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[2013] ZAKZPHC 6
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Le Sueur and Another v Ethekwini Municipality and Others (9714/11) [2013] ZAKZPHC 6 (30 January 2013)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL,
PIETERMARITZBURG
CASE NO. 9714/11
In the matter between:
R
A LE SUEUR
................................................................................
FIRST
APPLICANT
R
A LE SUEUR N.O. & OTHERS
...................................................
SECOND
APPLICANT
and
ETHEKWINI
MUNICIPALITY
....................................................
FIRST
RESPONDENT
MINISTER
OF ENVIRONMENTAL AFFAIRS
...........................
SECOND RESPONDENT
MEC:
AGRICULTURE & ENVIRONMENTAL
AFFAIRS
KZN
...........................................................................
THIRD
RESPONDENT
MEC:
CO-OP GOVERNANCE & TRADITIONAL
AFFAIRS
................................................................................
FOURTH
RESPONDENT
ANY
OTHER INTERESTED PARTY
.............................................
FIFTH
RESPONDENT
JUDGMENT
GYANDA J
[1] It is common cause that the
applicants in their personal capacities, and in their capacities
nomine officio
as trustees of a trust are the owners of
property, situate within the Province of KwaZulu-Natal which is
therefore affected by
resolutions of the first respondent, which
affect their properties. The applicants, aggrieved by certain
resolutions, adopted by
the first respondent, the Ethekwini
Municipality, made application in this court for the following relief
as set forth in Part
B of the Notice of Motion at page 3 thereof in
the following terms:-
“
B1.
That the resolution to adopt the amendment of the Ethekwini Town
Planning Schemes to introduce split zonings taken by the council
of
the Ethekwini Municipality on 28 October 2010, be and is hereby
declared to be unconstitutional and set aside;
B2.
THAT the resolution to adopt the amendment of the Ethekwini Town
Planning Scheme to introduce D-MOSS (the acronym for the Durban

Municipality Open Space Systems), taken by the council of the
Ethekwini Municipality on 9 December 2010 be and is hereby declared

to be unconstitutional and is set aside;
B3.
THAT the said resolutions were passed in terms of a repealed
ordinance and were without legality at the time of their passing
and
are hereby declared to be set aside as invalid;
B4.
THAT the first respondent, pay the costs of this application jointly
and severally with any other respondent or opposing party
who may
oppose this application;
B5.
THAT the applicants be granted further or alternative relief.”
[2] The first respondent opposes the
application as does the fourth respondent and the second and third
respondent have filed notices
indicating their intention to abide the
decision of the court. The city of Cape Town was admitted by order of
this court as
amicus curiae
and by agreement with the
applicant was allowed to introduce or lead the evidence of a witness
in the form of an affidavit in support
of submissions it, the city,
will make in this application. This
amicus
has likewise
opposed the application. At the commencement of argument before me,
the resolutions relating to the split zonings
had been set aside at
the instance of the first respondent itself as it, the first
respondent, realized that certain procedural
steps had not been
properly complied with in regard to those resolutions. The first
respondent has accordingly requested that it
be ordered to pay the
costs of the application on the unopposed scale in so far as such
costs were incurred exclusively in connection
with the split zoning
amendments set aside by the Order of the KwaZulu-Natal High Court,
Durban on 1 October 2012. In the circumstances
the relief sought by
the applicants in regard to these split zoning amendments will not
form part of the present judgment. I understood
counsel for the
applicant to argue nonetheless that the split zoning amendments were,
like the D-MOSS amendments, unconstitutional.
In as much as the split
zoning amendments are not before me, I cannot consider any
submissions in relation thereto and if and when
the first respondent
re-introduces the split zoning amendments, then the applicants can
address argument in relation thereto in
the appropriate forum at the
appropriate time.
[3] At the time that the application
was argued before me therefore, the issues that fell to be resolved
were the following:-
Whether or not the introduction of
the amendments to the Ethekwini Town Planning Schemes known as
D-MOSS by resolution
of the Town Council and the
Municipality taken on 9 December 2010, is unconstitutional in as much
as:-
That that resolution was taken in
terms of the Town Planning Ordinance, No. 27 of 1947 which had by
that date been repealed and
replaced by the KZN Planning and
Development Act, No. 6 of 2008; and
Whether or not the amendment is
saved by the provisions of Schedule 2 of the Planning Act, more
especially Item 12 thereof, which
provides as follows:-
“
A
resolution to adopt provisions of a Town Planning Scheme or rescind,
alter or amend the provisions of a Town Planning Scheme in
terms of
Section 47
bis
(1)(a)
or 47
bis
A
(2) of the Ordinance was taken before this Act commenced:- that has
not become effective and has not been abandoned must be proceeded

