City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others (335/08) [2009] ZASCA 106; 2010 (2) SA 554 (SCA) ; 2010 (1) BCLR 157 (SCA) ; [2010] 1 All SA 201 (SCA) (22 September 2009)

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[2009] ZASCA 106
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City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others (335/08) [2009] ZASCA 106; 2010 (2) SA 554 (SCA) ; 2010 (1) BCLR 157 (SCA) ; [2010] 1 All SA 201 (SCA) (22 September 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 335/08
In the matter between:
CITY OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Appellant
and
GAUTENG DEVELOPMENT
TRIBUNAL First Respondent
GAUTENG DEVELOPMENT APPEAL
TRIBUNAL Second Respondent
IVORY-PALM PROPERTIES 20
CC Third Respondent
P M VAN DER WESTHUIZEN Fourth
Respondent
E E VAN DER WESTHUIZEN Fifth
Respondent
MINISTER OF LAND AFFAIRS Sixth
Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FOR
DEVELOPMENT PLANNING AND LOCAL
GOVERNMENT, GAUTENG Seventh
Respondent
Neutral citation:
City
of Johannesburg v Gauteng Development Tribunal
(335/08)
[2009] ZASCA 106
(22 September 2009)
Coram: MPATI P, NUGENT, LEWIS,
MLAMBO JJA and GRIESEL AJA
Heard: 18 AUGUST 2009
Delivered:
22
SEPTEMBER 2009
Summary: Constitutional validity
– Chapters
V and VI of the
Development Facilitation Act 67
of 1995
– conflict with reservation of powers to municipalities –
chapters declared invalid but declaration suspended on certain terms.
ORDER
On appeal from: South Gauteng High Court (Gildenhuys J
sitting as court of first instance)
A The appeal is partly upheld. The orders of the court
below are set aside and the following orders are substituted:
‘
1 Chapters V and VI of the
Development Facilitation
Act 67 of 1995
are declared to be invalid.
2 This declaration of invalidity is suspended for 18
months from the date of this order subject to the following provisos:
No development tribunal established under the Act may
accept for consideration or consider any application for the grant
or
alteration of land use rights in a municipal area.
(b) No development tribunal established under the Act
may on its own initiative amend any measure that regulates or
controls land
use within a municipal area.
3 Save as above the application is dismissed.’
B The appellant is directed promptly to lodge the record
in this matter with the Registrar of the Constitutional Court in
accordance
with the rules and practices of that court.
JUDGMENT
NUGENT JA (MPATI P, LEWIS, MLAMBO JJA and GRIESEL AJA
concurring)
[1] Various provincial Ordinances – the relevant
Ordinance in this case is the Town-Planning and Townships Ordinance
15 of 1986
– confer upon local authorities (which I will refer to
in this judgment as municipalities) the authority to regulate land
use
within their particular municipal areas. The
Development
Facilitation Act 67 of 1995
– more specifically in Chapters V and
VI – purports to confer equivalent authority upon provincial
development tribunals that
are established under that Act. 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 matter, cannot but be disruptive to orderly
planning and development
within a municipal area.
[2] For some time the appellant – the City of
Johannesburg Metropolitan Municipality (which I will refer to as the
municipality)
sought to avoid that disruption through discussions
with the other levels of government but that came to nothing. It then
applied
to the South Gauteng High Court for, amongst other things, an
order declaring the allegedly offending legislation to be
constitutionally
invalid. That court (Gildenhuys J) dismissed the
application but granted leave to appeal to this court.
1
[3] The relief that was initially sought in the court
below was more extensive and altered from time to time as matters
developed.
In view of the stance now taken by the municipality I need
not deal with those aspects of the judgment of the court below. The
municipality also sought in the court below to review two decisions
that were taken by the Gauteng Development Tribunal (the first

respondent) in the exercise of the authority that purports to have
been given to it by the Act. That relief was also refused and
that
refusal is also encompassed by the present appeal. The individual
parties who have an interest in the outcome of those applications
for
review (the third, fourth and fifth respondents) have not joined in
this appeal and are content to abide the decision of this
court.
[4] The principal issue with which we are concerned is
the constitutionality of chapters V and VI of the Act. It is
convenient at
the outset to expand a little on the manner in which
land use is regulated under the provincial ordinances and related
legislation,
and the parallel powers that are given to provincial
development tribunals, before turning to that issue.
[5] The authority to regulate the use of land within a
municipal area is conferred upon the municipality concerned by four
provincial
Ordinances that survived the transition to the present
constitutional regime.
2
We are concerned in this case with the Town-Planning and Townships
Ordinance 15 of 1986, which was applicable in the former Transvaal

province and continues to apply in the province of Gauteng.
[6] Under the Ordinance the authority to regulate the
use of land is assigned in general to authorised municipalities (the
appellant
is such a municipality) with certain powers of oversight
vested in the provincial authorities. The principal tool for
regulating
land use is through the introduction and enforcement by
the municipality of a town planning scheme.
3
The Ordinance authorises a municipality to prepare a town-planning
scheme for all or any land within its municipal area and thereafter

to amend, to extend and to substitute the scheme. The general purpose
of a town-planning scheme must be directed towards
‘the coordinated and harmonious development of the area to which it
relates in such a way as will most effectively tend to promote
the
health, safety, good order, amenity, convenience and general welfare
of such area as well as efficiency and economy in the
process of such
development.’
4
[7] A town planning scheme – sometimes called a
‘zoning scheme’ – will comprise scheme clauses, scheme maps,
plans, annexures
and schedules.
5
Regulation 3 of the regulations made under the Ordinance specifies at
length the various matters that might be the subject of such
a
scheme. For present purposes it will be sufficient to set out
extracts from that regulation to illustrate the breadth of control

