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[2018] ZACC 15
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City of Johannesburg Metropolitan Municipality v Chairman of the National Building Regulations Review Board and Others (CCT186/17) [2018] ZACC 15; 2018 (8) BCLR 881 (CC) ; 2018 (5) SA 1 (CC) (7 June 2018)
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CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 186/17
In the matter between:
CITY OF JOHANNESBURG
METROPOLITAN MUNICIPALITY
First Applicant
and
CHAIRMAN OF THE NATIONAL BUILDING
REGULATIONS REVIEW
BOARD
First Respondent
ATC SOUTH AFRICA WIRELESS
INFRASTRUCTURE (PTY)
LIMITED
Second Respondent
PJJ VAN VUUREN BELEGGINGS
(PTY) LIMITED
Third Respondent
CARY–ANN WILLIAMSON–LOUW
Fourth Respondent
FABIAN LOUX
Fifth Respondent
CHRISTY ROUX
Sixth Respondent
WARREN ROUX
Seventh Respondent
SHIONA BLUNDELL
Eighth Respondent
KEITH KEYS
Ninth Respondent
MINISTER OF TRADE AND
INDUSTRY
Tenth Respondent
NATIONAL REGULATOR FOR COMPULSORY
SPECIFICATIONS
Eleventh Respondent
Neutral citation:
City of Johannesburg Metropolitan Municipality v Chairman of the
National Building Review Board
[2018] ZACC 15
Coram:
Mogoeng CJ, Cachalia
AJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J,
Khampepe J, Madlanga J, Petse J and Theron J
Judgments:
Jafta J (unanimous)
Heard on:
27 February 2018
Decided on:
7 June 2018
Summary:
National Building Regulations and Building Standards Act 103 of
1997 — constitutionality of section 9 —unconstitutional
—
separation of powers
Local government competences —
national government competences — all zoning decisions lie
within the competence of the
municipality — decision by
municipality on approval of building plans not reviewable by National
Building Regulations Review
Board
JUDGMENT
JAFTA J
Introduction
[1] This is an application by the City
of Johannesburg Metropolitan Municipality (City) for confirmation of
a declaration of invalidity
made by the High Court of South Africa,
Gauteng Division, Pretoria (High Court). That Court declared
section 9
[1]
of the National Building Regulations and Building Standards Act
[2]
(Act) invalid to the extent that it empowered the National Building
Regulations Review Board (Board) to exercise appellate powers
over
municipal decisions. For this order to come into force, it must
be confirmed by this Court.
[3]
Legislative Framework
[2] The Act came into operation in
September 1985. It prohibits construction of buildings within a
municipal area without
prior approval by the relevant municipality of
the building plans. Erecting a building without municipal
approval constitutes
a criminal offence punishable with a fine.
Consequently, a person wishing to erect a building in a municipal
area is obliged
to first apply for approval of building plans from
the relevant municipality before commencing construction.
[3] Section 7 of the Act empowers
municipalities to approve building plans if the requirements of the
Act are met.
[4]
In determining these applications, a municipality is bound to take
into account a recommendation by a building control officer
appointed
by every municipality.
[4] The Act defines a “building”
in wide terms, which include any structure used for the “convenience
of human
beings or animals”. This definition covers the
erection of cellular phone masts with which this matter is concerned.
[5] Under the Act a decision of a
municipality pertaining to approval of building plans is subject to
an appeal by an aggrieved
person to the Board. The Board is an
organ of state and is established by the Minister of Trade and
Industry. It consists
of three members, one of whom is
designated by the Minister as the chairperson. Although the
Board is established in terms
of section 9 of the Act, the source of
its appellate powers is Regulation 13 of the regulations made by the
Minister.
[6] Regulation 13 provides:
“(1)
The decisions of the board shall be taken by majority vote.
(2) Any proceedings before
the board may be adjourned by the chairman to such date time
and
place as he may deem fit.
(3) The board may at any
time prior to its final decision in its discretion order any
proceedings to be re-opened for the purpose of hearing or considering
further evidence or arguments which, as may be directed by
the board,
may be either oral or written.
(4)
The board may—
(a) dismiss the appeal and
confirm the refusal or any conditional approval of the local
authority; or
(b) uphold the appeal in
whole or in part; and
(c)
order the local authority to pay a successful appellant an amount
equivalent to the
amount paid by the appellant in terms of regulation
9(3), or any part of such amount.”
[7] This regulation must be read with
section 9 of the Act which affords an aggrieved person an appeal
against a decision of a municipality.
The Board is authorised
by section 9 of the Act, read with regulation 13, to uphold or
reverse a decision by the relevant municipality.