with as if this Act has not commenced.”
(2) Whether or not, in any event and
in as much as the amended Ordinances deal with the environmental
functional area, they (the
first respondent) have the authority
whether in terms of the Constitution or any other law of general
application to legislate
on environmental issues.
[4] To this end the applicant’s
arguments are simple and straight forward and may be summarized as
follows:-
In as much as the amendments
introduced by the first respondent,
were introduced in terms of the Town
Planning Ordinance but completed under the Planning and Development
Act, they are invalid;
and
That a Municipality has no
constitutional power to introduce such amendments with the
environmental functional area being the
subject matter.
[5] It is common cause that Planning
in KwaZulu-Natal had hitherto been regulated by the Town Planning
Ordinance, No. 27 of 1949
which has been referred to in Argument
before me as “TPO” which I will continue to refer to it
as. The TPO had been
repealed and replaced by the KwaZulu-Natal
Planning and Development Act, No. 6 of 2008 which is hereinafter
referred to as “PDA.”
The PDA was brought into existence
in stages which commenced on 1 March 2009 and the applicants contend
that those parts of the
PDA, relevant to this application were in
fact brought into operation by 1 May 2010. This is not disputed by
any of the respondents.
The PDA repealed the TPO but provided for a
transition from the TPO to the PDA. Schedule 4 of the Planning Act
(PDA) provides for
transitional measures for the Ordinance. Part 2 of
the Schedule deals with “
decisions not finalized in terms of
Ordinance before commencement of this Act.”
Item 12 thereof
provides as follows:-
“
A
Resolution to adopt provisions of a Town Planning Scheme or rescind,
alter or amend the provisions of a Town Planning Scheme in
terms of
Section 47
bis
(1)(a)
or 47
bis
A
(2) of the Ordinance that was taken before this Act commenced:- that
has not become effective, and has not been abandoned, must
be
proceeded with as if this Act has not commenced.”
[6] The point of departure between
the applicant on the one hand and the first respondent on the other
relates to the interpretation
of the phrase, “
a resolution
to adopt provisions.”
[7] The applicant contends that Item
12 of Schedule 4 only protects transitional procedures taken under
the TPO if the “
resolution to adopt”
Town Planning
Scheme Amendments was taken before 1 May 2010. They contend that no
such Resolution was taken prior to the notices
advertising the
proposed amendments being published and no Resolution of the Council
of the Municipality is referred to, prior
to date of publication.
Consequently, the applicants contend that the Municipality altered or
amended the provisions of the Town
Planning Schemes in a manner that
is
ultra vires
the enabling Statute. They refer in support of
their Argument to the case of
Schoonies Een (Pty) Ltd v Mtubatuba
Municipality
(unreported). Case No. 483/2012. A decision of PLOOS
VAN AMSTEL, J handed down on 11 June 2012, in support of their
proposition.
Whilst recognizing that the decision in
Schoonies Een
is different from the present case in as much as the Mtubatuba
Municipality was not exempted Municipality in terms of the provisions

of Section 47
bis
A of the TPO whereas in the present case the
Municipality is an exempted Municipality, they overlooked one crucial
difference between
the case of
Schoonies Een
on the one hand
and the present situation on the other, namely that in
Schoonies
Een
the process for the amendment of the Town Planning Scheme was
set in motion at the instance of the landowner in terms of the
provisions
of Section 47
bis
B and not at the instance of the
Municipality as in the present case in terms of the provisions of
Section 47
bis
A (2). In doing so, they clearly overlooked the
fact that for a Municipality to decide whether or not an amendment to
the Ordinance
should be undertaken it must, as a matter of course,
take a Resolution to that effect before any advertisement of the
requisite
notices is effected by publication. That publication is the
indication of the Municipality’s desire and intention to adopt

a particular stance. A Municipality, by its very nature, is not a
single person and, therefore, before any step is taken to publish
its
notice of intention to amend any provision it must resolve after
deliberation amongst its membership to adopt such a course
of
conduct. The case of
Schoonies Een
is therefore clearly
different from the present case in which the process was set in
motion by the Municipality itself and not by
a landowner. In the case
of
Schoonies Een,
the Municipality was obliged to publish the
requisite notices on behalf of the landowner and had no authority to
resolve whether
or not it should adopt a Resolution to that effect.
Therefore, the decision by PLOOS VAN AMSTEL, J in
Schoonies Een
cannot be regarded as authority for the proposition that in as much
as no Resolution is referred to, as having been taken by the

Municipality that the steps taken in publishing the relevant notices
is not a step taken that is protected by the provisions of
Item 12.
[8] In this regard, it is relevant to
bear in mind the provisions of Section 47
bis
(1)(a) referred
to in Item 12 which reads as follows:-
“
Before
a Municipality adopts any provisions as part of its scheme in course
of preparation or if it decides to rescind, alter or
amend any such
provisions adopted in terms of this Section, or prior to the
commencement of the Town Planning Amendment Ordinance,
1959
(Ordinance 19 of 1959), or adopted as part of its scheme in course of
preparation in terms of Section 48(3), it shall give
notice
of its intention
.”
(my underlining)
[9] Section 47
bis
A (2)(a)
stipulates as follows:-
“
Where
a Municipality exempted (as in this case) in terms of sub Section
1(a)
desires
to amend
any provision of its scheme in the course of preparation, it shall
give public notice
of
its intention
.”
(my underlining)
[10] Having regard to the words used
in the Sections referred to above, I am in full agreement with the
submissions by the first
respondent, that it is self-evident that a
Municipality cannot “
desire”
anything without a
Resolution to that effect by its Council (or by a committee or person
to whom the power to make such a decision
has been delegated in
compliance to the provisions of Local Government; Municipal Systems
Act) being taken. In the present case,
the first respondent points
out in the affidavit of Grieve, paragraph 96 at page 217 of the
papers that the required Resolution
was taken on 30 July 2009 and a
copy of the Resolution is annexed, marked “G2” commencing
at page 257 of the papers.
A comparison of the Argument contended for
on behalf of the applicant on the one hand and the first respondent
on the other, discloses
that the applicants contend that the
reference in Item 12 to “
a Resolution to adopt provisions”
refer to a Resolution which comes at the end of the entire
process. Such a construction is not logical and, in my view, defeats
the purpose of having a saving provision such as that referred to in
Item 12. Saving provisions were clearly intended to save the
costs
and labour expended in regard to those decisions up to the stage when
the PDA came into operation and to avoid the unnecessary
duplication
of such costs and labour by requiring all of those steps to be
repeated for a Resolution to be taken in terms of the
PDA.
[11] I am further in agreement with
the submission by the first respondent that to adopt the
interpretation argued for by the applicants
to the words “
Resolution
to adopt”
in Item 12 cannot be correct in as much as:-
In the case of non-exempted
Municipalities, the Resolution to adopt at the end of the process
was to be made under the Section
47
bis
(4) of the Ordinance;
and
In the case of exempted
Municipalities, that final decision was to be made in terms of
Section 47
bis
A (4) of the Ordinance.
Neither of which Sections are
referred to in Item 12. Item 12 would have of necessity had to refer
to those provisions if that was
indeed the intention of the
Legislature in promulgating that provision. On the other hand, if the
contentions of the applicant
were correct, then the reference in Item
12 to Sections 47
bis
(1)(a)
and 47
bis
A
(2) are meaningless and contribute nothing at all to the legislative
force of Item 12.
[12] I am respectfully in agreement
with the submission by and on behalf of the first respondent that the
learned Judge in
Schoonies
Een
was wrong when he
stated in paragraph 17 of his judgment that neither Sections 47
bis
(1)(a) or 47 A (2)
“
provides for a
Resolution or for the adoption or amendment of provisions of a
scheme”
to hold as
he did would imply that a Municipality would be incapable of
initiating an amendment process of its own. In this regard,
I am in
agreement with the submission that the learned Judge in
Schoonies
Een
overlooked that
“
desire or intention”
on behalf of a
Municipality can only be expressed by Resolution of its Council
“
or
of a committee or person lawfully delegated that function”
and
that the decision to go ahead is an important one. It is substantial
and substantive, not taken lightly and is not a mere formality.

