PortfoSouth African Geomatics Institute (SAGI) submission
Mr P Newmarch of SAGI stated that the Institute was comprised of land surveyors and did not hold any political views but only dealt with issues of a technical nature. He stated that there was not time to deal with all the issues that had been raised in the submissions submitted to the Committee and so only a few selected items would be addressed at the meeting.
Mr Newmarch said that the first issue was that application costs were becoming more and more expensive. The advertising and application costs as well as term delay costs in proving the application was adding tremendously to developmental costs. There was a myriad of legislation controlling development and different consent was needed. As a result, it would be lucky for anyone to get a development approved within one year and the average for any development appeared to be a two year period and this was unacceptable. Delays were also getting longer and longer in various government departments and most people did not have funds to resort to the High Court to enforce action. Some national and provincial departments had thirty days as the stipulated turnaround time but experience had shown two-years turnaround time from these same departments.
He commented that municipalities differed in their requirements and as a result the documents needed by one municipality differed from the documents required by another municipality despite the fact that it was in respect of the same type of application. This was very confusing and added to the cost.
Mr Newmarch stated that another aspect to consider and which was recently witnessed in KwaZulu Natal was that many municipalities had never undertaken planning before and they were now to be given the goahead to undertake their own planning. They lacked the skill, finance, human resources and infrastructure to undertake such planning. While the Bill made provision for assisting the municipalities, it was not clear as regards the extent and long term support it would offer.
Mr Newmarch noted that developers did not absorb planning costs and this was all passed on to the ultimate purchaser of the property. Any increase in the land and developing costs would have effects. Another factor related to costs was that the municipality could impose development levies and it was not clear to taxpayers how this money was accounted for or if the municipality could legally use the development levy for other purposes. The norms and standards ought to address how the levy was to be calculated and under what circumstances it be imposed. The Bill ought to provide accounting measures to ensure that the levy was used for the purpose intended.
In respect of the end of the Bill which dealt with the right of the Department of Rural Development and Land Reform (DRPLF) to review the costs of the Bill to the government, this provision did not take into account the costs to the private sector and the average home owner. These were issues which hopefully would be addressed in the norms and standards to keep costs to the minimum. While the Bill addressed the time frame within which a municipality ought to consider an application, the problem was that many municipalities simply ignored the time frame. There were no consequences in the Bill for failure to adhere to the time frame. Thus it appeared that the provision of the time frame was therefore useless. There ought to be penalties if municipalities did not comply with time frames.
Mr Newmarch addressed the issue of tenure which land surveyors in South Africa had a dilemma with. It was accepted that planning had to take place in a greenfield development in order to have conditions of establishment for new urban and township management. However, the situation was different with existing tenure right holders who are recognised by law and protected but yet they could not get any title. Planning in this case was a discriminatory practice and a cost barrier to obtaining title. Millions of people found themselves in this position and the government did not have funds to undertake the planning in a short period of time. An example of planning versus tenure could be seen in the United Kingdom, where tenure was not the subject of any form of planning control. However, the moment a brick was laid in the ground then planning became inevitable. It was not advocated that the same route as the UK should be followed but why did millions of South Africans have to wait for planning before getting title to their lands when they currently and lawfully used their land.
South Africa in some sense had an element of a false planning base map on which it worked which was based on a special limit of properties as recorded in the Office of the Surveyor-General and registered in the Deed’s Office. The Spatial Planning and Land Use Management Bill (SPLUMB) sought to continue the system and have approvals based on the divisions and sub-divisions of consolidation. Yet consolidation could be done by material ties without the need for a consolidation diagram. Expropriation of properties did not need sub-divisional diagrams and millions of people with tenure rights were not recorded in the Office of the Surveyor-General or Deed’s Office. The planning in its current system which relied on the spatial records was not fully reflective of planning patterns on the ground which should be rectified.
