IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 189/22 In the matter between:

GOVAN MBEKI LOCAL MUNICIPALITY Applicant

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

Case CCT 191/22 In the matter between:

EMALAHLENI LOCAL MUNICIPALITY Applicant

And

GLENCORE OPERATIONS SOUTH AFRICA (PTY)

LTD First Respondent

FIRST TO FIFTH RESPONDENTS’ PRACTICE NOTE (In both CCT 189/2021 and CCT 191/2021)

1. NAMES OF PARTIES AND CASE NUMBER

As above.

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2. NATURE OF PROCEEDINGS

2.1. The two cases have been consolidated. They are dealt with together herein.

2.2. The argument on behalf of Glencore exceeds 50 pages of typed script because it was required to deal with both of the consolidated matters in one document.

This is the subject matter of a letter to the Chief Justice.

2.3. As in their Written Argument, the first to fifth respondents are referred to herein collectively as “Glencore”.

2.4. The applicants, Govan Mbeki Local Municipality (“Govan Mbeki”) and Emalahleni Local Municipality (“Emalahleni”) apply for leave to appeal against the judgment and order of the Supreme Court of Appeal dated 17 June 2022, which upheld the order of the High Court sitting in Middelburg (per Barnardt AJ), dated 13 January 2021 whereby s 76 of the Govan Mbeki Spatial Planning and Land-Use Management By-law ("GMBL”) and s 86 of the Emalahleni Local Municipality By- law on Spatial Planning and Land-Use Management (“EBL”) were declared to be inconsistent with the Constitution and invalid.

2.5. Glencore applies for leave to cross-appeal for an order amending and supplementing the order of the Supreme Court of Appeal in both cases.

3. ISSUES

3.1. Govan Mbeki and Emalahleni (“the Municipalities”) have enacted by-laws which impose an embargo on the registration of transfer of immovable property until the Municipalities certify that their requirements have been met (“the impugned

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provisions”). The central question is whether the impugned provisions are consistent with the Constitution. That question raises the following issues:

3.1.1. Whether the by-law provisions relating to the embargo (the “impugned provisions”) fall within the municipal functional area “Municipal planning”

in Schedule 4B of the Constitution?

3.1.2. Whether the impugned provisions can be regarded as the exercise of an incidental power under s 156(5) of the Constitution?

3.1.3. If the answer to either of the above questions is positive, whether the impugned provisions are permitted by the Spatial Planning and Land Use Management Act 16 of 2013 (“SPLUMA”)?

3.1.4. Even if the impugned provisions pass the above tests, whether they are:

3.1.4.1. in conflict with s 118 of the Local Government: Municipal Systems Act 32 of 2000 (the “Systems Act”), alternatively, 3.1.4.2. constitute an arbitrary deprivation of property in terms of s 25(1)

of the Constitution.

3.1.5. If the impugned provisions pass the constitutional test as outlined above, the further issue is whether the manner in which the Municipalities implement the impugned provisions, constitute reviewable administrative action under the Promotion of Administrative Justice Act 3 of 2000 (the

“PAJA”), alternatively constitute unlawful governmental action?

3.1.6. If the above challenges succeed consequential relief is claimed against the Registrar of Deeds, Mpumalanga, who is enforcing the embargo,

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4. PORTIONS OF THE RECORD THAT ARE NECESSARY FOR THE DETERMINATION OF THIS MATTER

The entire record of the proceedings before the Court a quo, as well as the judgment of the Supreme Court of Appeal are necessary for the determination of the matter.

5. ESTIMATE FOR THE DURATION OF ORAL ARGUMENT

The duration of the argument on behalf of Glencore is estimated to be one hour.

6. SUMMARY OF GLENCORE’S ARGUMENT

6.1. The impugned provisions do not fall within the municipal functional area of

“Municipal planning” in Schedule 4B of the Constitution. The embargo concerns the registration of the transfer of immovable property and is a foreign body in a by-law dealing with municipal planning.

6.2. The impugned provisions are not a power necessary for, or incidental to, the effective enforcement of the Municipalities’ Land-Use Schemes. The embargo is ineffective as a measure of enforcement and other enforcement measures are available.

6.3. The Spatial Planning and Land-Use Management Act 16 of 2013 (“SPLUMA”) is framework legislation for municipal planning and the embargo does not fall within the framework laid down in SPLUMA.

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6.4. The impugned provisions are in conflict with s 118 of the Local Government:

Municipal Systems Act 32 of 2000 (the “Systems Act”) and are invalid in terms of s 156(3) of the Constitution.

6.5. The impugned provisions constitute an arbitrary deprivation of property in terms of s 25(1) of the Constitution in that they deprive the owner of the right to transfer its property, pending certification by the municipality.

6.6. If the impugned provisions pass the constitutional test as outlined above, the manner in which the Municipalities implement the impugned provisions, constitute reviewable administrative action under the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), alternatively is unlawful governmental action, in that they are unauthorized and arbitrary.

