Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another (CCT78/07) [2008] ZACC 12; 2009 (1) SA 337 (CC); 2008 (11) BCLR 1123 (CC) (25 July 2008)

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Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another (CCT78/07) [2008] ZACC 12; 2009 (1) SA 337 (CC); 2008 (11) BCLR 1123 (CC) (25 July 2008)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
78/07
[2008] ZACC 12
WARY
HOLDINGS (PTY) LTD
Applicant
versus
STALWO
(PTY) LTD
First Respondent
REGISTRAR
OF DEEDS, CAPE TOWN Second
Respondent
together
with
TRUSTEES
OF THE HOOGEKRAAL HIGHLANDS
TRUST
and
SAFAMCO ENTERPRISES (PTY) LTD
Amici Curiae
and
MINISTER
OF AGRICULTURE AND LAND
AFFAIRS

Intervening Party
Heard
on : 4 March 2008
Decided
on : 25 July 2008
JUDGMENT
KROON AJ:
Introduction
The applicant seeks leave
to appeal to this Court against the decision of the Supreme Court
of Appeal, handed down on 28 September
2007,
1
which unanimously upheld the first respondent’s appeal against
the decision of the Port Elizabeth High Court.
2
At issue in this matter
is the validity of a written agreement concluded between the
applicant and the first respondent on 6 December
2004 in terms of
which the former sold to the latter “
PLOTS 5, 6, 7
AND 8 OF PROPOSED SUBDIVISION PORTION 54 OF THE FARM NO 8 PORT
ELIZABETH FOR THE SUM OF R550 000-00
”. As will appear
below, the resolution of this issue depends essentially on whether
the land embracing the property sold was
at the time of the
conclusion of the contract ‘agricultural land’ as envisaged in
the Subdivision of Agricultural Land Act
70 of 1970
3
(the Agricultural Land Act).
The first respondent
intended to use the property purchased for industrial purposes (and
indeed the property had been advertised
as such). Portion 54 was,
however, at the time zoned as ‘agricultural land’, but the
applicant had lodged an application
with the relevant local
authority for the rezoning and subdivision of the land.
Subdivision was in fact a suspensive condition
of the sale. The
subdivision was approved on 26 August 2005, such approval, however,
being subject to certain conditions, which
included a requirement
that the applicant effect substantial improvements to the land
relating to an access way, a storm water
drainage system and other
essential services. In order to cover the substantial costs that
the improvements would entail (much
higher than the applicant had
initially anticipated), coupled with the fact that the property had
in the interim increased in
value, the applicant sought to
increase, substantially, the purchase price of the property sold to
the first respondent. The
latter was, however, not prepared to
entertain an increase in price. The applicant then adopted the
stance that the agreement
was invalid and unenforceable.
The first respondent
approached the High Court for a declaratory order that the
agreement was binding and an order that the applicant
effect
transfer of the property purchased to it.
The applicant’s defence
that the agreement was invalid and unenforceable was founded on two
bases: alleged non-compliance with
the provisions of
section 2(1)
of the
Alienation of Land Act 68 of 1981
,
4
and alleged non-compliance with the provisions of section 3 of the
Agricultural Land Act.
5
The first basis does not feature in the present proceedings: the
applicant was unsuccessful thereon in the High Court as well
as in
the Supreme Court of Appeal, and the applicant did not seek to
pursue the issue in this Court.
The High Court, however,
upheld the second defence and dismissed the first respondent’s
application. It held that the property
sold was ‘agricultural
land’ as envisaged in the Agricultural Land Act. Accordingly,
the Minister of Agriculture not having
consented in writing to the
subdivision and sale of the land, the agreement was invalid and
unenforceable for want of compliance
with the provisions of section
3(a) and (e)(i) of the Agricultural Land Act.
6
The first respondent
appealed to the Supreme Court of Appeal. That court (per
Maya
JA,
Farlam
,
Lewis
,
Jafta et Ponnan
JJA
concurring) held that the land was not ‘agricultural land’.
Accordingly, the provisions of section 3(a) and (e)(i) of
the
Agricultural Land Act did not apply to the agreement between the
applicant and the first respondent. It set aside the order
of the
High Court, and substituted for it a declaratory order that the
written agreement was binding on the parties and an order
that the
applicant effect transfer of the property purchased to the first
respondent.
It is that decision that
the applicant seeks to assail in the present proceedings.
Further parties
Although the Registrar of
Deeds, Cape Town was cited as the second respondent in the
proceedings in the High Court, the Supreme
Court of Appeal and in
the present application, he abided the decision in the High Court
and did not seek thereafter to be involved
in the proceedings.
Two entities were
admitted as
amici curiae
in the present proceedings, namely
the Trustees of the Hoogekraal Highlands Trust and Safamco
Enterprises (Pty) Ltd. Each of
them is a party, as seller, to an
existing written agreement for the sale of land. The issues that
arise for decision in the
present proceedings arise in respect of
those agreements as well, and their validity is dependant on the
decision reached in
the present matter. The
amici curiae
align themselves with the stance of the applicant.
The Minister of
Agriculture and Land Affairs (the Minister) sought leave to be
admitted as
amicus curiae
in the matter, alternatively as an
intervening party in terms of Rule 8 of the Rules of this Court.
The latter prayer was granted.
Her interest in the matter, shortly
stated, relates to the proper administration of the functional area
of agriculture in the
country. She, too, aligns herself with the
stance of the applicant.
The definition of
agricultural land
Insofar as is relevant
the definition of ‘agricultural land’ in section 1 of the
Agricultural Land Act reads as follows—
“‘
agricultural
land’ means any land, except—
(a) land situated in
the area of jurisdiction of a municipal council, city council,
town council, village council, village
management board, village
management council, local board, health board or health
committee . . . but excluding any such
land declared by the
Minister after consultation with the executive committee
concerned and by notice in the
Gazette
to be agricultural
land for the purposes of this Act;
. . . .
(f) land which the
Minister after consultation with the executive committee
concerned and by notice in the
Gazette
excludes from the
provisions of this Act;
Provided that land
situated in the area of jurisdiction of a transitional council as
defined in section 1 of the Local Government
Transition Act, 1993
(Act No. 209 of 1993), which immediately prior to the first
election of the members of such transitional
council was classified
as agricultural land, shall remain classified as such”.
7
The purpose of the
Agricultural Land Act
The essential purpose of
the Agricultural Land Act has been identified as a measure by which
the legislature, in the national
interest, sought to prevent the
fragmentation of agricultural land into small uneconomic units.
8
In order to achieve this purpose, the legislature curtailed the
common law right of landowners to subdivide their agricultural
property. It imposed the requirement of the Minister’s written
consent as a prerequisite for subdivision, quite evidently
to
permit the Minister to decline any proposed subdivision which would
have the unwanted result of uneconomic fragmentation.
9
That it was the intention of the legislature to accord the
Minister wide-ranging and flexible powers of regulation and control
in order to achieve the purpose of the Act appears from section 4
of the Act, which makes provision for the following:
The
Minister may “in [her] discretion” refuse an application for
her consent (subsection (2)).
The Minister also has the
discretion to grant an application for her consent subject to the
imposition of conditions, including
conditions as to the purpose
for or manner in which the land may be used (subsection (2)(a)).
The Minister has the
power to enforce any conditions so imposed (subsection (3)).
The Minister may also
vary or cancel any such condition (subsection (4)).
The Minister may consider
whether or not the land is to be used for agricultural purposes
and, if satisfied that it will not be
so used, she must consult
with the relevant provincial authority before granting her consent
to the application. In such cases
the provincial authority has the
power to determine conditions with regard to the purpose for or
manner in which the land may
be used, and to enforce them, or to
vary or cancel them (subsections (2)(b), (3) and (4)).
Legislation in regard
to local government
Section 174 of the
interim Constitution provided in part as follows:
“
(1) Local
government shall be established for the residents of areas
demarcated by law of a competent authority.
(2) A law referred to
in subsection (1) may make provision for categories of
metropolitan, urban and rural local governments
with
differentiated powers, functions and structures according to
considerations of demography, economy, physical and environmental
conditions and other factors which justify or necessitate such
categories.”
Local Government
Transition Act 209 of 1993 (the Transition Act):
The
long title recorded that the Act was to provide inter alia for
revised interim measures with a view to promoting the restructuring
of local government, including the establishment of transitional
councils in the interim phase.
‘
Interim phase’ was
defined in section 1 as meaning:
“
the
period commencing on the day after elections are held for
transitional councils as contemplated in section 9, and ending
with the establishment of final arrangements to be enacted by a
competent legislative authority”.
‘
Transitional
council’ was defined as including: “ . . . a transitional local
council and a transitional metropolitan council
for the interim
phase”.
Sections 8 and 9 made
provision for the implementation of transitional councils and the
first elections of the members thereof.
Section 9D(1)(a)
(inserted by Proclamation R65 of 30 June 1995
10
and by
section 9(1)
of the
Local Government Transition Act Second
Amendment Act 89 of 1995) provided as follows:
“
The
following principles shall apply in respect of rural local
Government,
namely—
(a) provision shall
be made for the division of the whole area of each province
into areas of jurisdiction of transitional
metropolitan
councils, if any, and areas of district councils”.
The Constitution:
Section
151(1) reads as follows: “The local sphere of government consists
of municipalities, which must be established for the
whole of the
territory of the Republic.”
Section 155 made
provision inter alia for the establishment of various categories of
municipalities (subsection (1)), and prescribed—
that
national legislation must define the different types of
municipalities that may be established in each category, establish
the criteria for determining when an area should have a particular
category of municipality and establish criteria and procedures
for
the determination of municipal boundaries by an independent
authority (subsections (2) and (3));
that provincial
legislation must determine the different types of municipalities to
be established in the province (subsection
(5));
that each provincial
government must establish municipalities in its province in a
manner consistent with the legislation enacted
in terms of
subsections (2) and (3) (subsection (6)).
Section
156 provides:
that
a municipality has executive authority in respect of, and has the
right to administer, the local government matters listed
in Parts B
of Schedules 4 and 5, and any other matter assigned to it by
national or provincial legislation (subsection (1));
that a municipality may
make and administer by-laws for the effective administration of the
matters which it has the right to
administer (subsection (2));
that the national
government and provincial governments must assign to a
municipality, by agreement and subject to any conditions,
the
administration of a matter listed in Parts A of Schedules 4 and 5
which necessarily relates to local government, if the matter
would
most effectively be administered locally and if the municipality
has the capacity to administer it (subsection (4)).
Schedules
4 and 5, respectively, set out the functional areas of concurrent
national and provincial legislative competence and
the functional
areas of exclusive provincial legislative competence. The
functional area of agriculture is listed in Part A
of Schedule 4.
Section 21 of the Local
Government: Municipal Demarcation Act 27 of 1998 (the Demarcation
Act) provides inter alia that the Municipal
Demarcation Board
(established in terms of section 2) must determine municipal
boundaries in the territory of the Republic and
may re-determine
any municipal boundaries so determined by it.
Local Government:
Municipal Structures Act 117 of 1998 (the Municipal Structures
Act):
Section
2 prescribes which areas must have a single category A
municipality.
11
Section 4 provides for
the Municipal Demarcation Board to determine, applying the criteria
set out in section 2, whether a particular
area must have a single
category A municipality (or, alternatively, municipalities of both
categories B and C) and to determine
the boundaries of the area.
Section 12 provides that
the Member of the Executive Council for Local Government in a
province must establish a municipality
in each area demarcated by
the Demarcation Board.
History of the
addition of the proviso to the definition of agricultural land
Section 235(8) of the
interim Constitution:
Section
235(8)(a), which formed part of the transitional arrangements, made
provision for the President, by proclamation in the
Gazette
,
to assign (either generally or to the extent specified in the
proclamation) to a competent authority within the jurisdiction
of
the government of a province,
which had the required
administrative capacity
, the administration of a law referred
to in subsection (6)(b).
12
Subsection (8)(b)
empowered the President, on such assignment or thereafter, and to
the extent necessary for the efficient carrying
out of the
assignment, to amend or adapt such law in order to regulate its
application or interpretation.
Section 235(9) of the
interim Constitution:
Section
235(9)(a) made provision, in the event of a provincial government
being unable to assume responsibility for a law referred
to in
subsection (6)(b), for the President, by proclamation in the
Gazette
, to assign (either generally or to the extent
specified in the proclamation) the administration of such law to an
authority within
the jurisdiction of the national government until
such time as the provincial government became able to assume such
responsibility.
In terms of subparagraph
(b), the provisions of subsection (8)(b) applied
mutatis
mutandis
in respect of such assignment.
By Proclamation R102 of
1994
13
the President, acting in terms of section 235(9), assigned
temporarily the administration of a number of laws referred to in
section 235(6)(b) to appropriate authorities within the
jurisdiction of the national government. Included therein was the

