Herbert N.O. and Others v Senqu Municipality and Others (742/2020) [2021] ZASCA 177 (17 December 2021)

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[2021] ZASCA 177
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Herbert N.O. and Others v Senqu Municipality and Others (742/2020) [2021] ZASCA 177 (17 December 2021)

THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Reportable
Case no: 742/2020
In
the matter between:
GRAHAM
ROBERT HERBERT
N.O.
First Appellant
KEVIN
LAWRENCE COTTERELL
N.O.
Second Appellant
DAWN
EARP
N.O.
Third Appellant
JAMES
THOKOANA MOTLATSI
N.O.
Fourth Appellant
STEWART
STRAUSS TRUSWELL
N.O.
Fifth Appellant
and
SENQU
MUNICIPALITY
First Respondent
REGISTRAR
OF DEEDS,
MTHATHA
Second Respondent
MINISTER
OF RURAL DEVELOPMENT
AND
LAND REFORM

Third Respondent
Neutral
citation:
Graham
Robert Herbert N.O. and Others v Senqu Municipality and Others
(Case
no 742/2020)
[2021] ZASCA 177
(17 December 2021)
Coram:
ZONDI, VAN DER MERWE and MOKGOHLOA JJA and MEYER
and WEINER AJJA
Heard
:
9 November 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email.
It has been published on
the Supreme Court of Appeal website and released to SAFLII. The date
and time for hand-down is deemed to
be 10h00 on 17 December 2021.
Summary:
Land -
Upgrading of Land Tenure
Rights Act 112 of 1991 – upgrading and conversion into ownership of
Permission to Occupy granted in respect
of erf in Sterkspruit –
interpretation of s 3(1) of Upgrading Act – whether TEBA Property
Trust as a holder of Permission to
Occupy granted in terms of Native
Trust and Land Act 18 of 1936 falls within  class of persons in
whose interest Upgrading Act
was enacted – TEBA Property Trust was
not disadvantaged by Native Trust and Land Act or racially
discriminatory laws and thus may
not apply for conversion of its
Permission to Occupy into a full title.
ORDER
On appeal from
:
Eastern Cape Division of the High Court, Grahamstown (Roberson
J) sitting as court of first instance:
The appeal is dismissed with
costs, such costs to include those consequent upon the employment of
two counsel.
JUDGMENT
Zondi JA (Van der Merwe and
Mokgohloa JJA and Meyer and Weiner AJJA concurring)
[1]
This is an appeal against the judgment and order of the Eastern Cape
Division of the
High Court, Grahamstown (the high court). In that
judgment the high court (Roberson J) dismissed the appellant’s
application for
the conversion of its Permission to Occupy granted in
respect of Erf 88 Sterkspruit (the property) into a formal title in
terms of
s 3 of the Upgrading of the Land Tenure Rights Act 112 of
1991 (the Upgrading Act) as read with Item 2 of Schedule 2 thereto.
The
appeal concerns the interpretation of s 3 of the Upgrading Act
and Item 2 of Schedule 2 thereto and it is with leave granted by
Roberson
J. I shall return to a discussion of these provisions in
some detail. Broadly stated for present purposes, however, s 3(1) of
the
Upgrading Act makes provisions for the upgrading and conversion
into ownership of certain rights granted in respect of land.
[2]
The principal issue for consideration in this appeal is whether s 3
of the Upgrading
Act, properly interpreted, excludes the appellant,
the TEBA Property Trust (the Trust) from the category of persons who
may apply
for conversion of its Permission to Occupy into ownership,
and, if it does not, whether the failure to do so renders s 3
unconstitutional.
The Trust is the holder of a Permission to Occupy
in respect of the property, which was granted to its predecessors in
title by the
Governor-General in terms of the Native Trust and Land
Act 18 of 1936 (the Native Trust and Land Act). Over the years the
Trust had
engaged officials of the first respondent, Senqu
Municipality (the Municipality), with a view to requesting it to
submit to the second
respondent, the Registrar of Deeds, its
application to convert its Permission to Occupy into ownership. When
its attempt failed,
the Trust, on 25 May 2016, approached the high
court for relief in the following terms:
‘
1.
