Spluma mpumalanga planning

CIRCULAR NO. 04 OF 2025

TO: MUNICIPAL MANAGERS, MPUMALANGA PROVINCE
MUNICIPAL TOWN PLANNERS, MPUMALANGA PROVINCE
MUNICIPAL LEGAL SERVICES, MPUMALANGA PROVINCE

FROM: Department of Co-operative Governance and Traditional Affairs Mpumalanga Province
Samora Machel Building, Ext 2, No 7 Government Boulevard
Riverside Park, Mbombela, 1200, Mpumalanga Province

SUBJECT NOTICE: Constitutional Court Judgment Regarding Lodgement of Spluma By-Law Certificates for Registration of Deeds

  1. This Notice serves to inform you that on 19 November 2024, the Constitutional Court handed down judgment in the matter of 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 26.
  2. The impact of the judgment is, amongst others, as follows:
    • Section 76 of the Govan Mbeki Spatial Planning and Land Use Management By-Law, 2016, is declared to be inconsistent with the Constitution and invalid.
    • Section 86 of the Emalahleni Municipal By-Law on Spatial Planning and Land Use Management, 2016, is declared to be inconsistent with the Constitution and invalid.
    • The judgment of the Supreme Court of Appeal is upheld confirming that Municipalities may not create By-laws that will infringe on the functioning of national and provincial spheres of government.
  3. It is against this background that you are hereby requested to note the following:
    • Section 32(1) of the Spatial Planning and Land Use Management Act, 2013 (Act No. 16 of 2013) (SPLUMA) stipulates that “A municipality may pass by-laws aimed at enforcing its land use scheme”. Hence, Municipalities are empowered to establish By-Laws for the enforcement of their land use schemes. However, section 156(4) of the Constitution of the Republic of South Africa, 1996, provides that “The national government and provincial government must assign to a municipality, by agreement and subject to any conditions, the administration of a matter listed in Part A of Schedule 4 or Schedule 5 which necessarily relates to local government, if –
      • (a) that matter would be effectively administered locally; and
      • (b) the Municipality has the capacity to administer it”.
    • Emanating from the above-mentioned provisions, it is clear that any authority given to the Municipalities for By-Law creation through National or Provincial legislation generally does not apply beyond local government issues, unless explicitly mentioned otherwise in enabling legislation. Hence, the Constitutional Court found sections 76 of the Govan Mbeki By-Laws and 86 of the Emalahleni By-Laws, respectively, are inconsistent with the Constitution, due to the fact that the Municipalities do not have authority to enact By-Laws that conflict with National and Provincial legislation.
    • Section 118(4) of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000) states that “A registrar of deeds or other registration officer of immovable property may not register the transfer of property except on production of that registration officer of a prescribed certificate –
      • (a) issued by the municipality in which that property is situated; and
      • (b) which certifies that all amounts due in connection with that property for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties during the two years preceding the date of application for the certificate have been fully paid”.
  4. Based on section 118(1) of the Systems Act as articulated above, it is clear that the Municipalities may continue issuing certificates in terms of section 118(1) of the Systems Act, due to the fact that section 118 of the Systems Act aligns with the above-mentioned section 156(4) of the Constitution.
  5. Section 53 of SPLUMA provides that “The registration of any property resulting from land development application may not be performed unless the municipality certifies that all the requirements and conditions for the approval have been complied with”. Attention is drawn to the fact that section 1 of SPLUMA defines “land development” as “the erection of a building or structure on land, or the change of use of land, including township establishment, the subdivision or consolidation of land or any deviation from the land use or users permitted in terms of an applicable land use scheme”.
  6. Subsequent to the above-mentioned, it is clear that the judgment does not set aside the entire By-laws and the Municipalities may continue issuing certificates that are for land development purposes. Hence, section 74 of the Govan Mbeki By-Law and section 84 of the Emalahleni By-Law, respectively, remain valid, due to the fact these By-Laws clearly align with the By-Law making authority granted in terms of section 32(1) of SPLUMA when considered alongside section 53 of SPLUMA.
  7. It is important to note that section 2(6) of the Building Standard Act No. 103 (Act No. 103 of 1997) (Building Act) stipulates that “Subject to the provisions of subsection (7), the owner of any building which is or is to be erected on mining property and which is or is to be used exclusively for the operation of a mine or any works or machinery, as defined in the Mines and Works Act, 1956 (Act 27 of 1956), and which is in terms of section 2 of that Act subject to the supervision of the Chief Inspector as contemplated in the Mine Health and Safety Act, 1996, shall be exempted from the provisions of this Act”.
  8. Therefore, it is clear that the afore-said section 2(6) of the Building Act creates a limitation to section 53 of SPLUMA.
  9. Subsequently, Municipalities may continue with the implementation of their SPLUMA By-Laws, except for similar sections affected by the Constitutional Court’s judgment, as those sections are inconsistent with the Constitution and invalid. However, the judgment does not apply retrospectively.
  10. Based on the above-mentioned, all Municipalities are therefore expected to review their By-Laws in line with the Constitutional Court’s judgment. The Department therefore requests Municipalities to submit Action Plans to the Department for the review of their SPLUMA By-Laws by 30 January 2025.

Regards,
Mr S Ngubane
HEAD: CO-OPERATIVE GOVERNANCE, HUMAN SETTLEMENTS AND TRADITIONAL AFFAIRS

Our Ref: 104/GLENCORE
Enquiries: Mr NJ Simelane
Tel: 013 766 6085

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