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[2018] ZACC 42
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Rahube v Rahube and Others (CCT319/17) [2018] ZACC 42; 2019 (1) BCLR 125 (CC); 2019 (2) SA 54 (CC) (30 October 2018)

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CONSTITUTIONAL COURT OF SOUTH
AFRICA
CCT 319/17
In the matter between:
MATSHABELLE MARY
RAHUBE
Applicant
and
HENDSRINE
RAHUBE
First Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FOR HOUSING AND LAND AFFAIRS,
NORTH
WEST
Second Respondent
MINISTER FOR RURAL DEVELOPMENT
AND LAND
REFORM
Third Respondent
REGISTRAR OF DEEDS,
PRETORIA
Fourth Respondent
REGISTRAR OF DEEDS,
VRYBURG
Fifth Respondent
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
Sixth Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FOR HUMAN SETTLEMENTS,
GAUTENG
Seventh Respondent
Neutral
citation:
Rahube v Rahube and Others
[2018] ZACC 42
Coram:
Cachalia
AJ, Dlodlo AJ,
Froneman J, Goliath AJ, Jafta J, Khampepe J,
Madlanga J, Petse AJ and Theron J
Judgment:
Goliath AJ (unanimous)
Heard
on:
17 May 2018
Decided
on:
30 October 2018
Summary:
Upgrading of Land Tenure Rights Act 112 of 1991 —
constitutionality of section 2(1) — declaration of
constitutional
invalidity — violation of women’s rights —
right to equality — section 9(1)
Section 172(1)(b) of the Constitution — just and equitable
relief — order limiting retrospective effect
ORDER
On
application for confirmation of an order of constitutional invalidity
granted by the High Court of South Africa, Gauteng Division,

Pretoria:
1.         The order of
constitutional invalidity made by the High Court of South Africa,

Gauteng Division, Pretoria (High Court) on 26 September 2017
in respect of section 2(1) of the Upgrading of Land Tenure
Rights Act
112 of 1991 is confirmed subject to the variations set out in
paragraph 2.
2.         The order of the
High Court is varied to read:
“(a)       Section 2(1) of
the Upgrading of Land Tenure Rights Act 112 of 1991 is declared

constitutionally invalid insofar as it automatically converted
holders of any deed of grant or any right of leasehold as defined
in
regulation 1 of Chapter 1 of the Regulations for the Administration
and Control of Townships in Black Areas, 1962 Proc R293
GG
373
of 16 November 1962 (Proclamation R293) into holders of rights of
ownership in violation of women’s rights in terms of
section
9(1) of the Constitution.
(b)          The order
in (a) above is made retrospective to 27 April 1994.
(c)          In terms of
section 172(1)(b) of the Constitution, the order in paragraph
2(a)
and (b) shall not invalidate the transfer of ownership of any
property which title was upgraded in terms of section 2(1) of
the
Upgrading of Land Tenure Rights Act 112 of 1991 through: finalised
sales to third parties acting in good faith; inheritance
by third
parties in terms of finalised estates; and the upgrade to ownership
of a land tenure right prior to the date of this order
by a woman
acting in good faith.
(d)
The
order in 2(a) above is suspended for a period of 18 months to allow
Parliament the opportunity to introduce a constitutionally

permissible procedure for the determination of rights of ownership
and occupation of land to cure the constitutional invalidity
of the
provisions of section 2(1) of the
Upgrading of Land Tenure
Rights Act 112 of 1991.
(e)       The first respondent is
interdicted from passing ownership, selling, or encumbering the

property known as Stand 2328 Block B, Mabopane in any
manner whatsoever, until such time as Parliament has complied
with
the order in 2(a) above.
(f)        The third respondent is
ordered to pay the costs of the applicant, including the
costs of two
counsel.”
3.         The third
respondent is ordered to pay the costs of the applicant in this
Court,
including the costs of two counsel.
JUDGMENT
GOLIATH AJ:
Introduction
[1]
Batho botlhe ba tsetswe ba gololosegile le go lekalekana ka
seriti le ditshwanelo.
[1]
All human beings are born free and equal in dignity and rights.
Whether in Setswana or in English, this extract from
article one of
the Universal Declaration of Human Rights is powerful because
until 24 years ago it was not true for the majority
of South
Africans.
[2]
During apartheid, the African woman was a particularly
vulnerable figure in society and she suffered three-fold
discrimination based
on her race, her class and her gender.
Reflecting upon the present, we must ask ourselves whether the
African woman truly
benefits from the full protection of the
Constitution.
[2]
Moreover, we must establish whether enough has been done to
eradicate the discrimination and inequality that so many women
face
daily.  Laws and policies must seek to do more than merely
regulate formalistically.  The Legislature is enjoined
to ensure
that laws and policies promote the participation of women in social,
economic and political spheres while also advancing
the spirit,
purport and objects of the Constitution.  This is a case where a
woman seeks to vindicate her right to access
to housing – a
right which is intrinsically linked to her dignity – by
challenging a piece of legislation, which she
contends perpetuates
apartheid legislation that precluded her, and countless African women
like her, from holding land tenure rights,
simply because of her race
and gender.
[3]
This case involves this Court exercising its section 167(5)
powers,
[3]
to confirm the order of the High Court of South Africa, Gauteng
Division, Pretoria
[4]
(High Court), that declared section 2(1) of the Upgrading of Land
Tenure Rights Act
[5]
(Upgrading Act) constitutionally invalid, to the extent that it
automatically converts holders of land tenure rights into
owners of
property, without providing other occupants or affected parties an
opportunity to make submissions.  We are required
to deal with
three questions.  First, whether the High Court order should be
confirmed.  Second, if the order is confirmed,
what remedy would
be most just and equitable.  Last, how this Court should handle
the issue of costs.
Parties
[4]
The applicant, Ms Matshabelle Mary Rahube, brings the
application in her own interest in terms of section 38(a) of the
Constitution,
as well as in terms of section 38(c) of the
Constitution, in the interests of other women who have been deprived
of title
to their homes by operation of apartheid laws and section
2(1) of the Upgrading Act.  The applicant also brings this
application in the public interest in terms of section 38(d) of the
Constitution.
[6]
[5]
The first respondent is Mr Hendsrine Rahube, the applicant’s
brother.  The second, third and seventh respondents (state

respondents) are the state parties responsible for administering land
reform and did not participate in the proceedings before
us until
this Court issued directions requesting them to make written
submissions.  These submissions were filed and support
the legal
arguments advanced by the applicant.
Background
[6]
The applicant and the first
respondent are siblings who, with other members of their family,
moved into a property located at Stand
2328 Block B, Mabopane,
North West Province (property) in the 1970s.  At the
time, the applicant, her grandmother,
uncle, three brothers
(including the first respondent) and two children all lived at the
property.  It is common cause that
the grandmother was the
“owner” of the property until she passed away in 1978.
There is no documentary proof
of her ownership.  It may have
been that the grandmother was simply the de facto owner, but the
correctness of referring to
her as the “owner” is neither
here nor there given that the legal regime, as discussed below, made
it clear that African
women could not obtain formal rights in land
because of gender discrimination.
[7]
The applicant moved out of the
property in 1973 to live with her husband.  She moved back to
the property in 1977 after her
marriage dissolved and has lived there
ever since with her children and grandchildren.  The applicant’s
brothers moved
out of the property between the 1980s and 1990s and
her uncle moved out in 2000.
[8]
In 1987, the first respondent was
nominated by the family to be the holder of a certificate of
occupation (certificate) with respect
to the property.  In 1988,
by virtue of his earlier nomination, the first respondent was issued
a deed of grant.  The
deed of grant was issued in terms of
Proclamation R293
[7]
(Proclamation), which was promulgated in terms of the
Native Administration Act,
[8]
that was later renamed the Black Administration Act.
[9]
[9]
The Upgrading Act was enacted in
1991 but took effect in the former Republic of Bophuthatswana
territory, which now forms
part of the North West Province, on 28
September 1998 when the Land Affairs
General
Amendment Act
[10]
was signed into law.  The Upgrading Act automatically converted
rights in property, such as deeds of grant, to ownership rights.

