The applicants, trustees of the Teba Property Trust, held a permission to occupy land in Sterkspruit, formerly part of the Transkei homeland. The Upgrading of Land Tenure Rights Act 112 of 1991 was enacted to convert insecure apartheid-era land tenure rights into ownership but initially applied only to the old South Africa, excluding TBVC states. In 1998, the Land Affairs General Amendment Act 61 of 1998 extended the Upgrading Act nationally but expressly excluded sections 3, 19 and 20. As a result, holders of certain tenure rights in former homelands, including rights governed by section 3, could not convert their rights into ownership. After Senqu Municipality resisted transferring the land, the Trust challenged the constitutionality of section 1 of the Amendment Act and section 25A of the Upgrading Act, arguing that the exclusion of section 3 violated the equality clause (section 9) and amounted to an arbitrary deprivation of property (section 25) of the Constitution. The High Court declared the provisions unconstitutional, and the matter came before the Constitutional Court for confirmation.
The declaration of invalidity made by the High Court was confirmed. Section 1 of the Land Affairs General Amendment Act 61 of 1998 and section 25A of the Upgrading of Land Tenure Rights Act 112 of 1991 were declared unconstitutional and invalid to the extent that they excluded the application of section 3 of the Upgrading Act nationwide. Section 25A was ordered to be read as if it made no reference to section 3. Senqu Municipality and the Minister of Rural Development and Land Reform were ordered, jointly and severally, to pay the applicants’ costs, including the costs of two counsel.
The case is significant for affirming that post-apartheid legislation may not perpetuate homeland-based differentiation that denies equal protection and benefit of the law. It strengthens constitutional equality jurisprudence by holding that irrational legislative exclusions in land reform measures are unconstitutional. The judgment advances land reform by ensuring that victims of apartheid in former homelands are not denied statutory mechanisms to upgrade insecure tenure rights solely because of historical geography.