assignment, generally, of all laws falling within the functional
area of agriculture to the Minister. The proclamation recorded
that the assignment of a law in terms thereof was, in respect of a
province, to remain in force until the assignment, in terms
of
section 235(8), of the administration of such law, or part thereof,
to a competent authority within the jurisdiction of the
government
of that province.
By Proclamation R100 of
1995
14
the President added the proviso to the definition of ‘agricultural
land’ under a preamble reading as follows:
“
Under
section 235(9) of the Constitution of the Republic of South Africa,
1993 (Act No. 200 of 1993), and in order to provide
for the
continued efficient carrying out of the functional area of
Agriculture as assigned to the Minister of Agriculture by
Proclamation No. R.102 of 1994, I hereby amend the Subdivision of
Agricultural Land Act, 1970 (Act No. 70 of 1970), by the addition
in section 1 of the following proviso to the definition of
‘agricultural land’”.
Factors common cause
The following was common
cause:
As
at the date of the conclusion of the agreement between the
applicant and the first respondent, Portion 54 fell within the area
of jurisdiction of the Nelson Mandela Metropolitan Municipality
(the NMMM), a single category A municipality, the successor
to
the Metropolitan Municipality of Port Elizabeth (the MMP).
15
Prior to the
establishment of the MMP, and at the time Proclamation R100 was
issued, the land in question was situated within
the area of
jurisdiction of the Port Elizabeth Transitional Rural Council (the
PETRC), and immediately prior to the first election
of its members,
the land in question was classified as ‘agricultural land’.
16
The MMP was also a
transitional council as envisaged in the Transition Act.
17
The High Court
judgment
The High Court held as
follows:
“
The
proviso . . . provides a point in time with reference to which it
must be established if land qualifies as agricultural land.
If at
that point in time, it is to be regarded as agricultural land it
remains so notwithstanding any changes to local government
structures and their boundaries. This point in time is the first
election of the members of the transitional council . . . [I]t
is
common cause that at this point in time Portion 54 qualified as
agricultural land. It follows that it remained so and still
was
agricultural land at the time the agreement was entered into.”
18
Hence,
the conclusion that (absent the Minister’s consent in writing to
the subdivision and sale of the land in question) the
agreement
between the applicant and the first respondent was invalid and
unenforceable.
In adopting the above
approach the High Court in general aligned itself with the
reasoning in
Kotzé v Minister van Landbou en Andere
.
19
That reasoning included the following comments:
One
could possibly accept or at least speculate that the purpose of
section 3 of the Agricultural Land Act was to protect agriculture
as an economic activity, by inter alia preventing agricultural land
being cut up into units too small to be economically viable
or
being reduced in consequence of urban extension, without the
written consent of the Minister as the custodian or protector
of
agriculture and agricultural land. The long title of the Act
reflects its purpose as being the control of the subdivision
and
use of agricultural land.
Since 1970 constitutional
changes in South Africa have, however, included various changes in
respect of local government. The
preamble to Proclamation R100 of
1995 (which added the proviso to the definition of agricultural
land) reflected that provision
was being made for the continued
efficient carrying out of the functional area of agriculture as
assigned to the Minister by
Proclamation R102 of 1994. The
legislature had accordingly seen fit to enact the proviso at a time
when transitional councils
had been established with areas larger
than the previous municipal areas.
The transitional councils
were a phase in the development of the local government system in
South Africa. The implementation
of the subsequent legislation,
culminating in the Municipal Structures Act, resulted in the
establishment of ‘wall-to-wall’
municipalities throughout the
territory of the Republic, with the consequence that there was now
no longer any land that did
not fall within municipal jurisdiction.
That did not mean, however, that there was no longer any
agricultural land to which
the provisions of section 3 of the
Agricultural Land Act could be applied, nor could the argument be
upheld that matters such
as the subdivision of land then fell
within the domain of the municipality in question as the successor
to the various local
authorities referred to in paragraph (a) of
the definition of agricultural land. (It could not be accepted
that the Agricultural
Land Act had, without anything more and in an
indirect manner, been repealed or abrogated by other legislation
which did not
refer thereto.)
The Agricultural Land Act
required to be interpreted to mean what it meant when it was
promulgated (as to which, see
Finbro Furnishers (Pty) Ltd v
Registrar of Deeds, Bloemfontein, and Others
).
20
Accordingly,
‘agricultural land’ still existed for the purposes of the Act,
and consisted of all land, except that situated
within the
jurisdiction of the structures named in paragraph (a) of the
definition at the last moment when those structures actually
existed. Agricultural land, classified as such and which fell
within the jurisdiction of an earlier transitional council, is
accordingly still ‘agricultural land’. Therefore, until the
repeal of the Agricultural Land Act is put into operation, the
Minister’s written permission for the subdivision of such land
remains necessary.
The judgment of the
Supreme Court of Appeal
The first question
addressed by the Supreme Court of Appeal was whether the NMMM is a
‘municipal council, city council or town
council’, as referred
to in the definition of ‘agricultural land’ in the Agricultural
Land Act. The question was answered
in the affirmative on the
following reasoning:
21
Section 93(8)(a) of the Municipal Structures Act provides that—
“
[w]ith
effect from 5 December 2000 . . . any reference in a law referred
to in item 2 of Schedule 6 to the Constitution of the
Republic of
South Africa, 1996 . . . to a municipal council, municipality,
local authority or another applicable designation
of a local
government structure, must be construed as a reference to a
municipal council or a municipality established in terms
of this
Act, as the case may be.”
In terms of item 2 of
Schedule 6 to the Constitution—
“
all
law that was in force when the new Constitution took effect
continues in force, subject to any amendment or repeal and
consistency
with the new Constitution, and ‘old order
legislation’ does not have a wider application, territorially or
otherwise, than
it had before the [interim] Constitution took
effect unless subsequently amended to have a wider application and
continues to
be administered by the authorities that administered
it when the new Constitution took effect, subject to the new
Constitution.”
The
Agricultural Land Act is a piece of the ‘old order legislation’
envisaged by the Constitution and section 93(8) of the
Municipal
Structures Act. That being so, the words ‘municipal council,
city council, town council’ in the definition of
‘agricultural
land’ in the Agricultural Land Act must be construed to include a
category A municipality such as the NMMM.
22
The Supreme Court of
Appeal then directed its attention to the issue whether the land in
question retained its status as ‘agricultural
land’ by virtue
of the proviso, and its classification as such immediately prior to
the election of the first members of the
PETRC, notwithstanding
that it now falls within the area of jurisdiction of a municipal
council (ie the NMMM).
The Court disapproved of
the approach (in effect) in
Kotzé
that, on an application
of
Finbro
, and to avoid a result that could not have been
intended (the Agricultural Land Act being rendered ineffective as a
result of
all land falling within municipal jurisdiction consequent
upon the establishment of ‘wall-to-wall’ municipalities), a
narrow
interpretation of ‘municipal council’, so as to exclude
latter-day municipalities such as the NMMM, was required; since all
land fell within the jurisdiction of transitional councils when
these were established, all land classified as ‘agricultural
land’ immediately prior to the election of the first members of
the transitional councils retained that classification for
as long
as the proviso remains in force.
The Court held that on a
proper, narrow interpretation of the proviso it simply served to
preserve the status quo until the demarcation
and establishment of
the final new order local government structures, at which time the
land fell within the jurisdiction of
the NMMM and lost its
historical character. A different approach would result in the
status of ‘agricultural land’ remaining
perpetually frozen from
the time of the establishment of transitional councils and not
being determined by whether or not it
is situated within the
jurisdiction of the local government structures now embraced in the
definition of ‘agricultural land’.
It would also fail to
recognise that the intention of the framers of the Agricultural
Land Act contemplated the concept of ‘agricultural
land’ as
being fluid rather than static, changing with the expansion of
local authorities and the creation of new ones. In
this regard the
Court referred to section 3(f) of the Agricultural Land Act.
23
In cases where the Minister granted permission, the land obviously
ceased to be ‘agricultural land’. Logically, therefore,
the
narrow approach of the High Court (as to the interpretation of
‘municipal council’) was not permissible. Thus, any exercise
in the interpretation of the proviso cannot ignore present-day
municipal structures created by the Municipal Structures Act.

Similarly, the purpose of the proviso had to be determined ‘in
the light of the legislative scheme which guided the restructuring
process of local government’, from the establishment of
transitional councils to the establishment of the final structures.
Accordingly, the principle set out in
Finbro
had been
misapplied in
Kotzé
.
24
The Court added that the
proviso was enacted within the context of the Transition Act, which
was intended to provide interim measures
such as the establishment
of interim municipal structures to promote the contemplated
constitutional restructuring of local government.
The proviso
itself refers specifically to ‘land situated in the area of
jurisdiction of a transitional council’ which it
states ‘shall
remain classified as such’. The plain meaning of these words was
that the proviso was meant to operate only
as long as the land
affected remained situated within the jurisdiction of a
transitional council. Had the legislature intended
the
classification to survive after transitional councils had ceased to
exist, it would have been a simple matter for it to have
said so
expressly.
25
The Court further
referred to the interpretative principle that exceptions to general
rules (of which, it said, the proviso was
an example) are to be
read restrictively. The proviso was enacted as a stopgap measure,
based on the realisation that the effect
of the Transition Act,
which would establish municipalities for rural areas for the first
time, would be to include transitional
councils within the meaning
of ‘municipal council’ envisaged in the definition of
‘agricultural land’, thus excluding
certain agricultural land
from the definition – clearly, an untenable situation.
Therefore, once the PETRC was disestablished
and the land fell
within the jurisdiction of the NMMM it ceased to be ‘agricultural
land’ within the meaning of the Agricultural
Land Act. The fact
that the proviso was still on the statute book was neither here nor
there.
26
The Court found support
for its approach in the following considerations. First, in its
view, the approach of the High Court
was incompatible with, and did
not give credence to, the radically enhanced status and powers
which the new constitutional order
accorded to local government
structures. They are no longer the pre-constitutional creatures of
statute confined to delegated
or subordinate legislation, but have
mutated, subject to permissible constitutional constraints, to
inviolable entities with
latitude to define and express their
unique character, and derive power direct from the Constitution or
from legislation of a
competent authority or from their own laws.
27
This status necessarily includes the competence and capacity on
the part of municipalities to administer land falling within
their
areas of jurisdiction without executive oversight.
28
Second, in terms of
paragraph (a) of the definition of ‘agricultural land’, the
Minister retains the power to exclude any
land from the exception
set out therein and declare it ‘agricultural land’ for the
purposes of the Agricultural Land Act.
The High Court and the
Court in
Kotzé
overlooked this fact in reasoning that
another interpretation of the proviso would lead to the
emasculation of the Agricultural
Land Act. Section 3 of the Act
still prohibits the subdivision of ‘agricultural land’. In the
light of the above there
is no possibility of the objective of the
Act being thwarted.
29
The Supreme Court of
Appeal finally made the observation that the disputed land is in
fact no longer used as ‘agricultural land’.
30
Condonation
In terms of directions
issued by the Chief Justice on 8 November 2007, the applicant was
required to lodge the record with the
Registrar by Friday 30
November 2007. In fact, the record was filed on 12 December 2007
and the applicant seeks condonation
of the late filing. The papers
reflect the following: The directions of 8 November were telefaxed
by the Registrar to the applicant’s
attorneys at the incorrect
telefax number, with the result that the directions were not
received by the attorneys. The error
was only discovered on 3
December 2007 when the Registrar telephonically enquired of the
attorneys why there had been a failure
to file the record by 30
November 2007. At the request of the attorneys, the directions
were telefaxed to them afresh and the
matter was thereafter
attended to expeditiously. In the circumstances the explanation
proffered is an adequate one, and a proper
case for condonation is
made out.
In terms of directions
issued on 22 and 25 February 2008, respectively, the
amici
curiae
were required to file their written submissions by 26
February and the Minister her written submissions by 27 February.
In each
case the first respondent was required to file its written
submissions in response to those of the
amici curiae
and the
Minister by Friday 29 February 2008. It only did so on Monday 3
March 2008 (having electronically submitted the submissions
to the
other parties and the Registrar on 29 February). The first
respondent seeks condonation of its non-compliance with the
relevant directions. The constraints of time to which the first
respondent was subject clearly afforded it a limited opportunity
for lodging its written submissions, and in the particular
circumstances its non-compliance is properly to be condoned.
The application for
leave to appeal
The requirements for the
grant of an application for leave to appeal to this Court are now
well settled in several decisions of
this Court. The application
must raise a constitutional matter,
31
which includes any issue involving the interpretation, protection
or enforcement of the Constitution.
32
Further, it must be in the interests of justice to grant leave to
appeal.
33
Whether it is in the interests of justice that leave to appeal be
granted depends on a careful weighing-up of all relevant factors,
including the importance of the constitutional issue raised. These
considerations could be varied and are often case specific,
but the
assessment thereof will be informed by the broad requirement of
whether the interests of justice will be advanced by
this Court
hearing the matter. The prospects of success in the envisaged
appeal, although not the only factor, are obviously
an important
consideration. Similarly, the fact that the appeal raises a
constitutional matter is not a decisive factor on its
own in the
decision whether leave to appeal should be granted or not.
34
Has a constitutional
issue been raised?
As to the threshold
jurisdictional requirement in applications for leave to appeal set
out in section 167(3)(b), that the issues
to be decided must be
constitutional matters or issues connected with constitutional
matters, the Constitution offers no definition
of what a
constitutional matter or an issue connected with a decision on a
constitutional matter is (save for the provision in
section 167(7)
that included in the concept of a constitutional matter is any
issue involving the interpretation, protection
or enforcement of
the Constitution). Those questions are left ultimately to this
Court to decide.
35
In
Fraser v Absa Bank Ltd
36
this Court stated the following:
“
To
attempt to define the limits of the term ‘constitutional matter’
rigidly is neither necessary nor desirable. Philosophically
and
conceptually it is difficult to conceive of any legal issue that is
not a constitutional matter within a system of constitutional
supremacy. All law is after all subject to the Constitution and
law inconsistent with the Constitution is invalid . . . . In
a
system of constitutional supremacy it is inappropriate to construe
the term ‘constitutional matter’ narrowly.”
37
Nevertheless,
while the concept of a constitutional issue is broad, the term is
of course not completely open: the jurisdiction
of this Court is
expressly restricted to only those matters outlined in section
167(3)(b) and that limitation presupposes that
a meaningful line
must be drawn between constitutional and non-constitutional
matters, and it is the responsibility of this Court
to do so.
38
One aspect may be shortly
disposed of. A submission raised on behalf of the
amici
and
the Minister pointed to the source of the legislative power
exercised by the President when he amended the Agricultural Land
Act by adding the proviso to the definition of ‘agricultural
land’. It was argued that the Supreme Court of Appeal failed
to
appreciate that it was the President, and not parliament, who
enacted the proviso. The Court therefore adopted an interpretation
which ignores the fact that the President introduced the proviso
while exercising limited legislative power conferred on him
under
the transitional provisions of the interim Constitution for a
particular purpose. Insofar as it was intended to contend
that,
apart from the question of what the correct interpretation of the
proviso is, the circumstance that the source of legislative
power
exercised by the President was the interim Constitution renders the
interpretation of the proviso a constitutional matter,
I record
that I am not persuaded that the source of the power to legislate
bears on the issue whether the interpretation of the
proviso raises
a constitutional matter. The purpose of the proviso is, however, a
relevant consideration, an aspect dealt with
below.
The application
essentially concerns the interpretation of a statute. Clearly, not
all statutory interpretation raises a constitutional
matter. On
the other hand, it cannot be gainsaid that there are undoubted
instances where the interpretation of a law will constitute
a
constitutional matter.
The applicant contended
that the application for leave to appeal involves a constitutional
matter or an issue connected with a
decision on a constitutional
matter as it is concerned with the meaning and effect of the
definition of ‘agricultural land’
in the Agricultural Land Act,
read and interpreted in the constitutional context of the
development of local government structures
within South Africa, and
the impact thereof on the constitutional functional areas of
different organs of state. It was further
argued that, in part,
constitutional issues will be determinative of this question.
Section 167(4)(a) of the
Constitution provides as follows:
“
Only
the Constitutional Court may decide disputes between organs of
state in the national or provincial sphere concerning the
constitutional status, powers or functions of any of those organs
of state.”
While
the section provides that only this Court has jurisdiction to
decide disputes
between specified organs of state
concerning
the issues referred to, it recognises that disputes concerning
those issues are constitutional matters. This has
also been
recognised in decisions of this Court. In
Fraser
it was
stated:
“
This
Court has held that a constitutional matter is presented where a
claim involves:
(a) the
interpretation, application and upholding of the Constitution
itself, including issues concerning the status, powers
or
functions of an organ of state and disputes between organs of
state”.
39
By way
of example reference was made to
Boesak
where, with
reference to section 167(4)(a), it was stated that “constitutional
matters must include . . . issues concerning
the status, powers and
functions of an organ of State.”
40
An allied principle is
that enunciated for example in
Affordable Medicines Trust v
Minister of Health of the Republic of South Africa
:
41
“
It
is by now axiomatic that, where possible, legislation ought to be
construed in a manner that is consistent with the Constitution.”
42
Where
this question arises a constitutional matter is at issue.
In amplification of the
contention of the applicant set out in paragraph 42 above, it may
be added that at issue is whether, whatever
the powers of
present-day municipalities are (an aspect to which I revert later),
the Minister still retains the power to approve
of or reject
subdivisions of land classified as ‘agricultural land’ in terms
of the proviso. The effect of the judgment
in this matter will be
to remove or confirm that power. It will, therefore, be a
pronouncement on the power of an organ of state.
The decision
will, in part, be informed by an interpretation of the relevant
provisions of both the interim Constitution and
the Constitution.
In the light of the authorities referred to above, the issue is
thus a constitutional matter.
A further aspect arises.
I deal below with the interpretative principle that a statutory
provision should be interpreted in accordance
with the spirit,
purport and objects of the Bill of Rights. This Court has not yet
been called upon to deal with the situation
where two conflicting
interpretations of a statutory provision could both be said to
promote the spirit, purport and objects
of the Bill of Rights and
the decision to be made is whether the one interpretation is to be
preferred above the other. It seems
to me that it cannot be
gainsaid that this Court is required to adopt the interpretation
which
better
promotes the spirit, purport and objects of the
Bill of Rights. That would, after all, be a more effective
“[interpretation]
through the prism of the Bill of Rights”.
43
By the same token, where
two conflicting interpretations of a statutory provision could both
be said to be reflective of the relevant
structural provisions of
the Constitution as a whole, read with other relevant statutory
provisions, the interpretation which
better
reflects those
structural provisions should be adopted. Whether the
interpretation of the proviso contended for by the applicant
meets
that requirement is a constitutional matter.
I therefore conclude that
the applicant has raised a constitutional issue.
The
amici
and the
Minister raise a further consideration. Its foundation is the
principle reiterated in
Fraser
, namely:
“
This
Court has held that a constitutional matter is presented where a
claim involves:
. . . .
(d) the
interpretation of a statute in accordance with the spirit,
purport and objects of the Bill of Rights (or the failure
to do
so)”.
44
(Footnote omitted.)
The
further comment was that this Court has made it clear that section
39(2) fashions a mandatory constitutional canon of statutory
interpretation.
45
A later paragraph in the judgment reads as follows:
“
The
question raised by this application is whether the Supreme Court of
Appeal’s interpretation of section 26 [of the
Prevention of
Organised Crime Act 121 of 1998
] has failed to promote the spirit,
purport and objects of the Bill of Rights in terms of
section
39(2).
This differs from an attack on an allegedly wrong factual
finding or incorrect interpretation or application of the law, as

