SPLUMA by-laws found to be invalid
In 2021, the Mpumalanga High Court in Middelburg found the SPLUMA by-laws in the Middelburg, Emalahleni and Kinross Municipalities to be unconstitutional and in contradiction with Section 118 of the Municipal Systems Act (relating to Clearance Applications).
The court delivered this finding on the basis that these by-laws constituted an arbitrary deprivation of property as envisaged in s 25(1) of the Constitution. It also held that the by-laws were unconstitutional and invalid because they were not authorised by s 156 read with Part B of Schedule 4 of the Constitution and conflicted with s 118 of the Municipal Systems Act.
The suspension of the orders
When the Mpumalanga High Court gave its decision in 2021, it suspended the above orders of unconstitutionality for six months to give the respective municipalities time to bring their by-laws in line with national legislation. However, on 17 June 2022, the Supreme Court of Appeal not only upheld the High Court’s decision regarding the unconstitutionality of the by-laws, it also overturned the suspension, with the judge stating that they could “see no reason to keep the invalid by-laws in operation”.
Due to the initial suspension, the Middelburg and Emalahleni Municipalities had continued to implement the SPLUMA by-laws, which required that SPLUMA certificates be issued as a requirement for the transfer of property. However, once the order of the Supreme Court of Appeals was handed down, the Registrar of Deeds could no longer insist that these certificates be issued for transfer to take place.
The matter didn’t end here, however.
The saga continues
On 12 July 2022, the Registrar of Deeds in Mpumalanga issued a notice stating that the Emalahleni Municipality had approached the Constitutional Court on 8 July 2022 for leave to appeal the 2022 Supreme Court of Appeal judgement.
Where does this leave things? For now, the original judgement and the order of the Supreme Court of Appeal are suspended. This means that SPLUMA certificates must once again be lodged with the Registrar of Deeds until the Constitutional Court has heard the appeal and handed down a decision.
Written by Wessel de Kock