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[2016] ZACC 2
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Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal Tribunal and Others (CCT114/15) [2016] ZACC 2; 2016 (4) BCLR 469 (CC); 2016 (3) SA 160 (CC) (29 January 2016)
Links to summary
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
114/15
In the matter
between:
TRONOX KZN SANDS
(PTY)
LIMITED
Applicant
and
KWAZULU-NATAL PLANNING
AND
DEVELOPMENT APPEAL
TRIBUNAL
First Respondent
MTUNZINI
CONSERVANCY
Second Respondent
MTUNZINI
FISH FARM (PTY)
LIMITED
Third
Respondent
UMLALAZI
LOCAL
MUNICIPALITY
Fourth
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
COOPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS
Fifth
Respondent
ETHEKWINI
MUNICIPALITY
Sixth
Respondent
Neutral
citation:
Tronox
KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal
Tribunal and Others
[2016] ZACC 2
Coram:
Moseneke DCJ, Cameron J, Jafta J, Khampepe J,
Madlanga J, Nkabinde J, Nugent AJ, Van der Westhuizen J and Zondo J
Judgment:
Van der Westhuizen J
Heard on:
9 November 2015
Decided on:
29 January 2016
Summary:
KwaZulu-Natal Planning and Development
Act 6 of 2008 — constitutionality of section 45 —
provision is constitutionally
invalid
Section 156(1) of the
Constitution — local government competences — provincial
government competences — municipal
planning decisions lie
within the exclusive competence of municipalities
ORDER
On application for
confirmation of the order of the KwaZulu-Natal Division of the High
Court, Pietermaritzburg:
1.
The order of the High Court is confirmed
insofar as it declares section 45 of the KwaZulu-Natal Planning
and Development Act
6 of 2008 constitutionally invalid.
2.
Section 45 of the KwaZulu-Natal Planning
and Development Act 6 of 2008 is declared to be inconsistent with the
Constitution and
invalid.
3.
The appeal is dismissed.
4.
The declaration of invalidity is not
retrospective and does not affect finalised appeals.
5.
Paragraph (iii) of the High Court’s
order is not confirmed.
6.
Appeals pending in terms of section 45 of
the KwaZulu-Natal Planning and Development Act 6 of 2008 may continue
until finalised.
7.
In considering all pending applications,
the KwaZulu-Natal Planning and Development Appeal Tribunal must
uphold the municipalities’
integrated development plans, if in
existence.
8.
The fifth respondent, the Member of the
Executive Council for Cooperative Governance and Traditional Affairs,
must pay the costs
Tronox KZN Sands (Pty) Ltd incurred as a result of
opposition to the confirmation application and the appeal.
JUDGMENT
VAN DER WESTHUIZEN J
(Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Nkabinde
J, Nugent AJ and Zondo J concurring):
Introduction
[1]
This matter touches what many would
regard as the heart of the South African constitutional dispensation,
namely the distribution
of power amongst the municipal, provincial
and national spheres of government. It furthermore raises
questions about the
power of this Court to address the constitutional
invalidity of legislation, as well as the consequences of a finding
of invalidity.
[2]
The main question is whether section
45 of the KwaZulu-Natal Planning and Development Act
[1]
(PDA) is constitutionally acceptable. It provides for an appeal
from municipal planning decisions to the first respondent,
the
KwaZulu-Natal Planning and Development Appeal Tribunal (Appeal
Tribunal). Section 45(1) states:
“
A
person who applied for the development of land situated outside the
area of a scheme or who has lodged written comments in response
to an
invitation for public comment on a proposal to develop the land, who
is aggrieved by the decision of the municipality contemplated
in
section 43(1), may appeal against the municipality’s decision
to the Appeal Tribunal.”
[3]
The remainder of section 45 deals
with the time limit for lodging a memorandum of appeal
[2]
and the consequences of failing to comply with that time limit.
[3]
At issue is whether section 45 constitutes provincial
interference in municipalities’ exclusive and
constitutionally-enshrined
domain.
[4]
The next question is whether the
whole of Chapter 10 of the PDA should be declared constitutionally
invalid. Comprising of
sections 100 to 134, Chapter 10
establishes the Appeal Tribunal and provides for the various aspects
of its functioning.
Section 102 provides for its
independence.
[4]
In spite of this independence, section 106 gives the responsible
Member of the Executive Council the power to appoint members
of the
Appeal Tribunal.
[5]
[5]
Should either section 45 or Chapter
10 as a whole be found to lack constitutional validity, the third
question would be whether
to suspend the invalidity for a fixed
period. Lastly, and very importantly, this Court would have to
decide the fate of appeals
– finalised as well as pending –
under the mechanism provided for in Chapter 10.
Facts
[6]
The applicant, Tronox KZN Sands
(Pty) Ltd (Tronox), is the largest fully integrated producer of
titanium ore and titanium dioxide
in the world. It made
significant investments in two mining areas at Hillendale and
Fairbreeze in Empangeni. It commenced
production at Hillendale
in 2001 and – once the mine there had been exhausted – it
sought to move its operation to
Fairbreeze.