Without such a decision or
“
desire
or intention”
in the
case of a Municipality initiating the amendment process, the
publication of its intention cannot follow.
[13] It is clear therefore that the
legislative device of using a term such as
“
desires
to”
or
“
wishes
to”
to denote a
first decision in a process designed ultimately to generate a
decision having legal effect, is exemplified in the decision
of
Diggers Development v City
of Matlosana.
1
In that case the Supreme Court of
Appeal considered an Ordinance which conferred powers on the Council
to let, sell, exchange or
otherwise alienate immovable property which
provided that:-
“
Whenever
a Council
wishes
(my underlining) to exercise any of the powers conferred by paragraph
(a) in respect of immovable property… the Council
shall cause
a notice of the Resolution to that effect to be:­-
Affixed
to the Public Notice Board of the Council; and
Published
in a newspaper…”
The Judgment in that case at
paragraph 22 thereof reads as follows:-
“
It
is clear from this Section that it is triggered once the Council
“
wishes”
to
exercise any power referred to in Section 79(18)(a). It must then
publish the notices to enable persons to object. The appropriate

dictionary meaning of the word ”
wish”
in the
shorter
oxford dictionary
is:-
‘
2.
a
desire
expressed in words or the expression of such’
There
is a difference between “
wish”
and ”
contemplate”
and the latter word being defined in the same dictionary as:-
‘
to
look at with continued attention.
to
deal mentally, to mediate upon, ponder, study.
3.
to consider in a certain aspect’ ”.
A person who “
wishes”
to do something, has decided to do so;
a person who
contemplates doing something has not yet decided whether or not to do
so. The Section uses the word “
wishes”
in two
places; “
whenever a Council wishes”
to exercise
any of the powers and “
any person who wishes to object”.
Both in context connote a settled intention.”
I am
in agreement with the submission on behalf of the first respondent
that there is no distinction to be drawn between the use
of the word
“
wishes”
in the
Diggers
case and the use of
the word “
desires”
in the Ordinance under
consideration. It is clear, therefore, in the case of the Town
Planning Ordinance, when a Municipality “
desires”
to do something, it has decided or resolved to do it. Furthermore, it
is clear that that decision can only be taken by a Resolution.
The
publication thereof is proof that the resolution had been taken to
proceed. One further matter has to be referred to in relation
to the
decision of
Schoonies Een
so heavily relied upon by the
applicant. That is, that in paragraph 22 of his Judgment in
Schoonies
Een,
PLOOS VAN AMSTEL, J observed that for the purposes of that
decision:-
“
It
is not strictly necessary for current purposes to identify the
Resolution contemplated by Item 12.” That exercise is only

