Rahube v Rahube and Others (101250/2015) [2017] ZAGPPHC 651; 2018 (1) SA 638 (GP) (26 September 2017)

Rahube v Rahube and Others (101250/2015) [2017] ZAGPPHC 651; 2018 (1) SA 638 (GP) (26 September 2017)

Section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 is unconstitutional to the extent that it provides for the automatic conversion of tenure rights into ownership without notice or an opportunity for affected parties to be heard. The legislative scheme perpetuated gender discrimination by excluding women from ownership, as the underlying Proclamation was racist and sexist. The absence of procedural safeguards violated the rights to equality and access to courts under sections 9 and 34 of the Constitution. The declaration of invalidity is made retrospective to 27 April 1994, but its effect is suspended for 18 months to allow Parliament to enact a constitutionally compliant...

Citation
[2017] ZAGPPHC 651
Parties
Applicant: Mantshabelle Mary Rahube; Respondent: Hendsrine Rahube; Respondent: MEC for Housing and Land Affairs, North West Province; Respondent: Minister for Rural Development & Land Reform; Respondent: Registrar of Deeds, Pretoria; Respondent: Registrar of Deeds, Mafikeng; Respondent: City of Tshwane Metropolitan Municipality; Respondent: MEC for Human Settlements, Gauteng Province
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 September 2017
Case Number
101250/2015
Procedural Posture
Constitutional Application / First Instance Judgment
Outcome
Section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 is declared unconstitutional and invalid to the extent set out in the order. The declaration is retrospective to 27 April 1994 and suspended for 18 months. The first respondent is interdicted from transferring, selling, or encumbering the property...
Judges
Kollapen
Legal Topics
Gender Discrimination, Automatic Conversion of Tenure, Right to Property, Right to Equality, Access to Courts, Retrospective Invalidity
Constitutional Law Land and Property Civil Procedure Gender Discrimination Automatic Conversion of Tenure Right to Property Right to Equality Access to Courts +1 more

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Parties

Mantshabelle Mary Rahube

Applicant

Hendsrine Rahube

Respondent

MEC for Housing and Land Affairs, North West Province

Respondent

Minister for Rural Development & Land Reform

Respondent

Registrar of Deeds, Pretoria

Respondent

Registrar of Deeds, Mafikeng

Respondent

City of Tshwane Metropolitan Municipality

Respondent

MEC for Human Settlements, Gauteng Province

Respondent

Procedural Posture

Constitutional Application / First Instance Judgment

Legal Issues

  1. 1 Whether section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 is unconstitutional for automatically converting tenure rights into ownership without notice or hearing.
  2. 2 Whether the applicant and similarly situated women were unfairly excluded from ownership due to gender discrimination under the Proclamation and Upgrading Act.
  3. 3 Whether retrospective invalidity and suspension of the order are appropriate remedies.

Ratio Decidendi

Section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 is unconstitutional to the extent that it provides for the automatic conversion of tenure rights into ownership without notice or an opportunity for affected parties to be heard. The legislative scheme perpetuated gender discrimination by excluding women from ownership, as the underlying Proclamation was racist and sexist. The absence of procedural safeguards violated the rights to equality and access to courts under sections 9 and 34 of the Constitution. The declaration of invalidity is made retrospective to 27 April 1994, but its effect is suspended for 18 months to allow Parliament to enact a constitutionally compliant...

Court Disposition

Section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 is declared unconstitutional and invalid to the extent set out in the order. The declaration is retrospective to 27 April 1994 and suspended for 18 months. The first respondent is interdicted from transferring, selling, or encumbering the property...

Orders

  • Section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 is declared unconstitutional and invalid insofar as it automatically converted holders of land tenure rights into owners of property without notice or opportunity to be heard.
  • The declaration of invalidity is retrospective to 27 April 1994.