The rights of municipalities under section 118 of the Local Government: Municipal Systems Act in the case of land expropriation
Author: Chantelle Gladwin-Wood & Reghard Brits
Affiliations: Partner, Schindlers Attorneys; LLD candidate, Department of Mercantile Law, University of Pretoria; Associate Professor, Department of Mercantile Law, University of Pretoria
Source: South African Law Journal, Volume 139 Issue 2, p. 340-364
This article analyses the impact of s 118 of the Local Government: Municipal Systems Act 32 of 2000 on the rights of a municipality when land in its jurisdiction is expropriated. First, the municipality’s right under s 118(1) to embargo the transfer of a property, until it has been paid all amounts owing for the two years prior to transfer, might be undermined by a literal interpretation of the provisions of the Expropriation Act 63 of 1975 in so far as the Act provides that the expropriating authority ‘may’ (not must) pay the amounts due to the municipality concerned. We argue that a broader and more purposeful interpretation of not only the Expropriation Act but also the Expropriation Bill B23-2020 ought to be adopted, in order to assist municipalities in collecting debts owed to them. Secondly, we argue that a municipality’s security right under s 118(3) constitutes an unregistered right in land and, although the right is not protected under the current Expropriation Act, it will be protected if the provisions of the Expropriation Bill come into force, with the result that even if nil compensation is payable to the expropriated owner, the expropriating authority ought to compensate the municipality.