Background
[8] The City adopted a cellular mast
policy which governs applications for approval of building plans
pertaining to the erection
of cellular phone masts, within its area
of jurisdiction. This policy provides that applications of this
kind shall be determined
in terms of section 7 of the Act.
[5]
Apart from outlining the process which must be followed in submitting
plans for approval, the policy affords owners of properties
adjacent
to where the proposed mast is to be erected a hearing before the
decision to approve is taken. These landowners
may submit their
written representations to the City within 21 days of being requested
to do so.
[9] In June 2012 ATC South Africa
Wireless Infrastructure (Pty) Ltd (ATC) submitted to the City an
application for approval of plans
to erect a cellular mast on their
property situated at 169 Bellairs Drive, Northriding. In
compliance with its policy, the
City afforded the relevant landowners
an opportunity to make representations on the application. Two
of them objected to
the erection of the mast. Notwithstanding
the objections, the City approved the plans and a mast was erected on
ATC’s
property.
[10] Aggrieved by the approval, the
objectors lodged an appeal with the Board against the City’s
decision in February 2013.
They were joined by four other
persons. In response, the City urged the Board to dismiss the
appeal on two in
limine
grounds. The first was that the
appellants had no standing. The second was that the Board had
no jurisdiction over
the matter. The City did not address the
merits of the appeal. Instead it reserved its rights pending
the Board’s
decision on the points in
limine
. The
Board invited the parties to make written submissions on those points
and decided the matter without an oral hearing.
[11] Having considered the relevant
provisions and case law, the Board issued a comprehensive ruling on
31 March 2015. Both
points were rejected and a decision in
these terms was made:
“17.1.
First and Second Respondent’s application for the dismissal of
the Appeal on the basis of jurisdictional
points raised in
limine
is refused;
17.2.
Second Respondent is required to submit its Response on the factual
averments and merits of the Appeal within
twenty-one (21)
calendar days of date, whereafter Appellants will be provided
with an opportunity to reply thereto;
17.3.
A hearing will be convened in terms of Review Board Regulation
(11)(b) at a date to be notified by the Review
Board.”
[12] Unhappy with the outcome, the City
instituted an application in the High Court in which the validity of
section 9 of the Act
was challenged. The chairman of the Board;
ATC; PJJ Van Vuuren Beleggings (Pty) Limited; the six appellants
before the Board;
the Minister; and the National Regulator for
Compulsory Specifications, were all cited as respondents. But
as is apparent
from the record, only the Minister opposed the
application. ATC supported the relief sought by the City.
[13] The relief asked for by the City
was two-fold. It sought an order declaring that section 9 of
the Act was invalid, to
the extent that it authorised the Board to
usurp a municipal function, and also asked that the Board’s
decision be set aside.
The validity of section 9 was impugned
on the ground that it empowered an organ of state in the national
sphere of government
to exercise powers which the Constitution
reserved exclusively for municipalities. It was contended that
by so doing, the
section was inconsistent with the Constitution.
[14] In opposing the relief, the
Minister did not argue that the provision had a different effect.
Instead, he contended that
the application was premature for two
reasons. First, the City had not followed the intergovernmental
dispute resolution
mechanisms before approaching the High Court.
Second, he asserted that the Act was under revision. The
Minister further
submitted that the City had failed to show that the
Board usurped its powers.
[15] With regard to the review of the
Board’s decision, the City persisted in the same points that
were raised
in
limine
before the Board. It
asserted that the Board had no jurisdiction to entertain the appeal.
But if it had jurisdiction,
the appellants before it lacked standing
to prosecute the appeal. As this part of the relief was
unopposed, the High Court
granted it.
[16] Regarding the invalidity of section
9 of the Act, the High Court construed the section as empowering the
national sphere of
government to exercise municipal powers. And
with reference to the decisions of this Court in
Gauteng Development
Tribunal,
[6]
Habitat Council
[7]
and
Tronox
,
[8]
the High Court held that section 9 impermissibly authorised the Board
to exercise planning functions of municipalities. For
this
reason, the High Court held that the section is inconsistent with the
Constitution.
[17] The grounds of opposition advanced
by the Minister were all rejected. The argument that the
application was premature
was dismissed as lacking merit. The Court
reasoned that the matter was about the invalidity of legislation and
not an
intergovernmental dispute which could be resolved through
mechanisms and procedures provided for the resolution of disputes by
organs of state, without approaching the courts. The High Court
held further that the revision process undertaken by the Minister
on
the Act did not preclude it from pronouncing upon the validity of the
impugned provision. The Court observed that the
Minister had
not given a firm undertaking to repeal the offending provision.