This meant that the first respondent, as the holder of the deed
of grant, automatically became the owner of the property
in terms of
section 2(1), irrespective of whether he was residing at or using the
property.
Litigation
History
Magistrate’s Court
[10]
In August 2009, the first respondent
instituted eviction proceedings against the applicant and other
occupants of the property in
the Garankuwa Magistrate’s Court.
The applicant alleges that it was during this period that she became
aware that the
deed of grant registered in the first respondent’s
name had been converted into a full right to ownership in terms of
section
2(1) of the Upgrading Act.
[11]
The applicant raised the
constitutional invalidity of section 2(1) in opposition to the
eviction proceedings.  Consequently,
the proceedings were
suspended pending the outcome of an application in the High Court
challenging the constitutionality of section 2(1)
of the
Upgrading Act.
High
Court
[12]
The application to the High Court
was opposed by the first and third respondents.  The second and
seventh respondents indicated
that they would abide by the decision
of the court.
[13]
The applicant made a number of
claims, including that she was the owner of the property in terms of
the Restitution of Land Rights
Act.
[11]
The High Court did not order any relief except for that relating to
the constitutional invalidity of section 2(1) of
the
Upgrading Act.
[12]
This was because other relief, such as an order declaring the
applicant the owner of the property, may still be available
to the
applicant and other family members after the finalisation of the
constitutionality challenge.
[14]
The High Court upheld the
applicant’s constitutional challenge to section 2(1) of
the Upgrading Act insofar as it provides
for the automatic conversion
of land tenure rights into ownership without any procedures to hear
and consider competing claims.
[13]
The High Court reasoned that people who were not holders of
certificates or deeds of grant were prevented from acquiring

ownership of properties in which they had a substantial interest.
This exclusion was inherently gendered because, in terms
of the
Proclamation, women could not be the head of a family, and thus,
could not have a certificate or deed of grant registered
in their
name.
[14]
[15]
The High Court remarked that the
Proclamation is characterised by language which is racist and
sexist.
[15]
The Upgrading Act thus recognised and converted rights that had been
acquired through a discriminatory legislative scheme.
This
injustice was compounded by the fact that upgrading was automatic and
no review mechanism was created by the Act.  The
state
respondents argued that section 24D of the Upgrading Act provided for
an appeal procedure.
[16]
The High Court found that this section was lacking and did not save
section 2(1) of the Upgrading Act from constitutional
invalidity.
[17]
[16]
The High Court therefore held that
section 2(1) of the Upgrading Act is inconsistent with sections 9
[18]
and 34
[19]
of the Constitution as it fails to protect, notify and consult with
the occupants of a property who do not have a certificate or
a deed
of grant registered in their name.
[20]
[17]
The High Court ordered that the
declaration of invalidity should apply retrospectively to 27 April
1994.  Although in its reasoning
the High Court limited the
application of this declaration in cases where the property in
question has been sold to a third party
and where the property has
been inherited by a third party in terms of the laws of succession,
this limitation was not included
in the order.
[21]
The declaration was suspended for 18 months to allow Parliament time
to cure the defect.  In the interim, the first
respondent was
precluded from transferring or otherwise encumbering the property.
The Court ordered that the third respondent
was to pay the
applicant’s costs, including the costs of two counsel.
Confirmation
[18]
This Court is requested to confirm the order declaring section
2(1) of the Upgrading Act to be constitutionally invalid.  In

terms of section 167(5) of the Constitution, orders of the High Court
and the Supreme Court of Appeal that declare Acts of Parliament

constitutionally invalid have no force unless confirmed by this
Court.  Before confirming such an order, this Court must be

satisfied that the impugned provision of the Act is indeed
inconsistent with the Constitution.
[19]
The applicant argued that this Court should confirm the order
of invalidity because the impugned provision of the Upgrading Act
violates her right to equality, on the basis of gender and sex,
[22]
contained in section 9 of the Constitution, her right to property
contained in section 25 of the Constitution and her section 33
right
to just administrative action.  The reliance on section 33 is a
departure from the High Court’s findings which
were based on
section 34 of the Constitution.  The first respondent opposed
the confirmation proceedings but levelled arguments
that, for the
most part, spoke to the factual issue of ownership of the contested
property rather than the constitutional invalidity
of section 2(1) of
the Upgrading Act.
Interpretation of the Proclamation
[20]
The Proclamation was put into force in Bophuthatswana in
1962.  It is alleged that the Proclamation only made provision
for
men to be heads of the family.  As a result, the first
respondent obtained a deed of grant that was later converted into a

right of ownership over the property.  During the hearing it was
unclear whether the factual situation in areas governed by
the
Proclamation (TBVC states)
[23]
was that African women were excluded from holding formal interests in
property.  This raised a question whether the Upgrading
Act has
had a genuine discriminatory impact on women.  After the
hearing, the Court deemed it necessary to direct the parties
to file
further written submissions on the effects that the Proclamation had
on women.
[21]
In their submissions, the applicant and the state respondents
agreed that women had indeed been excluded from holding the position

of head of the family that was a prerequisite for formal titles in
land.  The first respondent baldly alleges that this was
not the
case and that the applicant had held the titles to other properties
during her marriage.  There is no evidence of
this.  However,
the applicant before us claims that she was legally unable to
register her interests in the property because
only men could be the
head of the family.  To test this submission, it is necessary to
interpret the Proclamation contextually
and then establish whether
the Upgrading Act, which relies on the position created by the
Proclamation, unfairly discriminates
against African women.
Historical context
[22]
The historical context within which a particular provision
operated, or in response to which it was enacted, has been used as an

interpretative tool by this Court on a number of occasions.
[24]
In
Brink,
this Court recognised that the interpretation of
section 8 of the Interim Constitution
[25]
– now the section 9 right to equality – involved a
historical enquiry.  This Court held:
“As
in other national constitutions, section 8 is the product of our own
particular history.  Perhaps more than any of
the other
provisions in chapter 3, its interpretation must be based on the
specific language of section 8, as well as our own constitutional

context.  Our history is of particular relevance to the concept
of equality.  The policy of apartheid, in law and in
fact,
systematically discriminated against black people in all aspects of
social life. . . .  The deep scars of this appalling
programme
are still visible in our society.  It is in the light of that
history and the enduring legacy that it bequeathed
that the equality
clause needs to be interpreted.”
[26]
[23]
African women under apartheid were systemically
disenfranchised in a number of ways.  It is important to
recognise that the
pervasive effects of patriarchy meant that women
were often excluded even from seemingly gender-neutral spaces.
The perception
of women as the lesser gender was, and may still be, a
widely-held societal view that meant that even where legislation did
not
demand the subjugation of women, the practices of officials and
family members were still tainted by a bias towards men.  The

prioritisation of men is particularly prevalent in spheres of life
that are seen as stereotypically masculine, such as labour,
property,
and legal affairs.
[24]
This Court has recognised the cloaked but ubiquitous nature of
patriarchy in the past.  In
Volks
it held:
“This Court has on numerous occasions stressed the importance
of recognising patterns of systematic disadvantage in our society

