PDF 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

DUIKER MINING (PTY) LTD Second Respondent

TAVISTOCK COLLIERIES (PTY) LTD Third Respondent UMCEBO PROPERTIES (PTY) LTD Fourth Respondent

IZIMBIWA COAL (PTY) LTD Fifth Respondent

PRACTICE NOTE FILED ON BEHALF OF EMALAHLENI LOCAL MUNICIPALITY

1 NAMES OF THE PARTIES AND CASE NUMBER

As set out above.

2 NATURE OF PROCEEDINGS

Application 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 section 86 of the Emalahleni Municipal By-Law on Spatial Planning and Land Use Management, 2016 (the

“EBL”) was declared to be inconsistent with the Constitution and invalid.

3 ISSUES TO BE ARGUED

3.1 Whether the legislative competence of municipalities as contemplated under section 43(c) and section 156(1) of the Constitution includes the power to pass a by-law that restricts

the transfer of a property if that property does not comply with the zoning and planning laws of a municipality.

3.2 Whether a by-law passed by a municipality that imposes the above restriction on transfer is in conflict with section 118 of the Local Government: Municipal Systems Act 32 of 2000 or not.

3.3 Whether the above restriction on the transfer of property amounts to an arbitrary deprivation of property under section 25(1) of the Constitution.

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 this matter.

5 ESTIMATE OF THE DURATION OF ORAL ARGUMENT

3 hours.

6 SUMMARY OF THE APPLICANT’S ARGUMENT

Legislative Competence

6.1 Municipalities are not creatures of statute entrusted to provincial councils. Their autonomy and their legislative, executive and administrative authority is provided for in the Constitution, which affords them original powers.

6.2 Among other things, municipal planning and building regulations, which are both listed under Part B of schedule 4, fall within the competence of a municipality. Section 156(1) and (2) provides that a municipality has executive authority in respect of these local government matters and may make and administer by-laws over these areas.

6.3 This Court has repeatedly held that in order to determine under which area of competence a law falls, one must consider the nature and purpose of the legislation as a whole.

6.4 The purpose of the EBL is to regulate municipal planning and building regulation matters. It falls within the scope of municipal competence under section 156(1) of the Constitution.

6.5 Section 86 of the EBL acts only as an enforcement mechanism of the EBL and still relates to municipal planning and building regulation. While it inserts an administrative requirement that an owner of land must meet in accordance with section 3(1)(b) of the Deeds Registries Act 47 of 1937, it still falls within the scope of the original powers of the Municipality. At most, it amounts to a matter that is reasonably necessary or incidental to the effective performance of the functions of the Municipality as contemplated under section 156(5) of the Constitution.

6.6 The enforcement of zoning legislation and land use management schemes falls squarely within the competence of a municipality. It forms part of the executive authority and the administration of the municipality in respect of its planning functions.

6.7 A municipality is best placed to assess the gravity and necessary control over matters of local aesthetic, building density, and communal harmony that are dependent on an effective land use management scheme. Similarly, only a municipality can determine the nature and degree of enforcement that is required and the resources that are available for this task.

6.8 this Court’s jurisprudence makes it clear that the competence of a municipality is not determined solely by the effect of one of the provisions of its by-law, but rather by the core purpose of the by-law as a whole. Section 86 of the EBL touches on the transfer of land but remains an enforcement provision in respect of a by-law regulating and administering municipal planning.

6.9 The mere enforcement of municipal land use management schemes and other planning legislation and the methodology used therefor is not a matter that calls for national or provincial uniformity. Seen in this light, municipalities should be empowered to find and impose the appropriate enforcement mechanism as part of their original powers under the Constitution.

6.10 Furthermore, section 32(1) of the Spatial Planning and Land Use Management Act 16 of 2013 (“SPLUMA”) empowers municipalities to pass by-laws on the enforcement of their land use schemes.

Alleged conflict with section 118 of the MSA

6.11 Although section 86 of the EBL and section 118 of the MSA overlap in that they both place restrictions on the transfer of land and are the same kind of enforcement mechanism, there is no conflict between these provisions.

6.12 The provisions are not mutually exclusive and do not interfere with each other’s respective operation. They regulate (and act as enforcement mechanisms in respect of) two different matters, namely finance on the one hand and municipal planning on the other.

The EBL does not amount to an arbitrary deprivation of property

6.13 This Court’s judgment in Mkontwana is authority for the proposition that an embargo or restriction on the transfer of property is constitutionally valid if its purpose is sufficiently compelling, despite the fact that it imposes on the owner of land the burden to ensure compliance with the provision protected by the embargo.¹

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

6.14 The EBL regulates the use of land and spatial management.

This regulation is critical to prevent social ills such as urban sprawl, as well as to ensure the fair and equitable use of, and access to, land. It would be impossible for a municipality to fulfil its Constitutional functions and obligations, or to protect, promote or fulfil the rights in the Bill of Rights without proper spatial management.