in the cases referred to earlier.
Section 39(2)
requires more from
a court than to avoid an interpretation which conflicts with the
Bill of Rights. It demands the promotion
of the spirit, purport
and objects of the Bill of Rights. These are to be found in the
matrix and totality of rights and values
embodied in the Bill of
Rights. It could also in appropriate cases be found in the
protection of specific rights, like the right
to a fair trial in
section 35(3)
, which is fundamental to any system of criminal
justice, and of which the rights to legal representation and
against unreasonable
delays are components. The spirit, purport
and objects of the protection of the right to a fair trial
therefore have to be considered.
A constitutional matter has thus
been raised, and this Court accordingly has jurisdiction to hear
the matter.”
46
The contentions of the
amici
and the Minister, read together, invoke the following
provisions of the Bill of Rights:
section
24(b)(iii)
;
47
anc" HREF="#sdfootnote47sym">
47
section 25(5)
; and
48
anc" HREF="#sdfootnote48sym">
48
section 27(1)(b).
49
anc" HREF="#sdfootnote49sym">
49
The
submission is that the interpretation accorded to the proviso by
the Supreme Court of Appeal failed to give proper recognition
to
these rights. The alternative argument is that the interpretation
of the High Court better accords recognition to them.
This is so
because an interpretation of the proviso which would continue to
repose a right of control over the subdivision of
‘agricultural
land’ in higher tiers of government would better serve the
dictates of
section 39(2).
Reliance was placed inter alia on the
decision in
Fuel Retailers Association of Southern Africa v
Director-General: Environmental Management, Department of
Agriculture, Conservation
and Environment, Mpumalanga Province and
Others
.
50
I conclude that the
submissions of the
amici
and the Minister raise a
constitutional issue.
The prospects of
success
At this stage it is
necessary only to state that on a consideration of the submissions
placed before this Court by the applicant,
the
amici
and the
Minister, it cannot be said that they have no reasonable prospects
of success.
Other considerations
Further factors favouring
a finding that it would be in the interests of justice to grant the
leave to appeal sought are the following:
The
present matter is the first occasion on which this Court’s
pronouncement has been sought on the interaction between the
Agricultural Land Act and the constitutional development of local
government structures within the country, and specifically
the
impact thereof on the interpretation of the proviso. The
resolution of the dispute is not only of obvious importance in
relation to the contract between the applicant and the first
respondent (and to the contracts to which the
amici
are
parties), but it also speaks for itself that the Supreme Court of
Appeal’s interpretation could potentially have far-reaching
effects on agricultural policy in the country, far beyond the
narrow facts of this case. Land, agriculture, food production
and
environmental considerations are obviously important policy issues
at national level. The question is not whether the municipalities
should not have a say in these matters. The question is rather
whether the legislature intended to do away with the powers of
the
national Minister of Agriculture to preserve ‘agricultural land’
or whether the Agricultural Land Act, and specifically
the proviso,
recognises the need for national control, oversight and policy to
play a role in decisions to reduce agricultural
land and for
consistency as part of a national agricultural policy.
This Court is not being
asked to make its pronouncement as a court of first instance. It
has the benefit of the decision of the
High Court and the contrary
decision of the Supreme Court of Appeal which overturned the
former.
In the result, I conclude
that it would be proper for leave to appeal to be granted to the
applicant.
The interpretation of
the Agricultural Land Act
The finding of the
Supreme Court of Appeal that the words ‘municipal council, city
council, town council’ in paragraph (a)
of the definition of
‘agricultural land’ must be construed as including a
present-day single category A municipality, such
as the NMMM, was,
correctly, not attacked in this Court: the reasoning of the Supreme
Court of Appeal on this score is unassailable.
51
The same comments apply to the similar finding by the Supreme
Court of Appeal that the PETRC, a transitional council, had been
embraced within the term ‘municipal council’ envisaged in the
definition of ‘agricultural land’.
52
It may be added that the MMP, too, was a ‘municipal council’.
53
The introduction of the
proviso into the definition of ‘agricultural land’ was dictated
by the fact that, in terms of the
Transition Act, transitional
councils were established resulting in the then existing
‘agricultural land’ falling within
the jurisdiction of the
transitional councils and thereby becoming municipal land. It was
in order to ensure (at least
pro tempore
) that ‘agricultural
land’ retained its status, despite its falling within the
jurisdiction of a transitional council, that
the proviso was added
to the definition. The corollary thereof, having regard to the
wording of Proclamations R102 and R100,
read together (Proclamation
R100 was in terms linked to Proclamation R102), is that the
intention was that the functional area
of agriculture continue (at
least
pro tempore
) to repose in the Minister, including the
administration of the Agricultural Land Act. No doubt it was
realised by the legislature
that, despite the establishment of
transitional councils, it was necessary for the existence of
‘agricultural land’, and
the Minister’s control and
administration thereof in order to achieve the purpose of the
Agricultural Land Act, to continue,
so as to ensure that
‘agricultural land’, and its productive capacity, would not be
eradicated as a result of the transition
to democracy. This fact
was recognised by the Supreme Court of Appeal in terms of its
comment that the situation would otherwise
have been untenable.
54
The question to be
answered is whether, despite the circumstance that the land in
question fell within the area of jurisdiction
of the NMMM, it was,
by virtue of the proviso and its classification as ‘agricultural
land’ immediately prior to the election
of the first members of
the PETRC, still ‘agricultural land’ at the time the agreement
between the applicant and the first
respondent was entered into, or
whether it had lost that status by virtue of its inclusion within
the area of jurisdiction of
the NMMM (or, perhaps more accurately,
when the existence of the MMP came to an end).
A cardinal rule in the
construction of any legislation is that the intention of the
legislature must be sought in the words employed
in the
legislation. The first step in this exercise is a determination of
the plain meaning to be ascribed to the words. Two
competing
arguments on this score were presented:
The
first respondent supported the approach of the Supreme Court of
Appeal
55
to the effect that the plain meaning of the wording of the proviso
was that the proviso was meant to operate only as long as
the land
affected remained situated within the jurisdiction of a
transitional council.
The counter-argument
supported the approach of the High Court
56
that the proviso identified “a point in time” with reference to
which it was to be determined whether land qualified as

‘agricultural land’, and, if so, it retained that status
notwithstanding any subsequent changes in local government
structures
and their boundaries.
It is so that, on a
purely textual interpretation, the proviso is capable of bearing
the meaning ascribed to it by the Supreme
Court of Appeal; and, as
the Supreme Court of Appeal correctly commented,
57
an intention that the classification as ‘agricultural land’ was
to survive after transitional councils had ceased to exist
could
easily have been reflected by express language to that effect.
On the other hand,
however, it cannot be gainsaid that, on a purely textual
interpretation, the proviso is also capable of bearing
the meaning
ascribed to it by the High Court. Again, had the intention been
that the classification as ‘agricultural land’
was to terminate
once the land no longer fell within the area of jurisdiction of a
transitional council, express appropriate
language reflecting that
intention could easily have been utilised.
It is, however, a further
canon of statutory interpretation that the ordinary meaning of the
words in a statute must be determined
in the context of the statute
(including its purpose) read in its entirety.
58
That context is the following:
The
purpose of the Agricultural Land Act is as recorded earlier,
59
and includes empowering the Minister as set out in the definition
of ‘agricultural land’ and section 4 of the same Act.
No
compelling reason presents itself as to why that purpose should
have been intended to remain current only during the life
of the
transitional councils. (I deal more fully with this aspect below.)
The proviso was
introduced in terms of powers accorded to the President by section
235(9) of the interim Constitution. As set
out earlier,
60
the context of the exercise of the powers was the anticipated
future acquisition of ability by a provincial government to assume
responsibility for the administration of laws falling within the
functional area of agriculture. (This aspect too will be more
fully dealt with below.)
In my view, therefore,
the interpretation to be given to the proviso is that the duration
of the classification of land as ‘agricultural
land’ was not
tied to the life of transitional councils, and that the reference
therein to “land situated within the jurisdiction
of a
transitional council” was dictated by the factual position which
then obtained and which had to be addressed, and the
way that was
done was, as found by the High Court, by pinpointing the stage from
which land classified as ‘agricultural land’
would remain so
classified. As was pointed out in
Executive Council of the
Western Cape Legislature and Others v President of the Republic of
South Africa and Others
,
61
the laws governing the matters to be assigned in terms of section
235 had not been designed for the new constitutional order
and the
purpose of the President’s power to amend or adapt laws to the
extent that he considered it “necessary for the efficient
carrying out of the assignment” was “to provide a mechanism
whereby
a fit
can be achieved between the old laws and the
new order”. The new situation
in casu
was the
establishment of transitional councils embracing ‘agricultural
land’. The notion that the classification as ‘agricultural
land’, which the proviso sought to keep in place, would come to
an end when transitional councils would be replaced by the
final
structures fails to appreciate that the transitional provisions of
the interim Constitution sought to achieve a systematic
allocation
of the “power to exercise executive authority” in respect of
‘old laws’ to an authority within the national
government or
authorities within the provincial governments,
62
and did not deal with local government.
However, on the premise
that the proviso is ambiguous (counsel for the Minister conceded
that to be the case) regard must be had
to other indicators of the
legislature’s intention.
As recorded earlier,
63
the intention of the legislator with the introduction of the
proviso was to ensure the continued existence of ‘agricultural
land’ and the Minister’s control over it through the provisions
of the Agricultural Land Act (thereby achieving the purpose
of the
Act
64
),
despite the establishment of transitional councils. The question
that arises is for how long it was intended that that position
continue. It is with regard to that question that I turn to
address certain comments in the judgment of the Supreme Court of
Appeal.
Reference was made to the
fact that the proviso itself referred to “land situated in the
area of jurisdiction of a transitional
council”. That is, of
course, the basis on which I have accepted that, on a textual
reading, the proviso is capable of bearing
the meaning attributed
to it by the Supreme Court of Appeal. However, as I have further
recorded, a textual reading of the proviso
also renders it capable
of bearing the meaning attributed to it by the High Court.
65
The comment that the
proviso was enacted within the context of the Transition Act, which
was intended to provide interim measures
such as the establishment
of interim municipal structures to promote the contemplated
constitutional restructuring of local government,
is correct, as
far as it goes. But the further implied corollary that the
proviso
was intended to promote the contemplated constitutional
restructuring of local government
, cannot be endorsed. Indeed,
in my judgement, the finding that the purpose of the proviso
included the promotion of the contemplated
constitutional
restructuring of local government was the fundamental flaw in the
approach of the Supreme Court of Appeal. As
recorded earlier,
66
the proviso was enacted, first, in the context of the purpose of
the Agricultural Land Act, and, secondly, in terms of section
235(9) of the interim Constitution, in the context of the need to
provide for the continued efficient carrying out of the functional
area of agriculture assigned to the Minister and the anticipated
future acquisition by a provincial government of the ability
to
assume responsibility for the administration of laws falling within
the functional sphere of agriculture. It is to be emphasised
that
in contradistinction to express statements in the proclamations
relating to these aspects, there is no reference in either
proclamation to the final local government structures to come into
being in the future. In short, the proviso had to do with
agriculture, not restructuring of local government.
In this regard it is
apposite to refer to certain other provisions of the interim
Constitution (current at the time Proclamation
R100 was issued).
The
transitional arrangements enacted as part of the interim
Constitution were contained in Chapter 15 thereof. Section 229

provided as follows:
“
Subject
to this Constitution, all laws which immediately before the
commencement of this constitution were in force in any
area which
forms part of the national territory, shall continue in force in
such area, subject to any repeal or amendment
of such laws by a
competent authority.”
The
Agricultural Land Act is such a law.
The
effect of the provisions of section 235(6)(b) has already been set
out above.
67
There was no provision therein for any part of the functional area
of agriculture to be administered by a local government structure.