when endeavouring to achieve substantive and not just formal
equality.  The need to take account of this context is as
important
in the area of gender as it is in connection with race, and
it is frequently more difficult to do so because of its hidden
nature.
For all the subtle masks that racism may don, it can
usually be exposed more easily than sexism and patriarchy, which are
so ancient,
all-pervasive and incorporated into the practices of
daily life as to appear socially and culturally normal and legally
invisible.
The constitutional quest for the achievement of
substantive equality therefore requires that patterns of gender
inequality reinforced
by the law be not viewed simply as part of an
unfortunate yet legally neutral background.  They are intrinsic,
not extraneous,
to the interpretive enquiry.”
[27]
(Footnotes omitted.)
[25]
O’Regan J remarked in
Brink
that:
“Although in our society discrimination on grounds of sex has
not been as visible, nor as widely condemned, as discrimination
on
grounds of race, it has nevertheless resulted in deep patterns of
disadvantage.  These patterns of disadvantage are particularly

acute in the case of black women, as race and gender discrimination
overlap.  That all such discrimination needs to be eradicated

from our society is a key message of the Constitution.  The
preamble states the need to create a new order in ‘which
there
is equality between men and women’ as well as equality between
‘people of all races’.”
[28]
[26]
Under apartheid, the effects of patriarchy were compounded by
legislation that codified the position of African women as
subservient
to their husbands and male relatives.  This context
has been acknowledged by this Court on many occasions.
[27]
In
Gumede
, Moseneke DCJ relying on the expert evidence
of Professor Nhlapo,
[29]
stated that:
“Legislating these misconstructions of African life had the
effect of placing women ‘outside the law’.
The
identification of the male head of the household as the only person
with property-holding capacity, without acknowledging the
strong
rights of wives to security of tenure and use of land, for example,
was a major distortion.  Similarly, enacting the
so-called
perpetual minority of women as positive law when, in the pre-colonial
context, everybody under the household head was
a minor (including
unmarried sons and even married sons who had not yet established a
separate residence), had a profound and deleterious
effect on the
lives of African women.”
[30]
[28]
Later in that judgment, Moseneke DCJ also relied on the
evidence of Dr Claassens,
[31]
which had been compiled by reviewing authorities and ethnographic
material, to demonstrate the manner in which property rights
held by
African people were distorted in favour of men under apartheid.
This evidence advised that—
“[t]here is a range of historical and ethnographic accounts
that indicate that women, as producers, previously had primary
rights
to arable land, strong rights to the property of their married houses
within the extended family, and that women, including
single women,
could be and were allocated land in their own right.
Furthermore there are accounts of women inheriting land
in their own
right.  However, Native Commissioners applying racially based
laws such as the Black Land Areas Regulations and
betterment
regulations issued in terms of the South African Development Trust
and Land Act repeatedly intervened in land allocation
processes to
prohibit land being allocated to women.”
[32]
(Footnotes omitted.)
In both
Gumede
[33]
and the later case of
Ramuhovhi
this Court noted that the
matrimonial property systems that were applied to women in the TBVC
states dispossessed them of property
rights in favour of the male
head of the family.
[34]
This illustrates two things: a legislative inclination in favour of
male property rights holders, and an acknowledgment by
this Court
that, generally at least, only men were considered to be the head of
the family.
Textual reading of the Proclamation
[29]
Read in light of the context above, the Proclamation
definitely had discriminatory effects on African women.  The
Proclamation
defines “family” in the following way:
“‘Family’
in relation to a person, means—
(a)         the wife
(including a partner in a customary union) and all unmarried
children
of such person;
(b)         all widowed
daughters of such person and their unmarried children residing
with
the said person;
(c)         any parent
or grandparent of such person, or of the wife of such person,
who by
reason of old age, infirmity or other disability is dependent on such
person; and
(d)         any other
person, who in the opinion of the manager is bona fide dependent
on
such person.”
[30]
This definition is crafted in gendered terms in that no
provision is made for a husband, brother or non-dependent man to be a
member
of a family, and describes the family only in relation to the
head of the family.  The Proclamation does not define “head

of the family” however, all references to the “head”
are made using masculine pronouns.  Section 8(1) of
Chapter 2 of
the Proclamation states:
“Any person who is the head of a family and is desirous of
taking up
his
residence in the township and of leasing and
occupying for residential purposes, together with the members of
his
family, a dwelling erected by or belonging to the Trust, shall apply
for a certificate in respect of such dwelling and of the site
on
which such dwelling stands.”  (Emphasis added.)
[31]
Similarly, section 9(1) of Chapter 2 of the Proclamation
provides:
“Any person who is the head of a family and desires to purchase
from the Trust a site in the township on which
he
is to erect
his
own dwelling, or on which a dwelling has been erected by
or belonging to the Trust, for occupation by
him
and members
of
his
family for residential purposes, shall apply for a deed
of grant in respect of such site.”  (Emphasis added.)
[32]
On a plain reading of these sections of the Proclamation, it
is obvious that it envisages a situation where only men could be the

head of the family, with women relatives and unmarried sons falling
under their control.  It may be argued that the masculine

pronouns used in the section should have been read as referring to
both men and women.
[35]
This is not, however, a tenable suggestion.
[33]
When the Proclamation is read in the context of the multiple
discriminatory statutes that aimed to limit the autonomy of women at

the time, it seems unlikely that the Legislature intended that the
masculine pronouns should be read to be gender neutral.

Moreover, an examination of the treatment of statutes by the courts
illustrates that Judges, in times gone by, even interpreted
the
seemingly neutral word “persons” to exclude women from
its purview.
[36]
Beyond this context, it is unlikely that male relatives and
township officials, operating within a system of patriarchy,
which
prioritised male interests in spheres such as property, would
interpret the Proclamation in favour of African women.
[34]
When faced with a challenge to the constitutional validity of
a provision in an Act, the Court examining the challenge should
ascertain
whether it is reasonably possible to interpret the section
in a manner that conforms with the Constitution.
[37]
In this case that would involve reading the Proclamation to have
gender-neutral provisions so that section 2(1) of the Upgrading
Act,
which is based on the Proclamation, is saved from constitutional
invalidity.  This is not reasonably possible.
This
interpretation would be unduly strained
[38]
because it is simply not plausible that the Proclamation was applied
in a gender-neutral way during apartheid.  To read it
as
gender-neutral now would not cure the discrimination that occurred
previously and, since the Upgrading Act is based on
the position
as it was during apartheid, would not render the Act constitutionally
compliant.
Upgrading Act as a violation of section 9 of the Constitution
[35]
The applicant relies on the violation of three distinct rights
in her constitutional challenge: equality contained in section 9,

property in terms of section 25 and just administrative action in
terms of section 33.  Because of this there are a few approaches

that could be taken in evaluating her claim.  We choose to focus
the discussion of the invalidity of section 2(1) of the Upgrading
Act
on its violation of section 9.  Section 9 in our Constitution
not only entitles everyone to equal protection before, and
benefit
of, the law
[39]
but also stipulates that the state may take legislative and other
measures to protect and advance the rights of disadvantaged
persons.
[40]
Vitally, it further prohibits both direct and indirect unfair
discrimination against people on the basis of, inter alia,
their
gender and sex.
[41]
Equality, as a cornerstone of the Constitution, best encapsulates the
applicant’s major concern with the impugned section.
Equality
also underlies the reliance on the other rights in sections 25 and 33
of the Constitution.
Section 9(1)
[36]
Following the test established in
Harksen
, it must
first be held that differentiation between groups has occurred
without any rational connection to a legitimate governmental