[18] As a result, the High Court
declared that section 9 was invalid. The decision of the Board
was set aside and the appeal
pending before the Board was declared
void
ab initio
(from the outset) on the ground that section 9
did not apply to objections to an application for approval of
building plans. The
Minister was ordered to pay costs.
Confirmation
[19] What needs to be confirmed is the
order declaring section 9 of the Act to be invalid. Orders of
the High Court and the
Supreme Court of Appeal that declare Acts of
Parliament constitutionally invalid have no force and effect unless
confirmed by this
Court. However, before confirming these
orders, this Court must first satisfy itself that the impugned Act is
indeed inconsistent
with the Constitution. Therefore, the issue
that arises here is whether section 9 of the Act is inconsistent with
the Constitution
on the ground that it mandates the Board to
exercise appellate powers over decisions of a municipality on matters
that fall within
the exclusive domain of municipalities.
[20] A good place at which to commence
this enquiry is the Constitution against which the validity of
section 9 must be tested.
The Constitution establishes a
government that consists of three spheres: the national; provincial
and the local sphere. While
these spheres are distinct from one
another, they are also interdependent and interrelated.
[9]
But each sphere enjoys a degree of autonomy to exercise its powers
and perform its functions within its defined space.
Each sphere
must respect the status, powers and functions of the other spheres
and may not exercise functions of these spheres,
except where the
Constitution itself permits.
[10]
[21] This constitutional scheme gives
effect to the principle of separation of powers among the spheres of
government. In
addition, this scheme abolishes the notion that
municipalities are creatures of statute entrusted to provincial
councils to administer.
[11]
On the contrary the Constitution establishes and entrenches the
status and autonomy of municipalities which constitutes the
local
sphere of government. It confers on them original
constitutional powers that are exercised exclusively by
municipalities.
[22] In
Robertson
this Court
declared:
“The
Constitution has moved away from a hierarchical division of
governmental power and has ushered in a new vision of government
in
which the sphere of local government is interdependent, ‘inviolable
and possesses the constitutional latitude within which
to define and
express its unique character’ subject to constraints
permissible under our Constitution. A municipality under
the
Constitution is not a mere creature of statute otherwise moribund
save if imbued with power by provincial or national legislation.
A municipality enjoys ‘original’ and constitutionally
entrenched powers, functions, rights and duties that may be qualified
or constrained by law and only to the extent the Constitution
permits.”
[12]
[23] Section 156(1) of the Constitution
confers specified powers on municipalities. It reads:
“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.”
[24] Part B of Schedule 4 of the
Constitution lists functional areas that fall within the executive
authority of municipalities.
These include building regulations
and municipal planning. This means that matters relating to
these two functional areas
are subject to the exclusive executive
power of municipalities. This is so because section 156
read with Part B of Schedule
4 vests the powers over those matters on
municipalities.
[25] Here it cannot be gainsaid that
when the City approved ATC’s building plans to erect a cellular
phone mast on its property,
the City was exercising its
constitutional powers pertaining to building regulations and
municipal planning. The question
that arises for determination
is whether the Constitution empowers the national sphere of
government to exercise those powers on
appeal.
[26] While the national and provincial
spheres enjoy legislative authority over matters entrusted to the
local sphere, the Constitution
does not empower these spheres to
exercise the executive authority of municipalities. The role
played by the national sphere
in municipal affairs is restricted to
regulating the exercise of power by municipalities. There is no
constitutional provision
that allows a member of Cabinet to intervene
in the exercise of constitutional powers by municipalities.
This intervention
is at odds with the separation of powers created by
the constitutional scheme mentioned earlier.
[27] The only interference permissible
in the exercise of municipal executive authority is the one
contemplated in section 139 of
the Constitution. That provision
authorises the provincial sphere to intervene under certain expressly
defined circumstances
only. Here we are not concerned with an
intervention of that kind. Instead, we are dealing with
interference by the
Minister and the Board who belong to the national
sphere of government.
[28] But the real complaint here is that
the source of authority of the Minister and the Board is section 9 of
the Act. It
is this provision which empowers the Minister to
facilitate the establishment of a three-member board to determine an
appeal against
a decision of a municipality.
Meaning of section 9
[29] Section 9 of the Act provides:
“(1)
Any person who—
(a) feels aggrieved by the
refusal of a local authority to grant approval referred to
in section
7 in respect of the erection of a building;
(b) feels aggrieved by any
notice of prohibition referred to in section 10; or
(c) disputes the
interpretation or application by a local authority of any national
building regulation or any other building regulation or by-law,
may, within the
period, in the manner and upon payment of the fees prescribed by
regulation, appeal to a review board.
