Western Cape Provincial Government and Others In Re: DVB Behuising (Pty) Limited v North West Provincial Government and Another (CCT22/99) [2000] ZACC 2; 2000 (4) BCLR 347; 2001 (1) SA 500 (2 March 2000)

CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 22/99WESTERN CAPE PROVINCIAL GOVERNMENT First Intervening PartyFREE STATE PROVINCIAL GOVERNMENT Second Intervening PartyNORTHERN PROVINCE PROVINCIAL GOVERNMENT Third Intervening PartyIN RE:DVB BEHUISING (PTY) LIMITED ApplicantversusNORTH WEST PROVINCIAL GOVERNMENT First RespondentTHE REGISTRAR OF DEEDS Second Respondent

Heard on : 7 September 1999

Decided on : 2 March 2000

JUDGMENT

NGCOBO J:INTRODUCTION

[1] This matter has some unusual features. First, it concerns the constitutionality of the repeal by a provincial legislature of parts of an egregious apartheid law which anachronistically has survived our transition to a non-racial democracy. Second, the proceedings were initiated by a private commercial company which succeeded in the High Court and which has not appeared in this Court to support the order it was granted. Third, the government of the province which purported to repeal the law, and which opposed the relief in the High Court, has not appeared to oppose the confirmation of the order of the High Court, but two other provincial governments have done so. A third provincial government filed written submissions in which it also opposed the confirmation of the High Court order.

[2] The apartheid law with which these proceedings are concerned is Proclamation R293 of 1962 [1] (the Proclamation) which was issued in terms of the Native Administration Act, 38 of 1927. It made provision for the establishment of a special kind of township by the Minister of Bantu Administration and Development for African citizens in areas of land held by the “South African Native Trust” which was established by the Native Trust and Land Act, 18 of 1936. [2] That Act was one of two infamous statutes [3] that effectively made it impossible for members of the African community, a racial majority by far in this country, to own land in some 87% of the country. Even a cursory reading of the Proclamation conveys the demeaning and racist nature of the system of which it was a part. Provision was made for the “Ethnic Character of [the] Population of Township[s]”. Limited forms of tenure were created by way of “deeds of grant” and “certificate[s] of occupation of a letting unit for residential purposes”. The tenure was a precarious one and could be cancelled by the township “manager”, in the event, amongst others, of the holder of the right “ceasing to be in the opinion of the manager a fit and proper person to reside in the township”. [4] The Proclamation also made provision for the establishment of special deeds registries and for the registration of deeds of grant. [5] There were detailed provisions relating to trading and other activities in the townships and to their control. It is unnecessary to provide further detail to demonstrate the distasteful character of the Proclamation. There can be no doubt that its terms were in conflict with a number of provisions of the Bill of Rights in the interim Constitution and the 1996 Constitution (the Constitution) and on that account unconstitutional. Its terms are a timely reminder of where we have come from and the progress we have made in our transformation to democracy.

[3] The issues in this case arise pursuant to the enactment, by the legislature of the North West (the North West), of the North West Local Government Laws Amendment Act, 7 of 1998 (Act 7). Section 6 of Act 7 purports to repeal the Proclamation in its entirety. In the Bophuthatswana High Court (the High Court), the applicant, DVB Behuising (Pty) Limited (DVB), challenged the constitutional validity of section 6 of Act 7, contending that the purported repeal of Chapters 1, 2, 3 and 9 [6] of the Proclamation was beyond the legislative competence of the North West. The matter was heard by Mogoeng J. It was claimed on behalf of DVB that the repeal of those chapters made it impossible for persons to whom it had sold houses in a township established under the Proclamation to have their deeds of grant registered by the second respondent, the Registrar of Deeds, Pretoria (the Registrar). This was alleged to prejudice its business seriously, in particular, because the purchasers of such houses were not able to secure loans which would normally be offered to them by banks.

[4] As indicated above, [7] the application was opposed by the North West, which was cited as the first respondent. However, the province did not file an answering affidavit in the High Court. The only facts before the High Court, therefore, were those set out in the founding affidavit on behalf of DVB. The application was not opposed by the Registrar who elected to abide by the decision of the court.

[5] On 27 May 1999 Mogoeng J made an order declaring that the purported repeal of the said chapters of the Proclamation by section 6 of Act 7 was unconstitutional. [8] There was no order for costs. Pursuant to the provisions of section 172(2)(a) of the Constitution, [9] Mogoeng J’s declaration of invalidity was referred to this Court for confirmation.

[6] In response to notices given to other provincial governments pursuant to directions issued by the President of this Court, the governments of the Western Cape, the Free State and the Northern Province filed written submissions opposing the confirmation of the order of Mogoeng J. At the hearing of the confirmation proceedings, the Western Cape and Free State governments were represented by counsel. In the light of the non-appearance of DVB, Mr P Kennedy of the Johannesburg Bar, at the request of this Court, made submissions in support of the confirmation of the order of the High Court. We are indebted to him for his helpful heads of argument and submissions. Notice of these proceedings was also given to the national government, but it did not respond.

THE APPLICABLE STATUTORY PROVISIONS

[7] Areas which had been declared “trust land” and reserved for occupation by Africans [10] were, by the Promotion of Bantu Self-government Act, 46 of 1959, set aside as areas which would in the future be declared “independent homelands”. In 1977 Parliament granted “independence” to Bophuthatswana in terms of the Status of Bophuthatswana Act, 89 of 1977. During the period of the “independence” of Bophuthatswana the Proclamation became a law of the homeland, [11] and a number of amendments were made to it by the legislature of Bophuthatswana. None of these, as far as my research has revealed, has any relevance to the present matter. In terms of the provisions of the interim Constitution, and with effect from 27 April 1994, Act 89 of 1977 was repealed [12] and Bophuthatswana was reincorporated into South Africa. Parts of its former territory were incorporated into the North West. [13]

[8] In 1991 Parliament passed the Upgrading of Land Tenure Rights Act, 112 of 1991 (the Upgrading Act). Its terms were not of application in the TBVC states [14] until 28 September 1998, the date of promulgation of the Land Affairs General Amendment Act, 61 of 1998 , [15] which made its provisions applicable in the whole country. As the name of the Upgrading Act suggests, its purpose was to provide for the conversion into full ownership of the more tenuous land rights which had been granted during the apartheid era to Africans.