purpose.
[42]
In this case, the Upgrading Act differentiates between people who
were the holders of land tenure rights under apartheid
and those who
were not, but occupied the property.  The practical effect is a
differentiation between African men, who could
be the head of a
family and thus the holder of a certificate or deed of grant, and
African women who could not.  The state
respondents, in their
written submissions pursuant to directions from this Court asking for
their view on the constitutionality
of the impugned provision, agree
that section 2(1) of the Upgrading Act is a violation of section 9 of
the Constitution, and cannot
have a legitimate governmental purpose.
[37]
A provision in a statute that differentiates between groups of
people but does so without a legitimate governmental purpose will
be
irrational and unconstitutional due to its inconsistency with section
9(1).  This Court has held:
“In regard to mere differentiation the constitutional state is
expected to act in a rational manner.  It should not
regulate in
an arbitrary manner or manifest ‘naked preferences’ that
serve no legitimate governmental purpose, for
that would be
inconsistent with the rule of law and the fundamental premises of the
constitutional state.  The purpose of
this aspect of equality
is, therefore, to ensure that the state is bound to function in a
rational manner.  This has been
said to promote the need for
governmental action to relate to a defensible vision of the public
good, as well as to enhance the
coherence and integrity of
legislation.”
[43]
(Footnotes omitted.)
[38]
That section 2(1) of the Upgrading Act was not enacted with a
legitimate governmental purpose, is underscored by the fact that it

also contradicts the overall purpose for which the Upgrading Act was
enacted.  This Court has held that the purpose of the
Upgrading
Act was “to provide for the conversion into full ownership of
the more tenuous land rights which had been granted
during the
apartheid era to Africans”.
[44]
The Upgrading Act was part of a scheme of legislation that was
enacted to redress the injustices caused by the colonial and

apartheid regimes.  Land reform was one of the key focus areas
of this scheme because the systemic deprivation of the African

majority’s rights in land and property was a main feature of
the apartheid system.
[39]
The Upgrading Act relies on the legal position created by the
Proclamation in order to establish which rights warrant upgrading.

In
DVB Behuising
, this Court stated with regard to the
Proclamation:
“One is dealing here with legislation that is admittedly racist
and sexist and that constituted a key element in the edifice
of
apartheid.  In characterising the proclamation we cannot ignore
its history, what it was intended to achieve, and what
it actually
did achieve.”
[45]
[40]
Similarly, in
Moseneke
, this Court stated:
“Subordinate legislation made under [the Black Administration
Act] has been referred to as part of a demeaning and racist
system,
as obnoxious and as not befitting a democratic society based on human
dignity, equality and freedom.”
[46]
(Footnotes omitted.)
[41]
The Proclamation is subordinate legislation of the kind
described above which created land insecurity and made it difficult
for
people to protect their land, whether from confiscation or from
invasion.
[47]
The Proclamation gave some limited, subservient rights to certain
African people, but because of the wording, African women
were not
included in that group.  This position, as the cases above
reveal, would certainly be in conflict with the values
of the
Constitution, like human dignity, equality and freedom, if it was
still in force today.  Surely a piece of existing
legislation
that was designed to counteract the effects of the Proclamation but
fails will be similarly inconsistent.
[42]
In
Mabaso
this Court was asked to deal with whether the
continued differentiation between attorneys enrolled in South Africa
and those enrolled
in the former TBVC states was justified.
[48]
The Court found:
“Ten years into our new constitutional order, citizens are
entitled to have any unfairly discriminatory differentiation between

the different legislative schemes removed from the statute books.
Where it remains on the statute books, victims of the unfair

discrimination are entitled to seek and obtain relief.”
[49]
[43]
The Upgrading Act relies, in section 2(1), on the legal
position created by an unjust Act.  This highlights the distinct
lack
of a legitimate governmental purpose in the section.
Section 2(1) of the Upgrading Act automatically upgraded titles, such

as certificates and deeds of grant, into ownership rights.  In
doing this, it reinforced the position created by the Proclamation.

During apartheid African women were not entitled to hold land tenure
rights and under the Upgrading Act’s dispensation their

vulnerability was compounded as they did not have the opportunity to
register their interests in a property before the title was

automatically upgraded in favour of the male head of the family.
[44]
This lack of a legitimate governmental purpose for the
provisions of section 2(1) of the Upgrading Act is thus
irrational.
The section is constitutionally invalid due to its
inconsistency with section 9(1) of the Constitution.  The
section
does not pass this lowest threshold of constitutional
scrutiny.
[50]
[45]
In view of this it is unnecessary to delve much deeper into
the alleged violation of other rights, but it will be helpful to
explain
that this discriminatory irrationality would have been even
more difficult to overcome where the threshold constitutional
standard
is higher than mere rationality.
Section 9(2) and 9(3)
[46]
Section 9(2) states that legislative and other measures may be
taken to protect or advance persons, or categories of persons,
disadvantaged
by unfair discrimination.
[47]
The automatic upgrading of land tenure rights amounts to
indirect differentiation by the state between men, who could hold
these
titles and women, who could not.  In terms of
Harksen
,
because the differentiation takes place on two specified grounds –
gender and sex – it will amount to discrimination.
[51]
Similarly, it will be presumed to be unfair.
[52]
There has been no evidence to the contrary presented and the
presumption of unfairness is further bolstered by the vulnerable

position that African women have occupied for generations.
Thus, section 9(3) has also been infringed.
[48]
The Upgrading Act was a legislative measure taken in terms of
section 9(2) of the Constitution to advance the rights of
persons
disadvantaged by unfair discrimination.
[49]
Section 25(5) of the Constitution provides that “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”.  The
quest to
enable citizens equitably to access land must include attempts to
strengthen rights in land that were previously held,
such as the
informal right that the applicant holds through her lengthy
occupation of the property in question.  The Upgrading
Act,
which took effect in Bophuthatswana in 1998, is a piece of
legislation which speaks to the fulfilment of the state’s

section 25(5) obligation.  Parliament failed, however, to act
positively to ensure that the gender discrimination perpetuated
by
the Proclamation did not taint the equitable provision of property.
Moreover, it only recognised and strengthened rights
that were
formally held, neglecting the countless holders of informal rights or
interests in property.
[50]
Section 25(5) creates a justiciable socio-economic right to
gain access to land on an equitable basis.  The Upgrading Act
amounts
to a step taken by Parliament in an attempt to foster the
realisation of that right.  It is a well-established principle
of
this Court that when evaluating the measures taken by the state in
relation to socio economic rights, those measures must
pass
the constitutional standard of reasonableness.
[53]
In
Khosa
, this Court held that the context of each case is
vital in determining the reasonableness of a measure taken.
This, the Court
established, was best achieved by looking at the
purpose for which the measure was pursued.
[54]
[51]
The mischief that the Act was created to rectify was to
provide for recognition and security of rights that had previously
been
ignored or systemically devalued.
[55]
A reasonable step to ensure equitable access to land must do
something to counteract pre existing inequitable access.

Otherwise, as in this case, it leaves intact inequity.  The
automatic upgrading of land tenure rights does not achieve this

purpose because it excludes African women from the benefit of legal
protection.  If anything, entrenching an apartheid position

would be the exact opposite of what the legislature sought to achieve
with the Act rendering it an unreasonable legislative measure
in
terms of section 9(2).
Review procedures
[52]
The applicant alleges that the failure to provide a forum for
review of the various putative rights that may exist in a property

before upgrading takes place renders section 2(1)
constitutionally non-compliant.  The High Court upheld this
challenge
by stating that this failure violated the applicant’s
right of access to courts in terms of section 34 of the Constitution.

