There was pressure for the Committee to process this Bill as fast as possible as the Department had failed to meet the June 18 2012 deadline to correct defects in the Development Facilitation Act of 1995. In 2010, key sections of the Act had been declared unconstitutional by the Constitutional Court and the government was given two years to bring legislation to Parliament and correct the sections found to be invalid. The Minister requested that the processing of the Bill be accelerated with due haste.
Land use and spatial planning had been identified by the National Planning Commission as crucial to the future of the country. Critically, the Act had to regulate land use management and planning to promote development, particularly in rural areas. The Court found that at least two chapters of the Act were invalid because they assigned exclusive municipal powers to the provincial governments. The Spatial Planning and Land Use Management Bill would replace the Development Facilitation Act in its entirety and the Department of Rural Development and Land Reform gave a briefing on it to the Committee.
The majority of Members expressed dissatisfaction with the overlap in departmental authority and the high levels of confusion between different levels of government and asked that this be more clearly refined. It was stressed that traditional leaders must be brought along and consulted on these issues, the Ingonyama Trust in KZN was mentioned in particular, if government was to be successful in implementing the Bill. The matter of capacity building was also raised, with the capacity of the national department being questioned. It was decided by the Committee that public hearings would be held both in Parliament and in selected municipal metros to encourage further submissions on the Bill.
Spatial Planning and Land Use Management Bill: briefing
The Minister of Rural Development and Land Reform, Gugile Nkwinti, stressed the emphasis placed by Cabinet that the Bill should be introduced first in the NCOP and then submitted to the National Assembly. However, there had been a delay in its introduction after a lengthy discussion within Cabinet. The Bill was noted as being very old due to the delay in processing its drafting. The challenge presented by the Bill was that since the Development Facilitation Act had been declared unconstitutional in 2010, the Constitutional Court had given until the 18 June 2012 to come up with new legislation and thus South Africa was without planning legislation. The Bill broadly influenced business, municipalities, and civil society - government and the private sector alike. The processing of the Bill however had been very tedious and the deadline was not met. The Minister requested that the processing of the Bill be accelerated with due haste.
Mr Sunday Ogunrobi, Executive Manager: Spatial Planning & Information, Department of Rural Development and Land Reform (DRDLR), presented the briefing starting with background to the Bill. It was noted that various laws, institutions and parallel processes were evident in pre-1994 legislation. This led to a fragmented system of boundaries and disjointed planning which manifested itself in unequal, incoherent and inefficient settlement patterns. The 1995 Development Facilitation Act was promulgated as an interim measure to deal with this legacy but was later found to be unconstitutional. In 2012 many of the former laws governing Bantustans were still on the books. A single comprehensive piece of legislation to attend to this task had been called for and thus the current Bill had been drafted. The absence of a single national legislation had led to a lack of shared vision and clarity over which department is responsible for land use and spatial planning. Subtle turf wars between the national government and the provinces had arisen over this issue.
Many urban areas had attempted to progress by criminalising poverty and not adequately dealing with issues of land use and integration of the urban poor. Cities continued to be designed for the well-educated and the wealthy which was a throwback to the days of apartheid. The poor had to travel to and from the city as they could not afford to stay in the major urban centres. Therefore even the large cities were not well managed in terms of land usage. Questions have also been addressed on traditional leadership as well as the ‘weak’ linkages with formal municipal governance.
In June 2010 the Constitutional Court found Chapters 5 and 6 of the Development Facilitation Act unconstitutional. It provided a two year suspension of the declaration of invalidity, until June 2012, to remedy this situation. Thus the Development Facilitation Act would be replaced in its entirety by the Spatial Planning and Land Use Management Act (currently still a Bill).
Objectives of the Bill were the provision of a uniform, effective and comprehensive system of spatial planning. The promotion of social and economic inclusion as well as the sustainable and efficient use of land was fundamental to this issue. This would allow for the cooperative functioning of government amongst the national and provincial levels and would redress past imbalances by ensuring equity in land distribution and usage.
The new legislation, which was highly dependent on the coordination efforts of the national government, was needed to implement a coherent regulatory framework, constitutional synergy, a predictable and transparent regulatory environment, and clear and efficient linkages between sectoral spatial planning tools. The reality of this situation was that there remained complex relationships between land use policies. Contradictions continued to exist even among high-level policy outcomes.
