THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 334/2021

Case No: 338/2021
In the matter between:
GOVAN MBEKI LOCAL MUNICIPALITY

FIRST APPELLANT
EMALAHLENI LOCAL MUNICIPALITY

SECOND APPELLANT
and
GLENCORE OPERATIONS SOUTH AFRICA
(PTY) LTD

FIRST RESPONDENT
DUIKER MINING (PTY) LTD

SECOND RESPONDENT
TAVISTOCK COLLIERIES (PTY) LTD

THIRD RESPONDENT
UMCEBO PROPERTIES (PTY) LTD

FOURTH RESPONDENT
IZIMBIWA COAL (PTY) LTD

FIFTH RESPONDENT

Neutral citation:
Govan Mbeki Local Municipality and Another v Glencore
Operations South Africa (Pty) Ltd and Others (334/2021 and
338/2021) [2022] ZASCA 93 (17 June 2022)
Coram:
MAYA P and DAMBUZA and PLASKET JJA and MUSI and
SALIE-HLOPHE AJJA
Heard:

6 May 2022
Delivered:
17 June 2022
Summary:

Constitution – local government – Local Government: Municipal
Systems Act 32 of 2000 – validity of municipal by-laws – whether provisions of by-
laws fell within the legislative competence of a municipality.

__________________________________________________________________

ORDER
__________________________________________________________________
On appeal from: Mpumalanga Division of the High Court, Middelburg (Barnardt AJ,
sitting as court of first instance):
In case no 334/2021 (Govan Mbeki Local Municipality):
The appeal is dismissed with costs, including the costs of two counsel.
The cross-appeal is upheld with costs, including the costs of two counsel.
Paragraph 4 of the high court’s order is set aside.

In case no338/2021 (Emalahleni Local Municipality):
The appeal is dismissed with costs, including the costs of two counsel.
The cross-appeal is upheld with costs, including the costs of two counsel.
Paragraph 4 of the high court’s order is set aside.
__________________________________________________________________

JUDGMENT
__________________________________________________________________
Salie-Hlophe AJA (Maya P and Dambuza and Plasket JJA and Musi
AJA concurring):
[1] Two appeals are before us. They concern identical issues. They are both
directed at orders of the Mpumalanga Division of the High Court, Middelburg (the
high court), in which Barnardt AJ declared s 76 of the Govan Mbeki Spatial Planning
and Land Use Management By-law1 (the GMBL) and s 86 of the Emalahleni
Municipal By-law on Spatial Planning and Land Use Management 20162 (the EBL)
to be invalid and unconstitutional. A third municipality, the Steve Tshwete Local
Municipality, did not appeal against a similar order in respect of the invalidity of its
comparable by-law. The respondents, Glencore Operations South Africa (Pty) Ltd,
Duiker Mining (Pty) Ltd, Tavistock Collieries (Pty) Ltd, Umcebo Properties (Pty) Ltd
and Izimbiwa Coal (Pty) Ltd, cross-appealed against the decision of the high court

1Provincial Notice 10 of 2016, Provincial Gazette (Mpumalanga) 2650 of 17 February 2016.
2Provincial Notice 4 of 2016, Provincial Gazette (Mpumalanga) 2653 of 24 February 2016.

suspending the declaration of invalidity of the by-laws for a period of six months to
allow the competent authority to correct the defect. The appeal and cross-appeal are
with leave of the high court.

Facts
[2] The respondents are companies that intend to transfer or take transfer of a
number of immovable properties situated within the municipal boundaries of the three
local municipalities mentioned above.

[3] The municipalities all promulgated similarly crafted by-laws which placed
restraints on the transfer of erven and land units within their respective areas of
jurisdiction. In terms of these by-laws, an owner (transfer or) could not apply to the
registrar of deeds to register the transfer of an erf or land unit except upon production
of a certificate, issued by the municipality, certifying that all spatial planning, land-
use management, and building regulation conditions or approvals in connection with
those erven or land units had been obtained and complied with the requirements of
the by-law. The respondents approached the high court for orders declaring the
relevant sections of the by-laws to be constitutionally invalid. They argued that even
if the municipalities had the power to enact such by-laws, they nonetheless infringed
the land owner’s constitutional right arising from its ownership, in that they placed
insurmountable obstacles in the way of registering the transfer of ownership of their
properties. They argued further that the by-laws, in effect, imposed an embargo on
the registration of transfer of ownership of an immovable property until the
municipality issues a certificate that the owner has proved that all the debts due in
respect of the property have been paid and the use of the property and the buildings
comply with its land-use scheme.

