Spatial Planning and Land Use Management Bill [B14-2012]: public hearings day 2

Meeting report

City of Johannesburg submission
Mr Alwyn Nortje, Legal Advisor: Office of the Executive Mayor, City of Johannesburg (City of JHB), acknowledged that the present draft of the Spatial Planning and Land Use Management Bill (SPLUMB) was a distinct improvement on previous drafts. However, certain areas of concern remained which would be summarised in the time allocated to the City of JHB to make its presentation.

He stated that apparently 112 sets of comments had been received by the Department of Rural Development and Land Reform (DRDLF) on the first draft of the Bill and as a result, a workshop had been held with the DRDLF where everybody had been given an opportunity to address the Department, focusing on the main issues raised in the respective comments. However, at the workshop it had become clear that there were many universal concerns which had been raised mainly by the metropolitan municipalities. These were the interrelationship between the different spheres of government, as the Bill proposed that there be a Spatial Development Framework on National, Regional, Provincial and Local level; that an application that affected a National or Provincial interest or fell within a National or Provincial functional area as per Schedules 4 and 5 of the Constitution be forwarded to the relevant Minister for approval; the composition of the proposed Municipal Planning Tribunals; the proposed appeal authority and who had the right to appeal; and the proposed transitional arrangements. Unfortunately at subsequent discussions and meetings, it had become clear that many of these universal issues of concern still remained and had not been addressed in subsequent drafts of the Bill.  The City of JHB was therefore constrained to raise them again at the meeting as areas of main concern that the City felt ought to be addressed before the Bill was enacted into law.

The first area of concern was in respect of levels of planning. The compilation of (Service Delivery Frameworks) SDFs on all levels of government had still not been adequately clarified, bearing in mind that the Bill proposed that there be SDFs on a national, provincial, regional and local level. The concern revolved around how the conflicts between all of these SDFs would be resolved, bearing in mind the proposed content and legal effect of the respective SDFs in the Bill itself.

The second area of concern was in respect of the compilation of tribunals. The Bill had made it a requirement that members of the private sector who had knowledge of town planning, town planning law, etc, would compose the Municipal Planning Tribunals and were to be appointed to be permanent members of such Tribunals. It was not necessary for the Bill to be so prescriptive on how such committees would be constituted. It ought to be left to the municipality itself to constitute its own committees in accordance with their own needs and circumstances and budget. What worked for the City of JHB would not, for example, necessarily work for the City of Cape Town. Outside representation on the Tribunal ought to be made discretionary and not mandatory.

The third area of concern was reasonable time frames for decisions. It was commendable that the Bill accepted that a municipality must be the decision-maker of first instance.  However, the prescribed time frames within which to make these decisions ought to be reasonable and practical to allow local authorities to apply their minds properly and to negotiate, inter alia, engineering solutions and not create an opportunity for developers to escalate matters to provincial and/or national level.

The fourth area of concern was in respect of the definition of national and provincial interest, monitoring, assistance and support. The issue was that those applications which would constitute what was of national interest and/or provincial interest had not been adequately clarified. More detailed guidelines were needed to be provided so that a DFA situation would not occur again. The Bill had also made provision for support, assistance and monitoring from national and provincial levels downwards, without clarity on when and how this would be achieved without impeding on a municipality’s executive authority to do municipal planning.

The fifth area of concern was in respect of internal appeal authority and delegations. The Bill (under section 51) proposed that the internal appeal authority would be the municipality’s executive authority.  For the City of JHB, that would be the Executive Mayor, assisted by the Mayoral Committee. Bearing in mind the number of development applications being considered annually by a municipality such as the City of JHB, it would be highly impractical to overburden a Mayoral Committee agenda with development appeals. Furthermore, section 56 made provision for delegations but it prescribed that certain powers may be delegated. In other words, a municipality could, for example, delegate power to an official in the employ of the State. This provision required some clarity.

The sixth area of concern was in respect of transitional arrangements. Section 60(2) and (3) proposed that a Tribunal established under the Development Facilitation Act (DFA) could continue to operate and finalise applications as if those provisions had not been repealed. Legal opinion suggested that this was not correct in law because of the fact that the Constitutional Court had declared those provisions unconstitutional and such order of invalidity had become operational on 18 June 2012. The Bill should rather propose that those applications be finalised under the Bill itself or under Provincial legislation. The practical implementation of the Bill would also not be clear until a set of Regulations had been produced which would give content to the Bill itself.

