City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others (CCT89/09) [2010] ZACC 11; 2010 (6) SA 182 (CC) ; 2010 (9) BCLR 859 (CC) (18 June 2010)

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City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others (CCT89/09) [2010] ZACC 11; 2010 (6) SA 182 (CC) ; 2010 (9) BCLR 859 (CC) (18 June 2010)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 89/09
[2010
] ZACC 11
In
the matter between:
CI
TY
OF JOHANNESBURG METROPOLITAN
MUNICIPALITY Applicant
and
GAUTENG
DEVELOPMENT TRIBUNAL First Respondent
GAUTENG
DEVELOPMENT APPEAL TRIBUNAL Second Respondent
IVORY-PALM PROPERTIES 20 CC Third Respondent
PIETER MARTHINUS VAN DER WESTHUIZEN Fourth
Respondent
ELFREDA
ELIZABETH VAN DER WESTHUIZEN Fifth Respondent
MINISTER FOR LAND AFFAIRS Sixth Respondent
MEMBER OF THE EXECUTIVE COUNCIL FOR
DEVELOPMENT PLANNING AND LOCAL
GOVERNMENT,
GAUTENG Seventh Respondent
together
with
MEMBER OF THE EXECUTIVE COUNCIL OF
KWAZULU
-NATAL FOR LOCAL
GOVERNMENT
AND TRADITIONAL AFFAIRS First Intervening Part
y
ETHEKWINI MUNICIPALITY Second Intervening Party
DEPARTMENT OF AGRICULTURE, RURAL
DEVELOPMENT
AND LAND ADMINISTRATION,
MPUMALANGA PROVINCE Third Intervening Party
and
SOUTH
AFRICAN PROPERTY OWNERS ASSOCIATION First Amicus Curiae
SOUTH
AFRICAN COUNCIL
FOR CONSULTING
PROFESSIONAL PLANNERS
Second
Amicus Curiae
Heard on :
24 February
2010
Decided on :
18 June
2010
JUDGMENT
JAFTA J
:
Introduction
The
main issue in this case is the constitutionality of Chapters V and
VI of the
Development Facilitation Act 67 of 1995
(Act).
These chapters authorise provincial development tribunals
established in terms of the Act to determine applications
for the
rezoning of land and the establishment of townships. A dispute
arose in the province of Gauteng between the City of
Johannesburg
Metropolitan Municipality (City) and the Gauteng Development
Tribunal (Tribunal), a provincial organ created by
the Act. This
dispute is about which sphere of government is entitled, in terms
of the Constitution of the Republic of South
Africa, 1996 (1996
Constitution), to exercise the powers relating to the establishment
of townships and the rezoning of land
within the municipal area of
the City. The resolution of the dispute eluded the parties and the
City instituted an application
in the High Court, challenging the
constitutional validity of the Act.
1
This challenge proved unsuccessful.
On 22 September
2009, on appeal, the Supreme Court of Appeal granted an order that
declared Chapters V and VI of the Act to
be invalid but suspended
the declaration of invalidity for 18 months to enable Parliament to
remedy the defects identified
by the Court.
2
As required by section 167(5)
3
read with section 172(2)(a)
4
of the Constitution, and Rule 16
5
of the Rules of this Court, the order of the Supreme Court of
Appeal has been submitted to this Court for confirmation.
Parties
The
City seeks confirmation of the invalidity order, leave to appeal
against certain ancillary orders relating to the suspension
of the
declaration of invalidity, and also leave to appeal against the
dismissal of its appeal in relation to the review of
two decisions
of the Tribunal. It cites the Tribunal as the first respondent;
the Gauteng Development Appeal Tribunal (Appeal
Tribunal) as the
second respondent; Ivory
-Palm Properties
20 CC as the third respondent; Mr Pieter Marthinus van der
Westhuizen and Mrs Elfreda Elizabeth van der Westhuizen,
as the
fourth and fifth respondents respectively; the Minister for Land
Affairs (Minister), now known as the
Minister for Rural
Development and Land Reform,
as the sixth
respondent; and the Member of the Executive Council for Development
Planning and Local Government, Gauteng (MEC)
as the seventh
respondent.
The
third to fifth respondents are landowners who successfully applied
in terms of the Act to the Tribunal for the rezoning
of two
immovable properties and the establishment of a new township
development on each property. They did not resist the
relief
sought in the High Court, as they chose to abide the decision of
that Court, and have not participated in the proceedings
that
followed.
The Tribunal, the Appeal
Tribunal, the Minister and the MEC oppose the application for
confirmation and appeal against the order
granted by the Supreme
Court of Appeal. I will refer collectively to these parties as the
respondents.
The
Member of the Executive Council of KwaZulu-Natal for Local
Government and Traditional Affairs (MEC, KwaZulu-Natal), as will

appear below, is allowed to join the proceedings as is the
Department of Agriculture, Rural Development and Land
Administration,
Mpumalanga Province (Mpumalanga Department). These
parties will be referred to in this judgment as the provincial
departments.
In the same way, eThekwini Municipality is granted
permission to join the proceedings. It made common cause with the
City
and supported the application for confirmation.
Lastly,
the South African Property Owners Association and the South African
Council for Consulting Professional Planners were
admitted as amici
curiae. They generally align themselves with the respondents and
the provincial departments in requesting
this Court not to confirm
the declaration of constitutional invalidity.
It is now convenient to set out
the factual background relevant to the determination of the case.
Factual background
As
an authorised local authority under the Town
-Planning
and Townships Ordinance
6
(Ordinance), the City is empowered to consider applications to
rezone land and to establish new townships within its area of

control. It delegated these functions to its Planning Committee.
Difficulties emerged from 1997 onwards as the Tribunal,
empowered
by the Act, began to decide applications for “land
developments” (in the form of rezoning applications
and
applications for the establishment of townships) within the City’s
jurisdiction. The City says that in approving
a number of these
applications the Tribunal failed to take into account the City’s
development planning instruments and
was also more lenient than its
own Planning Committee. According to the City, this resulted in
decisions that undermined its
development planning and also allowed
for “forum-shopping” which undermined the authority of
the Planning Committee.
T
he
City held meetings with officials from the Gauteng Department of
Development Planning and Local Government and the Gauteng

Department of Finance and Economic Affairs in an attempt to resolve
the impasse. These meetings failed to produce a solution
and it
was agreed that the City should seek a declaratory order to clarify
the powers of the Tribunal and the Appeal Tribunal
under the Act.
On
31 March 2005, the City launched an application in the South
Gauteng High Court seeking declaratory relief relating to the

disputed powers. It also sought the review of two decisions made
by the Tribunal. These decisions were made pursuant to
applications for development of land that fell within the City’s
area of jurisdiction.
In
November 2003, Ivory
-Palm Properties 20
CC applied to the Tribunal for the establishment of a township
consisting of 21 erven on portion 229 of
the farm Roodekrans, 183
IQ. The application was made in terms of the Act. It was strongly
opposed by the City on the basis
that it was in conflict with the
City’s integrated development plan and its constituent parts,
the relevant spatial development
framework and the urban
development boundary. Notwithstanding the objection, the Tribunal
approved the establishment of the
township and also amended the
town planning scheme.
In
May 2004, Mr and Mrs van der Westhuizen applied to the Tribunal, as
joint owners of portion 228 of the farm Ruimsig, 265
IQ, for the
establishment of a township consisting of 9 erven on their
property. The City also opposed that application on
grounds
identical to those raised in the Roodekrans matter, but the
Tribunal once more approved the application.
In the High Court
The
City
challenged the constitutional
validity of section 33 of the Act in terms of which the decisions
of the Tribunal were taken.
7
It also sought the review of the Tribunal’s decisions in
respect of the Roodekrans and Ruimsig developments. In support
of
the constitutional challenge the City argued that the power to
approve the rezoning of land and the establishment of townships

does not fall within any of the functional areas listed in Part A
of Schedule 4 of the Constitution, but constitutes local
government
affairs over which municipalities have exclusive authority. In the
alternative, the City contended that the powers
in question fall
within the functional area of “municipal planning”
which is a local government competence in terms
of section 156(1)
of the Constitution, read with Part B of Schedule 4.
8
Accordingly, it submitted that, to the extent that section 33
empowers development tribunals to rezone land and establish

townships, the section is inconsistent with the Constitution and is
for that reason invalid.
In
the review applications, t
he City
challenged the validity of the Tribunal’s decisions on the
following grounds: the Tribunal lacked authority to
determine the
applications; it was influenced by material errors of law regarding
its powers and functions under the Act; and
it ignored relevant
considerations placed before it by the City.
Following
an analysis of the relevant sections of the Constitution, the High
Court held that the Constitution does not bestow
exclusive
executive powers on municipalities. The High Court construed
“municipal planning” to be limited to the

conceptualisation of plans without the power to implement them.
The Court held that in the context of Schedule 4 to the