Mr W du Plessis, Eskom General Manager: Legal & Compliance, stated that Eskom was in support of the objectives of the Bill because it presented opportunities for cooperation between major infrastructural projects. Eskom provided long term solutions to the energy needs of South Africa and it was believed that the Bill ought to help in facilitating this process of providing energy.
Coordination was required across the three spheres of government that would be involved in the implementation of the Bill. This was because there were issues at national, provincial and local level and there were also national public entities such as Eskom which were busy with infrastructure that spanned across provincial and municipal boundaries.
Mr du Plessis stated that one of the concerns of Eskom about the Bill was in respect of infrastructure spanning boundaries. Eskom had to build distribution and transmission lines to supply electricity to users across the country. In view of this, Eskom was of the opinion that the Bill should be strengthened in the consultation process with regards to the provincial, regional and municipal level in connection to the spatial development framework. Reference was made to clause 13 of the Bill which provided that the Minister would consult with organs of State and various ministries which controlled certain sectors. It was Eskom’s opinion that the clause should be strengthened to also refer to ministries which controlled major public entities such as Eskom.
Reference was made to clause 52 which appeared to be dealing with certain national interests and when specific applications should be referred to the Minister. Eskom was of the opinion that there was no clear definition of what amounted to ‘national interest’ and when an application would be referred to the Minister. It was therefore believed that the clause fell short and ought to go further by defining national services to include essential services which were required from national public entities such as Eskom, Transnet and others.
Another concern of Eskom was in respect of exemptions. It was observed that existing pieces of legislation in respect of planning – whether at the national or provincial level – provided some reasonable measure of exemption for entities such as Eskom and Transnet especially in respect of linear projects. As a result Eskom did not have to apply for zoning in respect of where its transmission lines would be spanning through. It was Eskom’s opinion that the provisions for exemptions in the Bill were very narrow. There ought to be provisions for a broader exemption in respect of application rights for public entities.
Lastly, Eskom referred to the spatial development framework of the Bill. It was observed that the municipality had to make reviews every five years but there was no long term view at a national and provincial framework level. It was therefore suggested that there should be provision of a similar review at the national and provincial level. It was also noted that transition measures were vague which had an impact on existing planning. It was suggested that there ought to be provisions which would provide for cooperation with other regulatory authorities. The Bill was also silent on the need to upgrade existing infrastructure and this should be worked on.
The South African Council of Planners (SACPLAN) was called on to make its submission but it was not present at the meeting.
Ms P Ngwenya-Mabila (ANC) asked Eskom if the issues that had been raised concerning exemptions could not be addressed in the regulations.
Mr du Plessis referred to clause 54 which provided for regulations and stated that he could not pick any provisions from the clause which gave the Minister power to make regulations for exemptions. The usual case was to preferably deal with exemptions in the main legislation instead of dealing with it in subsidiary legislation.
Mr A Trollip (DA) asked Mr Newmarch for clarity on the issue of tenure and how SPLUMB was going to complicate tenure rights of existing owners who used land upon which they resided or conducted business.
Mr Newmarch stated that if one wished to create title in respect of acquiring tenure rights then a general plan had to be created. This meant that all sub-division legislation had to be complied with. SLUMB obviously used the word ‘sub-division’ which would trigger a planning application in respect of any project. If circumstances were to be created in which tenure could easily be dealt with, then one must either state that a sub-division application was not required for a tenure upgrade or a legislation ought to be enacted that exempted tenure upgrade from the provisions of the Bill. The Bill was not particularly clear with what was exempted or not.
KwaZulu-Natal Department of Co-operative Governance and Traditional Affairs (COGTA)
Mr Gert Roos stated that he would present the legal considerations in respect of SPLUMB. Due to time constraints, the submission would only deal with two critical issues which the Municipal Planning Tribunal and Internal Appeals.
In respect of the Municipal Planning Tribunal, an Act of Parliament could not assign municipal planning to a tribunal consisting of officials and private persons. This was the decision of the court in the case of JHB v Gauteng Development Tribunal Constitutional Court. However, SPLUMB assigned municipal planning to a tribunal consisting of officials and private persons, which was in contravention of the court’s judgement.