relevant to the question whether it can be said that the publication
of the notice in terms of Section 47
bis
(1)(a) was such a Resolution, as that was the only step taken by the
Municipality before the commencement of the Planning Act.”
Clearly, therefore, he did not
consider the relevance of the resolution for current purposes, more
especially for the purposes of
Section 47
bis
A (2).
[14] In the present case, I am
satisfied that before the step was taken by the Municipality to
publish the advertisement of its
intention to amend the Ordinance to
bring into operation the D-MOSS Amendments, that it had in fact
resolved and taken a Resolution
to do so before such publication was
effected. Publication was additional proof of such a resolution. It
is clear from what followed
that at no stage did the Council take any
step or give any indication after publication that the process had
been abandoned.
[15] In the circumstances, I am
satisfied that in regard to the D-MOSS Amendments, such amendments
were pending and not finalized
and had not been abandoned before the
repeal of the Ordinance and are saved by the provisions of Schedule 4
of the Planning Act
and Part 2 of the Schedule, more especially Item
12 thereof, as contended for by the first respondent. Accordingly,
the submission
by the applicant that the D-MOSS Amendments are
invalid falls to be dismissed.
[16] The applicants contend that in
introducing the D-MOSS Amendments, the Municipality had acted
ultra
vires
its powers as it did
not have the authority to legislate in the sphere of the environment
which it contends is the exclusive sphere
of the National and
Provincial Government. In attempting to legislate on issues in
relation to the environment therefore the applicants
contend, that
the Municipality had acted unconstitutionally and illegally and,
therefore, the D-MOSS Amendments fall to be set
aside as being
unconstitutional and illegal. The applicant contends that the
“
environment”
is listed in Schedule 4,
Part A of the Constitution as a functional area of the current
National and Provincial competence, excluding
Municipalities at Local
Government level from such area of activity. The Argument by the
applicant is that in as much as the amendments
to the Town Planning
Scheme are legislative instruments and are law, the first respondent
does not have original or delegated authority
to legislate in
relation to the environment. Furthermore, the National Environment
Management Act, No. 107 of 1998 (NEMA) which
was enacted to give
effect to Section 24 of the Constitution regarding the protection of
the environment, which is the framework
Act providing for all
specific environmental laws makes no reference to environmental
impact procedures being exercised by Municipalities.
Nor does it
empower a Municipality to make laws relating to the protection of the
environment. Accordingly, the Municipality, by
creating the D-MOSS
Amendments has legislated for the protection of the environment and
has created its own process for authorizing
these activities at a
Municipal level. It is argued by the applicants that the functions of
the environmental authorities (Provincial
and National) and the
functions of the Municipality are different and distinct.
Accordingly, the Constitution sets out the executive
authority of
Municipalities which are the matters set out in Part B of Schedule 4
and Part B of Schedule 5 or
“
any
other matter assigned to it by National or Provincial legislation”.
In Section 156(1) of the
Constitution and, by virtue of the provisions of Section 156(2) of
the Constitution, the Municipalities
power to make bylaws is limited
to these fields or areas exclusively which does not include the
environment. This is notwithstanding
the provisions of Section 152
which lists as one of the objects of Local Government as
“
to
promote a safe and healthy environment”.
The
applicants contend that the Constitutional Court in the case of:
The
City of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal
2
decreed that Municipalities
constitutionally hold the functional power of Municipal planning to
the exclusion of other spheres of
Government or organs of their
making, and that the Supreme Court of Appeals in the same case
[2010(2) SA 554 SCA at 40-41] adopted
the definition of
“
Municipal
Planning”
which is
summarized as
“
the
control and regulation of land use at a Municipal level, the zoning
of land and establishment of townships.”
The
applicants contend that the other related functional areas in respect
of which Municipalities have authority are air pollution,
storm water
management services, water and sanitation services, beaches,
cemeteries, facilities for the accommodation, care and
burial of
animals, refuse removal, refuse dumps and solid waste disposal. They
submit that none of these approach the area of
“
environment”
or
“
nature
conservation”
or
“
biodiversity
protection”
. The
applicants contend further that in as much as D-MOSS Amendments
relate to land which consists of
“
indigenous
forests”
the
“
administration of
indigenous forests”
this
is a National or Provincial
functional area in respect of which the Municipality has no authority
to legislate. The applicants contend
that although there may be an
overlapping between regulation of land use and other functional areas
which overlapping is dealt
with in the case of
Maccsand
v City of Cape town
3
that such overlapping does not give a
Municipality the power to legislate in the functional areas
“
overlap”
.
[17] In addition, the applicants,
although they did not raise the unconstitutionality of the D-MOSS
Amendments on the basis that
it amounts to an expropriation or
deprivation of an owners proprietary rights contrary to the
provisions of the Constitution, raise
the issue of lack of
compensation and contend that the conduct of the Municipality in
enacting the D-MOSS Amendments amounts to
“
expropriation by
stealth”
which is “
unlawful, unconstitutional and
unconscionable”.
These aspects as correctly pointed out by
the first respondent in Argument, were only raised by the applicants
in reply and therefore,
constinute a new matter that the applicants
are impermissibly attempting to introduce. I agree with this
submission, and will accordingly
ignore this argument.
[18] In as much as it is common cause
that no expropriation of the applicant’s properties have
occurred. If and when it is
to occur, such expropriation would have
to be done:-
By law;
For a public purpose and in the
public interest; and
Subject to the payment of
compensation in accordance with the provisions of Section 25(2) of
the Bill of Rights.
This issue is therefore not an issue
that falls to be determined in the present application and I will
accordingly refrain from
making any ruling in respect thereof.
[19] I am in total agreement with the
submission by the first respondent that the approach adopted by the
applicant is unduly narrow
and incorrect. In the first place, Section
72 of the Bill of Rights provides:-
“
The
State must protect, promote and fulfill the rights in the Bill of
Rights”
Clearly, the “
State”
includes the Local Government in the form of the Municipality and
hence the first respondent. In as much as the Government is
constituted
by National, Provincial and Local spheres of Government
which are distinctive, interdependent and inter-related as provided
for
in Section 40(1) of the Constitution. It is clear therefore that
functional areas of Constitutional competence as set out in Schedules

4 and 5 of the Constitution are not the only provisions dealing with
Governmental responsibilities and duties. Section 24(b) of
the Bill
of Rights provides that everyone has the right to have an environment
protected, for the benefit of present and future
generations, through
reasonable legislative and other measures that:-
“
(i)
Prevent pollution and ecological degradation;
Promote
conservation; and
Secure
ecologically sustainable development and use of natural resources
while promoting justifiable, economic and social development”.
It is therefore correct, as pointed
out by the first respondent, that there is nothing in the Bill of
Rights itself to suggest that
the protections offered by Section 24
of the Constitution are only binding on National and Provincial
spheres of Government. Quite
evidently these obligations apply to all
three spheres of Government. Municipalities may not legislate in
conflict with Section
24 of the Constitution. It is evident that
Section 152(1)(d) of the Constitution requires that Local Government
“
promote a safe and
healthy environment”.
Together
with the reference in Section 24 of the Constitution to reasonable
legislative and other measures to promote ecologically
sustainable
development, justifiable economic and social development as well as
the promotion of conservation is also binding on
a Municipality when
it exercises its powers and performs its functions as set out in
Parts B of Schedules 4 and 5 of the Constitution
and those allocated
to it in terms of Section 156(1)(b) of the Constitution and Section
156(4). The Constitutional Court has recognized
in ex parte:
Chairperson of the
Constitutional Assembly
4
;
in re: certification of
the Constitution of the Republic of South Africa:-
“
at
the very minimum, socio economic rights can be negatively protected
from improper invasion”
[20] It is submitted by the first
respondent that it is within this context that Municipal powers
including the function “
Municipal Planning”
which
appears in Part B of Schedule 4 must be assessed and interpreted.
Section 156(1)(b) provides that a Municipality has the executive

authority and the right to administer not just matters listed in
Parts B of Schedule 4 and 5 but also:-
“
Any
other matter assigned to it by National or Provincial legislation”.
Accordingly, Section 156(4) of the
Constitution provides indications that even matters reserved for
National and Provincial legislative
authority in Parts A of Schedules
4 and 5 may be dealt with at Municipal level. It provides:-
“
The
National Government and Provincial Governments must assign to a
Municipality, by agreement and subject to any conditions, the

