CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 189/22
In the matter between:
GOVAN MBEKI LOCAL MUNICIPALITY Applicant
and
GLENCORE OPERATIONS SOUTH AFRICA
(PTY) LIMITED First Respondent
DUIKER MINING (PTY) LIMITED Second Respondent
TAVISTOCK COLLIERIES (PTY) LIMITED Third Respondent
UMCEBO PROPERTIES (PTY) LIMITED Fourth Respondent
IZIMBIWA COAL (PTY) LIMITED Fifth Respondent
Case CCT 191/22
In the matter between:
EMALAHLENI LOCAL MUNICIPALITY Applicant
and
GLENCORE OPERATIONS SOUTH AFRICA
(PTY) LIMITED First Respondent
DUIKER MINING (PTY) LIMITED Second Respondent
TAVISTOCK COLLIERIES (PTY) LIMITED Third Respondent
UMCEBO PROPERTIES (PTY) LIMITED Fourth Respondent
2
IZIMBIWA COAL (PTY) LIMITED Fifth Respondent
GOVAN MBEKI LOCAL MUNICIPALITY Sixth Respondent
Neutral citation: Govan Mbeki Local Municipality v Glencore Operations South
Africa (Pty) Ltd and Others; Emalahleni Local Municipality v
Glencore Operations South Africa (Pty) Ltd and Others [2024]
ZACC 25
Coram: Chaskalson AJ, Dodson AJ, Kollapen J, Mathopo J, Mhlantla J,
Rogers J, Schippers AJ and Tshiqi J.
Judgments: Chaskalson AJ (majority): [1] to [98]
Dodson AJ (dissenting): [99] to [288]
Rogers J (dissenting): [289] to [305]
Heard on: 16 November 2023
Decided on: 19 November 2024
Summary: Municipal planning by -laws — transfer embargoes — delegated
powers under section 32(1) of the Spatial Planning and Land Use
Management Act 16 of 2013 — constitutionality of section 76 of
the Govan Mbeki Spatial Planning and Land Use Management
By-law — constitutionality of section 86 of the Emalahleni
Municipal By-law on Spatial Planning and Land Use Management
2016 — section 118(1) of the Systems Act — right to property —
order of invalidity
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the
Mpumalanga Division of the High Court, Middelburg):
1. Leave to appeal is granted.
CHASKALSON AJ
3
2. The appeal against the order of the Supreme Court of Appeal is dismissed
with costs, including the costs of two counsel.
3. The cross -appeal against the order of the Supreme Court of Appeal is
upheld with costs, including the costs of two counsel.
4. The order of the Supreme Court of Appeal is varied by:
4.1 the substitution of the following for paragraph 3 of the order in
Case No 334/2021:
“3. Section 76 of the Govan Mbeki Spatial Planning and Land
Use Management By -Law 20 16 is declared to be
inconsistent with the Constitution and invalid”; and
4.2 the substitution of the following for paragraph 3 of the order in
Case No 338/2021:
“3. Section 86 of the Emalahleni Municipal By-Law on Spatial
Planning and Land Use Management 2016 is declared to be
inconsistent with the Constitution and invalid.”
JUDGMENT
CHASKALSON AJ (Mathopo J, Mhlantla J, Schippers AJ and Tshiqi J concurring):
Introduction
[1] This matter concerns municipal by -laws which attempt to enforce municipal
planning schemes by preventing the registration of transfer of properties without proof
that there has been full compliance with all municipal planning requirements in respect
of the properties in question. The applicant municipalities both adopted munici pal
planning by-laws containing transfer embargoes along these lines. The Mpumalanga
Division of the High Court, Middelburg (High Court) and the Supreme Court of Appeal
declared the transfer embargo provisions of the municipalities’ by -laws to be
CHASKALSON AJ
4
inconsistent with the Constitution and invalid. The applicant municipalities now appeal
to this Court against the decision of the Supreme Court of Appeal.
Background
[2] The applicants are Govan Mbeki Local Municipality (Govan Mbeki) and
Emalahleni Local Municipality (Emalahleni). They are both municipalities in
Mpumalanga wh ich have adopted municipal planning by-laws containing transfer
embargoes that are intended to enforce compliance with municipal planning
requirements.1
[3] The respondents are Glencore Operations South Africa (Pty) Limited, Duiker
Mining (Pty) Limited, Tavistock Collieries (Pty) Limited, Umcebo Properties (Pty)
Limited and Izimbiwa Coal (Pty) Limited. Except for Umcebo Properties, which is a
property holding company, the other four are mining companies. All of the respondents
intend to transfer immovable properties in the jurisdictional areas of the applicants. In
this judgment, I will refer to the applicants as “the municipalities” and to the
respondents as “the property owners”.
[4] The Govan Mbeki and Emalahleni by-laws are intended to operate within the
framework of the Spatial Planning and Land Use Management Act2 (SPLUMA). Both
sets of by-laws refer to SPLUMA as “the Act” .3 Many of the chapters of the by -laws
have introductory provisions that show that they are expressly designed to give effect
to the framework provisions enacted in SPLUMA.4
1 The Govan Mbeki Spatial Planning and Land Use Management By -Law was promulgated in Provincial
Notice 10 of 2016 in Mpumalanga Provincial Gazette Extraordinary 2650, 17 February 2016 (Govan Mbeki
By-Law). The Emalahleni Municipal By-Law on Spatial Planning and Land Use Management was promulgated
in Provincial Notice 4 of 2016 Mpumalanga Provincial Gazette Extraordinary 2653, 24 February 2016
(Emalahleni By-Law).
2 16 of 2013.
3 See the definition of “the Act” in section 1 of both of the by-laws (above n 1).
4 See for example above n 1 Emalahleni By-Law, Chapter 2: section 4(1) and section 5(1); Chapter 3: section 15;
Chapter 4, Part C: section 33; Chapter 4, Part D: section 45(2) and (3); and Chapter 4, Part E, section 49. See also
above n 1 Govan Mbeki By -Law, Chapter 1: section 3(1) and (3); Chapter 2: section 4(1), section 5(1),
CHASKALSON AJ
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[5] Section 74 of the Govan Mbeki By-Law and section 84 of the
Emalahleni By-Law deal with requirements for the first transfer of properties out of a
new development scheme or sub -division. They build on the provisions of section 53
of SPLUMA which states:
“The registration of any property resulting from a land development applica tion may
not be performed unless the municipality certifies that all the requirements and
conditions for the approval have been complied with.”
[6] Section 74 of the Govan Mbeki By-Law states the following:
“74 Restriction of transfer and registration
. . .
(2) No Erf/Erven and/or units in a land development area, may be
alienated or transferred into the name of a purchaser nor shall a
Certificate of Registered Title be registered in the name of the owner,
prior to the Municipality certifying to the Registrar of Deeds that:
(a) All engineering services have been designed and constructed
to the satisfaction of the Municipality, including guarantees
for services having been provided to the satisfaction of the
Municipality as may be required; and
(b) all engineering services and development charges have been
paid or an agreement has been entered into to pay the
development charges in monthly instalments; and
(c) all engineering services have been or will be protected to the
satisfaction of the Municipality by means of servitudes; and
(d) all conditions of the approval of the land development
application have been complied with or that arrangements
have been made to the satisfaction of the Municipality for the
compliance thereof within 3 months of having certified to the
section 14(1); Chapter 3: sections 15-6, section 17(1); Chapter 4: section 31; Chapter 5, Part C: section 57(3);
Chapter 5, Part K: section 77(1)-(3); and Chapter 11, section 175.
CHASKALSON AJ
6
Registrar in terms of this section that registration may take
place; and
(e) that the Municipality is in a position to consider a final
building plan; and
(f) that all the properties have either been transferred or shall be
transferred simult aneously with the first transfer or
registration of a newly created property or sectional title
scheme.”
[7] Section 84 of the Emalahleni By-Law is, for practical purposes, identical to
section 74 of the Govan Mbeki By-Law. Neither of these two by -laws are challenged
by the property owners.
[8] Instead, the property owners’ constitutional challenge targets section 76 of the
Govan Mbeki By -Law and section 86 of the Emalahleni By -Law. These impugned
provisions deal with all property transfers and are not confined to original transfers out
of new development schemes and sub -divisions of properties. Section 76 of the
Govan Mbeki By-Law states the following:
“76 Certification by Municipality
(1) A person may not apply to the Registrar of Deeds to regist er the
transfer of a land unit, unless the Municipality has issued a certificate
in terms of this section.
(2) The Municipality may not issue a certificate to transfer a land unit in
terms of any law, or in terms of this By-law, unless the owner furnishes
the Municipality with
(a) a certificate of a conveyancer confirming that funds due by the
transferor in respect of land, have been paid;
(b) proof of payment of any contravention penalty or proof of
compliance with a directive contemplated in Chapter 9;
(c) proof that the land use and buildings constructed on the land
unit comply with the requirements of the land use scheme;
CHASKALSON AJ
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(d) proof that all common property including private roads and
private places originating from the subdivision, has been
transferred; and
(e) proof that the conditions of approval that must be complied
with before the transfer of erven have been complied with.
(f) Proof that all engineering services have been installed or
arrangements have been made to the satisfaction of the
Municipality.”
[9] Section 86 of the Emalahleni By-Law includes no equivalent to section 76(2)(f)
of the Govan Mbeki By-Law. In all other respects, it is, for practical purposes, identical
to section 76 of the Govan Mbeki By-Law.
[10] Section 76 of the Govan Mbeki By -Law and section 86 of the
Emalahleni By-Law seek to use transfer embargo es to enforce compliance with
municipal planning, land use and building regulation requirements . They do so by
requiring all property owners who want to apply to the Registrar for a tran sfer of their
land first to obtain a certificate from the municipality (a “planning certificate”). The
planning certificate confirm s that all spatial planning, land use management and
building regulation requirements and payments applying to the land unit in question
have been complied with.
[11] The transfer embargoes in the impugned by-laws extend not only beyond those
contemplated by section 53 of SPLUMA. They also extend beyond th e transfer
embargoes created by section 118(1) of t he Local Government : Municipal
Systems Act5 (Systems Act) which were considered by this Court in Mkontwana.6
Section 118(1) of the Systems Act requires the presentation of “rates clearance
certificates” as a precondition for transfer of properties. A rates clearance certificate
certifies only the payment of amounts that became due in the preceding two years for
5 32 of 2000.
6 Mkontwana v Nelson Mandela Metropolitan Municipality [2004] ZACC 9; 2005 (1) SA 53 0 (CC); 2005 (2)
BCLR 150 (CC) (Mkontwana).
CHASKALSON AJ
8
municipal rates and services in respect of a property. In contrast, paragraph (a) of the
impugned by -laws require s a certificate confirming payment by the transferor of all
amounts due in respect of the property, irrespective of when those amounts became due.
As the property owners point out, this means that a transferor must now prove payment
of rates liabilities th at may have arisen decades ago and that have not yet prescribed
because the prescription period for taxes is thirty years. 7 Paragraphs (d), (e) and (f) of
the Govan Mbeki By-Law (and paragraphs (d) and (e) of the Emalahleni By-Law) also
make the current land owner responsible for ensuring that the original developer of the
property complied with land use and planning requirements relating to the development.
[12] Unlike section 118 of the Systems Act, the impugned by-laws do not place
obligations directly on the Registrar of Deeds. They merely prohibit an applicant from
applying for transfer without obtaining a planning certificate under the by -laws.
Nevertheless, the Office of the Mpumalanga Registrar of Deeds has taken the position
that it will refuse to process transfer applications without the production of a planning
certificate required by the by-laws.8
Litigation history
High Court
[13] On 18 July 2019, the property owners launched an application in the High Court
for orders declaring the impugned by -laws unconstitutional and invalid. 9 The
7 Section 11(a)(iii) of the Prescription Act 68 of 1969.
8 The position of the Mpumalanga Deeds Registration Office is consistent with section 3(1)(b) of the
Deeds Registries Act 47 of 1937 which states that:
“(1) The registrar shall . . .
(b) examine all deeds or other documents submitted to him for execution or
registration, and after examination reject any such deed or other document the
execution or registration of which is not permitted by this Act or by any other
law, or to the execution or registration of which any other valid objection
exists: Provided tha t such deed or document need not be examined in its
entirety before being rejected.”
9 The property owners also challenged the constitutional validity of section 82 of the Steve Tshwete Local
Municipality Spatial Planning and Land Use Management By -Laws, L ocal Authority Notice 2 of 2016
Provincial Gazette 2633, 15 January 2016, the provisions of which are also framed in terms practically identical
to those of section 76 of the Govan Mbeki By -Law. When this constitutional challenge succeeded in the
CHASKALSON AJ
9
constitutional case of the property owners was based on several alternative causes of
action. First, the property owners alleged that the impugned by-laws were inconsistent
with section 25 of the Constitution, as their application led to an arbitrary deprivation
of property. Second, the y submitted that the impugned by-laws were unconstitutional
because they legislate on matters which fall outside the scope of powers assigned to
local government in terms of s ection 156 read with Part B of Schedule 4 and Part B of
Schedule 5 to the Constitution. Third, they contended that the impugned by-laws were
invalid because they were inconsistent with section 118 of the Systems Act. The
property owners also sought a wide range of administrative review and interdictory
relief in the alternative to their primary constitutional relief. For reasons that appear
below, this relief is no longer relevant.
[14] Relying on Mkontwana, t he High Court held that the imp ugned by -laws
constituted a deprivation of property within the meaning of section 25(1) of the
Constitution.10 Having regard to the historical exclusion of mining properties from land
use schemes ,11 the High Court held that the application of paragraph (c) of
subsection (2) of the impugned by-laws to the property owners ’ mining properties
amounted to an arbitrary deprivation of property.12
[15] The High Court also held that the impugned by -laws were inconsistent with
section 118 of the Systems Act because they purported to “amend” the provisions of
that section by imposing additional requirements before transfer applications could be
processed at the office of the Registrar of Deeds. It concluded that this inconsistency
High Court, the Steve Tshwete Municipality did not appeal the High Court decision. The present appeal is,
therefore, confined to the Govan Mbeki and Emalahleni by-laws.
10 Glencore Operations South Africa (Pty) Ltd v Steve Tshwete Local Municipality [2021] ZAMPMHC 39
(High Court judgment) at paras 41-51.
11 Aquila Steel SA (Pty) Ltd v South African Steel Company (Pty) Ltd [2014] ZAGPPHC 218 ( Aquila Steel) at
paras 59-62. In para 56 of the High Court judgment, the Court quoted these paragraphs from the Aquila Steel
judgment of the Gauteng High Court, but incorrectly attributed them to the judgment of this Court in Aquila Steel
SA (Pty) Ltd v South African Steel Company (Pty) Ltd [2019] ZACC 5; 2019 (3) SA 621 (CC) ; 2019 (4) BCLR
429.
12 High Court judgment above n 10 at paras 54-60.
CHASKALSON AJ
10
with section 118 of the Systems Act was an independent ground of invalidity of the
by-laws.13
[16] The High Court then considered whether the by -laws were covered by the
municipalities’ legislative competence over “municipal planning” under
section 156(1)(a) read with Part B of Schedule 4 to the Constitution. The High Court
cited DVB Behuising,14 where this Court held that the registration of land rights was a
residual national competence.15 The High Court accordingly concluded that the
municipal planning competence under Part B of Schedule 4 did not extend to matters
concerning the registration and transfer of properties. 16 The High Court also held that
the creation of the by -laws did not fall within the incidental powers conferred on
municipalities by section 156(5) of the Constitut ion read with section 156(2).17 As a
result, the High Court concluded that there was no enabling authority for the
municipalities to make the impugned by -laws and that the by -laws were inconsistent
with the constitutional principle of legality . On the basis of this reasoning, the
High Court declared the impugned by-laws to be unconstitutional and invalid.18
[17] For reasons that do not emerge clearly from the judgment, the High Court
qualified its orders of invalidity of the impugned by -laws in two respects.19 First, it
13 Id at paras 73-6.
14 Western Cape Provincial Government: In re DVB Behuising (Pty) Ltd v Northwest Provincial Government
[2000] ZACC 2; 2000 (4) BCLR 347; 2001 (1) SA 500 (CC) (DVB Behuising).
15 At para 55 of the majority judgment in DVB Behuising (id) the following was stated:
“The provisions of chap ter 2 and chap ter 3 that related to the granting of a limited form of
‘ownership’ rights in land in the township and those that related to the registration of th ose
rights in chap ter 9 dealt, on their face, with a form of land tenure, a matter not listed in
Schedule 6.”
The High Court judgment did not rely on this passage. Instead, at para 67, the High Court judgment cited a
passage which it attributed to paras 34 and 35 of DVB Behuising. In fact, the first paragraph of this passage
appears at para 104 of the judgment in DVB Behuising of Goldstone J, Sachs J and O’Regan J which dissented in
part with the majority jud gment. The second paragraph in the passage cited by the High Court does not appear
anywhere in the DVB Behuising judgment.
16 High Court judgment above n 10 at paras 69-70.
17 Id at paras 70-2.
18 Id at para 76.
19 Id at para 83.
CHASKALSON AJ
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limited the orders of invalidity to circumstances covered by provisions of paragraphs (a)
and (c) of subsection (2) of the impugned by -laws in relation to the property owners’
mining properties , although these provisions were relevant only to the property
challenge and not to the legality challenge.
[18] Second, it invoked section 172(1) of the Constitution to suspend its orders of
invalidity for a period of six months to allow the constitutional defect in the by-laws to
be corrected. Apart from being unreasoned, the suspension of invalidity was a
misdirection on the part of the High Court. The only party with legislative authority to
amend by-laws is the municipality that made those by -laws in t he first place. As the
High Court had concluded that the municipalities lacked any enabling power to make
by-laws relating to registration and transfer of property, it would not have been possible
for them to amend the by -laws in any way that corrected th e constitutional defect in a
manner other than an unqualified order of invalidity would have corrected the defect.
Supreme Court of Appeal
[19] The municipalities appealed to the Supreme Court of Appeal against the
judgment and order of the High Court. The property owners cross-appealed against the
two provisions of the High Court order that qualified the orders of invalidity.
[20] The Supreme Court of Appeal identified the legality issue as the first issue that
had to be addressed because , if the property owners were correct on the legality issue,
that would render all other issues academic.20 The Supreme Court of Appeal discussed
the scheme of local government powers under Chapter 7 of the Constitution and
sections 155 and 156 of the Constitution.21 It also analysed the provisions of SPLUMA
to consider whether the by -laws were authorised by the enabling authority of
20 Govan Mbeki Local Municipal ity v Glencore Operations South Africa (Pty) Ltd [2022] ZASCA 93; 2022 (6)
SA 106 (Supreme Court of Appeal judgment) at para 6.
21 Id at paras 14-9.
CHASKALSON AJ
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section 32(1) of SPLUMA, which states that a “municipality may pass by -laws aimed
at enforcing its land use scheme”.22
[21] It concluded that there wa s no enabling authority for the impugned by -laws.23
The Supreme Court of Appeal reasoned that the impugned by-laws were not authorised
as part of the municipal legislative competence over municipal planning because their
true subject matter was not municipal planning but registration and transfer of property:
“As this enforcement mechanism in the by -laws is a restriction on transfer, these are
not aspects of municipal planning, but matters pertaining to the transfer and registration
of property that are regulated by the Deeds Registries Act . That is not a municipal
legislative competence, but a national one.”24
[22] It concluded that the by -laws were beyond the by-law-making power conferred
by section 32(1) of SPLUMA because “the system of enforcement envisag ed in
section 32 of SPLUMA does not provide for a restriction of the transfer of land” .25
Further, it held that the by -laws did not fall within the incidental powers conferred on
municipalities by section 156(2) of the Constitution read with section 156(5). It stated
the following in this regard:
“The restriction on transfer of land is not a necessary power incidental to land -use
management, as enforcement mechanisms of its land-use scheme are already provided
for in Chapter 9 of the by -laws. The registration of transfer of property is expressly
regulated by the Deeds Registries Act and s ection 118 of the Systems Act. There is
thus no room for an implied municipal power to regulate the registrar’s statutory power
to register the transfer of properties. The embargo therefore cannot be incidental to the
effective enforcement of a land-use scheme.”26
22 Id at paras 23-32.
23 Id at para 40.
24 Id at para 35.
25 Id at para 37.
26 Id at para 40.
CHASKALSON AJ
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[23] The Supreme Court of Appeal accordingly upheld the legality challenge to the
impugned by-laws. It also endorsed the High Court’s conclusion that the imp ugned
by-laws were inconsistent with section 118 of the Systems Act and pointed out that ,
once the by-laws were not sourced in any lawful authority, the deprivation of property
that they effected amounted to an arbitrary deprivation and was additionally inconsistent
with the Constitution on this ground .27 The Supreme Court of Appeal accordingly
dismissed the municipalities’ appeals with costs.
[24] On the cross -appeal, the Supreme Court of Appeal noted that the High Court
provided no rea sons for its order suspending the declaration of invalidity. The
Supreme Court of Appeal held that it was not competent for the High Court to suspend
the declaration of invalidity without any apparent reasons for doing so. It accordingly
upheld the cross-appeals of the property owners with costs and set aside the suspension
of the declaration of invalidity of the by-laws.28
[25] Apparently due to an oversight, the Supreme Court of Appeal did not address
itself to the second aspect of the cross-appeals which sought to remove the qualifications
in the High Court order that limited the orders of invalidity to circumstances covered
by provisions of paragraphs (a) and (c) of subsection (2) of the impugned by -laws in
relation to the property owners’ mining properties.29
In this Court
[26] Aggrieved by the Supreme Court of Appeal’s decision, both municipalities filed
applications in this Court for leave to appeal and to set aside the High Court’s order
(main application). Govan Mbeki also filed a condonation application for the late filing
of the record due to the length of time it took to prepare the record whilst relying on the
27 Id at para 41.
28 Id at para 42.
29 This aspect of the cross-appeal was not addressed in the notice of cross-appeal, but we were informed from the
bar that the property owners had addressed the issue in oral argument before the Supreme Court of Appeal and
had handed up a draft order that removed the relevant qualifications in the High Court order.
CHASKALSON AJ
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services of a third -party company. The property owners oppose the municipalities’
appeals. They also seek leave to cross-appeal against the failure of the
Supreme Court of Appeal to remove the qualification in the High Court orders that
limited the orders of invalidity to circumstances covered by provisions of paragraphs (a)
and (c) of subsection (2) of the i mpugned by-laws in relation to the property owners’
mining properties.
The arguments of the municipalities
[27] Govan Mbeki complains that the property owners’ application in the High Court
was premature because the property owners failed to show any live disputes with the
municipality in relation to planning certificate applications for any of the properties that
they allegedly wanted to transfer.
[28] On the legality issue, the municipalities submit that section 156(2) of the
Constitution authorises the promulgation of by-laws as original legislation. They argue
that the power to create by -laws derives from the Constitution itself and is not subject
to the limits of the enabling authority conferred by SPLUMA. According to the
municipalities, the impugned by-laws fall under the “municipal planning” competence
in Schedule 4 to the Constitution because the impugned provisions are simply an
enforcement mechanism to give effect to the remainder of the by -laws which directly
address municipal planning issues.
[29] In this context, both municipalities invoke the decision of this Court in
DVB Behuising which held that “functional areas must be purposively interpreted in a
manner which will enable the national Parliament and the provincial legislat ures to
exercise their respective legislative powers fully and effectively”.30 The municipalities
argue that the transfer embargo in the impugned by -laws falls within their original
constitutional powers because it is a reasonable mechanism chosen to enforce municipal
planning and building regulation requirements. In this context, Emalahleni contends
30 DVB Behuising above n 14 at para 17.
CHASKALSON AJ
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that this Court must defer to the municipalities’ choice of the most appropriate
enforcement mechanisms for ensuring compliance with municipal planning
requirements.
[30] In the alternative to their primary argument that the impugned by-laws fall within
original municipal powers over municipal planning and building regulations, both
municipalities argue that, as mechanisms designed to enforce municipal planning and
building regulations provisions, the impugned by -laws fall within the “necessary and
incidental” municipal competence conferred by section 156(5) of the Constitution. In
this regard, Govan Mbeki cites a series of judgments of this Court31 and foreign courts32
that confirm that one tier of government may have incidental powers to legislate validly
within an area of exclusive legislative competence of another tier of government.
[31] Govan Mbeki also alleges , at the level of fact , that a transfer embargo is a
necessary municipal planning enforcement mechanism and thus one which may be
legislated within the municipality’s incidental powers over municipal planning, because
it is not feasible for the municipality to bear the cost of a municipal planning
inspectorate to enforce the by-laws.
[32] Alongside the municipalities’ argument that they have the power to make the
impugned by-laws under their original constitutional powers, Emalahleni submits that
section 32(1) of SPLUMA independently authorises the making of the by-laws because
that section should be interpreted broadly so as to empower municipalities to choose
any reasonable enforcement mechanisms to include in their by-laws.
31 Mazibuko v City of Johannesburg [2009] ZACC 28; 2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC) (Mazibuko)
at para 111; Ex parte President of th e Republic of South Africa: In re Constitutionality of the Liquor Bill [1999]
ZACC 15; 2000 (1) SA 732 (CC); 2000 (1) BCLR 1 (CC) ( Liquor Bill ); and Ex parte Chairperson of the
Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 [1996]
ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (Certification) at para 244.
32 M’Culloch v State of Maryland 17 US (4 Wheat) 316 (1819) (M’Culloch v State of Maryland) and General
Motors of Canada Ltd v City National Leasing 1989 CanLII 133 (SCC) ; [1989] 1 SCR 641, 58 DLR (4th) 255
(General Motors of Canada).
CHASKALSON AJ
16
[33] The municipalities also urge this Court to reject the conclusions of the
High Court and the Supreme Court of Appeal that the impugned by -laws are
inconsistent with section 118(1) of the Systems Act. In this regard, Emalahleni cites
the judgment of this Court in Telkom33 which held:
“For section 156(3) to be activated, there must be real conflict between the challenged
by-law and national legislation. And for a conflict to arise, the two pieces of legislation
must be incapable of op erating alongside each other. In other words, they must be
mutually exclusive. If they are reasonably capable of co-existing, conflict as envisaged
in section 156(3) would not have arisen.”34
[34] Emalahleni submits that, applying the Telkom test, there is no conflict between
the by-laws and section 118(1) because it is possible for property owners to comply
with both sets of statutory requirements. Section 118(1) and the by-laws merely impose
two separate sets of requirements both of which must be satisfied before land may be
transferred. Emalahleni also cites the decision of this Court in Maccsand35 as authority
for the proposition that different tiers of government can impose separate requirements
before private parties may perform certain acts and that, in such cases, compliance with
the separate requirements is required cumulatively.
[35] Finally, in relation to the property challenge, both municipalities appear to accept
that the by -laws amount to a deprivation of property. However, they emphasise the
importance of the purpose of the impugned by -laws – namely, the enforcement of
independent legal obligations in relation to municipal planning and building
regulations. They argue that, having regard to this purpose, the limited deprivation of
property ri ghts effected by the by -laws is not arbitrary and thus does not violate
section 25(1).
33 Telkom SA SOC Ltd v Cape Town City [2020] ZACC 15; 2020 (10) BCLR 1283 (CC); 2021 (1) SA 1 (CC)
(Telkom).
34 Id at para 34.
35 Maccsand (Pty) Ltd v City of Cape Town [2012] ZACC 7; 2012 (4) SA 181 (CC); 2012 (7) BCLR 690 (CC) at
para 47 (Maccsand).
CHASKALSON AJ
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The arguments of the property owners
[36] The property owners defend the findings of unconstitutionality made by the
Supreme Court of Appeal and the High Court and adopt the reasoning of the
Supreme Court of Appeal. They argue that the impugned by -laws constitute an
extensive and arbitrary deprivation of property under section 25 of the Constitution.