that might be asserted through a town planning scheme:
‘(b) the use of land for
new streets;
the widening of existing streets;
parking areas and public and private open spaces;
residential areas;
…..
(e) the zoning of land to be used for specific purposes, including
agricultural purposes;
(f) the area of erven;
(g) the regulation of the erection of buildings with particular
reference to –
(i) the maximum number which may be erected upon any erf or other
area of land;
(ii) the maximum area of any erf or other area of land upon which
buildings may be erected;
open spaces around buildings and parking areas in and around
buildings;
the position of buildings on any erf or other area of land in
relation to any boundary, street or other building;
the character, height, coverage, harmony, design or external
appearance of buildings;
…..’
[8] An authorised municipality is also entitled to
decide whether and on what conditions townships may be established
within its
municipal area.
6
A township means ‘any land laid out or divided into or developed as
sites for residential, business or industrial purposes’
(if certain
other features also exist that are not now relevant). The
establishment of a township other than in accordance with
the
provisions of the Ordinance (subject to certain of its provisions) is
unlawful.
7
Applications to establish townships within the municipal area of an
authorised municipality are directed to the municipality and
it has
the authority to approve or refuse them, and to impose conditions
where they are approved.
8
[9] The Ordinance thus contemplates detailed control and
regulation of land use being exercised by a municipality. Decisions
as
to the uses it will allow will necessarily be influenced by
numerous local considerations, not least the ability of the
municipality
to provide the necessary infrastructure and services
within the constraints of its capital budgets.
[10] While the Ordinance provides for the detail of land
use management other legislation calls for it to be undertaken within
the
context of broader interests and objectives. Under the Local
Government: Municipal Systems Act 32 of 2000 (the Systems Act) a
municipal
council is required to adopt a ‘single, inclusive plan
for the development of the municipality’ (referred to as an
‘Integrated
Development Plan’) that
‘(a) links, integrates and co-ordinates plans and takes into
account proposals for the development of the municipality;
(b) aligns the resources and the capacity of the municipality with
the implementation of the plan;
(c) forms the policy framework and general basis on which annual
budgets must be based;
(d) …
(e) is compatible with national and provincial development plans and
planning requirements binding on the municipality in terms
of
legislation.’
9
An Integrated Development Plan must have as one of its
core components a
‘
Spatial Development Framework’ that must include
‘the provision of basic guidelines for a land use management system
for the
municipality.’
10
[11] Section 35 of the Systems Act provides that an
Integrated Development Plan adopted by a municipality
‘(a) is the principal strategic planning instrument which guides
and informs all planning and development, and all decisions
with
regard to planning, management and development, in the municipality;
binds the municipality in the exercise of its executive authority,
except to the extent of any inconsistency between a municipality’s

integrated development plan and national or provincial legislation,
in which case such legislation prevails;
…’
Those provisions are reinforced by s 36, which
provides that
‘[a] municipality must give effect to its integrated development
plan and conduct its affairs in a manner which is consistent
with its
integrated development plan.’
[12] It will be apparent that that comprehensive land
use regime, when viewed as a whole, calls for interrelated and
coordinated
action on the part of the various departments and
functionaries of a municipality if its objectives are to be achieved.
To introduce
into that ongoing process 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. That is what is purportedly authorised by chapters V and
VI of
the Act.
[13] The long title of the Act describes two of its
purposes as being ‘to introduce extraordinary measures to
facilitate and speed
up the implementation of reconstruction and
development programmes and projects’ and ‘to lay down general
principles governing
land development throughout the Republic’. In
furtherance of the latter purpose chapter I of the Act, and in
particular s 3,
lays down various general principles to be
observed in relation to land development. Section 2 provides that
those general principles
apply throughout the Republic and
‘(a) shall also apply to the actions of the State and a local
government body;
serve to guide the administration of any physical plan, transport
plan, guide plan, structure plan, zoning scheme or any like
plan or
scheme administered by any competent authority in terms of any law;
serve as guidelines by reference to which any competent authority
shall exercise any discretion or take any decision in terms
of this
Act or any other law dealing with land development, including any
such law dealing with the subdivision, use and planning
of or in
respect of land;
…’
[14] On the face of it there is no apparent reason why
the national legislature should not be entitled to lay down planning
and
developmental standards to be observed by municipalities. The
complaint by the municipality is directed, however, to those portions

