28 August 2010 by

The constitutional standing on municipal planning as a function

One of the main aims of the legislature is to limit confusion and create certainty amongst parties to whom legislation applies. In turn, this will limit contentious and litigious issues which could possibly arise.

The process of simplifying complex pieces of legislation and rectifying conflicting provisions in such legislation is an arduous task and cannot take place overnight. One such opportunity to rectify two conflicting pieces of legislation came to the fore in the Supreme Court of Appeal (SCA) decision in the case of City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (2) SA 554 (SCA). The SCA's decision in this case will spark great interest and bring clarity to the mind of developers in South Africa.

The City of Johannesburg Metropolitan Municipality (the Applicant) challenged the constitutionality of the provisions of Chapters V and VI of the Development Facilitation Act 67 of 1995 (the DFA Act).

The Applicant applied to the South Gauteng High Court for an order declaring the allegedly offending legislation to be constitutionally invalid. The Court dismissed the application but granted leave to appeal the decision.

The principle issue with which the SCA was concerned was the constitutionality of chapters V and VI of the DFA Act.

The complaint by the Applicant was directed to those portions of the DFA Act (chapters V and VI) that create and confer authority upon tribunals to approve land use applications that might be in conflict with the authority conferred on the Applicant by the Town-Planning and Townships Ordinance,1986. The Ordinance gives local authorities (municipalities), the authority to regulate land use within their particular municipal areas. The Ordinance authorises a municipality to prepare a town-planning scheme for the land within its municipal area and thereafter, to amend the scheme.

The main challenge experienced by the Applicant and to be resolved by the SCA, was that chapters V and VI of the DFA Act also purport to give development tribunals the authority to change land use rights of land within a municipal area.

The Court, in its judgment, held that the existence of parallel authority in the hands of two separate bodies, with its potential for the two bodies to speak with different voices on the same subject, is disruptive to orderly planning and development within a municipal area.

The Court of Appeal took special notice of the fact that the Ordinance contemplates detailed control and regulation of land use being exercised by a municipality. To introduce into that process of control and regulation a third party with the power to intervene, and impose its own decisions that might be inconsistent with the decisions and objectives of the municipality, is a recipe for chaos.

Furthermore, the SCA in its decision considered the practical implications of declaring decisions already made by development tribunals invalid, and it was factored in, that those previous decisions made by development tribunals are still valid and the decision made by the Court of Appeal does not have retrospective effect. Therefore, the rights granted by a development tribunal before 22 September 2009 will remain valid.

With the above in consideration, the SCA ordered that:

  • Chapters V and VI of the DFA Act are to be declared invalid.
  • This declaration of invalidity is suspended for 18 months from the date of the order (being 22 September 2009), subject to the provisions that:
    • no development tribunal may accept or consider any application for the grant or alteration of land use right in a municipal area; and
    • no development tribunal may on its own initiative amend any measure that regulates or controls land use within a municipal area

Lucia Erasmus, Director, Real Estate
Sayjil Magan, Candidate Attorney, Real Estate

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