They also contend that the impugned by -laws are unlawful as they go beyond the
constitutional competence over “municipal planning” or “building regulations”. In this
regard, they contend that the transfer embargo deals with land registration matters, not
municipal planning or building regulation matters , that the impugned by-laws are not
necessary or incidental to those local government competences within the meaning of
section 156(5) of the Constitution, and fall beyond the enabling authority of
section 32(1) of SPLUMA.
[37] The property owners also contend that the i mpugned by -laws conflict with
section 118 of the Systems Act, and are thus invalid under section 156(3) of the
Constitution. This, so it argued, was because the by -laws render section 118
meaningless and take away the owner’s right to submit transfer docu ments to the
Registrar and to demand transfer upon production of a section 118 certificate.
The issues before this Court
[38] The applications raise the following issues:
(a) preliminary questions of condonation and prematurity;
(b) jurisdiction and whether leave to appeal should be granted;
(c) legality issues: namely whether the municipalities have the power to make
the impugned by-laws either under their original constitutional powers or
under the powers delegated to them by section 32(1) of SPLUMA;
(d) if the mun icipalities have the power to make the impugned by -laws,
whether the by -laws are inconsistent with section 118(1) of the
Systems Act;
CHASKALSON AJ
18
(e) if not, whether the impugned by -laws violate the fundamental right to
property; and
(f) if the impugned by-laws are invalid in whole or in part, what remedy this
Court should grant under its powers in terms of section 172(1) of the
Constitution.
Preliminary issues
[39] The first preliminary issue is condonation. Govan Mbeki filed an electronic copy
of the record within the deadline stipulated in the directions of this Court. However, it
failed to file hard copies of the record within that deadline. Govan Mbeki has provided
a reasonable explanation for its failure timeously to file hard copies of the record. This
failure did not interfere with the Court’s preparation for the hearing. Nor did it prejudice
the property owners in any material respects. This Court, therefore, grants
Govan Mbeki condonation for the late filing of hard copies of the deadline.
[40] The second preliminary iss ue is Emalahleni’s complaint that the property
owners’ application in the High Court was premature, because the property owners
failed to show any live disputes with the municipality in relation to planning certificate
applications for any of the properties that they allegedly wanted to sell. At the hearing
in this Court, counsel for Emalahleni rightly did not press this prematurity complaint.
[41] Since the early years of South African constitutional law, this Court has held that
an applicant has standing to challenge the constitutionality of laws in the abstract if
those laws threaten or affect the applicant’s rights. Applicants do not have to wait until
they are subjected to adverse consequences under the laws in question.36
[42] Property owners who want to sell their properties and who contend that
section 86 of the Emalahleni By -Law is constitutionally invalid do not have to go
36 Ferreira v Levin N.O. ; Vryenhoek v Powell N.O. [1995] ZACC 13; 1996 (1) SA 984 (CC) ; 1996 (1) BCLR 1
(CC) at paras 163-6.
CHASKALSON AJ
19
through the process of applying under section 86 for planning certificates in advance of
transferring their properties before they can challenge the constitutionality of
section 86. If the section affects their rights to transfer their properties, they are entitled
proactively to challenge the section in the abstract.
Jurisdiction and leave to appeal
[43] The applications for leave to appeal to this Court concern the constitutional
powers of local government and the fundamental right to property . These are plainly
matters within the constitutional jurisdiction of this Court.
[44] The issues raised by the municipalities are not frivolous. They are constitutional
issues of substance and in respect of which a decision by this Court will be in the
interests of justice. Accordingly, leave to appeal must be granted.
Analysis
[45] As illust rated by the Supreme Court of Appeal judgment, an analysis of the
constitutional validity of the impugned by-laws must start with the legality issue. Legal
authority is the logical starting point because, without legal authority, the municipalities
cannot make any valid by-laws. It follows that , if the legality challenge is successful,
the by-laws are invalid and it would be unnecessary to investigate the property challenge
or the complaint that the by-laws are inconsistent with section 118 of the Systems Act.
[46] Any investigation into whether municipalities have authority to make the
impugned by-laws must consider the scheme of local government legislative
competence under the Constitution . Th ere are four important features of the
Constitution relevant to this scheme. The first is that , with the advent of the interim
Constitution, the status of local government changed. 37 In Fedsure this Court
37 The transformation of local government since the advent of democracy and the context for this transformation
is discussed in Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council [1998]
ZACC 17; 1998 (12) BCLR 1458 (CC); 1999 (1) SA 374 (CC) (Fedsure) at paras 2-4; African National Congress
v Minister of Local Government and Housing, KwaZulu -Natal [1998] ZACC 2; 1998 (3) SA 1 (CC) ; 1998 (4)
CHASKALSON AJ
20
emphasised that local government no longer depends on national or provincial
legislation for its existence and pow ers. Rather, it is an entrenched sphere of
government with original powers that derive directly from the Constitution. 38 As this
Court stated in Robertson:39
“The Constitution has moved away from a hierarchical division of governmental power
and has ushered in a new vision of government in which the sphere of local government
is interdependent, ‘inviolable and possesses the constitutional latitude within which to
define and express its unique character ’ subject to constraints permissible under our
Constitution. A municipality under the Constitution is not a mere creature of statute,
otherwise moribund, save if imbued with power by provincial or national legislation.
A municipality enjoy s ‘original’ and constitutionally entrenched powers, functions,
rights and duties that may be qualified or constrained by law and only to the extent the
Constitution permits. Now, the conduct of a municipality is not always invalid only
for the reason that no legislation authorises it. Its power may derive from the
Constitution or from legislation of a competent authority or from its own laws.”40
[47] The municipalities are correct when they submit that they do not need to point
to a source in SPLUMA for the power to make the impugned by-laws if they can show
that this power is vested by the Constitution itself.
[48] The second relevant feature of the Constitution concerns the specific nature of
the legislative powers conferred on municipalities by the Constituti on. The powers of
municipalities are governed by section 156 of the Constitution. The primary original
powers vested in municipalities are executive powers, not legislative powers.
Section 156(1)(a) provides that m unicipalities have the original executive authority to
BCLR 399 (CC) at paras 4-12; Executive Council, Western Cape Legislature v President of the Republic of South
Africa [1995] ZACC 8; 1995 (4) SA 877 (CC) ; 1995 (10) BCLR 1289 (CC) (Executive Council, Western Cape
Legislature) at paras 182-6; and Rates Action Group v City of Cape Town 2004 (5) SA 545 (C) at paras 101-3.
38 Fedsure id at paras 54-8.
39 City of Cape Town v Robertson [2004] ZACC 21; 2005 (2) SA 323 (CC); 2005 (3) BCLR 199 (CC) (Robertson).
40 Id at para 60.
CHASKALSON AJ
21
administer any functional areas of competence listed in Part B of Schedules 4 and 5
(local government schedule matters).41
[49] The original legislative powers vested in municipalities are narrower and are
conferred only in relation to, and in aid of, the executive powers of the municipalities.
These original legislative powers are conferred by section 156(2) of the Constitution
which states that a municipality “may make . . . by-laws for the effective administration
of the matters which it has the right to administer”.
[50] The constrained by-law making power vested by the Constitution in
municipalities differs materially from the legislative powers vested in Parliament and
the provincial legislatures by section 44(1)(a)(ii) and section 104(1)(b) respectively.
The latter sections confer legislative power in direct terms. They do not define the
legislative powers of the National Assembly or the provincial legislatures with reference
to the executive powers of national or provincial governments.42 Parliament and the
provincial legislatures both have unqualified legislative power within their functional
areas of competence . In obvious contrast , the original local government legislative
power is limited only to the making of laws for the effective ex ercise of local
government executive power over local government schedule matters. The lesser status
of local government legislative power under the Constitution is also reflected in
section 156(3) of the Constitution which invalidates local by -laws that conflict with
national or provincial legislation.43
41 Section 156(1)(b) of the Constitution recognises that a municipality will also have executive authority over “any
other matter assigned to it by national or provincial legislation” but this is not original executive authority.
42 Section 44(1)(a)(ii) confers on the National Assembly the power “to pass legislation with regard to any matter,
including a matter within a functional area listed in Schedule 4, but excluding, subject to subsection (2), a matter
within a functional area listed in Schedule 5”.
Section 104(1)(b) vests a provincial legislature with the power—
“to pass legislation for its province with regard to—
(i) any matter within a functional area listed in Schedule 4;
(ii) any matter within a functional area listed in Schedule 5.”
43 Sections 156(2) and 156(3) of the Constitution.
CHASKALSON AJ
22
[51] The Constitution confers only limited legislative powers on municipalities
because, mindful of the acute legacy of apartheid at a local level, 44 the constitutional
scheme contemplates that the primary duties of municipalities must be in relation to
service delivery ,45 which is quintessentially an executive function , not a legislative
function. The limited legislative role of local government is also reflected in the fact
that the Constitution does not create separate legislative and executive bodies for local
governments, as it does in the case of the national and provincial governments. Rather,
it vests the legislative powers of local government in the same councils that are the
executive authorities of municipalities.46
44 See the authorities cited at n 37 above.
45 This is reflected in sections 152 and 153 of the Constitution which set out the objects and developmental duties
of municipalities and state the following:
“152 Objects of local government
(1) The objects of local government are—
(a) to provide democratic and accountable government for local
communities;
(b) to ensure the provision of services to communities in a sustainable
manner;
(c) to promote social and economic development;
(d) to promote a safe and healthy environment; and
(e) to encourage the involvement of communities and community
organisations in the matters of local government.
(2) A municipality must strive, within its financial and administrative capacity,
to achieve the objects set out in subsection (1).
153 Developmental duties of municipalities
A municipality must—
(a) structure and manage its administration and budgeting and planning processes
to give priority to the basic needs of the community, and to promote the social
and economic development of the community; and
(b) participate in national and provincial development programmes.”
See also Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v
Habitat Council [2014] ZACC 9; 2014 (4) SA 437 (CC); 2014 (5) BCLR 591 (CC) (Habitat Council) at para 14
where this Court described municipalities as “the frontiers of service delivery”.
46 Section 151(2) of the Constitution. See Democratic Alliance v Masondo N .O. [2002] ZACC 28; 2003 (2) SA
413 (CC); 2003 (2) BCLR 128 (CC) (Masondo) at para 21.
CHASKALSON AJ
23
[52] In terms of section 156(5), municipalities also have the right to exercise powers
over matters that are “reasonably necessary for, or incidental to, the effective
performance of [their] functions”.47 Whatever the ambit of the necessary or incidental
executive powers vested in municipalities by section 156(5), there is only limited scope
for necessary or incidental local government legislative powers deriving directly from
section 156(5) of the Constitution. Th is is because th e primary legislative power of
municipalities is, itself, framed in the nature of a power that is incidental to the original
executive powers vested in municipalities – it is a power which is limited to the making
of “by-laws for the effective administration of the matters which [a municipality] has
the right to administer ”. Reading section 156(5) as a direct source of incidental
municipal legislative powers would render section 156(2) superfluous.
[53] However, section 156(5) may serve as an indirect source of legislat ive power.
If, in terms of section 156(5), certain executive powers are reasonably necessary for or
incidental to the effective performance of a municipality’s functions in respect of local
government schedule functions, such additional executive powers are vested directly in
the municipality by section 156(5) of the Constitution. Section 156(2) then empowers
the municipality to make by -laws to assist in the effective implementation of these
additional executive powers.
[54] This principle is illustrated by the judgment of this Court in Mazibuko.48 One of
the issues in Mazibuko concerned the installation of pre -paid water meters by the City
of Johannesburg. In this context, this Court had to decide whether a by -law which
referred to a “metered full pressure water connection” should be interpreted to refer
only to post -paid meters and thus not to permit the City to exercise powers vested in
47 Section 156(5) of the Constitution. The section states:
“A municipality has the right to exercise any power concerning a matter reasonably necessary
for, or incidental to, the effective performance of its functions.”
48 Mazibuko above n 31.
CHASKALSON AJ
24
respect of “metered full pressure water connections” in relation to pre-paid meters. This
Court found that—
“the power to install pre-paid meters is one which is reasonably incidental to providing
services to citizens in a sustainable manner that permits cost recovery [and therefore]
it is a power that is reasonably incidental to the effective performance of the functions
of a municipality.”49
Having found that the power to install pre -paid meters was incidental to what was an
executive function of the City (providing services in a sustainable manner), this Court
interpreted the by -law so as to assist the effective administration of this incidental
executive power . So , it held that references to “metered full pressure water
connections” included pre-paid meters.50
[55] The third feature of the Constitution relevant to the scheme of local government
competence flows from Gauteng Development Tribunal 51 where this Court stated that
“barring functional a reas of concurrent competence, each sphere of government is
allocated separate and distinct powers which it alone is entitled to exercise ”.52 There
are numerous judgments of this Court that emphasi se that the powers allocated to
different spheres of government are not contained in hermetically sealed compartments
and that some overlap is necessary. 53 However, the provision in the Constitution for
exclusive powers of provincial and local government is a feature that departs from the
scheme of the interim Constitution. With very few exceptions, the latter did not vest
exclusive powers in provincial or local gov ernment and generally contemplated a
49 Id at para 111.
50 Id at paras 108 and 111.
51 City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal [2010] ZACC 11; 2010 (6)
SA 182 (CC); 2010 (9) BCLR 859 (CC) (Gauteng Development Tribunal).
52 Id at para 56. See also Merafong City Local Municipality v AngloGold Ashanti Ltd [2016] ZACC 35; 2017 (2)
SA 211 (CC); 2017 (2) BCLR (CC) (AngloGold Ashanti Ltd).
53 See for example Organisation Undoing Tax Abuse v Minister of Transport [2023] ZACC 24; 2023 (10) BCLR
1189 (CC); 2024 (1) SA 21 (CC) (OUTA) at para 82(g); Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning
and Development Appeal Tribunal [2016] ZACC 2; 2016 (3) SA 160 (CC); 2016 (4) BCLR 469 (CC) ( Tronox)
at para 20; and Gauteng Development Tribunal above n 51 at para 55.
CHASKALSON AJ
25
regime in which the powers of provincial and local government would be exercised
concurrently with those of national government.54 Judgments addressing the approach
to the interpretation of powers in relation to functio nal areas under the interim
Constitution were not affected by concerns of a scheme of exclusivity running through
the Constitution and may not reflect the correct approach to similar questions under the
Constitution today.
[56] The fourth relevant feature of t he Constitution is the scheme of co -operative
government under the Constitution. Both subsections (2) and (5) of section 156 must
be interpreted within the broader context of how powers are distributed under the
Constitution within this scheme of co -operative government. If municipalities want
powers over functional areas falling within national or provincial competence, they are
entitled to request th at such powers be vested in them or even assigned to them as
contemplated by sections 99, 126, 156(1)(b), 156(4), and 238 of the Constitution 55 in
54 See for example Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text
of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 24; 1997 (1) BCLR 1 (CC); 1997 (2) SA
97 (CC) at paras 149-151 and Ex parte S peaker of the National Assembly: In re Dispute Concerning the
Constitutionality of Certain Provisions of the National Education Policy Bill 83 of 1995 [1996] ZACC 3;1996 (3)
SA 289 (CC); 1996 (4) BCLR 518 (CC). The shift to a constitutional regime of exclusive powers was a product
of the Constitutional Principles in Schedule 4 to the interim Constitution. Constitutional Principle XIX prescribed
that the final Constitution would have to provide for exclusive and concurrent powers at national and provincial
levels of government. So, while the interim Constitution itself operated on a principle of concurrent powers, not
exclusive powers, it prescribed that the final Constitution would operate differently.
55 The relevant provisions of the Constitution state the following:
“99 Assignment of functions
A Cabinet member may assign any power or function that is to be exercised or
performed in terms of an Act of Parliament to a member of a provincial Executive
Council or to a Municipal Council. An assignment—
(a) must be in terms of an agreement b etween the relevant Cabinet member and
the Executive Council member or Municipal Council;
(b) must be consistent with the Act of Parliament in terms of which the relevant
power or function is exercised or performed; and
(c) takes effect upon proclamation by the President.”
“126 Assignment of functions
A member of the Executive Council of a province may assign any power or function that is to
be exercised or performed in terms of an Act of Parliament or a provincial Act, to a Municipal
Council. An assignment—
(a) must be in terms of an agreement between the relevant Executive Council member and
the Municipal Council;
CHASKALSON AJ
26
the case of executive powers or sections 44(1)(a)(iii) and 104(1)(c) of the Constitution
in the case of legislative powers.56
[57] If municipalities have a legitimate claim to powers falling within the functional
areas of provincial and national competence in order to enforce or support their own
(b) must be consistent with the Act in terms of which the relevant power or function is
exercised or performed; and
(c) takes effect upon proclamation by the Premier.”
“156 Powers and functions of municipalities
(1) A municipality has executive authority in respect of, and has the right to
administer—
. . .
(b) any other matter assigned to it by national or provincial legislation.
. . .
(4) The national government and provincial governments must assign to a
municipality, by agreement and subject to any conditions, the administration
of a matter listed in Part A of Schedule 4 or Part A of Schedule 5 which
necessarily relates to local government, if—
(a) that matter would most effectively be administered locally; and
(b) the municipality has the capacity to administer it.”
“238 Agency and delegation
An executive organ of state in any sphere of government may—
(a) delegate any power or function that is to be exercised or performed in terms of
legislation to any other executive organ of state, provided the delegation is consistent
with the legislation in terms of which the power is exercised or the function is
performed; or
(b) exercise any power or perform any function for any other executive organ of state on
an agency or delegation basis.”
56 The relevant provisions of the Constitution state the following:
“44 National legislative authority
(1) The national legislative authority as vested in Parliament—
(a) confers on the National Assembly the power—
. . .
(iii) to assign any of its legislative powers, except the power to
amend the Constitution, to any legislative body in another
sphere of government.”
“104 Legislative authority of provinces
(1) The legislative authority of a province is vested in its provincial legislature,
and confers on the provincial legislature the power—
. . .
(c) to assign any of its legislative powers to a Municipal Council in that
province.”
CHASKALSON AJ
27
powers over local government schedule matters, the system of co-operative government
will operate to ensure that such powers are assigned to them. In this regard, apart from
the general co-operative government obligations to local government under Chapter 2,
national and provincial government are bound by the specific obligation s in
sections 154(1) and 156(4) of the Constitution which state:
“154 Municipalities in co-operative government
(1) The national government and provincial governments, by legislative
and other measures, must support and strengthen the capacity of
municipalities to manage their own affairs, to exercise their powers
and to perform their functions.”
“156 Powers and functions of municipalities
. . .
(4) The national government and provincial governments must assign to a
municipality, by agreement and subject to any conditions, the
administration of a matter listed in Part A of Schedule 4 or Part A of
Schedule 5 which necessarily relates to local government, if—
(a) that matter would most effectively be administered locally;
and
(b) the municipality has the capacity to administer it.”
[58] Where a municipality wants to exercise powers over matters falling outside
Part B of Schedule 4 or 5 merely because it considers such powers desirable to support
its powers over local government schedule matters, the national government or
provincial government with authority over the relevant non-local government schedule
matters may choose to assign the relevant powers to the municipality that requests them.
Equally, however, it may choose not to assign the relevant powers to the municipality.
[59] The choice to vest municipalities with powers over matters that are not local
government schedule matters is ordinarily a choice that is to be made by the national
government or the relevant provincial government. It is not a choice that can simply be
assumed by a municipality invoking incidental executive powers under section 156(5)
or the incidental legislative competence under section 156(2). So, a municipality cannot
CHASKALSON AJ
28
routinely invoke sections 156(2) or 156(5) to lay claim to powers over matters falling
outside of the local government schedules merely because the municipality conside rs
that it would be convenient or desirable to have access to such powers for the purpose
of performing its functions over local government schedule matters.
[60] Having regard to this broad scheme of local government competence under the
Constitution, it is necessary to consider the three possible sources of legal authority for
the impugned by -laws that the municipalities assert . First , there is the power under
section 156(2) of the Constitution to make by -laws for the effective administration of
“municipal planning” or “building regulations” , which are local government schedule
matters over which the municipalities are given authority under section 156(1)(a) of the
Constitution. Second, there is the incidental power of municipalities under
section 156(5) of the Constitution. The third potential source relied upon by the
municipalities is section 32(1) of SPLUMA. As pointed out above, in section 32(1) of
SPLUMA, Parliament has expressly assigned by -law making powers in respect of the
enforcement of land use schemes to municipalities.57 Each of these potential sources of
authority for the impugned by-laws will be considered in turn.
Section 156(2)
[61] The municipalities’ invocation of section 156(2) as a source of legal authority
for the impugned by -laws was based on submissions as to how this Court approached
the subject matter of a law with respect to functional areas of competence in
DVB Behuising and Abahlali.58 These cases, however, are not appropriate reference
points because they dealt respectively with questions of provincial executive
competence under the transitional provisions under the interim Constitution and
provincial legislative competence under the current Constitution. Both of these
competences were competences which the respective consti tutions vested in provinces
in relation to functional areas of competence in unqualified terms. In contrast, the
57 See sections 156(1)(b) and 44(1)(a)(iii) of the Constitution.
58 Abahlali BaseMjondolo Movement SA v Premier of the Province of Kwa-Zulu Natal [2009] ZACC 31; 2010 (2)
BCLR 99 (CC).
CHASKALSON AJ
29
limited legislative competence vested in municipalities is an incidental competence ,
vesting a municipality only with the power to make laws for the effective administration
of the matters which they have the executive power to administer.
[62] For similar reasons, there is not much assistance to be gained by looking to other
cases dealing with the characterisation of subject matter of legislation in relation to the
legislative powers of the provinces under the interim Constitution, 59 the legislative
powers of national or provincial government under the Constitution,60 or the unqualified
executive authority of municipalities over local government schedule matters under the
Constitution.61 The question to be answered in this case is not whether the impugned
by-laws are properly characterised as laws with respect to the functional areas of
municipal planning and building regulations. It is the materiall y different question of
whether the impugned by -laws fall within the legislative competence of the
municipalities to make by -laws for the effective administration of municipal planning
and building regulations.
[63] Once the question is framed correctly, the m unicipalities’ claim of original
legislative competence under section 156(2) does not stand up to scrutiny for two
separate reasons. First, the by -law making power conferred by section 156(2) on a
municipality is a power to make by -laws “for the effective administration of matters
which it has the right to administer” . Implicit in section 156(2) power is that the
effective administration contemplated by the Constitution is administration by the
municipality itself, rather than by organs of state under the control of the national or
provincial executives. The purpose of a transfer embargo is not for a municipality itself
to administer municipal planning and building regulations. Rather, it is a device
designed to enlist the Registrar of Deeds, a national government organ of state, in the
59 See for example Ex parte Speaker of the KwaZulu-Natal Provincial Legislature: In re KwaZulu-Natal Amakhosi
and Iziphakanyiswa Amendment Bill of 1995, Ex parte Speaker of the KwaZulu -Natal Provincial Legislature:
In re Payment of Salaries, Allowances and Other Privileges to the Ingonyama Bill of 1995 [1996] ZACC 15; 1996
(4) SA 653 (CC); 1996 (7) BCLR 903 (CC) (Amakhosi).
60 See for example OUTA above n 53 and Liquor Bill above n 31.
61 Gauteng Development Tribunal above n 51 and OUTA above n 53.
CHASKALSON AJ
30
administration of a function that the Constitution designates as a municipal
responsibility.
[64] Even if it were notionally possible for by -laws to be made under section 152 to
enlist the support of national or provincial executive authorities in the administration of
local government matters, the by-laws in this case would not fall into such a category.
[65] Govan Mbeki argued that it could not “ effectively perform its municipal
planning functions without a suitable enforcement m echanism” and that the transfer
embargo in the impugned by -laws was the most suitable enforcement mechanism
available to it. The Supreme Court of Appeal gave short shrift to this argument ,
holding:
“The restriction on transfer of land is not a necessary power incidental to land -use
management, as enforcement mechanisms of its land-use scheme are already provided
for in Chapter 9 of the by-laws.”62
[66] The Chapter 9 enforcement mechanisms to which the Supreme Court of Appeal
referred include the creation of criminal offences for contraventions of the by -laws,63
municipal powers to serve compliance notices on owners and persons suspected of
unlawful land use or construction activity, 64 municipal powers to direct owners and
occupiers to demolish unauthorised building work, 65 and municipal powers of entry
onto private properties for the purposes of enforcing the by-laws.66 These enforcement
mechanisms supplement67 and amplify the enforcement mechanisms contained within
62 Supreme Court of Appeal judgment above n 20 at para 40.
63 Section 162 of the Govan Mbeki By-Law and section 174 of the Emalahleni By-Law.
64 Sections 163 and 164 of the Govan Mbeki By-Law and sections 175 and 176 of the Emalahleni By-Law.
65 Section 163(2)(a) of the Govan Mbeki By-Law and section 175(2)(a) of the Emalahleni By-Law.
66 Sections 169 and 171 of the Govan Mbeki By-Law and sections 181 and 183 of the Emalahleni By-Law.
67 Section 170(1) of the Govan Mbeki By-Law makes clear that, for the purposes of ascertaining compliance with
the by-laws, an authorised employee of the municipality may exercise any of the powers conferred by section 32
of SPLUMA. The corresponding provisions of the Emalahleni By-Law is section 182(1).
CHASKALSON AJ
31
section 32 of SPLUMA.68 The by -laws also make clear that, in addition to these
enforcement powers, the municipality retains its power to approach the courts for
interdictory and other appropriate relief to enforce the by-laws.69
68 Section 32 states in relevant part:
“(3) A municipality—
(a) may designate a municipal official or appoint any other person as an inspector
to investigate any non-compliance with its land use scheme; and
(b) must issue each inspector with a written designation or appointment in the
prescribed form, stating that the person has been appointe d in terms of this
Act.
. . .
(5) An inspector contemplated in subsection (3) may, subject to subsection (8)—
(a) enter any land at any reasonable time without previous notice for the purpose
of ascertaining an issue required to ensure compliance with this Act;
(b) question any person who is or was on or in such land, either alone or in the
presence of any other person, on any matter to which this Act relates;
(c) require from any person who has control over or custody of a book, record or
other document on or in such land, to produce to the inspector forthwith, or
at such time and place as may be determined by the inspector, such book,
record or other document;
(d) examine any such book, record or other document or make a copy thereof or
an extract therefrom;
(e) require from such a person an explanation of any entry in such book, record
or other document;
(f) inspect any article, substance, plant or machinery which is or was on the land,
or any work performed on the land or any condition prevalent on the land, or
remove for examination or analysis any article, substance, plant or machinery
or a part or sample thereof;
(g) seize any book, record or other document or any article, substance, plant or
machinery or a part or sample thereof which in his or her opi nion may serve
as evidence at the trial of any person charged with an offence under this Act
or the common law: Provided that the user of the article, substance, plant or
machinery concerned, as the case may be, may make copies of such book,
record or document before such seizure; and
(h) direct any person to appear before him or her at such time and place as may
be determined by the inspector and question such person either alone or in the
presence of any other person on any matter to which this Act relates.
(6) When an investigator enters any land in terms of subsection (5), a person who controls
or manages the land must at all times provide such facilities as are reasonably required
by the inspector to enable him or her to perform his or her functions eff ectively and
safely under this Act.
. . .
(9) An inspector may, where necessary, be accompanied by a police official or any other
person reasonably required to assist him or her in conducting the inspection.
CHASKALSON AJ
32
[67] Govan Mbeki sought to bolster its claim to transfer embargoes as a power
required for it “ effectively [to] perform its municipal planning functions ” by alleging
that the cost of setting up a municipal planning inspectorate was beyond its means.
Emalahleni did not put up any evidence of its own in this regard but advanced a similar
argument, relying on the evidence of Govan Mbeki. However, on proper analysis, the
evidence of Govan Mbeki undermines the proposition for which the municipalities
sought to use it.