Declaring that the Permission to Occupy (annexure TPT1 to the
Founding Affidavit) held
by the Applicants constitutes a land tenure
right referred to in Item 2 of Schedule 2 of the Upgrading of Land
Tenure Rights Act,
112 of 1991 in respect of Erf 88 Sterkspruit;
2.
Directing the First Respondent within 14 days of such Order as may
issue, to submit
to the Second Respondent a deed of transfer made out
in the names of the Applicants for conversion of the right referred
to above
into ownership of Erf 88 Sterkspruit in the names of the
Applicants by the Second Respondent;
3.
Alternatively
to 2 above, directing the First Respondent
within 14 days of such Order, through its authorised signatory, to
sign a deed of transfer
made out in the names of the Applicants
providing for conversion of the right referred to above into
ownership of Erf 88 Sterkspruit
in the names of the Applicants as
well as any other requisite documentation submitted to it by the
Applicants, for submission to
the Second Respondent to effect the
aforesaid conversion.’
[3]
The Municipality resisted the Trust’s claim. It raised a point of
law in terms of
rule 6(5)(d)(iii) of the Uniform Rules of Court in
which it contended, among other things, that the Upgrading Act, had
no legislative
effect in the then independent territory of Transkei,
in which the property is located.
[4]
The Municipality’s defence was informed by the historic development
of the Upgrading
Act. This Act was enacted to provide for the
upgrading and conversion into ownership of certain rights granted in
respect of land.
It permitted the holders of such rights to convert
their occupational rights into ownership. But the difficulty was that
its operation
was limited to the area that comprised the old South
Africa and excluded the territory of Transkei, in which the property
is located.
In 1998, the operation of the Upgrading Act was extended
to cover the entire South Africa. The extension was done in terms of
the
Land Affairs General Amendment Act 6 of 1998 (the Amendment Act),
which amended the Upgrading Act by introducing s 25A thereto. The
operation of the provisions of the Upgrading Act, except ss 3, 19 and
20, was extended to Transkei. The extension did not entirely
solve
the problem because of the exclusion of ss 3, 19 and 20 from
application to persons located in Transkei. It is therefore not
surprising that when the Municipality raised this defence, the Trust
responded by challenging the constitutional validity of the
Amendment
Act in terms of which the extension of the Upgrading Act was effected
because it was excluded from the legislative regime
under the
Amendment Act as it stood then.
[5]
Apart from the inapplicability of s 3 of the Upgrading Act, the
Municipality had raised
a number of defences. These included: a lack
of legal standing by the Trust; use of the property contrary to the
conditions of the
Permission to Occupy; a lack of compliance with
statutory provisions in terms of which the permission was granted;
and the invalidity
of the consent granted by the Transkei Government
that the Permission to Occupy could be ceded to the Trust.
[6]
After the Trust raised the constitutional challenge to s 25A of the
Upgrading Act and
s 1 of the Amendment Act, the Municipality
delivered a supplementary answering affidavit in response to the
challenge, in which it
raised a further defence which it pleaded as
follows:
‘
10.
The [Trust], conveniently so, in trying to attack the relevant
statutory provisions, play down or
ignore:
10.1
the historic and legislative background against which the trust
acquired the permission to occupy the
property;
10.2
the fact that the trust (any reference to the trust includes a
reference to its predecessors in title)
acquired the permission to
occupy the property in order to profit greatly financially from the
system of migratory labour, which
has variously been described as the
cornerstone of apartheid and the greatest ‘cancer’ to afflict
South African Society;
10.3
the fact that the trust was the beneficiary of pernicious and
racially discriminatory legislation in
terms of which it acquired
permission to occupy the property to advance its recruitment business
for recruiting migratory labour
for the mines of South Africa and was
a party to perpetrating, for profit, one of the greatest social evils
inflicted on the people
of South Africa. Significantly the applicants
now, opportunistically so, seek to portray the trust as being a
victim of this racially
discriminatory legislation rather than its
beneficiary, which it was.’
