Herbert NO and Others v Senqu Municipality and Others (2457/2016) [2020] ZAECGHC 45 (19 May 2020)

Herbert NO and Others v Senqu Municipality and Others (2457/2016) [2020] ZAECGHC 45 (19 May 2020)

The court found that the Trust and its predecessors were not the targets of racially discriminatory legislation and did not suffer dispossession or denial of access to land. Instead, they benefited from the system, occupying land for profit and facilitating migrant labour. The purpose of the Upgrading Act, as established by Constitutional Court authority, is to provide secure tenure and redress to Africans disadvantaged by apartheid-era laws. The Trust does not fall within the class of persons for whom the Act was enacted. Accordingly, the Trust is not entitled to claim conversion of its permission to occupy Erf 88 into ownership under the Upgrading Act. The court declined to address...

Citation
[2020] ZAECGHC 45
Parties
Applicant: Graham Robert Herbert N O; Applicant: Kevin Lawrence Cotterell 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
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
19 May 2020
Case Number
2457/2016
Procedural Posture
Civil Application / Final Judgment After Constitutional Court Referral and Rehearing
Outcome
Application dismissed.
Judges
Roberson
Legal Topics
Upgrading of Land Tenure Rights Act, Constitutional Redress, Tenure Conversion, Discriminatory Legislation, Section 25 Property Rights, Equality Before Law
Land and Property Constitutional Law Upgrading of Land Tenure Rights Act Constitutional Redress Tenure Conversion Discriminatory Legislation Section 25 Property Rights Equality Before Law

Case Brief

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Parties

Graham Robert Herbert N O

Applicant

Kevin Lawrence Cotterell 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

Civil Application / Final Judgment After Constitutional Court Referral and Rehearing

Legal Issues

  1. 1 Whether the Trust's permission to occupy Erf 88 Sterkspruit qualifies as a land tenure right under item 2 of Schedule 2 of the Upgrading of Land Tenure Rights Act.
  2. 2 Whether the Trust, as holder of the permission to occupy, falls within the class of persons entitled to conversion into ownership under the Upgrading Act.
  3. 3 Whether the purpose and constitutional context of the Upgrading Act permit the Trust to claim conversion of rights.

Ratio Decidendi

The court found that the Trust and its predecessors were not the targets of racially discriminatory legislation and did not suffer dispossession or denial of access to land. Instead, they benefited from the system, occupying land for profit and facilitating migrant labour. The purpose of the Upgrading Act, as established by Constitutional Court authority, is to provide secure tenure and redress to Africans disadvantaged by apartheid-era laws. The Trust does not fall within the class of persons for whom the Act was enacted. Accordingly, the Trust is not entitled to claim conversion of its permission to occupy Erf 88 into ownership under the Upgrading Act. The court declined to address...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • The applicants are to pay the first respondent's costs.