Constitution, the term should be given its ordinary or literal
meaning which is “forward planning”. It therefore

concluded that the powers to rezone land and to approve the
establishment of townships fell outside the functional area of

“municipal planning”. It held further that those
powers formed part of “urban and rural development”,
a
functional area that falls outside of the municipalities’
executive authority.
Regarding
the claim for review, the High Court rejected the contention that
the Tribunal had no authority to determine the two
applications.
However, the Court found that the Tribunal may have committed an
error of law by holding that it was not bound
by the City’s
integrated development plan, but it held that the error, if any,
did not invalidate the decisions as it
was not a material error.
This was because it had not been shown that the Tribunal would have
reached a different decision
had it considered itself bound by the
integrated development plan and associated planning instruments, as
these instruments
allow for a degree of flexibility. As a result,
the Court held that the approval of the establishment of townships
falling
outside the City’s development boundary was valid.
The application was dismissed with no order as to costs. The City
appealed to the Supreme Court of Appeal.
In the Supreme Court of Appeal
The
Supreme Court of Appeal decided the issue relating to the
constitutionality of Chapter
s V and VI.
It characterised the issue before it as essentially the
determination of whether “municipal planning”

encompasses the approval of rezoning and the establishment of
townships. The Supreme Court of Appeal held that powers that
fall
within the functional area of “municipal planning” are
reserved for exercise by municipalities and may not
be assigned by
an Act of Parliament to another sphere of government. The Court
held that in the context of municipal functions,
the Constitution
uses the word “planning” to refer to the control and
regulation of land use. On this interpretation,
the Supreme Court
of Appeal concluded that municipal planning includes the power to
approve applications for the rezoning of
land and the establishment
of townships. By authorising tribunals to perform these functions,
the Court held, the Act is inconsistent
with the Constitution. It
declared the relevant chapters invalid. As required by the
Constitution, the order of the Supreme
Court of Appeal was referred
to this Court for confirmation. The Supreme Court of Appeal
declined to reverse the refusal of
the High Court to grant the
individual review applications on the basis that it could not fault
the findings and conclusion
of the High Court.
The issues in this Court
The
main issue is whether Chapters V and VI are indeed unconstitutional
by reason of being inconsistent with th
e
constitutional scheme for the allocation of functions between the
national, provincial and local spheres of government. If
they are,
the second issue relates to the appropriate remedy. The
determination of the first issue turns on the proper interpretation

of the impugned chapters, section 156 of the Constitution and the
functional areas of “regional planning and development”,

“provincial planning”, “municipal planning”
and “urban and rural development”. But before

considering these issues there are preliminary matters to be
disposed of.
Condonation
The
City
, the Mpumalanga Department and
eThekwini Municipality missed deadlines for the lodging of written
argument by a few days.
They have submitted substantive
applications in terms of which they seek condonation for the
delays. A reasonable and satisfactory
explanation has been
furnished in each case. The delays have neither prejudiced the
other parties nor have they inconvenienced
the Court. Therefore
condonation should be granted.
Applications for leave to
intervene
As
mentioned earlier, t
he provincial
departments responsible for the administration of the Act in
KwaZulu-Natal and Mpumalanga, together with eThekwini
Municipality,
seek leave to join the proceedings. Apart from showing that they
have a direct and substantial interest in the
confirmation of the
invalidity order, they have to satisfy the Court that their
intervention is in the interests of justice.
An important factor
in determining whether it is in the interests of justice to grant
leave to intervene is whether the information
and submissions a
party seeks to advance are helpful to the determination of the
issues.
9
eThekwini
Municipality falls in the same category of municipalities as the
City. It contends that the development tribunal
in KwaZulu-Natal
approves applications which are in conflict with its planning
instruments despite its objections. It argues
that by approving
applications relating to land that falls within its area of
jurisdiction, the KwaZulu-Natal tribunal impermissibly
encroaches
on its constitutionally-mandated functions. Therefore, it supports
the confirmation of the order of invalidity
and makes common cause
with the City.
The
provincial departments oppose confirmation, hence making common
cause with the respondents. The MEC, KwaZulu-Natal argues
that the
tribunals, acting in terms of the Act, provide an effective and
efficient process for determining applications for
development.
The MEC, KwaZulu-Natal alleges that, in KwaZulu-Natal alone, the
tribunal has approved applications for developments
exceeding R18
billion in value. The MEC further states that applications made to
municipalities are often delayed for long
periods and that this
stifles development. Although the municipalities dispute the
allegations relating to delays, it is not
necessary for present
purposes to establish whether they are correct or not. Suffice it
to say they constitute a small part
of a large body of averments
the provincial departments placed before this Court.
In
the case of Mpumalanga, unique facts were presented pertaining to
the determination of applications for development. We
were
informed that the Act is the only land use legislation that applies
uniformly throughout the province. This situation
is occasioned by
the fact that the operation of the Ordinance
10
is limited to areas that constituted the old Transvaal Province.
It does not apply to former self-governing territories and

“independent” homelands. As a result, some
municipalities consist of a patchwork quilt of former homeland
areas
and former Transvaal territories which would make it
impossible to manage land use without the benefit of the Act.
Therefore,
the provincial department argued that declaring the
impugned chapters invalid will create a gap in the areas where the
Ordinance
does not apply. It also argued that even where the
Ordinance applies throughout a municipality, many municipalities
lack capacity
to determine applications for rezoning and the
establishment of townships. All these are new facts and arguments
which were
not placed before the courts below.
All
applications for joinder were made as soon as each applicant became
aware of the confirmation proceedings. None of them
was opposed,
nor has it been shown that the other parties would be prejudiced by
their joinder. The facts and submissions
they seek to advance are
in my view helpful. Accordingly, I am satisfied that it is in the
interests of justice to grant joinder
in all applications.
Which Constitution applies?
The
amici argued that the 1996 Constitution cannot be invoked as a
benchmark against which the constitutionality of the impugned

chapters is tested. They submitted that the constitutional
validity of the Act must be tested against the interim
Constitution
11
which was in force at the time the Act came into operation on 22
December 1995. This is so, it was argued, because the City
does
not allege inconsistency with the Bill of Rights but contends that
the impugned chapters infringe the sections which allocated
powers
to the three spheres of government. For the proposition that the
interim Constitution applies, reliance was placed
on
Ynuico
Ltd v Minister of Trade and Industry and Others
.
12
They submitted further that under the interim Constitution the
impugned chapters were valid and their constitutionality is

preserved by item 2 of Schedule 6 of the 1996 Constitution.
The
reliance on
Ynuico
is, in my view, without merit. The authority cited does not
support the proposition advanced. In
Ynuico
the single submission which was
addressed by this Court was this: whether a pre-constitutional
statute that assigned plenary
legislative powers to a member of the
executive was in violation of section 37 of the interim
Constitution.
13
Section 2(1)(b) of the Import and Export Control Act 45 of 1963
empowered a Minister to issue a notice that prohibited the

importation into South Africa of certain goods without a permit.
On 23 December 1988, the Minister issued a prohibitory notice.

Having failed to secure a permit, the applicant in that case
challenged the constitutionality of the section. It contended
that
the old Parliament, when it enacted the Act in question (in 1963),
violated section 37 of the interim Constitution, even
though that
Constitution came into force on 27 April 1994. It argued that
section 37 entrusted Parliament, and Parliament
alone, with plenary
legislative power which could not be surrendered to a Minister. In
rejecting the constitutional challenge,
this Court held that, based
on the wording of section 37, the section did not apply to
pre-constitutional legislation as the
reference to Parliament under
section 37 meant Parliament as constituted in terms of the interim
Constitution and not the old
order Parliament.
14
This narrow finding does not support the amici’s broad
contention that the validity of the Act in this case cannot be

challenged under the 1996 Constitution.
The
submission that item 2 of Schedule 6
15
of the 1996 Constitution preserved the validity of all laws which
were valid under the interim Constitution is also not accurate.
It
is true that the item retained the laws which were in force before
the 1996 Constitution came into operation. But the
item explicitly
decrees that the validity of these laws is subject to them being
consistent with the Constitution. This then
means that if the
impugned chapters are inconsistent with the 1996 Constitution, they
became invalid when it came into force.
They
may have been invalid also under the interim Constitution. Whether
that is so is unnecessary to decide, since they were
not challenged
then. They are challenged now, and it is under the present
Constitution that their validity must be determined.
It
is now convenient to set out the background to legislation
regulating land use management
.
Background
to land use management legislation
Prior to 1994, land
use in South Africa was primarily governed by four provincial
ordinances.
16
These pieces of old order legislation remain in force. As has
been mentioned, the City exercises its powers to rezone land
and to
approve the establishment of townships in terms of the Ordinance.
The Ordinance authorises the relevant provincial
authority
(referred to in the Ordinance as the “Administrator”)
17
to administer the Ordinance and, in terms of section 2, to declare
municipalities to be “authorised local authorities”