[7]
In the high court the issue of the invalidity of the Amendment Act
was dealt with on
a separated basis and was considered before other
issues, which were postponed for later determination. In the event,
the high court
held that the exclusion of s 3 from the extended
geographical application of the Upgrading Act was inconsistent with
ss 9 and 25(1)
of the Constitution, as the exclusion denied the Trust
an opportunity to convert its right into ownership and constituted
deprivation
of property. The high court accordingly declared that s 1
of the Amendment Act and s 25A of the Upgrading Act were inconsistent
with
the Constitution to the extent that they excluded s 3 of the
Upgrading Act from applying to the entire Republic of South Africa.
[8]
The proceedings were referred to the Constitutional Court for
confirmation of the declaration
of invalidity order of the high
court. The declaration of invalidity of the Amendment Act and s 25A
of the Upgrading Act was confirmed
by the Constitutional Court in the
judgment reported as
Herbert N.O. and Others v Senqu Municipality
and Others
[2019] ZACC 31.
After the confirmation of
constitutional invalidity of s 1 of the Amendment Act and s 25A of
the Upgrading Act, the proceedings in
the high court resumed on the
remaining issues.
[9]
The application served before Roberson J and she dismissed it with
costs. She held that
the Trust did not fall into a class or group in
whose interest the Upgrading Act was enacted, and accordingly, that
it is not entitled
to claim conversion in terms of s 3 read with Item
2 of Schedule 2 of the Upgrading Act. She considered it unnecessary
to deal with
the further arguments raised by the Municipality,
because of the conclusion she reached. In coming to the conclusion
that the Trust
did not fall within the class of persons in whose
interest the Upgrading Act was enacted, the learned Judge relied on
dicta in judgments
of the Constitutional Court.
[1]
[10]
The question is whether the high court was correct to conclude that,
properly interpreted, the Upgrading
Act excludes the Trust from the
class of persons, who are entitled to claim conversion rights. The
issue involves the interpretation
of the Upgrading Act and this must
be considered in terms of the principles of interpretation as
enunciated in
Endumeni
[2]
and as
recently restated in
United
Manganese
.
[3]
The starting
point is the text of s 3 of the Upgrading Act, but from the outset it
must be viewed in the context in which it appears
and of the apparent
purpose to which it is directed, as well as the material known to
those responsible for its production, so that
the process is both
textual and contextual. The context within which the text must be
viewed, must include the entire Upgrading Act,
its legislative
history and s 39(2) of the Constitution which enjoins the courts,
when interpreting legislation, to promote the spirit,
purport and
objects of the Bill of Rights.
[4]
Endumeni
reminds us
that in the process of interpreting legal instruments, judges should
not cross the divide between the legislative and judicial
powers.
Their role is to interpret legislation and not make laws.
[11]
In
Novartis
[5]
this Court
quoted with approval the statement in
Bothma-Batho
Transport
[6]
that the
approach taken by courts to only look at surrounding circumstances
when there is an ambiguity in language, is ‘no longer
consistent
with the approach to interpretation now adopted by the South African
courts in relation to contracts or other documents,
such as statutory
instruments or patents.’
[12]
Before I deal with the Trust’s submissions, it is necessary to
sketch the applicable legal framework.
Section 25(5) of the
Constitution provides:
‘
The
state must take reasonable legislative and other measures, within its
available resources, to foster conditions which enable citizens
to
gain access to land on an equitable basis.’
[13]
Section 25(6) provides:
‘
A
person or community whose tenure of land is legally insecure
as
a result of past racially discriminatory laws or practices
is
entitled, to the extent provided by an Act of Parliament, either to
tenure which is legally secure or to comparable redress.’(Own
emphasis)
[14]     The
Trust correctly conceded that although the Upgrading Act predates the
Constitution, it is indeed
a legislative measure that was taken by
the state to enable citizens to gain access to land on an equitable
basis, as it provides
for the means by which persons or communities
whose tenure of land is insecure by virtue of past racially
discriminatory laws may
obtain tenure which is legally secure.