[68] The proposed budget for a planning inspectorate prepared by the Govan Mbeki
deponent, Mr van der Merwe, estimated the start -up cost per planning inspector ,
including equipment, training, first year salary and vehicle expenses, at only R564 800.
After once-off start-up costs were stripped out of this budget, the recurrent cost of the
entire proposed five-person planning inspectorate was not much more than R2.5 million
per annum. This cost is not one that should be beyond the means of a municipality the
size of Govan Mbeki if it is a functional municipality.
[69] Govan Mbeki put up no information relating to its overall budget to suggest that
it could not afford the R 2.5 million per annum cost of the inspectorate that it regarded
as necessary to enforce the by-laws. Emalahleni put up no evidence whatsoever relating
to the affordability of a planning municipal inspectorate. So, on the evidence before
this Court, cost considerations do not support the notion that transfer embargoes are a
power vested in municipalities by the Constitution to enforce their municipal planning
schemes and building regulations effectively because inspectorates are unaffordable.
(10) An inspector may issue a compliance notice in the prescribed form to the person who
controls or manages the land or the owner or person in control of a private dwelling if
a provision of this Act has not been complied with.
(11) A compliance notice remains in force until the relevant provision of t he Act has been
complied with and the inspector has issued a compliance certificate in respect of that
notice.”
69 Section 166(b) of the Govan Mbeki By-Law and section 178(b) of the Emalahleni By-Law.
CHASKALSON AJ
33
[70] Quite aside from the absence of evidence to support the municipalities’ cost
argument, there is a principled problem with this argument. In effect, the municipalities
are asking to be allowed to slough off the executive responsibilities vested in them by
section 32 of SPLUMA and Chapter 9 of their own by -laws, and to replace the pro -
active administrative enforcement system designed by SPLUMA and the by-laws with
one which depends on the retrospective enforcement of planning requirements by
property owners themselves and the Registrar of Deeds when a property is sold. This
is an unlawful abdication of executive obligations imposed on the municipalities.
[71] Chapter 9 of the by-laws does not give the municipalities a discretion to decline
to enforce planning requirements proactively. It includes provisions which impose on
the municipalities clear enforcement obligations that require a functional municipal
planning inspectorate. Thus, both by-laws state that:
“The Municipality must comply and enforce compliance with—
(a) the provisions of this By-law;
(b) the provisions of a land use scheme;
(c) conditions im posed in terms of this By -law or previous planning
legislation; and
(d) title deed conditions.”70 (Emphasis added.)
“The Municipality must serve a compliance notice on a person if it has reasonable
grounds to suspect that the person or owner is guilty of [a planning related offence
created by the by-laws].”71 (Emphasis added.)
[72] The requirement for a functional municipal planning inspectorate is also
contemplated by the provisions of section 32 of SPLUMA quoted above. 72 In the
circumstances, if a municipali ty objectively lacks the financial resources to create a
70 Section 161 of the Govan Mbeki By-Law and section 173 of the Emalahleni By-Law.
71 Section 163(1) of the Govan Mbeki By-Law and section 175(1) of the Emalahleni By-Law.
72 See above n 68.
CHASKALSON AJ
34
functional municipal planning inspectorate, its remedy is to call on the
national government to provide it with the necessary allocation of additional revenue
under section 214 of the Constitution, 73 as part of the co -operative government
obligations of national government under sections 151(4)74 and 154(1)75 of the
Constitution. It s remedy is not to look for shortcuts that will enable it to abdicate its
executive responsibilities.
[73] The superficial attraction of the municipalities’ argument that a transfer embargo
should be seen as falling within the original by -law making power conferred by the
Constitution flows from fact that the municipal planning function and the national deeds
registration functions are capable of being confused with one another. The Constitution,
however, treats the national deeds registration function separately from the municipal
73 Section 214 titled “Equitable shares and allocations of revenue” states:
“(1) An Act of Parliament must provide for—
(a) the equitable division of revenue raised nationally among the national,
provincial and local spheres of government;
. . .
(c) any other allocations to provinces, local government or municipalities from
the national government’s share of that revenue, and any conditions on which
those allocations may be made.
(2) The Act referred to in subsection (1) . . . must take into account—
. . .
(d) the need to ensure that the provinces and municipalities are able to provide
basic services and perform the functions allocated to them;
(e) the fiscal capacity and efficiency of the provinces and municipalities;
(f) developmental and other needs of provinces, local government and
municipalities;
. . .
(h) obligations of the provinces and municipalities in terms of national
legislation.”
74 Section 151(4) states:
“The national or a provincial government may not compromise or impede a municipality’s
ability or right to exercise its powers or perform its functions.”
75 Quoted in [57] above.
CHASKALSON AJ
35
planning function.76 Once these two functions are separated, there is no basis to treat a
by-law dealing with the national function as falling within the competence to make
by-laws for the effective administration of the municipal competence, simply because
it is used to enforce matters relating to that municipal competence.
[74] As the property owners pointed out in argument, if an embargo on registration
of transfer is seen as falling within the original municipal legislative competence
conferred by the Constitution simply because the municipality would want to use it to
enforce compliance with town planning by-laws or building regulations, there would be
no principled basis for distinguishing cases where a municipality wanted to use a
transfer embargo to enforce compliance in relation to another municipal competence.
So, a municipality would be entitled to make by -laws placing an embargo on
registration of transfer without certificates confirming that, for example:
(a) “smart” electricity and water meters had been installed at the property in
accordance with a municipal polic y that all properties should now have
meters of this nature installed;77
(b) no public nuisance was being created at the property; or
(c) no sale of food or liquor to the public had been taking place at the property
otherwise than in accordance with a lawfully issued licence, and any fines
in relation to unlawful food or liquor trade from the property had been
paid in full.
[75] Such embargoes would be no less capable of being characterised as by -laws
made for the effective administration of the underlying municipal competences over
water services, electricity reticulation, the control of public nuisances or the control of
undertakings that sell food or liquor to the public, than the embargoes in the present
76 “Municipal planning” is expressly inc luded in Part B of Schedule 4 and is thus a local government matter.
Deeds registration appears in none of the schedules in the Constitution and, as pointed out in DVB Behu ising
above n 14 at para 55, is a residual functional area of national government competence.
77 In fact, section 14(1) of the City of Cape Town Water By -Law, 2010 (Western Cape Provincial Gazette 6847,
18 February 2011) purports to require a seller wishing to transfer ownership of their property first to produce a
certificate from a plumber confirming that the water installation at the property conforms to the requirements of
the by-law.
CHASKALSON AJ
36
case can properly be characterised as by-laws made for the effective administration of
the municipal competences over building regulations and municipal planning.
[76] In fact, the logical problem goes much further. If the transfer embargo in the
impugned by -laws is seen as falling within the original municipal legislative
competence conferred by section 156(2) of the Constitution and not as an impermissible
attempt to exercise legislative power within the national government area of
competence over deeds registration matters, there would be no principled basis for
distinguishing cases where a municipality wanted to legislate within the fields of other
provincial or national government competences to create embargoes to enforce
compliance with building regulations and municipal planning requirements. So, on the
logic of the municipalities’ approach, the original legislative power conferred on them
by the Constitution, compliance with building regulations and municipal planning
requirements could be enforced by by-laws requiring certificates of the sort
contemplated by the by-laws at issue in the present case as a pre-condition for—
(a) the owner or occupant of a property to apply for an identity document or
a passport;
(b) the owner or occupant of a property to apply for a cellphone SIM card; or
(c) the own er or occupant of a property to export goods that had been
manufactured or stored at the property.
[77] The two problems described above would also operate interchangeably. On the
logic of the municipalities’ argument, the Constitution would empower municipal ities
to enforce compliance with legal requirements in relation to any municipal functional
area of competence by imposing embargoes in relation to any functional area of
provincial or national competence. Provided only that the purpose of the embargo was
to enforce requirements relating to a matter within municipal competence, there would
be no limits to the functional areas in which municipalities could impose embargoes
through by-laws.
CHASKALSON AJ
37
[78] The examples above show that there is no merit to the municipalities’ argument
that any measure to enforce compliance with by -laws addressing local government
schedule matters is a power vested in municipalities directly by the Constitution . The
judgment of my Colleague, Dodson AJ, (the second judgment) disagrees and asserts
that the transfer embargoes in the present case are somehow distinguishable. However,
the second judgment is unable to provide any conceptual basis for distinguishing the
transfer embargoes in the impugned by-laws from the notional embargoes contemplated
above. The only suggestion it offers in this regard is that if a municipality were to use
transfer embargoes to enforce by -laws relating to municipal competences other than
municipal planning and building regulations it would still have to show that those
transfer embargoes were not invalid under sections 25(1) and 156(3) of the
Constitution. But that conflates two separate issues. The issue to be determined first is
the issue of legislative competence – whether the Constitution confers original power
on municipalities to make the impugned transfer embargo by -laws. The question of
invalidity for inconsistency with section 25(1) and 156(3) of the Constitution is an
entirely different enquiry and one that presupposes legislative competence.
Section 156(5)
[79] As pointed out above, there is no scope for additional incidental legislative
powers to be conferred on municipalities directly by section 156(5) of the Constitution
because the primary legislative power under section 156(2) is, itse lf, framed as an
incidental power , and section 156(5) should not be interpreted so as to render
section 156(2) superfluous.
[80] To the extent that section 156(5) can operate, together with section 156(2)
indirectly to vest additional legislative powers in mun icipalities for the effective
implementation of additional executive powers vested by section 156(2), it does not
assist the municipalities. In support of its argument on incidental powers, Govan Mbeki
referred to a range of judgments, local and foreign, dealing with the issue of incidental
powers vested by a constitution. These judgments are illustrative of the types of powers
that courts have recognised as incidental powers in a constitutional context—
CHASKALSON AJ
38
(a) the power to charge service fees for the provision of services within a
functional area of competence, as recognised by this Court in the
Certification judgment as an incident of the authority over the functional
area in question;78
(b) the power to pro cure or install equipment relating to the relevant
functional area of competence, for example, the power to install pre-paid
meters as an incident of municipal competence over the functional area
of water services, as recognised by this Court in Mazibuko;79
(c) the power to incorporate a body to perform functions within the areas of
competence assigned to the United States Government by the individual
States within the US Federal system, that was the incidental power of the
United States Government recognised by the United States
Supreme Court in M’Culloch v State of Maryland;80 and
(d) the power to create a civil claim for anti -competitive acts that the
Canadian Supreme Court recognised as an incident of the Canadian
Federal Government’s authority over the regulation of trade and
commerce in General Motors of Canada.81
[81] Counsel for Emalahleni went so far as to describe these powers (and other similar
powers, such as the power to create criminal offences or to impose administrative fines
in relation to local government schedule matters) as “colourless powers”, in the sense
that they did not relate specifically to a single functional area of competence, but rather
were powers that could be used to reinforce any functional area of competence. The
concept of “colourless powers” may be open to question.82 However, the narrow ambit
of the incidental powers recognised in the constitutional authorities cited by the
78 Certification above n 31 at para 438.
79 Mazibuko above at n 31 at para 111.
80 M’Culloch v State of Maryland above n 32.
81 General Motors of Canada above n 32.
82 For example, the creation of civil claims or criminal offences implicate the criminal and civil justice systems
which are functional areas of national government competence, even if most of the officials working in those
systems fall within the judicial branch of government, or the constitutionally independent National Prosecuting
Authority, rather than the Departments of State controlled by the National Executive.
CHASKALSON AJ
39
municipalities reflects the fact that incidental powers cannot be invoked loosely to
exercise power over matters falling within functional areas assigned to other tiers of
government and implicating the duties of state officials under the control of executive
authorities in other tiers of government.
Section 32(1) of SPLUMA
[82] There remains the third possible source of legal authority for the impugned
by-laws. It is the authority to make by -laws under section 32(1) of SPLUMA which
vests municipalities with the power to make by -laws “aimed at enforcing its land use
scheme”.
[83] It is clear from sections 44(1)(a)(iii), 104(1)(c) and 156(1)(b) of the Constitution
that Parliament and the provincial legislatures can assign powers, including by -law
making powers, in municipalities over matters which fall outside the functional areas
of original municipal competence. 83 So, section 32(1) of SPLUMA could, notionally,
have vested municipalities with the po wer to make enforcement by -laws that impose
transfer embargoes. However, the scheme of local government powers under the
Constitution demands that any by -law making power vested in municipalities by
national or provincial legislation does not ordinarily extend beyond the power to make
by-laws in relation to local government schedule matters unless the contrary intention
is clear in the enabling provision in the national or provincial legislation.
[84] There is nothing in section 32(1), or indeed in SPLUMA more broadly,84 which
suggests an intention to confer by-law making powers which would vest municipalities
83 See for example Part 4 of the Housing Act 107 of 1997, which assigns to muni cipalities extensive executive
powers over housing matters even though housing is not a functional area of municipal competence but rather a
Part A Schedule 4 area of concurrent national and provincial competence. Read with Part 4 of the Housing Act,
section 156(2) of the Constitution then gives municipalities the power to make by -laws for the effective
administration of the matters assigned to them in terms of Part 4 of the Housing Act.
84 Para (e) of subsection (2) of the impugned by -laws bears some resem blance to the embargo contained in
section 53 of SPLUMA which states:
CHASKALSON AJ
40
with powers generally to embargo the transfer of propert ies without the production of
planning certificates. SPLUMA has considered when municipalities s hould be vested
with registration embargo powers relating to planning compliance . Section 53 of
SPLUMA confines such powers to cases of registration arising out of original land
development applications. It provides that in such cases transfer shall not be registered
“unless the municipality certifies that all the requirements and conditions for the
approval have been complied with” . Section 74 of the Govan Mbeki By -Law and
section 84 of the Emalahleni By-Law adumbrate section 53 of SPLUMA by restating
the transfer embargo it imposes and setting out in detail the requirements and conditions
that must be certified by the municipality before transfer can proceed. These by-laws
clearly fall within the by-law making power conferred by section 32(1) of SPLUMA
read with section 53 thereof.
[85] However, the embargoes in sections 76 and 86 of the respective Govan Mbeki
and Emalahleni By-Law do not confine their operation to original registrations arising
out of land development applications. They purport to apply to all transfers of property
after such original registrations. In so doing, they purport to regulate deeds registration
and transfer in a manner that goes beyond not only section 53 of SPLUMA but also
section 118 of the Systems Act. Embargoes that encroach in this way on the national
competence over land transfer and deeds registration are not obviously contemplated
by SPLUMA. Therefore, section 32(1) cannot be interpreted to confer on
municipalities the power to impose transfer embargoes of the sort contained in the
impugned by-laws.
“The registration of any property resulting from a land development application may not be
performed unless the municipality certifies that all the requirements and conditions for the
approval have been complied with.”
However, section 2(e) of the impugned by -laws goes significantly beyond section 53 of SPLUMA. As pointed
out by counsel for the property owners, section 53 imposes only an original registration embargo which requires
a local government certificate as a precondition for first registration of the developed or sub -divided property
upon the original development of a township register or subdivision of a property. Para (e) of subsection (2)
imposes a transfer embargo that bur dens the property in perpetuity whenever there is an attempt to transfer it.
That para (e) embargoes subsequent transfer as opposed to original registration is clear not only from the wording
of the by-law, which refers to “transfer” not “registration”, b ut also because the original registration embargo is
already addressed both by section 53 of SPLUMA and by the unimpugned provisions of section 74(2)(d) of the
Govan Mbeki By-Law and section 84(2)(d) of the Emalahleni By-Law.
CHASKALSON AJ
41
The second judgment
[86] The second judgment finds that the impugned by -laws fall within the by -law
making power conferred by section 156(2) of the Constitution. I have engaged with
some of the reasoning in the second judgment in my discussion above. My broad
conceptual differences with the second judgment are summarised in the following
paragraphs.
[87] First, the second judgment seeks to negate the clear wording of the Constitution
that distinguishes between the unqualified legislative competences conferred by the
Constitution on Parliament and provincial legislatures and the limited legislative
competence conferred by the Constitution on municipalities in terms that are framed as
an incidental power to municipalities’ executive powers. The second judgment cannot
account for the clear textual differences between section 156(2) on the one hand , and
sections 44(1)(a)(ii) and 104(1)(b) on the other. So, it effectively turns a blind eye to
these differences.
[88] The second judgment states that “the conferral of legislative authority on
provincial legislatures in terms of section 104(1)(b) is as circumscribed as its conferral
on municipalities in section 156(1) and (2)” .85 This is simply incorrect.
Section 104(1)(b) does not confer legislative power on a province “f or the effective
administration of the matters which it has the right to administer”. It confers legislative
power on a province—
“to pass legislation for its province with regard to—
(i) any matter within a functional area listed in Schedule 4;
(ii) any matter within a functional area listed in Schedule 5;
(iii) any matter outside those functional areas, and that is expressly
assigned to the province by national legislation; and
85 At [210(b)] of the second judgment.
CHASKALSON AJ
42
(iv) any matter for which a provision of the Constitution envisages the
enactment of provincial legislation.”
The manner in which section 104(1)(b) confers legislative powe r on the provinces is
self-evidently broader than the manner in which section 156(2) confers legislative
power on municipalities.
[89] The second judgment repeatedly conflates issues of legislative competence
(which is an issue of whether a power exists) with issues of constitutional consistency
(which is an issue of whether a power that does exist, has been exercised in a manner
that is unconstitutional) . I have already commented above on the second judgment’s
conflation of questions of legislative competence and questions of consistency with
sections 25(1) and 153 of the Constitution. 86 There is a similar conflation in the
second judgment of questions of legislative competence and questions of consistency
with section 41(1)(f) of the Constitution.87
[90] The second judgment’s invocation of the provisions of section 3(1)(b) of the
Deeds Registries Act fails to take account of the fact that if a municipality does not have
the competence to legislate for a transfer embargo, a by -law purporting to impose a
transfer embargo falls out of the category of “any other law” contemplated in
section 3(1)(b).88 The second judgment also draws a false analogy between a by -law
made beyond the legislative competence of a municipality (which “ may exercise no
power and perform no function beyond that conferred upon them by law ”) and
dispositions made in the wills by testators who do not need to source their powers of
testation in any law.89
86 At [78].
87 At [212] of the second judgment.
88 At [233] of the second judgment.
89 At [234] of the second judgment. Fedsure above n 37 at paras 54-8.
CHASKALSON AJ
43
[91] For similar reasons, the reliance in the second judgment on OUTA and Robertson
is mispla ced. Neither of those judgments concerned the legislative powers of local
government. OUTA involved a constitutional challenge based on the exclusive
legislative powers of provincial government and the exclusive executive powers of local
government. Robertson involved the original constitutional power of a municipality
(conferred by section 229(1) of the Constitution) to raise revenue through property
rates. As OUTA and Robertson did not concern the by -law making power of
municipalities, neither of t hose judgments had to consider the ambit of the by -law
making powers conferred by section 156(2) of the Constitution. OUTA and Robertson
both confirm that the status of local government under the Constitution is different from
what it was in the pre -constitutional era and that local government is an entrenched
sphere of government with original powers that derive directly from the Constitution.90
But that still begs the competence question, namely whether or not the by-law making
powers that a municipality asserts can properly be sourced in the Constitution.
[92] Finally, t he second judgment impermissibly invokes its conclusions as to the
desirability of transfer embargoes to justify its conclusions in relation to the legislative
competence of municipalities to make by-laws imposing transfer embargoes.91 Transfer
embargoes may or may not be desirable. That is an issue that must be separated from
the constitutional question whether municipalities have the legislative competence to
enact by-laws imposing transfer embargoes. By way of comparison, it may have been
desirable for better resourced provincial appeal tribunals to exercise some oversight
over the executive decisions of municipalities on local government schedule matters .
However, this Court has had no d ifficulty in repeatedly determining this competence
issue against the provinces without regard to questions of desirability.92
90 See [46] above. OUTA above n 53 at para 21.
91 At [248(f) to (h)].
92 See for example Habitat Council above n 45; Minister of Local Government, Western Cape v Lagoonbay
Lifestyle Estate (Pty) Ltd [2013] ZACC 39; 2014 (1) SA 521 (CC); 2014 (2) BCLR 182 (CC) ; Maccsand above
n 35; and Gauteng Development Tribunal above n 51.
CHASKALSON AJ
44
Conclusion
[93] As there is no constitutional or legislative source for the power of the
municipalities to make by -laws imposing trans fer embargoes as enforcement
mechanisms for their town planning schemes and building approval matters , the
impugned by-laws are inconsistent with the Constitution, unlawful and invalid.
[94] In view of the fact that the legality challenge to the by -laws succeeds, there is
no need to consider the property owners’ further challenges based on section 118(1) of
the Systems Act and section 25(1) of the Constitution.
Remedy
[95] If the by -laws are unlawful and invalid, the property owners are entitled to an
unqualified order of invalidity. Invalid by-laws are invalid in their entirety and in their
application to all properties, not only to mining properties. There is no reason to limit
the orders of invalidity to circumstances covered by the application of the provisions of
paragraphs (a) and (c) of section (2) of the impugned by-laws in relation to the property
owners’ mining properties.
[96] The appeal must therefore fail and the cross -appeal must succeed. The
municipalities are organs of state. Hence, they do not receive the protection of
Biowatch93 and the property owners are entitled to their costs.
[97] The orders of the High Court and the Supreme Court of Appeal link the
unconstitutionality of the by -laws to section 25 of the Constitution and section 118 of
the Systems Act. This judgment does not do so. Therefore, the order of this Court
should not sustain the specific reference to these provisions in the High Court order.
93 Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC) (Biowatch).
CHASKALSON AJ / DODSON AJ
45
Order
[98] The following order is made:
1. Leave to appeal is granted.
2. The appeal against the order of the Supreme Court of Appeal is dismissed
with costs, including the costs of two counsel.
3. The cross -appeal against the order of the Supreme Court of Appeal is
upheld with costs, including the costs of two counsel.
4. The order of the Supreme Court of Appeal is varied by:
4.1 the substitution of the following for paragraph 3 of the order in
Case No 334/2021:
“3. Section 76 of the Govan Mbeki Spatial Planning and Land
Use Management By -Law 2016 is dec lared to be
inconsistent with the Constitution and invalid”; and
4.2 the substitution of the following for paragraph 3 of the order in
Case No 338/2021:
“3. Section 86 of the Emalahleni Municipal By-Law on Spatial
Planning and Land Use Management 2016 is declared to be
inconsistent with the Constitution and invalid”.
DODSON AJ (Kollapen J concurring):
Introduction
[99] I have had the pleasure of reading the judgment of my Colleague, Chaskalson AJ
(first judgment). I gratefully adopt his setting out of the background to the application,
the litigation history, the arguments of the parties in this Court, the issues raised and the
abbreviations used. I agree that condonation should be granted for the late filing of the
hard copy of the record, that the matters raised in the application are constitutional
matters falling within the jurisdiction of this Court and that it is in the interests of justice
that leave to appeal be granted.
DODSON AJ
46
[100] I differ, however, from his finding that the impugned transfer embargoes are
constitutionally invalid because they fall outside the legislative competence of the
respective municipalities and within the legislative competence of Parliament – this
because “ there is no constitutional or legislative source for the power of the
municipalities to make by -laws imposing transfer embargoes as enforcement
mechanisms for their town planning schemes”.94
[101] Because I have come to a different conclusion in relation to the legislative
competence issue, there is no neat, single answer to the multi -pronged challenge that
was brought by the respondents (collectively, Glencore). I shall therefore deal with the
issues raised in the following order:
(a) conflict with section 118 of the Systems Act;
(b) arbitrary deprivation of property;
(c) intrusion upon national sphere’s legislative authority;
(d) that SPLUMA precludes the transfer embargo;
(e) administrative justice review;
(f) mandatory orders;
(g) relief against the Registrar of Deeds, Mpumalanga;
(h) conclusion; and
(i) relief and costs.
Conflict with section 118 of the Systems Act
[102] Based on section 156(3) of the Constitution, Glencore asserts that the transfer
embargos contained in sections 76 and 86 of the Govan Mbeki By-Law (GM By-Law)
and Emalahleni By-Law (EM By-Law) respectively, are invalid because they conflict
with national legislation in the form of section 118(1) of the Systems Act.
94 First judgment at [93].
DODSON AJ
47
[103] Section 156 of the Constitution, he aded “ Powers and functions of
municipalities”, provides in relevant part as follows:
“(1) A municipality has executive authority in respect of, and has the right to
administer—
(a) the local government matters listed in Part B of Schedule 4 and Part B
of Schedule 5; and
(b) any other matter assigned to it by national or provincial legislation.
(2) A municipality may make and administer by-laws for the effective
administration of the matters which it has the right to administer.
(3) Subject to section 151(4), a by-law that conflicts with national or provincial
legislation is invalid. If there is a conflict between a by-law and national or
provincial legislation that is inoperative because of a conflict referred to in
section 149, the by-law must be regarded as valid for as long as that legislation
is inoperative.”
[104] Section 156(3) refers to section 151(4), which reads:
“(4) The national or a provincial government may not compromise or impede a
municipality’s ability or right to exercise its powers or perform its functions.”
[105] Glencore’s challenge is based on the first sentence of section 156(3). We are not
here dealing with the situation contemplated in the second sentence of section 156(3),
namely where national legislation is inoperative because there is a conflict referred to
in section 149 of the Constitution.95
[106] The national legislation with which the transfer embargoes in the by -laws are
said to be in conflict is section 118(1) of the Systems Act. It is headed “ Restraint on
transfer of property” and contains its own transfer embargo, which reads as follows:
95 Section 149, which is headed “Status of legislation that does not prevail”, says:
“A decision by a court that legislation prevails over other legislation does not invalidate that
other legislation, but that other legislation becomes inoperative for as long as the conflict
remains.”
DODSON AJ
48
“(1) A registrar of deeds may not register the transfer of property except on
production to that registrar of deeds of a prescribed certificate—
(a) issued by the municipality or municipalities in which t hat property is
situated; and
(b) which certifies that all amounts that became due in connection with
that property for municipal service fees, surcharges on fees, property
rates and other municipal taxes, levies and duties during the two years
preceding the d ate of application for the certificate have been fully
paid.”
[107] The certificate referred to in the subsection is generally referred to as a “rates
clearance certificate”, although it requires payment of indebtedness also in respect of
municipal service fees and other amounts payable to municipalities. The certificate is
not required in respect of debts outstanding for more than two years.
[108] Glencore’s complaint is that the significantly broader restraint provided for in
the transfer embargoes in sections 76 and 86 of the respective by-laws renders the rates
clearance certificate in section 118(1) of the Systems Act redundant and abolishes the
entitlement to register transfer after securing it. This is primarily because the by -laws
do not have the two-year cap that limits the restraint in section 118(1). The impugned
provisions therefore include any unprescribed debts, no matter how far back in time
they were incurred. And they embargo transfer not only for non-payment of a debt but
also because of other forms of non-compliance.
[109] The Govan Mbeki and Emalahleni municipalities (Municipalities) contend that
the transfer embargoes in the by -laws have a different purpose from, and can
comfortably co-exist with, the transfer embargo in section 118(1). The purpose of the
transfer embargoes in the by-laws is a planning and building-regulatory purpose, not a
financial purpose.
DODSON AJ
49
[110] In Telkom,96 the majority of this Court laid down the following test for
establishing whether there is an invalidating conflict:
“For section 156(3) to be activated, there must be real conflict between the challenged
by-law and national legislation. And for a conflict to arise, the two pieces of legislation
must be incapable of operating alongside each other. In other words, they must be
mutually exclusive. If they are reasonably capable of co-existing, conflict as envisaged
in section 156(3) would not have arisen.”97
[111] For a proper analysis of the transfer embargoes some disaggregation is
necessary. We must distinguish between those components of the by-laws that require
certification of the absence of financial indebtedness (sections 76(2)(a) and (b) of the
GM By-Law and 86(2)(a) and (b) of the EM By-Law) and those that require
certification solely of municipal planning 98 compliance (section 76(2)(c) to (f) of the
GM By-Law and sections 86(2)(c) to (e) of the EM By-Law).