This militates against any suggestion that the intention behind the
proviso was that a future local government structure would
assume
administration over land classified as ‘agricultural land’ in
terms of the proviso, which would then cease to be so
classified.
The arrangement put in
place by Proclamations R102 and R100 was not affected by the 1996
Constitution. Schedule 6 contains the
transitional arrangements.
The following items are relevant:
Item 2(1):
“
All
law that was in force when the new Constitution took effect,
continues in force, subject to—
(a) any amendment or
repeal; and
(b) consistency with the
new Constitution.”
Item
2(2)(b):
“
Old
order legislation that continues in force in terms of subitem (1)—
(b) continues to be
administered by the authorities that administered it when the new
Constitution took effect, subject to the
new
Constitution.”
Item
14(1) and (2)(a):
“
(1) Legislation
with regard to a matter within a functional area listed in
Schedule 4 or 5 to the new Constitution and which,
when the new
Constitution took effect, was administered by an authority within
the national executive, may be assigned by
the President, by
proclamation, to an authority within a provincial executive
designated by the Executive Council of the
province.
(2) To the extent that
it is necessary for an assignment of legislation under subitem
(1) to be effectively carried out, the
President, by
proclamation, may—
(a) amend or adapt the
legislation to regulate its interpretation or application”.
It
is accepted that present-day municipalities have the enhanced
status referred to by the Supreme Court of Appeal.
68
I join issue, however, with the comment that this status
necessarily includes the competence and capacity to administer land
falling within their areas of jurisdiction
without executive
oversight
, insofar as these last words are invoked in support
of the finding that the consequence of the new local government
dispensation
is that land classified as ‘agricultural land’ in
terms of the proviso has, subject to the exceptions noted by the
Court
(as to which, see below), been removed from the domain of the
Minister’s control through the Agricultural Land Act. As I will
endeavour to show later, whatever the ambit of the control of
present-day municipalities over such land, there is no reason why
the Minister’s control thereof cannot co-exist therewith.
Allied thereto is the
reliance in the judgment of the Supreme Court of Appeal on the
provision in paragraph (a) of the definition
of ‘agricultural
land’ for the Minister to exclude any land from the exception set
out therein and declare it ‘agricultural
land’. This
provision, read with the still operative prohibition in section 3
against the subdivision of ‘agricultural land’
without the
permission of the Minister, so it was reasoned, excluded the
possibility of the objective of the Act being thwarted.
69
It was argued on behalf of the first respondent, in support of
this approach, that the provision for such declaration is now
the
raison d’être
for the Agricultural Land Act. In my
judgement, however, there are a number of counters to this
contention.
That the proviso is still
operative provides a more persuasive
raison d’être
for
the Agricultural Land Act. Absent any declaration as referred to
in the preceding paragraph, on the first respondent’s
argument
and the decision of the Supreme Court of Appeal, there would be no
land to be the subject of the functional area of
agriculture,
legislative competence in respect of which is assigned by Part A of
Schedule 4 to the Constitution to the national
and provincial tiers
of government (and not, subject to what follows below, to the local
government tier). This is not a situation
that commends itself for
acceptance.
An allied aspect is that
the as yet unrepealed Agricultural Land Act contains the provision
in paragraph (f) of the definition
of ‘agricultural land’ for
the Minister to exclude land from the provisions of the Act.
70
Counsel for the Minister validly argued that there would be no
sense in the provision unless there is a general body of
‘agricultural
land’ in respect of which it could be invoked.
Any declaration by the
Minister that a particular piece of municipal land is to be
excluded from the exception relating to municipal
land referred to
in paragraph (a) of the definition would entail far-reaching
implications arising out of the Promotion of Administrative
Justice
Act.
71
It is open to serious doubt whether the coming into existence of
‘agricultural land’ by way of a declaration by the Minister,
beset by such hurdles, was intended by the legislature to be the
only means whereby there would be ‘agricultural land’ to
which
the provisions of the Agricultural Land Act would be applicable.
If, indeed, the procedure
providing for the Minister to exclude land from the exception and
to declare it ‘agricultural land’
would exclude the possibility
of the objective of the Act being thwarted, one questions why it
was ever thought necessary for
the proviso to be enacted.
It is so that in terms of
section 156(4) of the Constitution, provision is made for the
national and provincial governments to
assign to a municipality the
administration of a matter listed in Part A of Schedule 4, which
includes the functional area of
agriculture.
72
However, there are prerequisites for such assignment, namely the
agreement of the municipality; and the requirements that the
matter
must necessarily relate to local government, that it would most
effectively be administered locally; and that the municipality
must
have the capacity to administer the matter (aspects on which there
is no evidence before this Court); and the assignment
will be
subject to any conditions imposed. There is also no suggestion
that any attempt to effect such an assignment has been
essayed.
It would be convenient at
this stage to interpose a reference to a further submission raised
on behalf of the applicant during
argument. Attention was drawn to
the fact that in terms of section 5(1) of the Share Blocks Control
Act,
73
no share block scheme may be operated on ‘agricultural land’ as
defined in the Agricultural Land Act unless consent for the
sale or
the granting of a right to a portion of such agricultural land has
previously been obtained from the Minister. The effect
of the
Supreme Court of Appeal’s judgment is that there is now no room
(save in the event of a declaration by the Minister
as referred to
in paragraph 70 above) for any application of section 5(1) and for
practical purposes it is superfluous. I perceive
the purpose of
the provision to be related to that of the Agricultural Land Act.
The fact that the section is still on the statute
book supports the
stance of the applicant. I do not consider, however, that the
point, which was not raised in the papers, should
be emphasised.
The statement in the
judgment of the Supreme Court of Appeal that an approach different
from that adopted by it would result in
the status of ‘agricultural
land’ remaining ‘perpetually frozen’ from the time of the
establishment of transitional councils,
irrespective of whether the
land in question falls within the jurisdiction of the local
government structures now embraced in
the definition of
‘agricultural land’
74
,
is unpersuasive. The same comment falls to be made concerning the
further statement that a different approach would fail to
recognise
that the intention of the framers of the Agricultural Land Act
contemplated the concept of ‘agricultural land’
as being ‘fluid
rather than static’, changing with the expansion of local
authorities and the creation of new ones.
The term ‘frozen in
perpetuity’ is an overstatement. The contention of the
applicant, the
amici
and the Minister is, on analysis, no
more than that the proviso envisaged that the status quo be
maintained, ie the land’s
classification as ‘agricultural land’
be maintained with whatever ‘fluidity’, in respect of the
urbanisation of land
the Agricultural Land Act otherwise entailed.
(The Minister’s consent in terms of section 3(f) was obviously
not required
for the
constitutional
expansion of municipal
‘areas of jurisdiction’ in terms of the Municipal Structures
Act.) In my judgement, the contention
is a valid one.
Taking the reliance of
the Supreme Court of Appeal on the enhanced status of present-day
municipalities a step further, counsel
for the first respondent
argued that it was the intention of the legislature that what was
formerly ‘agricultural land’ would
now be administered by
municipalities inter alia in terms of the still operative municipal
ordinances which accord the municipalities
various powers including
those of planning, zoning and rezoning of land and approval of
applications for subdivision.
I am not persuaded,
however, that the enhanced status of municipalities and the fact
that they have such powers is a ground for
ascribing to the
legislature the intention that national control over ‘agricultural
land’ through the Agricultural Land Act,
effectively be a thing
of the past. There is no reason why the two spheres of control
cannot co-exist even if they overlap and
even if, in respect of the
approval of subdivision of ‘agricultural land’, the one may in
effect veto the decision of the
other.
75
It should be borne in mind that the one sphere of control operates
from a municipal perspective and the other from a national
perspective, each having its own constitutional and policy
considerations. As adverted to earlier,
76
land, agriculture, food production and environmental considerations
are obviously important policy issues on a national level.
An
interpretation of the Agricultural Land Act that would attribute to
the legislature the intention to retain the national
government’s
role in effectively formulating national policy on these and other
related issues, and to recognise the need for
national policy to
play a role in decisions to reduce ‘agricultural land’ and for
consistency in agricultural policy throughout
the country, is an
interpretation that can and should properly be adopted. That
interpretation is the one effectively applied
by the High Court.
A consideration in
support of the comments in the preceding paragraph is that it may
legitimately be contended that given the
uncertainty in 1995,
when
Proclamation R100 was issued
, concerning the face of future
municipal structures, it is unlikely that the legislature would
have intended to tie the life
of the proviso to the life of the
initial interim structures. That would have dealt at least a
substantial blow to the role
of national policy in serving the
purpose of the Agricultural Land Act, consequent upon the
termination of the concept of a general
body of ‘agricultural
land’ in the country, and would instead have left policy to the,
as yet undetermined, municipal structures
to be established in the
future. This consideration would also render unattractive any
speculative suggestion that the proximity
in time between the dates
on which the Repeal Act and the Municipal Structures Act were
assented to (16 September 1998 and 11
December 1998, respectively),
is indicative thereof that the first mentioned Act was passed in
recognition of the (perceived)
fact that with the implementation of
the latter Act the concept of ‘agricultural land’ would
disappear. (This, too, is an
aspect to which I revert later.)
The reference in the
Supreme Court of Appeal’s judgment to the interpretative
principle that exceptions to general rules are
to be read
restrictively
77
is also unpersuasive. It is unhelpful to rely on such a principle
when the question arises what in fact is the general rule
and what
is the exception. Is the position not that the general rule in the
Agricultural Land Act is that all land is ‘agricultural
land’
and the reference to municipal land an exception thereto, and the
proviso therefore an exception to the exception, to
be accorded a
wide interpretation?
Lastly, the apparent
reliance by the Supreme Court of Appeal on the fact that the
disputed land is no longer being used as ‘agricultural
land’
78
is not persuasive. The manner in which the land is being used is
irrelevant to the issues to be decided in this matter.
I return briefly to deal
with the reliance of the
amici
and the Minister on the
provisions of section 39(2) of the Constitution. As far as section
27(1)(b) of the Constitution specifically
is concerned (the
fundamental right of everyone to have access to sufficient food and
water), the question is not whether large
or small agricultural
units are preferable for food production, a question debated during
argument but on which there is no evidence
before this Court. The
questions are rather whether an interpretation which, as indicated
in paragraph 81 above, accords a role
to national government in the
administration of ‘agricultural land’ through the provisions of
the Agricultural Land Act,
is one which would promote the spirit,
purport and objects of the Bill of Rights or, if necessary, one
which would better promote
those considerations.
In my judgement, both of
these questions are to be answered in the affirmative. Whatever
powers of administration municipalities
may have over land such as
that in dispute, according a role to the national government in the
administration thereof can only
serve to advance the cause of the
rights invoked by the
amici
and the Minister. It cannot be
excluded that excessive fragmentation of ‘agricultural land’,
be it arable land or grazing
land,
may
result in an
inadequate availability of food, and the Agricultural Land Act is a
valuable tool enabling the state to carry out
necessary controls.
As the Minister pointed out, international law recognises that the
content of the right to food has the
twin elements of availability
and accessibility.
79
The first element refers to a sufficient supply of food and
requires the existence of a national supply of food to meet the
nutritional needs of the population generally. It also requires
the existence of opportunities for individuals to produce food
for
their own use. The second element requires that people be able to
acquire the food that is available or to make use of opportunities
to produce food for their own use. In respect of both elements
there is a measure of overlap with the state’s obligation under
section 25(5) of the Constitution to facilitate equitable access to
‘agricultural land’, and with the state’s obligation
under
section 24 of the Constitution to conserve the environment.
The question that arises
is, what is one to make on the one hand of the fact of the Repeal
Act and, on the other hand, of the
fact that this Act has not yet
been put into operation, notwithstanding the passage of an
unprecedented period of some 10 years
without an Act, duly assented
to, being put into operation. (The constitutional validity thereof
was not challenged before us,
and that question does not fall to be
decided.)
While it is obvious that
with the passing of the Repeal Act it was the intention of the
legislature to remove the Agricultural
Land Act from the statute
book, it would be simplistic to contend that therefore it was the
intention to put an end to the concept
of a general body of
‘agricultural land’ or to effective national government
(through the Minister) or provincial government
control over the
subdivision of ‘agricultural land’.
Incidentally, had that
consequence been the intended result of the establishment of the
present-day municipal structures, as the
judgment of the Supreme
Court of Appeal would have it, there is no reason why the Repeal
Act was not put into operation with
the establishment of those
municipal structures.
80
In this regard I also align myself with the comment in
Kotzé
81
that it cannot be accepted that without anything more the
Agricultural Land Act was, in indirect fashion, repealed or
abrogated
(thereby, in one fell swoop, doing away with the concept
of a general body of ‘agricultural land’, otherwise preserved
by
the proviso) by other legislation, dealing with local
government, which did not specifically refer thereto.
It may be added that
footnote 14 in
Shaik v Minister of Justice and Constitutional
Development and Others
82
reads as follows:
“
A
well-recognised rule of statutory construction was formulated as
follows in
Chotabhai v Union Government (Minister of Justice)
and Registrar of Asiatics
1911 AD 13
at 24:
‘
[E]very part of a
statute should be so construed as to be consistent, so far as
possible, with every part of that statute,
and with every other
unrepealed statute enacted by the same Legislature.’”
In my view, the latter
portion of this rule is also applicable where one has to do with an
Act of parliament (the Municipal Structures
Act) and a provision
introduced by a competent authority (the President) into another
Act of parliament which remains unrepealed.
The interpretation
propounded in this judgment is in accordance with this rule.
The provision in the
Repeal Act that the date of its commencement would be fixed by the
President founds the inference that the
legislature accepted that
some period would have to pass before the time would be ripe for
the repeal to take effect. The probable
explanation is that it was
with a view to making provision for other arrangements first to be
put into place. As indicated above,
the Municipal Structures Act
did not constitute such arrangements. That provision for such
arrangements is still being awaited
is confirmed by the fact that
Parliament has not, as it was competent to do, sought to pass
further legislation to effect the
immediate repeal of the
Agricultural Land Act.
The possible arrangements
envisaged include the following:
One
possibility is that the legislature may seek to put other
provisions in place in terms of which national government would
have other means to control the subdivision of ‘agricultural
land’.
A second possibility
(having regard to the circumstances explained in paragraph 61(b)
above, that the proviso was introduced as
part of temporary
arrangements pending provincial governments acquiring the required
capacity to administer the functional area
of agriculture and the
assignment of such administration to them, read with the
superseding provisions of item 14(1) and (2)
of Schedule 6 of the
new Constitution)
83
is the development of the capacity of provincial governments so as
to undertake responsibility for such administration and the
assignment thereof to them.
The third possibility is
that, as envisaged in section 156(4) of the Constitution,
84
the administration of the functional area of agriculture could be
assigned to municipal authorities, provided that, as explained
earlier,
85
certain prerequisites are satisfied.
It is, however, not
necessary for present purposes to speculate further on, or make any
finding as to, what future developments
are likely to take place.
The final aspect
requiring mention is that the legislature must be taken to have
been aware of the decision in
Kotzé
, as also that in
Geue
(which proceeded on the premise – not in issue – that the
provisions of section 3 of the Agricultural Land Act were
applicable
to an agreement for the sale of subdivided agricultural
land concluded on 19 June 2001). Despite such awareness there has
not,
over the supervening period of some years, been any
legislative action in response to the decisions. That inaction is
consistent
with the intention ascribed to the legislature in this
judgment. Indeed, the evidence before this Court is that the Deeds
Registry,
legal practitioners and the Minister have conducted
affairs on the basis that the essential effect of the decision in
Kotzé
represented what the law is, at least until the
Supreme Court of Appeal’s judgment was handed down.
Conclusion
I therefore conclude that
the judgment of the Supreme Court of Appeal falls to be set aside,
and the order of the High Court reinstated.
Costs
It is appropriate that
the applicant’s costs in this Court be paid by the first
respondent, but that there be no costs order
made in respect of the
participation of the
amici curiae
or the Minister in the
proceedings.
Order
In the result, the
following order will issue:
The
failure of the applicant and the first respondent, respectively, to
comply with the directions of the Chief Justice is condoned.
Leave to appeal to this
Court is granted.
The appeal is allowed,
the order of the Supreme Court of Appeal is set aside and for it is
substituted the following order: “The
appeal is dismissed with
costs”.
The applicant’s costs
will be paid by the first respondent, such costs to include the
costs attendant on the employment of two
counsel.
There
will be no costs order in respect of the participation of the
amici
curiae
and the Minister of Agriculture and Land Affairs in the
proceedings.
Langa CJ,
Madala J, Mokgoro J, Ngcobo J, Skweyiya J and Van der Westhuizen J
concur in the judgment of Kroon AJ.
YACOOB J:
Introduction
This application requires
us to decide whether the Minister of Agriculture and Land Affairs
(the Minister) continues to enjoy
the wide powers conferred upon
ministers of agriculture in the pre-constitutional order by the
Subdivision of Agricultural Land
Act (the Act).
1
The Act forbids the subdivision
2
or sale
3
of all land that falls outside the area of jurisdiction of local
government structures without the consent of the Minister.
The case comes before
this Court for the resolution of a dispute concerning an agreement
of purchase and sale
4
of certain land that falls within the Nelson Mandela Metropolitan
Municipality. The subdivision of the land has been approved
by
that municipality. The debate presented to this Court turns on an
interpretation of a Presidential Proclamation
5
that amended the definition of agricultural land in the Act by
inserting a proviso (the proviso). This happened one day before
the elections were held for most transitional councils
6
in terms of the
Local Government Transition Act (the
LGTA).
7
The land in question fell within the area of a transitional
council at the relevant time. The applicant contended for the