The seventh area of concern was in respect of provincial legislation. The Bill prescribed in Schedule 1 those matters which needed to be addressed in provincial legislation. This warranted careful assessment, bearing in mind the provision of section 146 of the Constitution which stated that framework legislation that was adopted in terms of section 146, which this Bill without a doubt represented, would always prevail over Provincial legislation when there was a conflict. For example, the township establishment process and the accompanying provision of engineering services and engineering contributions had not been adequately addressed in the Bill. This needed to be adequately addressed in the framework legislation for it to be adequately addressed in Provincial legislation.

City of Tshwane submission
Ms Nicolene Le Roux, Legal Adviser: Development Law, stated that the City of TSH was the biggest local authority in the southern hemisphere and the impact of the City of TSH on the national economy was vast. The City of TSH also had many international investments.

The City of TSH acknowledged the need for national legislation on land use management and regarded the Bill as the framework legislation within which the provincial legislation would be dealt with, as well as the day to day operations within local government. The Bill did not operate in a vacuum, and this was because the way municipal planning ought to be done had been stated constitutionally and these were the principles the City of TSH would like the Bill to adhere to. The Bill could be tested against the Constitutional Court judgment mentioned earlier by the City of JHB. This judgment had two options -- either new legislation could be drafted or the DFA could be amended. It had been decided that new draft legislation was to be drafted and therefore the Bill could be tested against Constitutional principles.

These principles were that municipal planning was the exclusive competence of local governments and that policies within the local authority were to be adhered to. A particular part of the judgment stated that parallel systems of land use management would be a recipe for chaos. It was clear that interference by provinces in the day to day operations of local governments relating to planning, budgetary and infrastructural services could not be tolerated. The invalidity of chapter 5 of the DFA, as held in the judgement, could not be resuscitated through the Bill. The focus on the constitutional judgement centred on the principles of the power of decision making.

One of the key issues in respect of the Bill was in relation to the consultation process leading up to the Bill.  The City of TSH was concerned with the lack of feed back with regard to the comments it had made to the DRDLF in respect of the Bill. These comments had been given in relation to the previous versions of the Bill and no rationale had been given to justify what was included and excluded from the present version of the Bill. These circumstances were a basis for concern for the City of TSH.

Another issue in respect of the Bill was the transitional arrangement. The Bill, in terms of section 60, was attempting to resuscitate chapters five and six of the DFA by providing that the application should be concluded in terms of the DFA, although those chapters did not legally exist any longer. Proposals had been made to the DRDLF with regard to dealing with the transitional arrangements. For instance, it had been proposed that if the DFA was supposed to continue, the reference to the Autagne development tribunal could be referenced to a local government institution in as far as the City of TSH was concerned.   However, it appeared that this had not been accepted within the Bill.

Another basis for concern was in respect of schedule one of the Bill, which stipulated what the provincial legislation would encompass. There were provisions in the schedule that were so wide that they actually allowed for interference with municipal planning. It was opined that the framework legislation should not only insert the required clause but should also limit powers so that the Bill did not interfere with the local government tier.

An issue which raised concern was that a lot of matters were been legislated upon by the Bill which were already covered by other legislation. For instance, the Municipal Systems and Structures Act already provided for institutional arrangements for local governments and the Act also gave the necessary flexibility. The Act provided that councils could be on the decision-making body. It also provided for external representation and delegation. There was therefore no need to reiterate these provisions in the Bill. The result would be the creation of unnecessary conflict between these laws and the Bill. There were other processes, such as the intergovernmental relations framework, that dealt with conflicts at the local government level. It was opined that the Bill was not adding or making it easier to resolve these conflicts at the intergovernmental level.

Another issue of concern was section 26(4) of the Bill, which provided that regardless of any provisions in any other law, the Bill could be used to deal with planning applications. However, the Supreme Court had established that two parallel processes could not exist, and therefore it would be advisable to rather provide that where provincial legislation was not in place, the Bill could be used in view of the fact that some provinces might not have provincial legislation in place.  However, it was not possible to have both provincial legislation and national legislation, as this would result into confusion for developers who would have the difficulty of deciding which legislation to use, even though the decision would still be taken by the local authority.