[112] Starting with sections 76(2)(a) and 86(2)(a) of the respective by -laws, these
impose the following requirements:
“(2) The Municipality may not issue a certificate to transfer a land unit in terms of
any law, or in terms of this By-law, unless the owner furnishes the Municipality
with—
(a) a certificate of a conveyancer confirming that funds due by the transferor in
respect of land, have been paid”
In the case of the GM By-Law and, in the case of the EM By-Law:
96 Telkom above n 33.
97 Id at para 34.
98 The Municipalities contend that the embargoes are also aimed at building regulation. It is in my view
unnecessary to decide this because, for reasons that will become apparent, the impugned provisions that are found
to be valid in this judgment fall squarely within the competence of municipal planning.
DODSON AJ
50
“(2) The Municipality must not issue a certificate to transfer a land unit in terms of
any law, or in terms of this By-law, unless the owner furnishes the Municipality
with—
(a) a certificate of a conveyancer confirming that funds due by the transferor in
respect of land, have been paid”
[113] The only difference in the wording of these provisions in the respective by-laws
is that the GM By-Law uses the word “may” and the EM By-Law uses the word “must”.
In this context there is no difference in the meaning of the words. Each creates an
identical, peremptory prohibition. I will therefore in the balance of the judgment treat
the opening paragraph of subsection (2) as being identical in the respective by-laws.
[114] Paragraph (a), which is identically worded in each of the respective by-laws, is
remarkable in the following respects:
(a) First, it superimposes itself upon other laws. It prohibits the issuing of a
certificate to transfer a land unit “in terms of any law” unless the
certificate in paragraph (a) is furnished. “Any law” would include
section 118(1) of the Systems Act and any other national or provincial
legislation that might impose a certificate requirement. Applied with
reference to section 118(1), the provision prevents a certificate from being
issued under section 118(1), notwithstanding that the transferor qualifie s
for a rates clearance certificate under it because the last two years ’
indebtedness have been settled.
(b) Second, unlike section 118(1), it contains no limit as to the age of the debt
that must be settled. Indebtedness in respect of a charge constituting a
municipal tax, such as municipal rates, would only prescribe after
30 years in terms of section 11(a)(iii) of the Prescription Act. 99 As soon
as the indebtedness of the transferor exceeds two years’ worth, this will
99 68 of 1969. Jordaan v City of Tshwane Metropolitan Municipality [2017] ZACC 31; 2017 (6) SA 287 (CC) ;
2017 (11) BCLR 1370 (CC) (Jordaan) at para 25. City Treasurer and Rates Collector, Newcastle Town Council
v Shaikjee 1983 (1) SA 506 (N) is authority for municipal rates being a form of “tax” in terms of section 11(a)(iii)
of the Prescription Act.
DODSON AJ
51
operate to prevent the rates clearance certificate from being issued under
section 118(1).
(c) Third, and again unlike section 118(1), it is not limited to indebtedness in
respect of the land unit that is to be transferred. It includes any
indebtedness of the transferor in respect of “land”. That could include
indebtedness in respect of other properties. Naturally, if this is
constitutionally problematic, one must consider whether a reading down
of the word “land” is possible to limit it to the land unit to be transferred.
The difficulty with this is that in the opening paragraph of subsection (2)
there is a precise reference to “a land unit” which is to be transferred. In
paragraph (a), there is no attempt to link the word “land” back to the
earlier reference to “a land unit”. The paragraph seems also to have been
deliberately broadly worded. I will nevertheless assume in favour of the
Municipalities that a reading down is possible so as to limit “land” to “the
land unit” that is to be transferred.100
(d) Fourth, it is not limited to “funds due” in respect of debts relevant to
municipal planning. Any funds due are included. This would include
those covered by section 118(1). In the circumstances, the provision does
not have a distinctive purpose as argued by the Municipalities.
[115] Practically speaking, the result is that the two -year limit in section 118(1)
becomes meaningless. For as long as all of the transferor’s indebtedness exceeding the
last two years’ worth is not paid, the rates clearance certificate cannot be issued in terms
of section 118(1). It is so that paragraph (a) of subsection (2) of the respective by-laws
has the mitigating feature that it is confined to the indebtedness of the owner. In this
respect, it differs from, and is less stringent than, section 118(1), which also includes
within its reach unpaid municipal debts of a possessor of the property, lawful or
100 Tronox above n 53 at para 39.
DODSON AJ
52
otherwise.101 But this mitigating feature is insufficient to avoid the conflict between the
two provisions.
[116] The GM and EM By-Laws’ provisions are therefore not reasonably capable of
co-existing with section 118(1) of the Systems Act. Section 76(2)(a) of the
GM By-Law and section 86(2)(a) of the EM By-Law are invalid in terms of
section 156(3) of the Constitution by reason of their conflict with national legislation.
[117] Section 76(2)(b) and section 86(2)(b) of the GM and EM By-Laws respectively
are on a different footing. Each reads as follows:
“(2) The Municipality may not issue a certificate to transfer a land unit in terms of
any law, or in terms of this By-law, unless the owner furnishes the Municipality
with—
. . .
(b) proof of payment of any contravention penalty or proof of compliance
with a directive contemplated in Chapter 9.”102
[118] The following observations may be made in this regard:
(a) There is no attempt to regulate the same indebtedness as that covered by
section 118(1). The only debt covered here is “any contravention
penalty” imposed under chapter 9 of each of the by-laws.
(b) Chapter 9 of each of the respective by-laws deals with “compliance and
enforcement”. It includes provisions for the issuing and enforcement of a
compliance notice against any person guilty of an offence under the
chapter. The listed offences are forms of conduct that are in breach of
either the by -laws or a land use scheme made in terms of them. They
101 Mkontwana above n 6 at paras 49-60.
102 As indicated in paragraphs [112] to [113] above, the GM By-Law uses the word “may” in subjection (2) while
the EM By-Law uses the word “must”, but the words bear an identical meaning in this context. I will therefore
in each instance where subsection (2) of the respective by -laws is quoted, refer only to t he subsection (2) as it is
worded in the GM By-Law.
DODSON AJ
53
include, for example, “utilis[ing] land in a manner other than prescribed
by the land use scheme of the [m]unicipality”.103
(c) Prosecution for the offences is provided for along with potential sentences
of a fine or imprisonment for up to 20 years.104
(d) However, provision is also made for the municipality to insist on
corrective action through the issuing of a compliance notice setting out
details of the breaches an d the steps required to remedy them. 105 This
would seemingly avoid a criminal prosecution if the corrective action is
taken.
(e) If part of the corrective action requires securing authorisation from the
municipality for any particular activity or “development p arameter” the
municipality may impose a contravention penalty. This may include any
costs incurred by the municipality. This contravention penalty is what is
referred to in paragraph (b) in sections 76(2) and 86(2) of the respective
by-laws. It is disti nct from and does not include the fines that may be
imposed pursuant to a criminal prosecution for a contravention of the
by-laws.
(f) Paragraph (b) is thus tailored to achieve precisely the purpose of the
by-laws.
(g) There is no conflict between paragraph (b) an d section 118(1), save
insofar as the words in the introductory part of subsection (2), “in terms
of any law, or”, would preclude the issue of a rates clearance certificate
under section 118(1) until any compliance notice had been complied with
and “any co ntravention penalty” paid. That conflict is resolved not by
striking down paragraph (b), but rather by striking down the words “in
terms of any law, or” in the opening paragraph of subsection (2). That
would allow a clearance certificate to be issued in terms of section 118(1)
while corrective action is taken in terms of the compliance notice.
103 Section 162 of the GM By-Law and section 174 of the EM By-Law.
104 Id.
105 Sections 161-9 of the GM By-Law and sections 174-80 of the EM By-Law.
DODSON AJ
54
(h) Paragraph (b) seeks to achieve an entirely different purpose from
section 118(1) and is reasonably capable of co -existing with it. There is
no conflict. Section 156(3) therefore provides no basis for striking it
down.
[119] The same reasoning applies to paragraphs (c) to (f) of section 76(2) of the
GM By-Law and paragraphs (c) to (e) of section 86(2) of the EM By-Law.
Paragraphs (c) to (f) of the GM By-Law read as follows:
“(2) The Municipality may not issue a certificate to transfer a land unit in terms of
any law, or in terms of this By-law, unless the owner furnishes the Municipality
with—
. . .
(c) proof that the land use and buildings constructed on the land unit
comply with the requirements of the land use scheme;
(d) proof that all common property including private roads and private
places originating from the subdivision, has been transferred;
(e) proof that the conditions of approval that must be complied with before
the transfer of erven have been complied with; and
(f) proof that all engineering services have been installed or arrangements
have been made to the satisfaction of the Municipality.”
[120] Paragraphs (c) to (e) of section 86(2) of the EM By-Law are identical to
paragraphs (c) to (e) of section 76(2) of the GM By-Law, save that the words “to the
owners’ association as contemplated in Schedule 5” appear at the end of paragraph (d)
of section 86(2) of the EM By-Law.
[121] Once the words “in terms of any law, or” in the opening paragraph of
subsection (2) of the GM and EM By-Laws are struck down, those paragraphs do not
overlap with section 118(1) in any way. They are all reasonably capable of operating
alongside section 118(1). There are no financial or deb t-recovery provisions in these
paragraphs. I am accordingly satisfied that they are not invalid on the basis of any
conflict with national legislation as contemplated in section 156(3) of the Constitution.
DODSON AJ
55
[122] It is so that by prohibiting a person from apply ing to the Registrar of Deeds to
register the transfer of a land unit, the transfer embargoes under the by -laws notionally
kick in before the transfer embargo under section 118 can operate, because the latter’s
prohibition is directed at the Registrar of D eeds. However, in effect, they operate
simultaneously to prevent the Registrar from registering the transfer. Because they have
different purposes, that is a legitimate area of overlap and is not unmanageable. In
particular, these paragraphs will not op erate to prevent a municipality from issuing a
rates clearance certificate in terms of section 118(1), if there is a striking down of the
words “in terms of any law, or” in subsection (2).
[123] There is the potential problem that the rates clearance certificat e may expire in
terms of section 118(1A)106 because 60 days have passed while a compliance issue is
being resolved. This may mean that a transferor will have to sequence applications for
the respective certificates accordingly. This does not attain the lev el of a conflict in
terms of section 156(3). In Maccsand,107 dealing with similar concerns to those raised
by Glencore in this matter, this Court said the following:
“Another criticism levelled against the finding of the Supreme Court of Appeal by
Maccsand and the Minister for Mineral Resources was that, by endorsing a duplication
of functions, the court enabled the local sphere to veto decisions of the national sphere
on a matter that falls within the exclusive competence of the national sphere. At face
value this argument is attractive, but it lacks substance. The Constitution allocates
powers to three spheres of government in accordance with the functional vision of what
is appropriate to each sphere. But because these powers are not contained in
hermetically sealed compartments, sometimes the exercise of powers by two spheres
may result in an overlap. When this happens, neither sphere is intruding into the
functional area of another. Each sphere would be exercising power within its own
106 Section 118(1A) of the Systems Act provides as follows:
“A prescribed certificate issued by a municipality in terms of subsection (1) is valid for a period
of 60 days from the date it has been issued.”
107 Maccsand above n 35.
DODSON AJ
56
competence. It is in this context that the Constitution obliges these spheres of
government to cooperate with one another in mutual trust and good faith, and to
co-ordinate actions taken with one another.”108
[124] There is accordingly no substance in the challenge to the rem aining paragraphs
in subsection (2) of section 76 and 86 of the GM and EM By-Laws respectively, on the
basis of section 156(3) of the Constitution.
Arbitrary deprivation of property
Introduction
[125] Glencore challenges the transfer embargoes on the basis that they give rise to an
arbitrary deprivation of property in breach of section 25(1) of the Constitution.
Section 25(1) provides that “[n]o one may be deprived of property except in terms of
law of general application and no law may permit arbitrary deprivation of property”.
[126] The concept of a transfer embargo is not a novel one in our legal system. This
Court explored their history in its judgment in Jordaan.109 It points out that “[t]he need
for statutory intervention to assist municipalities to collect debts became evident so far
back as 1848”. 110 The earliest example that is cited is section 275 of the Divisional
Councils Act.111 This Court traces the use of th e term “embargo” in this context back
to the 1909 judgment of Curlewis J in Cohen’s Trustees.112
[127] Transfer embargoes have come to be used to achieve a range of municipal, safety
and other socially desirable purposes. As the first judgment points out, section 14(1) of
the City of Cape Town Water By-law requires a transferor to produce a certificate from
108 Id at para 47.
109 Jordaan above n 99 at paras 16-24.
110 Id at para 19.
111 40 of 1889 (Cape). See Jordaan above n 99 at fn 36.
112 Id at fn 37. Cohen’s Trustees v Johannesburg Municipality 1909 TH 134 (subsequently overturned in
Johannesburg Municipality v Cohen’s Trustees 1909 TS 811).
DODSON AJ
57
a plumber confirming that the water installation at the property conforms to the
requirements of the water by -laws.113 Regulation 7(5) of the Electrical Instal lation
Regulations, 2009114 promulgated in terms of the Occupational Health and Safety Act115
similarly prohibits a change of ownership unless there is an electrical compliance
certificate. Section 53 of SPLUMA imposes a transfer embargo on “[t]he registratio n
of any property resulting from a land development application . . . unless the
municipality certifies that all the requirements and conditions for the approval have
been complied with”.
[128] Other municipalities have also adopted transfer embargoes directly linked with
municipal planning obligations. Section 137(1) read with section 54 of the City of Cape
Town Municipal Planning By -law, 2015 imposes a transfer embargo in respect of the
transfer of land units arising from an approved subdivision without a cer tificate
confirming that the conditions imposed upon approval have been complied with.
Section 137(2) imposes a transfer embargo on land subject to a compliance notice or a
contravention levy, which is very similar to that provided for in paragraph (b) of
subsection (2) of the GM and EM By-Laws. Many other municipalities have similar
provisions in their by-laws.116
[129] Sections 74 of the GM By-Law and 84 of the EM By-Law themselves impose
transfer embargoes on first transfers of land units following a land development
application. These are not challenged by Glencore. The first judgment considers these
to be validly imposed by reason of the similar transfer embargo in section 53 of
SPLUMA.117
113 First judgment at [74].
114 Electrical Installation Regulations, GN R242 GG 31975, 6 March 2009.
115 85 of 1993.
116 See for example sections 47 and 55 of the Midvaal Local Municipality Spatial Planning and Land Use
Management By-law; sections 54 and 62 of the Mogale City Local Municipa lity Spatial Planning and Land Use
Management By-law, 2018; and sections 47 and 55 of the Emfuleni Local Municipality Spatial Planning and Land
Use Management By-law, 2018.
117 It is quoted at [5] above.
DODSON AJ
58
[130] Against that background, I proceed to assess whether there is a b reach of
section 25(1) of the Constitution arising from the impugned transfer embargoes.
Deprivation
[131] For there to be a deprivation of property under section 25(1), there must be a
substantial interference with the property right in question.118 There is no need to dwell
on this. Mkontwana119 establishes that a transfer embargo such as that under
consideration gives rise to a deprivation of property as contemplated in section 25(1).
This is so because it restrains the right to freely alienate property, an important incident
of ownership.120
Arbitrariness
[132] The focus of debate in this matter is whether the deprivation that the embargo
gives rise to is arbitrary. The accepted test for arbitrariness was that laid down in FNB
as follows:121
“[D]eprivation of property is ‘arbitrary’ as meant by section 25 when the ‘law’ referred
to in section 25(1) does not provide sufficient reason for the particular deprivation in
question or is procedurally unfair. Sufficient reason is to be established as follows:
(a) It is to be determined by evaluating the relationship between means
employed, namely the deprivation in question , and ends sought to be
achieved, namely the purpose of the law in question.
(b) A complexity of relationships has to be considered.
(c) In evaluating the deprivation in question, regard must be had to the
relationship between the purpose for the deprivation and the person
whose property is affected.
118 Jordaan above n 99 at para 59 and the authorities quoted at footnote 106.
119 Mkontwana above n 6 at paras 32-3.
120 Id at para 33.
121 First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National
Bank of SA Ltd t/a Wesbank v Minister of Finance [2002] ZACC 5; 2002 (4) SA 768 (CC); 2002 (7) BCLR 702
(CC) (FNB) at para 100.
DODSON AJ
59
(d) In addition, regard must be had to the relationship between the purpose
of the deprivation and the nature of the property as well as the extent
of the deprivation in respect of such property.
(e) Generally speaking, where the property in question is ownership of
land or a corporeal moveable, a more compelling purpose will have to
be established in order for t he depriving law to constitute sufficient
reason for the deprivation than in the case when the property is
something different and the property right something less extensive.
This judgment is not concerned at all with incorporeal property.
(f) Generally speaking, when the deprivation in question embraces all the
incidents of ownership, the purpose for the deprivation will have to be
more compelling than when the deprivation embraces only some
incidents of ownership and those incidents only partially.
(g) Depending on such interplay between variable means and ends, the
nature of the property in question and the extent of its deprivation,
there may be circumstances when sufficient reason is established by,
in effect, no more than a mere rational relationship between means and
ends; in others this might only be established by a proportionality
evaluation closer to that required by section 36(1) of the Constitution.
(h) Whether there is sufficient reason to warrant the deprivation is a matter
to be decided on a ll the relevant facts of each particular case, always
bearing in mind that the enquiry is concerned with ‘arbitrary’ in
relation to the deprivation of property under section 25.”
[133] The test requires identification of, and an examination of the relationship
between, means and ends, where the means are constituted by the deprivation under
scrutiny. That is achieved by asking the following questions:
(a) What are the means and the ends in question?
(b) What is the nature of the relationship between the purpose of the
deprivation and the person affected?
(c) What is the nature of the relationship between the purpose of the
deprivation and the property affected, taking into account the nature of
the property and the extent of the deprivation?
DODSON AJ
60
(d) Weighing the answers to the foregoing questions on the basis of the
guidance provided in the FNB test, is there sufficient reason for the
deprivation, in the sense that the ends do indeed justify the means, or is
the deprivation arbitrary?
(e) Although not part of the challenge here, is the deprivation procedurally
fair?
[134] In making these assessments, one must also bear in mind that modern,
constitutional conceptions of property ownership have forgone absolutism in favour of
an acknowledgement that property use must consider not only the interests of the owner,
but also those of broader society.122
The means and the ends
[135] What are the means in question? The means are the embargo on transfer. As
Cameron J observes in Jordaan, the embargo places the transferor in a “squeeze”. 123
Pressure is applied on her to comply with the particular duty owed to the municipality.
Absent compliance, the transfer she desires (and may well have committed herself to
bringing about in a deed of sale) cannot happen.
[136] What are the ends? It is not necessary to consider paragraph (a) of sections 76(2)
and 86(2) of the respective by -laws because it is invalid by reason of its conflict with
section 118(1) of the Systems Act.
[137] Paragraph (b)’s end is to ha ve the transferor carry out the corrective action that
a compliance notice demanded and settle the contravention penalty imposed. This will
bring the transferor and the property into compliance with the by -law and, where
applicable, the land use scheme.
122 Jordaan above n 99 at para 51 and the authorities at fn 94.
123 Jordaan above n 99 at para 16.
DODSON AJ
61
[138] Paragraph (c)’s end is to enforce the land use scheme. It is non-financial. It calls
for proof of compliance with the land use scheme, even if the transferor has not been
subject to a compliance notice.
[139] Paragraphs (d) to (f) of the GM By-Law and (d) to (e) of the EM By-Law aim to
ensure that all of the requirements and conditions imposed when a land development
application was approved, have been complied with.
The relationship between the purpose and the person affected
[140] What observations are to be made about the relationship between the purpose of
the deprivation and the person whose property is affected?
[141] Paragraph (b) does not expressly identify the person subject to the unpaid penalty
or the extant compliance notice. The non -compliance sought to b e corrected and the
penalty sought to be recovered under paragraph (b) could thus, on the face of it, be that
of the current or a previous owner or a person currently or previously in possession of
the premises. Where the conduct giving rise to the compli ance notice or penalty is not
that of the current owner, the relationship between the purpose of the embargo and the
person affected becomes more remote.
[142] An interpretation of paragraph (b) that imposed a transfer embargo on the current
owner in respect of a penalty or compliance notice imposed on a previous owner or
occupier would offend the value system underlying the Bill of Rights. In particular, it
would offend the value of procedural fairness because the penalty or compliance notice
will have been issued without the current owner having been afforded an opportunity to
be heard. An interpretation of paragraph (b) that favours constitutional validity and
compliance with the value system underlying the Bill of Rights must be preferred. 124
The transfer embargo could therefore not be applied against the current owner in respect
124 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd In re: Hyundai
Motor Distributors (Pty) Ltd v Smit NO [2000] ZACC 12; 2000 (10) BCLR 1079 (CC); 2001 (1) SA 545 (CC) at
paras 21-3 (Hyundai).
DODSON AJ
62
of a penalty or compliance notice imposed on a previous owner or person occupying
under them or during their tenure.
[143] As regards a penalty or compliance notice imposed on an occupier during the
tenure of the current owner, as pointed out by this Court in Mkontwana,125 an owner
who places another in possession of the property, or does not respond to an unlawful
taking of possession, retains the capacity and the responsibility to ensure t hat the
occupier meets her obligations and uses the property lawfully and reasonably.
Remedies, including eviction, are available against the occupier. The by -laws
themselves recognise the agency of the owner in relation to an occupier by criminalising
inaction by the owner in the face of breach of the land use scheme by an occupier, 126
and by requiring that any compliance notice be served on, and demand compliance with
the by-law or land use scheme by, both of the occupier and the owner. 127 This also
ensures that procedural fairness will apply to an owner in respect of a breach of the
by-law or land use scheme by an occupier. A rational and reasonable connection is thus
retained between the restriction and the person affected when the transfer embargo is
enforced against the current owner, notwithstanding that the initial offending conduct
was that of the occupier.
[144] On a reading of paragraph (b) as applying only to contravention penalties
imposed on and directives issued to current owners and persons occupying under their
watch, there is no irrationality or unreasonableness in the purpose/person relationship.
125 Mkontwana above n 6 at paras 47-8 and 59.
126 See sections 162(2) of the GM By-Law and 174(2) of the EM By-Law.
127 See sections 163(2) of the GM By-Law and 175(2) of the EM By-Law. Each provides as follows:
“(2) A compliance notice must direct the occupier and owner to cease the unlawful land use
or construction activity or both, forthwith or within the time period determ ined by the
Municipality and may include an instruction to—
(a) demolish unauthorised building work and rehabilitate the land or restore the
building, as the case may be to its original form within 30 days or such other
time period determined by the Municipal Manager; or
(b) submit an application in terms of this By -Law within 30 days of the s ervice
of the compliance notice and pay the contravention penalty.”
DODSON AJ
63
[145] Paragraph (c) requires “proof that the land use and buildings constructed on the
land unit comply with the requirements of the land use scheme”. In the context of the
purpose/person relationship, Glencore raises the problem of non -compliance arising
from the conduct or omission of a preceding owner.
[146] Here, two scenarios must be considered. The first is where the By-Law was not
in force when the preceding owner owned the property and such owner transferred the
land unit in a condition that was non-compliant with the land use scheme. Such owner
would not have needed a compliance certificate because the By -Law was not yet in
force. The second is w here the By -Law was in force before transfer to the current
owner, but the preceding owner’s non -compliance with the land use scheme was
overlooked and a certificate was wrongly issued, allowing transfer to the current owner
to take place in contravention of the land use scheme.
[147] As regards the first scenario, the introduction of new legislation must always
carry with it the possibility of imposition of new obligations that impact differently or
even negatively on persons that were previously unregulated or regulated differently.
In this scenario, despite the possible negative impact, it cannot without more be said
that arbitrariness characterises the relationship between the purpose of the measure and
the current owner. New laws have to start somewhere.128
[148] In addition, the current owner retains the benefit of the presumption that the law
does not intend unjust, inequitable or unreasonable results,129 along with the protections
in the Bill of Rights. Each situation would have to be considered with reference t o the
particular facts and the particular provisions of the By-Law and the land use scheme in
issue.
128 On the reality that new legislation might validly introduce anomalies and hardships, see Ngcobo v Salimba CC;
Ngcobo v Van Rensburg [1999] ZASCA 22; 1999 (2) SA 1057 (SCA) at para 11.
129 Du Plessis “Statute Law and Interpretation” in LAWSA 2 ed (2011) vol 25(1) at para 334 and S v Mhlungu
[1995] ZACC 4; 1995 (3) SA 867 (CC); 1995 (7) BCLR 793 (CC) (Mhlungu) at para 36.
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[149] As regards the second scenario, it is inappropriate to assess the potential
arbitrariness (and hence possible constitutional invalidity) of a by -law on the basis of
anticipated non -compliance by either the previous owner or the municipality. 130
Moreover, where the municipality was at fault in allowing a transfer to be registered
unlawfully, it is not inconceivable that the current owner may have a legal defe nce or
remedy against the subsequent imposition of a compliance notice or penalty. For
example, and without deciding the point, it may be that “the . . . buildings constructed
on the land unit”, as referred to in paragraph (c), must be restrictively inter preted to
refer only to buildings constructed by the current owner, not the previous owner. Again,
the matter will have to be considered on the particular facts at the time.
[150] I am accordingly satisfied that in the second scenario too, there is no relation al
difficulty between the purpose of the transfer embargo and its impact on the current
owner.
[151] Next I assess the purpose/person relationship with reference to paragraphs (d) to
(f) of the GM By-Law and (d) to (e) of EM By-Law.131 Paragraph (d) requires pro of
that all common property originating from a subdivision, including private roads and
private places, has been transferred. Paragraph (e) requires proof that conditions of
approval of a land development application have been complied with. Paragraph (f),
which only appears in the GM By-Law, requires proof that all engineering services have
been installed or arrangements made to the satisfaction of the municipality for their
installation.
[152] On the face of it, these paragraphs link the transfer embargo and the issuing of
the requisite certificate to proof of fulfilment of duties that are imposed on an owner
who is the developer in a land development application.132 This may point to a need to
130 Van Rooyen v the State (General Council of the Bar of South Africa Intervening) [2002] ZACC 8; 2002 (5) SA
246 (CC); 2002 (8) BCLR 810 (CC) at para 37.
131 These paragraphs of the GM and EM By-Laws are set out in [119] above.
132 The first judgment interprets these paragraphs in the same way. See [11] above.
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read these paragraphs down so as to apply only to owners that are the developers of the
land unit in question. The difficulties with such a reading down, however, are threefold:
(a) The first is that these obligations imposed upon a developer, and linked
to the first transfer of a land unit pursuant to the development, are already
enforced by the transfer embargoes in section 74, read with section 75 of
the GM By-Law and section 84, read with section 85 of the
EM By-Law.133 This is so even though the wording of the provisions, and
the mechanics of the certification, are not i dentical in sections 74 and 76
respectively and in sections 84 and 86 respectively. There is a
presumption against superfluity in a statute.134
(b) The second is that the word “owner” in the opening paragraph of
subsection (2) cannot mean “owner” generally in relation to
paragraphs (a) to (c) and “owner-developer” in relation to paragraphs (d)
to (f).135
(c) The third is the conjunction “and” between paragraphs (d) and (e). This
points to the requirements in paragraphs (a) to (f)136 as being cumulative.
The conjunct ion “and” cannot be read as cumulative for
owner-developers and partially disjunctive for other owners.