The high court
[4] The relief sought by the respondents was aimed at:
a.
declaring the by-laws unconstitutional and invalid because they were
inconsistent with s 25 of the Constitution, as their application leads to an arbitrary
deprivation of property;

b.
declaring the by-laws unconstitutional and invalid because they legislate on
matters which fall outside the scope of powers assigned to local government in terms
of s 156 read with Part B of Schedule 4 and Part B of Schedule 5 of the Constitution;
c.
declaring the by-laws unconstitutional and invalid because they are not
authorised by any empowering provisions (national or provincial legislation);
d.
declaring the by-laws unconstitutional and invalid because they conflict with
the Local Government: Municipal Systems Act 32 of 2000 (the Systems Act)or the
Spatial Planning and Land Use Management Act 16 of 2013 (the SPLUMA);
e.
reviewing and setting aside the interpretation of the by-laws by the
municipalities in terms of s 8 of the Promotion of Administrative Justice Act 3 of 2000,
and compelling the municipalities to receive, consider and respond to all applications
by the respondents based on the correct interpretation of the by-laws; and
f.
reviewing and setting aside the decision by the registrar of deeds to give effect
to the by-laws and directing the registrar of deeds to receive and process the
applications for registration of transfer of the respondents’ properties without
requiring the respondents to produce planning certificates.

[5] The high court declared the by-laws unconstitutional and invalid on the basis
that they constituted an arbitrary deprivation of property as envisaged in s 25(1) of
the Constitution. It held further that the by-laws were unconstitutional and invalid,
because they were not authorised by s 156 read with Part B of Schedule 4 of the
Constitution, and conflicted with s 118 of the Systems Act. The high court suspended
the declaration of invalidity for a period of six months to enable the municipalities to
cure the defects in their by-laws.

Issues on appeal
[6] The central issue in this appeal is the validity of the by-laws. The answer to
this question requires consideration of whether the by-laws were enacted within the
legislative competence of municipalities as contemplated in s 156 of the Constitution.
It follows as a matter of logic that should the by-laws be determined to be falling
outside the scope of powers assigned to local government in terms of the
Constitution, they will be invalid for being ultra vires. Strictly speaking, this will obviate
the need to consider the various further issues raised by the respondent, such as
whether the by-laws amount to a constitutional infringement of property rights; or is

in conflict with national legislation; as well as the administrative review grounds. In
short, a finding that the municipalities do not have the power to cause restraint on
the registration of transfer of property, on the facts hereof, would be dispositive of the
matter. Despite this, the high court determined that, in addition to the conflict with s
156 of the Constitution, the by-laws were also invalid because they conflicted with s
118 of the Systems Act and amounted to an arbitrary deprivation of property in terms
of s 25(1) of the Constitution. All three bases for invalidity form part of the orders
granted by the high court.

[7] Accordingly, the issues on appeal are whether the impugned by-laws:
a.
are unconstitutional and invalid, because they legislate on matters which fall
outside the scope of powers assigned to local government in terms of s 156 read
with Part B of Schedule 4 and Part B of Schedule 5 of the Constitution;
b.
exceed the functional area of ‘municipal planning’, in that they regulate the
transfer of property; and
c.
are an incidental power as envisaged in s 156(5) of the Constitution.

The by-laws
[8] Two sections of the GMBL are relevant. First, s 74, headed ‘Restriction of
transfer and registration’ provides:
‘(1)
Notwithstanding the provisions contained in this By-law or any conditions imposed in
the approval of any land development application, the owner shall, at his or her cost and to
the satisfaction of the Municipality, survey and register all servitudes required to protect the
engineering services provided, constructed and installed as contemplated in Chapter 7.
(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 there of 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 plan; 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.’

