South Africa: Constitutional Court

[70]

That the rights conferred by the deeds of grant were, and continue to be, of practical and commercial value to the holders thereof, cannot be gainsaid. They can be sold and inherited, subject to the approval of the township authorities. As indicated above, the holders of the deeds of grant are protected by virtue of the provisions of the Deeds Registries Act and Chapter 9 of the Proclamation, read with the provisions of the Interpretation Act. This, of course, does not prevent a province from adopting a policy to the effect that in future apartheid-based forms of land tenure will no longer be available, but that those who are already in possession of those titles can keep them and, where applicable, have them upgraded and converted into full ownership. This, in my view, is the effect of the repeal of the Proclamation.

[71]

The constitutional challenge in the High Court was premised on the proposition that the North West lacked the competence to deal with land tenure, and, therefore, could not repeal the “tenure” provisions of the Proclamation. It was never contended that the repeal was constitutionally invalid because it interfered with existing property rights. The question whether the repeal does in fact interfere with existing property rights was therefore not canvassed in the papers or in argument, either in the High Court or in this Court. That question is therefore not before us. However, nothing said in this judgment prevents any person whose rights might be adversely affected by the repeal from approaching any court of competent jurisdiction to seek relief, if so advised.

SUMMARY OF CONCLUSIONS

[72]

To sum up, therefore, I conclude that what was assigned pursuant to section 235(8) of the interim Constitution was the whole Proclamation save for regulations 1 and 3 of Chapter 1 and the provisions of Chapter 9 as amended by Proclamation R9 of 1997. These provisions dealt with the registration of deeds of grant, a matter that is required to be regulated by uniform norms and standards, and thus a matter referred to in paragraph (b) of section 126(3) of the interim Constitution. When the Constitution took effect, the Proclamation, save for regulations 1 and 3 of Chapter 1 and the provisions of Chapter 9 as amended, was administered by the North West. It was, therefore, provincial legislation in terms of section 239 of the Constitution to that extent only. In the event, it was competent for the North West to repeal the whole Proclamation, but not the provisions of the Proclamation which it did not administer. The North West lacked the competence to repeal regulations 1 and 3 of Chapter 1 and the provisions of Chapter 9 as amended. It follows that the repeal of those provisions was unconstitutional. It is only to this extent that the order of the High Court must be confirmed.

ORDER

[73]	The following order is therefore made:

The repeal of regulations 1 and 3 of Chapter 1 and of the provisions of Chapter 9 of Proclamation R293 of 16 November 1962, as amended by Proclamation R9 of 24 January 1997, by section 6 of the North West Local Government Laws Amendment Act, 7 of 1998, is inconsistent with the Constitution and invalid.

Chaskalson P, Langa DP, Ackermann J, Mokgoro J, Yacoob J and Cameron AJ concur in the judgment of Ngcobo J.



MADALA J:

[74]

I have had the benefit of reading the joint judgment prepared by Goldstone, O’Regan and Sachs JJ on the one hand and that prepared by Ngcobo J on the other in this matter, and have decided to air my own views as to how the matter should be determined. I align myself somewhat with the views expressed by Ngcobo J but hold a different opinion with regard to Chapter 9 of Proclamation R293 of 1962 (the Proclamation). The facts of this case are well catalogued in the judgment of Ngcobo J and accordingly I do not have to repeat them. For the reasons which follow, I am of the view that Chapter 9 also constituted provincial legislation which was validly repealed by the North West legislature.

[75]

The issue is whether the North West provincial legislature had the requisite power to repeal the Proclamation or whether that is a national competence. To understand the legislation with which we are now grappling, it is, in my view, important to appreciate that it was a continuum in the process of separate development which had started before Union and had become pronounced with the coming into force of the Native Land Act,[1] (the 1913 Land Act). Under the 1913 Land Act, rights to acquire, rent or even share-crop land in South Africa depended on a person’s racial classification.

[76]

The 1913 Land Act continued the process of dispossessing black persons of land and put in place a system of land use and occupation which was calculated to be legally insecure, racially discriminatory and devised to obliterate investment opportunities for black persons, whether in urban or rural areas. Black people were to be accommodated in the urban areas only as temporary sojourners and contract workers who were expected to return to their rural homes on the expiry of their labour contracts or so soon as they were no longer in employment. In terms of this Act, the black majority population of South Africa was allocated 13% of the land while 87% went to the minority white population.

[77]

This process was carried further by the Native Trust and Land Act,[2] (the 1936 Land Act) in terms of which black people lost even the right to purchase land in the reserves and were obliged to utilize land administered by tribal authorities appointed by the government. Black families who had owned land under freehold title outside the so-called reserves before 1913 were initially exempted from the provisions of the 1913 Land Act : this resulted in a number of so called “black spot” communities in areas designated for whites. Later they were the subject of further forced removals which took place between the 1950's and the 1980's.

[78]

To a large extent, the government expelled most of these farmers to homelands and confined the remainder as tenants of the South African Development Trust which purchased farms occupied by white people for the consolidation and enlargement of areas occupied by blacks. Because of such dispossession, forced removals which had become the order of the day and the racially designed distribution of land and allied resources, and the weak land rights that remained, the whole issue of land became a source of tremendous conflict.

[79]	Other Acts which aggravated the situation were the Natives (Urban Areas) Consolidation Act,[3] the Group Areas Act,[4] and the Natives Resettlement Act[5] - to mention but a few.

[80]

Section 235(8)[6] of the interim Constitution granted the President the power to assign the administration of certain laws to a competent authority within the framework of section 126. The President exercised that power when he issued Proclamation 110 of 1994, and assigned the administration of certain laws, specified in the schedule to that Proclamation, to the relevant competent authority designated by the Premier of the North West Province. Among the laws which were assigned by the President was the Proclamation R293.

[81]	The Proclamation sought, as stated in its preamble, to establish racially and ethnically exclusive townships and to institute:

“. . . a suitable form of local authority . . . for the control of the said townships by the Bantu inhabitants thereof;

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

And whereas it is expedient to provide for the establishment of deeds registries and the registration of deeds in respect of land in such townships . . . ”

In terms of the Proclamation, and because of the apartheid policies which it espoused, millions of black persons were pushed into overcrowded and impoverished reserves, homelands and townships. This resulted in endemic overcrowding, poverty and extreme pressure on resources, with the resultant social ills.

[82]	The North West provincial legislature sought to repeal the whole of the Proclamation. Initially before this Court was the validity of the repeal of chapters 1, 2, 3 and 9 of the Proclamation. These chapters deal respectively with the following matters, among others:

Chapter 1 - establishment and abolition of townships, lease agreements.
Chapter 2 - township administration, allotment and occupation of sites, manner of dealing in deceased holders’ property, registers of occupiers, lodgers’ permits, cancellation of certificates and deeds of grant, control of traffic entering and leaving the township, control of the use of water, and slaughtering of stock.
Chapter 3 - trading
Chapter 9 - establishment of deeds registries in the offices of the “Bantu” Affairs Commissioner with registrars of deeds and the registration of deeds of grant.