133 Paragraph (d), requiring proof of transfer of all common property, is provided for as against a developer by
section 74(2)(f) read with section 75 of the GM By-Law and section 84(2)(f) read with section 85 of the
EM By-Law. Although paragraph (d) refers more narrowly to a subdivision, a subdivision is a form of land
development application as contemplated in the relevant parts of sections 74 and 84 of the respective by -laws.
See in this regard the defin ition of “land development” in section 1 of SPLUMA. The opening paragraph of
section 1 of each of the by-laws, correctly read, adopts definitions from SPLUMA into the By-Law. I say correctly
read because this paragraph can be read as the by-law imposing its definitions on the statute, but that would be in
conflict with sections 151(3) and 156(3) of the Constitution.
Paragraph (e), requiring proof of compliance with the conditions of approval of the development application, is
covered by section 74(2)(d). Paragraph (f), requiring proof that all engineering services have been installed or the
making of satisfactory arrangements for their installation, is covered by section 74(2)(a).
134 Case v Minister of Safety and Security; Curtis v Minister of Safety and Security [1996] ZACC 7; 1996 (3) SA
617 (CC); 1996 (5) BCLR 608 (CC) at para 57 and the authorities referred to at fn 94, and Florence v Government
of the Republic of South Africa [2014] ZACC 22; 2014 (6) SA 456 (CC); 2014 (10) BCLR 1137 (CC) at para 84
(judgment of Van der Westhuizen J).
135 Woodlands Dairy (Pty) Ltd v Competition Commission [2010] ZASCA 104; 2010 (6) SA 108 (SCA) at para 18.
136 In the GM By-Law, the conjunction “and” also comes between paragraphs (d) and (e), even though the final
component of the proof required is in paragraph (f). This appears to be a typographic error in the process of
adopting a standard-form by-law, to which an additional form of proof was then added.
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[153] A reading down of paragraphs (d) to (f) does not therefore seem possible. By
contrast, the third judgment holds that a reading down is possible. I do not agree that
any meaning can be given to paragraphs (d) to (f) that is not already catered for by
sections 74 and 75. Even if read down to apply only to owner -developers,
paragraphs (d) to (f) are entirely superfluous.137 Although presented to the Registrar of
Deeds by the owner or her agent, the “certificate to transfer a land unit” contemplated
in sections 76(2) and 86(2) of the respective by-laws is in effect a certificate that
embodies a communication from the Municipality to the Registrar of Deeds that transfer
may take place. In that sense, it does not differ materially from the section 74 certificate
that is a direct communication from the municipality to the Registrar of Deeds. Each
certificate communicates to the Registrar of Deeds that she may lift the transfer
embargo.
[154] The threefold obstacles to the reading down remain. The reading down achieved
in this judgment in relation to paragraph (b) so as to confine its impact to penalties and
compliance notices directed at owners and occupiers, is a chieved via the incorporation
by reference of chapter 9 in that paragraph. The scheme of chapter 9 would limit the
penalties and compliance notices to those imposed on the owner or occupier. This
interpretation of paragraph (b) does not give the word “ow ner” in section 76(2) a
bifurcated meaning, as the third judgment in effect does. The reading down brought
about by the third judgment in truth requires the reading in at the beginning of each of
paragraphs (d) to (f) of the words “in the case of an owner who is transferring a land
unit for the first time after approval of a land development application,” or of a proviso
at the end of section 76(2) as follows:
“Provided that paragraphs (d) to (f) apply only to an owner who is transferring a land
unit for the first time after approval of a land development application.”
137 See n 133 above.
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[155] That in my view demonstrates that the interpretation in the third judgment is
“unduly strained”. As pointed out in Hyundai, a legislative body “ is under a duty to
pass legislation that is reasonably clear and precise, enabling citizens and officials to
understand what is expected of them”.138 The by-laws in this aspect do not achieve that.
If the Municipalities intended the qualification or the proviso, they ought to have
included it. Neit her municipality asked for a constitutional remedy in the form of a
reading-in.
[156] Absent a reading down, the effect of paragraphs (d) to (f) of the GM By-Law and
(d) to (e) of the EM By-Law is to cast obligations of the developer on subsequent
owners of land units in the scheme. They are purchasers of a land unit or units in the
scheme who were not responsible for its development and who bore no responsibility
for complying with the conditions of approval of the development. This is a serious
relational mi smatch between the purpose of the deprivation and the person whose
property is affected. That introduces arbitrariness into the relationship.
[157] This arbitrariness is compounded by the fact that it is surely the municipality that
must assume the primary rol e in ensuring that the developer complies with the
conditions that the municipality itself has imposed, not the purchaser of a unit in the
development. If an instance of non -compliance by the developer was subsequently to
emerge, it would be grossly unrea sonable for the owner of a unit to be delayed in
effecting transfer while the municipality seeks to achieve compliance by the developer,
an endeavour that may well generate a lengthy legal dispute.
The relationship between the purpose and the property affected
[158] The nature of the property here is full ownership of immovable property.
Applying the FNB test,139 this will require a heightened level of justification for the
deprivation.
138 Hyundai above n 124 at para 24.
139 FNB above n 121 at para 100(e).
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[159] The extent of the deprivation of ownership here is partial, not all -embracing as
in FNB. What is forfeited pending satisfaction of the conditions enabling the issue of
the required certificate, is the right to transfer the property in order to complete the
process of alienation. In Mkontwana this was described as “a single but important
incident of ownership”.140 As appears from that judgment, the extent of the deprivation
is dependent on the extent of the delay in transfer brought about by the embargo.
[160] In Mkontwana, it was recognised that it would not be arbitrary to delay tra nsfer
until the owner of the property in question had settled all of her debt. 141 In that matter,
the potential for arbitrariness was introduced by the fact that section 118(1) makes the
transferor responsible also for the debts of the occupier (lawful and unlawful). This was
ultimately found to be adequately ameliorated by the two -year limit on the age of the
debt.
[161] In relation to paragraph (b), transfer is only delayed for as long as it takes to
correct the non -compliance and pay the contravention penalti es in respect of the land
unit in question. A potential complication may arise where the contravention or penalty
is that of the occupier rather than the owner. However, as pointed out earlier with
reference to Mkontwana, an owner has the responsibility to ensure the lawful use of
their property even when it is occupied by another. In a worst-case scenario, an owner
may be forced at their own expense to remediate the occupier’s non-compliance, or pay
their penalty, to ensure that transfer can proceed. T hey would have a right of recovery
against the occupier. The deprivation is thus a temporary one.
[162] Paragraph (c) expressly limits application of the transfer embargo to the land unit
sought to be transferred. In requiring proof of compliance with the land use scheme, it
serves as a reminder of the close connection between the purpose of the deprivation and
140 Mkontwana above n 6 at para 45.
141 Id at para 46.
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the property. Here the purpose/property relationship is even closer in my view than that
in respect of municipal debt under section 118(1).142 Land use schemes seek to ensure
the orderly, safe and developmentally optimal use of all land. 143 The embargo is thus
precisely focused on its purpose and the property to which it applies.
[163] Taking all of this into account, the purpose of the deprivation in paragrap h (c)
aligns with the property to which it applies and the deprivation represents a temporary
and reasonable incursion into the owner’s property rights.
[164] Paragraphs (d) to (f) of the GM By-Law and paragraphs (d) to (e) of the
EM By-Law are a different kett le of fish. The purpose of the deprivation under these
paragraphs, compliance with the development approval conditions, is one related to the
land development as a whole, including, expressly, common property and roads in the
development. All of this has relatively little to do with the particular land unit in respect
of which transfer is subsequently sought. There is also a temporal disjunct insofar as it
relates to the property as it was in the course of development, not the land unit that
emanated fro m the development upon its completion, which is now sought to be
transferred. Again, these disjuncts introduce arbitrariness.
Sufficient reason or arbitrary deprivation?
[165] I accept that the nature and extent of the deprivation in this case is such as to
require more than a “mere rational relationship between means and ends”. 144
Justification of the deprivation lies closer to the proportionality end of the spectrum.
Weighing the overall relationship between means and ends I come to the following
conclusions:
142 I say this because municipal debt mainly comes from the consumption by the owner or occupier of municipal
services delivered to the property, and from rates, which are aimed at raising revenue mainly for municipal
amenities in the surrounding area, rather than the property itself.
143 See section 25(1) of SPLUMA.
144 FNB above n 121 at para 100(g).
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(a) There is sufficient reason for paragraph (b) of the two by-laws. There the
transfer embargo supports ends which are manifestly socially justifiable
and in both the public and private interest, namely compliance with a land
use scheme in respect of the very property sought to be transferred.
Glencore says that the embargo changes the GM and EM By-Laws’ soft
enforcement scheme in Chapter 9 into a hard one. It contemplates using
a sledgehammer to crack a nut. I disagree. Chapter 9 includes in its
armoury criminal prosecution and imprisonment for up to 20 years. The
transfer embargo is soft in comparison. It ties in neatly with the soft
approach of a compliance notice and administrative penalty in place of
prosecution.
(b) There is sufficient reason for paragraph (c) of the two by -laws. Again,
the transfer embargo here supports ends which are manifestly socially
justifiable. Glencore says that the embargo represents outsourcing by the
municipality of its enforcement obligations. That is not so. The
enforcement mechanisms co -exist in a mutually supporting way. None
would give rise to disproportion sufficient to constitute arbitrariness. This
is so even taking into account Glencore’s concerns regarding
non-compliance by a previous owner. But that woul d not be in the
ordinary course. And it is not enough to render the provision arbitrary.
(c) There is insufficient reason for paragraphs (d) to (f) of the GM By-Law
and paragraphs (d) to (e) of the EM By-Law. Assessing them through the
lens of the relational analysis required by FNB demonstrates that they are
entirely disproportional. The deprivation is potentially severe and is
seriously misdirected, visiting the sins of the developer upon an innocent
subsequent owner. It is not justifiable to expect a purchaser of a land unit
in a development to employ the full range of professionals to assess
whether the developer has complied with the approval conditions; even
less so a later seller or purchaser of the unit.
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Justification
[166] Paragraphs (d) to (f) of the GM By-Law and paragraphs (d) to (e) of the
EM By-Law thus give rise to an arbitrary deprivation of property, thereby limiting the
fundamental right not to be subject to a law that permits arbitrary deprivation of
property. Can this be justified in terms of section 36 of the Constitution?
[167] Emalahleni made a faint attempt to argue that Glencore’s challenge should fall
at this last hurdle. It did so solely on the basis that the purpose of the impugned
provision is important, the purpose being to administer adequately spatial planning and
land use in order to meet its constitutional obligations. This is a reference to
section 36(1)(b) of the Constitution.
[168] A party seeking to defend an otherwise unconstitutional limitation of a right in
the Bill of Rights bears an onus to justify the offending law with reference to all of the
factors listed in section 36(1) of the Constitution .145 The fact that paragraphs (b) and
(c) of the by-laws survive scrutiny under section 25(1) of the Constitution146 means that
there remain in place adequate provisions to achieve the spatial planning and orderly
land use purposes of sections 76 and 86 of the GM and EM By-Laws. Debt control is
catered for by section 118 of the Systems Act. And the provisions required to ensure
that developers comply with their obligations are to be found in sections 74 and 75 of
the GM By-Law, sections 84 and 85 of the EM By-Law and section 53 of SPLUMA.
[169] I am accordingly satisfied that the limitation insofar as it pertains to
paragraphs (d) to (f) of sectio n 76 of the GM By-Law, and paragraphs (d) to (e) of
section 86 of the EM By-Law, cannot be justified in an open and democratic society
based on human dignity, equality and freedom.
145 Moise v Greater Germiston Transitional Local Council : Minister of Justice and Constitutional Development
Intervening (Women's Legal Centre as Amicus Curiae) [2001] ZACC 21; 2001 (4) SA 491 (CC); 2001 (8) BCLR
765 (CC) at paras 18-9.
146 This is subject to the further challenges discussed below.
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Conclusion on arbitrariness
[170] Paragraphs (d) to (f) of section 76 of the GM By-Law, and paragraphs (d) to (e)
of section 86 of the EM By-Law, are constitutionally invalid on the ground that they
give rise to an arbitrary deprivation of property as contemplated in section 25(1) of the
Constitution.
[171] Paragraphs (b) and (c) of sections 76 and 86 of the GM and EM By-Laws survive
the challenges based on section 25(1) and 156(3) of the Constitution. It therefore
becomes necessary to consider whether they survive the challenge based on legislative
competence.
Legislative competence
[172] Section 43 of the Constitution deals with the “legislative authority of the
Republic”. It reads:
“43. In the Republic, the legislative authority—
(a) of the national sphere of government is vested in Parliament, as set out
in section 44;
(b) of the provi ncial sphere of government is vested in the provincial
legislatures, as set out in section 104; and
(c) of the local sphere of government is vested in the Municipal Councils,
as set out in section 156.”
[173] Here we are concerned with the allocation of legislative authority as between the
national and local spheres of government. However, to get a sense of the scheme
underlying the allocation and to be able to compare it with the scheme underlying the
interim Constitution, it is appropriate to include i n the analysis the provisions dealing
with the provincial sphere of government.
Parliament
[174] Section 44(1) to (4) of the Constitution provides, in relevant part, as follows:
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“44(1) The national legislative authority as vested in Parliament—
(a) confers on the National Assembly the power—
. . .
(ii) to pass legislation with regard to any matter, including a
matter within a functional area listed in Schedule 4, but
excluding, subject to sub section (2), a matter within a
functional area listed in Schedule 5; and
(iii) to assign any of its legislative powers, except the power to
amend the Constitution, to any legislative body in another
sphere of government; and
(b) confers on the National Council of Provinces the power—
. . .
(ii) to pass, in accordance with section 76, legislation with regard
to any matter within a functional area listed in Schedule 4 and
any other matter required by the Constitution to be passed in
accordance with section 76; and
(iii) to consider, in accordance with section 75, any other
legislation passed by the National Assembly.
(2) Parliament may intervene, by passing legislation in accordance with
section 76(1), with regard to a matter falling within a functional area listed in
Schedule 5, when it is necessary—
(a) to maintain national security;
(b) to maintain economic unity;
(c) to maintain essential national standards;
(d) to establish minimum standards required for the rendering of
services; or
(e) to prevent unreasonable action taken by a province which is prejudicial
to the interests of another province or to the country as a whole.
(3) Legislation with regard to a matter that is reasonably necessary for, or
incidental to, the effective exercise of a power concerning any matter listed in
Schedule 4 is, for all purposes, leg islation with regard to a matter listed in
Schedule 4.
(4) When exercising its legislative authority, Parliament is bound only by the
Constitution, and must act in accordance with, and within the limits of, the
Constitution.”
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Provinces
[175] Section 104 of the Constitution provides in relevant part as follows:
“104(1) The legislative authority of a province is vested in its provincial legislature,
and confers on the provincial legislature the power—
. . .
(b) to pass legislation for its province with regard to—
(i) any matter within a functional area listed in Schedule 4;
(ii) any matter within a functional area listed in Schedule 5;
(iii) any matter outside those functional areas, and that is expressly
assigned to the province by national legislation; and
(iv) any matter for which a provision of the Constitution envisages
the enactment of provincial legislation; and
(c) to assign any of its legislative powers to a Municipal Council in that
province.
. . .
(4) Provincial legislation with regard to a matter that is reasonably necessary for,
or incidental to, the effective exercise of a power concerning any matter listed
in Schedule 4, is for all purposes legislation with regard to a matter listed in
Schedule 4.”
Municipalities
[176] Section 151 of the Constitution provides:
“(1) The local sphere of government consists of municipalities, which must be
established for the whole of the territory of the Republic.
(2) The executive and legislative authority of a municipality is vested in its
Municipal Council.
(3) A munici pality has the right to govern, on its own initiative, the local
government affairs of its community, subject to national and provincial
legislation, as provided for in the Constitution.
(4) The national or a provincial government may not compromise or imp ede a
municipality’s ability or right to exercise its powers or perform its functions.”
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[177] Section 154(1) of the Constitution reads:
“The national government and provincial governments, by legislative and other
measures, must support and strengthen the capacity of municipalities to manage their
own affairs, to exercise their powers and to perform their functions.”
[178] Section 156 of the Constitution reads as follows:
“(1) A municipality has executive authority in respect of, and has the right to
administer—
(a) the local government matters listed in Part B of Schedule 4 and Part B
of Schedule 5; and
(b) any other matter assigned to it by national or provincial legislation.
(2) A municipality may make and administer by-laws for the effective
administration of the matters which it has the right to administer.
(3) Subject to section 151(4), a by-law that conflicts with national or provincial
legislation is invalid. If there is a conflict between a by-law and national or
provincial legislation that is inoperative because of a conflict referred to in
section 149, the by-law must be regarded as valid for as long as that legislation
is inoperative.
(4) The n ational government and provincial governments must assign to a
municipality, by agreement and subject to any conditions, the administration
of a matter listed in Part A of Schedule 4 or Part A of Schedule 5 which
necessarily relates to local government, if—
(a) that matter would most effectively be administered locally; and
(b) the municipality has the capacity to administer it.
(5) A municipality has the right to exercise any power concerning a matter
reasonably necessary for, or incidental to, the effecti ve performance of its
functions.”
Schedules 4 and 5 of the Constitution
[179] Schedule 4 itemises the particular areas of legislative competence that are shared
by the national legislature and the provincial legislatures. Schedule 5 itemises the
particular areas of legislative competence that are exclusive to the provincial sphere of
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government. Each of Schedules 4 and 5 is further divided between Part A and Part B,
as follows:
“Schedule 4
Functional Areas of Concurrent National and Provincial Legislative Competence
Part A
[The various functional areas are then listed. I include only those that may be relevant
to the discussion below.]
. . .
Industrial promotion
. . .
Regional planning and development
Road traffic regulation
. . .
Trade
Part B
The following local government matters to the extent set out in section 155(6)(a)
and (7):
. . .
Building regulations
. . .
Municipal planning
Schedule 5
Functional Areas of Exclusive Provincial Legislative Competence
Part A
[The various functional areas are then listed. I include only those that may be relevant
to the discussion below.]
. . .
Liquor licenses
. . .
Provincial planning
. . .
Provincial roads and traffic
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Part B
The following local government matters to the extent set out for provinces in
section 155(6)(a) and (7):
[The various functional areas are then listed. I include those that may be relevant to
the discussion below.]
. . .
Municipal roads
. . .
Traffic and parking”
[180] Part B in each of Schedules 4 and 5 thus operates to define areas of municipal
legislative competence through the combined operation of section 156(1)(a) and (2),
which are quoted above. The instruments through which municipalities exercise their
legislative authority are by-laws.
The OUTA judgment
[181] In the recent decision in OUTA,147 this Court had occasion to deal with the
constitutional system for the allocation of legislative power between the three spheres
of government. The case involved a challenge to the constitutional validity of
legislation passed by Parliament in the exercise of its national legislative power to create
a new system of administrative adjudication of road traffic offences (the AARTO
Act).148 The High Court had concluded that the AARTO Act “unlawfully intrude[s]
upon the exclusive executive and legisla tive competence of the local and provincial
governments.”149 Primarily on this basis, the High Court declared the AARTO Act to
be constitutionally invalid. It reached this conclusion on the basis that the AARTO Act
encroached upon the exclusive provincial legislative competence of “Provincial roads
and traffic” in Part A of Schedule 5 to the Constitution and the exclusive provincial and
municipal legislative competences of “Municipal roads” and “Traffic and parking” in
Part B of Schedule 5 to the Constitution.
147 OUTA above n 53.
148 Administrative Adjudication of Road Traffic Offences Act 46 of 1998.
149 OUTA above n 53 at para 7.
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[182] In a unanimous judgment, this Court declined to confirm the High Court’s order
of constitutional invalidity. The Court identified the relevant principles and the
approach to be adopted in determining the sphere of government under whose
legislative a uthority particular legislation falls. It did so through a chronological
examination of four judgments of this Court on the subject. 150 A number of
observations may be made on the basis of OUTA that are relevant to the determination
of this matter.
[183] The first observation is this. The first judgment seeks to draw a distinction
between the scheme for legislative competence under the interim Constitution and the
final Constitution respectively. It holds that for this reason judgments under the interim
Constitution “may not reflect the correct approach to similar questions under the [final]
Constitution today”.151
[184] The four judgments analysed in OUTA span both constitutional eras. It is
important to see if this Court identified any form of change in principle or in approach
as between the two constitutions in its decision in OUTA.
[185] Two of the judgments, Amakhosi and DVB Behuising, were decided under the
interim Constitution, whilst two of the judgments were decided under the final
Constitution, namely Liquor Bill and Gauteng Development Tribunal . In the earliest
judgment considered, Amakhosi, Chaskalson P described the approach to characterising
legislation for purposes of the legislative competence inquiry as follows:
“If the purpose of the legislation is cl early within Schedule 6, it is irrelevant whether
the Court approves or disapproves of its purpose. But purpose is not irrelevant to the
Schedule 6 enquiry. It may be relevant to show that although the legislation purports
to deal with a matter within Sc hedule 6, its true purpose and effect is to achieve a
150 Amakhosi above n 59; DVB Behuising above n 14; Liquor Bill above n 31; and Gauteng Development Tribunal
above n 51.
151 First judgment at [55].
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different goal which falls outside the functional areas listed in Schedule 6. In such a
case a Court would hold that the province has exceeded its legislative competence. It
is necessary, therefore, t o consider whether the substance of the legislation, which
depends not only on its form but also on its purpose and effect, is within the legislative
competence of the KwaZulu-Natal provincial legislature.”152
[186] That dictum was followed in DVB Behuising and Liquor Bill,153 notwithstanding
that the former was decided under the interim Constitution and the latter was decided
under the final Constitution. Gauteng Development Tribunal did not refer to Amakhosi.
However, one can detect the influence of the principl es and the approach laid down in
Amakhosi when the Court in Gauteng Development Tribunal said that “[i]n the context
of the Schedules 4 and 5 functional areas, this Court has held that the purposive
interpretation must be conducted in a manner that will allow the spheres of government
to exercise their powers ‘fully and effectively’”.154
[187] Moreover, the approach in Amakhosi was retained in OUTA where this Court
summarised the effect of the four judgments that it analysed as follows:155
“It is clear from the jurisprudence of this Court as reflected in the cases discussed above
that, in order to determine whether a piece of legislation falls within a particular
functional area in either Schedule 4 o r Schedule 5 of the Constitution, a court is
required to determine the subject-matter of that legislation and then see within which
sphere of government’s functional area it falls. Determining the subject -matter of
legislation entails considering its substance, purpose and effects. It entails determining
what the legislation is about or determining its character.”
[188] This approach, which is laid down under the final Constitution, is entirely
consistent with that adopted under the interim Constitution in Amakhosi and
DVB Behuising. Accordingly, there is no difference in the principles to be applied, or
152 Amakhosi above n 59 at para 19.
153 DVB Behuising above n 14 at para 37 and Liquor Bill above n 31 at para 62.
154 Gauteng Development Tribunal above n 51 at para 49.
155 OUTA above n 53 at para 87.
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in the approach to be adopted, in determining whether legislation falls within or outside
a listed area of functional competence, as between the interim Constitution and the final
Constitution. Cases dealing with the d istribution of legislative authority between the
national and provincial spheres of government under the interim Constitution remain
good authority.
[189] The only relevant difference for present purposes between the
interim Constitution and the final Constitution is that the area of legislative competence
for municipalities in the interim Constitution was determined differently from the final
Constitution. Section 175 of the interim Constitution provided for “[t]he powers and
functions of local government” as follows:
“(1) The powers, functions and structures of local government shall be determined
by law of a competent authority.
(2) A local government shall be assigned such powers and functions as may be
necessary to provide services for the maintenance and promotion of the
well-being of all persons within its area of jurisdiction.
(3) A local government shall, to the extent determined in any applicable law, make
provision for access by all persons residing within its area of jurisdiction to
water, sanitation, transportation facilities, electricity, primary health services,
education, housing and security within a safe and healthy environment,
provided that such services and amenities can be rendered in a sustainable
manner and are financially and physically practicable.
(4) A local government shall have the power to make by-laws not inconsistent with
this Constitution or an Act of Parliament or an applicable provincial law.
(5) A local government shall have such executive powers as to allow it to function
effectively.”
[190] Broadly speaking, for municipalities the system operated on the basis of statutory
assignment of legislative and executive power. There was no schedule in the
interim Constitution itemising the competences of municipalities, as is to be found i n
Part B of each of Schedules 4 and 5 to the final Constitution.
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[191] Importantly, however, the provincial competences were set out in a schedule to
the interim Constitution in a manner very similar to that in the final Constitution. Thus
section 126 dealing with “[l]egislative competence of provinces”, provided in relevant
part as follows:
“(1) A provincial legislature shall be competent, subject to subsections (3) and (4),
to make laws for the province with regard to all matters which fall within the
functional areas specified in Schedule 6.
(2) The legislative competence referred to in sub section (1), shall include the
competence to make laws which are reasonably necessary for or incidental to
the effective exercise of such legislative competence.”
[192] Schedule 6 to the interim Constitution then itemised the specific “legislative
competences of provinces” in a manner very similar to that adopted in Schedules 4
and 5 to the final Constitution, with many of the items in the former being identical to
those in the latter.
[193] Accordingly, it is entirely appropriate to apply the principles and approach
adopted by this Court in delineating legislative competence in the interim Constitution
as between the provincial and national spheres of government, to the schedule -based
system operating under the final Constitution in respect of both the provincial and local
spheres of government.
[194] The second observation is this. Referencing Gauteng Development Tribunal, the
first judgment identifies what it perceives to be “ a scheme o f exclusivity running
through the [final] Constitution”.156 It does so on the basis of the following dictum in
Gauteng Development Tribunal:
156 First judgment at [55].
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“The constitutional scheme propels one ineluctably to the conclusion that, barring
functional areas of concurrent competence, each sphere of government is allocated
separate and distinct powers which it alone is entitled to exercise.”157
[195] However, this Court in Gauteng Development Tribunal went on in the next
sentence to characterise the constitutional scheme as one bas ed on “the principle of
relative and limited autonomy of the spheres of government” (emphasis added).158 This
follows on the observation in the preceding paragraph in Gauteng Development
Tribunal that “[i]t is, however, true that the functional areas alloca ted to the various
spheres of government are not contained in hermetically sealed compartments ”
(emphasis added), yet “remain distinct from one another”. 159 Gauteng Development
Tribunal therefore does not provide a basis for a scheme of exclusivity, but rat her one
of relative and limited autonomy.
[196] In OUTA, the High Court had adopted what it termed a “bottom -up” approach,
which was akin to a scheme of exclusivity, at least insofar as Schedule 5 competences
were concerned. This Court held as follows in this regard:
“[T]he . . . ‘bottom-up’ approach . . . in essence, requires a court confronted with such
a matter to determine the functional areas that fall within the exclusive legislative
competence of provinces, ie Schedule 5. Once those have been determined, then
whatever remains is said to fall under concurrent national and provincial legislative
competence under Schedule 4. The [High Court] based this approach on the following
passage of this Court’s judgment in Liquor Bill:
‘It follows that, in order to give effect to the constitutional scheme,
which allows for exclusivity subject to the intervention justifiable
under section 44(2), and possibly to incidental intrusion only under
section 44(3), the Schedule 4 functional co mpetences should be
interpreted as being distinct from, and as excluding, Schedule 5
157 Gauteng Development Tribunal above n 51 at para 56.
158 Id.
159 Id at para 55.
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competences. That the division could never have been contemplated
as being absolute is a point to which I return in due course.’ . . .