[7]
In October 2012 Tronox lodged an
application in terms of the PDA with Umlalazi Municipality, the
fourth respondent, for prospective
land use rights for areas situated
outside a scheme as defined in the PDA. It is common cause that
the relevant area, a portion
of the Fairbreeze site known as
Fairbreeze C Extension, is situated outside a scheme. It was
previously unzoned agricultural
land. Mtunzini Conservancy, the
second respondent, and Mtunzini Fish Farm (Pty) Ltd (Fish Farm),
the third respondent,
objected in writing to Tronox’s
application. Fish Farm is a licenced aquaculture operation
situated in the Mtunzini
area which specialises in the production of
dusky kob.
[8]
On 19 February 2014 Umlalazi
Municipality granted Tronox’s application. Mtunzini
Conservancy and Fish Farm lodged appeals
with the Appeal Tribunal
against this decision in terms of section 45 of the PDA. These
two appeals were set down for hearing
on 23 and 24 July 2014 before
the Appeal Tribunal.
High Court
[9]
Before Fish Farm’s and
Conservancy’s appeals were heard, Tronox had launched
proceedings in the KwaZulu-Natal Division
of the High Court,
Pietermaritzburg (High Court). It asked the Court to declare
section 45 and the entirety of Chapter 10
of the PDA unconstitutional
to the extent that the provisions constituted interference by the
provincial government in municipal
planning decisions. It also
sought an order that the two pending appeals be declared unlawful and
void
ab initio
(from
the beginning).
[10]
Mtunzini Conservancy, Fish Farm and
Umlalazi Municipality elected to abide by the decision of the High
Court. The matter was
opposed by the Member of the Executive
Council for Cooperative Governance and Traditional Affairs (MEC).
Pending the determination
of the orders sought by Tronox, the Court
granted an interim order interdicting the Appeal Tribunal from
hearing the two appeals.
[11]
In a judgment by Lopes J the High
Court held on 3 June 2015 that the constitutionally entrenched powers
of municipalities in relation
to “municipal planning” had
been interfered with by the provincial government.
[6]
The Court held that Chapter 10 of the PDA provides a mechanism which
compels
municipalities
to allow appeals from their decisions. Although it does not
create a provincial power to overturn municipal
decisions
mero
motu
(of its own accord), “it
subjects the municipalities to the scrutiny of an appeal in
circumstances where the municipality
may not have resolved that an
appeal process is appropriate or desirable”.
[7]
[12]
The High Court declared section 45
unconstitutional to the extent that it constitutes interference by
the Province in municipal
planning decisions by providing for an
appeal from a municipal decision to an appellate body, namely the
Appeal Tribunal.
It refused to suspend the order. The
declaration of invalidity in respect of section 45 was ordered not to
have retrospective
effect.
[13]
The declaration would have no force
unless confirmed by the Constitutional Court. Therefore, the
High Court extended the interdict
it had granted preventing the
finalisation of the two appeals brought by Mtunzini Conservancy and
Fish Farm. If the declaration
were not confirmed, these appeals
could go ahead. The Court ordered that, in the event that this
Court confirms the declaration,
these two appeals are declared
unlawful and void
ab initio
.
The Court made no order regarding other appeals pending before the
Appeal Tribunal, on the basis that the parties were not
before the
Court. Thus, the only appeals directly affected by the order
were the two appeals brought by Mtunzini Conservancy
and Fish Farm.
In this Court
[14]
Tronox asks this Court to confirm
the High Court’s finding that section 45 of the PDA is
constitutionally invalid. Tronox
also seeks an order that, in
the event of confirmation, the two pending appeals be declared
unlawful and void
ab initio
.
The MEC, the fifth respondent, opposes the confirmation application
and appeals the High Court decision. Ethekwini
Municipality intervened in this Court as the sixth respondent.
Fish Farm’s
affidavit
[15]
Fish Farm did not give notice of its
intention to appeal against the High Court’s order.
It indicated that it abides
by the decision of this Court.
Despite doing so, it proceeded to file an affidavit making
factual and legal submissions.
This affidavit was not properly
before this Court and the attempt to file it is irregular. It
is unacceptable for a party,
who is not an amicus or seeking to
intervene, to seek to file an affidavit in the absence of a notice to
appeal.
[8]
Fish Farm emphasises its poverty and lack of access to resources to
fight Tronox. In that case, it should have sought
to obtain pro
bono help, as many litigants in this Court successfully do. The
affidavit cannot be admitted. It is not
in the interests of
justice to condone the departure from this Court’s processes.
Constitutional validity
of section 45
Submissions
[16]
Tronox again argues that section 45
is incompatible with the Constitution’s allocation of functions
between local and provincial
government.
[9]
In support, it cites
Habitat
Council
[10]
and
Gauteng Development Tribunal
.
[11]
[17]
The MEC contends that the relevant
provisions of the PDA do not offend the Constitution. This case
is distinguishable from
Gauteng
Development Tribunal
and
Habitat
Council
. The Appeal Tribunal is
an independent and impartial body staffed by experts and not
provincial officials. Its members
are free from provincial
control and municipalities make all the original decisions. In
Habitat Council
the
“appellate oversight” was exercised by the Administrator
(the equivalent of the present-day Member of the Executive
Council),
who could decide appeals and substitute municipal decisions with her
own. Moreover, in this case the Appeal Tribunal
is there for
the convenience of municipalities. The Province has provided a
simple and inexpensive internal appeal process
in the public
interest. And in contrast with the
Habitat
Council
and
Gauteng
Development Tribunal
matters, the
relevant municipality has abided this Court’s decision and
cannot be said to be aggrieved.
