Land rights: New legal amendment places Minister squarely in the way of substantive land reform

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ULTRA automatically converted to full ownership certain statutory tenure rights in land which, until these 1991 reforms, had been reserved for black occupation. The same objective survey and deeds-registry preconditions which apply to the ownership of land by white persons were made applicable to blacks.

Thus, under given conditions, where a statutory black land-tenure right attaches to a town lot, then that right automatically becomes full ownership of that lot.

Where the given conditions do not yet exist, the Minister of Land Reform may, says ULTRA, facilitate the surveying of lots and framing of general plans by land surveyors, approval of such plans by the surveyor-general, and opening by the registrar of deeds of registers for registrable transactions affecting lots on the plans.

Thus, the same objective preconditions for ownership of lots in formerly “white” areas are made applicable for ownership of lots in formerly “black” areas. Conversion is automatic when these exist and does not require ministerial intervention of any kind.

The equality clause in the Constitution’s Bill of Fundamental Rights declares that everyone is equal before the law and has the right to equal protection and benefit of the law. Equality includes the full and equal enjoyment of all rights and freedoms. Neither the State nor any person may unfairly discriminate directly or indirectly against anyone on one or more grounds, which include gender or sex.

Except in one important respect, ULTRA was consistent with these fundamental rights. That one exception related to the non-sexism and the right to equality before the law. The Constitutional Court in 2018 explained how, in a case brought by Ms Matshabelle Rahube.

Ms Rahube’s brother Hendsrine, as holder of a deed of grant, automatically became outright owner of Stand 2328 where Ms Rahube and her family had lived for many years. These deeds of grant were among the types of black land-tenure rights that ULTRA automatically convert to ownership.

Constitutional Court ruling

In 2009 Hendsrine instituted eviction proceedings in the magistrate’s court against his sister Ms Rahube and the other occupants of the property. Ms Rahube contended in defence that the automatic-conversion-to-ownership provisions of ULTRA were constitutionally invalid. The magistrate suspended the eviction proceedings pending the outcome of an application to the high court challenging the constitutionality of these provisions of the Act.

Ultimately, the Constitutional Court held that ULTRA differentiates between people who were 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 hold a deed of grant) and African women (who could not).

The Constitutional Court declared that, retrospectively to 27 April 1994, ULTRA’s automatic-conversion-to-ownership provisions were constitutionally invalid insofar as they automatically convert any deed of grant contemplated in the Proclamation to ownership in violation of women’s rights in the equality clause of the Bill of Rights.

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The Court suspended the order for 18 months to allow Parliament the opportunity to introduce a “constitutionally permissible” procedure for “the determination of rights of ownership and occupation” to cure the invalidity of the automatic-conversion provisions of the Act.

The Court also ordered Ms Rahube’s brother Hendsrine not to dispose of or encumber Stand 2328 before Parliament complied with the Court’s order.

In 2021 Parliament made a belated attempt to comply with the Court’s order by passing an Amendment Act. This will amend ULTRA to say that the registered holder of a deed of grant, or a person who “could have been a holder” had it not been for laws or practices that unfairly discriminated against that person, may “apply to the Minister” for its conversion to ownership. Title upgrading is therefore made no longer automatic, and introduces ministerial interference in every single conversion of title thereafter.

Then, says this 2021 Amendment Act, the Minister must give notice, in the Government Gazette, a local newspaper, relevant social media and at the local municipal office, of the application for conversion. The notice must give interested persons an opportunity to object.

On receipt of an application or objection, the Minister must designate an investigator to assist him in determining the facts and to “make a decision” relating to the conversion and the vesting of full ownership.

Amendment Act issues

The 2021 Amendment is both cumbersome and vague. It contains no criteria to govern the Minister’s ability to “make a decision” and adds layers of expensive, time consuming and unnecessary bureaucracy to what should be an objective process. The Amendment gives the Minister unfettered personal discretion about every upgrade of title and introduces the distinct likelihood of indefinite delays in the vesting of ownership.

These shortcomings violate the Rule of Law upon which the Republic is founded. The Rule of Law includes the principles that laws must be clear and predictable, and that no legal right may be determined by individual discretion.

The 2021 Amendment Act is thus not “constitutionally permissible”. On the contrary, it is invalid. Perhaps because that is already perceived to be the case, the Amendment Act has not yet been brought into operation.

A constitutionally permissible procedure for the determination of rights of ownership and occupation that respected women’s rights under the equality clause of the Bill of Rights should expressly state that women are to be treated equally and without discrimination.

Conversions should be subject to consultation with women or other persons who have no statutory black land-tenure right registered in their name but occupy the property or have any other substantial interest in it, and subject to any necessary provision for protection of any such occupants.

The procedure should stipulate that ownership shall vest in the person or persons who have the superior claim or entitlement thereto, and notwithstanding that such person or persons are not the registered holder of the statutory black land-tenure right to the property.

A constitutionally permissible procedure should not be couched in vague terms and should not give discretion to any government official.

In the meantime, the Rahubes no doubt, as well as many others like them, have no certainty.