However, Liquor Bill is no authority for this ‘bottom-up’ approach. The above passage
must be understood in the context of the entire judgment. In particular, it must be
understood in the light of the overall reasoning of the Court. In Liquor Bill this Court
determined the scope of the f unctional area listed under Schedule 4 (via a process of
interpretation of the wording of the functional area), without ‘carving out’ — as the
High Court would have us do — areas of exclusive provincial competence and
assigning the remaining areas to the national sphere of government.” (Emphasis in the
original.)160
[197] The Court in OUTA went on to draw attention to the following part of the
judgment in Liquor Bill:
“Since, however, no national legislative scheme can ever be entirely water -tight in
respecting the excluded provincial competences, and since the possibility of overlaps
is inevitable, it will on occasion be necessary to determine the main substance of
legislation and hence to ascertain in what field of competence its substance falls; and,
this having been done, what it incidentally accomplishes. This entails that a Court
determining compliance by a legislative scheme with the competences enumerated in
Schedules 4 and 5 must at some stage determine the character of the legislation.”161
[198] Based on these dicta, one must accept that there will be penumbral areas of
overlap in the competences of the national, provincial and local spheres of government.
This outcome arises both as a result of the application of the substance, purpose and
effect test to the legislation in question and the inclusion in a municipality’s powers of
a “matter reasonably necessary for, or incidental to, the effective performance of its
functions”.162 The foregoing considerations, in my view, do not allow for the
application of a scheme of exclusivity.
160 Id at paras 9-10.
161 OUTA above n 53 at para 10, quoting Liquor Bill above n 31 at para 62 (the last sentence of the extract from
Liquor Bill does not appear in OUTA. See also OUTA above n 53 at paras 69 and 82(g).
162 Section 156(5) of the Constitution.
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[199] The third observation emanating from OUTA and the decisions that it analysed
is that it is possible for legislation to have more than one substance, purpose and effect.
As this Court said in Liquor Bill:
“It seems apparent that the s ubstance of a particular piece of legislation may not be
capable of a single characterisation only and that a single statute may have more than
one substantial character. Different parts of the legislation may thus require different
assessment in regard to a disputed question of legislative competence.”163
[200] The legislation in question in Liquor Bill, and the outcome of the case, illustrate
what this Court had in mind in acknowledging the possibility of more than one
substantial character. There the Presiden t referred to this Court, in terms of
section 79(4)(b) read with section 84(2)(c) of the Constitution, the constitutionality of
the Liquor Bill. 164 Parliament sought, through the Liquor Bill, comprehensively to
regulate the manufacture, distribution and sale of liquor on a national basis.
[201] The Western Cape Provincial Government challenged the validity of the
Liquor Bill on the basis that it encroached upon the exclusive provincial legislative
competence of “liquor licences” in Part A of Schedule 5. This ite m, it argued,
encompassed “all legislative means and ends appurtenant to the liquor trade at all levels
of production, manufacture and sale.” 165 The Minister of Trade and Industry argued
that the Liquor Bill fell under “industrial promotion” and “trade”, it ems of concurrent
national and provincial competence in Part A of Schedule 4. To the extent that it
encroached upon the liquor licensing competence, this was purely incidental and
therefore permissible.
163 Liquor Bill above n 31 at para 62.
164 B131B – 98.
165 Liquor Bill above n 31 at para 57.
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[202] This Court held that the true substance of the Liqu or Bill was directed at three
objectives, namely—
“(a) the prohibition on cross -holdings between the three tiers involved in the liquor
trade, namely producers, distributors and retailers; (b) the establishment of uniform
conditions . . . for the national registration of liquor manufacturers and distributors; and
. . . (c) the prescription of detailed mechanisms to provincial legislatures for the
establishment of retail licensing mechanisms.”166
[203] The components of the Liquor Bill giving effect to objective (a) permissibly fell
under “trade” and “industrial promotion”.167 The components of the Liquor Bill giving
effect to objective (b) seemingly fell under “trade”, but were in any event justified as a
measure to maintain economic unity in terms of section 44(2)(b).168 But the attempt to
regulate intra-provincial retail licensing mechanisms was an unlawful intrusion into the
exclusive area of provincial legislative competence, “liquor licences”, in Part A of
Schedule 5.
[204] From this it follows that where legislatio n is characterised as having more than
one substance or identity, each would have to constitute a significant component of the
legislation aimed at achieving a distinctive and identifiable objective or purpose. A
corollary of this is that, in assessing wh ether legislation is compliant with the
constitutional scheme for distribution of legislative authority, it may be inappropriate
to parse the statute, testing it section -by-section. Rather, the substance, purpose and
effect of that component of the legisl ation directed at a particular objective must be
considered holistically.
[205] The fourth observation arising from OUTA is this. In its analysis of the principles
relating to the allocation of legislative power between the three spheres of government,
it does not treat local government as being subject to a different set of principles from
166 Id at para 69.
167 Id at para 70.
168 Id at paras 71-5.
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those applicable to the national and provincial spheres. In this regard OUTA does not
suggest that in the exercise of its legislative authority under the Constitution the local
sphere occupies an inferior or subordinate position to the national and provincial
spheres; nor does it sugges t that the local sphere’s legislative power is inferior or
subordinate or incidental only to its executive power; nor does it suggest that in relation
to its allocated sphere of legislative authority, the local sphere is subject to a hermetic
seal. Yet th e first judgment seeks to characterise the legislative authority of the local
sphere of government as being inferior to that of the national and provincial spheres in
all of these respects.
[206] To the contrary, in this Court’s analysis in OUTA of the legislative authority of
the three spheres of government, the local sphere is treated, within its legislative
allocation, as an equal partner. 169 This it was bound to do by its earlier decision in
Robertson,170 which insists that—
“The Constitution has moved away from a hierarchical division of governmental power
and has ushered in a new vision of government in which the sphere of local government
is interdependent, ‘inviolable and possesses the constitutional latitude within which to
define and express its unique character’171 subject to constraints permissible under our
Constitution. A municipality under the Constitution is not a mere creature of statute,
otherwise moribund, save if imbued with power by provincial or national legislation.
A municipality enjoys ‘original’ and constitutionally entrenched powers, functions,
rights and duties that may be qualified or constrained by law and only to the extent the
Constitution permits. Now, the conduct of a municipality is not always invalid only
for the reason that no legislation authorises it. Its power may derive from the
Constitution or from legislation of a competent authority or from its own laws .”
(Emphasis added.)
169 OUTA above n 53 at paras 21-7 and 82(g). See also section 43 of the Constitution, quoted at [172], which
draws no hierarchical distinction between the national, provincial and local spheres of government in the
distribution of legislative authority.
170 Robertson above n 39.
171 Here citing Pimstone “Local Government” in Chaskalson et al Constitutional Law of South Africa (1996)
(Revision Service 5, 1999) at 5A-26 to 5A-27.
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[207] The first judgment asserts the local sphere’s inferior legislative status primarily
on the basis of its interpretation of section 156(2) of the Constitution, suggesting that it
confers legislative power in less expansive terms than the equivalent conferral of
powers on the national and provincial legislatures in sections 44(1)(a)(ii) and 104(1)(b)
respectively of the Constitution.172 The first judgment suggests further that the conferral
of the legislative power “for the effective administration of the matters which [a
municipality] has the right to administer” points to a legislative power inferior still to a
municipality’s executive power, so much so that the power in section 156(2) confers
only limited legislative power that is incidental to its predominantly executive
functions.173 This in turn means that section 156(5), which confers upon a municipality
“the right to exercise any power concerning a matter reasonably necessary for, or
incidental to, the effective performance of its functions,” does not apply to legislative
powers.174 Section 156(3) is also referred to in support, insofar as it renders a by-law
that conflicts with national or provincial legislation invalid.175
[208] Consequent upon this reasoning, the first judgment says that this Court’s case
law on the characterisation of national and provincial legislation under the interim and
final Constitutions, and of municipal executive authority under the final Constitution,
does not apply to questions of municipal legislative authority.176
[209] Implicit in all of this is that a municipality’s legislative power is hermetically
sealed within its functional areas of express executive authority. Consequent upon this
reasoning, DVB Behuising, amongst other decisions of this Court, is considered by the
first judgment not to be an appropriate “reference point” in deciding this matter.
172 First judgment at [50].
173 Id.
174 Id at [52].
175 Id at [50].
176 Id at [61] to [62].
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[210] I have the following difficult ies with this conception of a municipality’s
legislative power—
(a) It is in conflict with the authority of this Court in, amongst others,
Robertson and OUTA and the four judgments of this Court discussed in
OUTA. As I have pointed out above, these judgments treat the local
sphere of government, once functioning within its functional lane, as an
equal partner. OUTA applies the four judgments of this Court on
characterisation of legislation in exactly the same way to the national,
provincial and local spheres’ legislative authority. It does so under the
heading “[t]he question of exclusive legislative competence”. If the local
sphere was to be treated differently, in the manner suggested in the first
judgment, this Court would have said as much in this part of OUTA.
(b) The fact that legislative power is conferred in section 156(2) for the
“effective administration” of the matters in respect of which it has
executive authority does not reflect a legislative purpose of narrowing
municipal legislative power. Nor does it reflect that it is secondary to its
executive power. The mechanism and wording of section 156(2) is
designed to reflect the unique nature of municipal councils, which
exercise both executive and legislative authority.177 That is why it differs
from the conferral of legislative authority on Parliament and provincial
legislatures. The conferral of legislative power on Parliament is of
necessity broad because it is residual and includes all functional areas not
specifically provided for in Schedules 4 and 5. However, an examination
of the conferral of legislative authority on provincial legislatures in terms
of section 104(1)(b) is as circumscribed as its conferral on municipalities
in section 156(1) and (2).
(c) Section 44(1)(a)(iii) provides for the assig nment by the National
Assembly of legislative powers to “any legislative body in another sphere
of government”. That includes a municipal council. Section 104(1)(c)
177 Section 151(2) of the Constitution.
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provides for the assignment by a provincial legislature of any of its
legislative powers to a municipal council in that province. In exercising
such legislative powers, a municipality would inherit as wide a legislative
power as the national or a provincial legislature. It would be incongruous
if a municipality’s primary legislative power in section 156(2) were then
to be construed narrowly and interpreted on the basis of a different test.
(d) Chapter 7 of the Constitution also includes provisions designed to protect
the autonomy, including legislative autonomy, of municipalities.
Section 151(4) lays down that “[t]he national or a provincial government
may not compromise or impede a municipality’s ability or right to
exercise its powers or perform its functions”. Section 156(3), relied on in
the first judgment as narrowing local legislative authority,178 is expressly
qualified by reference to section 151(4).
(e) The interpretation of section 156(5) as excluding the exercise by a
municipality of reasonably necessary and incidental legislative powers is
against the authority of this Court in Mazibuko.179 It relied on this
provision in holding that a water services by-law conferring the power to
install prepaid water meters was reasonably incidental to the effective
performance of its functions.180
[211] The fifth observation arising from OUTA is that there will be an unconstitutional
exercise of the legislative competence of another sphere of government where there is
an actual intrusion into, or an encroachment upon, its exclusive sphere of competence.
Something must be usurped or subtracted from the legislative authority of the impacted
sphere of government. Thus, in upholding the validity of national legislation aimed at
establishing a national framework to improve road safety and encourage safe driving,
this Court in OUTA observed that the law in question did not “interfere in any way with
178 First judgment at [50].
179 Mazibuko above n 31.
180 Id at para 111.
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the competence of a municipality to make by -laws relating to municipal roads or to
traffic and parking” and left “the finer details to the provincial and municipal spheres
of government”.181 It was for this reason, amongst others, that this Court was, in both
OUTA and Liquor Bill, at pains to assess whether national legislation impacted
intra-provincially or inter-provincially in determining whether national legislation had
stayed within its lane.182
[212] That there must be actual encroachment to found a complaint of intrusion is
apparent also from section 41(1)(f) of the Constitution, which requires that “[a]ll
spheres of government and all organs of state within each sphere must . . . exercise their
powers and perform their functions in a manner that does not encroach on the
geographical, functional or institutional integrity of government in another sphere.”
[213] Against the backdrop of those five observations, it is appropriate to consider the
substance, purpose and effect of the by -laws under scrutiny in this matter, including
whether each is capable of more than one characterisation.
How are the GM and EM By-Laws to be characterised?
[214] The two by-laws under consideration are in the greater part identically arranged
and worded. Their titles are the “Govan Mbeki Spatial Planning and Land Use
Management By-law” and the “Emalahleni Municipal By-Law on Spatial Planning and
Land Use Management”. Neither has a preamble, a long title or a dedicated sec tion
setting out its objects.
[215] Chapter 1 of each by-law provides for definitions, the application of the by -law
and for conflict of laws. Section 2(1) of the respective by-laws renders each applicable
to all land within the municipality’s area of jurisdic tion and section 2(2) records that
181 OUTA above n 53 at paras 114-6.
182 Id at paras 65-6; Liquor Bill above n 31 at paras 51-3.
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each by -law “binds every owner and their successor -in-title and every user of land,
including the state”.
[216] Chapter 2 of each by -law is entitled “Municipal Spatial Development
Framework”. Section 4 of that chapter obliges the municipality to draft a municipal
spatial development framework in accordance with sections 20 and 21 of SPLUMA,
read with sections 23 to 25 of the Systems Act.183
[217] Chapter 3 of each by -law deals with land use schemes. Section 15 in each
by-law records the applicability of sections 24 to 28 of SPLUMA to any land use
scheme adopted by a municipality. 184 Further, Chapter 3 of each by -law supplements
the provisions of SPLUMA in relation to the content of the land use scheme, 185 the
manner in which it is prepa red and brought into force, 186 reviewed and amended, 187
including public participation requirements.188
[218] Chapter 4 of each by -law is entitled “Institutional Structure for Land Use
Management Decisions”. Included in this chapter is provision for the designation of a
183 Section 20 of SPLUMA independently imposes an obligation on every municipality to prepare a spatial
development framework. Section 21 details its content. section 23 of the Systems Act requires a municipality to
undertake dev elopment-oriented municipal planning aimed at achieving identified constitutional objectives,
including the progressive realisation of socio -economic rights. section 24 of the Systems Act requires that
municipal planning give effect to the principles of c o-operative government contained in section 41 of the
Constitution. section 25 of the Systems Act requires that each municipality adopt an integrated development plan
and lays down the requirements for it. These include that the plan “is compatible with national and provincial
development plans”.
184 In terms of section 24(1) of SPLUMA, each municipality must adopt a land use scheme for its entire area of
jurisdiction. The scheme must in terms of section 24(2)(a) “include appropriate categories of land use zoning and
regulations for the entire municipal area, including areas not previously subject to a land use scheme”. sections 25
to 28 deal respectively with the purpose and content of a land use scheme, its legal effect, the review and
monitoring of a land use scheme and the amendment of a land use scheme by rezoning.
185 Section 28 of both the GM and EM By-Laws.
186 Section 18 of both the GM and EM By-Laws.
187 Section 19 of both the GM and EM By-Laws.
188 Section 21 of both the GM and EM By-Laws.
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land development officer189 and the establishment, administration and functioning of a
municipal planning tribunal.190
[219] Chapter 5 of each by -law is entitled “development management”. Here the
wording is not in all respects identical, but the subject matt er is. Chapter 5 of each
by-law regulates the different kinds of land development applications, including
applications for the establishment of a township, applications to amend the land use
scheme,191 applications to remove or amend restrictive conditions of title limiting the
use of land, applications to subdivide and consolidate land parcels, applications for
closure of public places and applications in terms of the land use scheme.192
[220] Part K of Chapter 5 of both the GM and EM By-Laws is titled “General
Matters”. This part includes the transfer embargoes in section 74 of the GM By-Law
and section 84 of the EM By-Law, which are not subject to challenge, and the impugned
section 76 in the GM By-Law and section 86 in the EM By-Law. There is also
provision in Part K of both by-laws for the vesting of ownership of public places in the
municipality in terms of an approved subdivision plan, 193 compliance with conditions
in land development applications requiring transfer of land to the municipality, an
owners’ asso ciation194 or a non -profit company, 195 and applications under Chapter 5
which affect national or provincial interests.196
[221] Chapter 6 of each of the by -laws deals with application procedures, Chapter 7
with engineering services and development charges, Chapter 8 with appeal procedures
189 Section 33 of the GM By-Law and section 32 of the EM By-Law.
190 Sections 34-48 of the GM By-Law and sections 33-51 of the EM By-Law.
191 In the EM By-Law this is described as applications for rezoning.
192 In the EM By-Law this is described as applications for departures from the land use scheme.
193 Section 73 of the GM By-Law and section 83 of the EM By-Law.
194 Transfer to an owners’ association is provided for only in the EM By-Law, not the GM By-Law.
195 Section 75 of the GM By-Law and section 85 of the EM By-Law. Transfer to a non-profit company is provided
for only in the GM By-Law, not the EM By-Law.
196 Section 77 of the GM By-Law and section 87 of the EM By-Law.
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(including the establishment, functioning, management and procedures of municipal
appeal tribunals), Chapter 9 with compliance and enforcement, Chapter 10 with
transitional provisions, and Chapter 11 with general provisions.
[222] In Gauteng Development Tribunal, this Court held as follows regarding the
meaning of “municipal planning” in Schedule 4, Part B to the Constitution:
“Returning to the meaning of ‘municipal planning ’, the term is not defined in the
Constitution. But ‘planning’ in the context of municipal affairs is a term which has
assumed a particular, well-established meaning which includes the zoning of land and
the establishment of townships. In that context, the term is commonly used to define
the control and regulation o f the use of land. There is nothing in the Constitution
indicating that the word carries a meaning other than its common meaning which
includes the control and regulation of the use of land. It must be assumed, in my view,
that when the Constitution draf ters chose to use ‘planning’ in the municipal context,
they were aware of its common meaning. Therefore, I agree with the
Supreme Court of Appeal that in relation to municipal matters the Constitution
employs ‘planning’ in its commonly understood sense.”197
[223] From this extract one may discern that “municipal planning” means the control
and regulation of the use of land, including matters pertaining to the zoning of land and
the establishment of townships.
[224] Taking into account the content of the GM and EM By-Laws as set out above in
some detail, their substance, purpose and effect is overwhelmingly the regulation of the
use of land, with a strong focus on township development, the related process of
subdivision of land and the zoning of land, which regulates how identified areas of land
within a municipality may or may not be used. On the authority of Gauteng
Development Tribunal, those squarely constitute municipal planning.
197 Gauteng Development Tribunal above n 51 at para 57.
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[225] The contention advanced by Glencore and accepted in the first judgment is that
the transfer embargo in each of sections 76 and 86 of the GM and EM By-Laws
respectively is constitutionally invalid because it falls within the functional area of
deeds registration, which is an area of national legislative competence.198
[226] For that contention to hold, it must be that there is a sufficiently distinctive and
significant component of the GM and EM By-Laws that allows for separate
characterisation as regulating the registration of transfer of immovable property. That
must be its substance, purpose and effect. And to be considered offensive to the
constitutional scheme for distribution of legislative authority, that distinctive
component of the GM and EM By-Laws must encroach upon and subtract from the
national competence of deeds registration.
[227] This cannot, in my view, be said of the transfer embargo provisions in question.
They do not form any part of a distinctive component of the by-laws that stands outside
its municipal planning objective, and which has the substance, purpose and effect of
regulating deeds registration. There is no discernible purpose within the by -laws to
assume control over any component of the regulation of the transfer of immovable
property.
[228] This is so even if the focus is kept on sections 76 and 86 of the GM and
EM By-Laws respectively , which represent very small components of both by-laws,
insufficient to constitute distinctive component s with unique substance, purpose and
effect. For ease of reference, I quote the extant part of section 76 of the GM By-Law,
taking into account the findings of invalidity made earlier in the judgment:
“(1) A person may not apply to the Registrar of Deeds to register the transfer of a
land unit, unless the Municipality has issued a certificate in terms of this
section.
198 First judgment at [76], [85] and [93].
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(2) The Municipality may not issue a certificate to transfer a land unit in terms of
any law, or in terms of this By-law, unless the owner furnishes the Municipality
with
. . .
(b) proof of payment of any contravention penalty or proof of compliance
with a directive contemplated in Chapter 9;
(c) proof that the land use and buildings constructed on the land unit
comply with the requirements of the land use scheme”.
[229] The EM By-Law in its extant part is identical.199
[230] Subsection (1) is directed at regulating the conduct of an owner of land, or that
of her agent, not the conduct of the Registrar of Deeds, at least directly. The owner is
prohibited from applying to transfer land without the required certificate.
Subsection (1) also regulates the conduct of the mun icipality. The municipality is
impliedly authorised to issue a certificate if the conditions laid down in subsection (2)
are satisfied.
[231] Subsection (2) is also directed at regulating the conduct of the owner of land who
wishes to transfer ownership of it, and that of the municipality, which may only issue a
certificate in terms of that provision if the owner provides the proof required in
paragraphs (b) and (c).
[232] Each of paragraphs (b) and (c) of subsection (2) is specifically directed at
regulating the use of land in accordance with the GM and EM By-Laws and the relevant
land use scheme, a function that, on the authority of Gauteng Development Tribunal
forms part of municipal planning. Paragraph (b) enhances the effectiveness of the
by-laws’ compliance an d enforcement provisions, as set out in Chapter 9. These
provisions, in turn, are designed to ensure compliance with the regulation of land use
provided for in the by-laws and the land use scheme. Paragraph (c) is aimed at ensuring
199 See section 86(1)-(2)(c) of the EM By-Law. This is subject to the use of the words “may” and “must” in the
respective By-Laws discussed at [112] to [113] and n 102 above.
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that the use of land a nd the construction of buildings on land are compliant with the
land use scheme.
[233] Neither the promulgation nor the implementation of sections 76 and 86 of the
GM and EM By-Laws respectively encroaches upon or subtracts from the national
competence of legis lating for the registration of transfer of immovable property.
Nothing whatsoever is taken from or added to, or contradicted in, the Deeds Registries
Act.200 There is no usurpation by the municipalities of the functions of the Registrar of
Deeds under national legislation. Seamless implementation of the transfer embargo is
possible under the Deeds Registries Act, within the normal functioning of the deeds
registry. No statutory powers are wrested from the Deeds Registries or their Registrars.
In this regard, section 3(1)(b) of the Deeds Registries Act provides in relevant part as
follows:
“3. Duties of registrar
(1) The registrar shall, subject to the provisions of this Act—
. . .
(b) examine all deeds or other documents submitted to him for
execution or registration, and after examination reject any
such deed or other document the execution or registration of
which is not permitted by this Act or by any other law , or to
the execution o r registration of which any other valid
objection exists.”
[234] “Law” is defined in the Interpretation Act 201 as including, amongst others, “any
. . . other enactment having the force of law.” 202 That would include a by -law.
Section 3(1)(b) of the Deeds Registries Act thus allows the Registrar of Deeds in the
ordinary course of her functions to prevent transfer being passed in the absence of the
certificate required by sections 76 and 86 of the GM and EM By-Laws respectively.
200 47 of 1937.
201 33 of 1957.
202 Id at section 1.
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This would have the consequence of allowing a transfer embargo in a by-law to operate
effectively without any intrusion upon the Registrar of Deeds ’ statutory function at
national level. It would no more interfere with her jurisdiction or that of the national
sphere of government than a testator who in her will imposes a limitation, for example,
on which of her immovable properties may be realised by the executor and which must
be retained for purposes of generating an income. If there is such a limitation, then the
Registrar of Deeds is bound by section 3(1)(b) to reject the deed of transfer. 203 One
would not in that circumstance speak of the testator having usurped the legislative
authority of Parliament.
The significance or otherwise of DVB Behuising
[235] Glencore argues that DVB Behuising is authority for the invalidity of sections 76
and 86 of the GM and EM By-Laws respectively on the basis that they constitute the
impermissible regulation of the registration of deeds by the local sphere of government,
when it is a competence of the national sphere of government.
[236] DVB Behuising was a case dealing with the effects of an assignment of old-order
legislation under section 235 of the interim Constitution. The legislation in question
was Proclamation 293 of 1962 (the P roclamation),204 which was an instrument of
apartheid urban planning that provided f or the establishment and disestablishment of
townships in what its apartheid authors described as “Bantu areas”. The North West
Local Government Laws Amendment Act 205 (NW Amending Act) purported to repeal
chapters 1, 2, 3 and 9 of the Proclamation. However, the North West Province did not
have legislative competence to repeal old-order legislation unless the administration of
that legislation had validly been assigned to it.206 So this Court had to decide whether
203 Estate Gouws v Registrar of Deeds 1947 (4) SA 403 (T), especially at 408-9.
204 Proc R293 GG 373 of 16 November 1962.
205 7 of 1998.
206 Section 239 of the Constitution defines “provincial legislation” to include “ legislation that was in force when
the Constitution took effect and that is administered by a provincial government”.
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the parts of the Proclamation targeted for repeal in the NW Amending Act had validly
been assigned to the North West.207
[237] Acting under section 235(8) of the interim Constitution, on 17 June 1994 the
President had assigned the administration of the whole of the Proclamation to the
North West “ excluding those provisions of the said laws which fall outside the
functional areas specified in Schedule 6 to the Constitution 208 or which relate to . . .
matters referred to i n para graphs (a) to (e) of section 126(3) of the [interim]
Constitution”.209 Section 235 was a transitional provision of the interim Constitution
which sought to regulate the exercise of executive authority under laws which had been
enacted prior to the commencement of the interim Constitution but which remained in
force under section 229 of that Constitution to prevent a legal vacuum on the first day
of democracy.210
207 DVB Behuising above n 14 at para 20.
208 Schedule 6 listed “legislative competences of provincial government”, which included: amongst others, “local
government”, “regional planning and development”, and “urban and rural development”.
209 Proc R110 GG 15813 of 17 June 1994. Section 126(3) reads—
“(3) A law passed by a provincial legislature in terms of this Constitution shall prevail over
an Act of Parliament which deals with a matter referred to in subsection (1) or (2)
except in so far as–
(a) the Act of Parliament deals with a matter that cannot be regulated effectively
by provincial legislation;
(b) the Act of Parliament deals with a matter that, to be performed effectively,
requires to be regulated or co -ordinated by uniform norms or standards that
apply generally throughout the Republic;
(c) the Act of Parliament is necessary to set minimum standards across the nation
for the rendering of public services;
(d) the Act of Parliament is necessary for the maintenance of economic unity, the
protection of the environment, the promotion of interprovincial commerce,
the protection of the common market in respect of the mobility of goods,
services, capital or labour, or the maintenance of national security; or
(e) the prov incial law materially prejudices the economic, health or security
interests of another province or the country as a whole, or impedes the
implementation of national economic policies.”
210 The context of section 235 was described in the judgment of Chaskalson P in Executive Council, Western Cape
Legislature above n 37 at paras 7-9. In relevant part section 235, which is headed “Transitional arrangements:
Executive authorities”, stated the following:
“(1) A person who immediately before the commencement of this Constitution was—
DODSON AJ
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(a) the State President or a Minister or Deputy Minister of the Republic within
the meaning of the previous Constitution;
(b) the Administrator or a member of the Executive Council of a province; or
(c) the President, Chief Minister o r other chief executive or a Minister, Deputy
Minister or other political functionary in a government under any other
constitution or constitutional arrangement which was in force in an area which
forms part of the national territory,
shall continue in office until the President has been elected in terms of section 77(1)(a) and has
assumed office: Provided that a person referred to in paragraph (a), (b) or (c) shall for the
purposes of section 42(1)(e) and while continuing in office, be deemed not to hold an office of
profit under the Republic.
. . .
(5) Upon the assumption of office by the President in terms of this Constitution —
(a) the executive authority of the Republic as contemplated in section 75 shall
vest in the President acting in accordance with this Constitution; and
(b) the executive authority of a province as contemplated in section 144 shall,
subject to subsections (8) and (9), vest in the Premier of that province acting
in accordance with this Constitution, or while the Premier of a provinc e has
not yet assumed office, in the President acting in accordance with section 75
until the Premier assumes office.