[9] The provisions of the Upgrading Act indicate that since 1991 the policy of Parliament has been to ensure that any title that conferred a limited form of ownership was to be upgraded to full ownership. It is implicit in this policy that a title which conferred a limited form of ownership was to be phased out. Those who already had such titles were to retain them until they could be upgraded to full ownership.

[10] On 17 June 1994 the President, acting under the provisions of section 235(8) of the interim Constitution, [16] assigned the administration of a substantial number of national laws to the North West. [17] One of those was the Proclamation. This was prior to the extension of the provisions of the Upgrading Act to areas of the former Bophuthatswana which became part of the North West. [18] The President's assignment was stated to be subject to the functional areas specified in schedule 6 of the interim Constitution. [19]

[11] By Government Gazette No. 17753 of 31 January 1997, the President, acting under the provisions of section 237(3) of the interim Constitution, [20] promulgated Proclamation R9 of 1997 (Proclamation R9), which amended and repealed a host of national and provincial laws in order to rationalise the public administration with reference to land affairs. One of the laws amended was the “Regulations for the Administration and Control of Townships, Proclamation No. R.293 of 1962 of the former Republic of Bophuthatswana”. The relevant amendments included the following:

(a) The definition of “deeds registry” was amended to mean a deeds registry contemplated in the Deeds Registries Act. [21] (b) Regulation 3 of Chapter 1 was amended to provide that the provisions of the Deeds Registries Act would be applicable to the registration of the deeds of grant. The provisions of the Deeds Registries Act were made applicable “in so far as such provisions can be . . . applied”. [22] (c) Regulation 1 of Chapter 9 was amended to provide that “[a]ll documents relating to immovable property in any township referred to in [the] regulations [contained in the Proclamation] shall be registered in a deeds registry”. [23] (d) Regulations 1(2) and (3) of Chapter 9, dealing with the establishment of special deeds registries in the offices of the Chief Bantu Commissioners, were deleted from the Proclamation. [24]

[12] The Deeds Registries Act was also amended to bring it in line with Proclamation R9. The effect of these amendments was to bring about uniformity in the registration of titles in respect of land, regardless of whether that title takes the form of a title deed, a lease, or a deed of grant. The result is that the Registrar of Deeds has the same obligations and duties in respect of the registration and transfer of deeds of grant as he or she has in respect of title deeds and other forms of land tenure. [25] These obligations include the registration of deeds of grants, which must now be done under the Deeds Registries Act. [26] Deeds of grant registered in the deeds registry may be transferred or mortgaged and the Registrar is, in terms of the Deeds Registries Act, obliged to register such transfers and mortgage bonds in respect of deeds of grant registered with that office. [27] The duties and obligations of the Registrar flow from the registration provisions of the Proclamation, and the provisions of the Deeds Registries Act. [28] Proclamation R9, read with the provisions of the Deeds Registries Act, envisaged that the special registries established under the Proclamation would continue to exist until a date to be determined by the national government, in terms of section 1A(3)(a) of the Deeds Registries Act. [29] On 14 April 1997, the special registries office established in Bophuthatswana was discontinued by Government Notice. [30] With effect from this date all records of the special registries office in Bophuthatswana were transferred to the offices of the Registrar of Deeds in Vryburg and Pretoria. [31]

[13] The next development was the promulgation by the North West of Act 7. It was section 6 of that Act which purported to repeal the whole of the Proclamation. As no date was specified in the Act for the coming into operation of section 6, the repeal, if constitutional, would have become effective from the date of its promulgation, namely 31 July 1998. [32] The long title of the Act is:

“To provide for the rationalisation of laws pertaining to local government applicable in the Province of the North-West [sic]; to provide for the amendment of certain such laws; and for matters incidental thereto.”

[14] The next relevant event was the promulgation, on 28 September 1998, of the Land Affairs General Amendment Act, 61 of 1998 . [33] The effect of section 1 of that Act was to make the provisions of the Upgrading Act apply throughout the Republic. [34]

[15] The final legislative act in this long history was the promulgation, on 29 December 1998, of the North West Local Government Laws Amendment Act, 9 of 1998 (Act 9). It inserted sections 5A(1) and (2) into Act 7. [35] These provisions were inserted in an apparent attempt to ensure that the deeds of grant that had been issued, and those applied for under the Proclamation were converted into ownership under the Upgrading Act. It appears that, at the time of the promulgation of Act 9, the North West was unaware that the provisions of the Upgrading Act had been made applicable throughout the Republic.

THE JUDGMENT OF THE HIGH COURT

[16] The central findings which led Mogoeng J to grant the order sought by the applicant were the following:

(a) Provincial legislatures have “a clearly defined and very limited legislative authority” and have to operate “within the strict parameters” of that authority. [36] (b) In construing the powers of provincial legislatures the relevant provisions of the Constitution must

“. . . be given a strict interpretation. This is necessary to ensure that no provincial legislature is allowed to exercise the authority it does not have and thereby usurp the functions of Parliament.” [37]

(c) The only functional areas of provincial legislative competence which could be relevant to the repeal of the Proclamation are those relating to “housing”, “local government”, “trade” and “industrial promotion”. [38] (d) The “predominating features” of Chapters 1, 2, 3 and 9 of the Proclamation are “land, land tenure or ownership, the registration of deeds and the establishment and abolition of townships.” Those are “matters which are not provincial but national competences.” The provisions repealed do not fall within those functional areas. [39] (e) The assignment of the administration of the Proclamation by the President to the North West did not include the provisions contained in Chapters 1, 2, 3 and 9 thereof, because the assignment expressly excluded any provisions of the Regulations falling outside the functional areas specified in schedule 6 to the interim Constitution. [40] If the President had intended to assign the powers contained in Chapters 1 and 9 of the Proclamation he would not have amended them by Proclamation R9 of 1997 after the date of such assignment. [41]

[17] I would point out immediately that I respectfully disagree with the view expressed by Mogoeng J to the effect that the functional areas of provincial legislative competence set out in the schedules should be “given a strict interpretation”. In the interpretation of those schedules there is no presumption in favour of either the national legislature or the provincial legislatures. The functional areas must be purposively interpreted in a manner which will enable the national Parliament and the provincial legislatures to exercise their respective legislative powers fully and effectively.