Mr Ross stated the municipal planning tribunals and Development Facilitation Act (DFA) development tribunals were almost identical and that the major difference was that one was appointed by the premier and the other by the municipality. The only other difference was there were no provincial officials on municipal planning tribunals.
He further examined the constitutional validity of the municipal planning tribunal. The determining factor for constitutional validity of the municipal planning tribunal was dependent on who had the right to perform the function and not who appointed the tribunal. This position was provided for by section 156(1)(a) of the Constitution which provided that: “A municipality has executive authority in respect of, and has the right to administer…municipal planning”. The national government could regulate this right but could not impede the right. There was no problem with voluntary assignment of the municipality’s powers to a statutory body like municipal planning tribunal. This was the municipality’s prerogative to exercise. However, this right of the municipality ought to be exercised voluntarily and not by compulsion which was what the Bill sought to do.
Mr Martin de Lange presented the practical considerations of the Bill and used the tribunals in KwaZulu-Natal (KZN) as an analogy. He stated that there had were a number of tribunals similar to the municipal planning tribunal which had been managed in KZN since 1952. It was therefore the opinion of COGTA to share information regarding the day to day running and set up of these tribunals. An important observation that had been made over the years from the running of these tribunals was that the tribunals always depended on the advice of professional officials which often put a burden on the tribunal itself.
Mr de Lange then focused on the DFA Development Tribunal which had been established in 1998 as a point of reference. One issue to take cognisance of was that the tribunal never operated by itself and always needed support staff. At the moment the DFA tribunal in KZN was supported by 1 Registrar, 3 Deputy Registrars, 3 administrative officials and 1 Designated Officer per Municipality. There was also a need to have a quorum which was made up of the Chairman with four members in respect of the hearing of an application. It was pertinent to note that it was not an easy task to always get a quorum comprised of the same number of people to hear an application. There were hearings which took more than one day and which required the same members to make up the quorum which was not a simple task.
Concerning the reality of the situation in respect of the DFA tribunal, in 2009, there had been roughly 1 000 land development applications, 45 DFA applications, 60 hearings and inspections and continued hearings (more than 1 hearing a week). The cost implications was the sum of R1.2 million (average of R20 000 a hearing). This cost only related to 5% of the applications, and excluded costs to the Department in terms of officials. In view of these realities, it was therefore imperative to look at these practical issues in relation to the municipal planning tribunal proposed in the Bill.
Mr de Lange commented on the expertise needed to support tribunals. There were 261 municipalities in South Africa and at least 20 Tribunal members would be needed per municipality (5 200 members nationally). He wondered if there was sufficient expertise available nationally. He referred to Gauteng where there were 14 000 applications annually and similarly wondered if all 14 000 applications could go through a tribunal route.
Mr de Lange stated that tribunals would work if there were highly capacitated municipalities including high level delegated decision-making and also where there were municipalities that experienced very low levels of development. However, tribunals would not work where there was low capacity and high levels of development.
He stated that the situation could be solved by establishing joint tribunals and this would only work where there was spare capacity and not insufficient capacity. Furthermore, as earlier stated, municipal planning tribunals must be a voluntary option and not be by compulsion.
Mr Ross proceeded with the second critical issue which was that the right of appeal granted in the Bill was very narrow, in fact it was much narrower than the previous position. He referred to the provisions on appeals in the Bill which stated that there was no right of appeal unless the appellant could prove a right had been adversely affected. He observed that not many persons, other than an applicant appellant, would be able to prove such a right. In view of this, the public would not be able to object to any part of the Bill because of the narrow right of appeal. These circumstances would therefore make it easy for the planning authority to easily ignore Integrated Development Plans (IDPs); national and provincial norms and standards; engineering reports; traffic impact assessments, need for community facilities etc without any fear of been challenged on appeal. It was COGTA’s opinion that a person should be able to appeal on any planning ground, if he or she objected, and this was the position in KZN for the past 51years.