[83]	I now deal in detail with the provisions that were repealed. The establishment of townships and their disestablishment as provided for in Chapter 1 of the Proclamation was in the hands of the Minister who could :

“(a) define and set apart any one or more townships for the occupation, residence and other reasonable requirements of Bantu;

(b) extend, curtail, redefine or otherwise modify any township;

(c) abolish any township or any portion of a township”.^[7]

The townships so established had an ethnic character and persons who did not belong to a particular ethnic group were not permitted to become residents of such townships.

[84]

Chapter 2 deals with the administration of townships, the designation of officers who must administer the township, namely the manager and the superintendent, who handles the allocation and occupation of sites in the townships, determining whether a person is a fit and proper person to reside in the township, the rent payable, lodgers’ permits, soliciting, slaughtering of stock, control of traffic leaving or entering the townships and many other administrative aspects.

[85]

As has already been noted, Chapter 3 deals with trading, but this is confined to trade in the townships with the written permission of the “Bantu Affairs Commissioner”. Schedule 6 of the interim Constitution enabled the Premier to make regulations in his or her province in respect of a fairly wide range of matters relating to businesses and business practices. In terms of both Parts A and B of schedule 4 of the Constitution, trade and trading regulations are entrusted to the provinces. Street trading is an exclusive provincial competence, in terms of Part B of schedule 5. In my view it is untenable that provinces could be entrusted with regulating trade, but be deprived of the power to amend the trading provisions in the Proclamation.

[86]

The Proclamation made statutory provision for the creation of so-called “grant rights”, which is a lesser form of ownership of immovable property. Chapter 9 deals with the establishment of deeds registries in the offices of Chief Bantu Affairs Commissioners. The purpose of the Proclamation was to grant blacks under the apartheid system title to property rights short of full ownership, by means of a deed of grant which Mogoeng J describes as a “peculiar equivalent to a title deed”. The Proclamation, however, created a simple, speedy and inexpensive procedure in terms whereof deeds of grant could be registered. No township registers needed to be opened and the involvement of surveyors was largely eliminated, according to regulation 3(2) of the Proclamation.[8]

[87]	I hold the view that this was a lesser form of land right than the traditional or conventional title deed because:

(a) the land was township land, held by the South African Development Trust;
(b) to qualify for a deed of grant one had to satisfy the manager and /or the superintendent that one was a fit and proper person to reside in the township;
(c) one graduated to the deed of grant through the permit-based occupation of land;
(d) one had to be “ethnically correct” to be issued with a deed of grant in a particular township;
(e) the deed of grant was registered in the deeds registry in the offices of the Chief Bantu Affairs Commissioner; and
(f) the deed of grant, as described also by Mogoeng J, is a “peculiar equivalent” to the title deed as we know it.

[88]	A glance at the titles of the other chapters of the Proclamation reveals the topics with which they dealt:

(i) Chapter 4 - General Sanitation;

(ii) Chapter 5 - Communal Halls;

(iii) Chapter 6 - Public Meetings and Assemblies of Bantu Persons;

(iv) Chapter 7 - Cemeteries; and

(v) Chapter 8 - Township Councils.

These clearly are matters which fall within the functional areas of schedules 4 and 5 and are therefore provincial competences.

[89]

To decide whether the North West Province had competence to repeal the impugned provisions of the Proclamation, it is necessary to consider the essential nature of the provisions contained in the regulations. Mogoeng J in his judgment attempted to carry out this analysis when he looked for “predominating features” in the said chapters. One must analyse Chapters 1, 2, 3 and 9 of the Proclamation to determine whether the regulations therein fall within the functional areas listed in schedules 4 or 5 of the Constitution.

[90]

The Western Cape Province and the Free State Province both agreed that there should be no confirmation, not even a partial confirmation, of the order of Mogoeng J. On behalf of the Western Cape Province it was submitted that the regulations in the Proclamation fall within two specific functional areas of concurrent provincial legislative competence in schedule 4 of the Constitution, namely housing and urban and rural development. The submissions made on behalf of the Free State Province were to similar effect, although they contended that numerous other functional areas listed in schedule 4 are also involved. In its written submissions, the Northern Province suggested a midway position, seeking a partial confirmation, submitting in this regard that the land tenure issues as contained in the Proclamation were national and not provincial competences.

[91]

In my view, the Proclamation had all to do with the administration and the control of black people and nothing to do really with land tenure, because up to the 1990's it was government policy that black people should not own land in South Africa. In the townships and homelands the form of land rights was generally subservient, permit-based or held in trust. The land was generally registered in the name of the South African Development Trust or as the property of the government. Some people had permission to occupy, others not; some had deeds of grant, others not. The administration of this land became inefficient and chaotic. In my view, the enactment of the Upgrading of Land Tenure Rights Act[9] was to ameliorate this state of affairs.

[92]

The manner of administering land in black areas created land insecurity and made it difficult for people to protect their land, whether from confiscation or from invasion. Sometimes people or communities who had lived for many decades on land, regarding themselves as owners, did not have their ownership reflected in the title to the land because of racially discriminatory legislation.

[93]

It is against this backdrop that one must consider the Proclamation. That it is a piece of obnoxious legislation not befitting a democratic society based on human dignity, equality and freedom admits of no doubt. This is acknowledged by all my colleagues. Goldstone, O’Regan and Sachs JJ hold the view that the repeal represents an invasion of land rights, weak and poor as they might be, and further hold that the repeal went quite beyond the legislative powers of the North West Province.

[94]

In my view it is clear, in any event, that the necessity to rid the statute books of a separate system of land occupation or weak ownership which is discriminatory and offensive, is a constitutionally mandated priority.1[0] The repeal by the North West Province is, in my view, consistent with the need to rid the country of discriminatory land laws. The Free State provincial legislature has already repealed the Proclamation.1[1]

[95]	The main argument advanced by the Northern Province, and reiterated by the other provinces, is that a distinction must be made between:

(a) Land tenure, relating to ownership of land, which is a national competency. Sections 25(6) and (7) of the Constitution, particularly when read in the context of the history of dispossession of rights to land, make it clear that the issue of land tenure is a national competence.

(b) Land use control which falls to be legislated on by the provinces either exclusively or concurrently:

(i) Schedule 5 areas of exclusive provincial legislative competence include provincial planning.
(ii) Schedule 4 areas of concurrent national and provincial competence include housing, regional planning and development, indigenous law and customary law, municipal planning, trading regulations, traditional leadership, and urban and rural development.

