ConCourt rules against historical inequalities in land ownership

The Constitutional Court confirmed on Thursday that Section 1 of the Land Affairs General Amendment Act and Section 25A of the Upgrading Act was inconsistent with the Constitution and invalid.

These provisions, the court said, prevented black people especially, who faced historical inequalities in land ownership, from converting their land occupancy into ownership.

Justice Chris Jafta said in the judgment: “It is egregiously unfair to afford redress to some of the victims of discrimination under apartheid and without that redress from other victims on the basis of where they are currently located.

“Under our democratic order there can be no justification for denying secure rights to a large group of people on the account of where they live in the country.

“Millions of black people in this country continue to live on 13% of the land that was reserved for Africans under the 1913 Land Act. This is because the former homelands to which they were forcibly removed were located on that 13% of the land.

“To this day millions continue to have insecure land rights, which were afforded to them during apartheid. To date, many of them may access and occupy land through the means of a permit to occupy issued by the authorities.”

The confirmatory judgment of the Eastern Cape High Court in Grahamstown sought to extend the scope of the Upgrading Act to cover all of South Africa.

The Upgrading Act came into effect near the end of apartheid and was passed to grant black people secure land ownership.

Until then, they could not own land because of discriminatory laws stemming from the apartheid era.

When the act was passed, parts of the country were divided into what was called the TBVC states, which were not subject to South African laws. The act, therefore, was not applicable to these areas.

When the interim Constitution came into effect in 1994, these areas became part of South Africa once again and the act was extended to the rest of the country by the Amendment Act a few years later.

However, land reserved for black people still did not amount to ownership as access to the land was governed by the “Proclamation”, which afforded black people land rights. However, this did not amount to ownership, only permission to occupy or a deed of grant.

In 2016, the Teba Property Trust approached the High Court claiming to be the holder of a small piece of land in Sterkspruit, but only through “permission to occupy”. This was granted to its predecessor in 1949.

The trust approached the court to convert this permission to occupy into full ownership, however, the municipality said the section of the Upgrading Act the trust had relied on – section 3 – did not apply to the suburb in question.

In essence, section 3 seeks to convert land rights into ownership.

The trust then sought to challenge the validity of Section 1 of the Amendment Act and Section 25A of the Upgrading Act, which excludes section 3 from extending to the whole of South Africa. This, it said, deprived them of land ownership.

The High Court upheld this and declared section 25A “should be read as not making any reference to section 3”.

The case was referred to the Constitutional Court which, in a unanimous judgment, upheld it.

In the judgment, Justice Jafta said: “Not only was there a failure to make out a case for suspension, but the impugned provisions are plainly so inconsistent with the equality clause and so indefensible that there is no justification for allowing them to continue in operation for even a limited period.

“Those who are denied the benefits of section 3 should not be made to wait much longer before they may convert their insecure rights.”

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