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

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)
2005 (1) SA 530 (CC)

2005 (1) SA p530

Citation	2005 (1) SA 530 (CC)
Case No	CCT 57/03, CCT 61/03 and CCT 1/04
Court	Constitutional Court
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
Heard	March 10, 2004; March 11, 2004
Judgment	October 6, 2004
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.

Flynote : Sleutelwoorde B

Constitutional practice — Courts — Constitutional Court — Direct access to Constitutional Court — Ordinarily not in interests C of justice for Constitutional Court to be Court of first and last instance, although it may take on that role in D exceptional circumstances — In general, the more important and complex issues in case, the more compelling the need for Constitutional Court to be assisted by views of another Court. E

Local government — Consumption charges for electricity and water — Collection of — Effect and constitutionality of s 118(1) of Local Government: Municipal Systems F Act 32 of 2000 and s 50(1)(a) of Local Government Ordinance 17 of 1939 (G) — Whether operation of sections giving rise to arbitrary deprivation of property contrary to s 25(1) of Constitution — Sections giving rise to deprivation of property but such deprivation not arbitrary — Not unreasonable to expect owners of property to bear risk — Duty of municipalities to ensure appropriate debt collection highlighted. G

Headnote : Kopnota

The matters before the Court concerned the constitutional validity of laws that burdened owners of property in relation to consumption charges for water and electricity supplied to people occupying such properties who were not the owners themselves. Section 118(1) of the H Local Government: Municipal Systems Act 32 of 2000 (the Act) limited an owner's power to transfer immovable property by providing that the Registrar of Deeds may not effect the 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 the issue of the certificate have been paid. This section was I challenged on that basis that it allegedly gave rise to arbitrary deprivation of property contrary to s 25(1) of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution). The effect of s 118(1) of the Act was that any consumption charge owing enjoyed preference over any mortgage bond registered against the property. It was contended that s 118(1) was not procedurally fair because it did not impose J

2005 (1) SA p531

an obligation upon municipalities to keep property owners informed of the amounts owing by occupiers at reasonable intervals or A when it was requested by property owners in writing.

Sections 49 and 50(1)(a) of the Gauteng Local Government Ordinance 17 of 1939 (G) (the ordinance) were also challenged. Section 49 of the ordinance rendered 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. Section B 50(1)(a) of the Ordinance had the same effect as s 118(1) of the Act except that the certificate required had to cover debts due for three years before the date of the certificate.

Held, that in considering an application for direct access to the Constitutional Court, it was ordinarily not in the interests of justice for the Constitutional Court to be the Court of first and last instance, although it was able to take on that role in exceptional C circumstances. As a general rule the more important and complex the issues in a case, the more compelling the need for the Constitutional Court to be assisted by the views of another Court. (Paragraph [11] at 539C - E/F.)

Held, further, that it was significant that s 118(1) of the Act was already before the Court in the application for confirmation and leave to appeal and that there were other conflicting judgments D regarding the constitutional validity of the section. It was in the interests of justice to grant the applicants direct access to enable the Court to consider the evidence previously placed before the High Court and to decide the constitutional validity of s 118(1) by reference to all the arguments advanced. Direct access accordingly had to be granted in relation to all issues raised concerning the interpretation and constitutionality of s 118(1) of the Act. E (Paragraph [12] at 539F - 540C.)

Held, further, that s 49 of the ordinance was an important provision that raised complex questions concerning the appropriateness of rendering owners jointly and severally liable for payment of water and electricity not consumed by them but by others on their property. It was not in the interests of justice for the Constitutional Court to be the Court of first and last instance on these issues. Although the F legislation was interrelated with s 118(1) of the Act, there were sufficient differences between the provisions to render it advisable that another Court should decide the issue of constitutionality of the provision before it was considered by the Constitutional Court. (Paragraph [14] at 540G - I.)

Held, further, that the arguments advanced by the parties about the interpretation and constitutionality of G s 50(1)(a) of the ordinance were virtually the same as those directed at s 118(1) of the Act. There was so little difference between the provisions that a decision on the constitutional validity of s 118(1) by the Court would directly impact on the constitutional validity of s 50(1)(a). It was accordingly in the interests of justice that the application for direct access be granted in relation to s 50(1)(a) of the ordinance. (Paragraph [15] H at 540J - 541B.)

Held, further, with regard to the interpretation of s 118(1) of the Act and s 50(1)(a) of the ordinance, that each of the provisions was broadly worded to secure the payment of all consumption charges 'in connection' with the property. The provisions were not merely procedural, but constituted a substantial obstacle to alienation and a deprivation of property within the meaning of s 25(1) I of the Constitution. (Paragraphs [30] and [33] at 545G and 546F.)

Held, further, that a deprivation of property was arbitrary as intended in s 25 of the Constitution if the law in issue failed to provide sufficient reason for the deprivation or was procedurally unfair. It was accordingly necessary to evaluate the relationship between the purpose of the law and the deprivation J

2005 (1) SA p532

effected by that law. The greater the extent of the deprivation, the more A compelling the purpose and the closer the relationship between means and ends had to be. (Paragraphs [34] and [35] at 546H/I - 547B and 547E.)

Held, further, that s 118(1) of the Act did not permit deprivation of property where there was no connection between it and the consumption charges. The consumption of water and electricity by the occupier was integral to the use and enjoyment of the affected property and to its inherent worth. There was accordingly more than B just a close relationship between the property and the consumption charge: They were in fact closely interrelated. (Paragraphs [39] and [40] at 549F and 549I - J.)

Held, further, that there was a level at which the owner and the debt were usually connected or related regardless of the nature of the relationship between the owner and the occupier and of whether the property was lawfully occupied. This was because the owner was bound to C the property by reason of the fact of ownership which entailed certain rights and responsibilities. The property was always the link between the owner, on the one hand, and the consumption charge, on the other. It was fallacious to require that the owner had to benefit from the consumption charge before it could be said that there was a relationship between the consumption charge and the property. D (Paragraphs [41] and [42] at 550B/C - D and 550G.)

Held, further, that the relationship between the owner and the consumption charge was so close as to justify a reasonable expectation that the owner would choose a responsible tenant, monitor payment by the tenant of consumption charges and ensure that the agreement of tenancy was appropriately crafted. There was accordingly no basis for suggesting that it would be unreasonable for the owner to E bear the risk. The provisions were therefore not arbitrary to the extent that they covered consumption charges due by tenants. (Paragraph [53] at 554C/D - E.)

Held, further, that the s 118(1) certificate also covered situations where an occupier was unlawfully holding over after the termination of a lease or some other legal relationship. In this situation, the owner would have chosen the tenant, would have received F rental where the occupier concerned was a tenant and would be...