Provinsiale staatsgrond: lank lewe die tussentydse Grondwet


Provincial state land: Long live the interim Constitution

Section 239(l)(a) and (b) of the interim Constitution provided the criteria in terms of which state assets were allocated to either the national government, or to the new provinces. These assets included immovable property. Item 28(1) of Schedule 6 to the 1996-Constitution provides, inter alia, for the registration of immovable property vested in a province, in the name of the provincial government. Section 239(l)(c) apparently purports to make section 239(l)(b) subordinate to the former. However, a contextual and purposive interpretation of these subsections, read with the scheme pertaining to the reallocation of executive power as is contained in section 235, leads to the conclusion that immovable property owned by the state, ex lege vested in provinces when the interim Constitution became operative. As the provinces may now claim land ownership regarding land which, prior to the 1993-Constitution was registered in the name o f the national government, the question arises whether the provinces may now dispose of such land. Section 104(4) of the 1996-Constitution seems to render support to an argument that the provinces are constitutionally empowered to pass the necessary legislation in that regard. In effect, section 239(l)(b) accordingly strengthens (albeit inadvertently) the otherwise weak form o f federalism brought about by other provisions o f the new Constitution.