Jordaan and Others v Tshwane Metropolitan Municipality and Others

JurisdictionSouth Africa
JudgeMogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J
Judgment Date29 August 2017
Citation2017 (6) SA 287 (CC)
Docket NumberCCT 283/16 and three other cases [2017] ZACC 31
Hearing Date29 August 2017
CounselD Unterhalter SC (with LGF Putter SC, H Varney and S Ogunronbi) for the applicants in CCT 283/16 and the respondents in CCT 293/16 (Jordaan and Others) T Motau SC (with A Vorster, S Scott and I Phalane) for the first respondent in CCT 283/16 and the applicant in CCT 293/16 (City of Tshwane Metropolitan Municipality). WJ Vermeulen SC (with P Sieberhagen) for the second respondent in CCT 283/16 and the applicant in CCT 294/16 (Ekurhuleni Metropolitan Municipality). L Montsho-Moloisane SC (with L Bomela and K Bokaba) for the third respondent in CCT 283/16 (Minister of Cooperative Governance and Traditional Affairs). I Miltz SC (with JJ Bitter) for the first amicus curiae (TUHF Ltd). A Cockrell SC (with C Tabata) for the second amicus curiae (Banking Association South Africa). AA Gabriel SC (with JP Broster) for the third amicus curiae (eThekwini Metropolitan Municipality).
CourtConstitutional Court

Cameron J (Mogoeng CJ, Nkabinde ADCJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J concurring):

Introduction

[1] At issue is the meaning and constitutional validity of s 118(3) of the B Local Government: Municipal Systems Act (Act). [1] This provides that 'an amount due for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties is a charge upon the property in connection with which the amount is owing and enjoys preference over any mortgage bond registered against the property'. [2] The High Court of South Africa, Gauteng Division, Pretoria (High C

Cameron J

Court) A (Fourie J) declared s 118(3) constitutionally invalid. [3] It did so 'to the extent only that the security provision a charge upon the property'' survives transfer of ownership into the name of a new or subsequent owner who is not a debtor of the municipality with regard to municipal debts incurred prior to such transfer'. [4] Pursuant to this, the High Court B also granted declaratory relief against the City of Tshwane Metropolitan Municipality (Tshwane) and Ekurhuleni Metropolitan Municipality (Ekurhuleni) at the instance of individual and corporate ratepayers. All were new property owners who complained that they were being denied services because the municipalities invoked s 118(3).

[2] C The central issue is whether the provision permits a municipality to reclaim, from a new owner of property, debts a predecessor in title incurred. If it does, its constitutional validity must be determined. If it does not, then the declaration of invalidity was unnecessary. But to determine the provision's true meaning, its language and history, as well D as its setting in the common law and under the Constitution, must be scrutinised.

Background and ripeness

[3] The matter comes to this court as a confirmation application under E s 167(5) of the Constitution [5] plus two appeals in which Tshwane and Ekurhuleni appeal against the High Court's order of constitutional invalidity. [6] This court consolidated the matters. eThekwini Metropolitan Municipality (eThekwini), which was admitted as an amicus curiae (friend of the court), [7] made common cause with the other two municipalities. F All contended that the provision is constitutionally sound and

Cameron J

makes a new owner responsible for historical debts. [8] So did the Minister A of Cooperative Governance and Traditional Affairs (Minister). The Minister, though not formally an appellant, was perforce joined as a party in one of the matters, because of the statutory invalidity claimed, and participated in the proceedings in both courts.