[96]

The primary function of the Proclamation was to regulate land-use control as part of provincial planning. The creation and regulation of land tenure rights was accordingly “incidental to”1[2] the achievement of this function. Accordingly, the North West Province correctly repealed the Proclamation as all the aspects dealt with in Chapters 1, 2, 3 and 9 thereof fall within provincial areas of competence.

[97]	In my view the Proclamation cannot stand. It is inconsistent with the values espoused in our Constitution.

[98]	I would accordingly decline to confirm any part of Mogoeng J’s order.

GOLDSTONE, O’REGAN AND SACHS JJ:

[99]

This case arose because an accessible form of land tenure coupled with a cheap and speedy method of deeds registration provided for in Proclamation 293 of 1962 (the Proclamation) was repealed by the North West legislature. We concur in large measure with the majority decision of Ngcobo J. We have one significant point of difference. In our view, not only was it incompetent for the provincial legislature to repeal the registration provisions contained in chapter 9 of the Proclamation, it was also beyond its powers to repeal the system of land tenure, established in chapters 2 and 3 of the Proclamation, to which the special registration provisions in chapter 9 apply. In our view, these aspects of the Proclamation, like chapter 9, were never assigned to the province because they are matters which in terms of section 126(3) of the interim Constitution are to be regulated at national level. Accordingly, just as the majority judgment finds that the registration process provided for in chapter 9 was not assigned because it falls to be dealt with at national level, so we believe that the provisions establishing this special form of tenure in chapters 2 and 3 of the Proclamation were not assigned either.

[100]

On 17 June 1994, acting under the provisions of section 235(8) of the interim Constitution,[1] the President assigned the administration of a substantial number of national laws, including the Proclamation, to the North West Province.[2] To the extent therefore that the Proclamation was assigned to the North West legislature it constitutes provincial legislation and the North West legislature is competent to repeal it. It is clear however that those provisions of the Proclamation which do not fall within the functional areas referred to in schedule 6 of the interim Constitution[3] were not assigned. Furthermore, even if the provisions fall within such functional areas, such provisions could not have been assigned if they concern matters which, in terms of section 126(3)(a) to (e) of the interim Constitution,[4] must be dealt with by national government.

[101]

Ngcobo J has eloquently described the contents of the Proclamation.[5] We agree with his analysis of the history of the Proclamation and its provisions. Our disagreement with him is on the narrow question of whether the provisions in chapter 2 and 3 of the Proclamation which establish the deed of grant tenure were assigned. Regulation 9 of chapter 2 provides the following:

“(1) 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.
(2) The Secretary on being satisfied that—

(a) a suitable site, which has not been reserved for some other purpose, is available;

(b) such site will be occupied by the applicant and his family;

(c) the applicant is a fit and proper person to reside in the township;

(d) the applicant is not otherwise debarred by these regulations from acquiring the site;

(e) adequate arrangements have been made for the payment of the purchase price of the site;

(f) a deed of sale substantially in the form set out in Schedule E to these regulations has been entered into,

may issue to such applicant a deed of grant in respect of such site and may impose in respect of such site such servitudes as he may deem fit. Such a deed of grant shall be substantially in the form set out in Schedule F to these regulations.

. . .”^[6]

Regulation 23(2) of chapter 2 makes it clear that the tenure afforded by the deed of grant is insecure. It provides that:

“The Minister may, upon such conditions as to the removal of improvements or the payment of compensation, or both, and in the case of an ownership unit in respect of which a mortgage bond is registered, after such prior notification to the mortgagee, as he may in his discretion approve, declare the deed of grant of an ownership unit forfeited and such unit shall thereupon revert to the Trust, free of all restrictions, endorsements or encumbrances—

(a) in the event of a breach by the grantee of any of the conditions of the deed of grant other than a condition relating to the payment of any fees, charges or rates;
(b) if any instalment of the purchase price of the unit remains unpaid for a period of three months from the date on which such instalment became payable;
(c) on the grantee failing to pay any sum for which he may be liable in terms of this chapter within two months of the date on which such sum became due and payable;
(d) if the grantee obtained such deed of grant by making a false, incorrect or misleading statement material to the issue thereof;
(e) if the grantee abandons or fails to occupy the site bona fide for residential purposes for a period in excess of twelve months after the date of first occupation of such site by such grantee unless he shall have obtained prior written permission from the Manager to absent himself in excess of the said period.”^[7]

It is plain from a reading of regulation 23(2) with regulation 9 that the deed of grant is an insecure form of tenure. Nevertheless, chapter 9, regulation 3 of the Proclamation provides for the registration of deeds of grant and for the registration of mortgage bonds against them.^[8] The majority have held that chapter 9 falls outside the terms of the assignment but regulation 9 and 23 of chapter 2 (and the equivalent provisions in chapter 3) do not. We disagree.

[102]

There is much to be said, in our view, for the proposition that the provisions in the Proclamation which regulate these deeds of grant are provisions regulating matters which fall outside schedule 6 of the interim Constitution. It is clear that “land tenure and registration” are not functional areas within the scope of schedule 6 as Mogoeng J observed.[9] We accept that regulating the allocation of sites for trading and residential purposes are matters which fall within the functional areas of local government and/or urban development. Similarly, we accept that establishing a township involves creating sites and selling them or leasing them to the public and even attaching specific conditions to title.1[0] However, the proposition that it is an integral part of local government or urban development to establish specific and limited forms of land tenure or procedures for their registration, seems much less certain. In our view, the functional area of urban development requires the process of land alienation and allocation within the framework of the land tenure and registration system provided nationally. We find it hard to accept that establishing novel forms of land tenure or registration is an aspect of the functional area concerned with local government or that concerned with urban development.

[103]

It is not necessary for us to decide that question in this judgment, however. For it is our firm view that even if these specific provisions do fall within a functional area listed in schedule 6, they are nevertheless matters which require regulation at national level and according to uniform norms. One of the clear purposes, and indeed one of the most devastating effects of apartheid policy, was to deny African people access to land. Where access to land was afforded, tenure was generally precarious. It is not surprising then that the Constitution recognises this deep injustice. Section 25 of the Constitution (the property rights clause) provides as follows:

“. . .

(5) 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.
(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

. . .”

It is thus clear that the national legislature is placed under an obligation to provide redress through legislative means for the discrimination which happened in the past.^1[1] Furthermore, and of particular relevance in this case, it is obliged to seek to transform legally insecure forms of tenure into legally secure tenure. The clear corollary, in our view, is that section 25(6) does not contemplate that insecure forms of land tenure arising from discriminatory legislation in the past may be abolished or reformed by any legislature other than Parliament.

