Graham Robert Herbert N.O. and Others v Senqu Municipality and Others

The TEBA Property Trust, represented by its trustees, held a long-standing Permission to Occupy (PTO) over Erf 88, Sterkspruit, originally granted in 1940 under the Native Trust and Land Act 18 of 1936 to its predecessor, a mining labour recruitment entity. The Trust occupied and used the property for business purposes for over 75 years. After the Upgrading of Land Tenure Rights Act 112 of 1991 (Upgrading Act) was extended to the former Transkei following constitutional litigation, the Trust sought to convert its PTO into full ownership under section 3 of the Upgrading Act. Senqu Municipality refused to facilitate the conversion, arguing that the Trust did not fall within the class of persons the Act was intended to benefit. The High Court dismissed the Trust’s application, holding that the Act was enacted to benefit persons disadvantaged by racially discriminatory laws, which did not include the Trust. The Trust appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel.

The case clarifies that the Upgrading of Land Tenure Rights Act is a remedial statute aimed at redressing apartheid-era land dispossession and insecurity, and that its benefits are limited to those historically disadvantaged by racially discriminatory land laws. It confirms a purposive, constitutionally informed approach to interpreting land reform legislation and prevents its use by entities that benefitted from apartheid policies.