[4] The applicants are individuals and corporations owning, or acting on B behalf of owners of, property in Tshwane or Ekurhuleni. Each of the owners is a relatively recent transferee. Each complained that the municipality in question suspended municipal services or refused to conclude a consumer services agreement for municipal services until the historical debts relating to the property had been cleared. [9]

[5] The applicants' complaints gave rise to factual disputes. [10] The principal C dispute was the municipalities' claim that they had not invoked s 118(3) when they declined to conclude service agreements, but had relied on their bylaws or debt collection policies. [11] It was also contended that the applicants could take the service refusals on review under the Promotion of Administrative Justice Act. [12] For both these reasons, it was D argued that the constitutional challenge was premature. The High Court decided that the disputes precluded neither the determination of the constitutional challenge nor the grant of declaratory relief. [13]

[6] Before us, Ekurhuleni persisted that this court should refuse to countenance the constitutional question because the parties' issues could E

Cameron J

be A determined without reaching it. It invoked Mhlungu [14] where Kentridge AJ laid down, as a general principle, that where it is possible to decide any case without reaching a constitutional issue, that course should be followed. [15] Mhlungu should be set in its proper perspective. It was decided under the interim Constitution, where this court had B solely constitutional jurisdiction, [16] and the Appellate Division of the Supreme Court, which became the Supreme Court of Appeal, had solely non-constitutional jurisdiction. [17] That bifurcation of appellate power, and the cautions and courtesies it necessitated, has long been expunged from our constitutional landscape. From 4 February 1997, the Constitution conferred constitutional jurisdiction on the Supreme Court of C Appeal, [18] subject to appeal to this court, and at the same time empowered this court to develop the common law. [19]

[7] The consequence of this was both logical and inevitable. This court was in due time given jurisdiction to decide non-constitutional matters that raise arguable points of law of general public importance which it D ought to consider. [20] It thus became the apex court on all matters.

[8] The result is that under the final Constitution the approach Mhlungu espoused has long since been abandoned in favour of its opposite, namely that constitutional approaches to rights determination must generally enjoy primacy. [21] Far from avoiding constitutional issues E whenever possible, this court has emphasised that virtually all issues —

Cameron J

including the interpretation and application of legislation and the A development and application of the common law — are, ultimately, constitutional. This affects how to approach them from the outset.

[9] The constitutional dispute was large and pressing. The High Court's decision to decide it despite the factual and other considerations the B municipalities sought to strew in its path was clearly right. The matter was ripe for decision there, and it is ripe for decision here.

[10] There are further factors that show this. The Supreme Court of Appeal has twice pronounced on the meaning of s 118(3). [22] In both cases, the constitutional validity of the provision was not in issue, and the C court expressed its view without considering the constitutional context. [23]

[11] The municipalities argued that they relied on their bylaws and debt collection policies to justify their refusal to open consumer agreements D until historical debt was settled. Despite these disclaimers of Tshwane and Ekurhuleni, it is evident that municipalities do invoke s 118(3) to refuse new owners municipal services if historical debts are unpaid. Furthermore, the High Court rejected the municipalities' contention that their bylaws and rates collection policies permitted this conduct. The court's conclusion that, properly interpreted, these bylaws and E policies do not, on their own, allow that, is unassailable. Besides, the municipalities' protestation that their bylaws and policies, rather than s 118(3), justify their stance is tumbledown logic, since a municipality's

Cameron J

credit-control A and debt-collection policy must in any event comply with the provisions of the Act. [24] Disjunction would be artificial.

[12] For all these reasons, the interests of justice require this court to consider the substance of the challenge to s 118(3), and not to be B diverted from it on procedural or other grounds.

[13] Apart from eThekwini, two non-governmental organisations were admitted as amici curiae. TUHF Ltd is a social housing organisation. [25] The Banking Association South Africa (BASA) [26] is an association incorporated under the Companies Act. [27] It has 32 member banks, including the largest in South Africa. Both TUHF and BASA associated themselves C with the applicants in challenging the meaning the municipalities ascribed to s 118(3). They contended for either confirmation of the order of invalidity or an interpretation that assuaged their constitutional objections to it. TUHF advanced arguments about the distinctive nature of the hypothec (or right of security over property) that s 118(3) confers on a local authority. BASA advanced an additional ground of unconstitutionality. D This was that s 118(3) permitted arbitrary deprivation of not just the new owner's property rights, but of real security rights the new owner confers on any mortgagee who extends a fresh loan on the security of the property post-transfer. [28]

[14] E On 25 May 2017, after the oral hearing, the Johannesburg Attorneys Association (JAA) successfully applied to the court for admission as an amicus curiae. [29] The JAA sought to respond only to the submission by eThekwini that there is, or ought to be, a legal duty on conveyancers to disclose historical debts to property purchasers or transferees. The JAA focused on a conveyancer's duties and ethical position should this court F hold that the s 118(3) right survives transfer. In view of the conclusion

Cameron J

this judgment reaches, it is not necessary to consider these submissions. A [30]

What does s 118(3) mean?