[15]
Section 3(1) of the Upgrading Act provides as follows:
‘
(1)
Subject to subsection (1B), any land tenure right mentioned in
Schedule 2 and which was granted
in respect of any erf or other piece
of surveyed land shall, upon the submission by the owner of such erf
or piece of land at the
deeds registry of a deed of transfer on the
form prescribed for that purpose under the Deeds Act and made out in
the name of the
person who is the holder of the relevant land tenure
right, be converted into ownership by the registrar of deeds by the
registration
of such erf or piece of land in the name of such person:
Provided that-
(a)
where
the State is the owner of an erf or piece of land situated outside a
formalised township, the relevant land tenure right need
not be
converted into ownership, and a deed of transfer shall not be
submitted unless-
(i)
the Minister is satisfied, on the basis of a report by a person
assigned or appointed
by him or her, that the rights or interests of
putative holders are being protected; and
(ii)
where such land is lawfully occupied or has been allocated for the
use of a tribe or
community a tribal or community resolution has been
obtained;
(b)
where
a tribe is the owner of the land, the decision to convert the
relevant land tenure right into ownership shall be taken by way
of a
tribal resolution.
(1A)
For the purposes of an investigation referred to in subsection (1)
(a)
, the designated or appointed person shall have all the
rights and duties referred to in section 24D (7).
(1B)
If an owner of an erf or piece of land is requested to submit a deed
of transfer of land in terms of
subsection (1), the Minister may on
request of such owner, or if the State is the owner of such land, of
his or her own accord-
(i)
impose conditions in respect of the use of such land, but if the
State is the
owner of such land and it is lawfully occupied by or has
been allocated for the use of a tribe or community, in consultation
with
such tribe or community;
(ii)
from moneys appropriated by Parliament or at the cost of an affected
person and on
such conditions as he or she may determine, cause such
land to be surveyed;
(iii)
order that an amount to be determined by him or her be paid by an
affected person to the
owner of the erf or other piece of land, or if
the erf or other piece of land falls within an area lawfully occupied
or allocated
for use by a tribe or community, to the tribe or
community concerned;
(iv)
provide for a method for determining the amount to be paid in terms
of paragraph (iii).’
[16]     Item
2 of Schedule 2 dealing with ‘Rights to the Occupation of Land’
provides that:
‘
[A]
permission to occupy any allotment within the meaning of the Black
Areas Land Regulations, 1969 (Proclamation No. R.188 of 1969)’,
is
a land tenure right.’
[17]
Regulation 47(1)(a) of the Black Areas Land Regulations, 1969
provides as follows:
‘
Notwithstanding
the provisions of any other law, every permission in writing granted
or deemed to have been granted in terms of any
law, prior to the
commencement of these regulations, to occupy any specified piece of
Trust land for arable, residential, church,
school or trading
purposes, shall notwithstanding anything contained in such law or
written permission, be deemed to have been granted
in terms of these
regulations, under permission to occupy substantially in the form
prescribed in Annexure 27 and . . .  in
the case of a trading
allotment to be subject to the general and special conditions
prescribed in Annexures 28 and 30 respectively.’
[18]
Section 1 of the Upgrading Act defines the phrase ‘land tenure
right’ to mean ‘any leasehold, deed
of grant, quitrent or any
other right to occupation of land created by or under any law and, in
relation to tribal land, includes
any right to the occupation of such
land under the indigenous law or customs of the tribe in question.’
[19]     The
following factual context is important in interpreting s 3(1) of the
Upgrading Act. The Trust acquired
the Permission to Occupy in respect
of the property, which it now seeks to convert into ownership under
these circumstances. TEBA
Limited (TEBA), by agreement with and on
behalf of a number of mining houses conducting mining operations
throughout South Africa,
manages the recruitment of staff and the
post-employment personnel matters of the staff so recruited. The
directors of TEBA are also
the trustees of the Trust. The Trust was
originally established on 28 September 1978 to hold and administer
the various property
rights under which TEBA now occupies and
conducts business on various properties in different centres.
[20]     TEBA
and the Trust conduct business in the Eastern Cape from the Trust’s
office building in Sterkspruit,
located on the property, which falls
within the area of the Municipality. The property is currently
registered in name of the Municipality,
but has been occupied by the
Trust or its predecessors in title in terms of a right of occupation
for a period in excess of 75 years.
