Posted on September 04, 2017
The Faculty of Law at the University of Pretoria (UP) is proud to announce that the Constitutional Court in Jordaan v City of Tshwane  ZACC 31 (29 August 2017) recently referred to the published work of Dr Reghard Brits, a senior lecturer in the Department of Mercantile Law at UP.
The case concerned the interpretation of section 118(3) of the Local Government: Municipal Systems Act 32 of 2000, which contains a mechanism to secure the payment of historical debts owed by property owners to municipalities. Over the last number of years, there has been a controversy about whether this security right remains enforceable against the relevant property even after it has been transferred to a new owner, thus rendering the latter liable for the debts of his or her predecessor in title. This caused tremendous uncertainty and frustration in practice.
Dr Brits analysed this issue in three of his publications, namely (2014) 25 Stell LR 536, Real Security Law (Juta 2016) and (2017) 28 Stell LR 47. In these publications, Dr Brits inter alia argued for an interpretation of section 118(3) that complies with the principles of the property clause (section 25) of the South African Constitution. In summary, he argued that the section can and should be interpreted to mean that the municipality's security right does not remain a burden on the land upon transfer, since the alternative could lead to an arbitrary deprivation of property. The Constitutional Court adopted a similar interpretation and thus substantially endorsed Dr Brits's arguments.
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