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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 municipal 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 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 which 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 Act[2] (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]

[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 application may not be performed unless the municipality certifies that all the requirements and conditions for the approval have been complied with.”