administration of a matter listed in Part A of Schedule 4, or Part A
of Schedule 5 which necessarily relates to Local Government,
if:-
The
matter would most effectively be administered locally; and
The
Municipality has the capacity to administer it”
Section 156(5) provides that
“
a
Municipality has the right to exercise any power concerning a matter
reasonably necessary for or incidental to, the effective
performance
of its functions.”
It
is apparent that although matters relating to the environment may be
said, in terms of the Constitution, to be the primary concern
or
sphere of National and Provincial responsibility that Local
Governments in the form of Municipalities are in the best position
to
know, understand, and deal with issues involving the environment at
the local level. The first respondent correctly submits,
in my view,
that the framers of the Constitution did not intend thereby to
allocate legislative powers amongst the three spheres
of Government
in hermetically sealed, distinct and water tight compartments. This
is apparent from the Constitutional Court ruling
in ex parte:
President of RSA
5
;
constitutionality of the
Liquor Bill, where it dealt with the allocation of powers to these
three spheres of Government at paragraph
40 thereof in the following
terms,
“
the first
provision of the Constitution constitutes the Republic of South
Africa as ‘one, sovereign, democratic state’.”
The
Unitarian emphasis of this provision is, however not absolute, since
it must be read in conjunction with the further provision
of the
Constitution which show that Governmental power is not located in
National entities alone. That appears particularly from
Section
40(1), in terms of which
“
Government
is constituted as National, Provincial and Local spheres of
Government which are distinctive, interdependent and inter-related”,
and from Section 43, in
terms of which the legislative authority is vested in Parliament for
the National sphere, in the Provincial
Legislatures for the
Provincial sphere and in Municipal Councils for the local sphere.
Section 40 is part of Chapter 3. This introduced
a
“
new
philosophy”
to the
constitution, namely that of co-operative Government and its
attendant obligations. In terms of that Philosophy, all spheres
of
Government are obliged in terms of Section 40(2) to observe and
adhere to the principles of co-operative Government as set out
in
Chapter 3 of the Constitution. In these circumstances, I am fully in
agreement with the submission by the first respondent that
the
environment is an ideal example of an area of legislative and
executive authority or power which had to reside in all three
levels
of Government and, therefore, could not be inserted in Parts B of
Schedules 4 and 5 and was instead inserted in Part A of
Schedule 4.
As was pointed out by the Constitutional Court in
Warey
Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another
6
:-
“
There
is no reason why the two spheres of control cannot co-exist even if
they overlap and even if, in respect of the approval of
sub-division
of ‘Agricultural Land’ the one may in effect veto the
decision of the other. It should be borne in mind,
that the one
sphere of control operates from a municipal perspective and the other
from a national perspective. Each having its’
own
constitutional and policy considerations.”
In a decision referred to by the
applicant in argument,
Maccsand
v City of Cape Town
7
the overlapping areas of control in
the Constitutional model were analyzed as follows:-
“
[47]
Another criticism leveled against the finding of the Supreme Court of
Appeal in
Maccsand
and the Minister or Mineral Resources
was
that, by endorsing a duplication of functions, the Court enabled the
local sphere to veto decisions of the national sphere on
a matter
that falls within the exclusive competence of the national sphere. At
face value this argument is attractive, but it lacks
substance. The
Constitution allocates powers to three spheres of Government in
accordance with the functional vision of what is
appropriate to each
sphere. But because these powers are not contained hermetically
sealed compartments, sometimes the exercise
of powers by two spheres
may result in an overlap. When this happens, neither sphere is
intruding into the functional area of another.
Each sphere would be
exercising power within its own competence. It is in this context
that the Constitution obliges these spheres
of Government to
co-operate with one another in mutual trust and good faith, and to
co-ordinate the actions taken with one another.
[48]
The fact that in this case mining cannot take place until the land in
question is apparently rezoned is therefore permissible
in our
Constitutional Order. It is proper for one sphere of Government to
take a decision whose implementation may not take place
until consent
is granted by another sphere, within whose area of jurisdiction the
decision is to be executed. If consent is, however,
refused it does
not mean that the first decision is vetoed. The authority from whom
consent was sought would have exercised its
powers, which does not
extend to the power of the other functionary. This is so, in spite of
the fact that the effect of the refusal
in those circumstances would
be that the first decision cannot be put into operation. This
difficulty may be resolved through co-operation
between the two
organs of State, failing which, the refusal may be challenged on
review”.
This view of the Constitutional Court
was confirmed in
Johannesburg
Municipality v
Gauteng Development Tribunal
8
:-
“
[55]
It is, however, true that the functional areas allocated to the
various spheres of Government are not contained in hermetically

sealed compartments. But that notwithstanding, they remained distinct
from one another. This is the position even in respect of
functional
areas that share the same wording, like roads, planning, sports and
others. The distinctiveness lies in the level at
which the particular
power is to be exercised. For example, the Provinces exercise powers
relating to provincial roads whereas
Municipalities have authorities
over
“
municipal
roads”
.
The prefix attached to each functional area identifies a sphere to
which it belongs. This distinguishes it from the functional
area
allocated to the others spheres. In the example given, the functional
area of provincial roads does not include
“
municipal
roads”.
In
the same vein
“
provincial
planning”
and
“
regional
planning and development”
do
not include
“
municipal
planning”
.
At paragraph 57 of that judgment, the
Constitutional Court explained the meaning of
“
municipal
planning”
in the following terms:-
“
[57]
Returning to the meaning of “
municipal
planning”
,
the term is not defined in the Constitution. But “
planning”,
in the context of Municipal affairs is a term which has assumed a
particular, well established meaning which includes the zoning
of
land and the establishment of townships. In that context, the term is
commonly used to define the control and regulation of
the use of
land. There is nothing in the Constitution indicating that the word
carries a meaning other than its common meaning
which includes the
control of regulation of the use of land. It must be assumed, in my
view, that when the Constitution drafters
chose the word to use
“
planning”
in the Municipal context, they were aware of its common meaning.
Therefore I agree with the Supreme Court of Appeal that in relation