of the Act (chapters V and VI) that create and confer authority upon
tribunals to approve land use applications that might be in
conflict
with the municipality’s plans.
[15] The provisions of chapters V and VI need to be seen
in the context of chapter III (sections 15 to 26). Section 15(1)
establishes
for each province what is called a ‘development
tribunal’. Such a tribunal comprises persons appointed from time to
time by
the Premier with the approval of the provincial legislature.
11
The first respondent – the Gauteng Development Tribunal – is one
such tribunal. The functions of a development tribunal are
described
in s 16 as follows:
‘A tribunal –
(a) shall deal with any matter brought before it in terms of section
30 (1), 33, 34, 40, 42, 51, 48 (1), 57 or 61 or any matter
arising
therefrom;
(b) in dealing with any matter referred to in paragraph (a), (c) or
(d) may –
(i) grant urgent interim relief pending the making of a final order
by the tribunal;
(ii) give final decisions or grant or decline final orders;
(iii) refer any matter to mediation as contemplated in section 22;
(iv) conduct any necessary investigation;
(v) give directions relevant to its functions to any person in the
service of a provincial administration or a local government
body;
(vi) grant or decline approval, or impose conditions to its
approval, of any application made to it in terms of this Act;
(vii) determine any time period within which any act in relation to
land development is to be performed by a person;
(viii) decide any question concerning its own jurisdiction;
(c) shall deal with any other matter with which it is required to
deal in terms of this Act;
(d) may generally deal with all matters, necessary or incidental to
the performance of its functions in terms of or under this
Act.
[16] Certain decisions of a development tribunal are
subject to appeal to a development appeal tribunal established or
recognised
by the Premier under s 24. The second respondent is
the development appeal tribunal for Gauteng province.
[17] Section 31 allows for applications to be made to a
development tribunal for the establishment of what is called a ‘land
development
area’. That term is defined in sweeping terms to mean
‘any
area of land which is the subject of land
development, including –
(a) such an area shown on a layout plan and forming the subject of
land development in terms of Chapter V, or on a settlement plan
and
forming the subject of land development in terms of Chapter VI;
(b) any land which is not subdivided or intended to be subdivided but
on which there are buildings, or on which it is intended
to erect
buildings or on which sites are laid out, or on which there are
buildings in close proximity to each other, and which
is used for any
of the purposes referred to in the definition of ‘land
development’; and
(c) a group of pieces of land or of subdivisions of a piece of land
which are combined with public places and are used mainly for
those
purposes or are intended to be so used and which are shown on
diagrams or a general plan.’
‘
Land development’ is defined to mean
‘any procedure aimed at changing the use of land for the purpose of
using the land mainly for residential, industrial, business,

small-scale farming, community or similar purposes, including such a
procedure in terms of Chapter V, VI or VII, but excluding
such a
procedure in terms of any other law relating exclusively to
prospecting or mining’.
[18] Section 33(1) authorises the tribunal to approve or
refuse such an application, and if it is approved, to impose any one
or
more of the conditions referred to in subsection (2). I need not
recite those conditions. I think it is sufficient to say that the

relevant sections of the Act have the effect of authorising a
development tribunal to do everything that an authorised municipality

might do when exercising its authority under the Ordinance. It is
able to override any and all control that a municipality is capable

of exercising over the use of the land, and to do so notwithstanding
opposition by the municipality, and notwithstanding that it
will
conflict with the objectives and plans of the municipality. And if an
application to a municipality for an amendment to its
town planning
scheme, or for a special consent under such a scheme, or for the
establishment of a township, is turned down, the
applicant may simply
repeat the application, this time in the form of an application for
approval of a ‘land use area’, before
the relevant development
tribunal.
[19] Three illustrative examples of that having occurred
are referred to in the affidavits of the municipality. Eleven
town-planning
schemes are in operation within the area of
jurisdiction of the municipality, including the Johannesburg Town
Planning Scheme.
Under that scheme Portion 2 of erf 326 Linden is
zoned as ‘residential 1’ meaning that it may be used only for
‘dwelling
houses’, with certain other uses permitted with the
consent of the municipality. Upon application by the owner the
Gauteng Development
Tribunal rezoned the land to ‘residential 1
permitting restaurant and retail’ so as to allow for the operation
of a restaurant
and a gift shop. Why an application that is
quintessentially of local interest should have been considered to be
appropriate to
a provincial tribunal is difficult to imagine.
Certainly none of the objectives of the Act as they are reflected in
the long title
suggest that it was aimed at deciding where to locate
gift shops.
[20] The other two cases concern applications that were
made to the Gauteng Development Tribunal for, in effect, the
establishment
of townships on land that fell within the area of the
Roodepoort Town Planning Scheme and was zoned ‘agricultural’. In
both
cases the land concerned also fell outside what is called the
‘Urban Development Boundary’. The Urban Development Boundary –

which is one aspect of the Spacial Development Framework forming part
of the Integrated Development Plan that has been adopted
by the
municipality – delineates which areas may be used for urban
development and which areas may not be so used. As I have
pointed out
earlier the Integrated Development Plan ‘binds the municipality in
the exercise of its executive authority’ (except
to the extent of
any inconsistency between the integrated development plan and
national or provincial legislation) and the municipality
‘must give
effect to its integrated development plan and conduct its affairs in
a manner which is consistent with its integrated
development plan.’
Thus in the ordinary course the municipality would not have permitted
the townships to be established.
[21] The first application related to Portion 229 (a
portion of portion 75 of the farm Roodekrans 183 IQ). The owner of
the land
(the third respondent) applied to the Gauteng Development
Tribunal to establish what is in effect a township, comprising 21
erven
of which 19 would be zoned ‘residential 1’, one would be
zoned ‘agricultural’, and one would be zoned ‘special’ for

purposes of access to the township. The municipality opposed the
granting of the application on the grounds, amongst others, that
the
use would be inconsistent with the town planning scheme and the
Integrated Development Plan. That notwithstanding the Gauteng