On 6 September 1940, in terms of
a written ‘
Permission to Occupy
’ permission was granted to
the Native Recruiting Corporation by the then Secretary for Native
Affairs to occupy Lot No. 1, Village
of Sterkspruit, District of
Herschel, measuring 942 square roods.
[21]     The
Native Recruiting Corporation was incorporated as the Native
Recruiting Corporation Limited on 27
September 1912 and its
shareholders were various mining companies. During November 1966, the
Native Recruiting Corporation Limited,
by special resolution dated 9
November 1966, changed its name to Mine Labour Organisations (N.R.C.)
Limited. This was confirmed in
a letter issued by the Department of
Commerce and Industries dated 25 November 1966.
[22]     On 7
December 1989, Mine Labour Organisations (N.R.C.) Limited ceded its
rights among others, in and
to the Permission to Occupy to the Trust
in terms of the Deed of Cession. At that time, Sterkspruit fell
within and under the jurisdiction
of the then Republic of Transkei.
On 18 December 1990 the Director General for Local Government and
Land Tenure of the Republic of
Transkei (the Director General)
consented to the cession of the rights as aforesaid.
[23]     The
following legislative history is important. It is common cause that
the Permission to Occupy held
by the Trust was granted pursuant to
the provisions of the then Native Trust and Land Act. Section 4 of
this Act provided for the
establishment of a corporate body to be
known as the South African Native Trust. In terms of s 6 of the
Native Trust and Land Act,
all land ‘
which has been reserved or
set aside for the occupation of natives
’ (including additional
areas defined in that Act) vested in the South African Native Trust.
The village of Sterkspruit fell within
the area so defined and under
the administration of the South African Native Trust.
[24]     The
Native Trust and Land Act provided further that the affairs of the
South African Native Trust would
be administered by the
Governor-General as Trustee with power, subject to the provisions of
the Act, to delegate any of his powers
and functions as Trustee to
the Minister of Native Affairs who would act in consultation with the
Native Affairs Commission.
[25]
Section 18(3) of the Native Trust and Land Act authorised the
Governor-General as Trustee, subject to
the approval of Parliament,
for the support, advantage or well-being of Africans, to grant, sell,
exchange, lease or otherwise dispose
of trust land  to persons
other than Africans and s 18(4) empowered the Trustee to authorise
the grant to or occupation by any
person, Board of Trustees,
educational authority or religious body for church, school, mission
or trading purposes of such areas
of land, the property of the trust
as he may deem necessary. The Trust’s predecessors in title
acquired the Permission to Occupy
in respect of the property in terms
of s 18(3).
[26]     The
Trust asserted that the Permission to Occupy is a land tenure right
referred to in Schedule 2 of
the Upgrading Act in that it is a
permission to occupy an allotment within the meaning of the Black
Areas Land Regulations, 1969
and that it constitutes a permission
referred to in regulation 47(1)(
a
) to occupy a specified piece
of land of the South African Native Trust. It accordingly asserted
that the property falls to be registered
in the name of its trustees.
This assertion by the Trust that its Permission to Occupy is a land
tenure right cannot be disputed.
However, the entitlement to have it
registered in the name of its trustees is disputed.
[27]     The
Trust argued that, on the plain meaning of s 3(1) of the Upgrading
Act, it is entitled to the conversion
of the Permission to Occupy
into ownership by means of the procedures contained in that section.
In making this submission the Trust
placed great emphasis on the word
‘any’ appearing in s 3(1) and Item 2 of Schedule 2, which it
argued, indicates that the exercise
of a right to convert land tenure
rights is not limited to any defined category or group of persons.
Its tenure in the property,
the Trust argued, is based solely on the
Permission to Occupy. It argued that by virtue of the provisions of
the Native Trust and
Land Act, its predecessor in title was precluded
from acquiring cadastral title to property within the area regulated
by the provisions
of that Act and was limited to the mechanisms
provided in that Act to obtain the right to occupy the property. It
accordingly claimed
that it is a person whose tenure of land is
legally insecure as a result of the Native Trust and Land Act, a past
racially discriminatory
law.