with the mandate to exercise powers contained in Chapters II, III
and IV.
18
The Ordinance
provides for the creation of town-planning schemes by
municipalities. These schemes set out the manner in which
land
within the municipal area will be used (“zoning”).
Authorised local authorities are empowered to consider
and approve
applications to amend these schemes (commonly referred to as
“rezoning applications”) and are also
empowered to
approve the establishment of townships,
19
all subject to appeals to the provincial authority. Where a local
authority has not been authorised, the final decision on
the
approval of rezoning applications or township developments rests
with the provincial authority. A similar scheme applied
under the
KwaZulu-Natal Town Planning Ordinance, in terms of which eThekwini
Municipality exercised the contested powers.
As from 1 May 2010,
eThekwini Municipality now exercises these powers under the
KwaZulu-Natal Planning and Development Act.
20
As has been alluded
to above, the difficulty with these ordinances is that they apply
only in those territories that formed
part of the old Cape, Natal,
Orange Free State and Transvaal Provinces.
21
They have no application to the former “independent”
homelands
22
and self-governing territories,
23
which were governed by a parallel system of planning legislation.
24
Furthermore, the creation of the nine provinces has meant that
there has been further fragmentation as each province may be

subject to a multiplicity of territorially-based legislative
regimes.
This situation cries
out for legislative reform. The Act was intended to provide a
temporary stop-gap, pending the enactment
of comprehensive land use
legislation that would rationalise the existing laws.
25
The Land Use Management Bill
26
is intended to play this role. However, its enactment has been
frequently stalled. We have been informed that it has been

withdrawn for reconsideration.
With this background
in mind, it is now possible to consider the relevant provisions of
the Act.
The
Development Facilitation Act
As
mentioned earlier, the Act was passed
before the 1996 Constitution came into force. It was designed to
apply throughout the
country to speed up land development. Its
primary objects are, as the long title proclaims: to facilitate and
expedite the
implementation of the reconstruction and development
programmes and projects by introducing extraordinary measures; to
lay
down general principles regulating all land developments,
irrespective of whether the development is undertaken in terms of

the Act or some other law;
27
and to establish, in all provinces, development tribunals with
powers to determine land development applications.
In
Chapter III, the Act establishes, for each province, a development
tribunal consisting of members appointed by the Premier
subject to
approval by the provincial legislature.
28
The Act requires that tribunals should have, as some of their
members, representatives of local government.
29
However, during the hearing we were informed that in the Western
Cape Province members of the tribunal have not been appointed
and,
as a result, the municipalities exercise the contested powers in
terms of the relevant ordinance.
The
powers and functions of the development tribunals are se
t
out in section 16 which provides:
“
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.”
Chapter
V consists of sections 30 to 47. It defines the process that must
be followed in submitting applications to a development
tribunal
and outlines some of the powers and functions of the tribunals
referred to in section 16. Section 30 empowers tribunals
to grant
exemptions from the provisions of this chapter on terms and
conditions deemed necessary by them. Section 31 identifies
the
parties who may apply for land development and sets out the
procedure to be followed in submitting an application to a

designated officer. The applicant is required to give notice of
its application to prescribed parties
30
who are permitted to make comments on or lodge objections against
the application. Then the applicant is afforded the opportunity
to
reply. Once all representations are submitted, the designated
officer compiles a report which he or she submits, together
with
the documents received from the parties, to the tribunal.
31
The key section is section 33 which regulates the determination of
land development applications by tribunals and also entrusts
them
with wide ranging powers. This includes the power to override
municipal instruments governing land administration and
the power
to exclude the operation of laws – including Acts of
Parliament – in relation to land forming the subject-matter

of a land development application.
Section 33 provides:
“
(1) After receipt of the
documents referred to in section 32 and on the date referred to in
section 31(4)(b), a tribunal shall
consider and may approve or
refuse the land development application in whole or in part or
postpone its decision thereon and
may in approving the land
development application impose one or more of the conditions
contemplated in subsection (2).
(2) In
approving a land development application a tribunal may, either of
it its own accord or in response to that application,
impose any
condition of establishment relating to—
(a) the
provision of engineering services;
(b) the
provision or transfer of land to any competent authority for use as
a public open space, or the payment of a sum of money
in lieu
thereof;
(c)
the
provision of streets, parks and other open spaces;
(d) the
suspension of restrictive conditions or servitudes affecting the
land on which a land development area is to be established;
(e) the
registration of additional servitudes affecting the land on which a
land development area is to be established;
(f) the
question whether any building standards laid down in regulations
made under the National Building Regulations and Building
Standards
Act, 1977 (Act No. 103 of 1977), or in any zoning scheme, regulation
or bylaw of a local authority under any law, are
to apply in respect
of the erection of buildings or any class of buildings on a land
development area;
(g)
the
question whether it is nevertheless necessary for building plans to
be submitted to and approved by the competent authority
prior to the
erection of buildings in the case where a condition is imposed to
the effect that the building standards contemplated
in paragraph (f)
will not apply in respect of a land development area;
(h) the
question whether the use of land in a land development area is to be
regulated by—
(i) a zoning
scheme or other measure under any law governing land development or
land-use planning in the area concerned;
(ii)
general
provisions relating to land use which have been prescribed; or
(iii)
specific
provisions relating to special or strategic projects which have been
prescribed;
(i)
any
amendment to a zoning scheme, other measure or provision referred to
in paragraph (h), for the purpose of applying it to
a land
development area;
(j)
the
question whether the provisions of—
(i) sections
9A and 11 of the Advertising on Roads and Ribbon Development Act,
1940 (Act No. 21 of 1940);
(ii)
any
law on physical planning;
(iii)
section
12 of the National Roads Act, 1971 (Act No. 54 of 1971);
(iv) any law
requiring the approval of an authority for the subdivision of land;
(v)
any
law requiring the issuing of a receipt, certificate or any other
document by a local government body, public revenue officer
or other
competent authority, as a prerequisite to the transfer of land in a
land development area; or
(vi) any
other law relating to land development, but not the Restitution of
Land Rights Act, 1994 (Act No. 22 of 1994), which
in the opinion of
the tribunal may have a dilatory effect on the development of a land
development area or the settlement of
persons therein,
shall apply
in respect of a land development area in
question:
Provided that a decision to suspend the application of a law shall
be taken after the tribunal has afforded the authority,
if any,
which is responsible for the administration of the law, and any
other interested person or body an opportunity to provide
the
tribunal with its views on the expedience of such a decision in the
circumstances;
(k)
the
provision of educational and other community facilities;
(l)
the
question whether the land in the land development area is to be
subdivided in terms of this Chapter and if not, whether any
other
provisions of this Chapter will apply;
(m) the
ownership of the land forming the subject of a land development
application and the administration of the settlement of
persons on
such land by any person, trust, body of persons or juristic person
with due regard to the wishes of the community
concerned and subject
to the provisions of any law;
(n)
the
environment or environmental evaluations;
(o) the
manner in which members of any community residing in a settlement
shall be consulted during the process of land development
whenever
land development takes the form of the upgrading of an existing
settlement;
(p)
the
manner in which the interests of any beneficial occupier of the land
development area are to be accommodated whenever land
development
takes the form of the upgrading of an existing settlement; and
(q)
any
other matter considered necessary by the tribunal.
(3) A
condition of establishment imposed under—
(a) subsection
(2)(d), has the effect that the restrictive condition or servitude
concerned is suspended, subject to section 34;
(b)
subsection
(2)(f) or (g)—
(i) has
effect despite any provision to the contrary contained in the
National Building Regulations and Building Standards Act,
1977, or
any law authorising a local government body to make building
regulations or bylaws;
(ii) does
not prevent any owner or prospective owner of land in a land
development area from submitting building plans to the
competent
authority for its approval prior to the erection of the building
concerned or complying with any national building
regulation, zoning
scheme, regulation or bylaw contemplated in that subsection;
(c) subsection
(2)(h) or (i) has effect despite any provision to the contrary in
any other law governing land development or land-use
planning or
zoning schemes;
(d) subsection
2(j) relating to the suspension of the application of any law
referred to in that subsection, has the effect of
suspending the
application of such a law.
(4) A
condition of establishment referred to in subsection (3) comes into
operation upon notice of the condition being given by
the designated
officer in the
Provincial Gazette
,
or if a later date is stated in the notice, from such later date.
(5) A condition imposed under
subsection (2) according to which a land development applicant shall
perform any act, shall state
by which stage in the course of the
establishment of the land development area such act shall be
performed.
(6) The
designated officer shall inform the registrar of the approval of a
land development application.”
The
reach of this section is so wide that it covers almost all land in
the country. It applies to all land development applications