[18]
Ethekwini Municipality supports the
arguments of Tronox in several respects. Not only is section 45
constitutionally invalid,
but so too are the other appeal provisions
in the PDA, it argues. Municipal competence is exercised
subject to framework
legislation such as the Local Government:
Municipal Systems Act
[12]
(Municipal Systems Act), which requires municipalities to adopt and
give effect to an integrated development plan in land use
management.
[13]
The Municipal Systems Act reiterates that municipalities should
carry out their executive and legislative decisions
without improper
interference.
[14]
The legislative scheme of the PDA dilutes municipalities’
exclusive competence. It allows the Province to interfere
with
it without consideration of the municipalities’ operations,
budgets, resources and objectives.
Is section 45
constitutionally invalid?
[19]
Section 156(1) of the Constitution
provides:
“
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 “municipal planning” and it was
common cause throughout the proceedings that the municipal
decisions
caught by section 45 and relevant to this matter fell within the
ambit of “municipal planning”.
[20]
In
Gauteng
Development Tribunal
this Court struck
down Chapters V and VI of the Development Facilitation Act
[15]
which authorised provincial development tribunals, established in
terms of that Act, to determine applications for the rezoning
of land
and the establishment of townships. Jafta J emphasised that
“the Constitution confers different planning responsibilities
on each of the three spheres of government in accordance with what is
appropriate to each sphere”.
[16]
Acknowledging that “the functional areas allocated to the
various spheres of government are not contained in hermetically
sealed compartments”, he held that they nevertheless “remain
distinct from one another” and that this is the
position even
in respect of functional areas that share the same wording like
roads, planning, sport and others.
[17]
This Court affirmed the inviolability of executive municipal power
and the necessity of interpreting the Constitution in
a manner which
respects that power. The original powers of executive authority
allocated by the Constitution to the municipal
sphere cannot also be
allocated to the provincial sphere. This Court further held
that—
“
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.”
[18]
[21]
Gauteng Development Tribunal
provided a ringing affirmation of the
need for the various spheres of government to “respect the
constitutional status, institutions,
powers and functions of
government in the other spheres” and “not assume any
power or function except those conferred
on them in terms of the
Constitution”.
[19]
[22]
In
Habitat
Council
this Court confirmed an order
of the High Court declaring section 44 of the Land Use Planning
Ordinance
[20]
constitutionally invalid.
[21]
The provision allowed persons aggrieved by municipal land use
decisions to appeal to the Western Cape provincial government,
which
was able to replace these decisions with its own. It was
clearly constitutionally invalid, because the provincial appellate
capacity usurped local government’s power to manage “municipal
planning”.
[23]
The Court considered whether there
are circumstances in which a province may permissibly veto a
municipality’s land use decision
through procedures or
approvals operating in parallel to municipalities’ powers.
The Provincial Minister argued that
there must be some provincial
surveillance over municipal planning decisions because big decisions
could have extra-municipal impact.
Cameron J rejected this
reasoning:
“
This
bogey must be slain. All municipal planning decisions that
encompass zoning and subdivision, no matter how big, lie within
the
competence of municipalities. This follows from this Court’s
analysis of “municipal planning” in
Gauteng
Development Tribunal
.
Provincial and national government undoubtedly
also have power over decisions so big, but their powers do not lie in
vetoing zoning
and subdivision decisions, or subjecting them to
appeal. Instead, the provinces have co-ordinate powers to
withhold or grant
approvals of their own.”
[22]
(Footnotes omitted.)
[24]
The reason behind this strict
allocation is that municipalities are best suited to make planning
decisions as they are localised
decisions which should be based on
information which is readily available to them.
[23]
[25]
In
Lagoonbay
Mhlantla AJ summarised this Court’s approach to autonomous
municipal power as follows:
“
(a)
[B]arring exceptional circumstances, national and provincial spheres
are not entitled to usurp
the functions of local government;
(b) the constitutional
vision of autonomous spheres of government must be preserved;
(c) while the Constitution
confers planning responsibilities on each of the spheres of
government, those are
different
planning responsibilities,
based on ‘what is appropriate to each sphere’;
(d) ‘“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
’; and
(e)
the provincial competence for ‘urban and rural development’
is not wide
enough to include powers that form part of ‘municipal
planning’.”
[24]
(Footnotes omitted.) (Emphasis in original.)
[26]
The general vision of distinct
spheres of government outlined in
Gauteng
Development Tribunal
and the emphatic
call for municipal autonomy in
Habitat
Council
, with reliance on
Lagoonbay’s
guidelines, are most certainly applicable in the present case.
Moreover, the finding in
Gauteng
Development Tribunal
that the
provincial sphere cannot, by legislation, give itself the right to
administer
municipal
affairs is pertinent.
[25]
[27]
Section 45 impermissibly interferes
with municipalities’ exclusive constitutional power. The
contention that the establishment
of the Appeal Tribunal and the
provision of an internal appeal does not involve the exercise of a
provincial function or power
is unconvincing. The Appeal
Tribunal is established by the Province through legislation, namely
the PDA, and this legislation
subjects municipalities to an appeal
process without their consent and regardless of whether or not they
think it is appropriate.