invalidity of the agreement on the basis that the Minister was
required, on a proper construction of the proviso in all the

relevant circumstances, to consent to the sale but had not done so.
But the respondent urged that the consent of the Minister
had been
rendered unnecessary on account of the proviso and by reason of
subsequent developments.
Three other parties were
granted leave to provide this Court with written and oral argument.
The first two, who were admitted
as amici, are entities that also
sought to avoid the consequences of an agreement of purchase and
sale of certain other land
on the basis of the absence of the
ministerial consent said to be required. The third is the
Minister, admitted as an intervening
party, who sought to persuade
us that ministerial consent was a pre-requisite to every agreement
of purchase and sale in respect
of every subdivision of land that
prior to 1994 was classified as agricultural even if the land fell
within the area of jurisdiction
of a municipality that had approved
the relevant zoning and subdivision.
Brief legislative
history
The dispute between the
parties concerns the interpretation of the proviso. Since the
amendment, the definition of agricultural
land in the Act reads as
follows:
“‘
[A]gricultural
land’ means any land, except—
(a) land situated in
the area of jurisdiction of a municipal council, city council,
town council, village council, village
management board, village
management council, local board, health board or health
committee, and land forming part of,
in the province of the Cape
of Good Hope, a local area established under section 6(1)(i) of
the Divisional Councils Ordinance,
1952 (Ordinance No. 15 of
1952 of that province), and, in the province of Natal, a
development area as defined in section
1 of the Development and
Services Board Ordinance, 1941 (Ordinance No. 20 of 1941 of the
last-mentioned province), and
in the province of the Transvaal,
an area in respect of which a local area committee has been
established under section
21(1) of the Transvaal Board for the
Development of Peri-Urban Areas Ordinance, 1943 (Ordinance No.
20 of 1943 of the Transvaal),
but excluding any such land
declared by the Minister after consultation with the executive
committee concerned and by notice
in the Gazette to be
agricultural land for the purposes of this Act;
(b) land—
(i) which forms part
of any area subdivided in terms of the Agricultural Holdings
(Transvaal) Registration Act, 1919 (Act
No. 22 of 1919); or
(ii) which is a
township as defined in section 102(1) of the Deeds Registries
Act, 1937 (Act No. 47 of 1937), but excluding
a private
township as defined in section 1 of the Town Planning
Ordinance, 1949 (Ordinance No. 27 of 1949 of Natal),
not
situated in an area of jurisdiction or a development area
referred to in paragraph (a);
(c) land of which the
State is the owner or which is held in trust by the State or a
Minister for any person;
. . . .
(f) land which the
Minister after consultation with the executive committee
concerned and by notice in the Gazette excludes
from the
provisions of this Act;
Provided
that land situated in the area of jurisdiction of a transitional
council as defined in section 1 of the Local Government
Transition
Act, 1993 (Act No. 209 of 1993), which immediately prior to the
first election of the members of such transitional
council was
classified as agricultural land, shall remain classified as such”.
The Proclamation inserted
the proviso in the following terms:
“
TEMPORARY
ASSIGNMENT OF THE ADMINISTRATION OF CERTAIN LAWS TO AN APPROPRIATE
AUTHORITY WITHIN THE JURISDICTION OF THE NATIONAL
GOVERNMENT IN
TERMS OF SECTION 235(9) OF THE CONSTITUTION OF THE REPUBLIC OF
SOUTH AFRICA, 1993
Under section 235(9) of
the Constitution of the Republic of South Africa, 1993 (Act No. 200
of 1993), and in order to provide
for the continued efficient
carrying out of the functional area of Agriculture as assigned to
the Minister of Agriculture by
Proclamation No. R. 102 of 1994, I
hereby amend the Subdivision of Agricultural Land Act, 1970 (Act
No. 70 of 1970), by the addition
in section 1 of the following
proviso to the definition of ‘agricultural land’”.
The
proviso reflected in the previous paragraph is then set out.
The proviso was brought
in at a time when local government was being restructured as
required by the LGTA in terms of the interim
Constitution. The
LGTA provided a process for the reconstruction of local government
that was to end with the establishment
of fully-fledged
democratically elected municipalities everywhere in South Africa.
This happened on 5 December 2000
8
when elections of members to these permanent structures were held.
Before this restructuring began, only urban or semi-urban
areas had
local government structures. The LGTA required transitional
councils to be elected.
9
These elections would usher in the interim phase of local
government restructuring.
It was common cause that
the proviso, at the very least, required ministerial consent for
any sale or subdivision of agricultural
land as defined in the Act
and which fell within the area of a transitional council for so
long as these temporary instruments
of local government continued
to exist. The applicant, the amici and the Minister contended that
the proviso, properly interpreted,
means that the Minister’s
consent would remain an essential pre-requisite to a valid sale
even after transitional councils
were replaced by more permanent
structures. The respondent urged that ministerial consent was
required only during the period
that transitional councils remained
in existence and that the requirement fell away as soon as the
transitional councils were
replaced by permanent authoritative
municipal entities.
The Port Elizabeth High
Court (the High Court) upheld the applicant’s contention that the
meaning of the proviso, on a proper
construction, had the
consequence that land that was agricultural land as defined in the
Act immediately before the election
of a transitional council,
would remain agricultural land subject to the powers of the
Minister even after transitional councils
had ceased to exist.
10
The Supreme Court of Appeal reversed the finding of the High Court
on appeal.
11
It held that the proviso is plain: agricultural land as defined
would remain agricultural land only for so long as it fell within
the areas of jurisdiction of transitional councils. It would cease
to be agricultural land as soon as permanent local government
structures had been established.
12
A constitutional
matter?
We can grant leave to
appeal only if the application raises a constitutional matter or an
issue connected with a decision on a
constitutional matter.
13
This case requires us to determine the correct meaning of
legislation. Disputes about the correct interpretation of
legislation
do not in themselves normally raise constitutional
matters or issues connected with decisions on them. Something more
is required.
The attempt to persuade us that this case raised a
constitutional issue stood on four legs:
The first, advanced by
the applicant, was that it is necessary to have recourse to
certain provisions of the interim Constitution
as well as the
Constitution to determine the meaning of the proviso.
The second basis, relied
on by the Minister, was that an interpretation that preserves
national ministerial power over municipal
agricultural land would
certainly improve the capacity of the State to fulfil two
obligations imposed on it by our Constitution.
The one is the
duty to ensure the progressive realisation of the right of access
to food;
14
the other is the task to ensure access to land.
15
The amici assiduously
backed the Minister and added two propositions of their own in the
effort to prop up the submission that
a constitutional issue had
been raised. They brought some of the transitional provisions of
the interim Constitution
16
to the fore and stressed that the purpose of the proviso was the
preservation of national executive control over agricultural
land
until a province acquired the capacity to administer it. They
also raised the state’s duty to secure a healthy and
safe
environment.
17
It was accordingly submitted that the application mandated a
consideration of the scope and purpose of these provisions of
the
interim Constitution and the Constitution and was therefore a
constitutional matter or an issue connected with a decision
on
one.
All of these themes have
two interrelated material features in common. To begin with, none
of them embodies any suggestion that
the meaning ascribed to the
proviso by the Supreme Court of Appeal would render it inconsistent
with the Constitution. The applicant,
the Minister and the amici
urged only that an interpretation that favours continued national
control over agricultural land better
accords with constitutional
principle and the fulfilment of entrenched rights. The next
characteristic, a consequence of the
first, is that the proviso
must at least be reasonably capable of the meaning contended for by
the champions of the existence
of national land control. The
constitutional dimensions relied on cannot arise for adjudication
unless the meaning sought to
be given to the proviso is reasonable.
This Court has no mandate, constitutional or otherwise, to afford
to any law a meaning
that it cannot reasonably bear. Courts ought
never to go down that road, even to fulfil the laudable aim of
achieving greater
harmony between fundamental rights conferred by
the Constitution and the law in question. As was said in
Hyundai
:
18
“
On
the one hand, it is the duty of a judicial officer to interpret
legislation in conformity with the Constitution so far as this
is
reasonably possible. On the other hand, the Legislature is under a
duty to pass legislation that is reasonably clear and
precise,
enabling citizens and officials to understand what is expected of
them. A balance will often have to be struck as to
how this
tension is to be resolved when considering the constitutionality of
legislation. There will be occasions when a judicial
officer will
find that the legislation, though open to a meaning which would be
unconstitutional, is reasonably capable of being
read ‘in
conformity with the Constitution’. Such an interpretation should
not, however, be unduly strained.”
19
If a law is reasonably
capable of two meanings, the question whether the one meaning
better advances the constitutional project
might raise a
constitutional matter. It was contended in this case that the
meaning sought to be given to the proviso by the
applicant, the
amici and the Minister would better promote the spirit, purport and
objects of the Bill of Rights in that it would
enable the state
better to fulfil some of its constitutional obligations. I think
the question whether the one interpretation
is more in accordance
with the spirit, purport and objects of the Constitution than the
other does raise a constitutional matter.
But the constitutional
matter would be raised for decision only if the proviso is
reasonably capable of having two meanings.
This issue whether the
proviso is reasonably capable of two meanings must be determined
first, for if it is not, the constitutional
question does not arise
for decision. The question whether the proviso is reasonably
capable of two constructions is therefore
an issue connected with a
decision on a constitutional matter and, in my view, we have the
jurisdiction to decide it.
I am satisfied that the
proviso, in all the circumstances, is not reasonably capable of the
construction that the applicant, the
Minister and the amici wish us
to sanction. Accordingly, in my view, the constitutional issue
does not arise for consideration
by this Court. The reasoning that
drives me to the conclusion that the proviso is reasonably capable
of bearing only that meaning
given to it by the Supreme Court of
Appeal follows.
The
proviso is reasonably capable of one meaning only
Ordinarily, the first
step in any interpretive exercise is to determine the meaning of
the words used literally or, as it were,
on their face. In this
case, however, the proper application of the proviso may well
depend on one of the other conclusions
of the Supreme Court of
Appeal. In addition to the conclusion of that Court that the
proviso did not retain the powers of the
Minister over agricultural
land as defined in the Act, the Supreme Court of Appeal held
20
that the Nelson Mandela Metropolitan Municipality was in fact a
municipal council within the purview of that term contained in
the
definition of agricultural land in the Act.
21
I will refer to this conclusion of the Supreme Court of Appeal as
the municipality finding. The finding is materially relevant
to
the application of the proviso. This matter is therefore
investigated before examining the proviso itself.
Implications of the
municipality finding
As I have said, the
Supreme Court of Appeal concluded that a municipal council as
referred to in the Act included municipalities
of the type with
which we are here concerned: Category A municipalities as defined
in the Constitution.
22
This finding was based on a provision in the
Local Government:
Municipal Structures Act (the
Municipal Structures Act).
23
The judgment motivates this conclusion in the following terms:
“
The
first question that arises is whether the [Nelson Mandela
Metropolitan Municipality] is a ‘municipal council, city council
or town council’ within the meaning of the definition of
‘agricultural land’ in the Agricultural Land Act. The latter
Act does not define these terms. However,
s 93(8) of the
Municipal Structures Act provides that
(w)ith effect from 5
December 2000 . . . any reference in a law referred to in item 2
of Schedule 6 to the Constitution of
the Republic of South
Africa, 1996 . . . to a municipal council, municipality, local
authority or another applicable designation
of a local government
structure, must be construed as a reference to a municipal
council or a municipality established in
terms of this Act, as
the case may be.
In terms of item 2 of
Schedule 6 to the Constitution
all law that was in
force when the new Constitution took effect, continues in force,
subject to any amendment or repeal and
consistency with the new
Constitution and old order legislation . . . does not have a
wider application, territorially or
otherwise, than it had before
the [interim] Constitution took effect unless subsequently
amended to have a wider application
and continues to be
administered by the authorities that administered it when the new
Constitution took effect, subject to
the new Constitution.
To my mind there is no
question that the Agricultural Land Act is a piece of the ‘old
order legislation’ envisaged by the
Constitution and s 93(8) of
the Municipal Structures Act. That being so, the words ‘municipal
council, city council, town
council’ in the definition of
‘agricultural land’ in the Agricultural Land Act must be
construed to include a category
A municipality such as the [Nelson
Mandela Metropolitan Municipality].”
24
This conclusion is
undoubtedly right. That the Nelson Mandela Metropolitan
Municipality is a municipal council contemplated in
the definition
of agricultural land in the Act suggests that at least on the
literal meaning of the definition, agricultural
land within it no
longer remained under ministerial control. On the literal meaning
of the definition, the legislature, by enacting
section 93(8) of
the Municipal Structures Act, brought all municipalities structured
in terms of that legislation within the
purview of the first
exception to the definition of agricultural land in the Act. In
doing so, the literal meaning suggests
that Parliament’s purpose
was to reduce ministerial power over land situated within
restructured municipalities.
A second consequence of
the municipality finding concerns its impact on the status of the
judgment in the case of
Kotzé
.
25
The Supreme Court of Appeal said in relation to
Kotzé
:
“
This
conclusion was based on the judgment in
Kotzé v Minister van
Landbou en Andere
. In this case Van der Westhuizen J
considered whether ‘agricultural land’ as defined in s 1 of the
Agricultural Land Act
still exists in view of the constitutional
changes to the system of local government in the context of
category B and C municipalities.
The learned judge found that the
effect of s 151 of the Constitution, which provides that ‘the
local sphere of government
consists of municipalities which must be
established for the whole of the territory of the Republic’, and
the Municipal Structures
Act, which established new, different
categories of municipalities with extended boundaries, was to
create ‘wall to wall municipalities’
such that all land now
falls within municipal jurisdictions, thereby rendering the
Agricultural Land Act ineffective. He held
that, as this could not
have been the intended result, the local government structures
referred to in s 1 had to be interpreted
to mean what they meant
when the Act was promulgated (which required a narrow
interpretation of ‘municipal council’ to exclude
latter-day
municipalities such as the NMMM): in the event, the proviso meant
that since all land within the Republic fell within
areas of
jurisdiction of transitional councils when these entities were
established by the Transition Act, any land which was
classified as
‘agricultural land’ immediately prior to the election of the
first members of the transitional councils retains
that
classification, for as long as the proviso remains in force.”
26
(Footnotes omitted.)
This is not a correct
rendition of the
Kotzé
judgment. Indeed, the case of
Kotzé
did not primarily address the proviso or its meaning. The judgment
was essentially concerned with whether post-constitutional
municipal structures were municipal councils contemplated in the
definition of agricultural land in the Act. The Judge found
that
they were not. The judgment says:
“
The
first respondent submitted, rightly in my view, that the wording in
the law must be interpreted to mean what it meant when
the law was
made. Agricultural land therefore still exists for the purposes of
the particular Act . . . It is all land, except
land that was
situated within the jurisdiction of the structures named in section
1 of Act 70 of 1970 at the last point of time
at which these
structures actually did exist. Agricultural land that had been
classified as such and was situated within the
area of jurisdiction
of an earlier transitional council in terms of [the LGTA] therefore
remains agricultural land.”
27
(My translation.)
According to the
Kotzé
judgment then, the structures mentioned in the first exception in
the definition were municipal bodies that existed at the time;
they
were not the municipalities created in terms of the Municipal
Structures Act. It follows that the finding by the Supreme
Court
of Appeal that a municipality of today is a municipal council
within the meaning of that term in the definition is inconsistent
with the judgment in
Kotzé
. Accordingly, if the
municipality finding stands, the
Kotzé
judgment would be
overruled to this extent.
Yet no party contending
for continued ministerial control over municipal agricultural land
directly challenged the correctness
of the finding by the Supreme
Court of Appeal that the Nelson Mandela Metropolitan Municipality
was a municipality within the
contemplation of paragraph (a) of the
definition of “agricultural land” in the Act. The reason for
this may be that the
conclusion of the Supreme Court of Appeal is
inescapable. But some of the applicant’s submissions were, to an
extent, necessarily
inconsistent with an acceptance of this
finding. The applicant submitted that, on a proper construction of
the definition of
agricultural land in the Act, agricultural land
is essentially all land except that which was within the area of
jurisdiction
of local government structures within the old order.
This reliance on the reasoning in
Kotzé
does not square
with any concession that the Supreme Court of Appeal was correct on
the municipality finding. The submissions
of any party
inconsistent with the conclusion of the Supreme Court of Appeal
that a municipal council contemplated by the definition
of
agricultural land includes a modern-day South African municipality
cannot be entertained. It is on this basis that the proviso
must
now be scrutinised. I examine the literal meaning in more detail
before determining the effect of context and other relevant
circumstances.
The literal meaning of
the proviso
It may be useful to
repeat the proviso:
“
Provided
that land situated in the area of jurisdiction of a transitional
council as defined in section 1 of the Local Government
Transition
Act, 1993 (Act No. 209 of 1993), which immediately prior to the
first election of the members of such transitional
council was
classified as agricultural land, shall remain classified as such”.
It does seem that the
text requires two conditions to be met before agricultural land as
defined in the Act “shall remain classified
as such”. The
first of these is that the land must be situated within the area of
jurisdiction of a transitional council structured
and elected as
required by the LGTA. The second wholly separate requirement, in
my view, is that the land must have been classified
as agricultural
land immediately before the first election of the transitional
council having jurisdiction over the land concerned.
The first
requirement is concerned with the land being within the
jurisdiction of a specified local government structure; the
second
is expressly about timing. To put it differently, the first
stipulation tells us within which local government structure
the
land must have been situated if the proviso is to be applicable to
that land; the second prescribes precisely when the land
should
have been appropriately situated in order to remain agricultural
land. In summary, to remain agricultural land beyond
the first
election of a transitional council, the land must have been within
the jurisdiction of a transitional council. That
status and the
Minister’s control is, on the face of it, lost once the land
falls within the area of a municipal structure
other than a
transitional council.
The High Court concluded
that the proviso was concerned with timing alone. The judge there
said:
“
The proviso, in my
view, provides a point in time with reference to which it must be
established if land qualifies as agricultural
land. If at that
point in time, it is to be regarded as agricultural land it remains
so notwithstanding any changes to local
government structures and
their boundaries. This point in time is the first election of the
members of the transitional council.
As stated above, it is common
cause that at this point in time Portion 54 qualified as
agricultural land. It follows that it
remained so and still was
agricultural land at the time the agreement was entered into.”
28
The applicant, the
Minister and the amici fervently defended the High Court approach.
It was argued that the words “situated
in the area of
jurisdiction of a transitional council” talk merely to the
physical location of the property. It will have
been noted that
the phrase concerning the situation of the land within the
jurisdiction of a transitional council has nothing
to do with
timing at all – it is concerned with the municipal structure
within which the targeted land fell. Nor, in my view,
can the
meaning of the phrase validly be restricted to a reference to the
physical location of the property as distinct from
its status in
relation to the nature of the local government structure within the
jurisdiction of which it falls.
There is some difficulty
with the physical location approach. If the words are said to be
necessary to indicate the mere physical
location, they are not
necessary at all. If one removes the words relating to situation
from the proviso, the proviso would
read: “. . . provided that
land which immediately prior to the first election of the members
of such transitional council was
classified as agricultural land,
shall remain classified as such.” The truncated version of the
proviso means exactly what
the applicant, the Minister and the
amici would like the whole proviso to mean. It was therefore, on
the face of it, unnecessary
for the legislature to have inserted
the whole of the phrase relating to situation into the proviso,
unless it was intended to
add something to the definition. The
words do indeed add a material circumstance that must be present
for land to remain agricultural
land as defined: the land must, in
addition to having been agricultural land immediately before the
first election of a transitional
council, have been situated within
the area of jurisdiction of a transitional council. A construction
that does not give any
meaning to these words and ignores their
existence could ordinarily not be regarded as reasonable and would,
absent indications
to the contrary, be “unduly strained”.
29
Accordingly,
in my view, it is difficult, from the ordinary grammatical meaning
of the words, to read any meaning other than that
agricultural land
would remain agricultural land only for so long as it remained
within the jurisdiction of a transitional council.
30
If the purpose of the proviso was to ensure that land that was
agricultural land retained that classification even after
transitional
councils ceased to exist, the proviso would probably
have been written differently. But this is not the end of the
enquiry.
It remains necessary to determine whether the context and
other relevant circumstances render the construction contended for

