South Africa’s constitutional era ushered in a fundamental change in the legislative powers vested in the three spheres of government, namely national, provincial and local or municipal level. Under the Constitution, each sphere has the power to legislate its functional areas in accordance with the scheme imposed by the relevant provisions of the Constitution.
In a majority judgment in the Glencore Operations case (see below), handed down on 19 November 2024, the Constitutional Court held that there is no constitutional or legislative source for municipalities to make laws imposing transfer embargoes in respect of land as enforcement mechanisms for their town planning schemes and building approval matters. The two municipalities in question passed by-laws in 2016 that sought to use land transfer embargoes to enforce compliance with municipal planning, land use and building regulation requirements, by requiring all property owners who want to apply to the Registrar of Deeds for a transfer of their land, first to obtain a municipal compliance certificate. The certificate would confirm that all special planning, land use management and building regulation requirements and payments pertaining to that land had been complied with.
The court held that the impugned by-laws were unconstitutional because they legislate on matters that fall outside the scope of powers assigned to local government in terms of s56 read with Part B of Schedule 4 and Part B of Schedule 5 of the Constitution. That section and those Schedules set out the extent of the legislative authority of municipalities. The land owner applicants (various Glencore companies) therefore succeeded on the basis of what the court termed its legality challenge.
It found that the constrained by-law making power vested by the Constitution in municipalities differs materially from that vested in the legislative powers in Parliament at national level and the provincial legislatures. Those bodies have unqualified legislative power within their functional areas of competence, whereas original local government legislative power is limited to the making of laws for the effective exercise of local government executive power over those matters assigned to it by the Constitution.