[28]     The
Trust submitted that the interpretation of s 3(1) by the high court,
that the Upgrading Act excluded
it from a class of persons who
qualifies to apply for conversion of their tenuous title, was
incorrect. In developing this argument,
the Trust argued that in
order to arrive at this conclusion it would require one to read words
into the Upgrading Act, to provide
for the exclusion of defined
classes of persons from its ambit. The Trust submitted that this was
impermissible in the absence of
a finding that the Upgrading Act was
inconsistent with the Constitution to the extent that it failed to
exclude certain classes of
persons from exercising the rights
afforded to the holders of ‘any’ land tenure right by s 3(1) of
the Upgrading Act.
[29]
The Trust’s argument must be rejected for the simple reason that it
is based solely on the text of
the Upgrading Act and ignores its
context, purpose and the role it is intended to play in the
transformation of our society. The
construction of s 3(1) of the
Upgrading Act contended for by the Trust would lead to a result that
could never have been contemplated
by the legislature when it enacted
it. It could not have been intended to allow persons such as the
Trust and its predecessor in
title to apply for conversion under the
Upgrading Act. In terms of s 18 of the Native Trust and Land Act the
Trust’s predecessor
in title was not precluded from acquiring full
title. The Governor-General from whom it acquired the Permission to
Occupy the property,
could with the permission of Parliament, sell
the land to which the Permission to Occupy relates, to the Trust’s
predecessors in
title. The Native Trust and Land Act in no way
disadvantaged it. A special regime for the acquisition of full title
to trust land
under s 18(3) of that Act applied to persons such as
the Trust’s predecessors in title, who were not classified as
Africans.
[7]
[30]
In
Hanekom
[8]
this Court
held that a court is justified in departing from the literal meaning
of the section to avoid absurdity and in support of
that proposition
cited with approval the following statement by Innes CJ in
Venter
v R
[9]
that a court
will do so:
‘
(W)hen
to give the plain words of the statute their ordinary meaning would
lead to absurdity so glaring that it could never have been
contemplated by the Legislature, or where it would lead to a result
contrary to the intention of the Legislature, as shown by the
context
or by such other considerations as the Court is justified in taking
into account. . . .’
[31]
Scott JA, who wrote for the court, went on to say:
‘
This
approach has since been consistently followed. Over the years courts
have repeatedly warned of the dangers of departing too readily
from
the ordinary meaning of the words of the statute and have stressed
that the absurdity must be “utterly glaring” or the true
intention quite clear and not merely a matter of surmise or
probability. On the other hand, as accepted in
Venter
v Rex
,
ambiguity in the provision in question is not a requirement for
departure from its literal meaning. It has also been accepted that
to
avoid the absurdity or give effect to the true intention of the
Legislature, it is permissible not only to cut down or restrict
the
language used but also to expand it. See, for example, the comments
of Corbett J in
S
v Burger
1963
(4) SA 304
(C) at 308A-309B (cited with approval by Friedman J in
De
Villiers v Kinsale Properties Share Block Ltd
1986
(2) SA 592
(D) at 594G-595E).’
[32]
Section 3(1) must be interpreted purposively. As already stated, the
Upgrading Act was intended to provide
restitution to those who were
affected by the apartheid legislation, mainly Black families, whose
full title to land was replaced
with tenuous land rights. The section
provides a mechanism through which the freehold title could be
restored to those families who
were the victims of the apartheid
legislation.
[33]
The text of s 3(1) must be viewed against the following contextual
background which provides the broad
purpose underlying its enactment.
Since 1913 the notorious apartheid government enacted various pieces
of legislation that generally
had the cumulative effect of
dispossessing the black majority of their land and putting their
security of tenure over the remnants
of such lands, or the reserves,
in a precarious position. The principal legislative instruments of
land dispossession included, inter
alia, the Native Land Act 27 of
1913 and the Native Trust and Land Act 18 of 1936, both of which
restricted the African population
to 13% of the total land area of
South Africa; the Group Areas Act 41 of 1950, which allocated certain
areas to specific race groups;
the Natives Laws Amendment Act 54 of
1937, which served to prohibit Africans from buying land in urban
areas; the Bantu Authorities
Act 68 of 1951, which allowed the
establishment of tribal, regional, and territorial authorities; the
Prevention of Illegal Squatting
Act 52 of 1951, which allowed the
government to establish resettlement camps for surplus people evicted
from white farms; the Blacks
Resettlement Act 2 of 1954, to give the
state the authority to remove Africans from any area in the
magisterial district of Johannesburg
and adjacent areas; the
Promotion of Bantu Self-Government Act 46 of 1959, to establish the
independent homelands and make the reserves
the political homeland of
black South Africans.