Land use resources were used for a variety of purposes which may, in fact, compete with one another and therefore it was desirable to implement an integrated plan which examined all uses of land to minimise conflict. This would enhance linkages between social and economic development which included environmental protection and a move toward the objective of sustainable development.
Norms and standards must be enforced to ensure the provision of standardised infrastructure across communities such as the inclusion of parks and educational facilities. The Minister may at the request of another minister impose new norms and standards on land use management in certain instances for example in agricultural areas where water use was an important consideration.
The role of the national government was given as the provision of support to the provinces and municipalities in the execution of their duties in terms of the Bill, this included the monitoring of local capacity and compliance with the legislation. This meant the compilation, approval and review of spatial development plans and policies or similar instruments, including a national spatial development framework. Planning for the efficient and sustainable execution of legislative and executive functions and the making and review of policies and laws necessary to implement national planning by repealing provincial ordinances, was key. The Bill was built on the assumption that local municipalities were central to land use and it was the mandate of the Department to ensure this was pursued. Every municipality would continue to do development zoning and town use planning schemes needed to continue to be developed. The Department had proposed through this legislation that within five years of promulgation all municipalities would have land use strategies. A spatial development framework (SDF) would guide overall spatial distribution of desirable land uses and give effect to the development vision, goals and objectives of local municipalities. These frameworks would be reviewable over five year periods and must involve public participation. How the land was used could not be divorced from the people who resided on the land itself.
The primary instrument within a municipality for land use management was the Land Use Scheme (LUS) which must be prepared and adopted within five years of the enactment of the Bill. The LUS must be consistent with the Municipal SDF as it had the force of law and bound all owners and users of land. This meant all land development applications must be determined within the context of the LUS.
Municipalities would be required to establish Municipal Planning Tribunals (MPT) to discharge planning functions. These tribunals would consist of municipal officials and qualified external persons appointed by the Municipal Council. In a province like the Free State, for instance, there was a general lack or weakness of capacity by the province and municipalities to implement which begged the assistance of the national government in the initial capacity building stage. The Department urged that several municipalities come together on joint land use schemes and the establishment of joint MPTs. This would allow for the opportunity to learn from best practice as they would exist within a national framework mandate.
The issue of national interest was addressed and these were given as exclusive functional areas of competence as dealt with in the Constitution, strategic policy objectives including food security, international relations, defence and economic policies.
Areas of concern included but were not limited to the definition of municipal planning in the wider context of the responsibilities of each level of government. This was followed by questions revolving around provincial interest in land use planning and what practical instruments could be designed to manage overlapping planning roles without harming municipal capacity to comply with legislative requirements. The contradiction between the role of councillors and planning tribunals was also raised as were the involvement of traditional leaders in rural areas and the constitutional feasibility of their engagement on these issues.
The draft of the Bill was approved by the Cabinet for public consultation in April 2011 and closed in June of the same year. During this period the Department held workshops in all provinces for public and private sector stakeholders. In total 110 comments were received from all sectors and a regulatory impact assessment of the Bill was also included in 2011. Cabinet approved the final draft of the Bill in March 2012 and it was introduced to Parliament.
The Minister noted the contested areas of cross departmental responsibilities as a serious issue that should be resolved.
Mr Mandela (ANC) (in Xhosa) Asked about the role of chiefs in rural areas and the role of the Department from a division of power and capacity building context.
Chairperson Sizani noted that inter-governmental relations were a problem that must be dealt with.
Ms Ngwenya-Mabila (ANC) asked if there was Departmental capacity to build local capacity and monitor whether or not there was effective public participation in the drafting of SDFs. She noted the composition of the MPT and asked for greater clarity on how traditional leaders might be included. Were there sufficient resources to implement the new legislation across all regions?
Mr Trollip (DA) was concerned over the coordination between levels of government as evidenced by the full decade it had taken to bring the Bill to its current stage. He noted a fundamental disconnect between government and traditionally administered land. Submissions from the public on the Bill were also a source for concern as there had been no proper debate and the public was confused over the submission process. In Western Cape 4000 applications for land use were dealt with annually which presented an obvious challenge and led to severe backlogging. He noted that the national Minister may decide what a ‘region’ was unilaterally with no consultation with the provinces or municipalities and a problem was in evidence over the definition of departmental responsibility and devolution of powers. The capacity of the national department raised questions over its ability to enable lower levels of government. The five year review period should be extended to 10 years as it should transcend political ownership. An enormous backlog in planning development and stimulating job creation was also noted. Concern was raised over national development planning as well as the unilateral powers provided to the Minister under the Bill.