THE CONSTITUTIONAL CONTEXT

[18] There were fourteen government structures, apart from the national government, when the interim Constitution came into effect. These were the four provincial governments, [42] six governments of the self-governing territories, [43] and the four “independent” states. [44] Each had its own laws. There were of course areas of overlap, in particular, with regard to the laws applicable in the former homeland areas, as these homelands had been part of the Republic of South Africa at one time or another.

[19] Section 229 of the interim Constitution provided that all laws in force in any area of South Africa would remain in force in that area, subject to the provisions of the Constitution, and subject to any repeal or amendment of such laws by a competent authority. As there were differences between the laws in force in each of the ten homelands and the laws in force in the remainder of South Africa, there was not a uniform legal order throughout the country, or throughout each of the provinces, when the new constitutional order came into force. The difficulties occasioned by this lack of consistency were recognised and addressed in the transitional provisions of the interim Constitution. These provisions contained a very complex scheme for the allocation of the power to exercise executive authority in respect of the laws that existed when the interim Constitution took effect.

[20] The issues in this case can only be formulated and resolved by following a somewhat tortuous path dictated by the Constitution and consisting of a number of steps, which will be briefly stated here and elaborated later in the judgment. First, although the Constitution does not expressly empower a provincial legislature to repeal legislation, this is clearly implicit in its powers, provided the legislation which it purports to repeal is provincial legislation. Second, the Proclamation could only constitute provincial legislation if it was “legislation that was in force when the Constitution took effect and . . . [was] administered by a provincial government.” [45] The third step is to determine which of the provisions of the Proclamation, if any, were administered by the North West. The only basis on which such administration could have been carried out by the North West in this case was under an assignment thereof made by the President to the North West under section 235(8)(a) of the Constitution. Such assignment of administrative power is limited by section 235(6)(b) to those provisions of the Proclamation which “fall within the functional areas specified in Schedule 6 and which are not matters referred to in paragraphs (a) to (e) of section 126(3)”. It is therefore necessary to determine whether all the provisions of the Proclamation fall within one or other of the functional areas specified in schedule 6. If any provision does not, this means that the administration of such provision was not assigned to the North West by the President, that the provision itself does accordingly not constitute provincial legislation and could not validly have been repealed by Act 7. Those provisions of the Proclamation that fall within the functional areas specified in schedule 6 must, however, satisfy a further negative condition before their administration could have been assigned under section 235(8)(a); they must not deal with matters referred to in paragraphs (a) to (e) of section 126(3). It is only when both these tests are satisfied that the administration of any provision of the proclamation could have been assigned to the North West by the President. Once assigned, such provision constituted provincial legislation and could validly have been repealed by Act 7. The remainder of the judgment will follow this line of enquiry.

[21] The Constitution does not expressly confer on the provinces the power to repeal their laws. This power is nevertheless implicit in section 43(b) read with section 104(1)(b)(iv) of the Constitution. Section 43(b) provides that the legislative authority “of the provincial sphere of government is vested in the provincial legislatures, as set out in section 104”. In terms of section 104(1)(b)(iv), the provinces have the power to legislate with regard to “any matter for which a provision of the Constitution envisages the enactment of provincial legislation”. It seems to me that, read with section 104(1)(b)(iv), section 43(b) cannot be construed otherwise than as envisaging that the provinces will have the competence to repeal their own laws.

[22] In terms of section 239 of the Constitution, the laws that were administered by the province when the Constitution took effect became provincial laws.

[23] Section 235 of the interim Constitution dealt with the administration of existing laws. [46] It provided in subsection (6)(b)(ii) that all homeland laws which were in force when the interim Constitution came into operation, and which were laws “with regard to matters which fall within the functional areas specified in Schedule 6 and which are not matters referred to in paragraphs (a) to (e) of section 126(3)” should, subject to subsections (8) and (9), [47] be administered by a competent authority within the jurisdiction of the government of the province in which that law applied. As only part of a particular homeland law might meet the requirements for “assignment” to a province, the interim Constitution contemplated that the administration of a particular law might be allocated partly to a province and partly to the national government. This seems to be implicit in the reference in subsection (6)(b)(ii) to the province administering the law “to the extent that it so applies”, and is explicit in subsection (8)(b)(ii), where provision is made for a situation in which “the assignment does not relate to the whole of such law”.

[24] The provisions of subsections (8) and (9) were designed to ensure that the administration of laws would not be vested in provinces until they had the administrative infrastructure needed to enable them to deal with such matters. If the administrative structure existed, a province was entitled to have the administration of the relevant laws assigned to it. If the province lacked the necessary administrative structure, the administration of such laws had to be assigned to a functionary in the national government until the administrative structure was established by the province. The entitlement of the province to administer the relevant laws was derived from the interim Constitution and not from an authority delegated to it by the President. The assignment provisions had the limited purpose of regulating the administration of laws while the new provinces were setting up their administrations. Once they had the capacity, the President was obliged to assign the administration of the laws to them.

[25] Section 235(8)(b) also made provision for existing laws which were to be administered by the provinces to be adapted to meet the new constitutional structure. For this purpose, the President was given the power to amend or adapt any law when the administration of that law was assigned to a province or at any time thereafter. Where the assignment did not relate to the whole of the law, it could be repealed and re-enacted by the President for the purpose of the assignment, in terms of section 235(8)(b)(ii).

[26] It follows, therefore, that if the whole Proclamation, including the impugned provisions, was administered by the North West when the Constitution took effect, it constituted provincial legislation and the North West was therefore competent to repeal the whole Proclamation. It is necessary, therefore, to determine first the extent to which the Proclamation was assigned to the North West.

THE ASSIGNMENT OF THE PROCLAMATION

[27] The Proclamation was assigned to the North West by Government Notice 110 of 1994. [48] That assignment, in its relevant part, provided as follows:

“I hereby -

(a) assign the administration of the laws specified in the Schedule, excluding those provisions of the said laws which fall outside the functional areas specified in Schedule 6 to the Constitution or which relate to policing matters referred to in section 235(b) or to matters referred to in paragraphs (a) to (e) of section 126(3) of the Constitution, to a competent authority within the jurisdiction of the government of the Province of the North-West [sic] designated in respect of each such law by the Premier of that province . . .”

