Constitutional turf wars

Private Property South Africa
Cathy Nolan

Property developers need and want to be able to walk into a town planning department,

  • submit their applications, pay their fee and leave in the secure knowledge*

that the matter has been left in competent hands.

By 1995 everyone knew that South Africa was getting a shiny new Constitution. The broad principles had been agreed by all parties to CODESA and land was to be shared by all. But the devil is in the details. Section 156(1) of the Constitution reserves certain powers for municipalities; powers that provincial governments and central government have to respect and not appropriate.

The transitional period between 1994 and 1996, when the final Constitution was adopted, saw many Acts being passed as an interim measure in anticipation of the Constitution. One of these was the Development Facilitation Act (DFA), which was supposed to be a temporary measure to deal with the vagaries of interim land management and spatial planning. And that is where the municipal planning’s proverbial paw-paw hit the

fan. The DFA created entities such as Development Tribunals and Designated Officers at provincial level, which essentially usurped the role of municipalities in, among other things, spatial planning.

Municipal abilities are key

Bear in mind that the abilities of municipalities to deal with land development range from the sublime to the ridiculous. While the larger centres like Johannesburg Metropolitan Municipality in Gauteng and eThekwini in KwaZulu-Natal had entire departments with expert staff dedicated to land development, other smaller municipalities barely grasped the meaning of spatial development and zoning. In a nutshell, the creation of planning bodies by the DFA was regarded by larger municipalities as infringing on their rights; smaller municipalities in fact needed and wanted the assistance of Development Tribunals and Designated Officers, whether at a provincial level or otherwise.

Court battle

After a convoluted, lengthy battle through the High Court, Supreme Court of Appeal and eventually the Constitutional Court, the City of Johannesburg Metro Municipality and the eThekwini Municipality reclaimed their constitutional turf by having Chapters V and VI of the DFA declared unconstitutional and invalid. All very well for them, with their competent planning abilities, but not that great for the average rural municipality.

However, despite declaring part of the DFA unconstitutional, the Constitutional Court was astute enough to:

  • suspend the DFA invalidity decision for two years until 18 June 2012, and make various other exceptions that permitted the Development Tribunals to continue hearing matters involving land usage in the meanwhile;

  • give central government and the provinces time to rectify the “broken” parts of the DFA or to substitute it with alternative, valid legislation that doesn’t infringe on the constitutional right of municipalities to decide on their own land development issues.

The burning question is: what happens after 18 June 2012?

Central government, provinces and municipalities have had two years in which to regulate power sharing with regard to land development and use, and many municipalities have reached agreement on the division of powers between themselves and their provincial counterparts: others have not.

Developers have an interest

Private sector players like developers, the South African Association of Consulting Professional Planners and the South African Property Owners’ Association have also been active participants in the proceedings because they have most to both gain and lose in any outcome. What the DFA did, was to provide developers with an alternative to approaching municipalities for permission to do various things regarding land use and zoning.

By decree, Development Tribunals had to be faster, more efficient and more expert than their municipal counterparts, where the bar had not been set quite as high by legislation. In short, developers were getting quicker and better results by going to the Tribunals instead of to the municipality.

Obviously, developers in certain areas fear having to join the back of the long municipal queue if they are no longer able to approach Tribunals after 18 June 2012. Therefore, they have suggested a compromise: give everyone time to get their land planning house in order. The proposal is to approach the Constitutional Court to seek an extension of the DFA methods to some future, unknown date, thus buying a bit of breathing space to allow municipalities to get their land planning expertise up to speed. However, it is uncertain how successful they will be with this application and any success will probably be dependent on the degree of opposition put up by municipalities that feel astute enough to deal with their own planning issues.

Out with the DFA in with the new

There is a plethora of pending legislation with acronyms like “LUMB” and “SPLUMB” where the call is out for public comment on how to fix or replace the DFA. Current proposals include establishing a tribunal with similar powers to those granted by the DFA being established by the various provinces where the municipality concerned requests the Provincial Premier to establish such a tribunal and for this tribunal to be created automatically if the municipality fails to establish its own development body within a prescribed time.

The DFA was always intended to be temporary and has to be replaced – there is little dispute about that. Top municipalities have asserted their constitutional right to control their own development without provincial interference. The real question is whether all, or even the majority of, municipalities without this expertise can live up to the corresponding duty and provide developers with the services necessary to process land use questions in a timely manner sufficient to sustain economic growth.

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