It further held:
“[T]he lack of notice of the conversion, and the absence of a
procedure for raising issues with the conversion of land rights
into
ownership, defies the
audi alteram partem
principle (that all
parties be given the opportunity to respond to evidence).”
[56]
[53]
Before this Court, the applicant abandoned the section 34
challenge and instead based her final constitutional challenge to the
Act on section 33 of the Constitution, which enshrines the right to
just administrative action.
[54]
We are not convinced that section 2(1) of the Upgrading Act
violates section 33 of the Constitution.  It is clear that

the upgrading takes place automatically and therefore by operation of
law.  Thus, no decision is taken by an administrator
and no
administrative action has occurred.  The legislative functions
of Parliament are explicitly excluded from the definition
of
administrative action by section 1(b)(dd) of the Promotion of
Administrative Justice Act
[57]
(PAJA).
[55]
It is not necessary, however, for this Court to determine
whether there has been a violation of either section 33 or 34 given
that
section 2(1) has already been impugned using section 9 of the
Constitution.  However, an examination of the review mechanisms,

or lack thereof, for section 2(1) automatic upgrades also lends
itself to the conclusion that the section 9 discrimination
perpetuated
against women is unfair and not rationally connected to
any legitimate governmental purpose.
[56]
Unlike other provisions in the Act, section 2(1) does not
contain an internal review mechanism.  While section 3(1)(a)(i)
provides
that land tenure rights in Schedule 2 of the Act will
not be converted to a right of ownership unless the Minister is
satisfied
that the interests and rights of putative holders are
protected,
[58]
the applicant in this case is left with only section 24D to protect
her rights.
[57]
The first respondent alleges that this section safeguards the
rights of putative holders and thus, saves the Act from
constitutional
invalidity.  However, section 24D does not
adequately protect the applicant’s rights or those of women in
a similar
position.  In terms of section 24D(10)(a) any person
who is aggrieved by an entry made in a register of land rights (which

constitutes the formal recognition of the ownership right) may appeal
to the Minister within 30 days of becoming aware of the entry,
but
not more than one year after the entry was made.
[59]
[58]
It is not uncommon for pieces of legislation that allow for
the review of decisions or procedures to contain time-bar clauses
such
as this one.
[60]
Section 24D does not, however, allow for the condonation of the late
filing of an appeal.  This initial injustice is
compounded by
the fact that the section does not establish any procedure by which
affected parties are notified of the automatic
upgrading of the
right.  Resultantly, parties who have interests in property may
only discover years later that the ownership
of that property has
been registered in the name of the holder of a deed of grant.
As is evident in the case before us, these
parties cannot then rely
on section 24D to protect their rights because they are barred from
bringing appeals more than a year
after the right was registered.
[59]
It is further worth noting that section 24D only makes
provision for an appeal after the right has been registered in the
applicable
registry.  In the case before us counsel for the
applicant stated that there was no evidence that the right had been
registered.
However, registration is not a prerequisite upon
which the validity of the right to ownership is premised.
Instead, in terms
of section 2(2) of the Upgrading Act, registration
simply gives effect to the right that was automatically created by
section 2(1).
It seems likely that there may be cases like
this one, in which the registration of the right cannot be located in
the registry.
Here, the “protections” in section
24D would be of little assistance as the appeal procedure is only
against an entry
made in a register, and not against the automatic
upgrading of the initial right.
Just and
equitable relief
[60]
In terms of section 172(1)(b) of the Constitution, once a
declaration of invalidity is made, a Court may make any just and
equitable
order.
[61]
This includes making an order limiting the retrospective effect of
the order or suspending the declaration of invalidity
to allow
Parliament to rectify the inconsistency.
[62]
Retrospective effect
[61]
The High Court held that the order of invalidity should apply
retrospectively to the date of the enactment of the Interim
Constitution
– 27 April 1994.  In the High Court the
applicant argued that it should instead be declared invalid from the
date
that the Upgrading Act was enacted in 1991.  In this Court,
however, the applicant abandons this argument in favour of the
High
Court’s determination.  In confirming the order of the
High Court, it is important to recognise that the retrospective

effect of this order is crucial to the effective protection of
women’s rights.
[62]
A prospective order would not protect the rights of the
applicant before us, nor would it provide relief to women in her
position.
Moreover, this Court cannot condone more than 20
years of discrimination brought about by the legislation by relying
only on a
prospective order of invalidity.  With this principle
in mind, one might ask how we can condone the nearly three years of
discrimination that persisted between the enactment of the Act and
the coming into operation of the Interim Constitution.
This is
certainly an issue that troubled Kollapen J in the High Court.
However, the impugned provisions of the Upgrading
Act only became
constitutionally inconsistent, and therefore invalid, when the
Interim Constitution came into force.
[63]
It would not, therefore, be just and equitable, nor indeed sensible,
to extend the effect of the declaration of invalidity
beyond 27 April
1994.  The order of retrospectivity made by the High Court
should thus be confirmed.
Limited retrospectivity
[63]
This aspect is not without its difficulties.  More than
20 years have elapsed since the enactment of the Upgrading Act and in

that time the advancement and protection of women’s rights have
made significant strides.  This means that in some instances

property ownership which was obtained through the operation of
section 2(1) of the Upgrading Act may have ended up under the

legal control of African women.  This could be for a number of
reasons, including because of judicial intervention which prevents

gender discrimination in intestate succession as in
Bhe
,
[64]
or indeed through the financial empowerment of women that has allowed
them to purchase property in their own name.
[64]
This Court must be cautious not to create new and different
injustices in our attempt to remedy the one perpetrated by section
2(1)
of the Upgrading Act.  This Court is, therefore, empowered
under section 172(1) of the Constitution to make an order limiting

retrospectivity.  In
Ramuhovhi
, this Court held that one
of the factors that must be considered when limiting retrospectivity
is the disruptive effect that unlimited
retrospectivity would have.
It further stated:
“Limiting retrospectivity helps ‘avoid the dislocation
and inconvenience of undoing transactions, decisions or actions
taken
under [the invalidated] statute’.  Currie and De Waal
state that the disruptive effects of an order of retrospective

invalidity must be balanced against the need to give effective relief
to the applicant and similarly placed people.”
[65]
[65]
All the parties before us agree that certain disruptions would
occur if the order of retrospectivity is unlimited.  The High