[104]

It is logical that section 25(6) of the Constitution imposes the obligation of land tenure reform on the national legislature. The myriad apartheid land laws, all characterised by pedantic detail, created a labyrinthine system. The chaotic nature of this system was further compounded by the creation of the homelands, each with its own legislative provisions. The geographical location of those homelands has relatively little connection with current provincial lines. Some provinces have within their boundaries parts of two or more homelands. The complex legislative pattern that emerges renders the task of land reform a task that only the national legislature can undertake. The process of land registration is already a matter unequivocally dealt with in national legislation, namely the Deeds Registries Act (the Deeds Act).1[2] The regulation of land tenure and registration, including land reform, are matters which require uniform regulation across the Republic and which therefore cannot be effectively regulated by provinces as contemplated by section 126(3)(a) to (e) of the interim Constitution.

[105]

The deeds of grant introduced by the Proclamation are insecure forms of land tenure. That is not surprising. As part of apartheid policy, a range of insecure forms of land tenure were created for Africans. In 1991, during the period of transition from apartheid to democracy, Parliament passed the Upgrading of Land Tenure Rights Act (the Upgrading Act).1[3] The express purpose of this legislation, as its name suggests, was to provide for the conversion into full ownership of the tenuous land rights which had been granted during the apartheid era to Africans. One of the forms of tenure targeted for upgrading is the deed of grant established by the Proclamation. When the Upgrading Act was introduced, it was not applicable in Bophuthatswana1[4] but it was extended to Bophuthatswana on 28 September 1998 by the Land Affairs General Amendment Act,1[5] which made provisions of the Upgrading Act applicable throughout South Africa. Deeds of grant1[6] in some but not all townships were converted into ownership in terms of the provisions of section 2(1) of the Upgrading Act. Section 6(1) of the Upgrading Act provides, in effect, that the land tenure and registration provisions of the Proclamation will continue to apply in townships in respect of which no general plan has been approved or in respect of which a township register has not been opened in a deeds registry established under the Deeds Act. It is clear that in this case, the relevant township in the North West province, Meriteng, is not a township in respect of which a township register has been opened. At this stage, therefore, the provisions of the Proclamation would, but for their repeal, still apply there.

[106]

Moreover, in terms of the Upgrading Act the Proclamation continues to provide a method of acquisition of tenure which is cheap and accessible in those townships to which it applies and which may be upgraded to freehold. Read with the Upgrading Act, therefore, the tenure and registration provisions of the Proclamation constitute a cheap and straightforward mechanism for providing access to land to people in townships which may in due course become freehold tenure. We cannot agree therefore with the view expressed by Ngcobo J where he states at paragraph 9 that it is implicit within the Upgrading Act that limited forms of title were to be phased out and that only those who already had such titles would be permitted to upgrade them. If that were indeed the purpose of the Upgrading Act, it would not have contemplated that limited forms of title in terms of the Proclamation (and other similar measures) would continue to be granted and then upgraded as cadastral requirements for upgrading were met. In our view, the Upgrading Act is not only a measure which transforms existing insecure title to freehold but is one which permits the continued granting of those forms and their upgrading. It is a measure which, in the language of section 25(5) of the Constitution, “foster[s] . . . access to land” by South African citizens in disadvantaged communities.

[107]

In our view, therefore, matters relating to land tenure and registration in the context of land reform are matters which in terms of section 126(3)(a) to (e) of the interim Constitution are to be dealt with by national government. The provisions of the Proclamation which provide for an insecure form of land tenure therefore, together with the land registration provisions governing it, are matters which in our view were not capable of assignment to the provinces because they fall within the terms of section 126(3)(a) to (e) of the interim Constitution.

[108]

In our view, therefore, the North West province did not have the competence to repeal the provisions of the Proclamation relating to land tenure because those provisions were not (and could not have been) assigned to the province to administer in terms of section 235 of the interim Constitution. In the circumstances, it follows that Mogoeng J was correct (albeit for somewhat different reasons) in holding that the repeal of the land tenure rights contained in Chapters 1, 2, 3 and 9 of the Proclamation was beyond the powers of the North West legislature. In our view, therefore, the order granted by Mogoeng J should in substance be confirmed.

[109]

We make two final observations. The first is that the difference in practice between our judgment and that of the majority may well be narrow. Both judgments accept that rights already acquired under the former system of land tenure have not themselves been abolished and that they can be transferred, bequeathed and used for mortgage purposes. Moreover, because it is common cause between us that the repeal of Chapter 9 has to be invalidated, the accessible system of registration of such acquired rights as provided by that chapter would still exist. However, the effect of the majority judgment will mean that such rights may not be granted in future. The speedy and accessible form of registration coupled with the deed of grant tenure is no longer available in the North West. For the reasons given above, we think this result is in conflict with the constitutional scheme in terms of which land tenure reform and the manner in which it is achieved is a matter reserved for national government.

[110]

The second is that jurisprudence of the transitional era necessarily involves a measure of contradiction. Fundamental fairness at times requires that aspects of the old survive immediate obliteration and are kept alive pending their replacement by appropriate forms of the new. In the Mpumalanga education case1[7] this Court said:

“This case highlights the interaction between two constitutional imperatives, both indispensable in this period of transition. The first is the need to eradicate patterns of racial discrimination and to address the consequences of past discrimination which persist in our society, and the second is the obligation of procedural fairness imposed upon the government. Both principles are based on fairness, the first on fairness of goals, or substantive and remedial fairness, and the second on fairness in action, or procedural fairness. A characteristic of our transition has been the common understanding that both need to be honoured.”

The result in that case was to perpetuate, during a short transitional period, the privileges of the advantaged. In the present matter, the meritorious desire manifested in the majority judgment for a clean sweep of the past in the name of modernisation and de-racialisation has an unintended and ironic consequence. It deprives underprivileged communities from gaining access to a cheap form of land tenure which in terms of national legislation can be upgraded to freehold. The Constitution requires government to foster access to land. The repeal of the Proclamation by the North West province, in one sense at least, does the reverse.

For the Western Cape Provincial Government: AM Breitenbach instructed by the State
Attorney, Cape Town.

For the Free State Provincial Government: WH Olivier SC instructed by the State Attorney, Bloemfontein.

Amicus Curiae: P Kennedy appointed by the
Johannesburg Bar Council.

^[1] Government Gazette 373, 16 November 1962.
^[2] 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. The original short titles given to the statutes will be used throughout this judgment.
^[3] The first was the Natives Land Act, 27 of 1913.
^[4] Regulation 23(1)(a)(iv) of the Proclamation.
^[5] Chapter 9 of the Proclamation.
^[6] To the extent relevant to this matter, Chapter 1 of the Proclamation makes provision for the establishment of the townships. Chapter 2 provides for the demarcation of sites in the townships for various categories of occupation and regulates their occupation, sale or lease. It makes provision also for the issue of deeds of grant and certificates of occupation, as well as for their assignment or transfer. Chapter 3 relates to trading sites and the control of trading in the townships. Chapter 9 establishes special deeds registries in the office of every “Chief Bantu Affairs Commissioner” and for the registration therein of rights granted under the Proclamation.
^[7] Para 1.
^[8] DVB Behuising (Pty) Ltd v North West Provincial Government and Another, Bophuthatswana High Court, Case No 308/99, 27 May 1999, as yet unreported.
^[9] Section 172(2)(a) provides as follows:

“The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.”