irrespective of where the land is located and regardless of whether
some other law governs development on it. The term “land

development application” is defined as an application lodged
in terms of section 31(2) or section 49(2) and must be construed

with reference to “land development” which is defined
in the widest terms 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”.
32
The
provisions of Chapter VI are couched in terms
identical
to those of Chapter V analysed above. Chapter VI consists of
sections 48 to 60 and governs applications for development
relating
to small-scale farming. Section 51 of Chapter VI is the equivalent
of section 33 of Chapter V. As mentioned earlier,
the scope of the
two chapters is so wide that they cover all land developments
excluding only developments that relate to prospecting
and mining.
There can be no doubt, therefore, that these chapters authorise
development tribunals to determine applications
for rezoning and
the establishment of townships.
The
question that needs consideration is whether, by conferring the
powers concerned on development tribunals, these chapters
are
consistent with the provisions of the Constitution regulating the
allocation of powers and functions to municipalities.
I proceed to
consider and interpret the relevant provisions of the Constitution.
The
constitutional scheme
Section
40 of the Constitution
defines the model
of government contemplated in the Constitution.
33
In terms of this section the government consists of three spheres:
the national, provincial and local spheres of government.
These
spheres are distinct from one another and yet interdependent and
interrelated. Each sphere is granted the autonomy
to exercise its
powers and perform its functions within the parameters of its
defined space.
34
Furthermore, each sphere must respect the status, powers and
functions of government in the other spheres and “not assume

any power or function except those conferred on [it] in terms of
the Constitution”.
35
The
scope of intervention by one sphere in the affairs of another is
highly circumscribed. The national and provincial spheres
are
permitted by sections 100 and 139 of the Constitution to undertake
interventions to assume control over the affairs of
another sphere
or to perform the functions of another sphere under certain
well-defined circumstances, the details of which
are set out below.
Suffice it now to say that the national and provincial spheres are
not entitled to usurp the functions
of the municipal sphere except
in exceptional circumstances, but only temporarily and in
compliance with strict procedures.
This is the constitutional
scheme in the context of which the powers conferred on each sphere
must be construed.
The
starting point
in assessing the powers of
the local government sphere is section 156(1) which affords
municipalities original constitutional
powers. It reads:
“
(1) 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.”
Part B of Schedule 4 includes the
following functional areas:
“
The
following local government matters to the extent set out in
section
155(6)(a) and (7):
Air pollution
Building regulations
Child care facilities
Electricity and gas
reticulation
Firefighting services
Local tourism
Municipal airports
Municipal planning
Municipal health services
Municipal
public transport. . .”.
The
functio
nal areas listed in Part B of
Schedule 5 are not material to the present enquiry. Part B of
Schedule 4 and Part B of Schedule
5 itemise the functional areas
assigned to municipalities, and these functions may be regulated by
the national and provincial
spheres of government to the extent
defined in section 155(6)(a) and (7).
Section
155(6)(a) obliges each provincial government to establish
municipalities within its province and once established, to
provide
for their monitoring and support. Furthermore, section 155(7)
imposes an obligation on national and provincial governments
to
“see to the effective performance by municipalities of their
functions in respect of matters listed in Schedules 4
and 5, by
regulating the exercise by municipalities of their executive
authority referred to in section 156(1).” The
effect of
these provisions is that, except to the extent set out above, the
executive authority over, or the power to administer,
matters
listed in Part B of Schedules 4 and 5 is vested in municipalities.
The
functional area material to the determination of whether Chapters V
and VI of the Act are inconsistent with the Constitution
is
“municipal planning”. It is necessary to construe this
term so as to determine whether it includes the power
to authorise
land rezoning and the establishment of townships. For if it does,
the contested powers fall within the executive
authority of
municipalities.
Meaning of “municipal
planning”
In
Department of Land Affairs and Others
v Goedgelegen Tropical Fruits (Pty) Ltd
36
this Court reiterated that the Constitution must be interpreted
purposively. In the context of the Schedule 4 and 5 functional

areas, this Court has held that the purposive interpretation must
be conducted in a manner that will allow the spheres of government

to exercise their powers “fully and effectively.”
37
The
purpose of the
se schedules is to itemise
the powers and functions allocated to each sphere of government.
As stated earlier, our Constitution
contemplates some degree of
autonomy for each sphere.
38
This autonomy cannot be achieved if the functional areas itemised
in the schedules are construed in a manner that fails to
give
effect to the constitutional vision of distinct spheres of
government.
The
respondents argued that “municipal planning” means
the “forward planning” of all the powers and functions
allocated to municipalities by section 156 of the Constitution.

Invoking the rule of interpretation that where a word appears more
than once in a statute it must be construed consistently,
they
argued that the meaning ascribed to the term “planning”
by the Supreme Court of Appeal was incorrect because
the same
meaning cannot be given to “planning” in the functional
areas of “regional planning and development”
and
“provincial planning”.
It
is true that the legislature is presumed to use language
consistently but this is a presumption which can be rebutted by
the
clear intention of the legislature as evinced by the context in
which a particular word appears in different parts of a
statute.
Different contexts in which a word is used may warrant different
meanings to be ascribed to it. In
Head
of Department, Mpumalanga Department of Education and Another v
Hoërskool Ermelo and Another
39
Moseneke DCJ affirmed the application of the presumption in the
following terms:
“
[P]recepts
of statutory interpretation suggest that the word ‘function’
should have the same meaning wherever it occurs
in the statute,
since there is ‘a reasonable supposition, if not a
presumption’ that ‘the same words in the
same statute
bear the same meaning’ throughout the statute.”
(Footnote omitted.)
However
,
in this case we are concerned with the interpretation of the
Constitution and not a statute. But, likewise, if a word is used

more than once in the Constitution, it is presumed to carry the same
meaning unless there is a clear indication to the contrary.
T
he
constitutional scheme referred to earlier, together with the
different contexts in which the term “planning”
is
used, indicate clearly, in my view, that the term has different
meanings. The Constitution confers different planning
responsibilities on each of the three spheres of government in
accordance with what is appropriate to each sphere. In
Ex
Parte President of the Republic of South Africa: In re
Constitutionality of the Liquor Bill
40
this Court said:
“
The
Constitution-makers’ allocation of
powers to the national and provincial spheres appears to have
proceeded from a functional
vision of what was appropriate to each
sphere and, accordingly, the competences itemised in Schedules 4 and
5 are referred to
as being in respect of ‘functional areas’.
The ambit of the provinces’ exclusive powers must, in my
view,
be determined in the light of that vision.”
T
he
Constitution confers “planning” on all spheres of
government by allocating “regional planning and development”

concurrently to the national and provincial spheres, “provincial
planning” exclusively to the provincial sphere,
and executive
authority over, and the right to administer “municipal
planning” to the local sphere. The first
functional area
mentioned also indicates the close link between planning and
development. Indeed it is difficult to conceive
of any development
that can take place without planning.
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 remain distinct from one another. This is the position even
in respect of functional areas that share the same wording
like
roads, planning, sport and others. The distinctiveness lies in the
level at which a particular power is exercised. For
example, the
provinces exercise powers relating to “provincial roads”
whereas municipalities have authority over
“municipal roads”.
The prefix attached to each functional area identifies the sphere
to which it belongs and distinguishes
it from the functional areas
allocated to the other spheres. In the example just 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”.
The
constitutional scheme propels one ineluctably to the conclusion
that, barring functional areas of concurrent competence,
each
sphere of government is allocated separate and distinct powers
which it alone is entitled to exercise.
Of course, the constitutionally mandated interventions in terms of
sections 100 (national interventions in the provincial
sphere) and
139 (provincial interventions in the municipal sphere) constitute
an exception to the principle of relative and
limited autonomy of
the spheres of government.
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 and regulation of the use of land.
It must be assumed, in my view, that when the Constitution
drafters chose 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.
As a result I
find that the contested powers form part of “municipal
planning”.
Does the Constitution allocate the
same powers to the provincial sphere?
The
question that arises is whether the same powers are also part of
“urban and rural development”
under Part A of Schedule 4, as contended for by the respondents.
To construe any of the functional areas
allocated to provinces as encompassing the contested powers will
not only be inconsistent
with the constitutional scheme as revealed
in the schedules, but also with sections 41,
41
151
42
and 155
43
of the Constitution. Section 41(1)(e)-(g) establishes the
principles of co-operative government and intergovernmental
relations.
As mentioned above, it specifically requires the
spheres of government to respect the functions of other spheres,
not to assume
any functions or powers not conferred on them by the
Constitution and not to encroach upon the functional integrity of
other
spheres. This is amplified by section 151(4) which precludes
the other spheres from impeding or compromising a municipality’s