Court identified two groups of people who should be excluded from the
effect of retrospectivity.  Those people were third
parties who
had, in good faith, purchased property which title had been upgraded
in terms of section 2(1) and persons who
inherited such property
in terms of the law of succession.
[66]
The second category was further restricted so that this limitation
only applies to estates that had been finalised.
The High Court
held that in both of the above categories, a transfer of property
would not qualify for the exception if a party
had been on notice
that the property was the subject of a dispute.
[67]
[66]
We agree with the High Court’s limitations on
retrospectivity.  In the past 20 years the position of
women in society
has improved and the alienation of property in
sexist ways has largely been declared unconstitutional.
[68]
Moreover, it is imperative that this Court does not disrupt the South
African property scheme by making an order that would
impact
substantially on the financial interests of buyers, sellers and banks
who acted in good faith by relying on a law that they
thought was
valid.
[67]
This may appear to be harsh treatment of women who have
already faced the consequences of property in which they have an
interest
being alienated.  However it is the established
jurisprudential position of this Court that “as a general
principle . . . an
order of invalidity should
have no effect on cases which have been finalised prior to the date
of the order of invalidity”.
[69]
This has been applied both to criminal matters and to the
finalisation of estates in terms of the law of succession even
where
the effect of those cases was discriminatory.  The Court aims,
as far as possible, to avoid injustices being perpetrated
both
against the victims of an impugned provision, and against parties who
acted in good faith in terms of the provision.
But it is
impossible to craft a perfect remedy.  There may be other
avenues of redress available to affected women based on
the specific
facts in each of these finalised cases.  These cannot however
arise as a result of this declaration of invalidity.
This Court
recognised in
De Lange
that it is a lesser evil for a
constitutional violation to go without compensation than to impose
monetary liability on a person
who, knowingly or not, relied on what
she thought to be a valid law.
[70]
[68]
We do, however, believe that the list of exceptions provided
by the High Court should be extended.  Women who, through a
stroke
of luck or another unforeseen event, obtained a title in
property which was upgraded to an ownership right in terms of the Act
should not have these titles nullified by virtue of this
declaration.  We do not have before us concrete factual evidence
of the full effect that the Proclamation, and therefore the Upgrading
Act, had on the rights of women.  While it is clear from
the
submissions made by all parties that many women were denied the right
to register their interests in property by virtue of
their gender, we
cannot conclusively say that no woman obtained a title at any point.
The ground on which we are declaring
section 2(1) invalid is that it
does not take reasonable steps to ensure access to property on an
equitable basis and that the
Upgrading Act perpetuates discrimination
against women in contradiction to the Act’s stated aims.
However, in instances
where this injustice has been organically
rectified, to allow this to be reversed would be exceptionally
dislocated from the social
context within which the Act operates.
[69]
Therefore, the retrospective declaration of invalidity does
not apply to cases where women had their titles upgraded by section
2(1) of the Act, nor does it apply to finalised estates where the
property has been inherited by a third party acting in good faith,

nor, finally, to cases where the property has been transferred to a
third party through a final and valid alienation process.
Suspension of the declaration of invalidity
[70]
As the High Court found, the effects of this declaration of
invalidity may be far reaching, with effects on groups beyond
those
explicitly excluded from the retrospective order.
Parliament is in a far better position than this Court to conduct the
necessary
factual enquiry to establish the full extent of redress
demanded.  Moreover, the unconstitutional effects of section
2(1)
of the Upgrading Act cannot be remedied by a simple reading-in
exercise.  The best way to go about achieving this cannot be

determined by this Court.  The order suspending the declaration
of invalidity for 18 months should be confirmed.
Interim relief
[71]
To ensure that the applicant is given effective relief pending
Parliament curing the constitutional defect in the Upgrading Act,
the
High Court ordered that the first respondent be interdicted from
passing ownership, selling, or encumbering the property in
any manner
whatsoever.  The High Court also protected persons who might be
vulnerable to wrongful evictions or bad faith transactions
utilising
unconstitutionally conveyed property rights by stating that nothing
prevented them from approaching a competent court
for interim relief
similar to that awarded to the applicant.  Both of these
pronouncements are sensible and provide adequate
protection for the
time being.  Therefore, the order of interim relief is also
confirmed.
Costs
[72]
The applicant successfully challenged the constitutionality of
section 2(1) of the Upgrading Act in the High Court.  As a
result,
costs were awarded against the third respondent, the Minister
for Rural Development and Land Reform, who opposed that application.

This was because of the Minister’s role as the state authority
responsible for the effects of the legislation.  The
applicant
was not successful with her claim against the first respondent
because the High Court opted not to pronounce on this
dispute.
The general rule that costs should follow a successful result was
applied and the applicant was ordered to recover
all of her costs
from the third respondent while the first respondent paid his own
costs.
[71]
There is no reason why this costs order should be overturned.
[73]
It is the norm to award costs in favour of a successful
applicant for a confirmation.  The third respondent did not
participate
in these proceedings until responding to this Court’s
directions issued after the hearing.  Their response to these
directions was useful and illustrated that the Minister no longer
opposed the confirmation of constitutional invalidity.  This

fact is not, however, sufficient to justify this Court’s
deviation from the principle relating to successful confirmation

proceedings.
[72]
In terms of
Biowatch
, “[t]he primary consideration
in constitutional litigation must be the way in which a costs order
would hinder or promote
the advancement of constitutional
justice”.
[73]
It is clear that “[t]he state is under an ongoing
constitutional obligation to respect, protect, promote and fulfil
the
rights in the Bill of Rights by ensuring (inter alia) that
legislation which violates constitutional rights is amended or
replaced”.
[74]
The state failed to enact legislation that allows for the equitable
distribution of land and the redress of gendered discrimination
that
occurred during apartheid.  In the circumstances the Minister
should pay the costs of the confirmation proceedings.
The first
respondent should bear his own costs.
Conclusion
[74]
During apartheid it was not true that all persons were born
free and equal in dignity and rights.  The oppression that the
system meted out was felt no more acutely than by African women.
They were relegated to the status of perpetual minors, often
forced
to work in the unregulated domestic care sector to look after
children who were not their own, and they were prevented from
owning
property which left them permanently dependent on the male heads of
their families to access the basic protection that a
home provides.
Twenty-four years into democracy, a piece of legislation that reifies
the factual position created by a racist
and sexist apartheid Act
cannot pass constitutional muster.  The Upgrading Act, in its
attempt to redress one injustice, exacerbated
another.  When
enacting remedial legislation, Parliament must be aware of the
historic omnipresence of patriarchy which will
otherwise undermine
even the noblest of legislative endeavours.  In conclusion,
section 2(1) of the Upgrading Act is constitutionally
invalid insofar
as it solidifies the position created by apartheid legislation which
excluded African women from the property system
and resulted in
discrimination on the basis of sex and gender in terms of section 9
of the Constitution.
Order
[75]
The
following order is made:
1.         The order of
constitutional invalidity made by the High Court of South Africa,

Gauteng Division, Pretoria (High Court) on 26 September 2017
in respect of section 2(1) of the Upgrading of Land Tenure
Rights Act
112 of 1991 is confirmed subject to the variations set out in
paragraph 2.
2.         The order of the
High Court is varied to read:
“(a)     Section 2(1) of the Upgrading of
Land Tenure Rights Act 112 of 1991 is declared constitutionally

invalid insofar as it automatically converted holders of any deed of
grant or any right of leasehold as defined in regulation 1
of Chapter
1 of the Regulations for the Administration and Control of Townships
in Black Areas, 1962 Proc R293
GG
373 of 16 November 1962
(Proclamation R293) into holders rights of ownership in violation of
women’s rights in terms of section
9(1) of the Constitution.
(b)       The order in (a) above is
made retrospective to 27 April 1994.
(c)       In terms of section 172(1)(b)
of the Constitution, the order in paragraph 2(a) and (b)
shall not
invalidate the transfer of ownership of any property which title was
upgraded in terms of section 2(1) of the Upgrading
of Land Tenure
Rights Act 112 of 1991 through: finalised sales to third parties
acting in good faith; inheritance by third parties
in terms of
finalised estates; and the upgrade to ownership of a land tenure
right prior to the date of this order by a woman acting
in good
faith.
(d)
The
order in 2(a) above is suspended for a period of 18 months to allow
Parliament the opportunity to introduce a constitutionally

permissible procedure for the determination of rights of ownership
and occupation of land to cure the constitutional invalidity
of the
provisions of section 2(1) of the
Upgrading of Land Tenure
Rights Act 112 of 1991.
(e)       The first respondent is
interdicted from passing ownership, selling, or encumbering the

property known as Stand 2328 Block B, Mabopane in any
manner whatsoever, until such time as Parliament has complied
with
the order in 2(a) above.
(f)        The third respondent is
ordered to pay the costs of the applicant, including the
costs of two
counsel.”
3.         The third
respondent is ordered to pay the costs of the applicant in this
Court,
including the costs of two counsel.
For the Applicant:
For the First Respondent:
For the Second, Third and Seventh Respondents:
A de Vos SC and M P
Moropa instructed by Lawyers for Human Rights
N L Skibi instructed by
Legal Aid Board South Africa
L T Sibeko SC, M J Gumbi
and X Mofokeng instructed by Leepile Attorneys Incorporated and
State Attorney, Pretoria
[1]
This is a translation of an extract from article 1 of the Universal
Declaration of Human Rights from English into Setswana.