Development Tribunal approved the application on 4 August 2004.
[22] The second application related to portion 228 of
the farm Ruimsig 265 IQ. That application was similarly, in effect,
for the
establishment of a residential township. That land, too,
falls outside the municipality’s Urban Development Boundary, and
was
similarly opposed by the municipality, but was granted by the
tribunal during September 2004.
[23] The powers that purport to have been conferred upon
development tribunals to regulate land use within a municipal area,
which
were the powers exercised by the tribunal in those cases, are
said by the municipality to be reserved to municipalities by the
Constitution. If that is so, it was submitted, then the relevant
provisions of the Act are invalid, and the purported exercise of
that
authority in relation to the two townships was also invalid.
[24] The structure of government authority under the
present constitutional dispensation departs markedly from that which
existed
under the previous constitutional regime. Under the previous
regime all public power vested in Parliament and devolved upon the

lower tiers of government by parliamentary legislation. Under the
present regime, however, certain powers of government are conferred

directly upon the lower tiers by the Constitution. To the extent that
that has occurred the lower tiers exercise original constitutional

powers and no other body or person may be vested with those powers.
[25] The Constitution establishes government at three
levels. At national level legislative authority vests in Parliament
and executive
authority vests in the President (who exercises it
together with other members of the Cabinet). At provincial level
legislative
authority vests in the provincial legislatures and
executive authority vests in the provincial Premiers (who exercise
that authority
together with other members of the executive
councils). At local level government comprises municipalities, which
must be established
for the whole of the territory of the Republic,
and the legislative and executive authority of a municipality vests
in its municipal
council.
[26] National legislative authority as vested in
Parliament confers on the National Assembly the authority to
legislate on any matter,
including a matter within a ‘functional
area’ listed in Schedule 4, but excluding, subject to exceptions, a
matter within the
functional areas listed in schedule 5. Provincial
legislatures, on the other hand, may legislate with regard to any
matters within
the functional areas listed in Schedules 4 and 5. It
follows that functional areas listed in Schedule 4 fall within the
concurrent
legislative authority of the national and provincial
governments, and the functional areas listed in schedule 5 fall
within the
exclusive legislative authority of the provincial
legislatures.
[27] Certain functions of government are, in the same
way, reserved to municipalities by the Constitution. The material
provisions
of the Constitution for present purposes are s 156(1)
read together with Part B of Schedule 4. Section 156(1) provides that
‘a municipality has executive authority in respect of, and has the
right to administer –
(a) the local government matters listed in Part B of Schedule 4 and
Part B of Schedule 5; and
(b) any other matter assigned to it by national or provincial
legislation.’
[28] It will be apparent, then, that while national and
provincial government may legislate in respect of the functional
areas in
schedule 4, including those in Part B of that schedule, the
executive authority over, and administration of, those functional
areas
is constitutionally reserved to municipalities. Legislation,
whether national or provincial, that purports to confer those powers

upon a body other than a municipality will be constitutionally
invalid. None of that is controversial. What is in dispute is only

whether the authority that the municipality exercises at present
under the Ordinance falls within the terms of one of those functional

areas.
[29] The functional area in Part B of Schedule 4 that is
pertinent to this case is ‘municipal planning’. Other functional
areas
that are reserved to municipalities in that Part include ‘air
pollution’, ‘building regulations’, ‘electricity and gas

reticulation’, ‘stormwater management systems in built up areas’,
and ‘water and sanitation services’ (with some limitations).
[30] The crisp question that is before us is thus
whether the functional area described as ‘municipal planning’
includes the
functions that have been and continue to be performed by
municipalities in the regulation of land use as I outlined them
earlier.
If so, they are matters that are reserved to the executive
authority and administration of municipalities and may not be
assigned
by legislation to another body (in this case a development
tribunal).
[31] On the face of it the introduction, administration
and enforcement of town planning schemes, and the determination of
whether
land should or should not be used for the establishment of
townships, and if so, the conditions that should apply, seems to me
to fit easily within the ordinary meaning of the term ‘municipal
planning’. The principal argument that was advanced before
us by
counsel for the respondents, however, was founded on a phrase that is
used in Part A of Schedule 4. It will be recalled that
that Part
lists functional areas that fall within concurrent national and
provincial legislative competence. Listed amongst those
functional
areas is ‘urban and rural development’. Counsel submitted that
the functions that I have referred to fall within
the ordinary
meaning of ‘urban…development’. It follows, so it was
submitted, that they do not constitute ‘municipal planning’
and
may be assigned to any body of their choosing by the national or
provincial legislatures. That has been done, so the argument
went, by
assigning them to municipalities under the provincial Ordinances, and
to development tribunals under the Act.
[32] The question that immediately comes to mind on that
submission is what remains within the functional area of ‘municipal
planning’
once those functions are excised? In answer to that
question counsel for the respondents submitted that the term is
restricted
to what he called ‘forward planning’. Expanding upon
that he submitted that it is confined to conceiving and preparing
long-term
plans but not implementing those plans.
[33] It was along those lines that the court below
decided the matter in favour of the respondents. Referring to a
dictionary meaning
of the word ‘plan’ – ‘detailed proposal
for doing something; decide on or arrange in advance’ – it said
that prima
facie the word ‘does not extend to the implementation of
planning’. Fortified by reference to various provisions of the
Constitution
the court below went on to say the following (at
par 56):
‘An analysis of the Constitution indicates that development is
primarily a national and provincial competence, and that municipal

involvement therein is, in the absence of any assignment under
section 156(4), limited to planning for it, promoting it and
participating
therein.’
[34] Support for that view was also found in the views
expressed by Rabie J in the North Gauteng High Court (
Basson
v City of Johannesburg Metropolitan Municipality; Eskom Pension and
Provident Fund v Johannesburg Metropolitan Municipality
12
)
in which the learned judge, confronting the same question, said the
following:
‘[40] From the above it would appear, firstly, that the
[Development Facilitation Act] envisages a situation where land
development
can occur under the auspices of more than one body and in
terms of different legislation. This notion fits in with the
provisions
of the Constitution referred to above which allows for
both the National and Provincial [legislatures] legislating in
respect of
urban development. Secondly, such applications may entail
an amendment to an existing zoning scheme, ie, a town planning scheme

