB Behuising in 2001 that apartheid forms of land tenure which are inconsistent with section 25 of the Constitution should not be tolerated in our democracy.
This means that from the date of this judgment, people with insecure rights in the former homelands are entitled to convert them into secure rights if such rights fall within the ambit of section 3 of the Upgrading Act.
The Full judgment here