Mr Ross further referred to section 33(3)(a) of the Constitution which provided that ‘national legislation must provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal’. However the Bill did not comply with the provisions of the Constitution and had actually provided that appeals under the Bill were to be made to the Executive Mayor or Executive Committee and this meant that it was an internal appeal. KZN COGTA was concerned if the municipal planning tribunal could be an independent and impartial tribunal as required by the Constitution. This was because an applicant might have consulted the ward councillor; objectors might have consulted the ward councillor; officials might have consulted the council before determination, especially if funding and services were involved. The council might have to rely on officials who made the original decision for technical advice.
The Chairperson interjected and directed Mr Ross to round up his submission due to time constraints. Mr de Lange wondered if the Executive Mayor was best geared to deal with exchange of documents, site inspections, leading of evidence, expert evidence, cross-examination, points of law, multi day hearings, as well as the volume of appeals.
Royal Bafokeng Nation (RBN) submission
Adv M van der Want, the legal adviser to the RBN, stated that the RBN owned and administrated about 1 200 square kilometres of land in the North West in the vicinity of Rustenburg (Phokeng). RBN’s interest in the Bill was based on the effective implementation of the RBN Vision 2035 and Masterplan programmes; plus the RBN’s experiences with detrimental, poorly managed and improperly overseen use of RBN land and its desire to ensure that its land was used sustainably and for the benefit of the community.
Adv van der Want commented on the abuse done to RBN land. Damage had been caused to RBN land on which prospecting rights were granted without consulting RBN. This land was not zoned for mining and was originally mostly for agriculture. There had been a severe hazard to community safety, and land owners’ rights were bypassed while zoning requirements were not considered.
The RBN Vision 2035’s main objectives were to create sustainable growth and prosperity for the community. Under the Masterplan, certain objectives and projects had been set out, such as schools, social services, recreational facilities and adequate housing, provision was made in the Masterplan for inter alia mining and related activities. It was not the purpose of the Masterplan to sterilise RBN land for purposes of mining, but rather to ensure that all activities conducted (including mining and prospecting activities) were undertaken in a lawful and sustainable manner.
It was important to the RBN that the Bill as a national legislation should not upset the existing zoning framework in Rustenburg. If the Bill did upset this zoning framework, then it meant that the Bill would not pass constitutional muster for the reasons which the earlier speakers had highlighted. This was because the Constitution specifically envisaged a municipality having the power and the obligation to administer land use management plans. The Constitution also disallowed national and provincial governments from doing anything which undermined or hindered those obligations. The Courts had interpreted ‘municipal planning’, which was what a municipality had to do in this context, to mean ‘control and regulation of the use of land in the relevant jurisdiction’. What was crucial to the RBN was that the Bill should not limit Rustenberg or any other municipality to perform such function. The Bill as currently drafted was fine in this regard. However, it was apparent that the Chamber of Mines might want to make a submission to the Committee which might result in a municipality not been able to exercise its constitutional obligations properly.
The recent Constitutional Court’s decision in the Maccsand case had clearly settled the law that the mining companies must comply with the law including the Mineral and Petroleum Resources Act (MPRDA) and all other applicable law including the land use management law. It was the opinion of the RBN that the Chamber of Mines would want to ask Parliament to overrule the decision of the Constitutional Court by asking for a blanket exemption from all zoning laws throughout South Africa to mining companies doing mining or prospecting utilities. It was important to the RBN that the Bill did not result in a situation where activities (including mining activities) could be conducted on RBN land in circumstances where the land was not zoned appropriately. A blanket exclusion of all mining and related activities in the Bill would, in RBN’s view, be unconstitutional and prejudicial to the RBN’s rights as landowner.
In reference to clause 23(2) of the Bill which related to ‘participation’ of a traditional council in land use scheme adoption/amendment, the RBN wondered what level of participation was envisaged. As a traditional community, the RBN would not be satisfied with merely assisting in determining how community-owned land is zoned. The RBN believed it should have a right to determine how its land was zoned. It was crucial for RBN to have control over how its land was used and this was because communal and tribal land required special considerations over and above mere participation.