reasonable.
Context, purpose and
consequence
It has been submitted
that the context in which the proviso was inserted into the
definition of agricultural land in the Act,
the purpose of the
insertion as well as what are seen by some of the parties as the
dire consequences of the interpretation supported
in this judgment,
lead to the inescapable conclusion that the meaning proffered by
the High Court is preferable. I do not agree.
The interpretation
set out in this judgment is consonant with all the relevant
circumstances that ought properly to be taken
into account.
There is nothing in the
immediate contextual setting of the proviso that points to the
incorrectness of the interpretation preferred
in this judgment.
Indeed the context is consistent with that meaning. It must be
borne in mind that the Act is not necessarily
concerned with all
agricultural land. The definition of agricultural land is not
related to the use to which the land concerned
is subjected.
Indeed, agricultural land is all land not situated within an urban
or semi-urban local government structure.
Although it may be true
that most agricultural land will probably have been located in
areas where no urban or semi-urban local
government structures
existed, it cannot be said that there was no agricultural land or
land used for agricultural purposes within
the area governed by
local government structures at the time.
That is why the effect of
the restructuring of municipalities meant that all land would fall
within the jurisdiction of transitional
councils immediately at the
time these councils had been established. The difficulty that had
to be dealt with was not in reality
that agricultural land as a
fact would cease to exist as soon as the transitional councils came
into being. No one suggested
that and no one could. The
consequence that needed attention was that some of the wide
ministerial powers in relation to that
land would be lost.
Agricultural land, in the sense of land that was used for
agriculture, would not cease to exist altogether.
The requirement
of ministerial consent to every sale and subdivision would
disappear. In this sense ministerial power in relation
to
agricultural land would be reduced considerably. Ministerial power
would now be limited to—
a declaration after
consultation with the executive committee concerned that land
situated within the areas of certain local
government structures
was to be agricultural land for the purposes of the Act
regardless;
31
and
the exclusion of what
would otherwise be agricultural land in terms of the definition
from the provisions of the Act, again
after consultation with the
executive committee concerned.
32
The reason why it became
essential to stop this consequence at the time transitional
councils were being established is also plain.
The power of which
the Minister was to be deprived by the establishment of
transitional councils would, consequent upon LGTA
reconstruction,
not be exercisable by any local government structure at all. It is
relevant here that the proviso was inserted
into the Act one day
before municipal elections in respect of transitional municipal
structures were held everywhere except in
KwaZulu-Natal and certain
parts of the Western Cape.
33
It is true that the proviso preserves the power of the Minister
over agricultural land as defined. But the object of doing
so, in
my view, was to prevent the inevitable consequence that newly
established transitional councils would not have the capacity
to
administer the land in question and agricultural land would be left
in the air. We are indeed fortunate that it is not necessary
to
enter into an analysis of the various phases of the local
government transition process. Suffice to say here that, when the
elections for transitional councils took place on 1 November 1995,
the powers and functions of these transitional councils had
not yet
been expressly defined by statute. Indeed, the LGTA gave
provincial MECs wide powers in relation to the establishment,
disestablishment, as well as the determination of powers and
functions, of transitional councils.
34
The situation was fluid to say the least. The powers and
functions of transitional councils were, for the most part,
legislatively
determined only on 22 November 1996.
35
The purpose of the proviso was to ensure that the Minister should
retain the powers conferred by the Act while restructuring
continued and until an appropriate division of powers and functions
in relation to land, agriculture and land-use planning amongst
all
three spheres of government had been properly regulated by national
legislation.
The terms of the
Proclamation support this conclusion in relation to purpose. The
proviso was introduced “in order to provide
for the continued
efficient carrying out of the functional area of Agriculture as
assigned to the Minister of Agriculture”.
36
The functional area of agriculture could not be efficiently
carried out if the Minister’s power in relation to the sale and
subdivision of agricultural land was taken away in circumstances
where no other entity would have the power to exercise it.
The
circumstance that created complications for the efficient carrying
out of the functional area of agriculture was the absence
of
capacity of any other institution to make appropriate decisions in
relation to agricultural land. Once permanent municipalities
had
been established and structured, it would become possible for these
municipalities to carry out their functions in relation
to
municipal planning without adversely affecting the effective
administration of the agriculture competence.
37
This did happen in due
course. The structure, functions and powers of municipalities were
defined in the Constitution
38
while the way in which the powers of the national, provincial and
local spheres interrelated and came together was also
authoritatively
set out.
39
It is true that agriculture is, on the face of it, a functional
area of concurrent national and provincial legislative competence.
40
Crucial, however, for present purposes, is the way in which the
power concerning planning is managed in our Constitution. Regional
planning and development is, like agriculture, a concurrent
functional area. However, provincial planning is an exclusive

provincial functional area.
41
But provincial planning does not include municipal planning.
Municipal planning is expressly stipulated as a local government
function, over which both the national and provincial spheres
exercise legislative competence.
42
The constitutional scheme
is this. Agriculture is a concurrent national and provincial
legislative competence. The functional
area of agriculture cannot
be said to exist in a hermetically sealed compartment. The
functional area includes the determination
of frameworks and policy
that would be binding on all provinces and municipalities as well
as legislation concerning implementation
made by provinces binding
upon municipalities. Planning entails land use and is inextricably
connected to every functional area
that concerns the use of land.
There is probably not a single functional area in the Constitution
that can be carried out without
land. Land-use planning must be
done at three levels at least: provincial planning, regional
planning and municipal planning.
Whatever the position may
have been under the interim Constitution, I am of the view that to
the extent that the Act is concerned
with zoning, subdivision and
sale of land, it is not concerned with agriculture but with the
functional area of planning. As
pointed out in the previous
paragraph, there is an inevitable overlap in relation to the
functional areas set out in Schedules
4 and 5 of the Constitution.
As explained in the
Liquor Bill
case:
43
“
The
list of exclusive competences in Schedule 5 must therefore be given
meaning within the context of the constitutional scheme
that
accords Parliament extensive power encompassing ‘any matter’
excluding only the provincial exclusive competences. The
wide
ambit of the functional competences concurrently accorded the
national Legislature by Schedule 4 creates the potential for
overlap, not merely with the provinces’ concurrent legislative
powers in Schedule 4, but with their exclusive competences set
out
in Schedule 5. Examples of concurrent Schedule 4 competences which
could overlap with Schedule 5 competences include ‘trade’
and
‘liquor licences’; ‘environment’ and ‘provincial
planning’; ‘cultural matters’ and ‘provincial cultural
matters’ as well as ‘libraries other than national libraries’;
and ‘road traffic regulation’ and ‘provincial roads
and
traffic’.”
The judgment in the
Liquor Bill
case further pertinently says:
“
Since,
however, no national legislative scheme can ever be entirely
water-tight . . . and since the possibility of overlaps is
inevitable, it will on occasion be necessary to determine the main
substance of legislation and hence to ascertain in what field
of
competence its substance falls; and, this having been done, what it
incidentally accomplishes.”
44
This is
the approach that must be followed.
The
zoning of land and the question whether subdivision should be
allowed in relation to any land is essentially a planning function
in terms of Schedule 4 and Schedule 5 of the Constitution.
Previously, the Minister was afforded a planning function in
relation
to agricultural land situated in areas where local
government structures were absent. Our Constitution requires
municipal planning
to be undertaken by municipalities. To continue
to accord this planning function to the national Minister of
Agriculture and
Land Affairs in relation to agricultural land would
be at odds with the Constitution in two respects. First, it would
negate
the municipal planning function conferred upon all
municipalities. Secondly, it may well trespass into the sphere of
the exclusive
provincial competence of provincial planning. I may
add that legislation concerning zoning and subdivision of land was
regarded
as planning legislation even before the new Constitution
came into operation.
45
The fact that the
national legislature, consistently with the Constitution, regards
land-use planning as a municipal competence
is confirmed by those
provisions of the Municipal Structures Act and the Local
Government: Municipal Systems Act (the Municipal
Systems Act)
46
that concern themselves with the powers and functions of
municipalities.
47
The starting point is that all municipalities are given the powers
conferred upon them by the Constitution.
48
As I have already pointed out, this includes the municipal
planning power. Metropolitan municipalities exercise all these