The schedule to the Proclamation indicates that the “whole” Proclamation was assigned. That, however, is not determinative of the question. It is necessary to determine which provisions of the Proclamation were assigned to the North West.

[28] The terms of the assignment must be understood in the light of the assignment provisions of the interim Constitution. The relevant provisions of the interim Constitution that dealt with the assignment of the executive power to administer old order laws were contained in sections 235(6) and (8), and provided:

“(6) The power to exercise executive authority in terms of laws which, immediately prior to the commencement of this Constitution, were in force in any area which forms part of the national territory and which in terms of section 229 continue in force after such commencement, shall be allocated as follows:

(a) All laws with regard to matters which - (i) do not fall within the functional areas specified in Schedule 6; or

(ii) do fall within such functional areas but are matters referred to in paragraphs (a) to (e) of section 126(3) (which shall be deemed to include all policing matters until the laws in question have been assigned under subsection (8) and for the purposes of which subsection (8) shall apply mutatis mutandis),

shall be administered by a competent authority within the jurisdiction of the national government: Provided that any policing function which but for subparagraph (ii) would have been performed subject to the directions of a member of the Executive Council of a province in terms of section 219(1) shall be performed after consultation with the said member within that province. (b) All laws with regard to matters which fall within the functional areas specified in Schedule 6 and which are not matters referred to in paragraphs (a) to (e) of section 126 (3) shall -

(i) if any such law was immediately before the commencement of this Constitution administered by or under the authority of a functionary referred to in subsection (1)(a) or (b), be administered by a competent authority within the jurisdiction of the national government until the administration of any such law is with regard to any particular province assigned under subsection (8) to a competent authority within the jurisdiction of the government of such province; or

(ii) if any such law was immediately before the said commencement administered by or under the authority of a functionary referred to in subsection (1)(c), subject to subsections (8) and (9) be administered by a competent authority within the jurisdiction of the government of the province in which that law applies, to the extent that it so applies: Provided that this subparagraph shall not apply to policing matters, which shall be dealt with as contemplated in paragraph (a).

. . . .

(8) (a) The President may, and shall if so requested by the Premier of a province, and provided the province has the administrative capacity to exercise and perform the powers and functions in question, by proclamation in the Gazette assign, within the framework of section 126, the administration of a law referred to in subsection (6)(b) to a competent authority within the jurisdiction of the government of a province, either generally or to the extent specified in the proclamation. (b) When the President so assigns the administration of a law, or at any time thereafter, and to the extent that he or she considers it necessary for the efficient carrying out of the assignment, he or she may-

(i) amend or adapt such law in order to regulate its application or interpretation;

(ii) where the assignment does not relate to the whole of such law, repeal and re-enact, whether with or without an amendment or adaptation contemplated in subparagraph (i), those of its provisions to which the assignment relates or to the extent that the assignment relates to them; and

(iii) regulate any other matter necessary, in his or her opinion, as a result of the assignment, including matters relating to the transfer or secondment of persons (subject to sections 236 and 237) and relating to the transfer of assets, liabilities, rights and obligations, including funds, to or from the national or a provincial government or any department of state, administration, force or other institution.”

[29] The purpose of section 235 was considered by this Court in Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others , [49] where Chaskalson P said:

“The overall purpose to be achieved through the application of s 235 is a systematic allocation of the ‘power to exercise executive authority’ in terms of each of the ‘old laws’, to an authority within the national government or authorities within the provincial governments. Subsection (8)(b)(ii) indicates that this authority may be allocated to provincial functionaries in respect of parts of a law and, in respect of other parts of the same law, to national functionaries. To achieve this purpose the President is given the power in ss (8)(b) to amend or adapt the laws to the extent that he considers it necessary ‘for the efficient carrying out of the assignment’. The purpose of this power is clearly to provide a mechanism whereby a fit can be achieved between the old laws and the new order.” (Emphasis in the original)

[30] Subsections (6), (8) and (9) [50] deal with the transfer of executive powers from the President, in whom the authority vested when he assumed office, to the Premiers in whom the executive authority was vested under the interim Constitution. Subsection (6) sets out the criteria for identifying the competent authority to whom the executive authority should be allocated. It also specifies the criteria for the allocation of the executive power. In terms of these criteria, a law was to be allocated to a competent authority within the province if:

(a) it was a law that dealt with a matter listed in schedule 6; and (b) it did not deal with a matter referred to in paragraphs (a) to (e) of section 126(3). [51]

[31] Section 126 of the interim Constitution conferred legislative authority on the provinces and, in relevant part, provided:

“(1) A provincial legislature shall be competent, subject to subsections (3) and (4), to make laws for the province with regard to all matters which fall within the functional areas specified in Schedule 6. (2) The legislative competence referred to in subsection (1), shall include the competence to make laws which are reasonably necessary for or incidental to the effective exercise of such legislative competence. (2A) Parliament shall be competent, subject to subsections (3) and (4), to make laws with regard to matters referred to in subsections (1) and (2). (3) A law passed by a provincial legislature in terms of this Constitution shall prevail over an Act of Parliament which deals with a matter referred to in subsection (1) or (2) except in so far as -

(a) the Act of Parliament deals with a matter that cannot be regulated effectively by provincial legislation; (b) the Act of Parliament deals with a matter that, to be performed effectively, requires to be regulated or co-ordinated by uniform norms or standards that apply generally throughout the Republic; (c) the Act of Parliament is necessary to set minimum standards across the nation for the rendering of public services; (d) the Act of Parliament is necessary for the maintenance of economic unity, the protection of the environment, the promotion of interprovincial commerce, the protection of the common market in respect of the mobility of goods, services, capital or labour, or the maintenance of national security; or (e) the provincial law materially prejudices the economic, health or security interests of another province or the country as a whole, or impedes the implementation of national economic policies.