[28]
Although it is true that the Appeal
Tribunal is not staffed by provincial officials
[26]
(and the appellate oversight is not exercised by the
Administrator/MEC, as was the case in
Habitat
Council
), the
Habitat
Council
decision, boiled down to its
essence, establishes that local authorities have the power to manage
“municipal planning”.
This power is autonomous and
under no circumstances can it be intruded upon. Therefore, the
alleged “independence”
of the Appeal Tribunal does not
necessarily render
Habitat Council
inapplicable. The fact that municipalities are subjected to an
appeal process by the Province also intrudes upon their autonomous
power. The Province’s involvement in appointing persons
to the Appeal Tribunal
[27]
and its administrative influence exacerbate the intrusion.
[29]
As eThekwini Municipality argues,
the appeal mechanism dilutes and erodes municipalities’
exclusive competence and original
power in respect of planning
decisions. The Appeal Tribunal’s decisions might indeed
be out-of-step with a municipality’s
broader planning strategy
and long-term vision, determined in light of resources, capacity, and
sustainability concerns.
[30]
The fact that the appellate
authority may be there for the convenience of municipalities does not
mean that their autonomous sphere
of power has not been usurped.
That most municipalities have not complained is also irrelevant to
the constitutionality of
the provision. So is the fact that it
was not Umlalazi Municipality which launched the challenge.
[31]
The High Court correctly held that
Habitat Council
and
Gauteng Development Tribunal
apply
to this matter. Section 45 fails to preserve municipal autonomy
and involves constitutionally impermissible provincial
interference
in the municipal sphere.
Reading-down
[32]
In her written argument, the MEC
contended that section 45 of the PDA is reasonably capable of being
read down to render it constitutionally
compliant.
Alternatively, if section 45 were held to be constitutionally
invalid, the MEC submitted that words could be read
into section 45
in order to render it constitutionally acceptable. In support
of both submissions, the MEC relied on the
Spatial Planning and Land
Use Management Act
[28]
(SPLUMA), which came into force on 1 July 2015.
[33]
SPLUMA attempts to provide a unified
framework for spatial planning and land use management in South
Africa. Chapter 6 establishes
“Municipal Planning
Tribunals” to which municipalities can decide to refer certain
land use and land development applications.
The Tribunals must
consist of officials in the full-time service of a municipality
(provided that they are not municipal councillors)
and persons, who
are not municipal officials, with knowledge and experience of spatial
planning, land use management and land development.
[34]
In terms of section 51(1) of SPLUMA,
a person whose rights are affected by a decision taken by a Municipal
Planning Tribunal may
appeal by giving written notice to the
municipal manager within 21 days of being notified of the decision.
The municipal
manager must submit the appeal to the executive
authority of the municipality as the appeal authority.
[29]
The executive authority is the executive committee or executive mayor
of the municipality or, if no executive committee or
mayor exists, it
is a committee of councillors appointed by the Municipal Council.
Section 51(6), however, reads:
“
A
municipality may, in the place of its executive authority, authorise
that a body or institution outside of the municipality or
in a manner
regulated in terms of a provincial legislation, assume the
obligations of an appeal authority in terms of this section.”
[35]
The MEC argued that in the context
of section 51(6), the Appeal Tribunal established by the PDA is “the
most appropriate appellate
tribunal”. She contended that
section 45 of the PDA was reasonably capable of being interpreted to
mean:
“
A
person who applied for the development of land situated outside the
area of a scheme or has lodged written comments in response
to an
invitation for public comment on a proposal to develop the land, who
is aggrieved by the decision of the municipality contemplated
in
section 43(1) may,
subject to the
provisions of
section 51
of the
Spatial Planning and Land Use
Management Act 16 of 2013
, appeal
against the municipality’s decision to the Appeal Tribunal
as
the municipality’s appeal authority contemplated in
section 51
aforesaid
.” (Emphasis in
the source.)
This would allow the
municipality the option of authorising the Appeal Tribunal as its
appeal authority in terms of SPLUMA which,
she contended, might be
particularly useful for smaller municipalities facing capacity
problems.
[36]
Ethekwini Municipality pointed to
several linguistic ambiguities in the MEC’s proposed
formulation. First, it might
mean that municipalities should be
taken to have appointed the Appeal Tribunal as the appeal authority
under SPLUMA in relation
to all appeals pending
before
SPLUMA came into force. Second,
it could mean that
the person appealing
could choose between the tribunal and
the executive authority. Ethekwini Municipality submitted that
neither of these interpretations
would be constitutionally
permissible. The only acceptable interpretation would be as
follows: the right to appeal to the
Appeal Tribunal only exists where
the relevant municipality has appointed it as its external appeal
authority in terms of SPLUMA.
The proposed reading-down or
reading-in should therefore make this clear, by inserting the
following additional words at the end:
“
if
so appointed by the municipality in accordance with
section 51(6)
”.
[37]
During the hearing, counsel for the
MEC accepted that eThekwini Municipality’s proposed wording was
preferable. The
MEC therefore endorsed the addition of these
words in respect of both its proposed reading-down and reading-in.
[38]
There may be some confusion about
the “remedies” generally referred to as
reading-down
and
reading-in
.
The first is an interpretive tool. It is a way to save a
statutory provision from constitutional invalidity by giving
it a
meaning – on its wording – that is constitutionally
compliant.
