On 19 November 2024, the Constitutional Court handed down a judgment which reaffirmed that the making of municipal by-laws are subject to the principle of legality, which requires all exercises of public power to be authorised by the law.    

The matter arose when two Mpumalanga municipalities enacted by-laws that imposed transfer embargoes on properties. These by-laws required property owners to obtain planning certificates before transferring their properties, thereby seeking to ensure compliance with municipal planning and building regulation requirements. This led to various property owners challenging the by-laws as unconstitutional and invalid.    

The court explained that local government is an entrenched sphere of government with legislative powers derived directly from the Constitution. These powers include the making of municipal by-laws for the effective administration of matters that fall within the prescribed functions of local government, as well as the exercise of any power reasonably necessary to perform those functions effectively.   

Despite these constitutionally entrenched powers and functions, the court emphasised that the municipalities could not have validly enacted the by-laws in question without legal authority. The transfer embargoes had the effect of purporting to regulate deeds registration and property transfers, which are matters that fall within the exclusive competence of national government.   

The by-laws accordingly encroached impermissibly on the functions of national government. Applying the principle of legality, the court ruled that the municipalities could not seek to enforce other validly made by-laws by enacting these by-laws which fell beyond the bounds of their legal authority. 

The court therefore declared the by-laws unconstitutional and invalid, and ordered the municipalities to pay the property owners’ costs.   

The case is Govan Mbeki Local Municipality v Glencore Operations South Africa (Pty) Ltd and Others; Emalahleni Local Municipality v Glencore Operations South Africa (Pty) Ltd and Others [2024] ZACC 25.