. . . ”

[32] Schedule 6 of the interim Constitution listed the following functional areas as legislative competences of the provinces:

“Agriculture Abattoirs Airports, other than international and national airports Animal control and diseases Casinos, racing, gambling and wagering Consumer protection Cultural affairs Education at all levels, excluding university and technikon education Environment Health services Housing Indigenous law and customary law Language policy and the regulation of the use of official languages within a province, subject to section 3 Local government, subject to the provisions of Chapter 10 Markets and pounds Nature conservation, excluding national parks, national botanical gardens and marine resources Police, subject to the provisions of Chapter 14 Provincial public media Provincial sport and recreation Public transport Regional planning and development Road traffic regulation Roads Soil conservation Tourism Trade and industrial promotion Traditional authorities Urban and rural development Welfare services”

[33] The process of determining whether a law was administered by a province when the Constitution took effect involves a three-stage enquiry: first, was the law subject to assignment by the President? If the answer is in the affirmative, the second question is whether the law was “with regard to matters which fall within the functional areas specified in Schedule 6”. If it did not, that is the end of the enquiry. If it did, the third question is whether the law deals with “matters referred to in paragraphs (a) to (e) of section 126(3)” of the interim Constitution. If the law deals with a matter referred to in paragraphs (a) to (e) of section 126(3), its administration is not subject to assignment.

[34] The application of the assignment criteria presents a difficulty, in particular in the present case. This difficulty arises from the fact that: first, the Proclamation is a pre-constitutional order law; second, what is being challenged is not the repeal of the whole Proclamation but the repeal of certain of its provisions; third, the section 235(6) criteria are concerned with executive powers at an administrative level, [52] yet for its purpose, the section uses schedule 6, which deals with legislative competences, and paragraphs (a) to (e) of section 126(3), which are concerned with how conflicts between provincial and national legislation in relation to schedule 6 functional areas are to be resolved. The first question to consider is whether the administration of the Proclamation fell within the purview of subsection (6) of section 235.

DID THE PROCLAMATION FALL WITHIN THE PURVIEW OF SECTION 235(6)?

[35] The Proclamation in the form in which it existed when the interim Constitution took effect was in force in “any area which forms part of the national territory”. In terms of section 229 of the interim Constitution, therefore, it continued to exist, subject to the provisions of the Constitution. It follows that it fell within the purview of subsection (6) and its administration was, therefore, assignable in terms of section 235(8) of the interim Constitution. The next question, to which I now turn, is whether the Proclamation as a whole dealt with a matter listed in schedule 6.

DID THE PROCLAMATION AND THE IMPUGNED PROVISIONS DEAL WITH A MATTER LISTED IN SCHEDULE 6?

[36] The inquiry into whether the Proclamation dealt with a matter listed in schedule 6 involves the determination of the subject matter or the substance of the legislation, its essence, or true purpose and effect, that is, what the Proclamation is about. [53] In determining the subject matter of the Proclamation it is necessary to have regard to its purpose and effect. The inquiry should focus beyond the direct legal effect of the Proclamation and be directed at the purpose for which the Proclamation was enacted to achieve. In this inquiry the preamble to the Proclamation and its legislative history are relevant considerations, as they serve to illuminate its subject matter. They place the Proclamation in context, provide an explanation for its provisions and articulate the policy behind them.

[37] The relevance of the purpose and effect of legislation in an inquiry such as this was discussed by Chaskalson P, writing for this Court, in Ex Parte Speaker of the KwaZulu-Natal Provincial Legislature: in re KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of 1995; Ex parte Speaker of the KwaZulu-Natal Provincial Legislature: in re Payment of Salaries, Allowances and Other Privileges to the Ingonyama Bill of 1995 . [54] He stated:

“If the purpose of legislation is clearly within Schedule 6, it is irrelevant whether the Court approves or disapproves of its purpose. But purpose is not irrelevant to the Schedule 6 enquiry. It may be relevant to show that although the legislation purports to deal with a matter within Schedule 6 its true purpose and effect is to achieve a different goal which falls outside the functional areas listed in Schedule 6. In such a case a Court would hold that the province has exceeded its legislative competence. It is necessary, therefore, to consider whether the substance of the legislation, which depends not only on its form but also on its purpose and effect, is within the legislative competence of the KwaZulu-Natal provincial legislature.” (footnotes omitted)

[38] The purpose and effect of the legislation may equally be relevant to show that although the legislation, in some of its provisions, purports to deal with a matter which falls outside the functional areas listed in schedule 6, its true purpose and effect is to achieve a different goal which falls within the functional areas listed in schedule 6. In such event, a court would have to hold that the province has acted within its competence and then consider whether those provisions which fall outside of the provincial competence are reasonably necessary for, or incidental to give effect to, the object of the legislation.

[39] The determination of the subject matter of the Proclamation, therefore, requires an understanding of its legislative scheme. Ordinarily, legislation is the embodiment of a single legislative scheme. A law may, however, have more than one subject matter. [55]

[40] Before embarking upon the analysis outlined above, it is necessary first to set out the historical context of the Proclamation. One is dealing here with legislation that is admittedly racist and sexist and that constituted a key element in the edifice of apartheid. In characterising the Proclamation we cannot ignore its history, what it was intended to achieve, and what it actually did achieve.

Historical context of the Proclamation

[41] Residential segregation was the cornerstone of the apartheid policy. This policy was aimed at creating separate “countries” for Africans within South Africa. The Natives Land Act, 27 of 1913 and the Native Trust and Land Act, 18 of 1936 together set apart 13% of South Africa’s land for occupation by the African majority. The other races were to occupy the remaining 87% of the land. Africans were precluded from owning and occupying land outside the areas reserved for them by these statutes. The Native Administration Act, 38 of 1927 appointed the Governor-General (later referred to as the State President) as “supreme chief” of all Africans. [56] It gave him power to govern Africans by proclamation. [57] The powers given to him were virtually absolute. [58] He could order the removal of an entire African community from one place to another. [59] The Native Administration Act became the most powerful tool in the implementation of forced removals of Africans from the so-called “white areas” into the areas reserved for them. These removals resulted in untold suffering. [60] This geographical plan of segregation was described as forming part of “a colossal social experiment and a long term policy.” [61]