[30]
The second is a remedy and is more invasive. It is invoked
after a provision has been found constitutionally invalid.
[31]
Rather than to burden the Legislature with a change that may be
needed, a court reads the constitutionally required words
into the
provision or phrase by adding them.
[32]
[39]
It is well-settled that our courts
should interpret legislation in a manner which accords with the
Constitution, so long as the
legislation is reasonably capable of
being interpreted in this manner.
[33]
The interpretation must not be unduly strained.
[34]
It is inconceivable that section 45 of the PDA could be given a
construction which incorporates section 51 of SPLUMA in the
manner
suggested by the MEC. This interpretation would be more than
“strained” – it would depart entirely
from the
language of the statute. SPLUMA was passed several years after
section 45 of the PDA and the MEC’s submission
is therefore
unsustainable.
[40]
The MEC’s reading-down
proposal is not acceptable. It follows that section 45 is
constitutionally invalid.
Chapter 10 and sections
15, 28, 57 and 67
[41]
Tronox asked the High Court to
declare Chapter 10 of the PDA (i.e. the provisions making up the
Appeal Tribunal) constitutionally
invalid. However, the High
Court decided only to consider the constitutionality of section 45.
Tronox did not cross-appeal
this aspect of the judgment and it no
longer requests an order of invalidity in respect of Chapter 10.
Ethekwini Municipality,
meanwhile, draws attention to other “appeal
provisions” in the Act – sections 15, 28, 57 and 67
[35]
– and asks this Court to widen the scope of its enquiry to
declare them constitutionally invalid too.
[42]
This Court has expressed its
reluctance to decide on the constitutional validity of a statute or
provision where the issue has not
been pleaded or ventilated in the
lower courts.
[36]
This is partly to ensure that opposing parties are aware of the case
they are required to meet from the outset so that they
can present
appropriate factual information and legal argument. The views
of the lower courts are also highly valued and
benefit the
jurisprudence of appellate courts, which are primarily supposed to
evaluate whether and how the court below erred.
[37]
In any given case, however, the overriding question is whether
considerations of justice and fairness dictate a departure
from the
normal approach.
[38]
[43]
In this case, the alleged
constitutional invalidity of Chapter 10 was pleaded by Tronox in the
High Court. The High Court
decided not to reach this question.
That decision was not appealed. In my view, caution in relation
to declaring the
whole of Chapter 10 invalid is demanded.
[44]
The argument that Chapter 10 is
problematic in its entirety may well have merit, but was not
canvassed in detail before us or in
the High Court. The
problematic nature of
particular
provisions has not been identified. Chapter 10 is closely bound
up with the rest of the statute. If this Court were
to strike
down Chapter 10, the effect would be the same as declaring sections
15, 28, 57 and 67 constitutionally invalid.
The bite of these
provisions depends on Chapter 10 because without it, the Appeal
Tribunal contemplated in sections 15, 28, 57
and 67 would be a
nullity. Although eThekwini Municipality also asks this Court
to scrutinise these provisions, their alleged
constitutional
invalidity was not pleaded by Tronox before the High Court. To
render them inoperative, without full argument
and the provision of
an opportunity for other affected parties to come forward, would be
undesirable.
[45]
In spite of the doubt raised about
the constitutional validity of other parts of the PDA, it is
preferable that the Legislature
carefully consider and remedy such a
multi-faceted and integrated problem, rather than for this Court to
take on that task.
The separation of powers requires the
Legislature, rather than a court, to act. This Court’s
decision in relation to
section 45 will hopefully spur the
KwaZulu-Natal Legislature to consider and rectify other possible
deficiencies in the PDA.
It should be allowed to do so on its
own terms. For these reasons, I resist reaching Chapter 10 and
the other provisions,
which eThekwini Municipality have placed under
attack.
Remedy
[46]
Having decided that section 45 is
unconstitutional, it is this Court’s duty to fashion a remedy
which is just and equitable
and takes into account the interests of
all affected parties.
[39]
This entails the exercise of a broad equitable discretion.
Reading-in
[47]
The MEC contended that, in the event
that this Court were to find section 45 to be constitutionally
invalid, the order of invalidity
should be suspended for 24 months.
Furthermore, she submitted that a reading-in should be ordered as an
interim measure to
operate during the period of suspension.
Counsel clarified during the hearing that the proposed reading-in was
identical
to the wording of the proposed reading-down. Again,
the MEC accepted the addition suggested by eThekwini Municipality.
The reading-in sought was therefore as stated above.
[40]
[48]
Should this Court embrace the
proposed reading-in? I do not think so. The suggestion is
rather drastic. The quasi-legislative
role which the MEC
invites this Court to take raises separation of powers concerns.
Moreover, section 51(6) of SPLUMA, which
allows municipalities to
delegate their final say in planning and land use matters to an
external body, could itself face a constitutional
challenge one day.
Unless the relevant provisions of SPLUMA were authoritatively held by
this Court to pass constitutional
muster, it would be inappropriate
to read in words that refer to section 51 of SPLUMA in order to cure
section 45 of its constitutional
invalidity.
Suspension
[49]
In the event that this Court
confirms the declaration of invalidity in respect of section 45, the
MEC requested that it be
suspended for a
period of two years. Both
Tronox and
eThekwini Municipality contended that the order should not be
suspended.