^[10] Under the 1913 and 1936 Land Acts. See above para 2.
^[11] In terms of section 18 of the Bantu Homelands Constitution Act, 21 of 1971:

“. . . all laws which immediately prior to the constitution of the first executive council for an area in terms of section 5 were in force in that area or any portion thereof, shall continue in force until repealed or amended by the competent authority.”

In terms of section 2 of the Status of Bophuthatswana Act, any rule of law in force in Bophuthatswana prior to “independence”, was to “continue in force as a rule of law of Bophuthatswana until repealed” or amended.
^[12] Schedule 7 to the interim Constitution.
^[13] See section 124 of the interim Constitution and schedule 1 thereto.
^[14] The former “independent homelands” of Transkei, Bophuthatswana, Venda and Ciskei.
^[15] Which inserted section 25A in the Upgrading Act.
^[16] Section 235(8) is set out in full below at para 28.
^[17] Proclamation R110 dated 17 June 1994.
^[18] See above para 8.
^[19] Schedule 6 of the interim Constitution set out the functional areas of competence of the provinces. These are set out below at para 32.
^[20] Section 237(3) of the interim Constitution provided that:

“(a) The President may, subject to subsection (2)(a), by proclamation in the Gazette take such steps as he or she considers necessary in order to achieve the aim mentioned in subsection (1).
(b) Without derogating from the generality of paragraph (a), the steps referred to in that paragraph may include -

(i) the amendment, repeal or replacement of any law regulating the establishment, functions and other matters relating to an institution referred to in section 236(1), or of any law referred to in section 236(2), or of any law which deals with any of the aforegoing matters in a consequential manner: Provided that if a law referred to in section 236(2) is repealed, provision shall be made for the application of any law of general application regulating the employment of persons or any class of persons in the employment of the state, to the persons or class of persons affected by such repeal;

. . .”

^[21] Proclamation R9, item 2(a), amendment 1(a).
^[22] Id, amendments 2(a) and 2(b).
^[23] Id, amendment 3(a)
^[24] Id, amendment 3(b).
^[25] Amendment 2(b) of item 2(a) inserted the following subregulation into the Deeds Registries Act:

“(2A) Notwithstanding the provisions of subregulation (1), save as is otherwise provided in these regulations or the context otherwise indicates, the provisions of the Deeds Registries Act, 1937 (Act No. 47 of 1937), shall, in so far as such provisions can be so applied, apply mutatis mutandis in relation to all documents registered or filed or intended to be registered or filed in a deeds registry in terms of these regulations.”

^[26] In terms of amendment 3(a) of item 2(a), which replaced subregulation (1) of the Deeds Registries Act with the following:

“(1) All documents relating to immovable property in any township referred to in these regulations shall be registered in a deeds registry.”

^[27] Proclamation R9, item 2(a), amendment 10(a).
^[28] Id, amendments 2(b) and 3(a).
^[29] Proclamation R9, item 1, amendment 1(3)(a).
^[30] Government Gazette 17809, GN 329, 28 February 1997.
^[31] Section 1A, which deals with the discontinuance of special registries, reads, in relevant part, as follows:

“(3) (a) A rationalised registry shall be discontinued with effect from a date determined in respect of that registry by the Minister by notice in the Government Gazette.

(b) Different dates may be so determined in respect of the different deeds registries.

(4) The Minister may with effect from the date of commencement of Proclamation No. R.9 of 1997, take the necessary steps to transfer the records, equipment and any other property of a rationalised registry to the respective receiving registry.
(5) Any official in the employ of a rationalised registry shall with effect from the date contemplated in subsection (3) be transferred to the receiving registry and shall be suitably taken up in the establishment of the receiving deeds office: Provided that the appointment of a person as a registrar or officer in charge of a registry of a rationalised registry shall lapse on the date contemplated in subsection (3).
(6) All records of a rationalised registry shall with effect from the date contemplated in subsection (3) be transferred to the receiving registry.”

^[32] Section 123 of the Constitution provides that:

“A Bill assented to and signed by the Premier of a province becomes a provincial Act, must be published promptly and takes effect when published or on a date determined in terms of the Act.”

^[33] See above para 8.
^[34] With the exception of sections 3, 19 and 20, the provisions of which are not relevant to this matter.
^[35] Those sections read, so far as they are now relevant, as follows:

“(1) Any deed of grant in terms of the Regulations for the Administration and Control of Townships in Black Areas, 1962 (Proclamation No. R.293 of 1962), issued in respect of any erf or piece of land -

(a) immediately prior to the commencement of this Act; or

(b) after the commencement of this Act in pursuance of the provisions of subsection (2),

shall, subject to any applicable national legislation, be converted into ownership in accordance with the relevant provisions of the Upgrading of Land Tenure Rights Act, 1991 (Act No. 112 of 1991) 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 deed of grant rights in which that tenure right was registered, was the holder of that land tenure right immediately before the conversion.
(2) Any application for a deed of grant in terms of the Regulations for the Administration and Control of Townships in Black Areas, 1962 (Proclamation no. R.293 [of] 1962) signed by the applicant immediately prior to the commencement of this Act and not dealt with at the commencement of this Act, shall be proceeded and dealt with as if this Act had not been passed”.

^[36] At 7 of the judgment.
^[37] Id
^[38] Id at 8.
^[39] Id at 9.
^[40] See below para 27.
^[41] Judgment at 9-10. See also above para 11.
^[42] Natal, the Transvaal, the Cape of Good Hope and the Orange Free State. These are the names used in the 1983 Constitution (Act 110 of 1983).
^[43] Lebowa, Gazankulu, Qwaqwa, kwaZulu, KwaNdebele and KaNgwane. These are the names as given in the establishment proclamations (R225 of 1972, R15 of 1973, R203 of 1974, R11 of 1977, R60 of 1981 and 148 of 1984 respectively).
^[44] Transkei, Bophuthatswana, Venda and Ciskei. These are the names used in the establishment statutes (Act 100 of 1976; Act 89 of 1977; Act 107 of 1979; and Act 110 of 1981 respectively).
^[45] Section 239 defines “provincial legislation” as follows:

“‘provincial legislation’ includes -

(a) subordinate legislation made in terms of a provincial Act; and
(b) legislation that was in force when the Constitution took effect and that is administered by a provincial government.”

^[46] See below para 28.
^[47] Subsection 9 is set out in full at n 50 below.
^[48] Government Gazette 15813, 17 June 1994.
^[49] [1995] ZACC 8; 1995 (4) SA 877 (CC); 1995 (10) BCLR 1289 (CC) at para 84.