(6) The power to exercise executive authority in terms of laws which, immediately prior
to the commencement of this Constitution, were in force in any area which forms part
of the national territory and which in terms of section 229 continue in force after such
commencement, shall be allocated as follows:
(a) All laws with regard to matters which—
(i) do not fall within the functional areas specified in Schedule 6; or
(ii) do fall within such functional areas but are matters referred to in
paragraphs (a) to (e) of section 126(3) . . . shall be administered by
a competent authority within the jurisdiction of the national
government . . .
(b) All laws with regard to matters which fall within the functional areas specified
in Schedule 6 and which are not matters referred to in paragraphs (a) to (e) of
section 126(3) shall—
(i) if any such law was immediately before the commencement of this
Constitution administered by or under the authority of a functionary
referred to in subsection (1)(a) or (b), be administered by a
competent authority within the jurisdiction of the national
government until the administration of any such law is with regard
to any particular province assigned under subsection (8) to a
competent authority within the jurisdiction of the government of
such province; or
(ii) if any such law was immediately before the said commencement
administered by or under the authority of a functionary referred to in
subsection (1)(c), subject to subsections (8) and (9) be administered
by a competent authority within the jurisdiction of the government
of the province in which that law applies, to the extent that it so
applies . . ..
(c) In this subsection and subsection (8) ‘competent authority’ shall mean—
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[238] The transition of executive authority under section 235 of the
interim Constitution drew on section 126 and Schedule 6 to the interim Constitution,
which defined the limits of the concurrent legislative competence of the provinces, and
regulated conflicts between national and provincial laws under the interim Constitution.
The broad scheme of section 235 was that executive authority would be assigned to the
provinces if that executive authority arose out of laws on matters falling within the
provincial legislative competence (Schedule 6 matters), but not if the laws in question
dealt with matters falling within the national legislative override categories of
section 126(3)(a) to (e) of the interim Constitution.211
(i) in relation to a law of which the administration is allocated to the
national government, an authority designated by the President; and
(ii) in relation to a law of which the administration is allocated to the
government of a province, an authority designated by the Premier of
the province.
. . .
(8)(a) The President may, and shall if so requested by the Premier of a province, and provided
the province has the administrative capacity to exer cise and perform the powers and
functions in question, by proclamation in the Gazette assign, within the framework of
section 126, the administration of a law referred to in subsection (6)(b) to a competent
authority within the jurisdiction of the government of a province, either generally or to
the extent specified in the proclamation.
(b) When the President so assigns the administration of a law, or at any time thereafter,
and to the extent that he or she considers it necessary for the efficient carrying out of
the assignment, he or she may—
(i) amend or adapt such law in order to regulate its application or interpretation;
(ii) where the assignment does not relate to the whole of such law, repeal and
re-enact, whether with or without an amendment or adapt ation contemplated
in subparagraph (i), those of its provisions to which the assignment relates or
to the extent that the assignment relates to them; and
(iii) regulate any other matter necessary, in his or her opinion, as a result of the
assignment, inclu ding matters relating to the transfer or secondment of
persons (subject to Sections 236 and 237) and relating to the transfer of assets,
liabilities, rights and obligations, including funds, to or from the national or a
provincial government or any departm ent of state, administration, force or
other institution.
. . .
(d) Any reference in a law to the authority administering such law, shall upon the
assignment of such law in terms of paragraph (a) be deemed to be a reference mutatis
mutandis [(with the necessary changes having been made)] to the appropriate authority
of the province concerned.”
211 See DVB Behuising above n 14 at paras 33-4.
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[239] The question for this Court in DVB Behuising was therefore how to categorise
the Proclamation (and its component parts) for the purposes of Schedule 6 to the
interim Constitution and section 126(3)(a) to (e), so as to decide whether the
administration of all parts of the Proclamation could validly have been assigned to the
North West. In answering this question, the majority of this Court concluded that, for
the most part, Chapters 1, 2 and 3 of the Proclamation dealt with regional planning and
development, urban and rural development and local government , all of which were
Schedule 6 matters. Certain provisions of Chapters 2 and 3, and the whole of Chapter 9
of the Proclamation, however, stood on a slightly different footing. The relevant
provisions of Chapters 2 and 3 concerned the granting of a limited form of “ownership”
rights in land in townships established under the Proclamation and Chapter 9 provided
a system for the registration of those “ownership” rights. As this Court pointed out,212
on their face these provisions concerned land tenure and registration which were not
Schedule 6 matters. This Court concluded, however, that becau se the provisions were
essential to the scheme of the Proclamation as a whole, they should be treated as
Schedule 6 matters.213 Ngcobo J stated:
“I am satisfied that the ‘tenure’ and deeds registration provisions of the proclamation
were inextricably linked to the other provisions of the proclamation and were
foundational to the planning, regulation and control of the settlements. These
provisions were an integral part of the leg islative scheme of the proclamation and
accordingly fell within Schedule 6.” 214
[240] Although not relevant for present purposes, DVB Behuising went on to conclude
that the deeds registration provisions of Chapter 9 of the Proclamation were
nevertheless invalidl y assigned to the North West because they dealt with “t he
registration of deeds of grant, a matter that is required to be regulated by uniform norms
212 Id at para 55.
213 Id at paras 55-8.
214 Id at para 58.
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and standards, and thus a matter referred to in paragraph (b) of section 126(3) of the
interim Constitution”.215
[241] It is important to bear in mind that in DVB Behuising the High Court had declared
the purported repeal of Chapters 1, 2, 3 and 9 of the Proclamation by the NW Amending
Act to be constitutionally invalid on the grounds that their “predominating features”
were “land, land tenure or ownership, the registration of deeds and th e establishment
and abolition of townships”, which it considered to be “matters which are not provincial
but national competences”.216 The High Court reached this conclusion on the basis that
“[p]rovincial legislatures have ‘a clearly defined and very limited legislative authority’
and have to operate ‘within the strict parameters’ of that authority’”.217
[242] On this basis the High Court considered that –
“[t]he assignment of the administration of the proclamation by the President to the
North West did not include the provisions contained in Chapters 1, 2, 3 and 9 thereof,
because the assignment expressly excluded any provisions of the regulations falling
outside the functional areas specified in Schedule 6 to the interim Constitution.”218
[243] The DVB Behuising majority judgment of Ngcobo J deals with this reasoning of
the High Court as follows:
“I would point out immediately that I respectfully disagree with the view expressed by
Mogoeng J to the effect that the functional areas of provincial legislative competence
set out in the Schedules should be ‘given a strict interpretation’. In the interpretation
of those Schedules there is no presumption in favour of either the national legislature
or the provincial legislatures. The functional areas must be purposively interpreted in
215 Id at para 72.
216 DVB Behuising above n 14 at paras 5 and 16(d).
217 DVB Behuising above n 14 at para 16(a), quoting the High Court’s judgment. See also para 16(b), which is to
similar effect.
218 Id at para 16(e).
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a manner which will enable the national Parliament and the provincial legislatures to
exercise their respective legislative powers fully and effectively.”219
[244] The majority judgment went on to set out the test for determining whether the
legislation falls within a schedule containing a list of legislative competences as
follows:
“[36] The inquiry into whether the proclamation dealt with a matter listed in
Schedule 6 involves the determination of the subject -matter or the substance of the
legislation, its essence, or true purpose and effect, that is, what the proclamation is
about. In determining the subject -matter of the proclamation it is necessary to have
regard to its purpose and effect. The inquiry should focus beyond the direct legal effect
of the proclamation and be directed at the purpose for which the proclamation was
enacted. In this inquiry the preamble to the proclamation and its legislative history are
relevant considerations, as they serve to illuminate its subject -matter. They place the
proclamation in context, provide an explanation for its provisions and articulate the
policy behind them.
. . .
[38] The purpose and effect of the legislation may equally be relevant to show that
although the legislation, in some of its provisions, purports to deal with a matter which
falls outside the functional areas listed in Schedule 6, its true purpose and effect is to
achieve a different goal which falls within the functional areas listed in Schedule 6. In
such event, a court would have to hold that the province has acted within its competence
and then consider whether those provisions which fall outside of the provincial
competence are reasonably necessary for, or incidental to give effect to, the object of
the legislation.
[39] The de termination of the subject -matter of the proclamation, therefore,
requires an understanding of its legislative scheme. Ordinarily, legislation is the
embodiment of a single legislative scheme. A law may, however, have more than one
subject-matter.”
[245] The majority judgment proceeded to apply this approach and, on that basis, held
as follows:
219 Id at para 17.
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“[51] On a view of the proclamation as a whole, I am satisfied that its legislative
scheme was in substance within the functional areas of regional planning and
development, urban and rural development and local government. These are functional
areas listed in Schedule 6. It now remains to consider whether the impugned provisions
of the proclamation dealt with a matter listed in Schedule 6.”
[246] The majority then consi dered the content of each of the impugned chapters in
some detail and summarised those aspects relevant to the enquiry as follows:
“[54] Chapter 3 dealt with trade and prescribed conditions under which trade in the
township might be carried out. In addition, it made provision for the allocation of
trading sites, and the granting of deeds of grant in respect of the trading sites. Chapter 9
made provision for the registration of deeds of grant. It established special deeds
registries in the offices of the Chief Bantu Affairs Commissioners and set out the duties
of the officers in charge of these deeds registries.”
[247] Through detailed provisions, Chapter 9 of the proclamation established a
substantial deeds registration system of its own that operated separately from and in
parallel with the national deeds registration system operating under the Deeds Registries
Act.220 Despite this, the majority in DVB Behuising held as follows:
“[55] The provisions of Chapter 2 and Chapter 3 that related to the granting of a
limited form of ‘ownership’ rights in land in the township and those that related to the
registration of those rights in Chapter 9 dealt, on their face, with a form of land tenure,
a matter not listed in Schedule 6. However, as appears from what follows, they were
essential to the scheme of the proclamation.
220 Regulations 1 to 13 of Chapter 9 of the Regulations for the Administration and Control of Townships in Bantu
Areas Proc R293 GG 140 of 16 November 1962. The chapter heading is “Registration of Deeds”. The
section headings include “Establishment of Deeds Registries in Offices of Chief Bantu Affairs Commissioners”,
“Registrar of Deeds to be Advised of Establishment of Townships”, “Duties of Officers in Charge of Deeds
Registry”, “Powers of Officer in Charge of Deeds Registry”, “Inspection of Records and Supply of Information”,
“How Ownership Units shall be Transferred”, “Registration of Bonds”, “Substitution of Debtor in Respect of a
Bond”, “Taxes and Fees to be Paid before a Transfer of Land”, “Rectification of Title by Endorsement” and
“Copies of Deeds”.
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[56] The purpose of establishing a township was to create and sell sites to Africans.
In Broadacres Investments Ltd v Hart221 it was also said:
‘To establish a township necessarily involves creating sites and selling
them to the public or allowing that to be done.’
At 932E-F, it was further noted:
‘The establishment of a township necessarily involves both the
creation of the township on paper, the lay -out of the land a nd the
acquisition of sites by purchasers. In my view the provisions contained
in section 36(2) of the Ordinance [27 of 1949] to expedite the process
of changing a private township into an approved private township and
the protection of purchasers who buy sites before such approval is
given, are incidental to the establishment of a township and they are
reasonable both in the interests of the Province and of prospective
owners.’
[57] The proclamation made provision for the creation of sites and their acquisition
by purchasers. It created a special form of ‘tenure’ for those who acquired sites in the
township in the form of deeds of grant. This title was available only to purchasers of
sites in the townships. In addition, the proclamation established special deeds registries
in the offices of Chief Bantu Affairs Commissioners to register these special forms of
tenure and created special procedures for the registration of the deeds of grant. These
special provisions applied only to deeds of grant issued in respect of sites in the
township. They were well integrated into the scheme of the proclamation and they
were important for the efficacy of the proclamation.
[58] I am satisfied that the ‘tenure’ and deeds registration provisions of the
proclamation were inextricably linked to the other provisions of the proclamation and
were foundational to the planning, regulation and control of the settlements. These
provisions were an integral part of the legislative scheme of the proclamation and
accordingly fell within Schedule 6.”
[248] In my view, the following conclusions flow ineluctably from the above
paragraphs of the majority’s judgment in DVB Behuising:
221 Broadacres Investments Ltd v Hart 1979 (2) SA 922 (A) at 931H.
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(a) Just as in DVB Behuising the province’s list of specific competences was
not to be interpreted narrowly or strictly, but rather purposively, allowing
each sphere to exercise its legislative authority fully and effectively, so
too should the municipalities’ legislative competences in Part B of
Schedule 4 be understood in this matter.
(b) Given the similarity between the interim Constitution’s constitutional
scheme for allocation of legislative authority between the provincial and
national spheres, and the scheme in the final Constitution for both
provinces and municipalities, DVB Behuising remains good authority for
the approach to the legislative competence of municipalities under the
final Constitution.
(c) The approach of the High Court in DVB Behuising on both the
interpretation and application of principles for the allocation of legislative
power between spheres of gove rnment aligns with that contended for by
Glencore. Whilst that approach enjoyed some obiter (in passing) support
in the DVB Behuising minority judgment of Goldstone J, O’Regan J and
Sachs J,222 it was squarely rejected by the majority of this Court.
(d) DVB Behuising certainly cannot, on a full consideration of the paragraphs
quoted, be cited as authority for the proposition that the transfer
embargoes in this matter fall under the national legislative competence of
deeds registration. The provisions dealing with forms of land tenure and
deeds registration in DVB Behuising were far more wide -ranging and
potentially intrusive than the transfer embargoes in the present matter.
Yet the majority in DVB Behuising considered that because the land
tenure and deeds reg istration provisions were “well integrated into the
scheme of the proclamation” and important for its efficacy, they were to
be treated as falling within Schedule 6. If that is so, then even more so do
the substantially less impactful transfer embargoes i n this matter fall
222 DVB Behuising above n 14 at paras 102-3.
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within the scheme of the GM and EM By-Laws and therefore within the
legislative competence of the municipalities.
(e) The transfer embargoes are well integrated into the legislative scheme of
the by -laws and will render them effective. Thei r effect is that each
transferor and transferee of immovable property becomes a participant in
the enforcement of the by -laws and in the implementation and
enforcement of the legal regime governing the use of land in compliance
with land use schemes made i n terms of the by -laws. Why should our
Constitution not be interpreted so as to allow municipalities to draw
citizens into enforcing the rule of law at local level within the confines of
their own properties?
(f) That the transfer embargoes are important to t he efficacy of the by -laws
is apparent from the fact that they are widely used in by -laws around the
country and have been used in by -laws and other legislation over a long
period of time.223
(g) The effect of striking down the transfer embargoes in this case on the basis
set out in the first judgment would be that every one of these transfer
embargoes found in a by-law would become susceptible to striking down
on the basis that municipalities around the country had no authority to
impose them. This would be mos t unfortunate, because town and
municipal planning is an instrument for the creation of orderly societies
based on the rule of law. Such planning promotes development, the
realisation of socio -economic rights and the improvement of the social
conditions of all residents of South Africa. This much is recognised in
section 23(1) of the Systems Act.224
223 See the discussion at [126] to [128] above.
224 The section is headed “Municipal planning to be developmentally oriented”, and provides as follows:
“(1) A municipality must undertake developmentally-oriented planning so as to ensure that
it—
(a) strives to achieve the objects of local government set out in section 152 of the
Constitution;
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(h) The first judgment criticises the Municipalities on the basis that there are
other enforcement mechanisms available to enforce the GM and
EM By-Laws, such as th e appointment of inspectors. It seeks to
demonstrate that the five inspectors Govan Mbeki claims to require are
affordable. Emalahleni is criticised for failing to put up evidence in this
regard. But if transfer embargoes are efficacious, why not have both?
[249] Accordingly, DVB Behuising is good authority that there is no impermissible
intrusion on the legislative authority of the national sphere of government by the transfer
embargoes contemplated in paragraphs (b) and (c) of the respective by-laws. Properly
characterised, they are integral to the regulation and exercise by the municipalities of
their municipal planning function in Part B of Schedule 4 and do not stray outside of it.
Reasonably necessary or incidental
[250] There are three sources of municipal legislative authority contemplated in
section 156 of the Constitution. The first is section 156(2) read with section 156(1)(a),
which is that linked to the local government matters listed in Part B of Schedule 4 and
Part B of Schedule 5. It is that source which has formed the subject matter of discussion
of legislative competence thus far in this judgment. Establishing it as a valid source
requires characterising any impugned legislation and testing whether it falls within
those local government matters.
[251] The second source is section 156(2) read with section 156(1)(b), which includes
matters assigned to a municipality by national or provincial legislation. We are not
concerned here with such an assignment.
(b) gives effect to its developmental duties as required by section 153 of the
Constitution; and
(c) together with other organs of state contribute to the progressive realisation of
the fundamental rights contained in sections 24, 25, 26, 27 and 29 of the
Constitution.”
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[252] The third source is section 156(5), which affords a municipality “the right to
exercise any power concerning a matter reasonably necessary for, or incidental to, the
effective performance of its functions”. I have already indicated why I differ from the
first judgment in holding that this affords an independent source of municipal legislative
power. Additionally, the word “any” preceding the word “power” points to the
inclusion of legislative power, not just executive power. In Mazibuko, this Court
interpreted the word “re asonable” as qualifying both the words “necessary” and
“incidental”.225
[253] This third source of power is a conditional one. It must be reasonably necessary
for, or reasonably incidental to, the effective performance of the municipality’s
functions. Provided that this condition is satisfied, the section 156(5) legislative power
is not limited to the functional areas in Part B of Schedule 4 or Part B of Schedule 5.
The reasonably necessary or incidental power may in itself be one which falls outside
those functional areas. This is confirmed in the judgments of this Court referred to
earlier, which recognise that the three spheres’ areas of legislative competence are not
hermetically sealed and may overlap.226
[254] The Supreme Court of Appeal viewed the matter somewh at differently. It
considered that the powers in section 156(5) were those that were “indispensable for the
effective administration ” of the primary power and that they “ may not be used to
increase the functional areas of local government ’s powers, but ra ther to enhance the
efficacy of administrating an existing functional area ”.227 This is not entirely correct.
“Indispensable” does not align with “reasonably necessary” and “reasonably
incidental”. They are broader concepts. And if a municipality can dem onstrate that a
power is reasonably necessary or reasonably incidental for the effective performance of
225 Mazibuko above n 31 at para 111. See also Liquor Bill above n 31 at para 81.
226 Maccsand above n 35 at para 47 and Gauteng Development Tribunal above n 51 at para 55, as well as the
authorities cited by the first judgment at n 53.
227 Supreme Court of Appeal judgment above n 20 at paras 18-9.
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110
its functions, a municipality may exercise it even though it may result in a limited
expansion of its powers and a consequential intrusion into those of another sphere.
[255] Applying this analysis to the present matter, even if it were to be concluded that
the transfer embargo contemplated by paragraphs (b) and (c) of the respective by -laws
fell outside of the legislative authority conferred by section 156(2), read with
section 156(1)(a) and Part B of Schedule 4 in respect of municipal planning, and to a
limited extent engaged the national function of deeds registration, they would at the
very least be reasonably incidental to the exercise by the Municipalitie s of their
municipal planning power.
Conclusion on legislative competence
[256] I accordingly conclude that the legislative competence challenge to
section 76(2)(b) and (c) of the GM By-Law and 86(2)(b) and (c) of the EM By-Law has
not been established. I should add that even if the analysis were applied to the full
provisions, without taking into account the other successful challenges to the remaining
paragraphs (a) and (d) to (f) of section 76(2) of the GM By-Law and paragraphs (d) to
(e) of section 86(2) of the EM By-Law, the outcome on legislative competence would,
in my view, be the same.
SPLUMA
[257] Glencore founds a separate challenge to the impugned provisions on SPLUMA.
It points out that, as section 2(1)(a) of SPLUMA records, it was enacted in terms of
section 155(7) of the Constitution, which affords national and provincial governments
the legislative and executive authority to see to the effective performance by
municipalities of their functions in respect of matters listed in Schedules 4 and 5. 228
228 Section 155(7) reads as follows:
“(7) The national government, subject to section 44, and the provincial governments have
the legislative and executive authority to see to the effective performance by
municipalities of their functions in respect of matters list ed in Schedules 4 and 5, by
regulating the exercise by municipalities of their executive authority referred to in
section 156(1).”
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This section, Glencore argues, makes substantial inroads into municipal legislative
competence.
[258] Glencore argues that SPLUMA provides no authority for the imposition of
transfer embargoes by municipalities in their by -laws. Absent that, it argues that
because SPLUMA has legislated comprehensively for municipal planning, there is no
such power.
[259] The short answer to these arguments is that I have already found that the transfer
embargoes in section 76(2)(b) and (c) of the GM By-Law and 86(2)(b) and (c) of the
EM By-Law fall directly within the legislative competence of the municipalities under
section 156(1)(a) and 156(2), read with Schedule 4 and, if not under those provisions,
under section 156(5) of the Constitution.
[260] SPLUMA cannot usurp the Municipalities’ ori ginal constitutional legislative
competence in respect of municipal planning. 229 Nor does it seek do so. If regard is
had to the fact that SPLUMA has its genesis in the setting aside of earlier legislation
because of national and provincial overreach into municipalities’ original legislative
authority,230 it would be surprising if it did.
[261] If regard is had to its long title, its preamble and section 3, SPLUMA’s objects
are, amongst others, to provide for uniformity and effectiveness in spatial planning and
land use management, to lay down development principles and norms and standards,
229 See Minister of Local Government, Western Cape v Lagoonbay Lifestyle Estate (Pty) Ltd [2013] ZACC 39 ;
2014 (1) SA 521 (CC); 2014 (2) BCLR 182 (CC) at para 46.
230 The history was referred to by the majority in Chairperson of the Municipal Appeals Tribunal, City of Tshwane
v Brooklyn and Eastern Areas Citizens Association [2019] ZASCA 34; [2019] 2 All SA 644 (SCA); 2012 JDR
0670 (SCA) at para 36 as follows:
“SPLUMA was the second legislative attempt to create a uniform town planning regime for
South Africa. The first attempt was the Development Facilitation Act 67 of 1995, but
Chapters V and VI thereof were found by the Constitut ional Court to be invalid because they
infringed the autonomy of municipalities to regulate the land use and municipal planning within
their areas of jurisdiction. These defects were remedied by SPLUMA.”
See also Ex Parte Whitfield and Similar Matters 2017 (5) SA 161 (ECP) at paras 12-7.
DODSON AJ
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and to provide for cooperation between national, provincial and local spheres of
government. It seeks to achieve a measure of consistency in how municipalities
exercise their planning powers, rather than trying to narrow those powers.
[262] Accordingly, even if SPLUMA does not itself authorise municipalities to
introduce transfer embargoes, 231 it provides no basis for overturning them if they are
made in terms of powers given to them b y the Constitution. There is accordingly no
merit in the challenge based on SPLUMA.
Administrative justice review
[263] Glencore sought the judicial review of the administrative decisions reflected in
the requirements set out in the application forms and standard affidavits that a transferor
must complete to apply for the certificates contemplated in sections 76 and 86 of the
GM and EM By-Laws respectively that will allow transfer to proceed. This it sought
by way of alternative relief in the event of its constitutional review failing. Glencore’s
constitutional review has failed in part, so the judicial review must be considered. The
judicial review is sought in terms of the Promotion of Administrative Justice Act 232
(PAJA), alternatively, under the principle of legality.
[264] Govan Mbeki asserts that the judicial review is brought outside the 180 -day
period provided for in section 7(1) of PAJA. Glencore responds on the basis that its
challenge is a collateral one and therefore not time-bound. It cites Merafong City233 in
support. In my view it was not strictly necessary to characterise the relief as a distinct
231 The argument that SPLUMA does not contemplate transfer embargoes is in any event difficult to sustain. It
contains its own transfer embargo in section 53 to ensure compliance by a developer with the conditions imposed
upon approval of a land development application, before the first transfer of land units emanating from the
development may take place. Section 32(1), which deals with land use schemes, provides in broad terms that “[a]
municipality may pass by-laws aimed at enforcing its land use scheme”. There is nothing in section 32 to suggest
that this power in section 32(1) is confined to the specific enforcement mechanisms provided for in section 32(2)
to (12). Section 5(1)(c), which includes in municipal planning “the control and regulation of the use of land”
(emphasis added), and section 6(1)(a) which applies the general principles in section 7 to, amongst others, “the
preparation, adoption and implementation of any . . . by-law concerning spatial planning and the development and
use of land”, appear to recognise that municipalities exercise broad, original legislative authority.
232 3 of 2000.
233 AngloGold Ashanti Ltd above n 52 at paras 39-44 and 69.
DODSON AJ
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review under PAJA or as a collateral challenge. The relief flows from the assertions
made in support of the constitutional review and warrants consideration in terms of
section 172(1)(a) and (b) of the Constitution. I would in any event be willing to grant
the required extension of time in terms of section 9(1)(b) of PAJA as it is in the interests
of justice to do so.
[265] I first deal with each of the complaints in relation to Govan Mbeki. Glencore
complains that the application form for the section 76 certificate requires the applicant
to provide a Land Use Right Certificate (LURC). This certifies the zoning of the
property in question. Glencore says this is unnecessary because the municipality is the
repository of this information and can get it itself. This is perhaps bureaucratic silliness,
but it raises no issue of lawfulness or any recognised review ground. Glencore is not
entitled to relief in this respect.
[266] Glencore objects to the requirement that an occupancy certificate issued in terms
of section 14(1) of the National Building Regulations and Building Standards Act 234
(NBRBSA) be furnished with the application. The GM By-Law provides no legal
foundation for this request. In terms of section 76(2)(c), certification is required to
show that “buildings constructed on the land unit comply with the requirements of the
land use scheme”, not with the requirements of the NBRBSA. Glencore is ent itled to
this relief in this respect.
[267] Glencore complains that the standard affidavit that must accompany the
application requires the transferor to confirm that all development charges due on the
property have been paid. This is a requirement that is imp osed on the developer. It
should not be demanded of a subsequent transferor to confirm this. Glencore is entitled
to relief for this.
234 103 of 1977.
DODSON AJ
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[268] Glencore objects to the requirement in the standard affidavit of confirmation of
the payment of any contravention penal ties. This requirement is linked to
section 76(2)(b) of the GM By-Law, which has not been found to be constitutionally
invalid. Glencore is not entitled to relief in this respect.
[269] With no small measure of hyperbole, Glencore characterises as a “monstros ity”
the requirement that the transferor say on oath that she is familiar with section 26 of
SPLUMA and the GM By-Law, and confirms compliant use of the land and buildings
on the property. Glencore says that it is arbitrary to require the transferor to familiarise
herself with the legislation and to be a “policeman in [her] own case”. I disagree. A
layperson can do their best to get to grips with the legislation in question or employ a
professional person. Glencore is not entitled to any relief in this respect.
[270] Emalahleni has a n application form and annexures for a section 86 certificate,
including a standard affidavit, that are different from those of Govan Mbeki. For similar
reasons to those given in relation to Govan Mbeki, Glencore is entitled to r elief in
respect of the following requirements which have no legal basis:
(a) Completion of Form A, being the form from a conveyancer confirming
that the funds due in terms of section 86(2)(a) of the EM By-Law have
been paid. The reason for this is that secti on 86(2)(a) has been set aside
as invalid.
(b) Completion of Form B, insofar as it requires the Chief Building
Inspector’s confirmation of approved building plans and payment of
“building compliance/contravention fines”. The reason for this is that this
requirement points to requiring compliance with the NBRBSA, for which
there is no basis in the EM By-Law.235
(c) Completion of Form C, being the affidavit from the transferor confirming
compliance with the requirements of section 86(2)(d) and (e) of the
235 Emalahleni disputed this, saying that the building plans were required only to assess compliance with the land
use scheme. But Form B suggests otherwise. It demands approved building plans and it calls for information in
relation to payment or non -payment of “buil ding compliance/contravention fines”, with the Chief Building
Inspector as the official signing off on this part of the form.