[42] The areas reserved for Africans later formed the basis for the establishment of ethnically based homelands. The Promotion of Bantu Self-government Act, 46 of 1959 divided Africans into ten “national units” on the basis of their language and ethnicity. These were North Sotho, South Sotho, Tswana, Zulu, Swazi, Xhosa (arbitrarily divided into two groups), Tsonga, Venda, and Ndebele. On the basis of these “national units” ten homelands were established, namely, Lebowa, Qwaqwa, Bophuthatswana, kwaZulu, KaNgwane, Ciskei, Transkei, Gazankulu, Venda and KwaNdebele. [62] The Black Homelands Citizenship Act, 26 of 1970 sought to assign to each African citizenship of one or other of these homelands. It is in these homelands that Africans were required to exercise their political, economic and social rights. [63]

[43] Under this scheme cities and towns fell outside of the areas reserved for Africans. However, the policy had to yield to economic imperatives - the need for cheap labour to run the economy in urban areas and towns. This was openly acknowledged:

“Assuming that the ideal to be arrived at is the territorial separation of the races there must and will remain many points at which race contact will be maintained, and it is in the towns and industrial centres, if the economic advantage of cheap labour is not to be foregone, that the contact will continue to present its important and most disquieting features. The . . . figures are eloquent of the number of natives in the towns in 1911; that number has increased and will increase to an ever greater extent as the industrial future of the country develops. It is in the towns that the native question of the future will in an ever-increasing complexity have to be faced.” [64]

[44] The Natives (Urban Areas) Act, 21 of 1923 was the first statute to address “the native question”. It was subsequently repealed by the Native (Urban Areas) Consolidation Act, 25 of 1945 which substantially re-enacted its provisions. The 1945 Act authorised the local authority, “[s]ubject to the approval of the Minister after reference to the Administrator”, to “define, set apart and lay out one or more areas of land for the occupation, residence and other reasonable requirements of natives . . .”. [65] Only Africans who were “necessary to supply the reasonable labour requirements of the urban area[s]” were allowed to remain in these areas and “redundant natives” were liable to be removed from urban areas. [66] Unemployed or “idle” Africans were liable to be sent to their “home[s]” or to

“be sent to and detained for a period not exceeding two years in a farm colony, work colony, refuge, rescue home or similar institution . . . and perform thereat such labour as may be prescribed under [the Prisons and Reformatories Act, 13 of 1911] or the regulations made thereunder for the persons detained therein . . .” [67]

This statute only applied in the so called “white areas”. The perniciousness of this section was eloquently captured by Didcott J in in re Dube,[68] when he describe its effect as follows:

“You are then an ‘idle person’, once you are capable of being employed but have no lawful employment and have had none for a total of 122 days or more during the past year . . . It does not matter whether you actually need work and its rewards. Perhaps your family supports you adequately and is content to carry on doing so. That does not count. The section says so in as many words. Nor apparently do any other lawful means you may be fortunate enough to have.

Once you are officially ‘idle’, all sorts of things can be done to you. Your removal to a host of places, and your detention in a variety of institutions, can be ordered. You can be banned forever from returning to the area where you were found, or from going anywhere else for that matter, although you may have lived there all your life. Whatever right to remain outside a special ‘Bantu’ area you gained by birth, lawful residence or erstwhile employment is automatically lost.

Perhaps you have never broken the law in your life, or harmed anyone, or made a nuisance of yourself by your activities or the lack of them. To complete our example, let us take that to be so. It makes no difference.”

[45] Some of the “African areas” were close to “white areas.” Townships could therefore be established in those “African areas” to provide housing for Africans working in the nearby cities and towns. As from December 1948, a series of proclamations were enacted that made provision for the establishment of townships in “African areas” and regulated “the administration and control of native townships on land owned by the South African Trust”. [69] The persistent theme in these proclamations was the expressed intent of establishing townships in “African areas” and the “ultimate aim of the Government that suitable forms of local authority should be established for the control of the said townships by the native inhabitants thereof”. [70] A number of the provisions of these proclamations were re-enacted in the Proclamation by the State President on 16 November 1962 in terms of sections 6(2) [71] and 25 [72] of the Native Administration Act, read with section 21 [73] of the Native Trust and Land Act. This was before any of the homelands were established. It made provision for urban settlement and township development in accordance with the apartheid planning policies that were then applicable to such matters. These townships were to be established in the vicinity of cities and towns to provide housing for Africans and were referred to as “Native towns”. [74] The Proclamation enforced segregation along racial and ethnic lines, and regulated how settlements in which African people would be entitled to live were to be established, and who could live there. It also specified strict conditions of residence and harsh controls to which residents and visitors would be subject.

[46] When the homelands were established they took over existing laws, including the Proclamation. [75] The Proclamation, insofar as it applied in these different areas, was amended on occasions by the relevant homeland legislatures, [76] and was also amended insofar as it applied in South Africa outside the homelands. [77] The Proclamation, therefore, though it retained its name, had different provisions operating in different parts of the country. Insofar as it was adopted and applied in Transkei, Bophuthatswana, Venda and Ciskei, it ceased to be South African law, and became part of the law of those “independent states”.

[47] The most significant of the amendments made in respect of the different areas in which the Proclamation was in force was probably that made by section 4(3) of the Upgrading Act in 1991, which had the effect of removing from the Proclamation most of its more opprobrious provisions. The Upgrading Act was not, however, applicable in Bophuthatswana, and comparable amendments were not made by the Bophuthatswana legislature. When the interim Constitution came into force, therefore, the Proclamation insofar as it applied to areas of the North West that were formerly part of Bophuthatswana, contained provisions that were clearly inconsistent with the Constitution. When the President assigned the administration of the Proclamation to the North West he did not adapt or re-enact it, or make the assignment subject to the Upgrading Act. It is in this context that the Proclamation and its provisions must be considered.

The substance of the Proclamation

[48] A review of the Proclamation discloses an orchestrated scheme for the establishment, management and regulation of informal townships and establishment of local government. It authorised the establishment of informal townships “for the occupation, residence and other reasonable requirements” of Africans. [78] It regulated who might lease or buy a house in the township. Occupation of houses in the township was based on ethnic affiliation and race, consistent with the Promotion of Bantu Self-government Act, 46 of 1959. It controlled every aspect of the lives of the residents of the townships, from birth to death. It regulated general sanitation (Chapter 4), the use of communal halls (Chapter 5), public meetings (Chapter 6), cemeteries (Chapter 7), and the establishment of township councils (Chapter 8). It created a range of criminal offences for those who failed to comply with its provisions. The purpose of this management and regulation of townships was to prepare ground for apartheid-based local governments in townships.

