Observations on the (Un-)Constitutionality of Section 118(3) of the Local Government: Municipal Systems Act 32 of 2000

• Jurisdiction: South Africa
• Citation: (2006) 17 Stell LR 505
• Pages: 505-531
• Published date: 27 May 2019
• Author: Lourens du Plessis
• Date: 27 May 2019

OBSERVATIONS ON THE (UN-)

CONSTITUTIONALITY OF SECTION 118(3) OF

THE LOCAL GOVERNMENT: MUNICIPAL

SYSTEMS ACT 32 0F 2000

Lourens du Plessis

B Jur et Comm LLB B Phil LLD Hons BA

Professor of Public Law, University of Stellenbosch

1 Introduction

Can section 118(3) of the Local Government: Municipal Systems Act

1

(‘‘the act’’) withstand constitutional scrutiny – in terms of section 25(1) of

the Constitution,

2

to be more exact? The Constitutional Court – in

Mkontwana v Nelson Mandela Metropolitan Municipality; Bissett v

Buffalo City Municipality; Transfer Rights Action Campaign v MEC for

Local Government and Housing, Gauteng

3

(‘‘the Mkontwana case/

judgement’’) – left this question open, expressly and deliberately.

4

In

the same breath the court found that section 118(1) of the act, the

operational stable companion of section 118(3), is not unconstitutional.

It has therefore become significant to reflect on the likely constitutional

fate of section 118(3) which, at present and at best, can but be

guesstimated. The destiny of section 118(1) was also not a foregone

conclusion prior to the Mkontwana judgement, especially after two

separate (sets of) challenges in different high courts resulted in a

judgement in one case – Geyser v Msunduzi Municipality

5

(‘‘the Geyser

case/judgement’’) in the Natal Provincial Division – upholding the

impugned provision, and in a joint judgement, in two other cases –

Mkontwana v Nelson Mandela Metropolitan Municipality

6

and Bissett v

Buffalo City Municipality

7

(‘‘the Mkontwana case/judgement a quo’’) in

the South Eastern Cape Local Division – upholding the challenge.

It will be shown that there is a strong case to be made that section

118(3), especially as construed in two recent judgements of the Supreme

Court of Appeal – to wit BoE Bank Ltd v Tshwane Metropolitan

Municipality

8

(‘‘the BoE case/judgement’’) and City of Johannesburg v

1

32 of 2000.

2

Constitution of the Republic of South Africa, 1996.

3

2005 2 BCLR 150 (2005 1 SA 530) (CC).

4

The Mkontwana judgement supra par 13; cf also 4 1 infra.

5

2003 3 BCLR 235 (2003 5 SA 18) (N). (Page number references will be to the BCLR version.)

6

SECLD Case no 1238/02 (decided 13 September 2003).

7

SECLD Case no 903/02 (decided 13 September 2003).

8

2005 4 SA 336 (SCA).

505

(2006) 17 Stell LR 505

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Kaplan

9

(‘‘the Kaplan case/judgement’’) – is unconstitutional. One (or

both) of the following discursive strategies may be deployed to consider

the constitutionality of the provision under discussion:

.First, on the assumption that the Constitutional Court in its

Mkontwana judgement

10

advanced cogent reasons in support of its

finding that section 118(1) is not unconstitutional, it may be

determined whether the same (or analogous) reasons could mutatis

mutandis (also) safeguard section 118(3) against a constitutional

challenge.

.A second possibility is to argue that mistakes in the Constitutional

Court’s reasoning in support of the constitutionality of section 118(1)

should not be repeated in an assessment of the constitutionality of

section 118(3). Van der Walt,

11

for instance, argues convincingly that

the court’s substantial reasoning in Mkontwana

12

is not beyond

criticism. He suggests that declaring section 118(1) unconstitutional

would have been a (more) sustainable outcome – for policy reasons and

in the light of the Constitutional Court’s own approach in First

National Bank of SA Ltd t/a Wesbank v Commissioner, South African

Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister

of Finance

13

(‘‘the FNB case/judgement’’).

In the discussion that follows the first strategy will be brought into play

without adaptation. It is unlikely that the Constitutional Court will, in

the near future, renege on its line of (substantial) reasoning in the

Mkontwana judgement.

14

Thus, though there is merit in confronting the

outcome of that reasoning head on (as Van der Walt’s thoughtful

assessment of the judgement shows

15

), I shall, as a second strategy, rather

explore the possibility of a more likely achievable rerouting of the

substantial argumentation in Mkontwana.

2The act and its objectives as context

The Local Government: Municipal Systems Act is a transformative

chunk of legislation purporting to represent a definite break with the

apartheid system of local government which ‘‘failed dismally to meet the

basic needs of the majority of South Africans’’.

16

In its preamble it

attaches importance (and, indeed, precedence) to a brand of local

9

2006 5 SA 10 (SCA).

10

Supra.

11

‘‘Retreating from the FNB Arbitrariness Test already? Mkontwana v Nelson Mandela Metropolitan

Municipality; Bissett v Buffalo City Municipality; Transfer Rights Action Campaign v MEC for Local

Government and Housing, Gauteng (CC)’’ 2005 SALJ 75.

12

Supra.

13

2002 7 BCLR 702 (2002 4 SA 768) (CC).

14

Supra.

15

Van der Walt 2005 SALJ 75.

16

Cf the preamble.

506STELL LR 2006 3

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