Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v MEC, Local Government and Housing, Gauteng, and Others (KwaZulu-Natal Law Society and Msunduzi Municipality as Amici Curiae)

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Madala J, Sachs J, Yacoob J, Moseneke J, Ngcobo J, Skweyiya J, O'Regan J, Mokgoro J and Van Der Westhuizen J
• Judgment Date: 06 October 2004
• Citation: 2005 (1) SA 530 (CC)
• Docket Number: CCT 57/03, CCT 61/03 and CCT 1/04
• Counsel: A Beyleveld and R B Laher for the applicant. R G Buchanan SC for the first respondent. R G Buchanan SC (with V Notshe) for the second and third respondents. A J Dickson SC (with A A Gabriel) for the first amicus curiae. P A Koen SC for the second amicus curiae. J T Whitehead SC (with T J M Patterson) for the first to third applicants. R P Quinn SC (with H J de Waal) for the first respondent. R G Buchanan SC (with V Notshe) for the second and third respondents. P Kennedy SC (with A Dodson) for the first to fourth applicants. G Marcus SC (with A Cockrell) for the first, second, seventh and eighth respondents. D Unterhalter SC (with G G Seleka) for the third and fourth respondents.
• Court: Constitutional Court

Yacoob J:

Introduction

[1] One of the five objects of local government in our Constitution is to ensure the provision of services to communities in a sustainable H way. [1] Municipalities supply water and electricity to consumers in their area subject to the payment of a consumption charge. In practice consumers of water and electricity are occupiers of property. Some own property they occupy and others do not. These three cases concern the constitutional validity of laws that in I effect burden owners in relation to consumption charges for water and electricity supplied to other people who occupy their immovable property:

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[2] Section 118(1) (s 118(1)) of the Local Government: Municipal Systems Act [2] (the Act) is one of A these provisions. [3] It places limits on the owner's power to transfer immovable property. The Registrar of Deeds may not effect transfer of any property without a certificate issued by the municipality to the effect that the consumption charges due during a period of two years before the date of issue of the certificate have been paid. [4] The section is being challenged B principally on the basis that it gives rise to arbitrary deprivation of property contrary to s 25(1) of the Constitution.

[3] In September last year s 118(1) was declared to be constitutionally invalid by the South Eastern Cape Local Division of the High Court (the High Court) in two cases before C it. [5] The High Court held that the section permitted arbitrary deprivation of property in conflict with s 25(1) of the Constitution and referred the declaration of invalidity for confirmation to this Court in terms of s 172(2) of the Constitution. The applicants in both these cases [6] have D applied for confirmation of this order. The municipalities cited in each of the two cases [7] as well as the Minister responsible for Local Government opposed confirmation and appealed against the High Court order. [8]

[4] There is also before this Court an application for direct access which came to be made in the following E circumstances. In December 2002 an application was launched in the Witwatersrand Local Division of the High Court (the WLD application). That application required a consideration of the meaning and constitutionality of national, provincial and local government legislation including s 118(1) that burdened owners in relation to F payment for water and electricity supplied to consumers who occupied the property. Certain consequential relief was also sought in the application. The applicants included an association of persons and are jointly referred to as the WLD applicants. [9] Responsible government G

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entities [10] as well as utility companies responsible for the delivery of A water [11] and electricity [12] were joined as respondents in these proceedings.

[5] Legislation additional to s 118(1) in issue in the WLD application may be briefly summarised. Section 118(3) of the Act is to the effect that any consumption charge owing is a 'charge upon the property in connection with which the amount is owing and enjoys B preference over any mortgage bond registered against the property'. Sections 49 and 50(1)(a) of a Gauteng Local Government Ordinance (the Ordinance) [13] were also challenged. Section 49 [14] in effect renders the owner and occupier of premises jointly and severally liable to a municipality for the consumption charges for water and electricity supplied to that property. The section empowers the municipality to sue C the owner and occupier jointly and severally after written notice to one of them. It also confers on the owner and occupier the right to recover from the other the latter's share of the liability discharged by the former. Section 50(1)(a) [15] of the D

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Ordinance has the same effect as s 118(1) of the Act except that the certificate required by the Ordinance must cover debts due for A three years before the date of the certificate.

