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[2016] ZACC 40
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Pieterse NO v Lephalale Local Municipality (CCT184/16) [2016] ZACC 40; 2017 (2) BCLR 233 (CC) (10 November 2016)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
184/16
In the matter
between:
HENDRIK DIEDERICK
PIETERSE
N.O.
First
Applicant
ELIZABETH
BARINDINA PIETERSE
N.O.
Second
Applicant
and
LEPHALALE LOCAL
MUNICIPALITY
First
Respondent
MEMBER OF THE
EXECUTIVE COUNCIL
FOR LOCAL
GOVERNMENT AND HOUSING,
LIMPOPO
Second
Respondent
LIMPOPO TOWNSHIPS
BOARD
Third
Respondent
AT SOLD
PROPERTIES
CC
Fourth
Respondent
Neutral citation:
Pieterse N.O. and Another v Lephalale Local Municipality and
Others
[2016] ZACC 40
Coram:
Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe
J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J.
Judgment:
The
Court
Decided on:
10 November 2016
Summary:
Section
139 of the Town-planning and Townships Ordinance 15 of 1986 —
separation of powers — provision is constitutionally
invalid
Local government
exclusive competences — provision authorising provincial
government interference — section 155 of the
Constitution —
all planning falling within the exclusive competence of
municipalities
ORDER
Confirmation of the
order of the High Court of South Africa, Gauteng Division, Pretoria:
1. The order of the High Court of South Africa, Gauteng Division,
Pretoria declaring section 139 of the Town-planning and
Townships Ordinance 15 of 1986 constitutionally invalid is confirmed.
2. The declaration of invalidity is not retrospective and does not
affect finalised appeals.
3. Appeals pending in terms of section 139 continue until finalised.
JUDGMENT
THE COURT (Mogoeng
CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo
J):
[1]
These are confirmation proceedings. On 25 May 2016, the
High Court of South Africa, Gauteng Division, Pretoria
[1]
(High Court) declared section 139 of the Town planning and
Townships Ordinance 15 of 1986 (Ordinance) inconsistent with the
Constitution and invalid. This was because the provision allows
for provincial interference in a municipality’s exclusive,
constitutionally-enshrined domain by giving appellate powers over its
planning competences to the provincial government.
[2]
[2]
In conformity with section 172(2)(a) of the
Constitution,
[3]
the High Court directed its Registrar to lodge the judgment with this
Court for confirmation.
[4]
The Registrar did so on 2 August 2016.
[5]
No party sought to apply for the confirmation of the order of
invalidity
[6]
nor was any appeal lodged against it.
[7]
This Court has decided the confirmation without written or oral
submissions. The proceedings concern only the confirmation,
not
the related review.
Background facts
[3]
The applicants, Mr Hendrik Diederick Pieterse and Ms Elizabeth
Barindina Pieterse, are trustees of the Waterkloof Family Trust
(Trust), which owns farmland in the area of the first respondent,
the Lephalale Local Municipality, in Limpopo (Municipality).
The Trust obtained municipal permission to temporarily use a portion
of the farm for a contractors’ residential camp
(first application).
[8]
But when it lodged a second application for the use of an additional
portion, the Municipality declined. Aggrieved,
the Trust
applied to the High Court. It sought an order declaring
section 139 of the Ordinance invalid to the extent
that its
provisions constituted interference by the provincial government in
municipal planning decisions. The Trust’s
interest arose
from an exchange between it and the Municipality during which it was
informed of the appellate process, and which
it regarded as an
unnecessary hurdle. The Trust also sought to review and set
aside the Municipality’s decision refusing
the second
application.
[4]
The High Court decided the review in favour of the Trust.
It also declared section 139 constitutionally invalid.
High Court
[5]
The Ordinance is old-order legislation that continues to apply
under the Constitution. The pre-democracy Transvaal Provincial
Legislature enacted it to determine the powers and capacities of
local municipalities in its jurisdiction. It reflects a
typical
planning law regime. This was at a time when municipalities
were subordinate arms of government. They “owed
their
existence to and derived their powers from provincial
ordinances”.
[9]
The Ordinance does what the Constitution itself now does. It
assigns the authority to introduce, exercise executive
authority over
and administer municipal planning to authorised municipalities.
Since the advent of democracy, the Constitution
reserves to
municipalities executive power over, and administration of, the
functional areas listed in Part B of Schedule 4.
Their powers
are now constitutionally recognised and protected.
[10]
[6]
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”. And section 41(1)(e) and 41(1)(f) requires
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.”
[7]
The Constitution confers on municipalities a power to govern
the local government affairs of their respective areas and
communities.
[11]
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.”
[8]
Municipal land use planning schemes are executive and
administrative in nature. They are exclusively for the
municipality
to determine.
[12]
Beyond their constitutionally allocated powers of oversight and
assistance, neither national nor provincial government may,
by
legislation or otherwise, interfere with a municipality’s
executive powers to administer municipal affairs.