(2)
The review board referred to in subsection (1) shall consist of—
(a)
a chairman designated by the Minister; and
(b) two persons appointed
for the purpose of any particular appeal by the said chairman
from
persons whose names are on a list compiled in the manner prescribed
by regulation.”
[30] It is apparent from the text of
this provision that it establishes a review board with appellate
power over decisions of a
municipality relating to sections 7 and 10
of the Act. In terms of section 9(1)(c), an appeal against a
municipality’s
interpretation or application of a building
regulation also lies to the review board.
[31] In terms of the scheme created by
the section, the Minister designates the chairperson of the review
board. Whenever
an appeal is lodged, the chairperson must
appoint two additional members of the board from a list of names
compiled in terms of
the regulations. It appears that a board
is convened to determine a particular appeal. Each board must
consist of three
members including the chairperson.
[32] The issue that arises for
determination on this aspect of the case is whether it is permissible
for the national sphere to
pass legislation that gives it power to
exercise the executive authority of a municipality. Section 155
of the Constitution
empowers Parliament to pass legislation that
defines different types of municipalities which may be
established.
[13]
In terms of section 155(5) a Provincial Legislature must enact
legislation which determines different types of municipality
to be
established in the province under its jurisdiction.
[14]
Municipalities in each province are established by the relevant
provincial government in terms of national legislation referred
to in
section 155(2) and (3).
[15]
[33] Section 155(7) goes further to
confer legislative authority upon the national and provincial
spheres. It reads:
“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).”
[34] At first blush this provision may
be read as authorising the national and provincial spheres to
exercise the executive authority
of municipalities. But when
carefully read it does not. What section 155(7) means is that
the national and provincial
spheres may exercise their legislative
and executive powers to enable municipalities to exercise their own
powers and perform their
own functions. Therefore, the exercise
of legislative and executive authority by these spheres is limited to
capacitating
municipalities to manage their own affairs and
regulating how this must be done. It does not mean that the
national sphere
may itself take over and exercise the executive
authority of a municipality.
[35] The legislative power that the
national and provincial spheres exercise over functional areas
allocated to the local spheres
does not include the power to arrogate
to themselves executive powers vested in the local sphere by the
Constitution. The
exercise of the executive authority of
municipalities is the sole preserve of municipalities. In
Gauteng Development Tribunal
we said:
“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.”
[16]
[36] The fact that section 9 of the Act
empowers the Minister and the Board to intervene on appeal does not
change the position
to a constitutionally compliant one. And
certainly what is authorised by the impugned provision goes beyond
the power of
regulating the exercise by municipalities of their
executive authority referred to in section 156(1). The Board
may reverse
the decision of a municipality. This override is
not a decision of a municipality but of the Board.
[37] The argument that the provincial
sphere may exercise appellate power as part of regulating the
executive authority of municipalities
was rejected by this Court in
Habitat Council
. In that case we stated:
“It follows
that ‘regulating’ in section 155(7) means creating norms
and guidelines for the exercise of a power
or the performance of a
function. It does not mean the usurpation of the power or the
performance of the function itself.
This is because the power
of regulation is afforded to national and provincial government in
order ‘to see to the effective
performance by municipalities of
their functions’. The constitutional scheme does not
envisage the province employing
appellate power over municipalities’
exercise of their planning functions. This is so even where the
zoning, subdivision
or land-use permission has province-wide
implications.”
[17]
[38] It follows that the High Court here
was right in concluding that section 9 of the Act is inconsistent
with the Constitution.
The declaration of invalidity made by
that Court must be confirmed.
Remedy
[39] The City urged us not to suspend
the declaration of invalidity but direct that it shall operate
prospectively. With regard
to pending appeals, the City
suggested that they should be processed in terms of section 62 of the
Local Governance: Municipal
Systems Act (Systems Act).
[18]
The Minister did not participate in proceedings before this
Court. Consequently, we do not have information on the
impact
the declaration of invalidity would have on the administration of the
Act.
[40] The City’s suggestion that
the order of invalidity should operate prospectively and that it
should not affect pending
appeals, appears to be sensible in the
present circumstances. It must be embraced. The
processing of pending appeals
must not be disrupted. They
should be finalised without delay by a review board constituted in
terms of section 9 of the
Act.
[41] However, I do not think that these
appeals must be processed in terms of section 62 of the Systems
Act. This section
is simply not suitable. Decisions to
which section 9 of the Act applied are those which were taken by a
municipality.