[10]
[34]     The
minority in
DVB Behuising
had this to say regarding the
historical context of the Upgrading Act (at para [105]):
‘
In
1991, during the period of transition from apartheid to democracy,
Parliament passed the Upgrading of Land Tenure Rights Act. The
express purpose of this legislation, as its name suggests, was to
provide for the conversion into full ownership of the tenuous land
rights which had been granted during the apartheid era to Africans.’
(Footnote omitted)
[35]
As to the judgments of the Constitutional Court,
[11]
upon which the
high court relied in reaching the conclusion that it did, the Trust
submitted that these judgments are neither binding
on the high court
or this Court, nor do they constitute authority for the proposition
relied on by the high court.
[36]
It was submitted by the Trust that the statement by Ngcobo J at para
9 in
DVB
Behuising
as
to the purpose of the Upgrading Act, which was repeated by the
Constitutional Court in
Rahube
CC
at
para 38, is an obiter dictum and does not constitute a finding which
is binding on this Court. It argued that the statement by
Ngcobo J
had nothing to do with the issue which was before the court, namely
the repeal by the North West Provincial Legislature
of portions of
Proclamation R293 of 1962 and whether it had the constitutional
competence to do and accordingly whether the Act providing
for the
repeal of the said Proclamation was constitutional.
[12]
It contended
that Ngcobo J did not say that the purpose of the Upgrading Act was
limited to the conversion of tenuous rights held
by Africans.
[37]
The Constitutional Court held in
Camps
Bay Ratepayers’ and Residents’ Association v Harrison
[13]
that ‘it
is trite that the binding authority of precedent is limited to the
ratio
decidendi
,
(rationale or basis of deciding) and that it does not extend to
obiter dicta or what was said ‘by the way’. But the fact that
a
higher court decides more than one issue, in arriving at its ultimate
disposition of the matter before it, does not render the
reasoning
leading to any one of these decisions obiter, leaving lower courts
free to elect whichever reasoning they prefer to follow.
[38]     The
important point is contained in what the high court had to say at
para 36 of the judgment regarding
the statements of the
Constitutional Court in
DVB Behuising and Herbert NO
:
‘
Firstly,
one cannot ignore the Constitutional Court’s express statements
concerning the purpose of the Upgrading Act. They are unequivocal
pronouncements on its purpose, in the context of past injustice and
inequality. I should mention that it was submitted that O’Regan
J’s
reference to the “express purpose” of the Upgrading Act was in
the minority judgment in
DVB
Behuising
,
whereas Ngcobo J had only referred to the “purpose”. I think
there is little difference between the two statements’.
[39]     The
statements made by the Constitutional Court in
DVB Behuising
and
subsequently adopted in
Herbert NO
and
Rahube
dealt
with the purpose of the Upgrading Act. The statements made in each of
these three judgments regarding the purpose of the Upgrading
Act were
part of their
rationes decidendi
. For the Constitutional Court
to reach the conclusion on the issues that were before it in each of
the judgments, it was necessary
for it to determine the purpose of
the Upgrading Act. The high court could not ignore these statements
emanating from the Constitutional
Court.
[40]     The
Upgrading Act must be understood as responding to our painful history
and facilitating the transformation
of our society so as to heal the
divisions of the past. The interpretation of the section contended
for by the Trust, places too
much emphasis on the text with the
result that it undermines the objective of the Upgrading Act. Thus,
as a matter of interpretation
of s 3(1) in accordance with its clear
purpose, it is only applicable to persons who were prejudicially
affected by past racially
discriminatory laws and practices.