powers, but provision is made for a division of powers between
district and local municipalities.
49
The district municipality is expressly enjoined to “seek to
achieve the integrated, sustainable and equitable social and

economic development of its area as a whole by”, amongst other
things, “ensuring integrated development planning for the

district as a whole”.
50
Metropolitan municipalities have the same duties in relation to
municipal planning because the Municipal Structures Act provides
that the area of a metropolitan municipality must be “a single
area for which integrated development planning is desirable”.
51
All must engage in integrated development planning. What is more
the executive committees of municipal councils
52
as well as executive mayors
53
are enjoined to ensure that the integrated development plan takes
“into account any applicable national and provincial development
plans”.
An integrated development
plan is defined in the Municipal Structures Act as “a plan aimed
at the integrated development and
management of a municipal area”.
54
Truly integrated planning is only possible if the municipality
decides on land use within the bounds set by national and
provincial
legislation.
This is made explicit in
the Municipal Systems Act that was passed about two years later.
This legislation compels each municipal
council to adopt a single,
inclusive and strategic plan for the development of its
municipality.
55
That plan is expressly required to be “compatible with national
and provincial development plans and planning requirements
binding
on the municipality in terms of legislation.” This requirement
accords with the constitutional allocation of the legislative
power
in relation to municipal planning concurrently to the national and
provincial governments. The plan must, amongst other
things,
contain a “spatial development framework which must include the
provision of basic guidelines for a land use management
system for
the municipality”.
56
The Municipal Systems Act
makes detailed provision for the process of the adoption of the
plan,
57
its drafting,
58
as well as for provincial monitoring and support.
59
In particular the MEC of Local Government in the province may—
“
facilitate
the co-ordination and alignment of . . . the integrated development
plan of a municipality with the plans, strategies
and programmes of
national and provincial organs of state.”
60
The Municipal Systems Act
also aims to ensure that the provincial government’s exclusive
competence in relation to provincial
planning is respected. The
Municipal Systems Act provides for the plan to be submitted to the
MEC of Local Government in the
province,
61
for the MEC to request the municipality to recommend adjustments to
the plan,
62
for the municipal council to consider the MEC’s proposals,
63
and for a mechanism to resolve the debate if the municipality and
the MEC cannot agree on the content of the plan.
64
Finally, it must be pointed out that the national sphere of
government has not been overlooked. The national Minister for

Local Government is entitled to make regulations and guidelines in
relation, amongst other things, to numerous aspects concerning
the
integrated development plan.
The national Minister has
indeed made regulations.
65
These regulations also concern themselves with the integrated
development plan and set out the detail that the plan must contain.
Of particular relevance for present purposes is that the
integrated development plan must include a “spatial development

framework”.
66
Some requirements of the spatial development framework must be
emphasised. The framework must “set out the objectives that
reflect the desired spatial form of the municipality”.
67
The framework must also contain strategies to achieve the desired
spatial form. These strategies must “indicate desired patterns
of land use within the municipality”
68
and “address the spatial reconstruction of the municipality”.
69
The strategy must also relate to the location and nature of
development within the municipality.
70
The final requirement of the regulations worth mentioning is that
the spatial framework must “set out basic guidelines for
a land
use management system in the municipality”.
71
It will have been seen
that the Constitution, the relevant legislation and the regulations
provide a comprehensive and careful
system for the involvement of
national, provincial and local government in the process of
municipal spatial planning. It must
be emphasised that once it
adopts an integrated development plan, a municipality must give
effect to it and conduct its affairs
in a manner consistent with
that plan.
72
Any rezoning decision like the decision in this case must be taken
consistently with the integrated municipal plan. This plan
must in
turn be consistent with national and provincial legislation.
It is in this context
that the provision in the Municipal Structures Act that a
municipality structured and established in terms
of that Act,
effectively included a municipal council in the Act must be
evaluated. The inclusion of this provision is consistent
with the
legislative purpose of limiting the Minister’s powers in the Act
in order to ensure that a system consistent with
the Constitution
comes into force. That system is concerned with the appropriate
national, provincial and local legislative
and executive exercise
of power. The retention of the power of the national Minister of
Agriculture and Land Affairs to approve
each and every sale and
subdivision of land within an area that is under the control of
elected and appropriately structured
municipalities that are bound
by relevant national and provincial legislation is inconsistent
with the restructuring, decentralisation
and democratisation of
power that our Constitution requires. More importantly, the
contention of the Minister disregards the
fact that provision has
already been made for appropriate national and provincial
participation in the planning process.
The fear that
agricultural land will disappear if the interpretation contended
for in this judgment is accepted is wholly unjustified.
The idea
is based on the misplaced notion that the only way in which
agriculture is to be developed and food made more readily
available
would be to preserve the power of the Minister to approve each and
every sale and each and every subdivision of agricultural
land.
This thesis overstates the importance and competence of the
executive head and minimises the role, importance and ability
of
municipal structures, the provincial legislature as well as the
national legislature.
The application for
rezoning in this case was made well after the relevant legislation
came into force.
73
The letter of approval of the rezoning
74
is to the effect that the rezoning decision was made in terms of a
provincial planning Ordinance that was in existence before
democracy.
75
The decision to approve the rezoning was taken by a municipality
consistently with its integrated plan and the spatial development
framework contained within that plan. The plan would have been in
effect approved by the provincial MEC of Local Government
and would
have been consistent with regulations promulgated by the national
Minister of Provincial and Local Government. In
the circumstances
the desire of the national Minister of Agriculture and Land Affairs
to also have a veto power in respect of
the specific subdivision
is, to say the least, entirely inappropriate.
Conclusion
I conclude therefore that
an appropriate evaluation of the context, purpose and consequence
supports the meaning that appears
from a literal reading of the
proviso. In all the circumstances, therefore, the proviso cannot
be said to be reasonably capable
of the meaning ascribed to it by
the High Court.
For these reasons, I
would dismiss the application for leave to appeal.
None of the parties to
the litigation had, in my view, pointed to any of its
constitutional rights relevant to the admittedly
important power
issues at stake in this case. All the applicant and the amici were
interested in was to use their construction
of the proviso to get
out of an otherwise binding agreement of purchase and sale. I
would therefore propose that the applicant
pay the first
respondent’s costs.
Nkabinde J and O’Regan
ADCJ concurred in the judgment of Yacoob J
Counsel
for the applicant
Advocate A Beyleveld &
Advocate E N Gaisa
Instructed
by Boqwana Loon & Connellan Attorneys
Counsel
for the first respondent
Advocate
RG Buchanan SC & Advocate G F Porteous
Instructed by Spilkins
Attorneys
Counsel for the
Intervening
Party Advocate Steven
Budlender & Advocate Raylene Keightley
Instructed by the State
Attorney
Counsel
for the amici curiae Advocate PM Wulfsohn SC & Advocate
Kate Hofmeyr
Instructed by Ribbens
Attorneys
1
Reported as
Stalwo (Pty) Ltd v Wary Holdings (Pty) Ltd and
Another
[2007] ZASCA 133
;
2008 (1) SA 654
(SCA).
2
The High Court decision was handed down on 26
January 2006, under case no. 5349/2005 (unreported).
3
The Act was repealed by the Subdivision of
Agricultural Land Act Repeal Act 64 of 1998 (the Repeal Act), but
this latter Act has
not yet come into operation. The Repeal Act
provides that it will come into operation on a date fixed by the
President.
4
Section 2(1) provides that:
“
No
alienation of land after the commencement of this section shall,
subject to the provisions of section 28, be of any force or
effect
unless it is contained in a deed of alienation signed by the
parties thereto or by their agents acting on their written
authority.”
5
Section 3 of the Agricultural Land Act provides,
in effect, that no agricultural land may be subdivided or sold
unless the Minister
has consented thereto in writing.
6
Section 3 of the Act provides that subject to the
provisions of section 2 (not relevant for the present purposes)—
“(a) agricultural
land shall not be subdivided;
. . . .
(e) (i) no portion of agricultural land,
whether surveyed or not, and
whether
there is any building thereon or not, shall be sold or
advertised
for sale, except for the purposes of a mine as defined in
section
1 of the Mines and Works Act, 1956 (Act No 27 of 1956);
. . . .
unless
the Minister has consented in writing.”
In terms of the relevant
definition in section 1 ‘Minister’ means the Minister of
Agriculture.
7
In terms of the definition section, as amended by
section 1
of the
General Law Amendment Act 49 of 1996
, ‘executive
committee’ means the executive committee of a province. The
proviso (hereinafter referred to as such) was added
to the
definition by Proclamation R100 of 31 October 1995, issued by the
President of South Africa in terms of
section 235(9)
of the interim
Constitution (Act 200 of 1993). The antecedent history of the
addition of the proviso to the definition is referred
to below.
8
See for example Geue and Another v Van der Lith
and Another
[2003] ZASCA 118
;
2004 (3) SA 333
(SCA) at 338E-F;
Tuckers Land and Development Corporation (Pty) Ltd v Truter
1984 (2)
SA 150
(SWA) at 153H-154A; Sentraalwes Personeel Ondernemings (Edms)
Bpk v Wallis
1978 (3) SA 80
(T) at 84E-F; Van der Bijl and Others v
Louw and Another
1974 (2) SA 493
(C) at 499C-E.
9
Geue
above n 8
at 338F-G.
10
GG 16521 of 30 June 1995.
11
The section reads:
“
An
area must have a single category A municipality if that area can
reasonably be regarded as—
(a) a conurbation
featuring—
(i) areas of high
population density;
(ii) an intense movement
of people, goods and services;
extensive development;
and
(iii) multiple business
districts and industrial areas;
(b) a centre of economic
activity with a complex and diverse economy;
(c) a single area for
which integrated development planning is desirable; and
(d) having strong
interdependent social and economic linkages between its
constituent units.”
12
The subsection provided inter alia that a law
which fell within the functional area of agriculture (being one of
the functional
areas specified in Schedule 6 under the heading of
‘Legislative Competence of Provinces’) and was immediately prior
to the
commencement of the interim Constitution administered by or
under the authority of the Minister (being a functionary referred to
in subsection (1)(a)), was to continue to be administered by a
competent authority within the jurisdiction of the national
government
until the assignment in terms of section 235(8)(a) of the
administration of such law to a competent authority within the
jurisdiction
of the government of a province.
13
GG 15781, 3 June 1994.
14
GG 16785, 31 October 1995.
15
In terms of Provincial Notice No. 22 of 2000,
published in Provincial Gazette No. 486 (Extraordinary) of 28
February 2000, the Demarcation
Board, acting in terms of section
21(1)(b) of the Demarcation Act, re-determined the boundaries of the
then MMP. The result thereof
was that Portion 54 fell within the
boundaries of that municipality.
In
terms of Provincial Notice No. 85 of 2000, published in Provincial
Gazette No. 654 of 27 September 2000, the NMMM was established,
in
terms of the Municipal Structures Act, as a single category A
municipality, with the same boundaries as those of its predecessor,
the MMP.
16
The PETRC was a transitional council as envisaged
in section 1 of the Transition Act. Consequently, the proviso was
applicable
to Portion 54.
17
See above [15](c).
18
Above n 2 at
para 64.
19
2003 (1) SA 445
(T).
20
1985 (4) SA 773
(A) at 804D-E.
21
Above n 1 at
para 16.
22
Id at
para 17.
23
In terms of the section—
“
no
area of jurisdiction, local area, development area, peri-urban area
. . . referred to in paragraph (a) or (b) of the definition
of
‘agricultural land’ in section 1, shall be
established
on, or enlarged so as to include
, any
land which is agricultural land . . . unless the Minister has
consented in writing” (the emphasis is that of the Supreme
Court
of Appeal).
24
Above n 1 at
paras 20-23.
25
Id at
para 24.
26
Id at
para 25.
27
Reference was made to CDA Boerdery (Edms) Bpk and
Others v Nelson Mandela Metropolitan Municipality
[2007] ZASCA 1
;
2007 (4) SA 276
(SCA) at paras 33-40; City of Cape Town and Another
v Robertson and Another
[2004] ZACC 21
;
2005 (3) BCLR 199
(CC);
2005
(2) SA 323
(CC) at para 60; Fedsure Life Assurance Ltd and Others v
Greater Johannesburg Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1998 (12) BCLR 1458
(CC);
1999 (1) SA 374
(CC) at
paras 31 and 38. (All of these cases concerned a municipality’s
power to impose rates or levies.)
28
Above n 1 at
para 26.
29
Id at
para 27.
30
Id at para 28.
31
Section 167(3)(b) of the Constitution provides
that the Constitutional Court “may decide only constitutional
matters, and issues
connected with decisions on constitutional
matters”.
32
Section 167(7) of the Constitution.
33
Section 167(6) of the Constitution.
34
See for example
Shaik
and Others v S
[2007] ZACC 19
;
2007
(12) BCLR 1360
(CC);
2008 (2) SA 208
(CC) at para 15;
Armbruster
and Another v Minister of Finance and Others
[2007]
ZACC 17
;
2007 (12) BCLR 1283
(CC);
2007 (6) SA 550
(CC) at para 24;
Magajane v Chairperson, North West
Gambling Board and Others
[2006] ZACC
8
;
2006 (10) BCLR 1133
(CC);
2006 (5) SA 250
(CC) at para 29;
Phillips and Others v National Director
of Public Prosecutions
[2005] ZACC 15
;
2006 (2) BCLR 274
(CC);
2006 (1) SA 505
(CC) at paras 30 and 32;
Radio Pretoria v Chairman of the
Independent Communications Authority of South Africa and Another
[2004] ZACC 24
;
2005 (3) BCLR 231
(CC);
2005 (4) SA 319
(CC) at para 19;
NEHAWU
v University of Cape Town and Others
[2002] ZACC 27
;
2003 (2) BCLR 154
(CC);
2003 (3) SA 1
(CC) at para
25.
35
Section 167(3)(c) provides that the
Constitutional Court “makes the final decision whether a matter is
a constitutional matter
or whether an issue is connected with a
decision on a constitutional matter.”
36
[2006] ZACC 24
;
2007 (3) BCLR 219
(CC);
2007 (3)
SA 484
(CC).
37
Id at paras 36-37.
See too
S
v Boesak
[2000] ZACC 25
;
2001 (1) BCLR
36
(CC);
2001 (1) SA 912
(CC) at para 14, where this Court stated
that if regard is had to the wide scope and application of the Bill
of Rights, and to
the other detailed provisions of the Constitution
such as the allocation of powers to various legislatures and
structures of government,
the jurisdiction vested in the
Constitutional Court to determine constitutional matters and issues
connected with decisions on
constitutional matters is clearly an
extensive jurisdiction.
38
Fraser
above n 36 at
paras 36, 37 and 39.
39
Id at para 38.
40
Above n 37, the reference being to para 14 in
Boesak
.
See
too the reference in that paragraph to the “detailed provisions of
the Constitution such as the allocation of powers to various
legislatures and structures of government”.
41
Affordable Medicines Trust and Others v Minister of Health and
Another
[2005] ZACC 3
;
2005 (6) BCLR 529
(CC);
2006 (3) SA 247
(CC).
42
Id at fn 31. See too Investigating Directorate:
Serious Economic Offences and Others v Hyundai Motor Distributors
(Pty) Ltd and
Others: In re: Hyundai Motor Distributors (Pty) Ltd
and Others v Smit NO and Others
[2000] ZACC 12
;
2000 (10) BCLR 1079
(CC);
2001 (1) SA 545
(CC) at para 22 where it was stated that
courts are under a duty to read the provisions of legislation, so
far as is possible,
in conformity with the Constitution. Cf Nel v
Le Roux NO and Others
[1996] ZACC 6
;
1996 (4) BCLR 592
(CC);
1996
(3) SA 562
(CC) at para 8 where it was held that certain provisions
of the
Criminal Procedure Act 51 of 1977
can and must be construed
in such a way that their application does not unjustifiably infringe
the fundamental constitutional rights
of the person affected.
43
Hyundai
above n
42 at para 21.
44
Above n 36 at para 38. Section 39(2) of the
Constitution provides that: “[w]hen interpreting any legislation,
and when developing
the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of
the Bill of Rights.”
45
Above n 36 at
para 43.
46
Id at
para 47.
47
“Everyone has the right—
(b) to have the
environment protected, for the benefit of present and future
generations, through reasonable legislative
and other measures
that—
(iii) secure
ecologically sustainable development and use of natural resources
while promoting justifiable economic and social
development.”
48
“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.”
49
“Everyone has the right to have access to—
(b) sufficient
food and water”.
Section
27(2) provides that the state must take reasonable legislative and
other measures, within its available resources, to achieve
the
progressive realisation of each of the rights referred to in
subsection (1). The right to food is one underscored by General
Comment 12 of the United Nations Committee on Economic, Social and
Cultural Rights.
50
[2007] ZACC 13
;
2007 (10) BCLR 1059
(CC);
2007
(6) SA 4
(CC) at para 40 which reads:
“
Section
24 of the Constitution guarantees to everyone the right to a
healthy environment and contemplates that legislation will
be
enacted for the protection of the environment. [The Environment
Conservation Act 73 of 1989] and [the
National Environmental
Management Act 107 of 1998
] are legislation which give effect to
this provision of the Constitution. The question to be considered
in this application
is the proper interpretation of the relevant
provisions of ECA and NEMA and, in particular, the nature of the
obligations imposed
by these provisions on the environmental
authorities. The proper interpretation of these provisions raises
a constitutional
issue . . . It follows therefore that the present
application raises a constitutional issue.” (Footnote omitted.)
51
Above [27].
52
Above [32].
53
Above [24].
54
Above
[32].
55
Above [31].
56
Above [25].
57
Above [31].
58
See
Mistry v Interim
National Medical and Dental Council of South Africa and Others
[1998] ZACC 10
;
1998 (7) BCLR 880
(CC) at paras 10-11;
1998 (4) SA
1127
(CC) at paras 17-18 where it was indicated that the meaning of
particular provisions in an Act must be construed within the scheme
of the Act as a whole, having regard to the object and purpose of
the legislation underpinning the provisions to be interpreted.
See
too
Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004 (7) BCLR 687
(CC);
2004 (4) SA 490
(CC) at para
90, which reads as follows:
“
The
emerging trend in statutory construction is to have regard to the
context in which the words occur, even where the words to
be
construed are clear and unambiguous. Recently, in
Thoroughbred
Breeders’ Association v Price Waterhouse
,
the SCA has reminded us that:
‘
The
days are long past when blinkered peering at an isolated
provision in a statute was thought to be the only legitimate
technique in interpreting it if it seemed on the face of it to
have a readily discernible meaning. As was said in
University
of Cape Town v Cape Bar Council and Another
1986 (4) SA 903
(A) at 914D-E:
“
I
am of the opinion that the words of s 3(2)(d) of the Act, clear
and unambiguous as they may appear to be on the face thereof,
should be read in the light of the subject-matter with which
they are concerned, and that it is only when that is done
that
one can arrive at the true intention of the Legislature.”
The
well-known passage in the dissenting judgment of Schreiner JA in
Jaga v Dőnges NO and Another; Bhana v
Dőnges NO and Another
1950 (4) SA
653
(A) at 662G-663A was also quoted with approval. It is of
course clear that the context to which reference is made in the
latter
case must include the long title and chapter headings.
(Compare
Swart en ‘n Ander v Cape
Fabrix (Pty) Ltd
1979 (1) SA 195
(A)
at 202C.)’” (Footnotes omitted.)
59
Above [13].
60
Above [19]-[22].
61
[1995] ZACC 8
;
1995 (10) BCLR 1289
(CC);
1995 (4)
SA 877
(CC) at paras 91 and 84.
62
Id at para 84.
63
Above [56].
64
Id.
65
Above [59]-[60].
66
Above [61]-[62].
67
Above
[19](a) and n 12.
68
Above [33].
69
Above [34].
70
The relevant portion of the definition is set out
above
at [12].
71
Act 3 of 2000.
72
Above [16](c)(iii).
73
59 of 1980.
74
Above [30].
75
Such co-existence of spheres of control was in
fact earlier in operation. For example, the Land Use Planning
Ordinance 15 of 1985
(Cape) provided, in section 8, that the
Administrator shall with effect from the date of commencement of the
Ordinance make scheme
regulations as contemplated in section 9 in
respect of
all
land situated in the Province of the Cape of Good Hope
to
which the provisions of section 7 did not apply
.
The latter section referred to land embraced in a town-planning
scheme. Section 9(1) provided that “[c]ontrol over zoning
shall
be the object of scheme regulations, which may authorise the
granting of departures and

