Constitutional Court places primary responsibility back with municipalities {writer: Leon Alberts}

In a judgment made on 18 June this year, just short of a decade and a half after it was passed by parliament, the Constitutional Court ruled that certain sections of the Development Facilitation Act (DFA) of 1995 are unconstitutional.

The ruling does not only reaffirm local government’s primary jurisdiction over urban planning and zoning, but should also alleviate the pressure that has been created via provincial Development Tribunals by private sector developers on agriculture to be released for
residential development.

The DFA was one of the first landmark – and perhaps to date the most important – pieces of legislation introduced after the first fully democratic elections of 1994 to redress the race-based special development in particularly urban areas of the previous apartheid system. It specifically aimed at fast-tracking the development of residential stock for low-income communities.

Original intentions

In an article at the time, in the second volume of the journal Urban Forum, Erica Emdon wrote: “The heritage of apartheid lives on in planning, township establishment and registration of title legislation...

“The Development Facilitation Act, published in October 1994, is the first coherent attempt to bring about uniformity in the township establishment, land registration and planning systems, with special focus being placed on low-income development. It does not repeal any existing legislation in the urban areas, but allows developers – whether the state, private sector or communities – a choice.

“Developers can choose between the relevant Provincial Ordinance, The Less Formal Townships Establishment Act or the DFA when they proceed with a particular development in an urban area,” she added.

Route of choice

The DFA almost immediately became the route of choice for developers for a number of reasons.

For one, for the sake of creating a fast-tracking mechanism for low-cost residential development and small-scale farming, the Tribunals were given the right to ostensible power to suspend certain Acts – and did so.

Primarily, the suspension of the Subdivision of Agricultural Land Act, No. 70 of 1970 was much sought after by developers, otherwise the approval of the Department of Agriculture was required for the subdivision of “agricultural land” to which many developments were related.

The department is notorious for refusing approval as a matter of principle, being an extremely jealous guardian of agricultural resources.

There is a bit of history to the dispute that finally ended in the Constitutional Court and revolved around Chapters V an VI of the DFA. These chapters conferred authority upon Provincial Development Tribunals similar to the authority held by local authorities under various
Provincial Ordinances.

Ostensibly, the Act allowed for two separate government bodies to exercise concurrent authority, and for the possibility of conflicting decisions – which was ultimately a recipe for chaos.

The dispute between the City of Johannesburg Metro Municipality (CJMM) and the Gauteng Development Tribunal, as to who has the authority to regulate and control land use, proceeded in the Constitutional Court after – in September last year – the Court of Appeal found Chapters V and VI of the Development Facilitation Act, which deal with land development usage, unconstitutional.

Although authority over land use usually lies with municipalities, the Development Tribunal could make decisions in terms of the DFA.

The Tribunal had often approved property developers’ applications for development rights. Because of that ruling, the municipality did not recognise decisions made by the Development Tribunal. The case was then referred to the Constitutional Court after having been heard in both the High Court and the Court of Appeal.

Tsakane Shilubane, manager for legal services at the South African Property Owners Association (Sapoa), at the time said the issue had devolved into a conflict between two legs of government as to who has the authority to make decisions on land development.

Consequences of the judgment

The decision imposes widespread consequences on those applicants waiting in line for a Tribunal decision on land use in their area, and may lead to the unification of land-use planning throughout the country.

Under the Town Planning and Townships Ordinance, the municipality is assigned the authority to regulate the use of land in the municipal area. This is accomplished through the introduction of town planning schemes for any land in its area.

Furthermore, legislation governing local government, namely the Municipalities Systems Act, requires a municipality to adopt a plan for the development of the municipality, commonly known as an Integrated Development Plan (IDP). The Systems Act requires finely co-ordinated action and synergy among the many functionaries of the municipality.

Conflict arises when another body, such as the Tribunal – with similar powers and authority – elicits a different and inconsistent view to that of
the municipality.

Chapters V & VI of the Development Act confer a similar authority upon Tribunals, allowing them to approve land-use applications that may conflict with those plans of a municipality, and override the control exercised by a municipality over the land use in its municipal area.

This may be seen, for example, when an application is made to establish land use that falls outside the IDP adopted by a municipality. The application would be inconsistent with the town planning scheme and may result in its refusal.

The applicant could then simply repeat the application to the relevant Tribunal, which may approve the application – thereby overriding the municipality’s authority over the use of land.

The Johannesburg Municipality argued that the powers conferred upon Tribunals under the Development Act are reserved for municipalities by the Constitution.