Universal Declaration of Human Rights, 10 December 1948.
[2]
Constitution of the Republic of South Africa, 1996.
[3]
Section 167(5) of the Constitution reads:
“The Constitutional Court makes the final
decision whether an Act of Parliament, a provincial Act or conduct
of the President
is constitutional, and must confirm any order of
invalidity made by the Supreme Court of Appeal, the High Court of
South Africa,
or a court of similar status, before that order has
any force.”
[4]
Rahube v Rahube
2018 (1) SA 638
(GP) (High Court judgment).
[5]
112 of 1991.  Section 2(1) of the Upgrading Act reads:
“Any land tenure right mentioned in
Schedule 1 and which was granted in respect of
—
(a)           any
erf or any other piece of land in a formalised township for
which a
township register was already opened at the commencement of this
Act, shall at such commencement be converted into ownership;
(b)           any
erf or any other piece of land in a formalised township for
which a
township register is opened after the commencement of this Act,
shall at the opening of the township register be converted
into
ownership;
(c)           any
piece of land which is surveyed under a provision of any
law and
does not form part of a township, shall at the commencement of this
Act be converted into ownership,
and as from such conversion the ownership of such
erf or piece of land shall vest exclusively in the person who,
according to
the register of land rights in which that land tenure
right was registered in terms of a provision of any law, was the
holder
of that land tenure right immediately before the conversion.”
[6]
Section 38 of the Constitution reads:
“Anyone listed in this section has the
right to approach a competent court, alleging that a right in the
Bill of Rights
has been infringed or threatened, and the court may
grant appropriate relief, including a declaration of rights.
The persons
who may approach a court are
—
(a)
anyone acting in their own
interest;
. . .
(c)
anyone acting as a member of, or in the interests of, a group or
a
class of persons;
(d)
anyone acting in the public interest.”
[7]
Regulations for the Administration and Control of Townships in Black
Areas, GN R293
GG
373, 16 November 1962.
[8]
38 of 1927.
[9]
Africans were initially referred to in statutes as “Natives”.
This term was later changed to “Bantu”,
and eventually
to “Blacks”.  The short titles of the statutes
reflect the name used to refer to Africans at
the time the statute
was promulgated.
[10]
61 of 1998.
[11]
22 of 1994.
[12]
High Court judgment above n 4 at paras 18 and 96.
[13]
Id at para 96.
[14]
Id at paras 26-7.
[15]
Id at para 50.
[16]
Section 24D(10)(a) reads:
“Any person aggrieved by an entry made by a
person designated under subsection (1) or (2) in a register of land
rights,
may within 30 days after he or she became aware of the
entry, but not more than a year after the entry was made, appeal in
writing
against such entry to the Minister.”
[17]
High Court judgment above n 4 at para 54.
[18]
Section 9 of the Constitution reads:
“(1)        Everyone is
equal before the law and has the right to equal protection and

benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights
and
freedoms.  To promote the achievement of equality, legislative
and other measures designed to protect or advance persons,
or
categories of persons, disadvantaged by unfair discrimination may be
taken.
(3)           The
state may not unfairly discriminate directly or indirectly
against
anyone on one or more grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour,
sexual
orientation, age, disability, religion, conscience, belief, culture,
language and birth.
(4)           No
person may unfairly discriminate directly or indirectly against

anyone on one or more grounds in terms of subsection (3).
National legislation must be enacted to prevent or prohibit unfair

discrimination.
(5)
Discrimination on one or more of the grounds listed in subsection

(3) is unfair unless it is established that the discrimination is
fair.”
[19]
Section 34 of the Constitution reads:
“Everyone has the right to have any dispute
that can be resolved by the application of law decided in a fair
public hearing
before a court or, where appropriate, another
independent and impartial tribunal or forum.”
[20]
High Court judgment above n 4 at para 62.
[21]
Id at para 81.
[22]
For the purposes of this judgment references to the word “sex”
refer to the biological characteristics that define
humans as
female, male or intersex.  This is usually assigned at birth
and differentiation between people is made on the
basis of external
genitalia, chromosomes, hormones and the reproductive system.
References to “gender” are
references to an identity
that can change over time, and that differs from one culture or
society to another.  Gender is
both a social construct and a
personal identity.  In social terms gender refers to the
socially created roles, personality
traits, attitudes, behaviours
and values attributed to and acceptable for men and women as well as
the relative power and influence
of each.  In individual terms
gender refers to the specific gender group with which an individual
identifies regardless
of their sex.  For these definitions see
Valdes “Deconstructing the Conflation of ‘Sex’,
‘Gender’
and ‘Sexual Orientation’ in
Euro-American Law and Society”
(1995) 83
California Law
Review
1
at 20 read with fn 46 and 22 read with fn 51.  See
also Rubin “Notes on the Political Economy of Sex” in
Reiter
Toward an Anthropology of Women
(Monthly Review Press,
New York 1975) at 159 for an examination of the way that society
transforms biological sex into products
of human activity.
The distinction between these terms is recognised
by our Constitution.  “Gender” and “sex”
are treated
as two separate and distinct grounds in section 9 of the
Constitution.  In
Woolworths (Pty) Ltd v Whitehead
[2000] ZALAC 4
, (2000) 21 ILJ 571 (LAC) at paras 73 and 110,
differentiation on the basis of pregnancy was deemed to amount to
differentiation
on the basis of sex, rather than gender.  This
is because child-bearing relates to the biological make-up of the
female
sex.  In the minority judgment of
S v Jordan (Sex
Workers Education and Advocacy Task Force as Amici Curiae)
[2002] ZACC 22
;
2002 (6) SA 642
(CC);
2002 (11) BCLR 1117
(CC) at
paras 64-5, it was held that legislation that criminalised provision
of sex work is unconstitutional because it discriminates
on the
basis of gender.  There was no distinction made between sex
workers who are biologically male or female and so this
is not about
sex-based discrimination.  Rather the criminalisation
overwhelmingly affects women because societal norms and
patriarchal
practices mean that women are more often than not the sellers of sex
and not the buyers.
The recognition of the distinction between sex
and gender is relatively recent.  This judgment recognises that
the basis
for the impugned legislation was discrimination based on a
conflation of both biology and the sociological view of women.

