IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case No. CCT: 22/99
DVB BEHUISING (PTY) LTD Applicant
and
NORTH WEST PROVINCIAL GOVERNMENT First Respondent
REGISTRAR OF DEEDS Second Respondent
and
PREMIER OF THE FREE STATE PROVINCE First Intervening Party
WESTERN CAPE PROVINCIAL GOVERNMENT Second Intervening Party
AFFIDAVIT
I, the undersigned,
CHARMAINE MARÉ,
make oath and state that:
1. I am an adult Legal Adviser in the Chief Directorate: Legal Services, 2
Western Cape Provincial Administration. I am an admitted advocate
of the High Court.
2. The facts deposed to herein are within my personal knowledge,
unless stated otherwise. Where I rely on information supplied by
others, I shall identify the source of that information.
3. On 2 July 1999 copies of the directions by the President of this
Court and the judgment of Mogoeng J were telefaxed to the Premier
of the Western Cape Province (“the Province”). The directions and
judgment were forwarded to the provincial legal advisers, who
considered the matter and recommended to the Premier that
counsel be briefed for advice before a decision regarding the
Province’s participation was made. Counsel advised that Mogoeng
J’s reasoning, if correct, had important implications for the legislative
capacity of the Provincial Parliament and, accordingly, that the
Province should make representations to this Court. The Province
thereupon decided to make such representations, and a notice to
that effect was delivered on 14 July 1999.
4. Counsel further advised that, in view of the judgment of Mogoeng J
and the contents of paragraph 4 of the President’s directions, the
Province should obtain:
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4.1 a copy of the Local Government Amendment Laws
Amendment Act, 7 of 1998 (North West Province) (“Act 7 of
1998”);
4.2 a copy of the Regulations for the Administration and Control
of Townships in Black Areas, Proclamation no. R293 of 1962
(“the Regulations”), in the form in which they existed in the
North West Province immediately prior to their repeal by Act
7 of 1998;
4.3 a copy of the record of the proceedings under case no.
308/99 in the Bophuthatswana Provincial Division of the High
Court of South Africa (“the High Court” and “the High Court
record”); and
4.4 certain details regarding the Applicant’s business and the
nature of the two townships in question (Meriteng Extensions
1 and 3).
5. In what follows I deal with each of these issues in turn.
Act 7 of 1998
6. I attach, marked “CM1”, a copy of Act 7 of 1998 as published in 4
the North West Provincial Gazette on 31 July 1998. On reading
the Act I have found what appear to be several errors relevant to
this matter. The reference to “section 8” in the heading of
Schedule 4 thereof is incorrect: it should refer to “section 6”.
Moreover, the numbers of the Townships Regulations
(Bophuthatswana) Amendment Act, 1981, and the Prevention and
Control of Littering (Bophuthatswana) Act, 1981, in Schedule 4
have been swopped. The correct citations are the Prevention and
Control of Littering (Bophuthatswana) Act, 16 of 1981, and the
Townships Regulations (Bophuthatswana) Amendment Act, 21 of
1981.
7. I also attach, marked “CM2”, a SABINET printout of the Local
Government Laws Second Amendment Act, 9 of 1998 (North
West Province) (“Act 9 of 1998”), promulgated on 29 December
1998. I have been unable to obtain a copy of the Gazetted
version of the Act. As is apparent, section 1 of Act 9 of 1998
inserted in Act 7 of 1998 a new section 5A, which provides for the
conversion of deeds of grant issued in terms of the Regulations
“into ownership in accordance with the relevant provisions of the
Upgrading of Land Tenure Rights Act, 1991”.
8. For the sake of completeness I should mention that the officials
from the North West Province’s Department of Local Government, 5
Housing, Planning and Development with whom I have been
dealing with regard to this matter – Ms Leah Jood-Lekalake (a
Legal Administration Officer in the Department) and Adv Jacques
Wolmarans (the Department’s Legal Adviser) – furnished me with
a typed, “consolidated” version of Acts 7 and 9 of 1998, which
they informed me was the version currently administered by their
Department. A copy thereof is annexed marked “CM3”. As is
apparent, an unusual feature of the “consolidated” version is that
sections 5A and 5B of Act 7 of 1998, which were inserted by Act 9
of 1998, have become sections 6 and 7 of Act 7 of 1998 and
consequential amendments have been made to the numbering of
the original sections 6 to 8 (which are now sections 8 to 10).
The Regulations
9. I have been unable to obtain a copy of the Regulations in the form
in which they existed in the North West Province immediately
prior to their repeal by Act 7 of 1998.
9.1 The North West Province’s Department of Local
Government, Housing, Planning and Development
furnished me with a copy of the Regulations as amended
by Proclamation nos. R211/1969, R161/1970 and
R264/1970. Ms Jood-Lekalake and Adv Wolmarans 6
informed me that the copy contained the Regulations in the
form in which they existed in the North West Province
immediately prior to their repeal by Act 7 of 1998. They
were, however, unable to advise what changes had been
made to the Regulations since Proclamation R264/1970 or
to supply me with copies of any Bophuthatswana
legislation amending the Regulations.
9.2 The national Department of Land Affairs also furnished me
with a copy of the Regulations, as amended by
Proclamation nos. R211/1969, R161/1970 and R264/1970.
However, the copy contained annotations regarding
certain further amendments, namely amendments made by
Proclamation nos. R222/1971, R150/1976, R34/1977,
R178/1978, R200/1978, R197/1979 and R153/1983 and by
Government Notice Nos. R1561/1985, R150/1986 and
R1538/1986. I was informed by the Department’s Ms A
Barkhuizen that the copy supplied to me was the only copy
of the Regulations in the Department’s possession.
9.3 It is clear that the copy of the Regulations supplied by the
North West Province’s Department of Local Government,
Housing, Planning and Development does not contain the
Regulations in the form in which they existed in the North 7
West Province immediately prior to their repeal by Act 7 of
1998.
9.4 I have reached the same conclusion in relation to the copy
of the Regulations supplied by the national Department of
Land Affairs, for the following reasons:
9.4.1 Firstly, the annotations include references to
Proclamations made by the State President of
the Republic of South Africa after
Bophuthatswana became “independent” on 6
December 1977 pursuant to the Status of
Bopuhuthatswana Act, 89 of 1977.
(In this regard it is to be noted that the national
Minister of Land Affairs countersigned
Proclamation R9 of 1997 (dated 31 January
1997, Government Gazette No. 17753). Item
2(a) of Schedule 1 to this Proclamation, which
was made by the President of the Republic of
South Africa in terms of section 237(3) of the
Constitution of the Republic of South Africa Act,
200 of 1993 (“the interim Constitution”),
purportedly amended “The Regulations for the 8
Administration and Control of Townships,
Proclamation No. R.293 of 1962 of the former
Republic of Bophuthatswana”. I would add that
item 2(a) of Schedule 1 to Proclamation R9 of
1997 contains a number of consequential errors,
notably the substitution by (South African)
Proclamation R153/1983 of the words “Director-
General” for the word “Secretary” in the text of
regulations 3(m) and (n), 4(1)(b)(ii), 5, 6(1)(a)
and (b), 7(1), 7(1)(f), 7(2), 9(1) and 12(1) in
Chapter 9 of the Regulations).
9.4.2 Secondly, there are no annotations regarding the
Townships Regulations Amendment Act, 21 of
1981 (Bophuthatswana), or the Townships
Regulations Amendment Act, 4 of 1982
(Bophuthatswana), which as explained below
amended the Regulations in Bophuthatswana.
(The administration of these two
Bophuthatswana Acts was assigned to the North
West Province by the President of the Republic
of South Africa on 17 June 1994 in terms of
section 235(8) of the interim Constitution 9
(Government Gazette no. 15813) (see items 28
and 29 of part 3 of the Schedule to Proclamation
110 of 1994)). It would appear, however, that
paragraph 11 of item 2(a) of Schedule 1 to
Proclamation R9 of 1997 reflects the amendment
to regulation 10 of Chapter 9 of the Regulations
– the deletion of the words “no transfer duty and”
– which was effected by item C(1) of the
Schedule to the Township Regulations
Amendment Act, 4 of 1982 (Bophuthatswana)).
9.5 I have obtained from the Applicant’s attorneys’ Mafikeng
correspondents in the High Court proceedings, Van
Onselen & Van Rooyen Inc, telefaxed copies of all the
Bophuthatswana legislation mentioned in Schedule 4 to
Act 7 of 1998, including the Townships Regulations
Amendment Act, 21 of 1981 (Bophuthatswana) and the
Townships Regulations Amendment Act, 4 of 1982
(Bophuthatswana). Copies of the latter two Acts, the only
measures of those listed in Schedule 4 to Act 7 of 1998
which amended the Regulations in Bophuthatswana, are
annexed marked “CM4” and “CM5”. I have, however, been
unable to ascertain whether after the promulgation of Act 4
of 1982 in Bophuthatswana the Regulations were further 10
amended there.
9.6 I have not burdened this affidavit with copies of the
versions of the Regulations supplied to me by the North
West Province’s Department of Local Government,
Housing, Planning and Development and the national
Department of Land Affairs. Copies will be made available
to this Court should it so request.
The High Court record
10. The Director of this Court, Mr D.C.C. du Plessis, was not able to
furnish me with a copy of the High Court record. When I spoke to
him on 28 July 1999 and 5 August 1999 Mr Du Plessis told me
that in terms of the rules of this Court only the judgment by
Mogoeng J was relevant.
11. On 28 July 1999 I spoke to a Mr Z.R. Mpame, the Registrar of the
Bophuthatswana Provincial Division of the High Court, who said
he could not locate the record.
12. I subsequently obtained the founding papers in the High Court
proceedings from the Applicants’ attorneys, Van der Merwe Du
Toit. A copy is annexed marked “CM6”. I have been informed by 11
both Ms A Decker of Van der Merwe Du Toit and Mr J van
Onselen of Van Onselen & Van Rooyen Inc that the application in
the High Court was not opposed and no further affidavits or heads
of argument were filed.
The Applicant’s business / Meriteng Extensions 1 and 3
13. I have been informed by Ms Decker and Ms S Verbeeck of
Combrink Kgapshe, the firm of attorneys which deals with the
Applicant’s conveyancing, the only housing developments in
which the Applicant was engaged when these proceedings were
instituted were those in Meriteng Extensions 1 and 3 referred to in
the founding papers. Meriteng Extensions 1 and 3, which fell
within Bophuthatswana, were established and administered in
terms of the Regulations. No township registers have been
opened in the Deeds Office. The land is owned by the State and
the North West Housing Corporation administers housing
developments there on behalf of the State.
Copies of documents supplied to Free State Province
14. I have furnished the legal representatives of the Free State
Province with copies of the documents obtained by me.
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Late filing of hard copies of the Provincial Government’s submissions
15. On 18 August 1999 the Office of the State Attorney (Cape Town)
sent a telefax to the Registrar of this Court, a copy of which is
annexure “CM7” hereto, indicating that the written submissions of
the Western Cape Provincial Government in this matter would be
filed two days late. I confirm the reasons for the late filing set out
in that telefax and apologise to the Court for any inconvenience
caused.
______CHARMAINE MARÉ
I certify that:
1. The deponent acknowledged to me that: 1.1 she knows and understands the contents of this declaration; 1.2 she has no objection to taking the prescribed oath; 1.3 she considers the prescribed oath to be binding on her conscience. 2. The deponent thereafter uttered the words: "I swear that the contents of this declaration are true, so help me God" 3. The deponent signed this declaration in my presence at the address set out hereunder on this the 18th day of August 1999.
______COMMISSIONER OF OATHS 13