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It did so “to the extent only that the security provision ‘a charge upon the property’ survives transfer of ownership into the name of a new or subsequent owner who is not a debtor of the municipality with regard to municipal debts incurred prior to such transfer”. JUDGMENT CAMERON J (Mogoeng CJ, Nkabinde ADCJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J concurring) Introduction This provides that “an amount due for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties is a charge upon the property in connection with which the amount is owing and enjoys preference over any mortgage bond registered against the property”.The principal dispute was the municipalities’ claim that they had not invoked section 118(3) when they declined to conclude service agreements, but had relied on their by-laws or debt collection policies.For both these reasons, it was argued that the constitutional challenge was premature.
Background and ripeness So did the Minister of Cooperative Governance and Traditional Affairs (Minister).
Both TUHF and BASA associated themselves with the applicants in challenging the meaning the municipalities ascribed to section 118(3).
They contended for either confirmation of the order of invalidity or an interpretation that assuaged their constitutional objections to it.
Before deciding whether section 118(3) unjustifiably limits constitutional rights, we must determine what it means.
And to find out we have to journey into the origins of the phrase “charge upon the property” in South African statute law, for that history casts light on the provision’s meaning.The JAA focused on a conveyancer’s duties and ethical position should this Court hold that the section 118(3) right survives transfer.