[6] The by-laws in issue in the WLD application are those of the City of Johannesburg Metropolitan Municipality. They are by-law 4(2) of the water by-laws [16] and by-law 36 of the electricity by-laws. [17] The former makes owners B and consumers jointly and severally liable in respect of water charges [18] while the latter does the same for electricity charges. [19]

[7] In January this year almost all the parties in the WLD application [20] applied for direct access to this C Court. The aim was to have all the issues in the WLD application heard together with the application for confirmation and the appeal. [21] The issues to be decided in this appeal can be ascertained only after the fate of the application for direct access is decided. That application is considered first.

[8] Before this is done however it is convenient to mention that an attack on the constitutionality of s 118(1) and 118(3) of the Act D was considered by the KwaZulu-Natal High Court in the case of Geyser [22] (the Geyser case) and dismissed some six months before the delivery of the judgment of the High Court. It was held there that both subsections were not inconsistent with s 25(1) of the Constitution because the deprivation to which they gave rise was not arbitrary. There were therefore two E conflicting judgments in relation to the constitutionality of s 118(1) by the time the direct access application was heard by this Court.

Direct access

[9] Applications for direct access are now governed by Rule 18 of the F Rules of this Court. In substance, the Rule allows for direct access to be granted if it is in the interests of justice to do so. [23] The interests of justice is a broad concept and requires a consideration of many factors. [24]

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[10] All the parties in the WLD application were agreed during A argument before this Court that direct access should be granted. They submitted that it would be in the interests of justice for this Court to hear the case before it had been entertained by any other court. They relied on the saving of time and costs, the importance of the matter, and on a need to resolve the uncertainty created by competing judgments in the High Court. The application for confirmation and the appeal are concerned only with s 118(1) of the Act. We were B accordingly urged not to decide the fate of this section in isolation, but to grant direct access and decide all the other legal issues in the light of the more comprehensive factual matrix presented in the WLD application. C

[11] A useful point at which to start in considering an application for direct access is to recognise the importance of the principle that it is ordinarily not in the interests of justice for this Court to be a Court of first and last instance. [25] The Constitution and the Rules of this Court do, however, provide for this Court to be the Court of first and final instance, but only in exceptional circumstances. [26] The saving of time and costs, D the importance of the issue or the existence of conflicting judgments on an issue in a case do not, without more, constitute exceptional circumstances and justify this Court being a Court of first and last E instance. Indeed the importance and complexity of the issues raised would weigh heavily against this Court being a court of first and final instance. As a general rule, the more important and complex the issues in a case, the more compelling the need for this Court to be assisted by the views of another Court. Each of the issues in respect of which direct access is sought must be considered separately.

[12] It is significant that s 118(1) is already before this Court in the application for confirmation and leave to appeal. There F are conflicting judgments in relation to the constitutional validity of s 118(1). It is also

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true that the WLD application canvasses the factual background on a broader basis than has been done in the A Mkontwana and Bissett cases. The determination of the application for confirmation and that for leave to appeal by this Court will result in a final decision as to the constitutionality of s 118(1). No delay is occasioned by hearing the applicants on s 118(1) in the light of the new evidence they present. It is therefore in the interests of justice to grant direct access to the WLD B applicants, to consider the evidence placed before the High Court in the WLD application; and to decide the constitutional validity of s 118(1) by reference to all the arguments advanced. In the circumstances, direct access should be granted in relation to all the issues raised concerning the interpretation and constitutionality of s 118(1). C

[13] The position in relation to s 118(3) is different. It has been submitted that this Court will not be the Court of first and last instance when it comes to the determination of the constitutionality of s 118(3). It is said that this is because the High Court has already considered and dismissed challenges to the constitutional validity of s 118(3) in the Geyser judgment. However very little is D said in the Geyser judgment about the meaning and effect of s 118(3). Nor in that judgment is the constitutionality of s 118(3) considered separately from the constitutionality of s 118(1). This is not surprising because s 118(3) was not really a matter of 'live controversy' in that case. The municipality had not relied upon E s 118(3) and therefore this section was not really in issue. The challenge to s 118(3) in the Geyser case can rightly be said to be one bordering on the abstract. Section 118(3) has not been used by the municipality in relation to any of the applicants in the WLD case either. The construction of s 118(3) is far from straightforward and the reasoned judgment of another court on how the section is to be interpreted is likely to be helpful. In the F ...