[9] Secondly, s 76, headed ‘Certification by Municipality’ provides:
‘(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―
(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;
(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 on the Municipality.’

[10] Similarly, two sections of the EBL are relevant. First, s 84, headed ‘Restriction
of transfer and registration’ provides:
‘(1)
Notwithstanding the provisions contained in this By-law or any conditions imposed in
the approval of any application, the owner must, at his or her cost and to the satisfaction of
the Municipality, survey and register all servitudes required to protect the engineering
services provided, constructed and installed as contemplated in Chapter 7.
(2)
No Erf/Erven and/or units in a land development area, may be alienated or
transferred into the name of a purchaser nor must 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 application have been complied with or that
arrangements have been made to the satisfaction of the Municipality for the compliance there
of 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 plan; and
(f)
that all the properties have either been transferred or must be transferred
simultaneously with the first transfer or registration of a newly created property or sectional
title scheme.’

[11] Secondly, s 86, headed ‘Certification by Municipality’ provides:
‘(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 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;
(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;
(d)
proof that all common property including private roads and private places originating
from the subdivision, has been transferred to the owners’ association as contemplated in
Schedule 5; and
(e)
proof that the conditions of approval that must be complied with before the transfer
of erven have been complied with.’

[12] The by-laws are almost identically worded; the common factor is a restraint
on the registration of transfer of property. An intending transferor of property, like the
respondents, must satisfy the requirements of s 76(2) of the GMBL, or s 86(2) of the
EBL in order to obtain the certificate prescribed by subsection 1 of the respective
sections. Additionally, the impugned provisions impose a duty on the registrar of
deeds not to accept an application to register the transfer of a land unit unless the
municipality has issued a certificate in terms of that section. The effect is that unless
the transferor first satisfies the requirements of the municipal by-laws, the requisite
certificates may not be issued. Essentially, the impugned provisions place an
embargo on the registration of transfer of immovable property until the requirements
of the by-laws are met, because until such time the certificate is issued the registrar
cannot register the transfer of the property.

[13] The argument for the respondents was that the legislative competence of the
municipalities with regard to ‘municipal planning’ does not extend to regulating the
transfer of properties. The restriction imposed by the impugned provisions can only
be imposed by national legislation, such as s 118 of the Systems Act and s 53 of the
SPLUMA, which, according to the respondents, can be described as the interface
between deeds registration, municipal financial management and municipal spatial
planning.

The powers of local government
[14] The Constitution allocates legislative power between national and provincial
governments on the basis of the subject matter of the legislation. Schedules 4 and 5
of the Constitution contain lists of subjects known as a ‘functional area’. The
provincial legislatures are entitled to legislate, inter alia, on the subjects listed in
Schedules 4 and 5. Both schedules are made up of two parts: Part A and Part B.
Executive and administrative power of functional areas mentioned in Part B of the
two schedules are reserved for municipalities.

[15] Section 156(1)(a) of the Constitution provides that a municipality has
executive authority in respect of, and has the right to administer the local government
matters listed in Part B of Schedule 4 and Part B of Schedule 5. Section 156(2) of
the Constitution authorises local authorities to exercise legislative powers by passing

by-laws. Section 11(3)(m) of the Systems Act is the subsidiary legislation giving effect
to this.

[16] Sections 155(6)(a) and (7) of the Constitution read:
‘(6)
Each provincial government must establish municipalities in its province in a manner
consistent with the legislation enacted in terms of subsections (2) and (3) and, by legislative
or other measures, must—
(a)
provide for the monitoring and support of local government in the province;
. . .
(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 listed in Schedules 4 and 5, by regulating the exercise
by municipalities of their executive authority referred to in section 156(1).’

[17] In other words, the nature of Schedule 4B and Schedule 5B matters as
constitutionally protected local government matters is determined by the limits put on
national and provincial legislative power by ss155(6)(a) and (7) of the Constitution.
Thus, the national and provincial governments exercise a regulatory role over
municipalities under s 155(7) of the Constitution. The Constitutional Court has
explained that the role of these two spheres ‘is ordinarily limited to regulating the
exercise of executive municipal powers and the administration of municipal affairs by
municipalities’.3 Nevertheless, s 151(3) of the Constitution affords a municipality 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’. This
authority is reiterated in s 4(1)(a) of the Systems Act, which states that ‘[t]he council
of a municipality has the right to: (a) govern on its own initiative the local government
affairs of the local community’.

