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Judgement was recently handed[1] down in the Supreme Court of Appeal case of the City of Johannesburg Metropolitan Municipality vs. the Gauteng Development Tribunal and Others.
The case principally revolved around the constitutionality of Chapters V and VI of the Development Facilitation Act 67 of 1995 ("DFA"). These Chapters respectively provide for land development procedures excluding and including the development of small scale farming and prescribe the process to be followed when submitting a land development application.
The City of Johannesburg Metropolitan Municipality ("CoJ") appealed a decision handed down in the South Gauteng High Court declaring these chapters to be constitutionally valid. The CoJ provided illustrative examples of conflicting decisions made by development tribunals and municipalities within its jurisdiction, which included for instance, approval by the development tribunal of township applications falling outside the "urban development boundary", delineated by the municipality to determine which areas may be used for urban development and which areas may not.
In short, the issues raised and addressed in this case are as follows:
- Provincial townships and town planning ordinances[2] confer powers on local authorities to regulate land use within their particular municipal jurisdictional areas whilst Chapters V and VI of the DFA confer equivalent powers upon provincial development tribunals possibly culminating in a conflict between these different levels of government.
- The manner in which land use is regulated under the provincial ordinances and related legislation and the parallel powers given to provincial development tribunals was discussed. To this end, it was stated that the principal tool for local authorities to regulate land use is through the introduction and enforcement of a town planning scheme to include conditions of establishment. Therefore, applications for township establishment within the municipal area of an authorised municipality are submitted to the municipality who has the authority to approve or refuse them and impose conditions.
- Reference was made to the Local Government: Municipal Systems Act 32 of 2000 ("MSA") where it is stated that a municipal council is obliged to adopt an integrated development plan ("IDP") which includes a spatial development framework stipulating the provision of basic guidelines for a land use management system for the municipality. The IDP is the principle strategic planning instrument which guides and informs all planning and development and decisions in this regard, in the municipality. once adopted by the municipality, an IDP is binding to the extent that it is not inconsistent with national or provincial legislation.
- Chapters V and VI create and confer authority upon tribunals (on a provincial level) to approve land use applications that might be in conflict with the municipality's plans (at a local level). The Court considered the powers and competencies conferred upon provincial and local government in terms of the Constitution[3] and assessed the functional areas listed in Schedule 4 and 5 thereof. It further considered whether the authority that a municipality exercises under a town planning ordinance falls within one of these functional areas, specifically "municipal planning". If "municipal planning" includes the functions performed by municipalities in the regulation of land use as previously addressed in the judgement, then such matters are reserved to the executive authority and administration of municipalities and may not be assigned by legislation to another body (i.e. a development tribunal). It concluded that "municipal planning" includes the various functions assigned to municipalities under the relevant ordinances and may not be assigned to other bodies by legislation.
In light of the findings on the issues raised, the court partly upheld the appeal and declared Chapters V and VI of the DFA to be invalid. The declaration of invalidity is however suspended for 18 months from the date of the order subject to two provisos, namely that no development tribunal established in terms of the DFA may consider any application for grant or alteration of land use rights in a municipal area and may not, on its own initiative amend any measure regulating or controlling land use within a municipal area. Being a declaration of invalidity, the CoJ was further ordered to lodge the record with the Constitutional Court for confirmation thereof.
Tandina Charters
Associate
For the complete judgment, please select this link.
[1] 22 September 2009
[2] Four provincial ordinances are currently in force for the previous provinces of the Transvaal, Orange Free State, Natal and the Cape
[3] Act 108 of 1996
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