DODSON AJ
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EM By-Law. The reason for this is that these subsections have been set
aside.
[271] Glencore is not entitled to relief in respect of Form B insofar as it requires the
Chief Building Inspector’s confirmation of “zoning certificate issued” and payment of
“land use compliance/contravention fines” – these are justified by section 86(2)(b) and
(c) of the EM By-Law, which were held to be valid.
[272] Relief was also sought by Glencore pertaining to the application fees required to
accompany applications for certificates in terms of sections 76 and 86 of the respective
by-laws, but this relief was not adequately foreshadowed in either the notice of motion
or the founding affidavit. The amounts are not excessive. Glencore is not entitled to
relief in this respect.
Mandatory relief
[273] This relief was only sought in the event that “the constitutional attack fails and
the administrative law attack succeeds but fails in respect of sub -paragraph (a)”.
Neither of these conditions were satisfied. The constitutional attack was successful in
part and the administrative law attack relating to subparagraph (a) succeeded. This need
not be considered.
Relief against the Registrar of Deeds, Mpumalanga
[274] Glencore sought relief against the Registrar of Deeds, Mpumalanga to preclude
him from requiring a certificate in terms of sections 76(2) and 86(2) of the respective
by-laws as a prerequisite for registration of transfer of immovable property. In view of
the fact that I would find these provisions to be valid in part, Glencore is not entitled to
this relief.
DODSON AJ
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A response to further aspects of the first judgment
[275] The first judgment suggests that, should the by-laws in this case be found to fall
within municipalities’ legislative competence, transfer embargoes could be used to
enforce compliance with by -laws that regulate outside of municipal planning. For
example, a municipality might use a transfer embargo to enforce public nuisance
by-laws, or those restricting the sale of food or liquor ; or to force the installation of
“smart” water and electricity meters.
[276] Such transfer embargoes are not before us. Were by -laws to be passed of this
nature, they would each need to be tested for validity on their own merits, both with
reference to legislative competence and compliance with the Bill of Rights. These
particular examples may survive scrutiny from a legislative competence perspective,
for the same reasons as those given in this judgment in relation to paragraphs (b) and (c)
of sections 76(2) and 86(2) of the respective by-laws. There is nothing incongruous
about that. The “smart” meter example bears some resemblance to long -established
transfer embargoes linked to electrical wiring compliance discussed earlier.
[277] If they were legislatively competent, they would still need to be assessed on the
basis of the FNB test to see whether they gave rise to an arbitrary deprivation of property
under section 25(1). There would have to be a rational connection between means and
ends.
[278] In a similar vein, it is suggested that on the approach in this judgment,
municipalities might stray into other areas of provincial and national competence by
imposing embargoes of different kinds to achieve compliance with a planning by -law.
The planning by-law might require a certificate of compliant land use to be produced
as a precondition, not for transfer of a property, but for a property owner to be able to
apply for an identity document, a passport, or a cell phone SIM card, or as a precondition
to export goods manufactured on the property.
DODSON AJ
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[279] These are not reasonable comparators. Th ey contemplate municipal regulation
of other spheres’ competences, which is very different from the transfer embargo
provisions under consideration in this case. Their inclusion in a planning by-law would
render it difficult to retain its essential character as such. Unlike the transfer embargoes,
they would involve a subtraction by a municipality from the legislative authority of
other spheres of government. They would not, in my view, fall within any of the three
sources of municipal legislative power. They may well conflict with national
legislation, giving rise to invalidity under section 156(3). Embargoing a person from
applying for a passport, SIM card or exporting goods is neither reasonably necessary
for, nor reasonably incidental to, municipal planning.
[280] And again, they would all be unlikely to survive scrutiny under the FNB test.
There is an irrational disjunct between means, being the passport, SIM card or export
embargo, and ends, being compliance by the applicant or exporter with land use
legislation. There is insufficient reason for the particular embargoes posited. This is
not so with a transfer embargo aimed at ensuring that the very property subject to it is
land use-compliant. Other rights in the Bill of Rights would most likely be b reached
by such provisions.236
[281] The foregoing analysis examines the postulated examples from the perspective
of both the main grounds of challenge in this case, legislative competence and arbitrary
deprivation of property in breach of section 25(1) of the Co nstitution. That is
appropriate for a proper and full assessment of whether the examples proffered in the
first judgment operate to justify its overturning of all of the legislation challenged in
this case. There is no conflation of the two grounds as the first judgment suggests.
[282] Reflection on the desirability of appropriate transfer embargoes is not irrelevant
to the legislative competence inquiry. The presumption that legislation does not
contemplate an unreasonable result applies to the analysis of t he provisions for
236 For example, freedom of movement in section 21, freedom of trade in section 22, and, given that a cell-phone
gives access to social media, freedom of expression in section 16.
DODSON AJ
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allocation of legislative authority in the Constitution. An interpretation that excludes
appropriate transfer embargoes is potentially unreasonable.
Conclusion
[283] To summarise, I agree with the first judgment that paragraphs (a), (d), (e) and (f)
of section 76(2) of the GM By-Law and paragraphs (a), (d) and (e) of section 86(2) of
the EM By-Law are constitutionally invalid, but on the basis of the challenges founded
on sections 25(1) and 156(3) of the Constitution, not on the basis of the l egislative
competence challenge. Contrary to what is held in the first judgment, I conclude that
section 76(2)(b) and (c) of the GM By-Law and section 86(2)(b) and (c) of the
EM By-Law survive all of the constitutional challenges , save in relation to the words
“in terms of any law, or” in subsection (2) of each of the by-laws. Glencore would,
however, have been entitled to further relief that would have required the Municipalities
to realign their application documentation with the outcome in this judgment, were it to
have commanded a majority. To the extent that my reasoning is at odds with that in the
judgment of the Supreme Court of Appeal I believe that it was incorrectly decided.
Relief and costs
[284] I agree with the Supreme Court of Appeal that the Hig h Court’s suspension of
the order of invalidity was not appropriate, but not with its reasons for arriving at this
conclusion. The surviving provisions, read together with section 118 of the
Systems Act, are more than sufficient to protect the Municipalit ies’ and the public’s
interests, as articulated in their respective by -laws. For this reason, suspension is
inappropriate.
[285] I agree with Glencore that, where it has demonstrated invalidity of the by -laws,
the qualification that was added by the High Court so as to confine its order of invalidity
to the offending documents in the application forms was wrong. This represented an
incorrect application of section 172(1)(a) of the Constitution, which requ ires all
unconstitutional law and conduct to be declared invalid. The outcome was also neither
DODSON AJ
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just nor equitable as required by section 172(1)(b). This was confirmed when
Emalahleni took up the attitude that because it did not require the documents mentioned
in the notional severance to be provided, section 86 of the EM By-Law survived the
orders of the High Court and the Supreme Court of Appeal intact.
[286] Insofar as costs are concerned, if the order I propose were to have commanded a
majority, Glencore w ould have remained substantially successful in the High Court,
particularly once their success in the cross -appeals is taken into account. Glencore
would have been entitled to its costs in the High Court. The Municipalities would have
been substantially (but not entirely) successful in their applications for leave to appeal
and their appeals in both the Supreme Court of Appeal and this Court. They would not
have been entitled to any costs, however, because Glencore is protected by Biowatch.237
Glencore would have been successful in its applications for leave to cross -appeal and
in the cross-appeals in the Supreme Court of Appeal and in this Court. It would have
been entitled to its costs in that regard.
[287] Had this judgment commanded a majority, I would have made the following
order in CCT 189/22:
1. Leave to appeal is granted.
2. Leave to cross-appeal is granted.
3. The appeal is upheld in part.
4. The cross-appeal is upheld.
5. The applicant must pay the respondents’ costs in the application for leave
to cross-appeal and the cross-appeal in the Constitutional Court, including
the costs of two counsel.
6. Each party must bear its own costs in the application for leave to appeal
and the appeal in the Constitutional Court.
7. The order of the Supreme Court of Appeal is set aside a nd replaced with
the following order:
237 Biowatch above n 93.
DODSON AJ
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“(a) The appeal succeeds in part.
(b) The cross-appeal succeeds.
(c) Each party must bear its own costs in the application for leave to
appeal and the appeal in the Supreme Court of Appeal.
(d) The applicant must pay t he respondents’ costs of the application
for leave to cross -appeal and the cross -appeal in the Supreme
Court of Appeal.
(e) The order of the High Court is set aside and replaced with the
following order:
‘(i) Paragraphs (a), (d), (e) and (f) of, and the wo rds “in terms
of any law, or” in section 76(2) of the Govan Mbeki Spatial
Planning and Land Use Management By -law 2016
(GM By-Law) are declared to be constitutionally invalid
and are set aside;
(ii) For purposes of issuing a certificate in terms of section 76
of the GM By-Law, the applicant may not require the
production of any document or information relevant to a
paragraph declared to be constitutionally invalid in this
order, or not relevant to paragraph (b) or (c), including—
(aa) an occupancy certifica te issued in terms of
section 14(1) of the National Building Regulations
and Building Standards Act 107 of 1993;
(bb) confirmation that all development charges due on
the property have been paid.
(iii) The application is dismissed in respect of the balance of
the relief sought.
(iv) The respondent must pay the applicants’ costs, including
the costs of two counsel.’”
[288] Had this judgment commended a majority, I would have made the following
order in CCT 191/22:
DODSON AJ
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1. Leave to appeal is granted.
2. Leave to cross-appeal is granted.
3. The appeal is upheld in part.
4. The cross-appeal is upheld.
5. The applicant must pay the respondents’ costs in the application for leave
to cross-appeal and the cross-appeal in the Constitutional Court, including
the costs of two counsel.
6. Each party must bear its own costs in the application for leave to appeal
and the appeal in the Constitutional Court.
7. The order of the Supreme Court of Appeal is set aside and replaced with
the following order:
“(a) The appeal succeeds in part.
(b) The cross-appeal succeeds.
(c) Each party must bear its own costs in the application for leave to
appeal and the appeal in the Supreme Court of Appeal.
(d) The applicant must pay the respondents’ costs of the application
for leave to cross -appeal and the cross -appeal in the
Supreme Court of Appeal.
(e) The order of the High Court is set aside and replaced with the
following order:
‘(i) Paragraphs (a), (d), and (e) of, and the words “in terms of
any law, or” in section 86(2) of the Emalahleni Municipal
By-law on Spatial Planning and Land Use Management
2016 (EM By-Law) are declared to be constitutionally
invalid and are set aside;
(ii) For purposes of issuing a certificate in terms of section 86
of the EM By-Law, the applicant may not require the
production of any document or information relevant to a
paragraph declared to be constitutionally invalid in this
order, or not relevant to paragraph (b) or (c), including—
DODSON AJ / ROGERS J
122
(aa) Form A, being the form from a conveyancer
confirming that the funds due in terms of
section 86(2)(a) of the EM By-Law have been paid;
(bb) Form B insofar as it requires the Chief Building
Inspector’s confirmation of approved building
plans and payment of “building
compliance/contravention fines”;
(cc) Form C, being the affidavit from the transferor
confirming compliance with the requirements of
section 86(2)(d) and (e) of the EM By-Law.
(iii) The application is dismissed in respect of the balance of
the relief sought.
(iv) The respondent is ordered to pay the applicants’ costs, including the costs of two
counsel.’”
ROGERS J
[289] I have had the pleasure of reading the judgments of my Colleagues
Chaskalson AJ (first judgment) and Dodson AJ (second judgment). Save in one
respect, I agree with the analysis and conclusions in the second judgment. My
disagreement relates to the interpretation of paragraphs (d) to (f) of section 76(2) of the
GM By-Law and paragraphs (d) and (e) of section 86(2) of the EM By-Law. In my
view, those paragraphs should be interpreted as applying only to the developer on whom
the relevant obligations rest. On that interpretation, as I think my Colleague Dodson AJ
would agree, they survive the challenge based on an arbitrary deprivation of property.
[290] For ease of reference, I quote the relevant part of section 76 of the GM By-Law:
“76 Certification by Municipality
ROGERS J
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(1) A person may not apply to the Registrar of Deeds to register the
transfer of a land unit, unless the Municipality has issued a certificate
in terms of this section.
(2) The Municipality may not issue a certificate to transfer a land unit in
terms of any law, or in terms of this By-law, unless the owner furnishes
the Municipality with—
. . .
(d) proof that all common prope rty including private roads and
private places originating from the subdivision, has been
transferred; and
(e) proof that the conditions of approval that must be complied
with before the transfer of erven have been complied with;
(f) proof that all enginee ring services have been installed or
arrangements have been made to the satisfaction of the
Municipality.”
[291] The second judgment interprets paragraphs (d) to (f) of section 76(2) as including
an owner who bought from the developer a land unit arising from the subdivision or the
establishment of a township. The second judgment says that this is a grossly
unreasonable result. I agree. It would be monstrous for the By-Law to stipulate that an
individual who has bought a land unit from the developer must, before being able to sell
it, furnish proof to the Municipality that all common property originating from the
subdivision has been transferred and that all conditions of approval for the subdivision
or township have been complie d with and that all engineering services have been
installed or arrangements made to the satisfaction of the Municipality for their
installation. The obligation to do those things does not rest on the individual buyers but
on the developer. All such buye rs would be precluded from transferring their units
unless they brought about the performance of the obligations that rested on the
developer.
[292] The second judgment holds that this grossly unreasonable result cannot be
avoided by a restrictive interpretation. That is so, the second judgment reasons, because
the narrow interpretation would result in superfluity and would require the word
ROGERS J
124
“owner” in the introductory part of section 76(2) to have different meanings in relation
to different paragraphs of the subsection. Even if that were so, it would not in my view
justify giving the paragraphs the meaning attributed to them in the second judgment, a
meaning that inevitably results in those paragraphs being unconstitutional.
[293] The superfluity is said to arise wh en section 76(2)(d) to (f) is compared with
section 74(2). The latter provision provides as follows:
“No Erf/Erven and/or units in a land development area, may be alienated or transferred
into the name of a purchaser nor shall a Certificate of Registered Title be registered in
the name of the owner, prior to the Municipality certifying to the Registrar of Deeds
that:
(a) all engineering services have been designed and constructed to the satisfaction
of the Municipality, including guarantees for services having been provided to
the satisfaction of the Municipality as may be required; and
(b) all engineering services and development charges have been paid or an
agreement has been entered into to pay the development charges in monthly
instalments; and
(c) engineering services have been or will be protected to the satisfaction of the
Municipality by means of servitudes; and
(d) all conditions of the approval of the land development application have been
complied with or that arrangements have been made to the s atisfaction of the
Municipality for the compliance thereof within 3 months of having certified to
the Registrar in terms of this section that registration may take place; and
(e) that the Municipality is in a position to consider a final building plans; and
(f) that all the properties have either been transferred or shall be transferred
simultaneously with the first transfer or registration of a newly created property
or sectional title scheme.”
[294] In terms of section 39(2) of the Constitution a court must always, when
interpreting legislation, promote the spirit, purport and objects of the Bill of Rights.
That is particularly so where, of two reasonably available interpretations, one will result
ROGERS J
125
in constitutional invalidity. 238 This is reinforced by other a ids in interpretation:
upholding rather than nullifying a provision, 239 preferring an interpretation that avoids
harshness and injustice240 and the avoidance of absurdity. 241 And for what it is worth,
section 3(2) of the GM By -Law explicitly states that “[w]hen considering an apparent
conflict between this By -law and another law, a court must prefer any reasonable
interpretation that avoids a conflict over any alternative interpretation that results in a
conflict”.
[295] As against this, the presumption against superfluity is not absolute and the weight
that it carries must depend on the circumstances. Tautology is not uncommon in
legislation, and the presumption against superfluity must not be applied to create
differences of meaning where they were not intended by the lawgiver. 242 This
cautionary note applies with added force to municipal by-laws which do not go through
the rigours of the lawmaking process applicable to Acts of Parliament.
[296] A careful analysis of sections 74 and 76 reveals that there is no superfluity:
238 Hyundai above n 124 at paras 21-4; and Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; 2014 (4) SA 474
(CC); 2014 (8) BCLR 869 (CC) at para 28.
239 In the pre -constitutional era of parliam entary sovereignty, this principle mainly found application in the
interpretation of contracts: see, for example, Nach Investments (Pty) Ltd v Yaldai Investments (Pty) Ltd 1987 (2)
SA 820 (A) at 832F-H.
240 More v Minister of Cooperation and Development 1986 (1) SA 102 (A) at 116E -F; and Suid-Afrikaanse
Geneeskundige en Tandheelkundige Raad v Strauss 1991 (3) SA 203 (A) at 214H-J.
241 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat [1999] ZACC 8; 1999 (4) SA 623 (CC); 1999 (7) BCLR
771 (CC) at para 47; Shiva Uranium (Pty) L td (In Business Rescue) v Tayob [2021] ZACC 40; 2022 (2) BCLR
197 (CC); 2022 (3) SA 432 (CC) at para 38 and fn 15; and Summit Industrial Corporation v Claimants against
the Fund Comprising the Proceeds of the Sale of the MV Trade Transpor ter 1987(2) SA 583 (A) at 596G-I. In
Poswa v Member of the Executive Council for Economic Affairs, Environment and Tourism, Eastern Cape 2001
(3) SA 582 (SCA) Schutz JA, after referring to Bhyat v Commissioner for Immigration 1931 AD 125 at 129, said
this (at para 11):
“The effect of this formulation is that the court does not impose its notion of what is absurd on
the legislature’s judgment as to what is fitting, but uses absurdity as a means of divining what
the legislature could not have intended and therefore did not intend, thus arriving at what it did
actually intend.”
242 In this Court, see Municipal Employees Pension Fund v Mongwaketse [2022] ZACC 9; 2022 (11) BCLR 1404
(CC); 2022 (6) SA 1 (CC) at para 46. See also Secretary for Inland Revenue v Somers Vines 1968 (2) SA 138 (A)
at 156B-D; Casey N.O. v Minister of Defence 1973(1) SA 630 (A) at 639B-C; Commissioner for Inland Revenue
v Shell Southern Africa Pension Fund 1984 (1) SA 672 (A) at 678E -F; and Bastian Financial Services (Pty) Ltd
v General Hendrik Schoeman Primary Schoo l [2008] ZASCA 70; [2008] 4 All SA 117 (SCA); 2008 (5) SA 1
(SCA) at para 26.
ROGERS J
126
(a) Paragraphs (d), (e) and (f) of section 76(2) require the owner to furnish
the Municipality with proof of certain things. Although section 76
contemplates the issuing of a certificate by the Municipality to the
Registrar of Deeds, the section does not sa y what the Municipality must
certify. On the face of it, the Municipality must simply certify that the
owner has provided the Municipality with the certificate and proofs listed
in section 76(2).243 The emphasis of section 76(2) is on certification and
proofs from the owner to the Municipality. The Municipality must merely
certify to the Registrar of Deeds that it has received from the owner the
specified certification and proofs.
(b) Section 74(2), on the other hand, requires the Municipality itself to certify
to the Registrar that there has been compliance with matters listed in that
subsection. The emphasis of section 74(2) is thus on certification by the
Municipality, not by the owner.
(c) The matters that the Municipality must certify to the Registrar of Deed s
in terms of paragraphs (a), (b), (c) and (e) of section 74(2) have no
counterpart in the matters that the owner must certify to the Municipality
in terms of section 76(2).244
243 Contrary to paragraph 54 of the second judgment, section 76(2)(d)-(f) does not provide for the giving of a
“certificate” by the owner to the Reg istrar. It provides for the owner to furnish “proof” of the matters listed in
paragraphs (d) to (f) to the Municipality. In terms of section 76, it is the Municipality that then issues a
“certificate” to the Registrar. The certificate which the Municipa lity furnishes to the Registrar in terms of
section 76, insofar as it relates to paragraphs (d)-(f), is a certificate that the owner has furnished to the Municipality
the proofs listed in those paragraphs. In terms of section 76, in contrast with section 74(2), the Municipality does
not itself certify the matters which are the subject of the proofs; it merely certifies that it has received proofs from
the owner. The “proofs” may be files of documents and/or photographs, and such proof may turn out not to be
fully accurate.
244 Section 74(2)(a) and section 76(2)(f) may be thought to have some overlap though it is not explicit. The former
requires the Municipality to certify to the Registrar that all engineering services have been “designed and
constructed” to the satisfaction of the Municipality. Section 76(2)(f) requires the owner to furnish proof to the
Municipality that all engineering services have been “installed” or that arrangements (presumably, arrangements
for the installation) have been made to the satisfaction of the Municipality. I cannot say whether the “construction”
of engineering services is the same thing as their “installation”. To the extent that there is an overlap, there is then
also a contradiction, since section 74(2)(a) requires that all the engineering services should already have been
constructed, whereas section 76(2)(f) contemplates that some might not yet have been installed but that
arrangements have been made to the satisfaction of the Municipality for their future installation .
ROGERS J
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(d) Section 74(2), by contrast, does not require the Municipality to certify to
the Registrar of Deeds the matter on which the owner must provide proof
to the Municipality in terms of paragraph (d) of section 76(2).
(e) To the extent that the subject -matter of paragraphs (d) and (f) of
section 74(2) overlaps with the subject-matter of paragraphs (e) and (f) of
section 76(2), the important difference remains that the former paragraphs
require a certification by the Municipality to the Registrar of Deeds
whereas the latter require the provision of proofs by the owner to the
Municipality. The pro vision of proofs by the owner in terms of
section 76(2)(e) and (f) might be part of the evidence on which the
Municipality relies when issuing a certificate to the Registrar of Deeds in
terms of section 74(2)(d) and (f).
[297] I do not understand the second jud gment to say that paragraphs (d) to (f) of
section 76(2) are inapplicable to an owner which is the developer, only that those
paragraphs are not confined to an owner which is the developer. It is perfectly clear
that paragraphs (d) to (f) of section 76(2) primarily contemplate the developer, even if
they could notionally include a subsequent owner as well. Put differently, a developer
seeking to transfer land units to buyers could not claim that it is exempt from furnishing
the proofs required by paragraphs (d) to (f) of section 76(2). So if there were an overlap
of these paragraphs with some parts of section 74(2), which is the premise of the second
judgment’s reasoning, then there would – even on the second judgment’s interpretation
– be superfluity. But in truth, for the reasons I have given, there is no superfluity.
[298] By their very nature, the obligations contemplated by paragraphs (d) to (f) of
section 76(2) are obligations resting on the developer, not on the individual buyers of
resultant land units . Section 76(2)(e) specifically deals with something that has to be
certified before any land units may be transferred to buyers. The lawmaker did not have
in mind something that an individual buyer would have to certify before being able to
on-sell his or her land unit to a later buyer. The whole scheme of the system of proofs
and certification, insofar as they bear on matters relating to land use applications, is that
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everything the developer is obliged to do should be done before land units are
transferred to individual buyers. Unless there were a serious breakdown in the system,
the situation should never exist of buyers owning land units in a development where the
developer did not comply with all relevant obligations before transferring the land units
to the buyers. There is no reason to suppose that the lawmaker was intending to regulate
such a scenario.
[299] Furthermore, and even supposing such a situation could have arisen, there would
be no need for section 76(2)(d) to (f) to target the buyers . The system of certification
is designed to ensure that the owner with the obligations complies with the obligations
before being permitted to give transfer. The certificate requirement prevents the owner
from reaping the benefits of sales without first complying with its obligations.
Paragraphs (d) to (f) of section 76(2) would not perform that function if they were
applied to subsequent buyers, because the embargo on further transfers would not be an
inducement to the developer to comply with its oblig ations. The developer,
furthermore, would still be bound to comply with its obligations under the development
approval. The Municipality could compel such compliance by the developer even
though the latter no longer owned the land.
[300] Development obligations are imposed on the developer, nobody else. There is
no reason at all to suppose that the lawmaker intended to use transfer embargoes as a
means of forcing subsequent buyers to do things which the developer was meant to have
done. Section 47(7) of the GM By-Law states that no conditions may be imposed which
affect a third party or which are reliant on a third party for fulfilment. The second
judgment’s interpretation allows the conditions by which the developer alone is bound
to affect third parties, n amely the individuals who buy land units in the resultant
development. The lawmaker could not have intended such a result.
[301] My interpretation does not lead to inconsistency in the use of the word “owner”
in the introductory part of section 76(2). The “ow ner”, that is the person seeking to
transfer property, must comply with those paragraphs of section 76(2) that apply to such
ROGERS J
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owner. For example, the second judgment concludes, correctly in my view, that an
owner who is seeking permission to transfer land need only comply with paragraph (b)
to the extent that the contravention penalty or directive was issued to that owner or to a
person occupying the land under such owner. If the penalty or directive was issued to
the current owner’s predecessor, the curre nt owner does not have to prove that the
penalty was paid or the directive complied with. It is the same with paragraphs (d) to
(f) of section 76(2): if the obligations and conditions in question were binding on the
current owner’s predecessor rather than on the current owner, the current owner does
not have to furnish the proofs in question.
[302] When all is said and done, one must ask oneself the question: did the framers of
the By-Law intend to impose the obligations in paragraphs (d) to (f) on later owners or
only on the developer on which the conditions and obligations in question were binding?
If we are sure, as I am, that the framers of the By -Law could not have intended so
unreasonable and absurd a result, one is entitled to avoid it by a process of interpretation,
even though it does violence to the wording of the provision. This is in line with
what Schutz JA said in Poswa:245 one “uses absurdity as a means of divining what the
legislature could not have intended and therefore did not intend, thus arriving at what it
did actually intend”.
[303] On the assumption, therefore, that in present case the words in their ordinary
meaning are not reasonably capable of giving effect to the known intention of the
lawmaker (a proposition with which I disagree), a court would be entitled to reject that
interpretation, however much it may involve straining language. Interpretation is about
arriving at meaning, and the true meaning may be apparent despite contradictory
language. As Wallis JA said in Endumeni:246
245 Above n 241.
246 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA);
2012 (4) SA 593 (SCA) at para 25.
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“[W]here t he context makes it plain that adhering to the meaning suggested by
apparently plain language would lead to glaring absurdity, the court will ascribe a
meaning to the language that avoids the absurdity. This is said to involve a departure
from the plain meaning of the words used. More accurately it is either a restriction or
extension of the language used by the adoption of a narrow or broad meaning of the
words, the selection of a less immediately apparent meaning or sometimes the
correction of an appare nt error in the language in order to avoid the identified
absurdity.”
[304] For these reasons, paragraphs (d) to (f) of section 76(2) of the GM By -Law and
paragraphs (d) and (e) of section 86(2) of the EM By-Law apply only to the owner on
which the obligation t o do the things in question rests, in other words, the applicant
which obtained the land development approval and on which the conditions and
obligations in question were binding. This being so, these provisions do not fall foul of
section 25 of the Bill of Rights.
[305] In paragraph 7(e) of the orders proposed in the second judgment, I would thus
confine the declaration of invalidity to paragraph (a) of section 76(2) of the GM By-Law
and paragraph (a) of section 86(2) of the EM By -Law. I agree that the presen t
respondents, the applicants in the High Court, are entitled to Biowatch protection in all
three courts. In my opinion, however, the extent of the relief to which they are entitled,
as against that which they claimed, is so attenuated that they should not be awarded any
costs to reflect their limited success. So I would order the parties to pay their own costs
in all three courts.
For the Applicant in CCT 189/22: AJ Vorster and D D Swart instructed
by Cronje De Waal -Skhosana
Incorporated
For the Applicant in CCT 192/22: O Ben-Zeev and S Luvuno instructed
by Ka-Mbonane Cooper
For the Respondents: SJ Du Plessis SC, K Hopkins and
SO Ogunronbi i nstructed by Norton
Rose Fulbright South Africa
Incorporated