[13]
Yet section 139 of the Ordinance continues to allow an appeal from a
municipal planning decision to a provincially appointed
and
administered appellate body. It reads:
“Appeals to Board
(1)
An applicant or objector who is aggrieved by—
(a) a decision of a local authority—
(i)
in terms of section 20(3)(b), 48(1)(b) or 63(1)(b);
(ii)
on any application in terms of—
(aa) any provision of this Ordinance;
(bb) any town-planning scheme, may, within a period of 28 days from
the date he has been notified in writing by such local authority
of
the decision, or within such further period, not exceeding 28 days,
as the Board may allow;
(b) the refusal or unreasonable delay of a local authority to give a
decision contemplated in paragraph (a) may, at any time, if
this
Ordinance does not provide for an appeal to the Administrator, a
compensation court or a services appeal board, appeal through
the
Director to the Board by lodging with the Director a notice of appeal
setting out the grounds of appeal, and he shall at the
same time
provide the local authority with a copy of the notice.”
[9]
The Ordinance was assigned to the Limpopo government to
administer when the interim Constitution took effect.
[14]
In terms of section 1(1), “Board” means the board
established for [each] province by section 3(1). The
Limpopo
Townships Board is the third respondent. So, it is a provincial
authority and is given the power to decide appeals
against a
municipality’s exercise of its planning rights and powers.
[15]
[10]
The High Court found section 139 of the Ordinance inimical to
section 156(1) of the Constitution. Its judgment was succinct.
It applied this Court’s by now well settled jurisprudence
on provincial appellate powers over municipal planning
decisions.
[16]
It declared the impugned section constitutionally invalid because the
appeal process it created impermissibly interfered
with
municipalities’ constitutionally recognised power to manage
municipal planning.
[17]
Confirmation
[11]
The High Court’s reasoning commands assent. The
object of section 139 is clear. It is to enable one aggrieved
by a decision of a local authority to appeal to a provincial
appellate authority. That authority may overturn the
municipality’s
decision. This usurps local government’s
power to manage “municipal planning”. In
Gauteng
Development Tribunal
, Jafta J found on behalf of the Court:
“Section 40 of the Constitution defines the model of government
contemplated in the Constitution. 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.
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’.
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.”
[18]
[12]
This Court has found provisions of this kind, both
old-order
[19]
and Constitution era,
[20]
invalid. In
Lagoonbay
, Mhlantla AJ pointed out on behalf
of the Court:
“This Court’s jurisprudence clearly establishes that: (a)
barring 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; [and] (c) while the Constitution confers municipal
planning responsibilities on each of the spheres of government,
those
are different planning responsibilities based on what is appropriate
to each sphere.”
[21]
[13]
Local authorities have a constitutionally entrenched power to
manage municipal planning. “This power is autonomous and
under no circumstances can it be intruded upon.”
[22]
The functional areas conferred on provinces,
whether concurrently or exclusively, cannot be construed to include
components of municipal
planning. That would run counter to the
scheme of the Constitution, particularly its provisions that
safeguard the autonomy
of municipalities and insulate them from
interference by the other spheres.
So any mechanism that
subjects municipalities’ planning decisions to a provincial
appeal process intrudes into constitutionally
prohibited terrain.
[14]
In
Habitat Council
, Cameron J on behalf of the Court
held that “municipalities are responsible for zoning and
subdivision decisions, and provinces
are not”.
[23]
So matters relating to land planning are best left for municipal
determination. The Court went on to say:
“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.”
[24]
[15]
In short, section 139 allows for a parallel or concurrent
authority at provincial level to countermand the Municipality in an
area
of competence assigned exclusively to it. In this, it
fails to observe municipal autonomy. And it constitutes
constitutionally
impermissible provincial interference. The
High Court was correct to declare the provision inconsistent with the
Constitution
and invalid.
Suspension
[16]
The High Court refused to suspend the order of invalidity.
It also ordered that the declaration of invalidity operate
prospectively
only. This fully accords with this Court’s
approach in
Habitat Council
[25]
and other recent cases. For much the same reasons as
this
Court proffered in
Habitat Council
,
it is not in the interests of justice to suspend the order of
invalidity.
Retrospectivity
[17]
The High Court gave a non-retrospective
order. This preserved the validity of all pending appeals, and
those that had taken
place, up to the date of the order. This
approach was also consonant with both
Habitat
Council
[26]
and
Gauteng Development Tribunal
.
[27]
To avoid
disruption and prejudice to third
parties, whose appeals were disposed of by the Limpopo Townships
Board, as well as those
whose appeals are still pending; it
would not be just and equitable for the order to
operate retrospectively.
[28]
[18]
However to attenuate any possibility of
prejudice in conserving an unconstitutional mechanism, it would be
apt, as we did in
Tronox
,
to enjoin the Limpopo Townships Board, when it disposes of
pending appeals, to take into account the Municipality’s
norms
and standards, and policies
.