^[50] “(9)(a) If for any reason a provincial government is unable to assume responsibility within 14 days after the election of its Premier, for the administration of a law referred to in subsection (6)(b), the President shall by proclamation in the Gazette assign the administration of such law to a special administrator or other appropriate authority within the jurisdiction of the national government, either generally or to the extent specified in the proclamation, until that provincial government is able to assume the said responsibility.
(b) Subsection [sic] (8)(b) and (d) shall mutatis mutandis apply in respect of an assignment under paragraph (a) of this subsection.”

^[51] Executive Council Western Cape, above n 49, per Chaskalson P at para 79, and per Kriegler J at paras 162 and 174-5.
^[52] Id per Chaskalson P at paras 76-9, and per Kriegler J at para 162.
^[53] In certain jurisdictions the subject matter of a statute is referred to as its “pith and substance”. Indian authors suggest that the doctrine of “pith and substance” is one of the interpretive tools which is invoked whenever “a law dealing with a subject in one list is also touching on a subject in another list” (Singh V.N. Shukla’s Constitution of India 9 ed (Eastern Book Company, Lucknow 1994) at 656-9. See also Seervai Constitutional Law of India (vol 1) 4 ed (N.M. Tripathi Private Ltd, Bombay 1991) at 269-75). The authority for this view is to be found in Subrahmanyan Chettiar v Muttuswami Goundan AIR 1941 FC 47 at 51 (quoted with approval in Prafulla Kumar Mukherjee and others v Bank of Commerce Ltd., Khulna AIR 1947 PC 60 at 65) where the Federal Court said:

“It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved . . . whereby the impugned statute is examined to ascertain its ‘pith and substance’, or its ‘true nature and character’, for the purpose of determining whether it is legislation with respect to matters in this list or in that”.

In Australia, Latham CJ in Bank of New South Wales and Others v The Commonwealth and Others (1948) 76 CLR 1 at 185, held that the phrase “pith and substance” was not of particular use except insofar as it was used “as representing ‘primary object and effect’ and incidental application”. He expressed the view that “there is no difference between asking: ‘What is the pith and substance of a statute?’ and asking: ‘What is its true nature and character?’” In Canada, in characterizing the “matter” of a challenged law for the purpose of determining whether it is within its competence, the courts usually describe it as “the pith and substance” of the law. See Hogg Constitutional Law of Canada 3 ed (Carswell, Ontario 1992) p 377 para 15.5.

The doctrine of “pith and substance” as used in other jurisdictions is intended to refer to the content or subject matter of the legislation, that is, its true nature and character or its substance. It is usefully invoked to characterize legislation which, though purporting to deal with a matter falling within the competence of the legislature enacting the legislation, also deals with a matter which falls outside such competence, for the purposes of determining whether it falls within the competence of the legislature which has enacted the legislation in question.
^[54] [1996] ZACC 15; 1996 (4) SA 653 (CC); 1996 (7) BCLR 903 (CC) at para 19.
^[55] See, for example, Ex parte President of the Republic of South Africa In re: Constitutionality of the Liquor Bill [1999] ZACC 15; 2000 (1) BCLR 1 (CC) at para 62.
^[56] Section 1.
^[57] Section 25.
^[58] Ynuico Ltd v Minister of Trade and Industry and Others [1996] ZACC 12; 1996 (3) SA 989 (CC); 1996 (6) BCLR 798 (CC) at para 7.
^[59] Section 5.
^[60] See generally Platzky and Walker The Surplus People: Forced Removals in South Africa (Ravan Press, Johannesburg,1985) at 128-400; A. Higginbotham Jr, F. Higginbotham and Ngcobo “De Jure Housing Segregation in the United States and South Africa: The Difficult Pursuit for Racial Justice” 1990 University of Illinois Law Review (4) 763 at n 66.
^[61] See the remarks on the provisions of the Group Areas Act, 77 of 1957 in Minister of the Interior v Lockhat and Others 1961 (2) SA 587 (A) at 602D-E.
^[62] Higginbotham Jr et al, above n 60, at 779 n 62.
^[63] This was the “full logical conclusion” of the policy of apartheid, as one Minister put it:

“If [the] policy is taken to its full logical conclusion as far as the [African] people are concerned there will be not one [African] man with South African citizenship . . . Every [African] man in South Africa will eventually be accommodated in some independent new state in this honorable way and there will no longer be a moral obligation on . . . Parliament to accommodate [Africans] politically.” Dr CP Mulder, quoted in Dugard “Denationalization: Apartheid’s Ultimate Plan” Africa Report, July-August 1983, at 44.

^[64] Davenport and Hunt (eds) The Right to the Land (David Philip, Cape Town 1974) 70 at para 108, quoting from Union Government 7 - 1919, at 16-17.
^[65] Section 2(1)(a).
^[66] Section 26(1) required a local authority to:

“render to the Minister once in every alternate calender year . . . a return showing -

(a) the number and sexes of natives within the urban area and their places of origin;

(b) the number and sexes of natives employed therein;

(c) the occupations in which they are employed and the number and sexes employed in each such occupation;

(d) the number and sexes of natives which, in the opinion of the urban local authority, is necessary to supply the reasonable labour requirements of the urban area;

(e) the number and sexes of natives within the urban area which the urban local authority considers not necessary for the purpose mentioned in paragraph (d) and desires to have removed;

. . .”

Section 28 made provision for the removal of “redundant Natives” from the urban areas (See section 28 (1)).
^[67] Section 29(2)(b).
^[68] 1979 (3) SA 820 (N) at 820H-821E.
^[69] Proclamation 362 of 1948 was published in the Government Gazette in December 1948, to provide “Regulations for the administration and control of native townships on land owned by the South African Native Trust”. It expressed the Government aim “that suitable forms of local authority should be established for the control of the said townships by the native inhabitants thereof” but noted that until such time the townships should be governed by these “interim regulations”. It set up most of the regulations which are contained in Proclamation R293 (amongst other things, health, structures, occupation, inspection), but did not provide for deeds of grant. Proclamation 23 of 1953 duplicated the provisions of Proclamation 362 but was concerned only with the creation of the township of Umlazi. Proclamation 98 of 1953 (as amended by 258 of 1954 and 260 of 1955), gazetted in May 1953, created regulations for the control of rural villages on Trust land, on the basis that “it is expedient and in the interest of soil economy to establish villages for the closer settlement of Bantu persons residing in scattered kraals”. The proclamation entrusted the management of these villages to the Native Commissioner, who was authorised to make the various necessary administrative regulations (concerning, amongst other things, sanitation, the keeping of animals, establishment, the allotment of plots, and control of burial places). It also created “Bantu village councils”. Proclamation 227 of 1955 (as amended by 113 of 1958) introduced the title of “deed of grant” for both townships and rural villages, while Proclamation 261 of 1955 gave the Chief Native Commissioner all the powers and duties vested in Registrars of Deeds in relation to property in those townships and rural villages.