[15] Before deciding whether s 118(3) unjustifiably limits constitutional rights, we must determine what it means. And to find out we have to journey into the origins of the phrase 'charge upon the property' in South African B statute law, for that history casts light on the provision's meaning.

[16] The historical antecedents of s 118(3) show that two distinct mechanisms were imported into statute law to assist and protect municipalities in collecting debts due to them. The first was an embargo. C This put the intending transferor of property with unpaid municipal debts in a squeeze. If she wanted to transfer, she had to pay up first. This was a municipality-friendly debt collection device. It secured payment of municipal debts on pain of sterilising saleable...

To continue reading

Request your trial
10 practice notes
  • Moyo and Another v Minister of Justice and Constitutional Development and Others
    • South Africa
    • Invalid date
    ...(CC) (2001 (1) SA 545; 2000 (10) BCLR 1079; [2000] ZACC 12): applied Jordaan and Others v Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC) ([2017] ZACC 31): distinguished Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; J [2002] ZACC 12): referred to 2......
  • Ethekwini Municipality v Mounthaven (Pty) Ltd
    • South Africa
    • Invalid date
    ...2002 (4) SA 294 (CC) (2002 (5) BCLR 433; [2002] ZACC 3): referred to Jordaan and Others v Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC) (2017 (11) BCLR 1370; [2017] ZACC 31): dictum in E para [38] Lorentz v Melle and Others 1978 (3) SA 1044 (T): dictum at 1055E applied L......
  • (Re)defining the contours of ownership: Moving beyond white picket fences
    • South Africa
    • Juta Stellenbosch Law Review No. , September 2019
    • 12 de setembro de 2019
    ...oel “Can the journey af fect the de stinati on? A single sys tem of law approach to pro perty remed ies” (2016) 32 SAJHR 71 71-8695 2017 6 SA 287 (CC)248 STELL LR 2019 2 © Juta and Company (Pty) “The notion that owning property comes with burdens for the public good is not outlandish. This ......
  • S v Brand
    • South Africa
    • Invalid date
    ...years' imprisonment was appropriate. (See [43].) Cases cited Jordaan and Others v City of Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC): applied B National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1......
  • Request a trial to view additional results
8 cases
  • Moyo and Another v Minister of Justice and Constitutional Development and Others
    • South Africa
    • Invalid date
    ...(CC) (2001 (1) SA 545; 2000 (10) BCLR 1079; [2000] ZACC 12): applied Jordaan and Others v Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC) ([2017] ZACC 31): distinguished Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; J [2002] ZACC 12): referred to 2......
  • Ethekwini Municipality v Mounthaven (Pty) Ltd
    • South Africa
    • Invalid date
    ...2002 (4) SA 294 (CC) (2002 (5) BCLR 433; [2002] ZACC 3): referred to Jordaan and Others v Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC) (2017 (11) BCLR 1370; [2017] ZACC 31): dictum in E para [38] Lorentz v Melle and Others 1978 (3) SA 1044 (T): dictum at 1055E applied L......
  • S v Brand
    • South Africa
    • Invalid date
    ...years' imprisonment was appropriate. (See [43].) Cases cited Jordaan and Others v City of Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC): applied B National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1......
  • Moyo and Another v Minister of Justice and Constitutional Development and Others
    • South Africa
    • Supreme Court of Appeal
    • 20 de junho de 2018
    ...or would be detrimental to the administration of justice. [90] Jordaan and Others v Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC) ([2017] ZACC 31) para [91] Constitution, s 167(5), read with rule 16 of the Constitutional Court Rules. Even where the point has become entir......
  • Request a trial to view additional results
2 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT