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IN THE CONSTITUTIONAL COURT OF

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:

3

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 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 ()

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