Proclamation 258 of 1956 set up regulations for the establishment and control of cemeteries in both townships and rural villages.
^[70] See the preamble of Proclamation 362 of 1948.

^[71] “6(1) All the powers and duties hitherto vested in or imposed upon registrars of deeds under the law relating to the registration of deeds, in so far as may relate to immovable property owned by Natives and situate within any such area included in the Schedule to the Natives Land Act, 1913 (Act No. 27 of 1913) or any amendment thereof, as may be defined by the Governor-General by proclamation in the Gazette shall, upon the issue of such proclamation, devolve upon the chief native commissioner of the area within which such immovable property is situate and all documents relating to any such immovable property shall thereupon be transferred from any existing deeds registry to the custody of the chief native commissioner concerned: Provided that any registrar of deeds may instead of so transferring any document filed in his registry furnish the chief native commissioner concerned with a copy thereof certified under his hand, which copy shall thereafter be as valid for all purposes as the original document.
(2) The Governor-General may make all such regulations as he may deem expedient for giving effect to the provisions of sub-section (1), and may in such regulations prescribe the fees to be charged by chief native commissioners in the exercise of any function under that sub-section.”

This section was later amended to change the terms used to describe Africans and the chief native commissioner. See above n 2.

^[72] “25(1) From and after the commencement of this Act, any law then in force or subsequently coming into force within the areas included in the Schedule to the Natives Land Act, 1913 (Act No. 27 of 1913), or any amendment thereof, or such areas as may by resolution of both Houses of Parliament be designated as native areas for the purposes of this section, may be repealed or amended, and new laws applicable to the said areas may be made, amended and repealed by the Governor-General by proclamation in the Gazette.
(2) Save where delay would, in the opinion of the Governor-General, be prejudicial to the public interest, no such proclamation shall be issued unless a draft of its provisions or of its principal provisions shall have been published in the Gazette at least one month previously; but the omission of such publication shall not invalidate any such proclamation.
(3) Nothing in this Act contained shall affect the powers vested in the Governor-General under the Transkeian Annexation Act, 1877 (Act No. 38 of 1877), the Walfish Bay and St. John’s River Territories Annexation Act, 1884 (Act No. 35 of 1884) so far as it relates to the St. John’s River Territory; the Tembuland Annexation Act, 1885 (Act No. 3 of 1885), and the Transkeian Territories, Tembuland and Pondoland Laws Act, 1897 (Act No. 29 of 1897) of the Cape of Good Hope.”
^[73] “21(1) All land of which the Trust is the registered owner or which has been transferred by the Trust to a native shall be deemed to be native areas for the purposes of sub-section (1) of section twenty-five of the Native Administration Act, 1927 (Act No. 38 of 1927), and of section five of the Native Affairs Act, 1920 (Act No. 23 of 1920), or any amendment thereof.
(2) The provisions of section six of the Native Administration Act, 1927 (Act No. 38 of 1927), and any amendment thereof shall apply to all land the title to which has been derived by any native from the Trust.”

^[74] This much is apparent from the parliamentary statements made by the then Minister of Native Affairs,
Dr HF Verwoerd on 13 June 1952 who, in opposition to the establishment of married quarters at the mines, said:

“While we are already establishing Native towns in the vicinity of the big cities to provide housing for the Natives it will mean that in addition a large number of black spots will be spread out throughout that whole Free State mining area. Now we must bear in mind that when the mines stop working one day that large number of towns will remain there spread out over that area . . . The Department of Native Affairs has no jurisdiction over those Native towns on mining land. We do realize that the mines need a certain limited number of experienced married Natives such as boss boys but our view is that there should be married quarters only for those who are needed on the mines for night duties or for emergency duties. The others who are needed there but who need not live on the spot because of the nature of their work should find their accommodation in the neighbouring locations or in Native areas where locations may be established.”
(Hansard, Debates of the House of Assembly, vol 80, 1952)

It is thus no coincidence that Soweto is near Johannesburg, Katlehong near Germiston, Umlazi near Durban, Mdantsane near East London and Gugulethu near Cape Town, to name but a few.
^[75] This was in terms of section 18 of the Bantu Homeland Act - see above n 11. It appears from Proclamation R9 that all the homelands inherited the Proclamation (see items 2(a) to (j) of schedule 1 to Proclamation R9).
^[76] See, for example, in Bophuthatswana, where it was amended by the Townships Regulations Amendment Act, 21 of 1981, and the Townships Regulations Amendment Act, 4 of 1982.
^[77] Proclamation No. R293 of 1962, as amended by Proclamations No. R211 of 1969, R161 of 1970, R264 of 1970, R222 of 1971, R150 of 1976, R34 of 1977, R178 of 1978, R200 of 1978, R197 of 1979, R153 of 1983 and R150 of 1986.
^[78] Regulation 4(1) of Chapter 1. It is relevant to note that the language used in this regulation is similar to that used in section 2(1)(a) of the Native (Urban Areas) Consolidation Act of 1945.
^[79] The Liquor Bill case above n 55 at para 59.
^[80] 1979 (2) SA 922 (A) at 931A-B.
^[81] Chapter 1, regulations 4(1) and 12.
^[82] Id, regulation 5.
^[83] Id, regulation 6.
^[84] Id, regulation 9.
^[85] Chapter 2, regulation 1.
^[86] Id, regulation 2.
^[87] Id, regulation 3.
^[88] Id, regulation 4.
^[89] Id, regulation 6.
^[90] Id, regulation 7.
^[91] Id, regulation 8.
^[92] Id, regulation 9.
^[93] Id, regulation 10.
^[94] Id, regulation 11.
^[95] Id, regulation 13.
^[96] Id, regulation 12.
^[97] Id, regulation 14.
^[98] Id, regulation 15.
^[99] Id, regulation 16.
^[100] Id, regulations 18 and 19.
^[101] Id, regulation 20.
^[102] Id, regulation 21.
^[103] Id, regulations 26, 27, 28, 30, 31 and 32.
^[104] Id, regulations 29, 33, 34 and 35.
^[105] Id, regulation 36, 37 and 38.
^[106] Id, regulations 39, 40, 41, 42, 43 and 45.
^[107] Id, regulations 46, 47 and 48.
^[108] Id, regulation 50.
^[109] Chapter 3, regulation 4.
^[110] Chapter 9, regulation 1.
^[111] Id, regulation 3.
^[112] Above n 80 at 931H.
^[113] The Proclamation had a purpose that was fundamental to the apartheid plan. As its title openly declared, it contained “Regulations for the Administration and Control of Townships in Bantu Areas”. Indeed an analysis of the regulations contained in the Proclamation indicates how complete and thorough this control was. It controlled who might enter, remain and acquire rights in the townships. Only a “fit and proper person” could purchase a home in the township, and that home had to be occupied “by the Applicant and his family”. It was an offence to remain in the township unless one was an occupier of a house in a township or to allow someone who was not an occupier to remain in the township. Particulars of family members were to be furnished to the township authorities including any change in the marital status. Failure to do so was an offence. If you failed to occupy your house for more than two months, in the case of a rented house, or for more than twelve months, in the case of a purchased house, you could be evicted from your house. If you failed to pay rent, the superintendent, a junior officer, could evict you without a court order and dispose of your property to recover any sum due to the township authorities. You could not dispose of your rights in the house to anyone - it had to be someone approved by the authorities. If you wanted to carry out any extensions to your house you could not do so without permission and you had also to indicate why you needed more rooms.
^[114] See above n 113.
^[115] At paras 56 and 57.
^[116] See above para 11.
^[117] Above para 12.
^[118] See above para 11.
^[119] See Mahomed NO v Union Government 1911 AD 1 at 8, where the court said:

