Mkontwana v Nelson Mandela Metropolitan Municipality and Others; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v MEC for Local Government and Housing, Gauteng and Others

The cases concerned the constitutional validity of legislative provisions that burden owners of immovable property with outstanding municipal service charges incurred by occupiers. Section 118(1) of the Local Government: Municipal Systems Act 32 of 2000 prevents transfer of property unless municipal consumption charges for the preceding two years have been paid. Various applicants, including indigent homeowners, property sellers, and an association of property owners, were required by municipalities to pay substantial arrear water and electricity charges incurred by tenants or previous occupiers in order to obtain clearance certificates necessary for transfer. Conflicting High Court judgments existed on whether section 118(1) amounted to an arbitrary deprivation of property under section 25(1) of the Constitution. Similar provisions in provincial legislation (section 50(1)(a) of a Gauteng Ordinance) were also challenged.

The declaration of constitutional invalidity made by the South Eastern Cape High Court was not confirmed. The appeal by the municipalities succeeded. Section 118(1) of the Municipal Systems Act and section 50(1)(a) of the Gauteng Ordinance were held to be constitutionally valid.

This case is a leading Constitutional Court authority on municipal debt recovery and property rights. It clarified that section 118(1) of the Municipal Systems Act does not constitute an arbitrary deprivation of property and confirmed municipalities’ strong statutory mechanisms for recovering service charges. The judgment balances property rights against the constitutional objective of sustainable local government and remains central to disputes about clearance certificates and historic municipal debt.