administered by a municipality. Thirdly, such an amendment to a
zoning scheme has legal effect above any provision to the contrary
in
any other law governing land development or land-use planning or
zoning schemes.
[41] In the result the [municipality’s] contention that only it has
the authority to amend town planning schemes (zoning schemes),
cannot
be maintained. At present the [municipality] adopts, amends and
implements town planning schemes and approve the establishment
of
townships in terms of the Town Planning and Townships Ordinance,
which is a Provincial piece of legislation. It does not do
so in
terms of its own by-laws. The Constitution provides for concurrent
National legislative jurisdiction in respect of the same
area of
competence and the [Development Facilitation Act] is such a piece of
legislation. Since the Provincial and the National
[legislature] can
both legislate in respect of these issues (the Provincial
[legislature] having done so already through the Town
Planning and
Townships Ordinance) the provisions of the [Development Facilitation
Act] can therefore not be regarded as unconstitutional.
It is in fact
a natural consequence of the National [legislature’s] authority and
power to also legislate in this regard.’
[35] The construction that was adopted by the court
below and by Rabie J, and that was advanced before us by counsel for
the respondents,
all proceed by inferential reasoning from the
proposition that the functions with which we are now concerned are
embraced by the
concept of ‘development’ (a functional area that
falls within the concurrent legislative authority of national and
provincial
government) and thus, by inference, fall to be excluded
from the functional area ‘municipal planning’. That line of
reasoning
seems to me to approach the matter the wrong way round.
[36] It is to be expected that the powers that are
vested in government at national level will be described in the
broadest of terms,
that the powers that are vested in provincial
government will be expressed in narrower terms, and that the powers
that are vested
in municipalities will be expressed in the narrowest
terms of all. To reason inferentially with the broader expression as
the starting
point is bound to denude the narrower expression of any
meaning and by so doing to invert the clear constitutional intention
of
devolving powers on local government.
[37] That seems to me to be demonstrated by considering
the other functional areas that are reserved to municipalities in
Part B
of Schedule 4. On the approach adopted by the court below the
term ‘development’ – a term with the widest of meanings –
is
capable of including all the functional areas listed in Part B of
Schedule 4, and in particular the functional areas of ‘air

pollution’, ‘building regulations’, ‘electricity and gas
reticulation’, ‘stormwater management systems in built up
areas’,
and ‘water and sanitation services’. To approach the matter along
the lines adopted by the court below, and that
which was advanced
before us by counsel, seems to me to denude all the functional areas
that purport to have been vested in municipalities
of any content at
all.
[38] I cannot accept that the Constitution was framed so
as to confine the powers of a municipality to conceiving and
preparing
plans in the abstract, with no power to implement them.
Preparing plans in the abstract would seem to me to be an altogether
useless
enterprise. It is suggested in the judgment of the court
below that abstract planning of that kind (without implementation)
might
have a use in enabling a municipality to assist and participate
in development that is undertaken by (or at the behest of) provincial

and national government. I fail to see what purpose would be served
by reserving power to local government merely to assist or

participate in the exercise of powers by another tier of government.
[39] It is true, as pointed out by the court below, that
a dictionary meaning of ‘plan’, when used in other contexts,
signifies
that it is confined to conceptualisation and does not
extend to implementation. But as pointed out by Hefer JA in
Fundstrust (Pty) Ltd (in liquidation) v Van
Deventer
:
13
‘Recourse to authoritative dictionaries is, of course, a
permissible and often helpful method available to the Courts to
ascertain
the ordinary meaning of words (
Association of Amusement
and Novelty Machine Operators and Another v Minister of Justice and
Another
1980 (2) SA 636
(A) at 660F-G). But judicial
interpretation cannot be undertaken, as Schreiner JA observed in
Jaga
v Dönges NO and Another; Bhana v Donges NO and Another
1950
(4) SA 653
(A) at 664H, by “excessive peering at the language to be
interpreted without sufficient attention to the contextual scene”.

The task of the interpreter is, after all, to ascertain the meaning
of the word or expression in the particular context of the
statute in
which it appears (
Loryan (Pty) Ltd v Solarsh Tea and Coffee (Pty)
Ltd
1984 (3) SA 834
(W) at 846G
ad fin
). As a rule every
word or expression must be given its ordinary meaning and in this
regard lexical research is useful and at times
indispensable.
Occasionally, however it is not.’
[40] In this case the word is not used in relation to,
for example, plans that are prepared by an engineer for a mechanical
device
that is to be constructed, or an architect’s plan for a
structure, or a plan that is prepared by a land surveyor. It is used
in the context of municipal activities. And in that context it has
become commonplace throughout the English speaking world to use
the
word ‘planning’ to describe the regulation and control of land
use. It has been so used in legislation in this country
for many
years. In England, we are told by Stroud’s Judicial Dictionary,
terms like ‘planning permission’ and ‘planning
scheme’ are
used in English statutes that deal with the regulation of land use.
Black’s Law Dictionary tells us that in the
United States a
‘planning board’ is understood to mean ‘a local government body
responsible for approving or rejecting proposed
building projects’.
Butterworth’s Australian Legal Dictionary refers to ‘planning’
as ‘a term which implies a scheme
for the future incorporating some
systematic plan for the development of a town intended to subject the
development of localities
or areas of land to direction and
restraint’, it describes a ‘planning instrument’ as an
‘instrument made under a law …
that relates to town planning or
use of land’, it refers to ‘planning standards’ as ‘regulatory
or prescriptive standards
relating to development projects, mainly in
respect of the quantifiable aspects of site development’ and it
notes that ‘planning
standards … are imposed by local government
in conjunction with zoning restrictions, and cover such matters as
residential density,
car parking, visual privacy, provision of
amenity, restriction on building heights, access to public transport,
safety and security,
and building construction.’ In
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd
14
Yacoob J had no difficulty understanding the word to convey that
meaning when he said the following:
‘
The zoning of land and the question whether
subdivision should be allowed in relation to any land is essentially
a planning function
in terms of Schedule 4 and Schedule 5
to
the Constitution. Previously, the Minister was afforded a planning
function in relation to agricultural land situated in areas
where
local government structures were absent. Our Constitution requires
municipal planning to be undertaken by municipalities.
To continue to
accord this planning function to the 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 conferred upon
all municipalities.
Secondly, it may well trespass into the sphere of the exclusive
provincial competence of provincial planning.
I may add that
legislation concerning zoning and subdivision of land was regarded as
planning legislation even before the new Constitution
came into
operation.’
(At para 131.)
[41] It is clear that the word ‘planning’, when used
in the context of municipal affairs, is commonly understood to refer
to
the control and regulation of land use, and I have no doubt that
it was used in the Constitution with that common usage in mind.
The
prefix ‘municipal’ does no more than to confine it to municipal
affairs. That construction, which gives meaningful effect
to the
term, has the effect of leaving in the hands of national and
provincial government the authority to legislate in the functional

area of ‘urban … development’, but reserving to municipalities
the authority to micro-manage the use of land for any such

development. On that construction the functional area of ‘urban
development’ retains considerable scope for national and provincial

legislation. One thinks immediately, for example, of the
establishment of financing schemes for development, the creation of
bodies
to undertake housing schemes or to build urban infrastructure,
the setting of development standards to be applied by municipalities,

and so on.
[42] There was some debate in the course of argument,
initiated from the bench, as to whether the Act is capable of being
construed
restrictively – confining the powers that are conferred
upon development tribunals to a limited range of land projects for
reconstruction
and development purposes – so as to avoid
unconstitutionality. Neither counsel showed enthusiasm for such a
construction and
correctly so. The Act expresses itself in such wide
terms that any such construction would be artificial and would amount
not to
interpretation but to re-writing the Act. The difficulty would
in any event remain that the reservation of ‘municipal planning’

in Part B of Schedule 4 is not capable of being construed as
reserving those functions to municipalities in some circumstances
but
not in others, no matter how limited those circumstances might be.
[43] In my view the term ‘municipal planning’ as it
is used in Part B of Schedule 4 includes the various functions that
are
assigned to municipalities under the Ordinance, and accordingly
they may not be assigned to other bodies by legislation. Both counsel

were agreed that, bearing in mind the broad terms in which they are
framed, the provisions of chapters V and VI are not capable
of being
brought into line with the Constitution by declaring invalid only
specific words or phrases or sections, and that if our
finding were
to be as I have stated it, the whole of those chapters falls to be
declared invalid.
[44] A declaration of invalidity ordinarily has the
effect that the relevant legislation has been invalid from inception
in the
absence of a contrary order under the authority given by s
172(1)(b). That section permits a court, when declaring a statute to

be invalid, to
‘make any order that is just and equitable, including –
an order limiting the retrospective effect of the declaration of
invalidity; and
an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority to correct
the
defect.’
[45] Clearly that result would cause considerable
disruption, bearing in mind that development tribunals will have made
many decisions
affecting rights in the course of their existence. The
municipality asked us to declare the legislation to be invalid with
effect
from 16 August 2005, the date upon which it informed the
Gauteng Development Tribunal that its conduct was unlawful and would
not
be recognised by the municipality. I think it needs to be borne
in mind that a declaration of invalidity will affect not only the

Gauteng Development Tribunal but other tribunals as well. Moreover,
it will affect parties who might have acted in ignorance of
the
notice given by the municipality. It seems to me in the circumstances
that a declaration of invalidity having even limited
retrospective
effect would not be just and equitable.
[46] It needs also to be recognised that the functions
of development tribunals are not confined to those functions that are
reserved
to municipalities. To declare the legislation to be invalid
with immediate effect will deprive development tribunals of the power

to perform other functions that are legitimately conferred upon them
by the Act.
[47] It seems to me in the circumstances that the
appropriate order should be designed, first, so as to protect the
validity of
decisions that have until now been given by development
tribunals, secondly, to enable development tribunals to continue to
perform
their legitimate functions until such time as Parliament
replaces the offending legislation, and thirdly, to ensure that
development
tribunals meanwhile restrict their activities to those
legitimate functions. Needless to say, the declaration of invalidity
has
no force unless and until it is confirmed by the Constitutional
Court.
15
To avoid any uncertainty I should make it clear that the ancillary
orders that I intend making (reflected in paras A2(a) and (b)
of the
order) are dependent upon that confirmation.
[48] That leaves the two applications for review of the
approval by the Gauteng Development Tribunal of the establishment of
the
two townships I have referred to. On the approach that I take to
the invalidity of the legislation it cannot be said that the tribunal

lacked the power to grant the approvals. Other grounds were also
advanced by the municipality in support of its contention that
the
decisions of the tribunal ought to be set aside, principally that it
failed to properly take account of their conflict with
the Urban
Development Boundary. I do not think it is necessary to deal with
those contentions in this judgment. It is sufficient
to say that they
were fully considered by the court below and I see no reason to
interfere with its considered reasons for rejecting
them. In those
circumstances the appeal against the decision to dismiss the
applications for review must fail.
[49] There remains the question of costs. This matter
has not been approached by the parties strictly as adversaries, but
instead
to establish with certainty their respective powers. The
litigation has thus been conducted for the public benefit and I do
not
think it is appropriate for any order of costs to be made.
[50] For those reasons the following orders are made:
A The appeal is partly upheld. The orders of the court
below are set aside and the following orders are substituted:
‘
1 Chapters V and VI of the
Development Facilitation
Act 67 of 1995
are declared to be invalid.
2 This declaration of invalidity is suspended for 18
months from the date of this order subject to the following:
(a) No development tribunal established under the Act
may accept for consideration or consider any application for the
grant or
alteration of land use rights in a municipal area.
(b) No development tribunal established under the Act
may on its own initiative amend any measure that regulates or
controls land
use within a municipal area.
3 Save as above the application is dismissed.’
B The appellant is directed promptly to lodge the record
in this matter with the Registrar of the Constitutional Court in
accordance
with the rules and practices of that court.
__________________
R.W. NUGENT
JUDGE OF APPEAL
LEWIS JA
(MPATI P, NUGENT,
MLAMBO JJA and GRIESEL AJA concurring)
[51] I have had the privilege of reading my colleague
Nugent’s lucid and compelling judgment, with which I concur. I
write separately,
however, because I think it necessary to say more
fully why it is not possible to construe chapters V and VI of the
Development Facilitation Act 67 of 1995
in such a way as to render
their provisions constitutional.
[52] It is now trite that where the constitutionality of
legislation is in issue, the provisions in question should be read in
such
a way as to render them consonant with the Constitution if
possible. There are numerous cases where courts have interpreted
legislative
provisions restrictively so as to render them
constitutional. The principle underlying this approach was put thus
by Langa J in
Investigating Directorate:
Serious Economic Offences v Hyundai motor Distributors (Pty) Ltd
:
16
‘[J]udicial officers must prefer interpretations of legislation
that fall within constitutional bounds over those that do not,

provided that such an interpretation can be reasonably ascribed to
the section.
Limits must, however, be placed on the application of this principle.
On the one hand, it is the duty of a judicial officer to
interpret
legislation in conformity with the Constitution so far as this is
reasonably possible. On the other hand, the Legislature
is under a
duty to pass legislation that is reasonably clear and precise,
enabling citizens and officials to understand what is
expected of
them. A balance will often have to be struck as to how this tension
is to be resolved when considering the constitutionality
of
legislation. There will be occasions when a judicial officer will
find that the legislation, though open to a meaning which
would be
unconstitutional, is reasonably capable of being read ‘in
conformity with the Constitution’.
[53] It followed, said the learned judge, that
‘where a legislative provision is reasonably capable of a meaning
that places it within constitutional bounds, it should be preserved.

Only if this is not possible should one resort to the remedy of
reading in or notional severance’
.
17
[54] It is correct that neither counsel for the parties
in this matter suggested that Chapters V and VI of the Act should be
interpreted
in such a way as to make them comply with the
Constitution. The appellant argued that that was not possible for the
reasons given
by Nugent JA. The respondent argued that there was
nothing unconstitutional about the provisions: the powers given to a
development
tribunal fell within the functional area of a province –
urban development – and were different from municipal planning.
Gildenhuys
J, in the court below, concluded that it was not necessary
to restrict the application of the provisions of chapters V and VI,
and that the procedures created by them, and the application of the
Town Planning Ordinance, could operate in parallel. That conclusion

is, as Nugent JA has stated, a recipe for chaos.
[55] But I think it necessary to consider, albeit
briefly, why the restrictive interpretation is not possible, for, as
the authorities
cited indicate, we should not lightly strike down as
unconstitutional legislation that has in fact been in operation, and
implemented,
for over a decade.
[56] The basis for attempting to interpret the
provisions of the Act, and particularly ss 31, 32 and 33, so as
to allow for
planning functions to be given to the tribunal is that
the Act itself was not ever intended to supplant municipal planning
schemes
then in place or passed subsequently pursuant to the
ordinances mentioned by Nugent JA. It was intended to provide a quick
mechanism
for establishing urban development for reconstruction and
development purposes, in terms of government policy then in place. We

must read the Act purposively.
[57] For not only are courts required to read
legislation in such a way as to make it constitutionally compliant,
but we are also
enjoined to interpret legislation to give effect to
its purpose. See in this regard, recently,
Department
of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd
18
and the authorities cited there, which deal with ‘remedial
legislation umbilically linked to the Constitution’. It is helpful,

said Moseneke DCJ, ‘to pay due attention to the social and
historical background of the legislation’.
19
[58] The Act’s purpose is to be found in the long
title to the Act which I quote in full:
‘To introduce
extraordinary measures to facilitate and speed up
the implementation of reconstruction and development programmes and
projects in
relation to land
; and in so doing to lay down general
principles governing land development throughout the Republic; to
provide for the establishment
of a Development and Planning
Commission for the purpose of advising the government on policy and
laws concerning land development
at national and provincial levels;
to provide for the establishment in the provinces of development
tribunals which have the power
to make decisions and resolve
conflicts in respect of land development projects; to facilitate the
formulation and implementation
of land development objectives by
reference to which the performance of local government bodies in
achieving such objectives may
be measured; to provide for nationally
uniform procedures for the subdivision and development of land in
urban and rural areas
so as to promote the speedy provision and
development of land for residential, small-scale farming or other
needs and uses; to
promote security of tenure while ensuring that
end-user finance in the form of subsidies and loans becomes available
as early as
possible during the land development process; and to
provide for matters connected therewith’
(my
emphasis).
[59] The long title tells us that the Act is meant not
for municipal planning in the strict sense. Its purpose is to redress
inequalities
left by a policy of separate development, where people
of different races were physically divided and whose housing and
property
were vastly unequal. Hence the need for reconstruction and
development at a pace that might not be accommodated within the
framework
of ordinances regulating normal municipal planning. The
purpose, it seems to me, was not to supplant the existing procedures
for
town planning but to provide alternative means for developing
land so as to make provision for low cost housing and facilities for

those previously impoverished.
[60] Having regard to these two principles of
interpretation, that a court must interpret legislation purposively,
and so as to
render it constitutionally permissible, it may be
arguable that chapters V and VI should be interpreted so that they
regulate only
reconstruction and development projects. They would be
constitutional only to that extent. The speedy mechanisms envisaged
for
development applications would be available only for
extraordinary schemes – not for run of the mill applications to
amend town
planning schemes or to start new township developments
that are not designed for reconstruction and development purposes.
Following
on that argument, the applications in issue in this appeal
would not have served properly before the development tribunal. Nor
would the other applications for minor amendments to a town planning
scheme, mentioned in the appellant’s papers, have been dealt
with
appropriately by the tribunal. They were applications that did not
call for extraordinary measures, and should have been dealt
with by
the municipality in terms of the Ordinance.
[61] There are three difficulties with the argument. The
first is that what is effectively municipal planning is reserved for
municipalities
by the Constitution, such that even special
developments, falling within the ambit of municipal planning, even if
they do have
reconstruction and development aspects, cannot be dealt
with, constitutionally, by any body other than a municipality.
[62] Secondly, the provisions of the Act discussed by
Nugent JA are so widely drawn that there is no sensible way in which
one can
whittle them down to suit the purpose for which they were
intended. One would have to ‘read in’ many words to narrow down
the
definitions of ‘land development‘, ‘land development
areas’, and ‘land development application’, among others, in
order
to limit the application of the Act to special developments.
[63] Thirdly, it would be impossible to draw the line
between applications for the development of a township that should
fall within
the sphere of the Act, as apparently intended by the
legislature, and those applications that belong only in a
municipality, such
as the ones in issue.
[64] It is the first reason that is decisive however.
The Constitution does not permit provincial bodies to take on the
function
of municipal planning, and that is precisely what the Act
purports to allow and what the respondents argue for.
[65] For these reasons, although it seems at first blush
attractive to consider a very narrow reading of the Act so as to make
it
fit its purposes, it is not possible without an infringement of
the Constitution and I accordingly concur in the order made by Nugent

JA.
_______________
CAROLE LEWIS
JUDGE OF APPEAL
Appearances
:
For Appellant: S J du Plessis SC
L B van Wyk SC
Instructed by:
Moodie & Robertson, Johannesburg
Claude Reid, Bloemfontein
For Respondent: S J Grobler SC
(1
st
,
2
nd
, 6
th
& 7
th
) L T
Sibeko SC
Instructed by:
The State Attorney, Johannesburg
The State Attorney, Bloemfontein
For 4
th
Respondent: None
Instructed by:
Rooth Wessels Maluleke, Pretoria
c/o Hooyberg Attorneys, Johannesburg
Rossouws Inc, Bloemfontein
1
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal
[2008] ZAGPHC 30
;
2008
(4) SA 572
(W).
2
Townships
Ordinance 9 of 1969 (Orange Free State), Town Planning Ordinance 27
of 1949 (Natal), Land Use Planning Ordinance 15
of 1985 (Cape),
Town-Planning and Townships Ordinance 15 of 1986 (Transvaal).
3
Provided
for in Chapter II.
4
Section
19.
5
See
regulation 2 of the Regulations made under the Ordiance and
published under Administrator’s Notice 858, 1987.
6
Provided
for in chapter III.
7
Section
66(1).
8
Part
C of chapter III.
9
Section
25.
10
Section
26(e).
11
Section
15(2).
12
Cited
at
[2007] JOL 19304
(T).
13
1997
(1) SA 710
(A) at 72H-727A.
14
2009
(1) SA 337
(CC),
[2008] ZACC 12
;
2008 (11) BCLR 1123
(CC).
15
Section 167(5) of the Constitution.
16
[2000] ZACC 12
;
2000
(2) SACR 349
(CC) paras 23 and 24, referring to
De
Lange v Smuts NO
[1998] ZACC 6
;
1998 (3) SA 785
(CC)
and to
National Coalition for Gay and
Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1
(CC). See also
S v
Dzukuda; S v Tshilo
2000 (4) SA 1078
(CC) para 37, and
National Director of
Public Prosecutions v Mohamed NO
[2002] ZACC 9
;
2002
(4) SA 843
(CC) para 26 ff.
17
Para
26.
18
2007
(10) BCLR 1027
(CC) paras 51-55.
19
Para
53.