[18] Furthermore, s 156(5) of the Constitution capacitates a municipality to
‘exercise any power concerning a matter reasonably necessary for, or incidental to,
the effective performance of its functions’. This means that there might be matters

3City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others [2010]
ZACC 11; 2010 (6) SA 182 (CC); 2010 (9) BCLR 859 (CC)para 59.

that fall outside the local government’s core powers and competencies, but are
nevertheless indispensable for the effective administration of those matters.

[19] However, s 156(5) may not be used to increase the functional areas of local
government’s powers, but rather to enhance the efficacy of administrating an existing
functional area. In other words, it must be necessary for, or incidental to, an existing
constitutional power. The provisions do not serve the purpose of creating new
categories of functions. Thus, the impugned provisions may be authorised only if that
is reasonably necessary for, or incidental to, the effective performance of a
municipality’s land-use planning function. And, in terms of s 156(3) of the
Constitution, in the event of a conflict between national and provincial legislation and
local government legislation, the local government legislation is invalid.

[20] In Executive Council of the Province of the Western Cape v Minister for
Provincial Affairs and Constitutional Development and Another; Executive Council of
KwaZulu-Natal v President of the Republic of South Africa and Others,4 the
Constitutional Court held the following in regard to the status of the power of local
municipalities:
‘Municipalities have the fiscal and budgetary powers vested in them by Chapter 13 of the
Constitution, and a general power to “govern” local government affairs. This general power
is “subject to national and provincial legislation”. The powers and functions of municipalities
are set out in section 156 but it is clear from sections 155(7) and 151(3) that these powers
are subject to supervision by national and provincial governments, and that national and
provincial legislation has precedence over municipal legislation. The powers of municipalities
must, however, be respected by the national and provincial governments which may not use
their powers to “compromise or impede a municipality’s ability or right to exercise its powers
or perform its functions” (emphasis supplied). There is also a duty on national and provincial
governments “by legislative and other measures” to support and strengthen the capacity of
municipalities to manage their own affairs and an obligation imposed by section 41(1)(g) of
the Constitution on all spheres of government to “exercise their powers and perform their

4Executive Council of the Province of the Western Capev Minister for Provincial Affairs and
Constitutional Development and Another; Executive Council of KwaZulu-Natal v President of the
Republic of South Africa and Others [1999] ZACC 13; 2000 (1) SA 661 (CC); 1999 (12) BCLR 1360
(CC) para 29.

functions in a manner that does not encroach on the geographical, functional or institutional
integrity of government in another sphere”.’

[21] The Constitution therefore requires co-operative government between
national, provincial and municipal legislation. This is encapsulated by s 40 of the
Constitution which provides:
‘(1)
In the Republic, government is constituted as national, provincial and local spheres
of government which are distinctive, interdependent and interrelated.
(2)
All spheres of government must observe and adhere to the principles in this Chapter
and must conduct their activities within the parameters that the Chapter provides.’

[22] This principle is effectively implemented through the framework legislation of
national and provincial government. Accordingly, where framework legislation at the
national and provincial level has been promulgated, particularly where there is
necessary overlap between the spheres of government due to the nature of the
subject-matter to which the legislation pertains, it is necessary for municipal law to
be exercised within the scope of the guidelines in order to ensure cooperation,
consistency and rationality.

[23] The respondents contended that the impugned provisions are by-laws
enacted in the context of municipal planning within the framework legislation of the
SPLUMA. Indeed, the GMBL and EBL were expressly promulgated subject to the
SPLUMA.5 Their purpose is to regulate spatial planning and land-use management.
The SPLUMA is thus the framework legislation within which the municipal
competence for municipal planning is exercised.