ability or right to exercise its powers or perform its functions.
The
legislative authority in respect of matters listed in Part B of
Schedule 4 vests in the national and provincial spheres

concurrently, while the legislative authority over matters listed
in Part B of Schedule 5 vests in the provincial sphere exclusively
.
But the national and provincial spheres cannot, by legislation,
give themselves the power to exercise executive municipal
powers or
the right to administer municipal affairs. The mandate of these
two spheres is ordinarily limited to regulating
the exercise of
executive municipal powers and the administration of municipal
affairs by municipalities.
The
respondents argued that provincial development tribunals cannot be
taken to be impeding or compromising municipalities when
they
exercise the contested powers simply because they would be
exercising powers falling within the functional area of “urban

and rural development”. This functional area is conferred on
both the national and provincial spheres. It was then
submitted
that there can be no breach of section 151(4) when the provinces
exercise powers rightly allocated to them by the
Constitution.
This submission is based on the
assumption that the term “urban and rural development”
ought to be given its ordinary,
wide meaning.
I
have already defined the context in which all functional areas must
be construed. The wide import of “urban and rural

development” stands at odds with the approach outlined above.
It is the duty of this Court, and indeed the other courts
as well,
to construe the sections of the Constitution in a manner that
strikes harmony between them and gives effect to each
and every
section. In
United Democratic
Movement v President of the Republic of South Africa and Others (No
2)
,
44
this Court stated:
“
A court must endeavour
to give effect to all the provisions of the Constitution. It would
be extraordinary to conclude that a
provision of the Constitution
cannot be enforced because of an irreconcilable tension with another
provision. When there is
tension, the courts must do their best to
harmonise the relevant provisions, and give effect to all of them.”
The purposive
construction of the schedules requires, in the present context,
that a restrictive meaning be ascribed to “development”

so as to enable each sphere to exercise its powers without
interference by the other spheres. This restrictive approach

coheres with the functional scheme of the schedules which vests
specific powers in municipalities.
For
present purposes it is not necessary, in my view, to define
exactly the scope of the functional area of “urban and rural
development”. It is sufficient to say simply that
it is not
broad enough to include powers forming part of “municipal
planning”. It follows that the expansive interpretation

contended for by the respondents must be rejected.
The
amici argued that since the national and provincial spheres have
legislative power to regulate the exercise by municipalities
of
their executive powers, the provinces have executive powers in
relation to municipal matters.
For this
proposition reliance was placed on the
First
Certification
45
judgment where this Court said:
“
To
the extent that provincial legislative powers may have been
diminished or at least circumscribed in the manner described above,

it follows that there would be a concomitant diminution or
circumscription of provincial executive powers in relation to [
local
government]. In terms of [section] 144(2) [of the interim
Constitution], a province has executive authority over all matters

in respect of which such province has exercised its legislative
competence. Thus, to the extent that provinces currently enjoy

broad and undefined legislative powers under . . . chap 10 [of the
interim Constitution], they are vested with broad and undefined

executive powers. In the [1996 Constitution], the legislative and
executive frameworks also coincide. [Sections] 154(1) and
155 [of
the 1996 Constitution] indicate that where national or provincial
legislative powers can be exercised in relation to
[local
government], executive powers follow. Thus, to the extent that
provincial legislative powers have been diminished or
increased in
respect of [local government], there would be a corresponding
diminution or increase in respect of executive powers.”
The
dictum quoted above does not support the
proposition contended for, and the meaning sought to be ascribed to
the passage is
incorrect. The principle that can be distilled from
the dictum is that where there is a diminution of provincial
legislative
powers in relation to local government, there would be
a corresponding diminution of executive powers too. This does not
mean
that the provinces have the power to exercise the executive
powers of municipalities outside the purview of section 139 of the

Constitution.
46
Section
139 empowers the provinces to intervene where a municipality cannot
or does not fulfil an executive obligation in terms
of the
Constitution. If it intervenes, the provincial government may take
appropriate steps to ensure that the obligation
in question is
fulfilled. The steps taken may include the provincial government
itself assuming the responsibility for the
obligation or even
dissolving a municipal council and replacing it with an
administrator. The intervention is, however, subject
to various
conditions tabulated in the section.
It
was also argued that the other spheres of government have
concurrent authority to exercise powers similar to those of

municipalities. The amici submitted that in
Wary
Holdings
47
this Court recognised concurrency of powers between the national
and local governments. In that case Kroon AJ, writing for
the
majority, said:
“
I am
not persuaded, however, that the enhanced status of municipalities
and the fact that they have such powers is a ground for
ascribing to
the legislature the intention that national control over
‘agricultural land’ through the Agricultural
Land Act,
effectively be a thing of the past. 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 subdivision of ‘agricultural
land’, the one may in effect veto
the decision of the other
.”
(Footnote omitted.)
Wary
Holdings
is distinguishable from the
present case. There the Court was not directly confronted with the
question of interpreting the
Constitution and its schedules. The
Court was concerned with the interpretation of an Act of Parliament
which empowered the
Minister for Agriculture to exercise certain
powers relating to agricultural land. The statement quoted above
must be read
in that context. The Court did not pronounce on
whether the Constitution permits the concurrent exercise of powers
between
the national and local spheres of government. I therefore
do not read
Wary Holdings
as
suggesting that the national sphere has executive powers in the
municipal sphere that extend beyond its constitutionally
prescribed
roles of regulating the exercise of municipal powers by
municipalities themselves
48
and strengthening their capacity to manage their own affairs.
49
It
was further submitted that Chapters V and VI of the Act were not
concerned with planning but that they have permissibly established

institutions with adjudicatory powers to determine land development
applications. I have pointed out already that in granting

applications for rezoning or the establishment of townships the
development tribunals encroach on the functional area of “municipal

planning”. The form that such encroachment takes matters
not.
It follows, therefore, that the
impugned chapters are inconsistent with section 156 of the
Constitution read with Part B of
Schedule 4.
Remedy
The
finding that the impugned chapters are inconsistent with the
Constitution leads inevitably to the confirmation of the order
of
invalidity granted by the Supreme Court of Appeal. The question
that arises in this regard is whether the remaining part
of that
order is just and equitable in all the circumstances of the present
case.
50
The starting point in an enquiry of this nature is section 172(1)
of the Constitution. It provides:
“
(1) When
deciding a constitutional matter within its power
,
a court
—
(a) must declare that any law
or conduct that is inconsistent with the Constitution is invalid to
the extent of its inconsistency;
and
(b) may make
any order that is just and equitable, including
—
(i) an order limiting the
retrospective effect of the declaration of invalidity; and
(ii) an order suspending the
declaration of invalidity for any period and on any conditions, to
allow the competent authority
to correct the defect.”
The
section confers a wide discretion on a court making a declaration
of invalidity to formulate an order which is just and
equitable not
only to the litigants before it but also to those affected by the
order.
51
Orders issued in constitutional litigation may also affect parties
who were not involved in the particular litigation. The
section
also empowers a court, in express terms, to decide whether the
retrospective effect of the declaration of invalidity
should be
limited and, if so, to what extent. Ordinarily the declaration of
invalidity has retrospective effect to the date
on which the
Constitution came into force, in respect of pre-Constitution
legislation, or the date on which the impugned provision
came into
operation, in relation to post-Constitution legislation.
In
circumstances where serious disruptions or dislocations in state
administration would ensue if the order of invalidity takes

immediate effect, section 172 explicitly authorises a court to
suspend the order for a period determined by that court.
52
The effect of the suspension is that the invalid law continues to
operate with full force and effect.
In
addition, the section authorises a court to impose any conditions
it deems necessary to regulate the temporary arrangement
of
allowing the invalid law to continue to apply while the competent
authority corrects the defects. It was against this background

that the Supreme Court of Appeal issued the following order:
“
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.”
In
the Supreme Court of Appeal the respondents urged the Court to
suspend the declaration of invalidity. They motivated their