6.15 Owners are obliged to use their properties in conformity with the planning laws of a municipality. It is not unreasonable to expect an owner to follow the process set out in section 86 of the EBL to ensure that the property about to be transferred is in line with the relevant planning laws.

6.16 The landowner is required to do little more than ensure that his or her property is compliant with the law, and to prove this prior to transferring the land by the submission of building plans and a zoning certificate. The owner is already required to comply with the ELUMS on pain of criminal sanction. This is an ordinary incident of ownership and an owner of land may legitimately be required to ensure compliance.

6.17 it is sensible to ensure that the use of a property is lawful prior to it being transferred. The respondents themselves argue that a new owner should not be saddled with responsibility for the failure of predecessors in title. The embargo would ensure that the owner responsible for an infringement of the Municipality’s planning laws must remedy the state of affairs before transferring the property to a new owner.

6.18 The procedure under section 86 of the EBL is not procedurally unfair or unreasonable. As administrative action it may be reviewed under the provisions of the Promotion of Administrative Justice Act 3 of 2000 if necessary.

6.19 Seen in this light, section 86 of the EBL is constitutionally valid.

Leave to appeal should be granted and the appeal should be upheld.

7 LIST OF AUTHORITIES ON WHICH PARTICULAR RELIANCE WILL BE PLACED

7.1 Abahlali baseMjondolo Movement SA v Premier, KZN and Others 2010 (2) BCLR 99 (CC)

7.2 City of Cape Town v Independent Outdoor Media (Pty) Limited and others [2023] JOL 59777 (CC)

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

7.4 City of Johannesburg Metropolitan Municipality v Chairman of the National Building Regulations Review Board 2018 (5) SA 1 (CC)

7.5 Federation of Governing Bodies for South African Schools v MEC for Education, Gauteng 2016 (4) SA 546 (CC)

7.6 First National Bank of SA Ltd v Commissioner, SARS 2002 (4) SA 768 (CC)

7.7 Johannesburg City Council v Bernard Lewis Construction (Pty) Ltd 1991 (2) SA 239 (W)

7.8 Johannesburg Municipality v Gauteng Development Tribunal 2010 (2) SA 553 (SCA)

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

7.10 Jordaan and Others v City of Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC)

7.11 Lawyers for Human Rights v Minister in the Presidency and Others 2017 (1) SA 645 (CC)

7.12 Maccsand (Pty) Ltd v City of Cape Town and Others 2012 (4) SA 181 (CC)

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

7.14 Mkontwana v Nelson Mandela Metropolitan Municipality and Another 2005 (1) SA 530 (CC)

7.15 Reflect-All 1025 CC and Others v MEC, Public Transport, Roads and Works, Gauteng 2009 (6) SA 391 (CC)

7.16 Telkom SA SOC Ltd v Cape Town and Another 2020 (1) SA 514 (SCA)

7.17 Telkom SA SOC Ltd v City of Cape Town and Another 2021 (1) SA 1 (CC)

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

7.19 Western Cape Provincial Government and Others In Re: DVB Behuising (Pty) Ltd v North West Provincial Government and Another 2001 (1) SA 500 (CC)

___________________

O BEN-ZEEV Counsel for the applicant Chambers, Sandton 6 July 2023

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

DUIKER MINING (PTY) LTD Second Respondent

TAVISTOCK COLLIERIES (PTY) LTD Third Respondent

UMCEBO PROPERTIES (PTY) LTD Fourth Respondent

IZIMBIWA COAL (PTY) LTD Fifth Respondent

EMALAHLENI LOCAL MUNICIPALITY – LIST OF AUTHORITIES

Case Law

No Case Citation

Page number reference in Heads of

Argument

Page number in Bundle of Authorities

1.

Abahlali baseMjondolo Movement SA v Premier, KZN and Others 2010 (2) BCLR 99 (CC) at paragraphs 97 – 98

15, 20 1 – 19

2. African Products (Pty) Ltd v AIG South Africa Ltd

2009 (3) SA 473 (SCA) at paragraph 13 24 20 – 25

3.

Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC) at paragraph 21

50 26 – 38

4.

City of Cape Town and Other v Robertson and Other (CCT 19/04) [2004] ZACC 21; 2005 (2) SA 323 (CC) (29 November 2004) at paragraphs 59 – 61

10, 12 39 – 55

5.

City of Cape Town v Independent Outdoor Media (Pty) Ltd and Others (CCT 36/22) [2023]

ZACC 17 (23 June 2023) at paragraphs 45,47

12, 22 56 – 64

6.