[50]
Section 172(1)(b)(ii) of the
Constitution provides that when deciding constitutional matters, a
court may make any order that is
just and equitable, including “an
order suspending the declaration of invalidity for any period and on
any conditions, to
allow the competent authority to correct the
defect”. The purpose of a suspension order is to give
time to the responsible
legislature to rectify the defect in issue.
[51]
In
Mistry
this Court held that the party seeking
suspension bears the responsibility of placing reliable information
before the Court which
justifies such an order.
[41]
Tronox is correct in stating that the MEC’s submissions in this
regard are inadequate. The MEC, in both written
and oral
argument, has not discharged the burden of showing why suspension
would be appropriate. We must re-emphasise what
this Court said
in
Habitat Council
,
namely that local government capacity problems do not in themselves
justify an unconstitutional appellate oversight being allowed
to
proceed as an interim measure.
[42]
The order of invalidity should not be suspended.
Retrospectivity
[52]
Both the MEC and eThekwini
Municipality asked this Court to limit the retrospective effect of
the declaration of invalidity.
In order to avoid the chaos
likely to occur, it would not be just and equitable for the order to
have retrospective effect.
[43]
Thus, finalised appeals should be left untouched.
Pending appeals
[53]
Three positions have been advanced
in regard to the fate of the appeals pending in terms of section 45
of the PDA. Tronox
contended that, following a declaration that
section 45 is constitutionally invalid, an effective remedy would be
to confirm the
order of the High Court and declare only Fish Farm’s
and Mtunzini Conservancy’s pending appeals void
ab
initio.
Any other finding would
leave Tronox, as a successful litigant, without appropriate
relief.
[44]
Ethekwini Municipality went further and asked for
all
pending appeals under section 45 of the
PDA to be declared null and void
ab initio
.
In response to questions from the bench, counsel for Tronox agreed
with this proposal.
[54]
In the MEC’s view, all pending
appeals should be treated in the same way and be completed in terms
of the PDA. Moreover,
she argued that members of the public had
an expectation that municipal processes were legitimate and that an
internal appeal would
be available and not changed or disrupted for
pending processes. The appeals pending in terms of section 45
should therefore
go ahead.
[55]
In my view, justice and equity
require treating all pending appeals equally. There are no
plausible reasons in policy or in
law for treating Fish Farm’s
and Mtunzini Conservancy’s appeals differently from the other
pending appeals. Either
all the pending appeals should go ahead
or all should be nullified.
[56]
Extinguishing all the pending
appeals has the advantage of terminating an unconstitutional appeal
process. In terms of the
doctrine of objective constitutional
invalidity, section 45 has been invalid since its inception.
[45]
All appeals conducted under it were contaminated by the
unconstitutional nature of the provision. Whereas it is just
and equitable to leave finalised appeals untouched, it might well
seem awkward to proceed with pending appeals in terms of a
constitutionally
invalid dispensation.
[57]
Furthermore, the Constitution
allocates exclusive power to municipalities for a reason. They
are more likely to be sensitive
to their own integrated planning
strategies and are thus often better placed to make decisions
concerning land use and development.
It is also true that, in
general, successful litigants should obtain the relief they seek.
Tronox receives little relief
unless Mtunzini Conservancy’s
[46]
and Fish Farm’s appeals are struck down.
[58]
However, I think appeals already
pending in terms of section 45 should be allowed to proceed.
Tronox’s submission that
it has a “right” to be
granted effective relief is overstated. In
Bhulwana
this Court held that it is only when
the interests of good government outweigh the interests of individual
litigants that successful
litigants will not be granted relief.
[47]
This is an example of such a case. Courts have generally been
reluctant to strike down pending appeals for reasons
of legal
certainty and fairness to parties who have acted upon the assumption
that they would have an appeal.
[48]
In
Habitat Council
this
Court ordered that all pending appeals be exempted from the
declaration of invalidity.
[49]
Similarly, in
Gauteng Development
Tribunal
this Court allowed the
provincial development tribunals in certain jurisdictions to finalise
all pending applications, on the basis
that it would facilitate a
speedy determination of matters and avoid a disruption.
[50]
The Court pointed out that section 172(1) of the Constitution
“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]
[59]
Furthermore, the drawbacks of
allowing an unconstitutional body to process outstanding appeals can
be tempered by an order that
requires the Appeal Tribunal, in
deciding pending appeals, to uphold municipalities’ integrated
development plans.
This Court took that approach in
Gauteng
Development Tribunal
.
[52]
This lessens the damage of allowing an
unconstitutional process to go ahead, by forcing the provincial
tribunal to take into account
the municipal government considerations
presumably contemplated by the Constitution when it confers exclusive
power on municipalities.
[53]
Pending appeals may go ahead.
Costs
[60]
Tronox needed to approach this Court
in any event to have the High Court’s order confirmed; the MEC
did not bring Tronox to
this Court. However, the MEC must pay
the costs incurred by Tronox as a result of the MEC’s appeal
and opposition to
the confirmation application.
High Court Order
[61]
The High Court ordered the
following:
“
(i)
Section 45 of the KwaZulu-Natal Planning and Development Act, 2008 is
hereby declared to
be unconstitutional to the extent that it
constitutes interference by the province in municipal planning
decisions by providing
for an appeal from a municipal decision to an
appellate body, namely the KwaZulu-Natal Planning and Development
Appeal Tribunal,
created by the provisions of Chapter 10 of the Act.