to municipal matters the Constitution employs “
planning”
in its commonly understood sense…”.
[21] Municipalities under the banner
of “
municipal planning”
have historically always
exercised executive legislative responsibility over environmental
affairs within a municipal area. The
drafters of the Constitution
were aware of this fact and recognized this fact in the manner in
which the newer Constitutional dispensation
was formulated.
[22] It is clear that both at the
time that the Constitution was enacted and since then Municipalities
have been allocated by national
legislation and provincial
legislation and policies, a legislative and executive mandate with
respect to environmental matters,
placing such matters squarely
within the concept of municipal planning. The Local Government
Transition Act which came into effect
on 2 February 1994 provided:-
“
an
environment – every person shall have the right to an
environment which is not detrimental to his or her health or
wellbeing.”
The powers of the Transitional
Metropolitan Councils which were specified in Schedule 2 to the Act
included as item 19, “
metropolitan environment
conservation.”
The Transitional Act was amended to deal
with Metropolitan Councils and Metropolitan Local Councils. In the
case of Metropolitan
Councils, Item 21 of Schedule 2 required the
council to attend to “
the co-ordination of environmental
affairs.”
And in the case of Metropolitan Local Councils,
the mandate under Item 14 of Schedule 2 A was “
the
management and control of environmental affairs.”
These
amendments were introduced in November 1996 and required the councils
to which they related to formulate and implement “
integrated
development plan.”
It was defined as a plan aimed at
integrated development in management of the Municipal Area which had
to be compiled having regard
to the general principles contained in
Chapter 1 of the Development Facilitation Act, 1995 (Act 67 of 1995).
Section 31(c) of Chapter
1 of the
Development Facilitation Act
requires
policy, administrative practice and laws to promote
efficient and integrated land development with respect to a number of
features,
one of which is the encouragement of “
environmentally
sustainable land development practices and processes.”
Section 3(1)(h)
requires policy, administrative practice and laws to
promote “
sustained protection of the environment”.
[23] That was the state of the role
of municipalities with regard to planning and with regard to a
specific environmental mandate
at the time when the Constitution was
enacted in February 1997. This position prevailed with the
formulation of matters over which
municipalities had constitutional
competence and in particular in the formulation of the various
categories specified in Parts
B of Schedules 4 and 5 to the
Constitution. Accordingly, the framers of the Constitution must be
taken to have been aware of the
fact that the matters for which
Municipalities would be responsible, involved environmental
considerations. It is clear, therefore,
that when the functional
areas were allocated in Schedules 4 and 5, the framers of the
Constitution knew what
“
municipal
planning”
encompassed.
Although it is clear that the Local Government Transition Act was
meant to be transitional but the source of the LGTA
was Section 245
of the Interim Constitution which provided that
“
local
government shall not be restructured otherwise than in terms of the
Local Government Transition Act 1993
.”
As
KRIEGLER, J remarked at paragraph 178 in
Executive
Council Western Cape Legislative and Others v President of RSA
9
:-
“
The
metamorphosis is governed by the Transition Act all the way up to the
point where the democratically elected structures have
taken over.”
[24] Chapter 5 of the Municipal
Systems Act deals with integrated development planning at municipal
level and recognizes in Section
23(1)(c) that there is an obligation
on the Municipality:-
“
Together
with other organs of State to contribute to the progressive
realization of the fundamental rights contained in Section
24…
of the Constitution.”
This is clearly legislative mandate
from national legislature in regard to environmental matters.
[25] In
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another
10
the Constitutional Court, per YACOOB
J, recognized that the National Legislature, by promulgating the
Municipal Structures Act and
the Municipal Systems Act, recognized
that
“
land-use
planning”
is a
municipal competence
“
at
paragraph 132.”
It
went on to analyze the provisions of the Systems Act as follows:-
“
[133]
An integrated development plan is defined in the Municipal Structures
Act as a ‘plan aimed at the integrated development
and
management of a municipal area’. Truly integrated planning is
only possible if the Municipality decides on land-use within
the
bounds set by National and Provincial legislation”.
“
[134]
This is made explicit in the Municipal Systems Act that was passed
about two years later. The legislation compels each Municipal
Council
to adopt a single, inclusive and strategic plan for the development
of its Municipality. That plan is expressly required
to be
“c
ompatible
with National and Provincial development plans and planning
requirements binding on the Municipality in terms of legislation.”
This
requirement accords with the Constitutional allocation of the
legislative power in relation to Municipal planning concurrently
to
the National and Provincial governance. The plan must, amongst other
things, contain a spatial developmental framework which
must include
the provision of basic guidelines for a land-use management system
for a Municipality’ ”.
At paragraph 136 it went on to
emphasize the following:-
“
Some
requirements of the spatial developmental framework must be
emphasized.
The framework must ‘set out objectives that
reflect the desired spatial form of the municipality.
The
framework must also contain strategies to achieve the desired spatial
form, these strategies must ‘
indicate
desired patterns of land-use within the Municipality’
and ‘
address the
spatial reconstruction of the Municipality’
.
The strategy must also relate to the location and nature of
development within the Municipality. The final requirement of the

regulations worth mentioning is that the special framework must “
set
out basic guidelines for a land-use management system in the
Municipality”
.
[26] In addition, Section 2(4)(f) of
the Local Government; Municipal planning and Performance Management
Regulations published on
24 August 2001 requires spatial development
frameworks reflected in an integrated development plan to:-
“
contain
a strategic assessment of the environmental impact of the spatial
development framework”.
At paragraph 137 in
Warey Holdings
the Court went on further as follows:-
“
[137]
It will have been seen that the Constitution, the relevant
legislation and the regulations provide a comprehensive and careful

system for the involvement of National, Provincial and Local
Government in the process of Municipal spatial planning. It must be

emphasized that once it adopts an integrated development plan, a
Municipality must give effect to it and conduct its affairs in
a
manner consistent with that plan. Any rezoning decisions like the
decision in this case must be taken consistently with the integrated

