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Rahube v Rahube and Others (CCT319/17) [2018] ZACC 42

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Rahube v Rahube and Others (CCT319/17) [2018] ZACC 42

2nd November 2018

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[1]              Batho botlhe ba tsetswe ba gololosegile le go lekalekana ka seriti le ditshwanelo.[1]  All human beings are born free and equal in dignity and rights.  Whether in Setswana or in English, this extract from article one of the Universal Declaration of Human Rights is powerful because until 24 years ago it was not true for the majority of South Africans.

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[2]              During apartheid, the African woman was a particularly vulnerable figure in society and she suffered three-fold discrimination based on her race, her class and her gender.  Reflecting upon the present, we must ask ourselves whether the African woman truly benefits from the full protection of the Constitution.[2]  Moreover, we must establish whether enough has been done to eradicate the discrimination and inequality that so many women face daily.  Laws and policies must seek to do more than merely regulate formalistically.  The Legislature is enjoined to ensure that laws and policies promote the participation of women in social, economic and political spheres while also advancing the spirit, purport and objects of the Constitution.  This is a case where a woman seeks to vindicate her right to access to housing – a right which is intrinsically linked to her dignity – by challenging a piece of legislation, which she contends perpetuates apartheid legislation that precluded her, and countless African women like her, from holding land tenure rights, simply because of her race and gender.

[3]              This case involves this Court exercising its section 167(5) powers,[3] to confirm the order of the High Court of South Africa, Gauteng Division, Pretoria[4] (High Court), that declared section 2(1) of the Upgrading of Land Tenure Rights Act[5] (Upgrading Act) constitutionally invalid, to the extent that it automatically converts holders of land tenure rights into owners of property, without providing other occupants or affected parties an opportunity to make submissions.  We are required to deal with three questions.  First, whether the High Court order should be confirmed.  Second, if the order is confirmed, what remedy would be most just and equitable.  Last, how this Court should handle the issue of costs.

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