(ii) Pending the
confirmation by the Constitutional Court in terms of
section 172(2)(a)
of the Constitution of the Republic of South
Africa 1996 of (i) above, the hearing of the appeals pending in terms
of section 45
by the Mtunzini Conservancy and the Mtunzini Fish
Farm (Pty) Ltd in respect of the decision of the Umlalazi
Municipality to
approve the land use rights for surface mining
operations on the Remainder of Lot 91 and the Remainder or Portion 3
of Lot 91,
Umlalazi 1011 Registration Division GU, Province of
KwaZulu-Natal, are suspended.
(iii) In the event of the
Constitutional Court confirming the declaration of invalidity in
terms of paragraph (i) above, the two appeals referred to in (ii)
above are declared to be unlawful and void
ab initio
.
(iv) Paragraph (i) above shall
not be applicable to any final decisions of the KwaZulu-Natal
Planning and Development Appeal Tribunal made prior to the date of
this order.
(v)
The [Member of the Executive Council for Cooperative Governance and
Traditional Affairs]
is directed to pay the costs of this
application, such costs to include the costs consequent upon the
employment of two counsel,
and on that basis the costs reserved for
decision of this court by Madondo J on the 21 July 2014.”
[62]
By ruling that section 45 was
unconstitutional
to the extent that
it
constituted interference by the Province in municipal planning
decisions, the High Court ordered a notional severance of section
45. It also included the reason for the constitutional
invalidity of section 45 in the order. Tronox asked this Court
to confirm the High Court’s “striking down” of
section 45. Although the High Court arguably did not
in fact
strike the section down in its entirety, in my view a striking down
order is indeed appropriate. For this reason,
paragraph 1 of
this Court’s order confirms the High Court’s finding that
section 45 is constitutionally invalid, but
paragraph 2 goes further
by striking the section down.
Order
[63]
The following order is made:
1.
The order of the High Court is confirmed
insofar as it declares section 45 of the KwaZulu-Natal Planning
and Development Act
6 of 2008 constitutionally invalid.
2.
Section 45 of the KwaZulu-Natal Planning
and Development Act 6 of 2008 is declared to be inconsistent with the
Constitution and
invalid.
3.
The appeal is dismissed.
4.
The declaration of invalidity is not
retrospective and does not affect finalised appeals.
5.
Paragraph (iii) of the High Court’s
order is not confirmed.
6.
Appeals pending in terms of section 45 of
the KwaZulu-Natal Planning and Development Act 6 of 2008 may continue
until finalised.
7.
In considering all pending applications,
the KwaZulu-Natal Planning and Development Appeal Tribunal must
uphold the municipalities’
integrated development plans, if in
existence.
8.
The fifth respondent, the Member of the
Executive Council for Cooperative Governance and Traditional Affairs,
must pay the costs
Tronox KZN Sands (Pty) Ltd incurred as a result of
opposition to the confirmation application and the appeal.
For the Applicant:
A A Gabriel SC and S Pudifin-Jones instructed by Shepstone and Wylie
Attorneys
For the Fifth
Respondent: A Katz
SC and M Mazibuko instructed by PKX Attorneys
For the Sixth Respondent:
A Annandale SC and S
Mahabeer instructed by Livingstone
Leandy Attorneys
[1]
6 of 2008.
[2]
Section 45(2).
[3]
Section 45(3).
[4]
Section 102(1) reads:
“
The
Appeal Tribunal must exercise its powers in an independent manner,
free from governmental or any other outside interference
or
influence, and in accordance with the highest standards of
integrity, impartiality, objectivity and professional ethics.”
[5]
Section 106(1) provides:
“
The
responsible Member of the Executive Council, must appoint members
for the Appeal Tribunal after consideration of—
(a)
the applications and supporting documents received from persons
in
response to the call for nominations; and
(b)
any comments that were received in regard to the proposed
appointment
of those persons.”
[6]
Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal
Planning and Development Appeal Tribunal and Others
[2015]
ZAKZPHC 42 at para 31.
[7]
Id at para 29.
[8]
Fish Farm disregarded rule 16(2) of the Uniform
Rules of this Court by filing an affidavit in absence of a notice to
appeal.
[9]
Section 40(1) of the Constitution provides that
government “is constituted as national, provincial and local
spheres of
government which are distinctive, independent and
interrelated”.
Section 41(1) requires, in
relevant part, that—
“
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.”
Section 151(4) provides
that “the national or a provincial government may not
compromise or impede a municipality’s
ability or right to
exercise its power or perform its functions”.
[10]
Minister of Local Government, Environmental
Affairs and Development Planning, Western Cape v Habitat Council and
Others
[2014] ZACC 9
;
2014 (4) SA 437
(CC);
2014 (5) BCLR 591
(CC) (
Habitat
Council
).
[11]
Johannesburg Metropolitan Municipality v
Gauteng Development Tribunal and Others
[2010]
ZACC 11
;
2010 (6) SA 182
(CC);
2010 (9) BCLR 859
(CC) (
Gauteng
Development Tribunal
).
[12]
32 of 2000.
[13]
Sections 25 and 26.
[14]
Section 4(1)(b).
[15]
67 of 1995.