Municipal plan. This plan must in turn be consistent with National
and Provincial Legislation”.
[27] In
Maccsand
(Pty) Ltd and Another v City of Cape Town Others,
11
the Supreme Court of Appeal located
zoning schemes within the private context of integrated development
plans and spatial development
frameworks as reflective of:-
“
The
central role [that Municipalities play] in land-use planning in their
areas of jurisdiction. It is, no doubt, appropriate for
them to do so
given their knowledge of local conditions…” (At
paragraphs 19-21)
The applicant has not disputed on the
papers that D-MOSS Amendments were introduced consistently with the
respondents integrated
development plan. The Municipality is under a
statutory duty to plan in accordance with its integrated development
plan. Nor is
there any suggestion by and on behalf of the applicants
that the provisions of D-MOSS conflict in any way with National or
Provincial
Legislation or Policies on such matters.
[28] The first respondent has
tendered the affidavits of Roberts and Forbes with respect to the
evolution of historical planning
and the integration of environmental
matters within that; and with respect to the contents of D-MOSS and
the split zoning initiatives.
That these two persons are experts
based on their curriculum vitae cannot be disputed and accordingly
was correctly not disputed
on the papers. The position adopted by the
applicants is that these witnesses were biased in as much as they had
a material interest
in the outcome of this application in as much as
the matter of Roberts’ PHD theses is the framework for the
D-MOSS Amendments.
In addition, both she and Forbes are employed by
the Municipality.
However, as correctly pointed out by
the first respondent, the facts testified to by both Roberts and
Forbes have not been contradicted
in any way by the applicants.
Accordingly, these facts remain undisputed on the papers before me. A
reading of the affidavits of
both Roberts and Forbes does not in my
view indicate the presence of any bias on their part in favour of the
first respondent.
And as correctly pointed out by the first
respondent in Argument, the allegations of bias would go the weight
to be attached to
their opinions and when, as in this case, their
factual evidence is not challenged, the weight to be attached thereto
is not diminished
in any significant respect. What is more, the
amicus curiae,
on behalf of the city of Cape Town supports the
views expressed by Roberts and Forbes. In addition, it is clear from
their submissions
that Cape Town spent many years developing “overlay
zones” to assist in protecting the environment, similar to that

presented in the D-MOSS Amendments. The city of Cape Town clearly
supports the position of the first respondent supported as it
is by
the evidence of Roberts and Forbes.
[29] In fact, none of the respondents
cited support of the stand point of the applicants
vis-a-vis
the contention that the first respondents’ transgression in the
field of environmental legislation in enacting the D-MOSS
Amendments
is unconstitutional and therefore unlawful. Most importantly, the
Minister of Environmental Affairs; the MEC; Agriculture
and
Environmental Affairs, KwaZulu-Natal and the MEC for Co-Operative
Governance, KwaZulu-Natal have not contradicted the view
or stand
point of the first respondent in this regard at all. If indeed, the
first respondent was transgressing into the exclusive
realm of the
National and Provincial Governance in legislating on Environmental
matters, I would be extremely surprised, to say
the least, if they
did not express their objection thereto in the present application.
The affidavits of Roberts, Forbes and indeed
Grieves indicate how
Municipal Planning Schemes have evolved from what they traditionally
were to what they are today. They clearly
indicate that it is
impossible as a matter of accepted town planning practice to divorce
environmental and conservation concerns
from town planning
principles. I agree.
[30] In the light of the applicant’s
failure to challenge from the evidence of Forbes, Roberts and
Grieves, I am in full agreement
with the submission by and on behalf
of the first respondent that such failure weakens the contentions and
arguments advanced by
the applicants. As concluded in
The
Minister of Health v New Clicks SA (Pty) Ltd and Others
12
where the Court found that such
failure to challenge and controvert the evidence results in the fact
that the evidence of the first
respondent in that regard stands
unchallenged as there is simply nothing to gainsay such evidence.
[31] Section 40(2) of the Town
Planning Ordinance passed in 1949 recognized that schemes shall deal
with matters referred to in
the Schedule to the Ordinance. Which is
headed
“
matters to be
dealt with by schemes”
and
includes as Item 15 the following:-
“
The
preservation or conservation of buildings or other objects of
architectural, historic or artistic interest and places of natural

interest or beauty”.
The last aspect thereof, clearly,
relates to environmental matters. It is correctly pointed out by the
first respondent that other
courts have recognized the provisions of
schemes containing conservation controls. In
Port
Edward Town Board v Kay
13
the court characterized a zoning of
“
conservation
reserve”
as a
“
legally enforceable
encumbrance relating to the property”
[at
681(i)] with the purpose being
“
nature
conservation”
at
[682(B)].
[32] In the Cape, the Land-Use
Planning Ordinance, 1985 and the Town Planning Schemes passed
pursuant to that ordinance have been
held to constitute statutory
provisions concerned with the protection of the environment in
Hangklip Environmental
Action Group v MEC Environmental Affairs
14
[33] In the result, I am satisfied
that the first respondent has proved that prior to the advent of the
Constitution
“
Municipal
Planning”
involved
the power to regulate land-use whilst taking into account, amongst
other things, the need to protect the natural environment.
It is
clear that the term
“
Municipal
Planning”
encompassed
that meaning when used in the Constitution. I am accordingly in full
agreement with the first respondent’s submission
that it is
impossible to separate environmental and conservation concerns in
town planning practice from a
“
Municipal
Planning”
perspective.
[34] It is accordingly not surprising
that NEMA, the
National Environmental Management Act, 107 of 1998
which replaced the Environmental Conservation Act, sets out in
Chapter 1, a set of national environmental management principles

which apply
“
throughout
the Republic to the actions of
all
organs of State
that
may significantly affect the environment”
.
The reference to all organs of State clearly encompasses Local
Government Structures such as the first respondent. Accordingly,
in
Fuel Retailers Association
v D-G: Environmental Management, Mphumulanga
15
NGCOBO, J characterized the
significance of NEMA’s principles as follows:-
“
[67]
NEMA principles “apply… to the actions of
all
organs of State
(my underlining) that may significantly affect the environment. They
provide not only the general framework within which environmental

management and implementation decisions must be formulated, but they
also provide guidelines that should guide the State organs
in the
exercise of their functions that may affect the environment. Perhaps
more importantly, these principles provide guidance
for the
interpretation and implementation not only of NEMA but any other
legislation that is concerned with the protection and
management of
the environment. It is therefore plain that these principles must be
observed as they are of considerable importance
to the protection and
management of the environment.”
[35] On 13 May 2009, the
KwaZulu-Natal Province published in an extraordinary Provincial
Gazette, the KwaZulu-Natal Environmental
Implementation Plan,
pursuant to Section 11 of NEMA. In Section 2.2 it lists “
functional
areas of competence with environmental relevance”
for
Municipalities and includes “
Municipal Planning”.
It also recognizes in Section 2.5.1 that in implementation of
environmental governance in the Local Government Sphere will occur