Mr Trollip said zoning planning schemes and their monitoring should happen pre-approval and not afterwards to avoid further delays. Enormous conflicts existed between the Bill and the Municipal Systems and Structures Act. He also remarked on the issue of tribunal decisions and noted that 25-50 tribunal members were difficult to appoint, the costs were not affordable and there was no legal protection for the tribunal. If they did not comply with decisions from above, they could be fired. There was also no external auditing committee. This provided a large scope for external influence and there were no national or provincial tribunals creating a lack of centralised oversight. There was a dire need for clarity between provincial and municipal authorities and the criteria for national decision making was confusing and resulted in the erosion of powers, as power was held in hands of the provincial premier and not the MEC.
Mr Cebekhulu (IFP) said that land use had always been a challenge for rural leaders and matters were only resolved through consensus building. There was a general disregard by people of zoning laws and planning schemes and he wondered how this would be resolved, noting the example of people randomly building houses next to roads in rural areas.
Mr Zulu (ANC) noted the vast variety of boundaries across all levels of government. This led to issues of implementation of infrastructure as there was simply no room to build new roads, water pipes, and sewage lines.
Mr Van der Linde (DA) raised the issue of a youth centre built in the Karoo, Northern Cape without local government consultation.
Chairperson Sizani noted the controversies evident across the implementation of this Bill and that the DDG did not suggest what the Department was doing to confront these problems. Unintended lacunas could be created by not resolving problematic issues with haste. The overlapping roles across government departments were noted, mentioning Mr Trollip’s appeals question, and he wondered how one dealt with provincial or regional diversion from norms and standards. He gave the example of the residents of Oyster Bay that do not want their land used for a proposed nuclear power station. He said that if they then write an LSU without this power station in mind how was this resolved constitutionally, since the good of the entire nation must come before a single community.
The DDG noted that the disproportionate allocation of professionals meant they were centred mainly in urban areas. He emphasised the nature of the capacity challenge as a result and said the Department had advertised for 41 new planners which represented a four-fold increase in terms of the planning unit staffing allocation. Most qualified professionals for example in Western Cape were located in Cape Town, how could this be resolved? Potentially professionals could be based in cities and sent to regions periodically. The Department was looking at very innovative tools in that respect whereby in Free State and Northern Cape they invested in a Special Planning and Commission System, a central reservoir like programme which aided in the land use monitoring process and the impact of new projects.
At present however the Department continued to perpetuate the system of land use under apartheid within the current legislation. In the past three years the Department directly funded roughly 18 regional SDFs. Guidelines issued for SDFs had vastly improved the quality of SDFs via public involvement and on the ground consultation. This had slowed processing time from three months to 10 months due to enhanced analysis. The DDG noted there had been a series of meetings with the Western Cape provincial government and invited stakeholders and these had progressed past departmental presentations and had included debate and consultation. He was confident in the text of the Bill and hoped that it would be passed with a large majority of the vote.
Mr Ogunronbi, the DDG, said that it might appear as though the Department had unformulated views on taking submissions and moving forward on issues such as defining the power of levels of government. This was why they had given power to premiers and not MEC. The delegation of power over land use and management in each province was not uniform and thus it was entrusted and centralised in the premier in the current Bill.
On provincial ordinances and the rationalisation of laws, he said National Parliament faced a challenge in this regard as they could not repeal provincial ordinances and thus it was necessary for the Department to entrust this role to the provinces to usher in law reform and clean up homelands legislation still on the books.
The Chairperson asked if the Department could intervene in the event where a province refused to amend or depose a provincial law in favour of a national one.
The DDG noted Section 44(2) of the Bill and section 146 of the Constitution which provided a couple of approaches to resolve similar issues and said that if there was a conflict, section 76 of the Bill deems that a national law shall take precedence.
Mr Mduduzi Shabane, DRDLR Director General, observed that the length of time to process the Bill had limited the ability of the department to build capacity on these issues. The Department had however been funding close to 80% of students studying geologics and planning in South Africa in an effort to build and increase capacity. Unless the Department invested time and effort in making sure there was collaboration between the government and the provinces there would be severe challenges in implementation.
