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[LITIGATION UPDATE] SERI intervenes as the third applicant in a case challenging discriminatory land tenure laws (7 June 2024).

On Friday, 7 June 2024, SERI appeared in the High Court in Johannesburg in the case of Mothlamme v Maimane. SERI brought this application in the public interest as per section 38(d) of the Constitution. The first and second applicants are challenging the constitutionality of section 6(1) of the Conversion of Certain Rights into Leasehold or Ownership Act, 81 of 1988 (“Conversions Act”) and section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 (“Upgrading Act”). The core of this constitutional challenge is that these sections perpetuate the violation of the right to equality for Ms Motlhamme (the first applicant), and other women, by unfairly discriminating against them based on their sex. 

Ms Johanna Motlhamme was married to Mr Molefi Maimane, who according to the Regulation 7 of 1037 of 1968 (“Regulation 7”) was the sole permit holder.  The Upgrading Act aimed to provide a more secure form of land tenure to Africans who, under the apartheid regime, had precarious land rights. The Act automatically converted Mr Maimane's tenancy rights to ownership rights, excluding Ms Motlhamme and resulting in her losing all rights to the house. This exclusion occurred because, by legislative provision, only a man, considered the head of the family, could hold the permit.

The first and second applicants challenge the constitutionality of the specific sections which converted the occupational right, being section 6(1) of the Conversion of Certain Rights into Leasehold or Ownership Act, 81 of 1988 (“Conversions Act”) as well as the legislation which upgraded the right to ownership, being section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 (“Upgrading Act”). SERI supports this application and seeks to also broaden the challenge of Constitutional invalidity to include section 13(1) of the Upgrading Act. SERI intends argue that the shortened or automatic conversion of these land tenure rights under the Upgrading Act unfairly discriminates against a wide range of women by excluding them from accessing ownership rights or secure tenure. This discrimination stems from the inherent deprivation of land tenure rights as contemplated in the Regulations, now protected by section 6(1) of the Conversions Act and the Upgrading Act. 

On the 24 April 2024, the court set the matter down for hearing. However, the judges adjourned the matter to the 7 June 2024 to give State Respondents an opportunity to outline the necessary parliamentary processes in light of the relief sought by the applicants. 

  • Access all the papers here