DVB Behuising (Pty) Limited v North West Provincial Government and Another (Western Cape Provincial Government and Others Intervening)

DVB Behuising (Pty) Limited (DVB), a private commercial company selling houses in townships established under Proclamation R293 of 1962, challenged the constitutionality of section 6 of the North West Local Government Laws Amendment Act 7 of 1998, which purported to repeal the Proclamation in its entirety. The Proclamation was an apartheid-era law that established special townships for Africans on trust land, provided for limited land tenure rights through "deeds of grant," and established special deeds registries. DVB claimed the repeal made it impossible for purchasers to have deeds of grant registered, prejudicing their business. The Bophuthatswana High Court (Mogoeng J) declared the repeal of Chapters 1, 2, 3, and 9 unconstitutional. The matter was referred to the Constitutional Court for confirmation. DVB did not appear before the Constitutional Court. The North West Province did not oppose confirmation. The Western Cape, Free State, and Northern Province intervened, opposing confirmation.

• Whether the North West provincial legislature had competence to repeal Proclamation R293 of 1962
• Whether the administration of the Proclamation (or parts thereof) had been assigned to the North West Province under section 235(8) of the interim Constitution
• Whether the provisions of the Proclamation fell within functional areas specified in Schedule 6 of the interim Constitution
• Whether any provisions of the Proclamation dealt with matters referred to in section 126(3)(a) to (e) of the interim Constitution requiring national regulation
• Whether provincial legislatures have implied power to repeal their own provincial legislation
• The proper interpretation of assignment provisions in the transitional Constitution

The Constitutional Court confirmed the High Court's order only to the limited extent that the repeal of regulations 1 and 3 of Chapter 1 and Chapter 9 of Proclamation R293 of 1962 (as amended by Proclamation R9 of 1997) by section 6 of the North West Local Government Laws Amendment Act 7 of 1998 was inconsistent with the Constitution and invalid. The repeal of the remaining provisions (including the land tenure provisions) was held to be within provincial competence and therefore valid.

Provincial legislatures have implied power under sections 43(b) and 104(1)(b)(iv) of the Constitution to repeal their own provincial legislation. Laws administered by a province when the Constitution took effect constitute "provincial legislation" under section 239. The assignment of old order laws to provinces under section 235(8) of the interim Constitution was limited to provisions falling within Schedule 6 functional areas that did not deal with matters in section 126(3)(a)-(e) requiring national regulation. The Proclamation's legislative scheme substantially concerned regional planning and development, urban and rural development, and local government (Schedule 6 matters). Land tenure provisions integral to a township establishment scheme fall within Schedule 6. The registration of deeds and establishment of deeds registries are matters requiring uniform national norms and standards under section 126(3)(b) and could not be assigned to provinces. Rights acquired under repealed legislation are protected by common law principles and section 12(2) of the Interpretation Act 33 of 1957.

Ngcobo J provided an extensive historical analysis of apartheid land legislation, describing the Proclamation as "egregious," "demeaning and racist," with terms in "conflict with a number of provisions of the Bill of Rights." He noted that functional areas in the schedules must be "purposively interpreted" to enable both national and provincial legislatures to exercise their powers "fully and effectively," rejecting any strict interpretation favoring one level of government. He observed that the Less Formal Township Establishment Act 113 of 1991 and Development Facilitation Act 67 of 1995 provide accessible alternative forms of land tenure. Goldstone, O'Regan and Sachs JJ (dissenting in part) observed that "jurisprudence of the transitional era necessarily involves a measure of contradiction" and that "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." They noted the "ironic consequence" that invalidating the repeal, while aimed at eradicating apartheid laws, actually preserved access to "a cheap form of land tenure which in terms of national legislation can be upgraded to freehold" for underprivileged communities. Madala J observed 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."

This case is significant for its interpretation of the division of powers between national and provincial government in the transitional constitutional period. It establishes important principles regarding: (1) the implied power of provincial legislatures to repeal their own legislation; (2) the interpretation of assignment provisions under section 235 of the interim Constitution; (3) the purposive interpretation of Schedule 6 functional areas; (4) the application of section 126(3) to determine which matters require national regulation; (5) the treatment of apartheid-era legislation in the constitutional transition. The judgment demonstrates the Court's approach to phasing out discriminatory apartheid laws while managing complex federal arrangements. It also illustrates how the Court dealt with "old order" laws that straddled national and provincial competences. The differing judgments reveal important tensions between immediately eradicating apartheid laws and maintaining accessible (though insecure) land tenure options for disadvantaged communities pending comprehensive land reform.