[24] The long title of the SPLUMA reads:
‘To provide a framework for spatial planning and land-use management in the Republic; . . .
to provide a framework for policies, principles, norms and standards for spatial development
planning and land use management; . . . to promote greater consistency and uniformity in
the application procedures and decision-making by authorities responsible for land use
decisions and development applications; . . . to provide for the facilitation and enforcement
of land use and development measures . . .’

5See s 3 of the respective by-laws, read with the definition of ‘Act’ in s 1.

[25] The preamble reads as follows:
‘AND WHEREAS various laws governing land use give rise to uncertainty about the status
of municipal spatial planning and land use management systems and procedures and
frustrates the achievement of cooperative governance and the promotion of public interest;
. . .
AND WHEREAS it is necessary that – . . . a uniform, recognisable and comprehensive
system of spatial planning and land use management be established throughout the
Republic to maintain economic unity, equal opportunity and equal access to government
services . . .’

[26] Section 2 of the SPLUMA is also relevant. It reads:
‘(1)
This Act applies to the entire area of the Republic and is legislation enacted in terms
of—
(a)
section 155(7) of the Constitution insofar as it regulates municipal planning; and
(b)
section 44(2) of the Constitution insofar as it regulates provincial planning.
(2)
Except as provided for in this Act, no legislation not repealed by this Act may
prescribe an alternative or parallel mechanism, measure, institution or system on spatial
planning, land use, land use management and land development in a manner inconsistent
with the provisions of this Act.’

[27] Section 3 of the SPLUMA sets out its objects. It provides:
‘The objects of this Act are to—
(a)
provide for a uniform, effective and comprehensive system of spatial planning and
land use management for the Republic.’
Section 9 concerns itself with national support and monitoring. Section 9(2) provides:
‘The national government must, in accordance with this Act and the Intergovernmental
Relations Framework Act, develop mechanisms to support and strengthen the capacity of
provinces and municipalities to adopt and implement an effective spatial planning and land
use management system.’
Section 10 deals with provincial support and monitoring. Section 10(5) provides that
provincial governments ‘must develop mechanisms to support, monitor and
strengthen the capacity of municipalities to adopt and implement an effective system
of land use management in accordance with this Act’. (Own emphasis.)

[28] Schedule 1 to the SPLUMA provides for ‘MATTERS TO BE ADDRESSED IN
PROVINCIAL LEGISLATION’. It contains an extensive list of topics which cover a
comprehensive ambit of municipal planning. Item 12 is concerned with the
development of spatial development frameworks, and item 12(2)(a) provides:
‘The national government, a provincial government and a municipality must participate in the
spatial planning and land use management processes that impact on each other to ensure
that the plans and programmes are coordinated, consistent and in harmony with each other.’
Item 12(5) provides that a ‘municipal spatial development framework must assist in
integrating, coordinating, aligning and expressing development policies and plans
emanating from the various sectors of the spheres of government as they apply
within the municipal area’.

[29] Item 20 concerns the preparation of municipal spatial development
frameworks. Item 20(2) states:
‘The municipal spatial development framework must be prepared as part of a municipality’s
integrated development plan in accordance with the provisions of the Municipal Systems
Act.’ (Own emphasis.)

[30] The national legislation sets out a wide field of avenues available to the
municipality to enforce the land-use scheme in respect of which it may make by-laws.
Section 32, under the heading ‘Enforcement of land use scheme’, sets out, inter alia,
the following powers of enforcement:
‘(1)
A municipality may pass by-laws aimed at enforcing its land use scheme.
(2)
A municipality may apply to a court for an order—
(a)
interdicting any person from using land in contravention of its land use scheme;
. . .
(c)
directing any other appropriate preventative or remedial measure.
(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.’

[31] From the above, it is clear that the SPLUMA is the framework legislation that
authorises the making of the by-laws. While it does not regulate the powers and
procedures of the authorities responsible for land-use decisions and development
applications in any detail, it is significant that the SPLUMA also does not give carte

blanche to municipalities to make any policy decisions they choose. The SPLUMA
lays down the limits within which municipalities may legislate.

[32] A local municipality is empowered by the Constitution, the Systems Act and
the SPLUMA to promulgate by-laws to regulate and control municipal planning,
enforce municipal planning and enforce an adopted land-use scheme. However, this
power is to be exercised within the parameters so prescribed.