[49] The preamble to the Proclamation unfolded its objects thus:

“Whereas the South African Native Trust constituted under section four of the Native Trust and Land Act, 1936 (Act No. 18 of 1936), has established and intends establishing further townships for the residence of Bantu on land situate in Bantu areas;

And whereas it is the aim of the Government that a suitable form of local authority should be established for the control of the said townships by the Bantu inhabitants thereof;

And whereas it is expedient that, until the State President is satisfied that the Bantu inhabitants have attained such degree of development as to warrant the introduction of such form of local government, interim regulations should be promulgated for the control of the said townships; . . .”

and the entire Proclamation was geared to achieve the objects set out in its preamble.

[50] There can be no doubt that the establishment of a township necessarily involves planning where the township will be situated. While it would not always be appropriate to assign constitutional meaning to phrases on the basis of the prior meaning our legislation or case law assigned to them, [79] it is relevant for this case that in the pre-transition jurisprudence relating to provincial ordinances, the courts construed the power to establish a township to involve town planning. Thus in Broadacres Investments Ltd v Hart [80] the Appellate Division of the Supreme Court had to consider what was implied within the notion “The establishment and administration of townships”. It said:

“If the power is conferred to establish a township there is implicit a power to do at least elementary town planning, because without such planning there can be no township.”

[51] The Proclamation made provision for the establishment and disestablishment of townships in “Bantu areas”. As indicated above, “Bantu areas” fell largely outside of the urban areas and were in rural areas. It contained extensive regulations dealing with local government. On a view of the Proclamation as a whole, I am satisfied that its legislative scheme was in substance within the functional areas of regional planning and development, urban and rural development and local government. These are functional areas listed in schedule 6. It now remains to consider whether the impugned provisions of the Proclamation dealt with a matter listed in schedule 6.

DID THE PROVISIONS OF CHAPTERS 1, 2, 3 AND 9 DEAL WITH ANY MATTER LISTED IN SCHEDULE 6?

[52] Chapters 1, 2 and 3 clearly dealt with matters which relate to regional planning and development, urban and rural development, and local government. Chapter 1 dealt with the establishment and abolition of townships, [81] defined the ethnic character of the population of the township, [82] made provision for the publication of directions, notices and by-laws relating to the township, [83] and prescribed requirements for agreements of sale or lease in the township. [84]

[53] Chapter 2 dealt with the appointment of officers who were to administer the townships, [85] the publication of the Proclamation, [86] the demarcation of sites, [87] the maintenance of beacons on sites, [88] sale or lease of sites, [89] conditions under which sites were to be allocated and occupied, [90] conditions under which houses owned by the Trust were occupied, including qualifications for leasing such houses, [91] conditions under which a site might be occupied, including qualifications for purchasing a site, [92] replacement of lost or destroyed certificates of occupation or deeds of grant, [93] sub-letting, [94] transfer of houses or sites, [95] prohibition on the sale, cession, assignment, pledge or donation of rights or interests in the house or a site in the township, [96] maintenance and repair of houses, [97] and the disposal of a certificate of occupation or a deed of grant upon the death of a holder or a grantee as the case might be. [98] In addition, it authorised township officials to require any person in the township to produce proof of his or her right to remain in the township, [99] made provision for the keeping of the register of the occupiers, and the issuing of lodgers permits. [100] It prohibited the building of any extensions to existing houses without a building permit issued by township authorities. [101] It made provision for housing loans by the Trust, [102] and prohibited gambling, entertainment, soliciting, indecent exposure, destruction of public property, damaging of fences and the making of fires. [103] It regulated slaughtering of stock, camping, cultivation, excavation and quarrying, [104] prohibited the obstruction of township officials, the disturbance of public peace, and the obstruction of traffic and persons, [105] regulated the keeping of animals in the township, the reporting of births, deaths and infectious diseases, the entering of premises by medical personnel and township officers, and the possession of dangerous weapons. [106] It made provision for the payment of rents and charges and prescribed actions that might be taken against defaulters, [107] and created offences for failure to comply with the provisions of the Proclamation. [108]

[54] Chapter 3 dealt with trade and prescribed conditions under which trade in the township might be carried out. In addition, it made provision for the allocation of trading sites, and the granting of deeds of grant in respect of the trading sites. [109] Chapter 9 made provision for the registration of deeds of grant. It established special deeds registries in the offices of the Chief Bantu Affairs Commissioners [110] and set out the duties of the officers in charge of these deeds registries. [111]

[55] The provisions of Chapter 2 and Chapter 3 that related to the granting of a limited form of “ownership” rights in land in the township and those that related to the registration of those rights in Chapter 9 dealt, on their face, with a form of land tenure, a matter not listed in schedule 6. However, as appears from what follows, they were essential to the scheme of the Proclamation.

[56] The purpose of establishing a township was to create and sell sites to Africans. In Broadacres Investments Ltd v Hart it was also said:

“To establish a township necessarily involves creating sites and selling them to the public or allowing that to be done.” [112]

At 932E-F, it was further noted:

“The establishment of a township necessarily involves both the creation of the township on paper, the lay-out of the land and the acquisition of sites by purchasers. In my view the provisions contained in s 36(2) of the Ordinance [27 of 1949] to expedite the process of changing a private township into an approved private township and the protection of purchasers who buy sites before such approval is given, are incidental to the establishment of a township and they are reasonable both in the interests of the Province and of prospective owners.”

[57] The Proclamation made provision for the creation of sites and their acquisition by purchasers. It created a special form of “tenure” for those who acquired sites in the township in the form of deeds of grant. This title was only available to purchasers of sites in the townships. In addition, the Proclamation established special deeds registries in the offices of Chief Bantu Affairs Commissioners to register these special forms of tenure and created special procedures for the registration of the deeds of grant. These special provisions applied only to deeds of grant issued in respect of sites in the township. They were well integrated into the scheme of the Proclamation and they were important for the efficacy of the Proclamation.

[58] I am satisfied that the “tenure” and deeds registration provisions of the Proclamation were inextricably linked to the other provisions of the Proclamation and were foundational to the planning, regulation and control of the settlements. [113] These provisions were an integral part of the legislative scheme of the Proclamation and accordingly fell within schedule 6.