“Now, the principle that (in the absence of express provision to the contrary) no Statute is presumed to operate retrospectively is one recognised by the civil law as well as by the law of England. The law-giver is presumed to legislate only for the future; and therefore a Statute which repeals another is considered not to interfere with vested rights under that other, unless it does so in clear terms.”

^[120] Section 12(2) reads as follows:

“Where a law repeals any other law, then unless the contrary intention appears, the repeal shall not -

(a) . . . .
(b) affect the previous operation of any law so repealed or anything duly done or suffered under the law so repealed; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed;

. . .”

^[121] See above para 12.
^[122] Section 2(5) of Act 7 provides:

“All transitional councils shall, within their areas of jurisdiction, exercise all the powers and perform all the duties and functions of a local authority in terms of the laws mentioned in the first column of Schedule 3 to the extent mentioned in the second column of Schedule 3.”

Schedule 3, which lists applicable laws and the extent of the application of such laws as provided for in section 2(5), provides that, apart from sections 3(5), 9(2) and (3), 12(2A) and (3), 19(6A) and (7), and 26(2) and (3), the whole of the provisions of the Less Formal Township Establishment Act are applicable.
^[123] The administration of the Less Formal Township Establishment Act was assigned by the President to the provinces on 31 October 1994 under Proclamation R159 (Government Gazette 16049, 31 October 1994). At the same time the President made the provisions of this statute applicable in the national territory of the Republic.
^[124] Section 3(5)(e).
^[125] Section 9(1).
^[126] Section 19(5)(a).
^[127] Section 63.
^[1] Act 27 of 1913, subsequently called the Black Land Act of 1913.
^[2] Act 18 of 1936, now called the Development Trust and Land Act.
^[3] Act 25 of 1945.
^[4] Act 41 of 1950.
^[5] Act 19 of 1954.
^[6] Section 235(8)(a) provides that :

“The President may, and shall if so requested by the Premier of a province, and provided the province has the administrative capacity to exercise and perform the powers and functions in question, by proclamation in the Gazette assign, within the framework of section 126, the administration of a law referred to in subsection (6)(b) to a competent authority within the jurisdiction of the government of a province, either generally or to the extent specified in the proclamation.”

^[7] Regulation 4(1) of the Proclamation.
^[8] Regulation 3(2) provides:

“Notwithstanding the provisions of subregulation (1), the provisions of the Land Survey Act, 1927 (Act 9 of 1927), shall not apply to the survey of land granted under these regulations and the provisions of the Deeds Registries Act, 1937 (Act 47 of 1937), shall not apply to the registration of any deeds in respect of any such land.”

^[9] Act 112 of 1991.
^1[0] Section 25(5) of 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.”

^[1]1 Townships Ordinance Amendment Act, 10 of 1998.
^1[2] As contemplated by section 144 of the Constitution.
^[1] Section 235(8)(a) provides that:

“The President may, and shall if so requested by the Premier of a province, and provided the province has the administrative capacity to exercise and perform the powers and functions in question, by proclamation in the Gazette assign, within the framework of section 126, the administration of a law referred to in subsection (6)(b) to a competent authority within the jurisdiction of the government of a province, either generally or to the extent specified in the proclamation.”

^[2] The relevant terms of the assignment are set out in para 27 of Ngcobo J’s judgment. The assignment was published as Proclamation No. 110, dated 17 June 1994.
^[3] The text of schedule 6 is set out in full in para 32 of Ngcobo J’s judgment.
^[4] These provisions are set out in full in para 31 of Ngcobo J’s judgment.
^[5] In para 48 Ngcobo J provides an overview of the Proclamation; in para 49 he describes the preamble to the Proclamation; in para 52 he describes chapter 1; in para 53 he describes chapter 2; and in para 54 he describes chapters 3 and 9 briefly. The remaining chapters provided for the following matters: sanitation (chapter 4); communal halls (chapter 5); public meetings (chapter 6); cemeteries (chapter 7) and township councils (chapter 8). The only provisions giving rise to disagreement in this case are provisions in chapter 2 (township administration) and 3 (trading).
^[6] An equivalent provision regulating deeds of grant in relation to sites for trading purposes is to be found in chapter 3, regulation 4.
^[7] The equivalent provision relating to trading sites is to be found in chapter 3, regulation 21(2).
^[8] See also chapter 9, regulation 8.
^[9] See page 9 of the typescript judgment.
^1[0] See Ngcobo J’s judgment at para 56 and Broadacres Investments Ltd v Hart 1979 (2) SA 922 (A) at 931H.
^[1]1 Although section 25 is not a provision of the interim Constitution which determines which provisions of the Proclamation were assigned in the present case but a provision of the 1996 Constitution, it is in our view nevertheless relevant to determining the proper ambit of that assignment. Constitutional Principle XVIII.2 (contained in schedule 4 to the interim Constitution) stated that provincial powers under the 1996 Constitution could not be “substantially less than or substantially inferior to” the powers under the interim Constitution. In our view section 25 elaborates in express terms what was implicit in the interim Constitution. In neither Constitution was land tenure allocated to the provinces. Section 25 provides expressly that land tenure, in so far as it is concerned with equitable access to land, is a matter reserved for national government. There is no reason to suggest that the position under the interim Constitution was any different.
^1[2] Act 47 of 1937.
^1[3] Act 112 of 1991.
^1[4] The Upgrading Act was also not applicable in the other former “independent homelands” — Transkei, Venda and Ciskei.
^1[5] Act 61 of 1998, which inserted section 25A in the Upgrading Act.
^1[6] Which are included in the definition of “land tenure right” in section 1 of the Upgrading Act which reads as follows:

“‘land tenure right’ means any leasehold, deed of grant, quitrent or any other right to the occupation of land created by or under any law . . .”.

^1[7] Premier, Mpumalanga, and Another v Executive Committee, Association of State-Aided Schools, Eastern Transvaal [1998] ZACC 20; 1999 (2) SA 91 (CC); 1999 (2) BCLR 151 (CC) at para 1.