Ethekwini Municipality submission
Mr Lihle Phewa, Deputy Head of the Development Planning Unit of Ethekwini Municipality, referred to chapter three of the Bill, with particular emphasis on the issue of the capacitating process. It was acknowledged that while section 9 and section 10 of the Bill provided for national & provincial support respectively, the necessary support and capacity needed to be put in place prior to implementation of the Bill. 

Another issue which raised concern was chapter five, which dealt with the alignment of authorisations. There was the probability that a conflict could arise between the Bill and other legislation. For instance, there was the possibility of a potential conflict between the Bill and other legislation such as NEMA 107 of 1998. In the event of an appeal in a joint decision, there would be a dilemma as to who would be responsible for hearing the appeal.  Would it be the Minister/MEC responsible for environmental matters or someone else? There was also the possibility of potential conflict between the Bill and the National Building Regulations. In the event of an appeal, who would be responsible for hearing the review?  Would it be the SABS review board or another body?

Part C of chapter six, with specific reference to development charges, also presented another issue for concern.  While the extension of the possibility of raising development charges in respect of open space was welcomed, it was suggested that this should  be extended to passive open space, providing ecosystem goods and services, without which the municipality would have to make major investments.

Part D of chapter six, with specific reference to the appeal process, was also another cause for concern. Section 51 of the Bill which dealt with internal appeals provided for an appeal notwithstanding s62 of the Municipal Systems Act (MSA). It did not appear to exclude s62 appeals, although this was the stated intention as per discussions held with the DRDLR. There was no provision for an external or additional appeal to an independent body.

Chapter seven, which provided for Transitional Provisions, was also another issue for concern. While section 60 of the Bill attempted to address this to an extent, more was required. It was inevitable that certain applications would be caught between the current and the future planning legislation scenarios, which might include high court review processes. An adequate transitional period, with a minimum of two years, was required to ensure that time and effort expended on these processes were not wasted.

On a general level in respect of the alignment with the Municipal Systems Act, there was a need for close alignment between chapter 4 of the MSA, which dealt with Integrated Development Plans (IDPs) and SDFs and the Bill.  Ideally, all such requirements should reside in one place. In respect of the Amendment of the Fiscal Powers and Functions Act (No 12 of 2007) (FP&F Act), while the Bill could not be a monetary bill, it was necessary that the FP&F Act be amended to directly provide for the collection of development charges, without which this provision was likely to lead to court cases contesting its application by municipalities.
In respect of the acknowledgement of intermediate plans, there was a need for the Bill to formally acknowledge all downstream plans sitting below the SDF, but before the detailed land use management plans or Schemes (i.e Spatial Development Plans, Local Area Plans, Precinct Plans, etc). These were policy plans which formed closer interpretations of the SDF while still not assigning specific development rights.
In respect of regulations, it was opined that the lack of accompanying regulations was a shortcoming which needed to be addressed before the Bill was enacted.

South African Local Government Association (SALGA) submission
Mr Mayur Maganlal Executive Director: Economic Development and Planning, SALGA, stated that the presentation would be more of a summary of the earlier issues raised by the speakers of other municipalities. This was because the issues he intended to raise had already been raised earlier by the previous speakers. However, a couple of fresh issues would also be addressed.

He commended the DRDLR concerning the Bill and stated that the Bill was legislation which was trying to provide clarity regarding the standards that could be used when dealing with development applications. However, there were some key issues to be raised in respect of the Bill.

SALGA was of the view that despite the judgment of the Constitutional Court, the Bill still purported to give provinces powers which were supposed to be municipal powers. For instance, Schedule one of the Bill purported to give provinces powers to legislate on issues which should fall under the competence of municipal planning. The Bill did not give a comprehensive definition of the jurisdiction of municipal planning, in line with the Constitutional Court judgment on the DFA in 2010.

Concerning the issue of the legislation that was been used by the municipalities at the moment in respect of planning, it was SALGA’s view that only three pieces of legislation had been repealed in terms of the Bill. These were the Fiscal Planning Act, the DFA Act and the Restriction Act. SALGA sought to know how other provincial legislations, which were conflicting with municipal planning were going to be repealed.

