CONSTITUTIONAL COURT JUDGEMENT ON THE UPGRADING OF LAND TENURE RIGHTS ACT, 1991

1. CONSTITUTIONAL COURT JUDGEMENT ON THE UPGRADING OF LAND TENURE RIGHTS ACT, 1991 • PRESENTATION: PORTFOLIO COMMITTEE ON AGRICULTURE, LAND REFORM AND RURAL DEVELOPMENT • 20 AUGUST 2019

2. Presentation Outline • Background • The Rahube Order • The Review of ULTRA • Action Plan for Processing the Bill

3. Background • The Upgrading of Land Tenure Rights Act 112 of 1991 (“ULTRA”) is a pre-constitutional democracy law that remains in our statute books because it partially gives effect to section 25(6) of the Constitution. • It provides for the upgrading and conversion into ownership of certain rights granted in respect of land, and for the transfer of communal land in full ownership to traditional communities. • ULTRA provides for a number of actions including the conversion of land tenure rights; cancellation of certain servitudes and restrictive conditions relating to formalized townships; compensation in respect of cancelled servitudes and conditions; addressing conditions of land use; opening of township registers in respect of certain formalized townships; shortened registration procedures; correction of township registers; formalizing townships; updating and compilation of registers of land rights and transfer of land. • ULTRA has largely been implemented by Provincial Governments through delegation of powers issued from November 1995 to May 1996.

4. Background • Section 2 of ULTRA provides for the conversion of land tenure rights mentioned in schedule 1 of the Act. It states that “Any land tenure right mentioned in Schedule 1 and which was granted in respect of - • any erf or any other piece of land in a formalized township for which a township register was already opened at the commencement of this Act, shall at such commencement be converted into ownership; • any erf or any other piece of land in a formalized township for which a township register is opened after the commencement of this Act, shall at the opening of the township register be converted into ownership. • any piece of land which is surveyed under a provision of any law and does not form part of a township, shall at the commencement of this Act be converted into ownership, 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 land rights in which that land tenure right was registered in terms of a provision of any law, was the holder of that land tenure right immediately before the conversion”.

5. The Rahube Order The Constitutional Court in Rahube v Rahube and Others 2019 (2) SA 54 (CC) made the following order: • Section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 is declared constitutionally invalid insofar as it automatically converted holders of any deed of grant or any right of leasehold as defined in regulation 1 of Chapter 1 of the Regulations for the Administration and Control of Townships in Black Areas, 1962 Proc R293 GG 373 of 16 November 1962 (Proclamation R293) into holders of rights of ownership in violation of women’s rights in terms of section 9(1) of the Constitution. • The order in (a) above is made retrospective to 27 April 1994. • In terms of section 172(1)(b) of the Constitution, the order in paragraph 2(a) and (b) shall not invalidate the transfer of ownership of any property which title was upgraded in terms of section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 through: finalised sales to third parties acting in good faith; inheritance by third parties in terms of finalised estates; and the upgrade to ownership of a land tenure right prior to the date of this order by a woman acting in good faith.

6. The Rahube Order • The order in 2(a) above is suspended for a period of 18 months to allow Parliament the opportunity to introduce a constitutionally permissible procedure for the determination of rights of ownership and occupation of land to cure the constitutional invalidity of the provisions of section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991. • The first respondent is interdicted from passing ownership, selling, or encumbering the property known as Stand 2328 Block B, Mabopane in any manner whatsoever, until such time as Parliament has complied with the order in 2(a) above. • The third respondent is ordered to pay the costs of the applicant, including the costs of two counsel.

7. Review of ULTRA • A scan of ULTRA by officials of the Department revealed that there may be numerous other sections and, or sub-sections in ULTRA that may be unconstitutional and which require amendment. • In a separate matter, the Eastern Cape High Court declared that section 25A of ULTRA is inconsistent with the Constitution to the extent that it excludes section 3 of ULTRA from application in the whole of the Republic. The matter was referred to the Constitutional Court for confirmation and was heard on 21 May 2019 where judgment was reserved. • The Department sought a legal opinion from Senior Counsel who specializes in constitutional law with a view to review the entirety of ULTRA in terms of constitutional validity and also to draft constitutionally valid provisions. • The aim was to develop and introduce to Parliament a Bill that would amend all the impugned provisions.

8. Review of ULTRA • The legal opinion was obtained in July 2019 together with a draft Bill. • The drafting process commenced and resulted in a draft Bill amending section 2(1) of ULTRA being submitted to the Office of the Chief State Law Advisor for pre-certification on 6 August 2019. • The draft Bill simply proposes: • a constitutionally compliant process for the conversion of Schedule 1 rights in land into ownership rights; • a constitutionally compliant process that is to be followed in the review of transactions affected by the retrospective declaration of section 2(1) of ULTRA as unconstitutional.

9. Action Plan for Processing the Bill STEPS MANAGED BY THE DEPARTMENT

11. Thank You