request by stating that an order that became effective immediately
would seriously undermine the “legitimate objectives
of
reconstruction and development” in this country. They also
said that many municipalities in the Gauteng Province
rely on the
Tribunal
and the Act to determine
applications for rezoning and the establishment of townships
because these municipalities do not have
the capacity to follow
procedures set out in the Ordinance. An order with immediate
effect would, they contended, create a
vacuum and bring development
to a complete halt in some municipalities.
In
the light of the additional information placed before this Court by
the amici and the provincial departments
in
KwaZulu-Natal and Mpumalanga, the order quoted above must be
reconsidered and if necessary must be replaced with an order
that
takes into account all the circumstances of the case. I must point
out that this additional information was not placed
before the
Supreme Court of Appeal when it considered the matter.
In
this Court, the amici and the provincial departments gave evidence
to the following effect. The provincial ordinances which
regulate
land zoning and the establishment of townships have a limited
application confined to areas which formed part of the
old
Transvaal, Natal, Orange Free State and Cape Provinces. These
areas excluded the so-called “independent” states
of
Transkei, Bophuthatswana, Venda and Ciskei. They also excluded the
self-governing homelands which were located in Natal,
the Transvaal
and the Orange Free State. When the provinces were reconfigured
under the interim Constitution, the so-called
“independent”
states and self-governing homelands became part of the new
provinces.
In
terms of the transitional provisions of section 229 of the
interim
Constitution, these areas were reincorporated together with their
different laws regulating land administration. The
consequence of
this is that where a municipality’s geographical area
consists of areas that fell, for example, under
the old Transvaal
Province and a former “independent” state or a
self-governing homeland, different pieces of legislation
may apply
in these municipalities. There can be no doubt that this situation
is undesirable. It seems that the Act was designed
to address this
problem, among other matters. The difficulty, however, is that the
Act is inconsistent with the Constitution
which came into force
subsequent to it.
The
other evidence placed before us is that, in areas where the
ordinances apply, most municipalities lack capacity to exercise

these powers. This situation is aggravated by the fact that the
Constitution decrees wall-to-wall municipalities and as a
result
municipalities are established for the territory of the entire
country.
53
In
view of the matters referred to above, it was argued that if the
order of invalidity takes immediate effect land development
will
come to a complete halt in most areas. This undoubtedly will not
be in the interest of the administration of land use
and good
governance. Most significantly, prospective land developers in the
affected areas will be prejudiced. This may also
have a negative
impact on the economic growth of the country. Both the City and
eThekwini Municipality accept that the suspension
of the order of
invalidity is necessary in this matter. The parties submitted that
the invalidity order should be suspended
for periods ranging from
18 months to 36 months. I am satisfied that it would be just and
equitable to suspend the invalidity
order for a period of 24 months
as this will be a reasonable time for Parliament to rectify the
defects or to enact new legislation.
In
the circumstances of the case the determination of a just and
equitable order must
also involve a
consideration of the interests of the City and eThekwini
Municipality, on the one hand, and on the other, the
interests of
land developers in whose benefit the contested powers are
exercised. A proper balance between these interests
may be
achieved by allowing the tribunals to continue exercising those
powers during the period of suspension, but their authority
must
not extend to land falling within the jurisdiction of the City and
eThekwini Municipality. These municipalities have
capacity, and
are authorised in terms of the relevant legislation, to exercise
the contested powers. The interests of land
developers will not be
unduly prejudiced by an order prohibiting tribunals from exercising
the powers in question within the
two municipalities’
jurisdictions. It is indeed just and equitable to protect the
municipalities’ right to perform
their functions and exercise
their powers without interference from the tribunals. While I am
mindful that there may be other
municipalities in a similar
position to the City and eThekwini Municipality, the Court cannot
extend the reach of the order
to include these municipalities
because the facts and circumstances of land use in these
municipalities have not been placed
before this Court.
While
the relevant provincial tribunals are to be barred from considering
new development applications in the jurisdiction of
the City and
eThekwini Municipality, it is necessary for these tribunals to
finalise all applications pending before them.
This will not only
avoid a disruption but will also facilitate a speedy determination
of the matters concerned.
It must be
remembered that the municipalities and the tribunals are part of
the government which is under a constitutional obligation
to
respond promptly to the people’s needs.
54
Disputes between the spheres of government should, as far as
possible, not adversely affect government’s ability to

deliver on these obligations.
In
considering all pending applications, the tribunals must
uphold
the municipalities’ integrated development plans. The role
played by these plans in the administration of land
is important.
They provide for, among other things, the alignment of resources
utilised to supply basic services to local
communities. There can
be no doubt that any development undertaken within a municipal area
affects the budget of the municipality
concerned, particularly in
the supply of services.
For
a proper exercise of the contested powers the tribunals do not,
however, need the authority conferred on them by sections
33
(2)
and 51(2) of the Act to exclude the operation of certain laws and
by-laws in respect of land which is the subject-matter
of an
application submitted to a tribunal.
55
These powers entitle tribunals to intrude unnecessarily into the
domain of the legislature. It is therefore essential to
include,
as a further condition of suspension, a prohibition against the
exercise of this authority.
Finally,
a necessary feature of this suspended
declaration of invalidity is that it should not have retrospective
effect if the period
of suspension expires without the defects in
the Act having been corrected. In exercising their powers under
the impugned
chapters, development tribunals have approved
countless land developments across the country. It would not be
just and equitable
for these decisions to be invalidated if the
declaration of invalidity comes into force.
For
all these reasons, the order of the Supreme Court of Appeal
declaring Chapters V and VI unconstitutional must be confirmed.

The confirmation of this order leads unavoidably to the dismissal
of the respondents’ appeal.
The
City’s a
pplication for leave
to appeal
The
City seeks leave to appeal against the
order of the Supreme Court of Appeal dismissing its appeal in
relation to the claim for
the review of the Tribunal’s
decisions. The issue that calls for consideration here is whether
it is in the interests
of justice to grant leave. As observed by
this Court in a number of cases,
56
the determination of where the interests of justice lie involves a
careful balancing of all factors relevant to the application.
One
of the important factors being the prospects of success on appeal.
T
he
City argued that, if the impugned chapters are declared invalid,
the Tribunal lacked authority to approve the applications
in
respect of both the Roodekrans and Ruimsig properties. The
suspension of the invalidity order, coupled with the limitation
of
its retrospective effect should it come into force, puts this
argument to rest. The effect of the suspension is to preserve,

albeit temporarily, the validity of the chapters in question. In
Ferreira v Levin NO and Others
57
the effect of a suspension was described thus:
“
A pre-existing law which
was inconsistent with the provisions of the Constitution became
invalid the moment the relevant provisions
of the Constitution came
into effect. The fact that this Court has the power in terms of s
98(5) of the Constitution to postpone
the operation of invalidity
and, in terms of s 98(6), to regulate the consequences of the
invalidity, does not detract from the
conclusion that the test for
invalidity is an objective one and that the inception of invalidity
of a pre-existing law occurs
when the relevant provision of the
Constitution came into operation. The provisions of s 98(5) and
(6), which permit the Court
to control the result of a declaration
of invalidity, may give temporary validity to the law and require it
to be obeyed and
persons who ignore statutes that are inconsistent
with the Constitution may not always be able to do so with
impunity.”
The
City submitted further that the Supreme
Court of Appeal should have upheld the appeal in respect of the
claim for review on
the ground that the Tribunal committed a
material error of law by holding that it was not bound by the
City’s integrated
development plan and its constituent
components, the spatial development framework and the urban
development boundary.
The
High Court correctly held that the Tribunal was bound to consider
the City’s integrated development plan and its relevant

components. This flows from section 35(1)(a) of the Local
Government: Municipal Systems Act
58
which provides that an integrated development plan “guides
and informs all planning and development, and all decisions
with
regard to planning, management and development, in the
municipality”. The unqualified terms of this provision
entail that the integrated development plan must be considered by
any government body carrying out planning or development in
a
municipality, including the Tribunal. The Tribunal’s belief
that it was not bound to consider this document was therefore
an
error of law.
However,
a mere error of law is not sufficient for an administrative act to
be set aside. Section 6(2)(d) of the Promotion
of Administrative
Justice Act
59
permits administrative action to be reviewed and set aside only
where it is “materially influenced by an error of law”.

