Herbert NO and Others v Senqu Municipality and Others (2457/2016) [2018] ZAECGHC 92; [2018] 4 All SA 677 (ECG) (11 October 2018)

Herbert NO and Others v Senqu Municipality and Others (2457/2016) [2018] ZAECGHC 92; [2018] 4 All SA 677 (ECG) (11 October 2018)

The court found 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, to the extent that they exclude section 3 from application throughout the Republic, are inconsistent with sections 9 and 25 of the Constitution. The exclusionary provision creates arbitrary and unfair discrimination between holders of different categories of land tenure rights, lacks any rational basis, and perpetuates apartheid-era territorial distinctions. The exclusion also results in arbitrary deprivation of property, as the Trust and similarly placed persons are denied the opportunity to convert their permission to occupy into...

Citation
[2018] ZAECGHC 92
Parties
Applicant: Graham Robert Herbert NO; Applicant: Kevin Lawrence Cotterell NO; Applicant: Dawn Earp NO; Applicant: James Thokoana Motlatsi NO; Applicant: Steward Strauss Truswell NO; Respondent: Senqu Municipality; Respondent: Registrar of Deeds, Cape Town; Respondent: Minister of Rural Development & Land Reform
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
11 October 2018
Case Number
2457/2016
Procedural Posture
Constitutional Application / First Instance Judgment; Referral for Confirmation to Constitutional Court
Outcome
Application granted; declaration of constitutional invalidity issued; matter referred to Constitutional Court for confirmation.
Judges
T Malusi
Legal Topics
Equality Clause, Arbitrary Deprivation of Property, Upgrading of Land Tenure Rights Act, Statutory Interpretation, Severance of Unconstitutional Provisions, Confirmation Proceedings
Constitutional Law Land and Property Administrative Law Equality Clause Arbitrary Deprivation of Property Upgrading of Land Tenure Rights Act Statutory Interpretation Severance of Unconstitutional Provisions +1 more

Case Brief

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Parties

Graham Robert Herbert NO

Applicant

Kevin Lawrence Cotterell NO

Applicant

Dawn Earp NO

Applicant

James Thokoana Motlatsi NO

Applicant

Steward Strauss Truswell NO

Applicant

Senqu Municipality

Respondent

Registrar of Deeds, Cape Town

Respondent

Minister of Rural Development & Land Reform

Respondent

Procedural Posture

Constitutional Application / First Instance Judgment; Referral for Confirmation to Constitutional Court

Legal Issues

  1. 1 Whether 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 the Constitution to the extent that they exclude section 3 from application throughout the Republic.
  2. 2 Whether the exclusionary provision in section 25A constitutes unfair discrimination under section 9 of the Constitution.
  3. 3 Whether the exclusionary provision results in arbitrary deprivation of property under section 25(1) of the Constitution.

Ratio Decidendi

The court found 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, to the extent that they exclude section 3 from application throughout the Republic, are inconsistent with sections 9 and 25 of the Constitution. The exclusionary provision creates arbitrary and unfair discrimination between holders of different categories of land tenure rights, lacks any rational basis, and perpetuates apartheid-era territorial distinctions. The exclusion also results in arbitrary deprivation of property, as the Trust and similarly placed persons are denied the opportunity to convert their permission to occupy into...

Court Disposition

Application granted; declaration of constitutional invalidity issued; matter referred to Constitutional Court for confirmation.

Orders

  • Section 1 of the Land Affairs General Amendment Act 61 of 1998 and section 25A of the Land Tenure Rights Act 112 of 1991 are declared inconsistent with the Constitution to the extent that they exclude section 3 from application to the whole of the Republic and are invalid to that extent.
  • Section 25A of the Tenure Act shall be read as excluding the reference to section 3 therein.