[41]
It is clear from this contextual background and the history of the
Upgrading Act that the conclusion
of the high court that the Trust
does not fall within the category of persons in whose interest the
Upgrading Act was enacted, cannot
be faulted. It was not
disadvantaged by racially discriminatory laws, in particular the
Native Trust and Land Act in terms of which
its predecessors in title
obtained a Permission to Occupy. In fact, to use Jafta J’s words at
para 24 in
Herbert
NO
[14]
‘
[What] was
clear though is that the Trust and its predecessors were actively
involved in the implementation of shameful policies of
the apartheid
government by recruiting workers to provide cheap labour for the
mining industry. Those workers travelled long distances
from their
homes and families and were obliged to work under the most appalling
conditions, while living in single-sex hostels, which
exposed them to
all sorts of illnesses and dangers associated with mining operations
and arising from their migrant status’.
[42]     In
light of the conclusion I have reached on the interpretation of s
3(1) of the Upgrading Act, it becomes
unnecessary to deal with
further defences raised by the Municipality.
[43]     In
the result the appeal is dismissed with costs, such costs to include
those consequent upon the employment
of two counsel.
D
H ZONDI
JUDGE OF
APPEAL
APPEARANCES:
For
the appellants:
I J Smuts SC with J G Richards
Instructed
by:
Lexicon Attorneys, Port Elizabeth
Honey
Attorneys, Bloemfontein
For
the first
respondent:      O
Ronaasen SC with M Ndamase
Instructed
by:
Whitesides Attorneys, Makanda
Webbers
Attorneys, Bloemfontein
For
the second
respondent:
─         Not participating
in
the appeal
For
the third
respondent:
─
Instructed
by:

─         The State
Attorney, Port Elizabeth
The
State Attorney, Bloemfontein
[1]
Western
Cape Provincial Government and Others: In re DVB Behuising (Pty) Ltd
v North West Provincial Government and Another
[2000] ZACC
2
;
2001 (1) SA 500
(CC) paras 2-3; paras 76-78; para 103; paras
105-106;
Rahube
v Rahube and Others
[2018]
ZACC 42
;
2019 (2) SA 54
(CC) para 38;
Herbert
NO and Others v Senqu Municipality and Others
[2019]
ZACC 31
;
2019 (6) SA 231
(CC) paras 10, 24 and 25;
Tongoane
v Minister of Agriculture and Land Affairs
[2010]
ZACC 10
;
2010 (6) SA 214
(CC) paras 1-2, 27-28.
[2]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13; 2012 (4) SA 593 (SCA).
[3]
Commissioner,
South African Revenue Service v United Manganese of Kalahari (Pty)
Ltd
[2020]
ZASCA 16
;
2020 (4) SA 428
(SCA) paras 10, 16-17.
[4]
M Wallis
‘Interpretation Before and After Natal Joint Municipal Pension
Fund v Endumeni Municipality
2012 (4) SA 593
(SCA)’ PER / PELJ
2019(22).
[5]
Novartis
SA (Pty)
Ltd v Maphil Trading (Pty) Ltd
[2015]
ZASCA 111
;
2016 (1) SA 518
(SCA) para 29.
[6]
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013]
ZASCA 176
;
2014 (2) SA 494
(SCA) para 12.
[7]
Section 18(3)
of the Native Trust and Land Act provided:
‘
With
the approval of Parliament signified by resolutions of both Houses
the Trustee may for the support, advantage or well-being
of
[Africans] or purposes connected therewith, grant, sell, lease or
otherwise dispose of land the property of the Trust to persons
other
than [Africans].’
[8]
Hanekom
v Builders
Market Klerksdorp (Pty) Ltd and Others
[2006]
ZASCA 2
;
2007 (3) SA 95
(SCA) para 7.
[9]
Venter v R
1907
TS 910
at 914-915.
[10]
D Mailula
Customary
(Communal) Land Tenure in South Africa: Did Tongoane overlook or
avoid the core issue?
(2011)
4 CCR 73 at 78.
[11]
Ibid.
[12]
DVB
Behuising
paras
2 and 3.
[13]
Camps Bay
Ratepayers’ and Residents’ Association v Harrison
[2010]
ZACC 19
; 2011 (4) 42 (CC) para 30.
[14]
Footnote 1.