Glencore secures landmark victory in the Constitutional Court

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has secured a landmark victory in the constitutional court in its disputes with the government biggie and Himalayan municipalities over contentious property transfer bylaws. This decision not only nullifies the bylaws and laws in question but also provides clarity on the limits of local government powers in regulating property transactions.

Now, property lawyer and director at STBB attorneys, Hope Sateche joins us on the line to for more legal insights on this. Hope a very good evening and welcome to Power Business.

I guess, hope, let's start at the beginning then. The origins of this dispute between Glencore and the municipalities of Gov. Mbeki and Imalatleini, what were the key provisions in of those bylaws enacted by these municipalities that led to the conflict? Sure. So, it's Glencore and three other mining companies, right? So, they have planned to transfer or take transfer of set lands within the area of the municipality, considering the government and Imalatleini.

So, the biggest contention was that, you know, the bylaws would effectively delay the transfers. So, one of the requirements essentially was that the owners need to produce tickets so that in turn, then this policy can produce certificates before transfer takes place. So, the biggest issue, I guess, the biggest, I mean, is that some of the transfer of these land parcels

the requirements but were not applicable to mining companies. For example, it's to get occupancy was not required. I think of course the planning schemes were accepted to mine companies. So that provided a headache for land code that effectively the municipality would not be able to issue the certificate simply because they will not be able to meet that requirement, the bottles. So that was that one as

other aspects that, you know, the municipality issued a bilateral effect to manage or enforce their land scheme requirements within the area.

of a public concern. I hope, I guess we're going to try to just pick up that conversation from, you know, where you, because it got a bit shaky when you were talking about the provisions around the municipalities and the mining companies feeling that these bylaws didn't really sort of speak to them. Yeah. Yeah. So so in our thing was that

you know, the particular land scheme in relation to the properties that they owned were not applicable when they bought the property. So what that effectively means is that the bylaws that the municipalities put in place, they couldn't be applicable to them or the current comply. And therefore, their municipality will not be able to issue the certificates. All right. And then, you know, moving on then, how did the municipalities in justify their transfer embargoes on Glenn course properties?

Yeah, so it's quite interesting. Initially, in the high courts, what the argument was, what the argument was that some experiments and then these management act, they can, there's a regulations or the provisions that says that registration as a result of land development for new developments will not be passed without the municipalities issuing certificates.

So that was the broad, you know, relation to new development. So they use that as an excuse. On the Supreme Court of Appeal and the constitution, they then looked to the constitution. That speaks to municipalities making violent in relation to management planning. And as you say, you know, the constitutional court ruled in that municipalities lacked in the legislative authority to impose property transfer embargoes. What was the basis in for this conclusion?

So the municipalities took a generous view to say that first municipalities are able to pass by those facing to municipal planning. They then can use that as an incidental for the purposes of an embargo. But the constitutional court said, look, use incidental powers is not permissible. It's particularly legislation is not specific in terms of what you do.

It belongs very short, but they said they're not empowered because the constitution does not empower them to deal with the competencies that are at an operational level and transfers the national competency and not a local municipality competency. I think, you know, further unpack then, you know, the constitutional provisions or principles that were breached in this case. Yeah. So essentially it's both down to our lawfulness in relation to provincial government

and local government to pass laws or by laws only if they're empowered by the Constitution. So if the Constitution doesn't empower them to pass laws, then any laws that they pass that are not within the confines of the Constitution are lawful. So it speaks to having the legal authority or the constitutional authority to pass laws to that effect.

All right. And then hope, you know, what precedent then does this ruling set for other municipalities with similar bylaws? Yeah, so if other municipalities who look at this constitutional ruling to the effect that other bylaws want to put in place, they know certain that they cannot put law that do not allow them to pass an embargo. So interesting enough, I suppose in contrast, you know, historically municipalities

or rather the legislation, the Municipal Assistance Act that allows an embargo, so municipalities have to issue what we call a rate-sharing certificate before transfer takes place. But I suppose the difference is that there is a legislation to be said that the municipalities are allowed to do that. So municipalities now know their limits, the limits of their powers in relation to embargo to say that they can only do that only when they authorize.

And we now know for a fact that municipal planning is not a competency that they can use for the purpose of an embargo. All right. I think on that note, we'll leave it there. Thank you so much. I hope your phone line at least towards the end of the conversation, managing to hold up there. So that's fantastic. But thank you, really, for your insights this evening. Thank you for having me.

Fantastic, that was Hope Satieche, a property lawyer and director at STBB Attorneys, taking us through Glencore, securing that landmark victory in the Constitutional Court.