[33] As I have shown, even though the by-laws, of which the impugned provisions
form part, deal on their face with municipal planning, the impugned provisions
themselves restrict the transfer and registration of ownership in immovable property
and constitute an embargo on transfer unless their requirements have been fulfilled.
Taking into account the statutory and constitutional provisions I have mentioned, the
question to be answered is whether municipalities’ legislative competence extends
to regulating the transfer of properties.

[34] In my view, the embargo on transfers strays beyond municipal planning. It
prescribes to the registrar of deeds under what circumstances a transfer can take
place. It precludes a transferring owner from complying with their obligations under
an agreement of sale. It prevents a transferee from receiving ownership as they are
entitled to under the agreement of sale.

[35] It is, at best, a spot check at the time a property is to be transferred, and one
that may be seen as opportunism on the part of a municipality at the crucial stage
when the property has been sold by the owner and requires the registration of
transfer of the property to the prospective new owner. The by-laws purport to prohibit
the registrar from acting in accordance with powers and obligations in terms of the
Deeds Registries Act 47 of 1937, whilst the municipality sits back and awaits
compliance with all the requirements set out in the by-laws, including payment of
certain costs due to it. 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.

[36] The appellants’ contention that the impugned provisions are an enforcement
mechanism to ensure compliance with the municipal planning and land-use functions
is even more thread bare when it is considered that the embargo does not apply
when a property is leased. Seen from that perspective, the embargo is not an
effective method of preventing the unlawful use of land or buildings as contemplated
in the SPLUMA, but an arbitrary one. If the SPLUMA intended to authorise
municipalities to introduce an embargo on registration of transfer of properties as an
enforcement mechanism, it would have provided for that expressly. Neither s 32(1)
of the SPLUMA, which requires municipal by-laws that enforce the municipality’s
land-use scheme, nor any of its other provisions, authorise the embargo.

[37] Notably, the framework for the enforcement of by-laws is contained in ss 32(2)
to 32(12) of the SPLUMA. Those enforcement provisions are to be found in Chapter
9 of the by-laws, headed ‘Compliance and Enforcement’. They provide for a range of
enforcement procedures, including criminal sanctions and the issue of compliance
notices. Significantly, these provisions are clearly based on s 32 of the SPLUMA. In
terms of that section, various mechanisms are set out in its aim to empower a
municipality to enforce its land-use scheme, including, inter alia, interdicting any
person from using land in contravention of its land-use scheme; designation of a
municipal official to inspect any non-compliance; and provision of the manner of
inspection and investigation by such an official for the purposes of issuing a
compliance notice. A notice of non-compliance informs the owner of his or her
transgression. Owners have administrative law remedies in respect of such a notice.
The gist of s 32 of the SPLUMA is that it is the task of municipal inspectors to
determine whether there has been any non-compliance of the land-use scheme. The
onus is on the inspectors to prove the transgression when it comes to a criminal trial.
It is significant to mention that although it affords the municipality a wide discretion
to invoke enforcement for non-compliance, the system of enforcement envisaged in
s 32 of the SPLUMA does not provide for a restriction of the transfer of land.

[38] The competence with regards to deeds registration (including registration of
transfer of properties) is not a municipal function, for it is within the domain of national
government. This is further evidenced, for example, by the fact that property transfer

fees are contained in Part A of Schedule 4 of the Constitution and thus fall under a
functional area of concurrent national and provincial legislative competence.

[39] Further, the argument for the appellants that its by-laws are also aimed at
protecting future buyers from acquiring land with some legal impediment which
burdens the property is without merit. Such a power does not fall within its mandate
of municipal planning. Furthermore, trite principles in our law of contract govern the
contract of purchase and sale between the land owner and a buyer, and therefore
their respective rights and obligations. In any event, restraint against registration of
transfer is only triggered after the property had been sold and the purchaser seeks
to have it transferred. The notion that it is borne out of altruism for the purchaser is
not a role for the municipality. And so too the notion that it is a measure by which to
create revenue for the municipality, as was suggested by the parties. Both of these
purposes, if they were the real purposes of the by-laws, would have been improper
purposes. It follows that a municipality may not regulate registration of transfer of
properties.