7. LIST OF AUTHORITIES ON WHICH PARTICULAR RELIANCE WILL BE PLACED DURING ORAL ARGUMENT

7.1. Abahlali Basembjondolo Movement SA & Another v Premier of the Province of KwaZulu Natal 2010 (2) BCLR (CC).

7.2. First National Bank of SA Ltd t/a Westbank v Commissioner, South African Revenue Services 2002 (4) SA 768 (CC).

7.3. Mkontwana v Nelson Mandela Metropolitan Municipality 2005 (1) SA 530 (CC).

7.4. Telkom SA Soc Ltd v Cape Town City and Another 2021(1) SA 1 (CC).

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S J DU PLESSIS, SC

K HOPKINS

SO OGUNRONBI

1^st to 5^th RESPONDENTS’ COUNSEL Chambers Sandton

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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 189/22 In the matter between:

GOVAN MBEKI LOCAL MUNICIPALITY Applicant

And

GLENCORE OPERATIONS SOUTH AFRICA (PTY)

LTD First Respondent

Case CCT 191/22 In the matter between:

EMALAHLENI LOCAL MUNICIPALITY Applicant

And

GLENCORE OPERATIONS SOUTH AFRICA (PTY)

LTD First Respondent

First to Fifth Respondents’ List of Authorities

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Case Law

1 Abahlali Basemjondolo Movement SA & Another v Premier of the Province of KwaZulu Natal 2010 (2) BCLR (CC)

2 City of Cape Town and Another v Robertson and another 2005 (2) SA 323 (CC)

3 Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Republic of South Africa 1996 (4) SA 744 (CC)

4 Ferreira v Levin N.O. 1996 (1) SA 984 (CC)

5 First National Bank of SA Ltd t/a Westbank v Commissioner, South African Revenue Services 2002 (4) SA 768 (CC)

6 Geyser v Msunduzi Municipality 2003 (3) BCLR 325 (N) 7 Harksen v Lane 1998 (1) SA 300 (CC)

8 Independent Schools Association of Southern Africa v Ethekwini Municipality 2020 (2) SA 235 (KZD)

9 Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2010 (6) SA 182 (CC)

10 Jordaan and Others v Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC)

11 lndependent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC)

12 Merafong City v AngloGold Ashanti Ltd 2017 (2) SA 211 (CC)

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13 Minister of Home Affairs v Public Protector 2018 (3) SA 380 (SCA)

14 Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v The Habitat Council and Others 2014 (4) SA 437 (CC)

15 Mkontwana v Nelson Mandela Metropolitan Municipality 2005 (1) SA 530 (CC) 16 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs

2000 (2) SA 1 (CC)

17 Premier of the Province of the Western Cape v President of the RSA and Others 1999 (3) SA 657 (CC)

18 S v Lawrence 1997 (4) SA 1176 (CC)

19 Telkom SA Soc Ltd v Cape Town City and Another 2021 (1) SA 1 (CC)

20 Tronox KZN Sands (Pty) Ltd v KwaZulu Natal Planning and Development Appeal Tribunal and Others 2016 (3) SA 160 (CC)

21 United Technical Equipment Co (Pty) Ltd v Johannesburg City Council 1987 (4) SA 343 (T)

22 United Technical Equipment Company (Pty) Limited v Johannesburg City Council 1987 (4) SA 343

23 Western Cape Provincial Government & Others; In re DVB Behuising (Pty) Limited v North-West Provincial Government & Another 2001 (1) SA 500 (CC) 24 Wierda Properties v Sizwe Ntsaluba Gobodo 2018 (3) SA 95 (SCA)

Legislation

25 Deeds Registries Act 47 of 1937

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27 Local Government: Municipal Systems Act 32 of 2000 28 Promotion of Administrative Justice Act 3 of 2000

29 Spatial Planning and Land Use Management Act 16 of 2013 30 The Constitution of the Republic of South Africa Act 108 of 1996 31 The Development Facilitation Act 67 of 1995

Town Planning Schemes, Land-Use Schemes and By-laws 32 The Emalahleni Land-Use Scheme of 2010

33 The Govan Mbeki Land-Use Scheme of 2010

34 The Steve Tshwete Municipality Town Planning Scheme of 2004

35 The Emalahleni Local Municipality By-laws on Spatial Planning and Land-Use Management published under Provincial Notice No. 4 of 2016 in the Mpumalanga Gazette of 24 February 2016

36 The Govan Mbeki Spatial Planning and Land-Use Management By-law published under Provincial Notice No. 10 of 2016 in the Mpumalanga Gazette Extraordinary of 17 February 2016

37 The Steve Tshwete Local Municipality Spatial Planning and Land-Use Municipal By-laws published under Local Authority Notice No. 2 of 2016 in the Mpumalanga Government Gazette of 15 January 2016

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Literature

38 Clive Plasket, “Disproportionality – The Hidden Ground of Review” South African Law Journal, 2019

39 Steytler and De Visser, Chapter 22 “Local Government” in Woolman et al Constitutional Law, 2^nd Edition

40 Cora Hoexter, Administrative Law in South Africa, 2^nd Edition

41 Andre van der Walt, “Retreating from the FNB Arbitrariness Test Already?”

South African Law Journal, 2005