This led to the investigation by the court into the nature of those powers conferred directly upon the lower tiers of government by the Constitution.

In terms of Schedules 4 and 5 of the Constitution, the various tiers of government may legislate on matters within certain functional areas. Schedule 4 lists the concurrent legislative authority of the national and provincial governments, and read with section 156(1) lists functional areas over which exclusive authority is reserved for municipalities.

The question facing the court was whether the authority exercised by municipalities under the Ordinance falls within one of the listed functional areas reserved specifically for municipalities. The relevant function under examination was “Municipal Planning”, and the court had to consider whether such an area includes the functions performed by municipalities in the regulation of land use.

The court decided that activities such as the introduction, administration and enforcement of town planning schemes and the determination of whether land should or should not used for the establishment of townships fits into the definition of “Municipal Planning”.

The Tribunal argued that those functions fell within the concurrent national and provincial legislative jurisdiction, namely “Urban Development”. This argument was dismissed on the basis that it uses too broad a starting point, leaving too few functions to fall within that which would become an artificially narrow interpretation of the words “Municipal Planning”.

Such an interpretation would stunt any intention of the Constitution to devolve powers on local government. Similarly, it would create a fictitious sense of authority for the municipalities, allowing them to prepare plans, but leaving no powers by which to implement them.

The court analysed the concept of “planning” and reiterated the importance of understanding the meaning of a word in its particular context: Within the context of municipal activities, the meaning of “planning” encompasses “the control and regulation of land use”, falling within the exclusive domain of “municipal planning” to be exercised solely by municipalities.

Such an interpretation would authorise the municipalities to micro-manage the use of land within the bigger picture of “Urban Development”.

Chapters V & VI of the Development Act allows provincial bodies to take on the function of municipal planning, a function thich the Constitution does not allow them to perform. The Chapters are therefore not in line with the Constitution, and were declared invalid.

However, the Court recognised the argument by the Sapoa and the planning community that should the DFA be completely struck off the table, it would create a void in areas where there is no other planning tool available.

It is mostly in the northern provinces of the old Transvaal, particularly in areas of the former homelands and so-called self-governing areas, where Ordinance 15 of 1986 never applied, where otherwise no alternative process will exist.

Furthermore, many rural municipalities simply have no capacity to apply the procedures of the Ordinance and they in fact welcome the use of the DFA for development of land.

In view of this evidence, the Court then suspended the order of invalidity for 24 months, to allow Parliament to rectify the defects in the Act, or to pass new legislation.

The situation as it stands now with the DFA is as follows:

• All DFA applications that were duly submitted by 18 June 2010 will proceed to conclusion by the Tribunals;

• In the areas of jurisdiction of CJMM and that of eThekwini Municipality (Greater Durban), the Tribunals are prohibited to accept new applications after 18 June 2010, since these authorities have proved they are capable of exercising their constitutional powers;

• Elsewhere, new DFA application may still be submitted to Tribunals and be heard and finalised, on proviso that the Tribunals, in dealing with applications, adhere to municipalities’ local policies and spatial development framework proposals; and

• Most provinces have since made progress with alternative legislation, in view of the stated purpose of the DFA that it was merely an interim measure.
In this regard, Gauteng will soon promulgate the Gauteng Development Planning Act, while KwaZulu-Natal has already adopted a similar Act. North West Province has drafted an Act, which is currently being considered for approval by the Legislature. When these alternative measures are being adopted, the use of the DFA will be phased out and will finally terminate on 18 June 2012.

Shorn of the ability to suspend Act 70 of 1970, which protects agricultural land, there is no doubt that the DFA process will rapidly lose steam and eventually all momentum. It is quite conceivable that a number of such applications with regard to agricultural land, which are “in the pipeline” will be withdrawn by developers who will see no purpose in pursuing them.

There can be no doubt that the DFA fulfilled an important bridging function to move local government’s special planning away from the discrepancies that were left by the apartheid system. It could be argued that part of the mission has been fulfilled.

It is clear that, for one, there would simply not be enough expert and skilled manpower available to every municipality in the country to expect that they each could cater for these functions.

There would likely always be a need for a body or bodies such as the erstwhile Peri-Urban Board in the old Transvaal or the District Councils in the Cape Province to cater for outlying areas and/or smaller municipalities.

Development Tribunals could well remain in place with a new mandate and minus the power to override legislation outside of the city and regional planning discipline.

With environmental concerns and the need to ensure food security remains top priority globally, it is almost unthinkable that a regional or provincial body could make decisions of vital national importance – as which happens to agricultural land – without wider input.