Minister Nkwinti quoted one of his colleagues saying that the problems we were experiencing in urban areas were a symptom of what was not being done in rural areas. He went on by stating that the current Bill was seen as imperfect but more as a first step in the right direction within the legislative context.
In rural areas like KZN where 48% of land was owned by the Ingonyama Trust there was much thinking to be done in terms of land use regarding traditional institutions. He mentioned regional configurations noting an amendment presented by Mintek. He gave the example of the Sugar Association in KZN who had asked the Department to solve problems there in a non-conventional way, in terms of restitution and political challenges, because they wanted to flatten boundaries between districts and provinces. He urged a need to think differently from an economic perspective to the benefit of all South Africans. He said the absence of capacity in municipalities should not be confused with unwillingness but rather with failed historical patterns and a need to think in new ways.
He raised the question of conflict between national laws and provincial ordinances. Fragmentation had entrenched itself in the culture of land use management. There was a need for overriding national legislation as the Department was coming up with a new generation of policy on land and this was being discussed very intensely behind the scenes. Questions on legislation could not be answered in the absence of certain policy regimes. Dramatic changes to the land management landscape were happening as a result of the establishment of the Land Management Commission which had been trying to deal with fragmentation and reflected already that legislation would be followed by policy.
He gave the example of Kenya where he had recently visited saying that people there were doing what they want after being given the space to build. Planning must reflect the people’s wishes and there was no need to develop uneconomical developments away from infrastructure and roads. He questioned whether South Africa had fallen behind in this regard and perhaps countries like Kenya had gotten it right.
A proposal to tax land that is not used including communal areas was raised but enforcing compliance was a difficulty. Taxation was but one possible method of land management and the management system that was being proposed for communal land was one that brings together traditional and modern authorities which were democratically elected. The Minister proposed that where there were communal and rural areas, traditional institutions should be their custodian as they had the institutional memory and could form part of the social solution because going to court did not always resolve land use problems in a meaningful way.
The process from here should be to build a culture of working together in developing pragmatic approaches across levels of government on land use, management and reform of existing legislation.
Mr Trollip (DA) recognised that there was progress begin made but noted another piece of legislation that had taken roughly 10 years which was the Protection of State Information Bill. He stressed that the Committee had never had an interaction over the Spatial Planning and Land Use Management Bill with the Department- a notable failing. The Committee not be left behind on these matters in the future. He said change had been observed in dealings with the Ingonyama Trust in KZN and he was encouraged by the facilitation of submissions on the Bill. He made an appeal for further development of the legislation in consultation with all the relevant stakeholders so it could be enriched in every possible aspect rather than taking it back and forth in different areas.
The Chairperson argued that the definition of what was in the national interest should be tidied up as it was too general. He again gave the example of the residents of Oyster Bay who could fight against the proposed nuclear power station but if it were declared in the national interest, there would be little they could do to stop it from being built. He urged that the Department work with the community so that they might understand and subscribe to the national interest rather than be in opposition to it and yet as it stands they were not part of the discussion. Therefore if land was going to be used for a purpose that fell within the scope of the national interest then it must impact positively on the people themselves.
The Chairperson asked the Members to decide the process moving forward. The normal process was to hold public hearings not confined to Cape Town but inclusive of the provinces and the municipalities. If less than that was attempted, the Committee may be regarded as not having effectively applied itself to include the people.
Mr Trollip suggested that contact with metros – on devolving capacity to local governments – be made and recommended holding public hearings in Parliament with invitations issued to relevant stakeholders such as the South African Geomatics Institute. As it would be difficult for local authorities to come to Parliament, holding local meetings at identified metros could be one possible way to interact and include all actors in the dialogue.
The Chairperson was in agreement, saying there was a need to sample traditional authorities, NGOs and other civil society groups but this would have an impact on timeframes.
Mr Mandela noted that it was instrumental that the House of Provincial Leaders be invited in order to get their feedback as well.
The Chairperson asked that a draft programme for meetings be created within two weeks and disseminated to the Members.
The meeting was adjourned.
[The advert requesting comment and date of public hearings will appear in the Sunday Times, City Press, Beeld amongst other newspapers]
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