[29]
Order
[19]
The following order is made:
1. The order of the High Court of South Africa, Gauteng Division,
Pretoria declaring section 139 of the Town-planning and
Townships Ordinance 15 of 1986 constitutionally invalid is confirmed.
2. The declaration of invalidity is not retrospective and does not
affect finalised appeals.
3. Appeals pending in terms of section 139 continue until finalised.
[1]
Makgoka J.
[2]
Pieterse N.O. v Lephalale Local Municipality
unreported
judgment of the High Court of South Africa, Gauteng Division,
Pretoria Case No. 79281/14 (25 May 2016) (High Court
judgment).
[3]
Section 172(2)(a) provides:
“Powers of courts in constitutional matters
. . .
(2)(a) The Supreme Court of Appeal, the High Court of South Africa
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
.
”
[4]
See also section
167(5) of the Constitution,
which states that it is this Court that makes the final decision
whether an Act of Parliament is to
be declared invalid on the ground
that it is inconsistent with the Constitution.
[5]
In terms of rule 16(1) of the Rules of this Court, GN R1675 in
GG
25726, 31 October 2003.
[6]
Rule 16(4) of the Rules of this Court provides that a person or
organ of state entitled to do so and desirous of applying for
the
confirmation of an order of invalidity may lodge an application
within fifteen days.
[7]
Rule 16(2) of the Rules of this Court permit a person or organ of
state entitled to do so and desirous of appealing to lodge
a notice
of appeal within fifteen days.
[8]
The application was made in terms of the Lephalale Town-planning
Scheme, 2005.
[9]
CDA Boerdery (Edms) Bpk v Nelson Mandela Metropolitan
Municipality
[2007] ZASCA 1
; 2007 SA (4) 276 (SCA) at para 33.
[10]
City of Cape Town v Robertson
[2004] ZACC 21
;
2005 (2) SA 323
(CC) (
Robertson
) at para 60;
Fedsure Life Assurance Ltd v
Greater Johannesburg Transitional Metropolitan Council
[1998]
ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC)
at
paras 26, 38
and
126
.
[11]
Section 151(2) confers original executive authority on municipal
councils. And 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”.
[12]
City of Johannesburg Metropolitan Municipality v Gauteng
Development Tribunal
[2010] ZACC 11
;
2010 (6) SA 182
(CC);
2010
(9) BCLR 859
(CC) (
Gauteng Development Tribunal
) at para 56
.
[13]
Id at paras 59-60.
[14]
Robertson
above
n 10 at para 46; and
Minister of Local Government,
Environmental Affairs and Development Planning, Western Cape v The
Habitat Council
[2014] ZACC 9
;
2014 (4) SA
437
(CC);
2014 (5) BCLR 591
(CC) (
Habitat Council
) at
para 1.
[15]
Section 3(1) provides:
“A Township Board is hereby established for each province.”
And section 4(1)
provides:
“Constitution of Board
(1) The Board shall constitute of the following members—
(a) a chairman appointed by the Administrator on such terms and
conditions as he may determine;
(b) the Director or any person in the Public Service of the Republic
authorised by him, to act on his behalf;
(c) not more than 15 other members appointed by the Administrator on
such terms and conditions as he may determine, herein after
referred
to as appointed members, and who, in his opinion, possess
qualifications necessary or useful for purposes of this Ordinance.”
According to the
definition in section 1(1), “Administrator” means a
person vested, by each province, with the authority
to administer
the Ordinance.
[16]
Habitat Council
above n 14
.
[17]
High Court judgment above n 2 at para 12.
[18]
Gauteng Development Tribunal
above
n 12 at paras 43-4.
[19]
Id;
Habitat Council
above n 14;
Minister of
Local Government, Western Cape v Lagoonbay Lifestyle Estate (Pty)
Ltd
[2013] ZACC 39
;
2014 (1) SA 521
(CC);
2014 (2) BCLR 182
(CC)
(
Lagoonbay
)
.
[20]
Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and
Development Appeal Tribunal
[2016] ZACC 2
;
2016 (3) SA 160
(CC);
2016 (4) BCLR 469
(CC)
(
Tronox
).
[21]
Lagoonbay
above n 19 at para 46,
citing
Gauteng Development Tribunal
above n 12 at paras 44, 50, 53 and 55-6
.
[22]
Tronox
above n 20 at para 28.
[23]
Habitat Council
above
n 14 at para 13, at para 14 the Court said
municipalities are
best suited to make planning decisions because they are localised
decisions which should be based on information
which is readily
accessible to the municipalities.
[24]
Id at para 19.
[25]
Id at para 27.
[26]
Id at para 29.
[27]
Gauteng Development Tribunal
above n 12 at paras 82 and 85.
[28]
Habitat Council
above n 14 at para 28. See also section
172(1)(b) of the Constitution.
[29]
See
Tronox
above n 20 at paras 53-9.