[40] 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 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 and the impugned by-
laws are invalid insofar as they impose a mechanism which impermissibly regulates
the transfer of property. They exceed the legislative competence of the respective
municipalities, and thus offend the principle of legality.

[41] The high court found that the impugned by-laws were also in conflict with s
118 of the Systems Act, because they sought to impose on sellers of property
liabilities in addition to those contemplated by that section. In reaching this
conclusion, it held that the by-laws sought in effect to ‘amend’ s 118 by adding to its
terms. I agree with this conclusion. It also found that the impugned sections of the
by-laws amounted to an arbitrary deprivation of property. As they were not justified

in terms of a law and were thus bereft of lawful authority, by definition the deprivations
of property that they sought to authorise were arbitrary. It follows that I agree with the
high court in this respect too.

[42] The high court suspended the declaration of invalidity for six months ‘to allow
the competent authority to correct the defect’. No reasons were given in the judgment
for this order. In the absence of any such reasons for this deviation from the default
position of setting aside unconstitutional exercises of public power, this order was
not competent. I can see no reason to keep the invalid by-laws in operation,
especially because of the usurpation by the two municipalities of legislative functions
of other spheres of government. It follows that the suspension of the declaration of
invalidity of the by-laws must be set aside. The respondents’ cross-appeal must
therefore succeed.

Conclusion
[43] For these reasons, the appeals are dismissed with costs, including the costs
of two counsel; and the cross-appeal against the suspension of the declaration of
invalidity is upheld with costs, including the costs of two counsel.

[44] I make the following order:
In case no334/2021 (Govan Mbeki Local Municipality):
The appeal is dismissed with costs, including the costs of two counsel.
The cross-appeal is upheld with costs, including the costs of two counsel.
Paragraph 4 of the high court’s order is set aside.

In case no 338/2021 (Emalahleni Local Municipality):
The appeal is dismissed with costs, including the costs of two counsel.
The cross-appeal is upheld with costs, including the costs of two counsel.
Paragraph 4 of the high court’s order is set aside.

_________________________
G SALIE-HLOPHE
ACTING JUDGE OF APPEAL

.

APPEARANCES

For first appellant:
A Vorster(with D Swart)
Instructed by:
Cronje De Waal-Skhosana Incorporated, Secunda

Kramer Weihmann Attorneys, Bloemfontein

For second appellant:
O Ben-Zeev
Instructed by:
Ka-Mbonane Cooper, Johannesburg

Van der Merwe &Sorour Attorneys, Bloemfontein

For respondents:
S J du Plessis SC (with K Hopkins and S O
Ogunronbi)
Instructed by:
Norton Rose Fulbright, Sandton
Webbers Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
17 June 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this
case and does not form part of the judgments of the Supreme Court of Appeal
Govan Mbeki Local Municipality and Another v Glencore Operations South Africa
(Pty) Ltd and Others (334/2021 and 338/2021)[2022] ZASCA 93 (17 June 2022)
Today, the Supreme Court of Appeal (SCA) dismissed with costs two appeals, both
directed at orders of the Mpumalanga Division of the High Court, Middelburg (the
high court), in which Barnardt AJ declared s 76 of the Govan Mbeki Spatial Planning
and Land Use Management By-law (the GMBL) and s 86 of the Emalahleni
Municipal By-law on Spatial Planning and Land Use Management 2016 (the EBL) to
be invalid and unconstitutional. The SCA further upheld with costs a cross-appeal
brought by the respondents against the decision of the high court suspending the
declaration of invalidity of the by-laws for a period of six months to allow the
competent authority to correct the defect. The costs awarded included the costs of
two counsel.