City of Johannesburg Metropolitan Municipality v Chairman of the National Building Regulations Review Board 2018 (5) SA 1 (CC) at paragraphs 20 – 22

12 65 – 70

7.

City of Tshwane Metropolitan Municipality v Grobler and Others 2005 (6) SA 61 (T) at paragraph 9

36, 40 71 – 74

8.

City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others 2015 (6) SA 440 (CC) at paragraph 111

48 75 – 101

9.

Cool Ideas 1186 CC v Hubbard and Another (CCT 99/13) [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) (5 June 2014) at paragraph 43

47 102 – 124

10.

Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining & Development 2014 (5) SA 138 (CC) at paragraph 115

47 125 – 144

11.

Federation of Governing Bodies for South African Schools v MEC for Education, Gauteng 2016 (4) SA 546 (CC) at paragraphs 26 – 27

20 145 – 153

12. Johannesburg City Council v Bernard Lewis

Construction 1991 (2) SA 239 (W) at 244E-F 18, 21, 35 154 – 157

13.

Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (6) SA 182 (CC) at paragraphs 49, 58 – 59

15, 22, 25, 29

158 – 173

14.

Johannesburg Municipality v Gauteng

Development Tribunal and Others 2010 (2) SA 554 (SCA) at paragraphs 19, 36

25, 37 174 – 182

15.

Jordaan and Others v City of Tshwane

Metropolitan Municipality and Others 2017 (6) SA 287 (CC) at paragraphs 19 – 20, 44, 51

5, 26, 39 183 – 198

16. Lawyers for Human Rights v Minister in the

Presidency and Others 2017 (1) SA 645 (CC) 50 199 – 203

17. Maccsand (Pty) Ltd v City of Cape Town and

Others 2012 (4) SA 181 (CC) at paragraph 47 28 204 – 214

18. Mashavha v President of the RSA 2005 (2) SA

476 (CC) at paragraphs 32, 49. 18, 29 215 – 227

19.

MEC for Agriculture, Conservation, Environment and Land Affairs v Sasol Oil 2006 (5) SA 483 (SCA) at paragraph 19.

44 228 – 234

20.

Minister of Local Government, Environmental Affairs and Development Planning, Western Cape, v The Habitat Council and Others 2014 (4) SA 437 (CC) at paragraphs 14, 19

3, 13 235 – 242

21. Mkontwana v Nelson Mandela Metropolitan Municipality and Another 2005 (1) SA 530 (CC) at paragraphs 2, 33, 60,51,66

31, 33, 40, 41, 45, 46

243 – 267

22. National Credit Regulator v Opperman and

Others 2013 (2) SA 1 (CC) at paragraph 99 24 268 – 283

23. Premier, Western Cape v President of the RSA

1999 (3) SA 657 (CC) at paragraph 51 22 284 – 300

24.

Reflect-All 1025 CC and Others v MEC, Public Transport, Roads and Works, Gauteng 2009 (6) SA 391 (CC) at paragraphs 33, 40

31, 32, 45 301 – 320

25. Telkom SA SOC Ltd v Cape Town and Another

2020 (1) SA 514 (SCA) at paragraphs 18, 21 14, 25 321 – 329

26.

Telkom SA SOC Ltd v City of Cape Town and Another 2021 (1) SA 1 (CC) at paragraphs 21, 28 – 29, 33

13, 26 330 – 336

27.

United Technical Equipment Co (Pty) Ltd v Johannesburg City Council 1987 (4) SA 343 (T) at 348H-J

18, 40 337 – 340

28.

Western Cape Provincial Government and Others In Re: DVB Behuising (Pty) Ltd v North West Provincial Government and Another 2001 (1) SA 500 (CC) at paragraphs 17, 36, 63 – 64

14 – 17 341 – 363

Legislation

29. Deeds Registries Act 47 of 1937 – Section 3(1)(b)

30. Emalahleni Local Municipality By-Law on Spatial Planning and Land Use Management (EBL) (see pages 219 – 290 of the record)

31. Emalahleni Local Municipality Land Use Management Scheme

32. Local Government: Municipal Systems Act 32 of 2000 – Section 118

33. Promotion of Administrative Justice Act 3 of 2000

34. Sectional Titles Act 95 of 1986 – Section 15B(3)

35. Spatial Planning and Land Use Management Act 16 of 2013 – Sections 7, 32

36.

The Constitution of the Republic of South Africa, 1996 – Sections 25, 26,27,36, 40, 43, 151, 152, 153, 155, 156, Schedule 4, Schedule 5

Foreign Legislation

37. Federal Building Code – Section 24 (Germany) 364 – 367 (extract)

38. Planning and Environment Act of 1987 - Section 201UG (Australia)

368 - 369 (extract)

Textbooks

39. S Woolman & M Bishop (2013) Constitutional Law of South Africa 2nd ed at 22-48