through the IDP (integrated development plan) which is the “
key
strategic document that guides all development activities within each
Municipality”
. As a matter of provincial policy therefore,
the KwaZulu-Natal Province recognizes the importance of environmental
matters within
“
Municipal Planning”.
[36] Moreover, Section 33 of NEMA
itself recognizes competence of Municipalities to legislate in
respect of the environment. This
Section allows a person to institute
a private prosecution in respect of a breach of any duty laid down,
inter alia, in any municipal
bylaw “
where that duty is
concerned with the protection of the environment and the breach of
that duty is an offence”
. Moreover, the Environmental
Management Framework Regulations which were published under NEMA in
June 2010 stresses the role of
Municipalities, and contain a
particular reference
(in Item 3.2.4)
to spatial development
frameworks which Municipalities are required to prepare in terms of
the Municipal Systems Act. The regulations
record that few of the
“
developed SDF’s are credible”
and states
requirements for such a document which include the requirement that
the spatial development framework must guide and
inform the following
within the municipality:-
“
1.
Plan for desired spatial growth of a municipal area,
viz
,
directions of growth, major movement routes;
2.
Guidelines for land-use management for the municipalities;
Special
development areas for targeted management to address past
imbalances;
Conservation
of both the built and the natural environment;
Areas
in which particular types of land use should be encouraged and
others discouraged; and
Areas
in which the intensity of land development could be either increased
or reduced”.
[37] NEMA therefore recognizes the
role of Municipalities and Municipal duties with regard to the
environment in its Municipal planning
function. It is clear,
therefore, that Municipalities are entitled to regulate environmental
matters from micro level for the protection
of the environment.
[38]
Section 48
of the
National
Environmental Management: Biodiversity Act, No. 10 of 2004
provides
for the co-ordination and alignment of Biodiversity Plans and
requires co-ordination between any Integrated Development
Plan
adopted by a Municipality, any spatial development framework
regulating land-use management, land development and spatial
planning
matters administered by the Minister responsible for land affairs and
any other plans prepared in terms of National or
Provincial
Legislation. Item 1.2 of the National Biodiversity Framework
recognizes that Municipalities do not have as their core
business,
Biodiversity Diversity conservation but their policies, programs and
decisions impact directly and substantially on how
South Africa’s
Biodiversity is managed. The following is said in relation to
Municipalities:-
“
(a)
These organs of State play a key role in managing natural resources,
and are required to take Biodiversity into account in terms
of the
Constitution and NEMA;
(b)
The local sphere of Government deserves particular mention. Day to
day decisions about how land and other natural resources
are used at
a local level ultimately determine whether development is
sustainable. While Local Government does not make all these
decisions
itself (many of them are made by provincial and national departments,
or by individual land owners or resource users),
it has a key role to
play in insuring co-ordination and integrated management of national
resources…”
[39] It is clear from the foregoing
and the Arguments advanced by the first respondent that contrary to
the submissions by and on
behalf of the applicants, Municipalities
have traditionally been involved in regulating environmental matters
at the local level
and that their functions at this level has been
recognized by the drafters of the Constitution. Hence, although
environmental matters
stood as the apparently exclusive area for
National and Provincial governance at those levels, it is clear that
the authority of
the Municipalities at Local Government level to
manage the environment at that level has always been and is still
recognized. It
is inconceivable that the drafters of the Constitution
intended by the manner in which the constitution was framed to
exclude Municipalities
altogether from legislating in respect of
environmental matters at the local level. In any event, it is clear
that national and
provincial legislation in respect of environmental
issues recognizes the part to be played by Municipalities at the
Local Government
level in managing and controlling the environment.
[40] Accordingly, I am satisfied that
Municipalities are in fact authorized to legislate in respect of
environmental matters to
protect the environment at the local level
and that the D-MOSS Amendments in no way transgress or intrude upon
the exclusive purview
of the National and Provincial governance in
respect of environmental legislation. I am, therefore, satisfied that
the D-MOSS Amendments
introduced by the first respondent is not
unconstitutional and invalid on the basis contended for the by
applicants, namely, that
the first respondent did not have the
authority to legislate in this regard.
I would accordingly dismiss the
application with costs, such costs to include the costs of two
counsel and I order that in as far
as the split zoning applications
are concerned, the first respondent is directed to pay the applicants
costs thereof on an unopposed
basis.
__________________
GYANDA
J
APPEARANCES
HEARD
ON: 14 NOVEMBER 2012
DELIVERED
ON: 30 JANUARY 2013
COUNSEL
FOR APPLICANT: ADV. A. J. DICKSON SC with ADV. M. DU PLESSIS
Instructed
by: Richard Evans & Associates
REFERENCE:
C C Smythe/vvs/Q2/R0146/11
(Tel.
033-392 0500)
COUNSEL
FOR DEFENDANT: ADV. P. J. OLSEN SC with A. A. GABRIEL SC
Instructed
by: De Wet Leitch Hands Inc.
(Ref.
Mr M. G. Hands)
c/o
Venn Nemeth & Hart Inc.
(Ref.
R. Stuart-Hill)
COUNSEL
FOR CITY OF CAPE TOWN: (Amicus Curiae): ADV. MAX DU PLESSIS
Instructed
by: Cullinan & Associates
1
(
824/2010)
[2011] ZASCA 247(1 December 2011)
2
2010(6)
SA 1826 (CC) at 49-57
3
2012(4)
SA 181 (CC) especially at 43-51 thereof
4
1996(4)
SA 744 (CC) at 78
5
2000(1)
SA 732 (CC)
6
2009(1)
SA 337 (CC)
7
2012(4)
SA 181 (CC)
8
2010(6)
SA 182 (CC) at 55
9
1995(4)
SA 877 (CC)
10
2009(1)
SA 337 (CC)
11
2011(6)
SA 633 (SCA)
12
2006(2)
SA 311 (CC) at 402-404
13
1996(3)
SA 664 (AD)
14
2007(6)
SA 65(C) at (B-E)
15
2007(6)
SA 4 (CC)