[59] It now remains to consider whether the tenure and the registration provisions of the Proclamation dealt with matters referred to in paragraphs (a) to (e) of section 126(3) of the interim Constitution.

DID THE TENURE OR REGISTRATION PROVISIONS OF THE PROCLAMATION DEAL WITH A MATTER REFERRED TO IN PARAGRAPHS (a) TO (e) OF SECTION 126(3)?

[60] The only relevant provision is section 126(3)(b), which “deals with a matter that, to be performed effectively, requires to be regulated or co-ordinated by uniform norms or standards that apply generally throughout the Republic”. A grant of land is the conventional form of transferring state land. The defining feature of a deed of grant under the Proclamation is the conditions attached to the grant. These conditions are part of a scheme designed to control and administer townships. [114] Harsh racist and sexist conditions are attached to a deed of grant.

[61] As indicated above, [115] town planning necessarily involves creating and selling sites to the public. The conditions to be applicable to a town planning scheme is a matter that must be determined by the province in the exercise of its town planning legislative competence. Such conditions may have to be informed by the local conditions, which differ from province to province. It is not a matter, in my view, that requires uniform norms or standards for it “to be performed effectively”.

[62] The conditions are integral to the grant and the two cannot be administered independently of each other. I conclude, therefore, that the special tenure provisions of the Proclamation did not deal with any matter that is referred to in paragraphs (a) to (e) of section 126(3).

[63] Different considerations, however, apply to the administration of the registration provisions. Proclamation R9, [116] read with the Deeds Registries Act, contemplates at least two things: first, the provisions of the Deeds Registries Act and the Proclamation would regulate the registration of the deeds of grant; and second, the special deeds registries established under the Proclamation were to continue to exist until discontinued in terms of section 1A(3) of the Deeds Registries Act. As pointed out above, [117] the special deeds registries established under Chapter 9 of the Proclamation were discontinued with effect from 14 April 1997. The provisions of Chapter 9 that dealt with their establishment have been repealed.

[64] Proclamation R9 brought about uniformity in the registration of all titles in respect of land, irrespective of the form of title and the statutory provision under which such title was granted. The need for the national system of deeds registration to be nationally administered cannot be questioned. To this extent, therefore, the administration of the registration provisions of the Proclamation, namely, regulations 1 and 3 of Chapter 1 and Chapter 9, [118] dealt with a matter in paragraph (b) of section 126(3). These provisions did not meet the criteria for assignment set out in section 235(6)(b) of the interim Constitution. It follows, therefore, that their administration was not assigned. Consequently, they did not constitute “provincial legislation” for the purposes of section 239 of the Constitution. In the event, the North West did not have the legislative competence to repeal those provisions.

[65] I am satisfied that the North West was constitutionally entitled to repeal the Proclamation, save regulations 1 and 3 of Chapter 1 and Chapter 9. Further, the repeal of the “tenure” provisions did not have the effect of taking away the rights of those who had already acquired deeds of grant. It is trite that the repeal of a law does not take away rights acquired under the repealed law. [119] In addition, sections 12(2)(b) and (c) of the Interpretation Act, 33 of 1957, provide that “the repeal [of a law] shall not . . . affect . . . anything duly done or suffered under the law so repealed” or “any right, privilege, obligation or liability acquired, accrued or incurred” under the repealed law. [120] It is clear from these provisions that people who were already in possession of deeds of grant at the time of the repeal are protected. In addition, persons who had acquired “any right” or “privilege” in the township prior to the repeal of the Proclamation are also protected. It is not necessary here to determine the nature and the extent of such rights or privileges. Finally, the deeds of grant are now registered in the Deeds Registry under the Deeds Registries Act, read with Chapter 9 of the Proclamation. They may be transferred, encumbered or hypothecated by holders thereof through the office of the Registrar of Deeds. [121]

[66] In regard to the view expressed in the joint judgment that at times fairness may require that aspects of the old order should survive and be “kept alive pending their replacement by appropriate forms of the new”, and that the repeal of the tenure provisions of the Proclamation has the effect of depriving “underprivileged communities from gaining access to a cheap form of land tenure”, I would draw attention to the provisions of the Less Formal Township Establishment Act, 113 of 1991, and the Development Facilitation Act, 67 of 1995 .

[67] Implicit in section 2(5) of Act 7, read with schedule 3 thereof, [122] is that the provisions of the Less Formal Township Establishment Act are applicable in the North West. [123] This statute makes provision for the development of less formal settlements and townships. It provides, among other things, “for shortened procedures for the designation, provision and development of land, and the establishment of townships [and] for less formal forms of residential settlement” and it also regulates the use of land by rural communities for communal forms of residential settlement. In the case of development of less formal settlements, it provides that laws regulating township development and planning are not applicable. [124] In addition, provision is made for the acquisition and registration of ownership in respect of an erf allocated to a person. [125] In the case of less formal townships it provides for the exclusion of such laws if their application “will have an unnecessary dilatory effect on the establishment of the contemplated township or will otherwise be inappropriate in respect of the establishment of the township”. [126] This statute, in my view, provides an accessible form of land tenure.

[68] The Development Facilitation Act provides a national framework for the development of land in urban and rural areas for residential purposes, and for the grant of land tenure rights. It “lay[s] down general principles governing land development throughout the Republic”. In Chapter VII, the Act makes provision for the grant of land tenure rights and their registration with the Registrar of Deeds. It also makes provision for the upgrading of informal settlements and for the conversion of “informal or unregistered tenure arrangements” into ownership. [127]

[69] The North West legislature is itself a democratic institution and, in my view, it was fully entitled to make the legislative choice of repealing the Proclamation even if the effect of the repeal was to put an end to the apartheid-based form of tenure. What the North West is in effect saying by the repeal of the Proclamation is that in that province apartheid forms of tenure will no longer be available in future. I should have thought that the provisions of section 25 of the Constitution and the Upgrading Act are a clear indication that apartheid forms of land tenure that are legally insecure are no longer to be tolerated in our new democratic dispensation. The repeal of the tenure provisions is consistent with this policy. The North West was fully entitled to adopt a policy that future land development should be undertaken in terms of the Less Formal Township Establishment Act and the Development Facilitation Act.