Under section 62(4) of the Systems Act, a
municipal council is the highest appeal authority. Therefore,
if section 62 were
to apply, a municipality would sit on appeal
against its own decision. This would be an untenable situation.
[42] Consequently, it is just and
equitable to have pending appeals processed in terms of section 9 of
the Act. But this process
must exclude the appeal lodged in the
present matter. The High Court declared that appeal to have
been void and its order
was not challenged before this Court.
Order
[43] In the result the following order
is made:
1.
The order of the Gauteng Division of the High Court declaring that
section 9 of the National Building Regulations and Building Standards
Act 103 of 1977 is invalid, to the extent that it empowers
the
National Building Regulations Board to exercise appellate powers over
decisions of a municipality, is confirmed.
2.
The declaration of invalidity will operate prospectively from the
date of this order.
3.
The National Building Regulations Review Board must finalise without
delay all appeals lodged with it before the date of this order,
excluding the appeal in the present matter.
4.
There shall be no order as to costs.
For the Applicant:
Adv SJ Du Plessis SC and Adv E Sithole instructed by Moodie and
Robertson.
[1]
Section 9 of the Act provides:
“(1)
Any person who—
(a)
feels aggrieved by the refusal of a local authority to grant
approval
referred to in section 7 in respect of the erection of a
building;
(b)
feels aggrieved by any notice of prohibition referred to in section
10; or
(c)
disputes the interpretation or application by a local authority
of
any national building regulation or any other building regulation or
by-law,
may, within the
period, in the manner and upon payment of the fees prescribed by
regulation, appeal to a review board.
(2)
The review board referred to in subsection (1) shall consist of—
(a)
a chairman designated by the Minister; and
(b)
two persons appointed for the purpose of any particular appeal by
the said chairman from persons whose names are on a list compiled in
the manner prescribed by regulation.”
[2]
103 of 1977.
[3]
Section 172(2)(a) of the Constitution provides:
“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]
Section 7(1) provides that:
“If a local
authority, having considered a recommendation referred to in section
6(1)(a)—
(a)
is satisfied that the application
in question complies with the
requirements of this Act and any other applicable law, it shall
grant its approval in respect thereof.”
[5]
Clause 8.6 of the policy states:
“Applications
shall be considered in terms of the provisions of section 7(1) of
the National Buildings Regulations and Building
Standards Act 103 of
1977 and the guidelines as set out in paragraph (8) above.”
[6]
Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal
[2010] ZACC 11
;
2010 (6) SA 182
(CC);
2010 (9) BCLR 859
(CC) (
Gauteng Development Tribunal
).
[7]
Minister of Local Government, Environmental Affairs and
Development Planning, Western Cape v Habitat Council
[2014] ZACC
9
;
2014 (4) SA 437
(CC);
2014 (5) BCLR 591
(CC) (
Habitat
Council
).
[8]
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
).
[9]
Section 40(1) of the Constitution reads:
“In the
Republic, government is constituted as national, provincial and
local spheres of government which are distinctive,
interdependent
and interrelated.”
[10]
Gauteng Development Tribunal
above n 5 at para 43.
[11]
City of Cape Town v Robertson
[2004] ZACC 21
;
2005 (2) SA 323
(CC);
[2005] JOL 13397
(CC) (
Robertson
)
at para 53.
[12]
Id at para 60.
[13]
Section 155(2) and (3) of the Constitution provides:
“(2)
National legislation must define the different types of municipality
that may be established within each category.
(3)
National legislation must—
(a)
establish the criteria for determining when an area should have
a
single category A municipality or when it should have municipalities
of both category B and category C;
(b)
establish criteria and procedure for determination of municipal
boundaries by an independent authority; and
(c)
subject to section 229, make provision for an appropriate division
of powers and functions between municipality when an area has
municipalities of both category B and C. A division
of
powers and functions between a category B municipality and a
category C municipality may differ from the division of powers
and
functions between another category B municipality and that category
C municipality.”
[14]
Section 155(5) of the Constitution provides:
“Provincial legislation must
determine the different types of municipality to be established in
the province.”
[15]
Section 155(6) of the Constitution provides:
“Each
provincial government must establish municipalities in its province
in a manner consistent with the legislation enacted
in terms of
subsections (2) and (3) and, by legislative or other measures, must
(a)
provide for the monitoring and support of local government in the
province; and
(b)
promote the development of local government capacity to enable
municipalities to perform their functions and manage their own
affairs.”
[16]
Gauteng Development Tribunal
above n 5 at para 59.
[17]
Habitat Council
above n 6 at para 22.
[18]
32 of 2000.