An error of law is not material if it does not affect the outcome
of the decision.
60
This occurs if, on the facts, the decision-maker would have
reached the same decision despite the error of law.
In
this case
, the High Court held that the
error had not influenced the impugned decisions because the urban
development boundary permitted
approval for development, under
certain circumstances, beyond the delineated area. The Court held
further that, on the facts
before it, the City had failed to
establish the materiality of the error in that it did not show that
the decisions would have
been different had the urban development
boundary been considered by the Tribunal. The record reveals that
the urban development
boundary’s criteria for development
outside the boundary were met in both applications. The Supreme
Court of Appeal
was satisfied that the review claim was dismissed
for sound reasons by the High Court. I am not persuaded that the
Supreme
Court of Appeal was wrong in its finding.
It
follows that the applicant has no prospects of success on the
merits of the appeal. This is not the sort of case where,

notwithstanding the absence of prospects, there are other
considerations weighing in favour of granting leave. The
application
for leave to appeal against certain ancillary orders
relating to the suspension of the invalidity order also bears no
prospects
of success.
Costs
Wisely
so, none of the parties have asked for costs. Excluding the amici
curiae, all parties that took part in the hearing
of this matter
are organs of state. In addition the matter raises constitutional
issues of some considerable importance.
Therefore, there should be no order as to costs.
Order
In the result the following order
is made:
The Member of the Executive
Council of KwaZulu-Natal for Local Government and Traditional
Affairs, eThekwini Municipality and
the Department of Agriculture,
Rural Development and Land Administration, Mpumalanga are joined as
the first, second and third
intervening parties.
Condonation for the late filing
of written submissions is granted.
The
application of the City of Johannesburg Metropolitan Municipality
for leave to appeal in respect of the review application
is
dismissed.
The
appeal by the Gauteng Development Tribunal, Gauteng Development
Appeal Tribunal, the Minister of Land Affairs, and the Member
of
the Executive Council for Development, Planning and Local
Government, Gauteng is also dismissed.
The order of constitutional
invalidity made by the Supreme Court of Appeal in respect of
Chapters V and VI of the
Development Facilitation Act 67 of 1995
is
confirmed.
Paragraph
2 of that order relating to the suspension of the order of
invalidity is set aside.
The
declaration of invalidity is suspended for 24 months
from the date of this order to enable Parliament to correct the
defects or enact new legislation.
The
suspension is subject to the following conditions:
Development
tribunals must consider the applicable integrated development
plans, including spatial development frameworks
and urban
development boundaries, when determining applications for the
grant or alteration of land use rights.
No
development tribunal established under the Act may exclude any
by-law or Act of Parliament from applying to land forming
the
subject
-matter of an application
submitted to it.
No
development tribunal established under the Act may accept and
determine any application for the grant or alteration of
land use
rights within the jurisdiction of the City of Johannesburg
Metropolitan Municipality or eThekwini Municipality,
after the
date of this order.
The
relevant development tribunal
s may
determine applications in respect of land falling within the
jurisdiction of the City of Johannesburg Metropolitan Municipality

or eThekwini Municipality only if these applications were
submitted to it before the date of this order.
There is no order as to costs.
Ngcobo CJ,
Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Mogoeng J, Nkabinde
J, Skweyiya J, Van der Westhuizen J and Yacoob
J
concur in the judgment of Jafta J.
For the Applicant:
For the First,
Second, Sixth and Seventh Respondents:
For the First Intervening Party:
For the Second Intervening Party:
For the Third Intervening Party:
For the Amici Curiae:
Advocate
SJ du Plessis
SC and Advocate LB Van Wyk SC instructed by Moodie & Robertson.
Advocate SJ Grobler SC and Advocate LT Sibeko SC
instructed by the State Attorney, Johannesburg.
Advocate
AJ Dickson SC
instructed by PKX Attorneys.
Advocate A
M Stewart SC
and Advocate M du Plessis instructed by Naidoo Maharaj Attorneys.
Advocate IV Maleka SC, Advocate T Hutamo and Advocate S Yacoob
instructed by the State Attorney, Pretoria.
Advocate
A Liversage,
Advocate KS McLean and Advocate AD Stein instructed by Ivan Pauw &
Partners.
1
City of Johannesburg Metropolitan Municipality v Gauteng
Development Tribunal and Others (Mont Blanc Projects and Properties
(Pty)
Ltd and Another as Amici Curiae)
[2008] ZAGPHC 30
;
2008 (4) SA 572
(W).
2
City of Johannesburg Metropolitan Municipality v Gauteng
Development Tribunal and Others
2010 (2) SA 554
(SCA);
2010 (2)
BCLR 157
(SCA).
3
Section 167(5) provides:
“
The Constitutional Court makes the final
decision whether an Act of Parliament, a provincial Act or conduct
of the President is
constitutional, and must confirm any order of
invalidity made by the Supreme Court of Appeal, a High Court, or a
court of similar
status, before that order has any force.”
4
Section 172(2)(a) provides:
“
The Supreme Court of Appeal, a High Court or a
court of similar status may make an order concerning the
constitutional validity
of an Act of Parliament, a provincial Act or
any conduct of the President, but an order of constitutional
invalidity has no force
unless it is confirmed by the Constitutional
Court.”
5
Rule 16(1) of the Constitutional Court Rules, 2003, provides:
“
The Registrar of a court
which has made an order of constitutional invalidity as contemplated
in section 172 of the Constitution
shall, within 15 days of such
order, lodge with the Registrar of the Court a copy of such order.”
6
15 of 1986. In terms of section 2 of the Ordinance a local
authority may be declared an “authorised local authority”

for the purposes of exercising the powers contained in Chapters II,
III or IV of the Ordinance.
7
The provisions of section 33 are quoted in [39] below.
8
Section 156(1) and Part B of Schedule 4 are
quoted in [45] and [46] below.
9
Gory v Kolver NO and Others (Starke and Others Intervening)
[2006] ZACC 20
;
2007 (4) SA 97
(CC);
2007 (3) BCLR 249
(CC) at
paras 11-3.
10
Each of the four provinces that existed before 1994 had an ordinance
which regulated land use planning. These are the Transvaal

Province’s Ordinance (above n 6); the Cape Province’s
Land Use Planning Ordinance 15 of 1985; the Orange Free State’s

Townships Ordinance 9 of 1969; and the Natal Province’s Town
Planning Ordinance 27 of 1949.
11
Act 200 of 1993.
12
[1996] ZACC 12
;
1996 (3) SA 989
(CC);
1996 (6) BCLR 798
(CC).
13
Section 37 of the interim Constitution provided:
“
The legislative authority of the Republic shall,
subject to this Constitution, vest in Parliament, which shall have
the power
to make laws for the Republic in accordance with this
Constitution.”
14
See
Ynuico
, above n 12 at para 6, where Didcott J said:
“
The section, as I construe it, deals with the
location and source of legislative power solely from the time when
the Constitution
began to operate, leaving untouched the state of
affairs that prevailed previously. That it cannot rightly be
interpreted otherwise
is clear, I am satisfied, from both its text
and its context. Its predominant verbs speak in the future tense
and accordingly
with reference to the future. It talks about
Parliament, which the section immediately preceding it identifies as
the Parliament
consisting of ‘the National Assembly and the
Senate’, a description that does not cover our old and defunct
Legislature
but fits only the reconstructed one. The setting in
which all those features are seen is chap 4, a cluster of sections
that
refer unmistakably to the new Parliament alone when they fix
its duration and regulate elections to its membership. And the

power to legislate ‘in accordance with this Constitution’
which the section grants can hardly be attributed to an earlier

Parliament that was about to die when the Constitution took effect.”
15
Item 2 of Schedule 6 provides:
“
(1) All law that was in force when the new
Constitution took effect, continues in force, subject to—
(a) any amendment or repeal; and
(b) consistency
with the new Constitution.”
16
See above n 10.
17
Section 1 of the Ordinance provides that the “Administrator”
is the competent provincial authority to whom the administration
of
the Ordinance was assigned in terms of section 235(8) of the interim
Constitution. In terms of section 235(8), the President
published a
proclamation in the
Government Gazette
(GG 16049, GN R161, 31
October 1994) assigning the administration of the Ordinance to
competent provincial authorities in the
provinces that incorporated
territories that formed part of the old Transvaal Province.
18
Section 2 provides, in relevant part:
“
(1)
The
Administrator may, by proclamation in the
Provincial
Gazette
, declare any local authority
an authorised local authority for purposes of Chapter II, III, or
IV.
(2)
The
Administrator may, at any time, amend or cancel a proclamation
contemplated in subsection (1) by like proclamation without

assigning any reason therefor.”
19
A “township” is defined in section 1 of the Ordinance as
“any land laid out or divided into or developed as
sites for
residential, business or industrial purposes”.
20
6 of 2008. In terms of a notice published by the MEC, KwaZulu-Natal
in the
Provincial Gazette
(
Provincial Gazette of
KwaZulu-Natal
424 GN 54, 22 April 2010), this Act commenced on 1
May 2010, thus repealing the bulk of the KwaZulu-Natal Ordinance.
Only Chapter
I of this Ordinance remains in operation. In terms of
the notice, this Chapter will be repealed on 7 November 2010.
21
Item 2(2)(a) of Schedule 6 to the Constitution
provides that old order legislation “does not have a wider
application, territorially
or otherwise, than it had before the
previous Constitution took effect unless subsequently amended to
have a wider application”.
22
Transkei, Bophuthatswana, Venda and Ciskei.
23
Gazankulu, KaNgwane, KwaNdebele, KwaZulu, Lebowa
and QwaQwa.
24
See
Western Cape Provincial Government and
Others: In re DVB Behuising (Pty) Ltd v North West Provincial
Government and Another
[2000] ZACC 2
;
2001 (1) SA 500
(CC);
2000 (4) BCLR 347
(CC) at
paras 41-7.
25
See Budlender et al
Juta’s New Land Law
(Juta & Co
Ltd, Kenwyn 1998)
at 2A-9 to 2A-10.
26
A first draft of the Bill was published in
Government Gazette
22473 GN 1658, 20 July 2001. An explanatory summary of a revised
version of the Bill was published in
Government Gazette
30979
GN 472, 15 April 2008.
27
See section 2 of the Act.
28
Section 15(2) of the Act.
29
Section 15(4)(a) of the Act.
30
Regulation 21(6) of the Regulations and Rules in Terms of the
Development Facilitation Act, 1995 (GG 20775 GN R1, 7 January 2000)

