Herbert N.O. and Others v Senqu Municipality and Others (CCT 308/18) [2019] ZACC 31; 2019 (11) BCLR 1343 (CC); 2019 (6) SA 231 (CC) (22 August 2019)

Herbert N.O. and Others v Senqu Municipality and Others (CCT 308/18) [2019] ZACC 31; 2019 (11) BCLR 1343 (CC); 2019 (6) SA 231 (CC) (22 August 2019)

The Constitutional Court confirmed the High Court's declaration that section 1 of the Land Affairs General Amendment Act 61 of 1998 and section 25A of the Upgrading of Land Tenure Rights Act 112 of 1991 are inconsistent with section 9(1) of the Constitution to the extent that they exclude section 3 from applying to...

Source-derived case information.

Citation
[2019] ZACC 31
Parties
Applicant: Graham Robert Herbert N.O.; Applicant: Kevin Lawrence Cotterrell N.O.; Applicant: Dawn Earp N.O.; Applicant: James Thokoana Motlatsi N.O.; Applicant: Stewart Strauss Truswell N.O.; Respondent: Senqu Municipality; Respondent: Registrar of Deeds, Mthatha; Respondent: Minister of Rural Development and Land Reform
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
22 August 2019
Case Number
CCT 308/18
Procedural Posture
Constitutional Confirmation / Confirmation of High Court Declaration of Invalidity
Outcome
Declaration of invalidity confirmed; impugned provisions declared inconsistent with the Constitution and invalid to the extent of exclusion; costs awarded to applicants.
Judges
Cameron, Froneman, Jafta, Khampepe, Ledwaba, Madlanga, Mhlantla, Nicholls, Theron
Legal Topics
Equality Before the Law, Land Tenure Reform, Discriminatory Legislation, Constitutional Invalidity, Remedial Orders
Constitutional Law Land and Property Equality Before the Law Land Tenure Reform Discriminatory Legislation Constitutional Invalidity Remedial Orders

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 19 Party arguments 2
Sign in to unlock

Parties

Graham Robert Herbert N.O.

Applicant

Kevin Lawrence Cotterrell N.O.

Applicant

Dawn Earp N.O.

Applicant

James Thokoana Motlatsi N.O.

Applicant

Stewart Strauss Truswell N.O.

Applicant

Senqu Municipality

Respondent

Registrar of Deeds, Mthatha

Respondent

Minister of Rural Development and Land Reform

Respondent

Procedural Posture

Constitutional Confirmation / Confirmation of High Court Declaration of Invalidity

Legal Issues

  1. 1 Does the exclusion of section 3 of the Upgrading of Land Tenure Rights Act from its extended territorial application violate section 9(1) of the Constitution?
  2. 2 Is the differentiation created by section 25A of the Upgrading Act rational and justifiable under the Constitution?
  3. 3 Should the declaration of invalidity be suspended or take immediate effect?

Ratio Decidendi

The Constitutional Court confirmed the High Court's declaration that section 1 of the Land Affairs General Amendment Act 61 of 1998 and section 25A of the Upgrading of Land Tenure Rights Act 112 of 1991 are inconsistent with section 9(1) of the Constitution to the extent that they exclude section 3 from applying to the entire Republic. The Court found that the differentiation created by these provisions is irrational, perpetuates the discriminatory effects of apartheid, and unjustifiably limits the right to equality before the law. No legitimate government purpose was advanced to justify the exclusion, and the limitation cannot be considered reasonable or justifiable under section 36. The...

Court Disposition

Declaration of invalidity confirmed; impugned provisions declared inconsistent with the Constitution and invalid to the extent of exclusion; costs awarded to applicants.

Orders

  • The declaration of invalidity made by the High Court is confirmed.
  • Section 1 of the Land Affairs General Amendment Act 61 of 1998 and section 25A of the Upgrading of Land Tenure Rights Act 112 of 1991 are declared inconsistent with the Constitution and invalid to the extent that they do not extend the applicability of section 3 of the Upgrading of Land Tenure Rights Act to the...