subdivisions by
a council”. In terms of section 2, council meant “the council
of a municipality or
of a division”. The existence of the control
provided by these provisions over land outside a town-planning
scheme was side-by-side
with that of the control of the Minister
through the Agricultural Land Act over the ‘agricultural land’
that was embraced in
such land.
76
Above [53](a).
77
Above [32].
78
Above [35].
79
Woolman et al,
Constitutional Law of South Africa
, 2
nd
ed, Vol 3 (Juta, Cape Town 2006) Chapter 56C.
80
Cf
Kotzé
above n 19 at 455H-I.
81
Id at 455E.
82
[2003] ZACC 24
;
2004 (4) BCLR 333
(CC);
2004 (3)
SA 599
(CC).
83
Above
[68].
84
Above [16](c)(iii).
85
Above [75].
1
70 of 1970.
2
The relevant part of s
ection 3 of the Act states:
“
Subject
to the provisions of section 2—
(a) agricultural land
shall not be subdivided;
. . . .
unless the Minister has
consented in writing.”
3
The relevant part of section 3 of the Act states:
“
Subject
to the provisions of section 2—
. . . .
(e) (i) no portion of
agricultural land, whether surveyed or not, and whether there is
any building thereon or not, shall
be sold or advertised for
sale, except for the purposes of a mine as defined in section 1
of the Mines and Works Act, 1956
(Act No. 27 of 1956);
. . . .
unless the Minister has
consented in writing.”
4
The agreement was concluded on 6 December 2004.
5
Proclamation R100 of 1995, GG 16785, 31 October
1995.
6
See n 8 below.
7
209 of 1993 at section 9.
8
The Local Government Elections under permanent
municipal structures were held on 5 December 2000 in all nine
provinces. See
Independent Electoral
Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC);
2001 (9) BCLR 883
(CC) at para
1. The Local Government Elections under the transitional
arrangements were held on 1 November 1995 throughout South
Africa
except for certain portions of the Western Cape and the whole of
KwaZulu-Natal where the elections were held in mid-1996.
See
African National Congress and Another v Minister of Local
Government and Housing, KwaZulu-Natal and Others
[1998] ZACC 2
;
1998 (3) SA 1
(CC);
1998 (4) BCLR 399
(CC) at para 6.
9
Section 9.
10
Stalwo (Pty) Ltd v Wary Holdings (Pty) Ltd and Registrar of
Deeds, Cape Town
Case No: 5349/05, Port Elizabeth High Court, 26
January 2006, unreported
at para 64.
11
Stalwo (Pty) Ltd v Wary Holdings (Pty) Ltd and
Another
2008 (1) SA 654
(SCA)
.
12
Id at para 25.
13
Section 167(3)(b) of the Constitution.
14
Section 27 of the Constitution, to the extent
relevant, provides:
“(1) Everyone
has the right to have access to—
. . . .
(b) sufficient food and
water; and
. .
. .
(2) The state must
take reasonable legislative and other measures, within its
available resources, to achieve the progressive
realisation of
each of these rights.”
15
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.”
16
Sections 235(6) to 235(9) of the interim Constitution Act 200 of
1993.
17
Section 24 of the Constitution provides:
“
Everyone
has the right—
(a
) to
an environment that is not harmful to their health or well-being;
and
(b) to have the
environment protected, for the benefit of present and future
generations, through reasonable legislative
and other measures
that—
(i) prevent pollution
and ecological degradation;
(ii) promote
conservation; and
(iii) secure
ecologically sustainable development and use of natural
resources while promoting justifiable economic and
social
development.”
18
Investigating Directorate: Serious Economic
Offences and Others v Hyundai Motor Distributors (Pty) Ltd and
Others: In re Hyundai
Motor Distributors (Pty) Ltd and Others v Smit
NO and Others
[2000] ZACC 12
;
2001 (1)
SA 545
(CC);
2000 (10) BCLR 1079
(CC);
2000 (2) SACR 349
(CC)
(
Hyundai
).
19
Id at para 24.
20
Above n 11 at para 17.
21
See above [4].
22
Section 155(1)(a).
23
117 of 1998 at section 93(8).
24
Above n 11 at paras 16-7.
25
Kotzé v Minister van Landbou en Andere
2003 (1) SA 445
(T)
(
Kotzé
).
26
Above n 11 at para 20.
27
Above n 25 at 454J-455B which reads:
“
Namens
die eerste respondent is myns insiens tereg aangevoer dat die
bewoording van die Wet uitgelê moet word om te beteken wat
dit
beteken het toe die Wet gemaak is. (Vergelyk in hierdie verband
Finbro Furnishers (Pty) Ltd v
Registrar of Deeds, Bloemfontein, and Others
1985
(4) SA 773
(A)
op 804D-E.) Landbougrond
bestaan gevolglik steeds vir die doeleindes van die betrokke Wet.
Dit is alle grond, behalwe grond
wat geleë was binne die
regsgebied van die strukture wat in art 1 van Wet 70 van 1970
genoem word, op die laaste tydstip wat
daardie strukture inderdaad
nog bestaan het. Landbougrond wat as sodanig geklassifiseer is en
binne die regsgebied van ʼn vroeëre
oorgangsraad in terme van Wet
209 van 1993 geleë is, is dus ook steeds landbougrond.”
28
Above n 10
at para 64.
29
Hyundai
above n 18 at para 24.
30
Above n 11 at para 24.
31
Exception (a) to the definition ends with the
following words “but excluding any such land declared by the
Minister after consultation
with the executive committee concerned
and by notice in the Gazette to be agricultural land for the
purposes of this Act”.
32
Exception (f) to the definition reads: “land
which the Minister after consultation with the executive committee
concerned and
by notice in the Gazette excludes from the provisions
of this Act”.
33
Above n 8.
34
Section 9B in relation to rural councils and
section 10 in relation to all local government structures.
35
By
section 5
of the
Local Government Transition
Act Second
Amendment Act 97 of 1996 which inserted Part VIA into the
LGTA. Most of s
ection 5 came into force on 22 November 1996,
except for section 10G(2)(d) of Part VIA of the LGTA (a part
inserted by section 5)
which came into force earlier, on 1 July
1996.
36
See above
[5].
37
See Part A of Schedule 4 of the Constitution.
38
Chapter 7.
39
S
chedules 4 and 5.
40
Part A of
Schedule 4.
41
Part A of Schedule 5.
42
Part B of Schedule 4 read with section 156.
43
Ex Parte President of the Republic of South
Africa: In Re: Constitutionality of the Liquor Bill
[1999] ZACC 15
;
2000 (1) SA 732
(CC);
2000 (1) BCLR 1
(CC) at para
47 of the SA law reports and para 48 of the BCLR law reports.
44
Id at para 62 of the SA law reports and para 63
of the BCLR law reports.
45
An example is the Land Use Planning Ordinance 15
of 1985 which was applicable in the then Cape of Good Hope province.
There was
equivalent planning legislation in all the other
provinces and it applied to areas of the country that had local
government structures.
46
32 of 2000.
47
Municipal Structures Act at s
ections 83 and 84.
48
Id at s
ection 83(1).
49
Id at s
ection 83(2).
50
Id at section 83(3)(a).
51
Id at s
ection 2(c).
52
Id at s
ection 44(2)(c) which provides:
“
The
executive committee must—
(c) recommend to the
municipal council strategies, programmes and services to address
priority needs through the integrated
development plan and
estimates of revenue and expenditure, taking into account any
applicable national and provincial development
plans”.
53
Id at s
ection 56(2)(c).
54
Id at s
ection 1.
55
Municipal Systems Act at section 25.
56
Id at s
ection 26(e). I set out the whole of
section 26 in order to demonstrate the inter-relationships which
necessitate the integrity
of the plan:
“
An
integrated development plan must reflect—
(a) the municipal
council’s vision for the long term development of the
municipality with special emphasis on the municipality’s
most
critical development and internal transformation needs;
(b) an assessment of
the existing level of development in the municipality, which
must include an identification of communities
which do not have
access to basic municipal services;
(c) the council’s
development priorities and objectives for its elected term,
including its local economic development
aims and its internal
transformation needs;
(d) the council’s
development strategies which must be aligned with any national
or provincial sectoral plans and planning
requirements binding
on the municipality in terms of legislation;
(e) a spatial
development framework which must include the provision of basic
guidelines for a land use management system
for the
municipality;
(f) the council’s
operational strategies;
(g) applicable disaster
management plans;
(h) a financial plan,
which must include a budget projection for at least the next
three years; and
(i) the key
performance indicators and performance targets determined in
terms of section 41.”
57
Id at
section 28.
58
Id at s
ections 29 and 30.
59
Id at s
ection 31.
60
Id at s
ection 31(c)(ii).
61
Id at s
ection 32(1).
62
Id at s
ection 32(2).
63
Id at s
ection 32(3).
64
Id at s
ections 32(4) and 33.
65
Local Government: Municipal Planning and
Performance Management Regulations, GN R796 GG 22605, 24 August
2001.
66
Id at i
tem 2(4).
67
Id at i
tem 2(4)(b).
68
Id at i
tem 2(4)(c)(i).
69
Id at i
tem 2(4)(c)(ii).
70
Id at i
tem 2(4)(c)(iii).
71
Id at i
tem 2(4)(d).
72
Municipal Systems Act at section 36.
73
The application was made on
30 July 2004. The
date of commencement of the Municipal Systems Act was 1 March 2004.
74
Dated 26 August 2005.
75
Section 14(4) of the Land Use Planning Ordinance
above n 45.