Usually attribution of gender roles flows from biological
classifications of male or female.  The exclusion of women from

being the head of the family is based on the social perception of
what women can do and how they should behave.  This is
a
sociological phenomenon, not a biological one.  For these
reasons, this judgment examines the provision using both the
grounds
of sex and gender in the Constitution but reference will be made
predominantly to gender because the overwhelming effect
of the
impugned provision is to reinforce social rather than biological
characteristics attributed to women.
[23]
“TBVC states” is the common way of referring to
Transkei, Bophuthatswana, Venda and Ciskei, which were areas
reserved
for African people during apartheid and were awarded veiled
independence in terms of the Promotion of Bantu Self-Governance Act

45 of 1959 and the Black Homelands Citizenship Act 26 of 1970.
[24]
Executive
Council, Western Cape v Minister of Provincial Affairs and
Constitutional Development
; Executive Council,
KwaZulu-Natal v President of the Republic of South Africa
[1999]
ZACC 13
;
2000 (1) SA 661
(CC);
1999 (12) BCLR 1360
(CC) at para 44;
Prinsloo v Van der Linde
[1997] ZACC 5
;
1997 (3) SA 1012
(CC);
1997 (6) BCLR 759
(CC) at para 31;
Du Plessis v De Klerk
[1996] ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
(CC) at para
126;
S v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995
(6) BCLR 665
(CC) at paras 39 and 322-3.
[25]
Constitution of the Republic of South Africa Act 200 of 1993.
[26]
Brink v Kitshoff N.O.
[1996] ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6) BCLR 752
(CC) at para 40.
[27]
Volks v Robinson
[2005] ZACC 2
; 2009 JDR 1018 (CC)
[2005] ZACC 2
; ;
2005 (5)
BCLR 446
(CC) at para 163.
[28]
Brink
above n 26 at para 44.
[29]
Professor Thandabantu Nhlapo is an Emeritus Professor at the
University of Cape Town.  He was the Chair of the Commission
on
Traditional Leadership Disputes and Claims, and the Chair of the
Project Committee on Customary Law which assisted in the
drafting of
legislation such as the
Recognition of Customary Marriages Act 120
of 1998
.
[30]
Gumede v President of the Republic of South Africa
[2008]
ZACC 23
;
2009 (3) SA 152
(CC);
2009 (3) BCLR 243
(CC) at para 17.
[31]
Dr Aninka Claassens is the Director of the Land and Accountability
Research Centre at the University of Cape Town.  Her

overarching research focus is on the nature and content of customary
law in the South African constitutional dispensation and
she has
researched extensively the ability of women, particularly unmarried
women, to access land in communal areas.
[32]
Gumede
above n 30 at para 18.
[33]
Id at paras 17-8.
[34]
Ramuhovhi v President of the Republic of South Africa
[2017]
ZACC 41
;
2018 (2) SA 1
(CC);
2018 (2) BCLR 217
(CC) at para 62 read
with fn 50.
[35]
Section 6(a) of the Interpretation Act 33 of 1957 states:
“In every law, unless the contrary
intention appears—
(a)
words importing the masculine gender include females.”
[36]
See
Rex v Detody
1926 AD 198
at 211 and
Incorporated Law
Society v Wookey
1912 AD 623.
[37]
Govender v Minister of Safety and Security
[2001] ZASCA 80
;
2001 (4) SA 273
(SCA) at para 11.
[38]
Investigating Directorate: Serious Economic Offences v Hyundai
Motor Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty)

Ltd v Smit N.O.
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10)
BCLR 1079
(CC) at para 24.
[39]
Section 9(1) of the Constitution.
[40]
Section 9(2) of the Constitution.
[41]
Section 9(3) of the Constitution.
[42]
Harksen v Lane N.O.
[1997] ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(CC) at para 43.
[43]
Prinsloo
above n 24 at para 25.
[44]
Western Cape Provincial Government: In re DVB Behuising (Pty) Ltd
v North West Provincial Government
[2000] ZACC 2
;
2001 (1) SA
500
(CC);
2000 (4) BCLR 347
(CC) (
DVB Behuising
) at para 8.
[45]
Id at para 40.
[46]
Moseneke v The Master
[2000] ZACC 27
;
2001 (2) SA 18
(CC);
2001 (2) BCLR 103
(CC) at para 20.
[47]
DVB Behuising
above n 44 at para 92.
[48]
Mabaso v Law Society, Northern
Provinces
[2004] ZACC
8
;
2005 (2) SA 117
(CC);
2005 (2) BCLR 129
(CC) at para 2.
[49]
Id at para 42.
[50]
See
Pharmaceutical Manufacturers Association of SA: In re ex
parte President of the Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 90.
[51]
Harksen
above n 42 at para 48.
[52]
Id.
[53]
See
Mazibuko v City of Johannesburg
[2009] ZACC 28
;
2010 (4)
SA 1
(CC);
2010 (3) BCLR 239
(CC) at paras 138 and 161;
Minister
of Health v Treatment Action Campaign (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC);
2002 (10) BCLR 1033
(CC) at paras 67-8;
Government of the Republic of South Africa v Grootboom
[2000]
ZACC 19
;
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) at paras
41-4.
[54]
Khosa v Minister of Social Development; Mahlaule v Minister of
Social Development
[2004] ZACC 11
;
2004 (6) SA 505
(CC);
2004
(6) BCLR 569
(CC) at para 49.
[55]
See [41] and [43].
[56]
High Court judgment above n 4 at para 59.
[57]
3 of 2000.
[58]
Section 3(1)(a)(i) states:
“Where the State is the owner of an erf or
piece of land situated outside a formalised township, the relevant
land tenure
right need not be converted into ownership, and a deed
of transfer shall not be submitted unless—
(i)
the Minister is satisfied,
on the basis of a report by a person
assigned or appointed by him or her, that the rights or interests of
putative holders are
being protected.”
[59]
See above n 16.
[60]
See for example section 7(1) of PAJA which states:
“Any proceedings for judicial review in
terms of section 6(1) must be instituted without unreasonable delay
and not later
than 180 days after the date—
(a)
subject to subsection (2)(c), on which any proceedings instituted
in
terms of internal remedies as contemplated in subsection (2)(a) have
been concluded; or
(b)
where no such remedies exist, on which the person concerned was

informed of the administrative action, became aware of the action
and the reasons for it or might reasonably have been expected
to
have become aware of the action and the reasons.”
[61]
Section 172(1)(b) states:
“When deciding a constitutional matter
within its power, a court—
. . .
(b)
may make any order that is just
and equitable.”
[62]
Section 172(1)(b) states that a just and equitable order includes:
“(i)
an order limiting the retrospective effect of the declaration of

invalidity; and
(ii)           an
order suspending the declaration of invalidity for any period
and on
any conditions, to allow the competent authority to correct the
defect.”
[63]
Ramuhovhi
above n 34 at para 57.
[64]
Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as
Amicus Curiae); Shibi v Sithole; South African Human Rights
Commission
v President of The Republic of South Africa
[2004]
ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC).
[65]
Ramuhovhi
above n 34 at para 57.
[66]
High Court judgment above n 4 at para 80.
[67]
Id at para 81.
[68]
See
Bhe
above n 64.
[69]
Engelbrecht v Road Accident Fund
[2007] ZACC 1
;
2007 (6) SA
96
(CC);
2007 (5) BCLR 457
(CC) at para 45;
National Coalition
for Gay and Lesbian Equality v Minister of Justice
[1998] ZACC
15
;
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) at para 93;
S v
Mello
[1998] ZACC 7
;
1998 (3) SA 712
(CC);
1998 (7) BCLR 908
(CC) at para 13;
S v Ntsele
[1997] ZACC 14
;
1997 (2) SACR 740
(CC);
1997 (11) BCLR 1543
(CC) at para 14.
[70]
De Lange v Smuts N.O.
[1998] ZACC 6
;
1998 (3) SA 785
(CC),
1998 (7) BCLR 779
(CC) at paras 104-5.
[71]
High Court judgment above n 4 at para 95.
[72]
Levenstein v Estate of the Late Sidney Lewis Frankel
[2018]
ZACC 16
;
2018 (8) BCLR 921
(CC) at para 79.
[73]
Biowatch Trust v Registrar Genetic Resources
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) (
Biowatch
)
at para 16.
[74]
Gory v Kolver N.O.
[2006] ZACC 20
;
2007 (4) SA 97
(CC);
2007
(3) BCLR 249
(CC) at para 65.