provides that “prescribed parties” include:
“
(a) any owner or lessee of land in or adjoining
the proposed land development area whose interests may in the
opinion of the designated
officer be adversely affected by the land
development application;
(b) every holder of limited real rights or mineral
rights in respect of the land forming the subject of the
application;
(c) every relevant local government body;
(d) every other interested party as directed by the
designated officer which, without detracting from the generality of
the aforegoing,
may include any or all of the following:
(i) Any national government department which in the
opinion of the designated officer may be affected by the application
and in
particular any national government department which is
responsible for the administration of any law the operation of which
the
land development applicant will request the tribunal to suspend
under section 33(2)(j) or 51(2)(d), of the Act, as the case may
be;
(ii) any provincial road department, environmental
affairs department, education department, agriculture department,
health department,
regional land claims commissioner, or any other
department or division of the relevant provincial administration
which, in the
opinion of the designated officer, may have an
interest in the application and in particular any provincial
government department
which is responsible for the administration of
any law the operation of which the land development applicant will
request the
tribunal to suspend under section 33(2)(j) or 51(2)(d),
of the Act as the case may be;
(iii) any authority or other body which will provide
engineering services contemplated in Chapter V of the Act to the
proposed
land development area; and
(iv) residents of the proposed land development area,
communities or persons who may have an interest in the land or
identifiable
persons likely to settle on the land.”
31
Section 32 of the Act.
32
Section 1 of the Act.
33
Section 40 provides:
“
(1) In the Republic, government is constituted
as national, provincial and local spheres of government which are
distinctive,
interdependent and interrelated.
(2) All spheres of government must observe and adhere
to the principles in this Chapter and must conduct their activities
within
the parameters that the Chapter provides.”
34
In the context of local government, this Court has stressed that the
local government sphere is given autonomy within its sphere,
subject
to the requirements of co-operative governance, and the limits
imposed by the Constitution, or national and provincial
legislation.
See
Ex Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,

1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at paras 373-4;
Fedsure Life Assurance Ltd and Others v
Greater Johannesburg Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at
para 126; and
City of Cape Town and Another v Robertson and
Another
[2004] ZACC 21
;
2005 (2) SA 323
(CC);
2005 (3) BCLR 199
(CC) at paras 59-60.
35
Section 41(1) provides, in relevant part:
“
All spheres of government and all organs of
state within each sphere must—
. . . .
(e) respect the constitutional status, institutions,
powers and functions of government in the other spheres;
(f) not assume any power or function except those
conferred on them in terms of the Constitution”.
36
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC) at
para 51.
37
DVB Behuising
above n 24
at para 17.
38
See
[43] above.
39
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010 (3) BCLR 177
(CC) at para
70. See also
More v Minister of Co-operation
and Development and Another
1986 (1)
102 (A) at 115B-D and
Minister of the Interior v
Machadodorp Investments (Pty) Ltd and Another
1957
(2) SA 395
(A) at 404D-E.
40
[1999] ZACC 15
;
2000 (1) SA 732
(CC) at para 51
[1999] ZACC 15
; ;
2000 (1) BCLR 1
(CC) at para 52.
41
Section 41, titled “Principles of
co-operative government and intergovernmental relations”,
provides in relevant part:
“
(1) All spheres of government
and all
organs
of state within each sphere
must—
. . . .
(e) respect the constitutional status, institutions,
powers and functions of government in the other spheres;
(f) not assume any power or function except those
conferred on them in terms of the Constitution;
(g) exercise their powers and
perform their functions in a manner that does not encroach on the
geographical, functional or institutional
integrity of government in
another sphere. . .”.
42
Sections 151(3) and (4) provide:
“
(3) A municipality has the right to govern, on
its own initiative, the local government affairs of its community,
subject to national
and provincial legislation, as provided for in
the Constitution.
(4) The national or a provincial government may not
compromise or impede a municipality’s ability or right to
exercise its
powers or perform its functions.”
43
Section 155(7) provides:
“
The national government, subject to section 44,
and the provincial governments have the legislative and executive
authority to
see to the effective performance by municipalities of
their functions in respect of matters listed in Schedules 4 and 5,
by regulating
the exercise by municipalities of their executive
authority referred to in section 156(1).
”
44
United Democratic Movement v President of the Republic of South
Africa and Others (African Christian Democratic Party and Others

Intervening; Institute for Democracy in South Africa and Another as
Amici Curiae)
(No 2)
[2002]
ZACC 21; 2003 (1) SA 495 (CC); 2002 (11) BCLR 1179 (CC)
at
para 83.
45
Above n 34 at para 379.
46
Section 139(1) provides:
“
When a municipality cannot or does not fulfil an
executive obligation in terms of the Constitution or legislation,
the relevant
provincial executive may intervene by taking any
appropriate steps to ensure fulfilment of that obligation,
including—
(a)
issuing a directive to the Municipal
Council, describing the extent of the failure to fulfil its
obligations and stating any steps
required to meet its obligations;
(b)
assuming responsibility for the relevant
obligation in that municipality to the extent necessary to—
(i) maintain essential national standards or meet
established minimum standards for the rendering of a service;
(ii) prevent that Municipal Council from taking
unreasonable action that is prejudicial to the interests of another
municipality
or to the province as a whole; or
(iii) maintain economic unity; or
(c)
dissolving the Municipal Council and
appointing an administrator until a newly elected Municipal Council
has been declared elected,
if exceptional circumstances warrant such
a step.”
47
Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another
[2008]
ZACC 12
;
2009 (1) SA 337
(CC);
2008 (11) BCLR 1123
(CC)
at
para 80.
48
Section 155(7) of the Constitution.
49
Section 154(1) of the Constitution provides:
“
The national government and provincial
governments, by legislative and other measures, must support and
strengthen the capacity
of municipalities to manage their own
affairs, to exercise their powers and to perform their functions.”
50
The order is quoted at [74] below.
51
Hoffmann v South African Airways
[2000]
ZACC 17
;
2001
(1) SA 1
(CC);
2000 (11) BCLR 1211
(CC) at para 43.
52
See
South African Association of Personal Injury Lawyers v Heath
and Others
[2000] ZACC 22
;
2001 (1) SA 883
(CC);
2001 (1) BCLR
77
(CC) at paras 49-50.
53
Section 151(1) provides that the “local sphere of government
consists of municipalities, which must be established for
the whole
of the territory of the Republic.”
54
Section 195(1)(e) of the Constitution. See also
Independent Electoral Commission v
Langeberg Municipality
[2001] ZACC 23
;
2001
(3) SA 925
(CC);
2001 (9) BCLR 883
(CC) at para 26.
55
See generally [38], [39] and [41] above.
56
Shaik v Minister of Justice and Constitutional Development and
Others
[2003] ZACC 24
;
2004 (3)
SA 599
(CC);
2004 (4) BCLR 333
(CC)
at para 16;
De Reuck v Director of Public
Prosecutions, Witwatersrand Local Division, and Others
[2003]
ZACC 19
;
2004 (1) SA 406
(CC);
2003 (12) BCLR 1333
(CC)
at
para 3;
Ingledew v Financial Services Board: In re
Financial Services Board v Van der Merwe and Another
[2003] ZACC
8
;
2003 (4) SA 584
(CC);
2003 (8) BCLR 825
(CC) at para 31;
S
v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para 12;
Brummer v Gorfil Brothers Investments
(Pty)
Ltd and Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5)
BCLR 465
(CC) at para 3; and
Fraser v Naude and Others
[1998]
ZACC 13
;
1999 (1) SA 1
(CC);
1998 (11) BCLR 1357
(CC) at para 7.
57
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO
and Others
[1995] ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at
para 28.
58
32 of 2000.
59
3 of 2000.
60
See
Hira and Another v Booysen and Another
1992 (4) SA 69
(A)
at 93G-H.