The RBN would propose an amendment to clause 51 of the Bill by removing the phrase: “…but no variation or revocation of a decision may detract from any rights that may have accrued as a result of the decision…”.
By its nature, rights would have accrued in any event. This was a toothless provision. A dispute resolution mechanism with teeth was required. What would happen in the case of a dispute between land owner and land “user” regarding re-zoning applications? What powers did the municipal planning tribunal, envisaged by the Bill, have to deal with such a dispute? There also had to be provisions for more participation/control by traditional communities. RBN believed that as a traditional community landowner, it should have ultimate control over how its land was used (see section 104 in the MPRDA).
The MPRDA and town planning legislation ought to work contemporaneously. A blanket exclusion of mining activities from the ambit of land use management in general was unacceptable, and the RBN contended it was unlawful. The Constitutional Court had pronounced clearly on this issue. One could not exempt particular activities from the ambit of the Bill. Simply exempting mining would be catastrophic – what body would regulate the land?
Submission by Islanda Institute, Planact, Socio Economic Rights of South Africa, AFESIS and others
Mr Tristan Gorgens stated that he was representing a number of NGOs which included the Islanda Institute, Planact, Socio Economic Rights of South Africa and AFESIS-corplan. He said they had reservations about the lack of public participation and transparency on the part of the responsible department during the formulation of the Bill. The substantive problems which the NGOs had with the Bill was the lack of clarity about the respective powers and functions of the different spheres of the state; the inability to promote an integrated approach to urban informality, spatial inequality or environmental sustainability; the capacity constraints within the planning profession that implementing the provisions of the Act would necessitate and the appropriateness of present land use management tools within the context of communal areas. All these issues had bedevilled spatial planning in South Africa up to the present time and prevented municipal government from acting progressively to address spatial imbalances and to increase access of the rural poor to land in a systematic way rather than in a haphazard way.
Mr Gorgens stated that there was a necessity of acknowledging the incomplete nature of the Bill and partial nature of the understanding of the deficits, opportunities and impact of the planning system in South Africa. There was also a need for structured ongoing learning and regular review of planning law.
One needed to pay attention to the social function of land as a criterion to guide decision-making. This concept had resonance in South Africa but was largely unrecognised in the country’s legal dispensation. However this concept had a prominent history in Latin America and was now recognised as a legal concept in European courts as well. The attempt of the social function of land was to recognise that individual property rights had to be subjected to a common good restraint or consideration. He referred to the Colombian Supreme Constitutional Court whereby the court had stated that it “signifies a great advance in western thought related to two antagonistic positions that find their conciliation in the social function: individualism and collectivism. The former negates, or at least minimizes, the social and public character of the right to property; at the same time, the latter rejects or diminishes the private and individual character that the right to property may have. The doctrine of the social function of property established that the right to property was simultaneously individual and social”.
The social function doctrine reasoned that the state’s authority stemmed from its ability to provide for certain social needs and so its protection of private property was only justified insofar as this protection contributed to a wider social function. For instance the Constitution of Brazil allowed the Government to compel the owners of urban land that had no structures on it, was underutilized or not utilized at all, to adopt measures to adequately utilize it, authorizing three forms of sanctions: (i) compulsory subdivision or edification; (ii) progressively increasing property tax over time; and (iii) expropriation of the property.
Mr Gorgens provided two instances in which the social function of land could be useful for the Bill. An instance was reworking the “non-impediment of function” (Clause 57) to include a positive injunction – land use decisions should promote the social value and function of land. Another instance was revision of the clause on “Land for parks, open space and other uses” (Clause 50) to allow the municipality to designate another use of the provided land (based on public input) that would maximise its social function. The social function was most often employed to underpin tools, such as ‘value capture’ (which were also not found in the Bill), that promoted spatial justice, served to curtail speculative activity and the underdevelopment of public and private land, and democratised urban space.