[16]
Gauteng Development Tribunal
above n 11 at para 53.
[17]
Id at para 55.
[18]
Id at para 59.
[19]
Section 41(1)(e) and (f) of the Constitution
above n 9.
[20]
15 of 1985.
[21]
Habitat Council
above
n 10 at para 31.
[22]
Id at para 19.
[23]
Id at para 14.
[24]
Minister of Local Government, Environmental
Affairs and Development Planning of the Western Cape v Lagoonbay
Lifestyle Estate
(Pty) Ltd and Others
[2013] ZACC 39
;
2014 (1) SA 521
(CC);
2014 (2) BCLR 182
(CC)
(
Lagoonbay
)
at para 46.
[25]
Gauteng Development Tribunal
above n 11 at para 59.
[26]
Section 104 of the PDA, in relevant part, reads:
“
A
person is disqualified from appointment as a member of the Appeal
Tribunal if he or she—
.
. .
(e)
is a member
of Parliament, the provincial legislature or a municipal
council in
the Province, or if that person is nominated as a member of
Parliament, the provincial legislature or a municipal
council.”
[27]
See [4] above.
[28]
16 of 2013.
[29]
Section 51(2).
[30]
National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others
[1999]
ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) (
National
Coalition for Gay and Lesbian Equality
)
at para 24.
[31]
Id.
[32]
For examples of cases where this Court has
ordered a reading-in, see
Khosa and
Others v Minister of Social Development and Others; Mahlaule and
Others v Minister of Social Development and Others
[2004]
ZACC 11
;
2004 (6) SA 505
(CC);
2004 (6) BCLR 569
(CC);
S
v Manamela and Another (Director-General of Justice Intervening)
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC); and
National
Coalition for Gay and Lesbian Equality
above
n 30.
[33]
Investigating Directorate: Serious Economic
Offences and Others v Hyundai Motor Distributors (Pty) Ltd and
Others In re: Hyundai
Motor Distributors (Pty) Ltd and Others v Smit
NO and Others
[2000] ZACC 12
;
2001 (1)
SA 545
(CC);
2000 (10) BCLR 1079
(CC) at para 24.
[34]
Id.
[35]
All these sections provide for an appeal to the
Appeal Tribunal against municipalities’ decisions on
the: adoption,
replacement or amendment of a scheme or failure
to decide on the amendment of a scheme (section 15); proposed
subdivision
or consolidation of land (section 28); proposed phasing
or cancellation of approved layout plans (section 57); and proposed
alteration,
suspension or deletion of restrictions relating to land
(section 67).
[36]
See the various authorities detailed in
Lagoonbay
above n 24 at paras 36-9.
[37]
Mighty Solutions CC t/a Orlando Service
Station v Engen Petroleum Ltd and Another
[2015]
ZACC 34
at para 62.
[38]
Lagoonbay
above
n 24 at para 35.
[39]
Section 172(1) of the Constitution provides:
“
When
deciding a constitutional matter within its power, a court—
. . .
(b)
may make any order that is just and equitable.”
[40]
See [36]-[37] above.
[41]
Mistry v Interim Medical and Dental Council of
South Africa and Others
[1998] ZACC
10
;
1998 (4) SA 1127
(CC);
1998 (7) BCLR 880
(CC) (
Mistry
)
at para 37.
[42]
Habitat Council
above n 10 at para 27.
[43]
See section 172(1)(b) of the Constitution above n
39.
[44]
In
Fose v Minister
of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC) at para 69, this Court
stated that “an appropriate remedy must mean an effective
remedy, for without effective remedies
for breach, the values
underlying and the rights entrenched in the Constitution cannot
properly be upheld or enhanced”.
[45]
For an explanation of the doctrine of objective
constitutional invalidity, see
Cross-Border
Road Transport Agency v Central African Road Services (Pty) Ltd and
Another
[2015] ZACC 12
;
2015 (5) SA
370
(CC) at paras 13-20.
[46]
On 6 November 2015 Tronox filed further written
submissions informing this Court that it had entered into a
settlement agreement
with Mtunzini Conservancy on 3 November 2015.
It stated that if this Court does not confirm the High Court’s
declaration
of invalidity or if it makes some other ruling which
results in Mtunzini Conservancy’s appeal not being set aside,
Mtunzini
Conservancy has undertaken to withdraw its appeal within
seven days of this Court’s judgment. It stated that
there
was therefore no longer a live dispute between Tronox and
Mtunzini Conservancy. These submissions should be treated
cautiously,
however, as no copy of the agreement was annexed and
Mtunzini Conservancy did not confirm the veracity of the
submissions.
[47]
S v Bhulwana; S v Gwadiso
[1995]
ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) (
Bhulwana
)
at para 32.
[48]
This echoes
section
12(2)(c) of the Interpretation Act 33 of 1957 which provides:
“
Where
a law repeals any other law, then unless the contrary intention
appears, the repeal shall not—
. . .
(c)
affect any
right, privilege, obligation or liability acquired, accrued
or
incurred under any law so repealed.”
[49]
Habitat Council
above n 10 at para 29.
[50]
Gauteng Development Tribunal
above n 11 at para 82.
[51]
Id at para 72 (emphasis added).
[52]
Id at para 83.
[53]
See section 156(1) and Part B of Schedule 4 of
the Constitution.