The respondents, Glencore Operations South Africa (Pty) Ltd, Duiker Mining (Pty)
Ltd, Tavistock Collieries (Pty) Ltd, Umcebo Properties (Pty) Ltd and Izimbiwa Coal
(Pty) Ltd, were companies that intended to transfer or take transfer of a number of
immovable properties situated within the municipal boundaries of the appellant
municipalities. The municipalities promulgated similarly crafted by-laws which placed
restraints on the transfer of erven and land units within their respective areas of
jurisdiction. In terms of these by-laws, an owner (transferor) could not apply to the
registrar of deeds to register the transfer of an erf or land unit except upon
production of a certificate, issued by the municipality, certifying that all spatial
planning, land-use management, and building regulation conditions or approvals in
connection with those erven or land units had been obtained and complied with the
requirements of the by-law. The respondents approached the high court for orders
declaring the relevant sections of the by-laws to be constitutionally invalid.

The central issue in the appeal was the validity of the by-laws. The SCA found that
the answer to this question required consideration of whether the by-laws were
enacted within the legislative competence of municipalities as contemplated in s 156
of the Constitution. Accordingly, the issues on appeal were whether the impugned
by-laws: (a) were unconstitutional and invalid, because they legislated on matters
which fell outside the scope of powers assigned to local government in terms of s
156 read with Part B of Schedule 4 and Part B of Schedule 5 of the Constitution; (b)
exceeded the functional area of ‘municipal planning’, in that they regulated the

transfer of property; and (c) were an incidental power as envisaged in s 156(5) of the
Constitution.

The SCA found that the Spatial Planning and Land Use Management Act 16 of 2013
(the SPLUMA) was the framework legislation within which the municipal competence
for municipal planning was exercised. The SPLUMA authorised the making of the by-
laws and laid down the limits within which municipalities may legislate. Therefore,
this power was to be exercised within the parameters so prescribed.

The SCA found that even though the by-laws, of which the impugned provisions
formed part, dealt on their face with municipal planning, the impugned provisions
themselves restricted the transfer and registration of ownership in immovable
property and constituted an embargo on transfer unless their requirements had been
fulfilled. Thus, the question to be answered was whether municipalities’ legislative
competence extended to regulating the transfer of properties.

The SCA held that the embargo on transfers strayed beyond municipal planning. As
this enforcement mechanism in the by-laws was a restriction on transfer, these were
not aspects of municipal planning, but matters pertaining to the transfer and
registration of property that were regulated by the Deeds Registries Act 47 of
1937.The competence with regards to deeds registration (including registration of
transfer of properties) was not a municipal function, for it was within the domain of
national government. The SCA found that it was significant that although it afforded
the municipality a wide discretion to invoke enforcement for non-compliance, the
system of enforcement envisaged in s 32 of the SPLUMA did not provide for a
restriction of the transfer of land, and so did not authorise the embargo.

The SCA held further that the restriction on transfer of land was not a necessary
power incidental to land-use management, as enforcement mechanisms of its land-
use scheme were already provided for in Chapter 9 of the by-laws. The registration
of transfer of property was expressly regulated by the Deeds Registries Act and s
118 of the Systems Act. There was thus no room for an implied municipal power to
regulate the registrar’s statutory power to register the transfer of properties. The
embargo therefore could not have been incidental to the effective enforcement of a
land-use scheme and the impugned by-laws were invalid insofar as they imposed a
mechanism which impermissibly regulated the transfer of property. They exceeded
the legislative competence of the respective municipalities, and thus offended the
principle of legality.

The SCA agreed with the high court’s finding that the impugned by-laws were also in
conflict with s 118 of the Systems Act, because they sought to impose on sellers of
property liabilities in addition to those contemplated by that section. This was
because the by-laws sought in effect to ‘amend’ s 118 by adding to its terms. The
SCA also agreed with the high court’s finding that the impugned sections of the by-
laws amounted to an arbitrary deprivation of property. In this regard, the SCA held
that as they were not justified in terms of a law and were thus bereft of lawful
authority, by definition the deprivations of property that they sought to authorise were
arbitrary.

Lastly, the SCA found that no reasons were given in the high court’s judgment for the
order to suspend the declaration of invalidity for six months. The SCA held that in the
absence of any such reasons for that deviation from the default position of setting

aside unconstitutional exercises of public power, that order was not competent.
Thus, the suspension of the declaration of invalidity of the by-laws was set aside.

~~~~ends~~~~