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PER: Potchefstroomse Elektroniese Regsblad

versão On-line ISSN 1727-3781

PER vol.15 no.5 Potchefstroom Dez. 2012

 

ARTICLE

 

Planning in all its (dis)guises: spheres of government, functional areas and authority

 

 

J Van Wyk

BBibl (UP), LLB (Unisa), LLM (Wits), LLD (Unisa). Professor, Department of Private Law, University of South Africa. Email: vwykama@unisa.ac.za

 

 


SUMMARY

The Constitution determines that the legislative and executive powers regarding 'regional planning and development', 'urban and rural development', 'provincial planning' and 'municipal planning' are divided among the three spheres of government. Yet the boundaries between these items listed in Schedules 4 and 5 of the Constitution are opaque and their precise content is not always apparent. Overlaps, conflicts and uncertainty may occur.
In a number of landmark decisions the courts have provided content to these different functional areas. Clarity on what 'municipal planning' comprises leads to more certainty on the content of the other planning areas. Draft legislation such as the Spatial Planning and Land Use Management Bill (B14-2012) can also assist in adding substance to a demarcation of these different functional areas. Yet uncertainties still remain, occasioned by constitutional provisions such as sections 100, 139(1) and 155(6)-(7), that permit intervention by national and provincial government in provinces and municipalities respectively, as well as the support and monitoring by provincial government in respect of municipalities.
Few clear solutions are immediately apparent. The role of the constitutional principles of co-operative government where uncertainty and conflict exist is examined, especially where no veto of one sphere over another is possible. Principles of interpretation can also assist in delineating the boundaries of the different functional areas. It seems, however, that the courts will find themselves having to address the remaining inconsistencies.

Keywords: planning law; municipal planning; division of state paves and functions; Spatial Planning and Land Use Management Bill; and cooperative government


 

 

1 Introduction

In a somewhat unusual manner, the South African Constitution provides for three 'distinctive, interdependent and interrelated' 'spheres' of government1 instead of the more conventional 'levels' or 'tiers', where the lower tier is beholden to the higher. Each of these three spheres of government is accorded legislative and executive authority by the Constitution in a manner that requires careful and nuanced interpretation to give effect to the spirit and meaning of the Constitution.

Against the background of the legislative and executive authority of the different spheres of government, this article will attempt to unravel the content of the four functional areas directly relating to planning. These areas, as listed in Schedules 4 and 5 of the Constitution, are 'regional planning and development', 'urban and rural development', 'provincial planning' and 'municipal planning'. As will be shown, the boundaries between the four functional areas are opaque, their precise content is not readily apparent, and overlaps, conflicts and uncertainty may occur. That much is evident from a number of recent judgments of the courts, including the Constitutional Court.

In dealing with the relationship between the spheres of government, three further constitutional matters need to be taken into account. One is the power of the national sphere to intervene by legislation or executive authority in provincial affairs, and the power of a province to intervene where a municipality fails to fulfil an executive obligation.2 The second is the power of provincial government to monitor and support local government.3 The third is contained in chapter 3 of the Constitution, on the principles of cooperative government. These principles clearly go against the notion of hierarchy that characterised the South African constitutional model before 1994. Yet giving practical effect to cooperative government and intergovernmental relations in South Africa is easier said than done, not least because of the allocation of functions to the different spheres by the Constitution itself.

 

2 Legislative and executive authority of the different spheres of government

The legislative and executive authority of the different spheres of government is determined according to the functional areas set out in Schedules 4 and 5 of the Constitution. Legislative competence entails the power to enact legal rules while executive competence entails the power to give effect to legal rules.4

In essence, national legislative authority is vested in Parliament and confers on the National Assembly the power to amend the Constitution, to assign legislative power to the other spheres of government, and to pass legislation on any matter, including a matter within a functional area listed in Schedule 4, entitled 'Functional areas of concurrent national and provincial legislative competence', but excluding a matter within a functional area listed in Schedule 5, called 'Functional areas of exclusive provincial legislative competence'.5 The exclusion is subject to the provision that Parliament may pass legislation with regard to a matter falling within a functional area in Schedule 5 when it is necessary to maintain national security, economic unity or national standards, to establish minimum standards required for the rendering of services, or to prevent unreasonable action taken by a province that is prejudicial to the interests of another province or to the country as a whole.6

The executive competence of the national sphere of government is vested in the president.7 The president exercises the executive authority together with the other members of cabinet. National executive authority is exercised by preparing, initiating and implementing national legislation, developing and implementing policy, coordinating the functions of state departments and administrations, and preparing and initiating legislation.8

The Constitution provides that provincial legislatures may adopt a provincial constitution, pass legislation on matters listed in Schedules 4 and 5, and assign legislative power to municipal councils.9 Provinces have exclusive legislative competence over the matters listed in Schedule 5.10 'Provincial planning' is a functional area of exclusive provincial legislative competence as set out in Schedule 5 Part A.11 A provincial legislature has concurrent legislative competence with Parliament over matters listed in Schedule 4,12 and it may make laws reasonably necessary for or incidental to the effective exercise of any matter listed in Schedule 4.13 Schedule 4 matters include 'regional planning and development' and 'urban and rural development'.

Provincial executive power is exercised by preparing, initiating and implementing provincial legislation in the province, implementing national legislation within the functional areas listed in Schedules 4 and 5 and legislation outside those functional areas that has been assigned to the province, developing and implementing provincial policy, co-ordinating the functions of the provincial administration and its departments,14 and performing any other function assigned to the provincial executive.15

Certain matters relating to planning are shared by the national and provincial spheres. In the context of planning, 'regional planning and development' and 'urban planning and development' are listed as areas of concurrent legislative competence in Schedule 4 Part A. 'Municipal planning' is listed in Schedule 4 Part B. Both Parliament and provincial legislatures can, therefore, pass legislation on all of these functional areas.

A municipality has executive authority in respect of, and has the right to administer, the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5, and any other matter assigned to it by national or provincial legislation.16 It may make and administer by-laws for the effective administration of the matters it has the right to administer.17

Jafta J reiterates that the Constitution allocates 'regional planning and development' and 'rural and urban development' concurrently to the national and provincial spheres, 'provincial planning' exclusively to the provincial sphere and 'municipal planning' to the local sphere, and that these functional areas are not contained in hermetically sealed compartments but that they nevertheless remain distinct from one another.18 This is confusing, because the contents of these functional areas overlap19 and there is uncertainty regarding the responsibility for and precise contents of the functional areas relating to planning. This is evidenced by a number of interesting and important court decisions dealing with the ambit of the functional areas that relate to planning. The first was the 2002 ruling in Western Cape Provincial Government: In re DVB Behuising (Pty) Ltd v North West Provincial Government.20 However, since the provisions of the interim Constitution were applicable then and they differ from related provisions in the 1996 Constitution this case will not be discussed further.21 In 2009 an important minority judgment in Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd22 was handed down by Yacoob J. It dealt with the applicability of the Subdivision of Agricultural Land Act 70 of 1970 (SALA). A groundbreaking decision of the CC was Johannesburg Metropolitan Municipality v Gauteng Development Tribunal,23 a case dealing with the constitutionality of chapters V and VI of the Development Facilitation Act 67 of 1995 (the DFA). Another equally groundbreaking case was Maccsand (Pty) Ltd v City of Cape Town.24Together with Minister for Mineral Resources v Swartland Municipality,25 the applicability of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) was determined alongside the Land Use Planning Ordinance (C) 15 of 1985 (LUPO). Other recent cases that take this issue further are Lagoon Bay Lifestyle Estate (Pty) Ltd v The Minister of Local Government, Environmental Affairs and Development Planning of the Western Cape26 and Shelfplett 47 (Pty) Ltd v MEC for Environmental Affairs and Development Planning.27 All of these decisions develop the ongoing debate of what the content and boundaries of the various functional areas relating to planning are. They will feature in the following discussion of the contents of the different functional areas relevant to planning.

 

3 Functional areas relating to planning

3.1 Planning in general

In a planning context generally, the important minority judgment in Wary Holdings stands out with Yacoob J's statement that: 28

Planning entails land use and is inextricably connected to every functional area that concerns the use of land. There is probably not a single functional area in the Constitution that can be carried out without land.

The Constitutional Court was asked to decide whether or not the Minister of Agriculture still had jurisdiction over the subdivision of agricultural land after the establishment of the new municipal system in South Africa that provides for so-called 'wall to wall' municipalities. The CC was divided in its judgment. Seven members of the court held that the Minister continued to have a say. Based on their understanding of the constitutional arrangements for land use and planning, a minority of three came to a different conclusion.

The facts of the case were that Wary Holdings (Pty) Ltd sold plots in a proposed subdivision of portion 54 of the farm No. 8 Port Elizabeth to Stalwo (Pty) Ltd. The land was zoned as agricultural land but Stalwo wanted to use it for industrial purposes. An application by Wary Holdings to the municipality for the subdivision and rezoning of the land was approved but subject to the condition that Wary Holdings effect substantial improvements to the land. Since the cost of these improvements was significant and the land had in the meantime increased in value, Wary Holdings requested an increase in the purchase price. Stalwo refused. Wary Holdings then took the view that the agreement was invalid and unenforceable. Stalwo approached the High Court for a declaratory order that the agreement was binding and that Wary Holdings must effect transfer of the property to it. The High Court examined the effect of the proviso to the definition of 'agricultural land' in SALA. It held that the proviso provided a point in time with reference to which it had to be established if land qualified as agricultural land. If, at that point in time, it was regarded as agricultural land, it remained so despite any changes to local government structures and their boundaries.29 Stalwo's application was dismissed. On appeal, the Supreme Court of Appeal (SCA) ruled that the amendment to the definition of 'agricultural land' by the insertion of the proviso was intended only temporarily to preserve the status of agricultural land. The proviso was meant to operate only for as long as the land situated there remained in the jurisdiction of a transitional council.30 Once transitional councils were replaced by municipal councils in 2000, the classified land lost its agricultural character unless specifically declared by the Minister to be agricultural land. As a result, the SCA found that the land in question was not agricultural land and that the provisions of SALA did not apply to the agreement between the parties. Wary Holdings then appealed to the CC, which reversed the decision of the SCA. In holding that SALA was still applicable, the majority judgment examined the issue in the context of the structure of municipalities in South Africa and concluded that the duration of the classification of land as agricultural land was not tied to the life of transitional councils but that it would continue and remain so classified.31

The minority judgment of Yacoob J, supported by Nkabinde J and O'Regan ADCJ, gave a specific planning law complexion to the matter. Yacoob J emphasised that as far as SALA 'is concerned with zoning, subdivision and sale of land, it is not concerned with agriculture but with the functional area of planning'.32 This view was not new. The 1997 White Paper on South African Land Policy stated that: 33

Although the...Act was primarily designed to prevent the subdivision of farms into uneconomic units...its principal role has been to operate as a zoning regulation.

Central to the decision was Yacoob J's reference to the division of powers and functions. He indicated that the way in which the power concerning planning is managed in the Constitution is crucial, explaining the relationship between 'regional planning and development', 'provincial planning' and 'municipal planning' as set out in Schedules 4 and 5 of the Constitution.34 Yacoob J's view was that to continue to accord the planning function to the (then) national Minister of Agriculture and Land Affairs in relation to agricultural land would be at odds with the Constitution in two respects. First, it would negate the municipal planning function and, secondly, it might well trespass into the sphere of exclusive provincial competence of provincial planning.35

3.2 Municipal planning

Since the content of the different functional areas seems to be determined by the content of 'municipal planning' it is important to first determine what 'municipal planning' comprises. Yacoob J, in the Wary Holdings case, stated that 'municipal planning' is a local government function over which both national and provincial government exercise legislative competence.36 So, said Yacoob J, municipalities must engage in integrated development planning as set out in the Local Government: Municipal Systems Act 32 of 2000.37 An integrated development plan must include a spatial development framework that must set out the objectives that reflect the desired spatial form of the municipality as well as strategies to achieve those objectives. The strategies must indicate desired patterns of land use, address the spatial reconstruction of the municipality, and relate to the nature and location of development in the municipality. Moreover, the spatial framework must set out the basic guidelines for a land use management system in the municipality.38

The issue of the content of 'municipal planning' was thrashed out in the 'GDT' cases.39 These cases were initiated by the City of Johannesburg Metropolitan Municipality in an attempt to perform its statutory functions in regard to municipal planning without the interference of the Gauteng Development Tribunal, a provincial body established under the DFA. A practice had developed whereby applications for land development were being made and approved, not in terms of the provincial Town-planning and Townships Ordinance 15 of 1986 (T), but in terms of the DFA.

Three events gave rise to the action by the City of Johannesburg. The first was the approval by the Gauteng Development Tribunal of the rezoning of a single residential property in Linden to permit the establishment of a restaurant and gift shop.40 The second was the approval of an application by Ivory Palm Properties 20 CC to establish a township on the farm Roodekrans co