Mr Trollip observed that KZN COGTA has asked a lot of questions in its submission about the appropriateness and competence of the Executive Mayor in hearing appeals and had raised concerns about the independence of such appeals. They had also raised concerns around the establishment of tribunals and the cost thereof. However, what COGTA did not do was to state their proposal to address the lack of capacity to plan in the absence of the executive of a municipality considering appeals or in the absence of tribunals to consider appeals. He therefore asked for COGTA’s solution to the situation where the local authority did not have the capacity and there was no tribunal because of lack of skills especially in rural municipalities which did not have such planning capacity.
Ms Ngwenya-Mabila referred to the fact that KZN COGTA had raised some concerns about the quorum which the tribunal might fail to meet. She stated that Clause 36 of the Bill provided that members of the tribunal should be five or more. She asked if COGTA was of the opinion that the tribunal would not be able to meet the quorum of five as provided in the Bill.
Mr Sunday Ogunronbi, Chief Director: Department of Rural Development and Land Reform (DRDLR), asked KZN COGTA whether it was correct that an Act of Parliament could not assign powers. Mr Ogunronbi commented that it appeared people were unwittingly arriving at false conclusions from problematic premises. He referred to the figures presented by COGTA concerning the possible costs of administering the municipal planning tribunals. The first fallacy with the figures presented was that the Bill expressly provided for the possibility of joint tribunals. Secondly, the Bill did not stipulate that those who sat in one municipal planning tribunal could not sit in another municipal tribunal.
Mr Ogunrobi made reference to clause 35 of the Bill which expressly provided for a municipality not to necessarily consider all its applications via a municipal planning tribunal. Clause 35(2) and (3) specifically invited municipalities also to delegate their powers to officials. So the assertion that about 14 000 applications would have to go via the municipality amounted to stretching the Bill to include what was not in it.
Mr Ogunrobi further referred to the assertion by KZN COGTA that section 33(3)(a) of the Constitution provided that there was no possibility for an internal appeal. He asked if COGTA indeed believed this to be the true position. He stated that the fact that an appeal could be taken from one level to another level within a structure did not mean that the courts were excluded from hearing that appeal. Section 33(3)(a) of the Constitution did not provide that an independent person was needed to hear an appeal contrary to COGTA’s position.
Mr Ogunronbi also sought clarity on what COGTA meant by the use of the term “independent appeal tribunal’ in the context in which it was used.
Ms N Makglinde, Deputy Director General of DRDLR, directed her question to the NGOs. She asked what the NGOs understood the terms ‘public participation’ and ‘transparency’ to mean in respect of the Bill. She stated that quite a number of consultations had been conducted in provinces and everyone had been invited. The Bill was similarly published in the gazette and everyone who had an interest in the legislation had also been invited to make their comments and submissions.
Mr Roos responded to the question concerning what solution KZN COGTA had to the situation where the local authority did not have the capacity and there was no tribunal because of lack of skills. What COGTA did in KZN was to use a registered planner who was accredited by the Council of Planners to assess the applications. The registered planner would ask for any missing information from the applicant and a report would be finalised which subsequently went to the municipal council. Most municipalities in KZN had delegated the receipt of the report to their executive committee which would assess the report and make recommendations. This system cost a lot less than using a tribunal and it was quicker. The system had also worked very well.
Mr Roos further replied to the question concerning whether the municipality could not assign it powers. He replied that the municipality could indeed assign its powers, but that COGTA’s position was that such municipality should not be compelled to assign those powers under the Bill.
In response to the issue of internal appeals, he stated that the internal appeal should be judged by examining if such internal appeal would be impartial.
Mr de Lange replied to the question concerning quorums. He stated that what KZN COGTA was trying to establish was that when it came to cases of adjourned hearings, it was difficult to get the same members at a meeting a couple of weeks later. This was not a simple task to do and issues would be delayed.