In respect of the introduction of regional SDFs in the Bill, there was no clarity concerning how this novel concept was going to be institutionalised or governed. SALGA believed that the introduction of this particular concept, without any clarifying how it would be institutionalised, might result in the creation of another planning bureaucracy, leading to more delays in the assessment of development applications.

SALGA was also of the view that the current description of what should be in an SDF was too prescriptive and some of the under-capacitated rural municipalities might find it very difficult to comply. It was also opined that it amounted to the over-regulation of the function of a local government.

In respect of the land use management system and the whole issue around land use schemes and existing property rights, SALGA was of the view that the transition period from old town planning schemes to the new land use scheme that would be required in terms of the Bill, must give property owners sufficient time to make use of their existing development rights. The issue of what would happen to some of those rights if they were not utilised raised the fact that the Bill ought to provide guidelines on how the issue of claims for compensation that might arise as a result of the loss of those rights, would be addressed.

SALGA acknowledged that while it was a noble thing to link the SDFs and the land use scheme, nevertheless the requirement for municipalities to adopt a land use scheme within five years after the promulgation of the Bill was not feasible. Furthermore the issue of the review of the scheme every five years would be very costly for municipalities, and perhaps a more extended period of time should be considered, given the amount of resources and time that would be required to undertake a review of the Bill.

Another basis for concern in the Bill was the provision that when the planning tribunal took a decision on a development application, the issue of derogation of property might not be taken as a consideration. SALGA was of the view that in terms of section seven of the National Building Regulations (NBR), there appeared to be a conflict between the provision in the Bill and section seven of the NBR and as such, clarity was needed concerning how these provisions would be aligned.

In respect of the issue of municipal planning tribunals, SALGA was of the view that section 79 & 80 of the Municipal Structures Act already provided adequate provisions that allowed municipalities to determine the structures that could compose a body to be set up to make a planning decision.  SALGA was uncertain whether the provisions of the Bill were purporting to repeal or amend section 79 & 80.  Furthermore, SALGA was of the view that given the diversities that existed in the country, municipalities ought to be left to determine those who would compose those structures, as provided by section 79 & 80 of the MSA.

Concerning the appeal tribunal, it was interesting to note that the Bill in respect of the municipal planning tribunal made provisions for the exclusion of councillors from the decision-making process, but in respect of the appeals tribunal, the Bill allowed politicians to form part of the composition of the tribunal. SALGA was therefore keen to understand the rationale of this position taken by the Bill. SALGA was of the opinion that a district tribunal would be a preferred option to ensure that the appeals remained within the ambit of the local government sector as opposed to bringing in other people from outside that sector. Though the Bill proposed an inter-appeal system, SALGA was of the view that section 62 of the Municipal Systems Act still applied. SALGA would not want to see a double appeal system, whereby a person could run an appeal in terms of the MSA and at the same time run another appeal in terms of the Bill.

Another contentious issue in the Bill was the provision which allowed the Minister to make a decision on development applications if the applications affected national or provincial interest. SALGA was of the view that without clearly defining what the triggers of the national or provincial interest were, the provision was likely to create confusion and delays. This would leave room for developers to couch their applications in such a way that it would be viewed as affecting national or provincial interest in order to avoid the appeal mechanisms provided in the Bill. There was therefore a strong need to define what constituted national and provincial interests. Furthermore, SALGA was of the view that the Bill did not recognise the fact that there would be cases where the municipality would have to make a decision on a component of an application that was of national interest. The fact was that the municipality still had the obligation to make a decision on that application because at the end of the day, the application would have a bearing on the municipality.

Concerning the issue of intergovernmental support and municipal capacity, SALGA was of the view that the Bill would bring challenges because not all municipalities would have the capacity to implement the Bill. However SALGA was pleased to say that the DRDLR had taken the initiative to assess the municipal capacity to implement the Bill, and SALGA was part of this process.

Discussion
Ms P Ngwenya-Mabila (ANC) referred to SALGA’s assertion that the review of the land use scheme every five years as proposed by the Bill was not feasible. She asked SALGA to indicate the amount of time that would be deemed as feasible for the review.

Ms Ngwenya-Mabila further referred to the assertion by the City of TSH that the Bill would result in interference by the provinces in the day-to-day operations of municipalities. She asked for clarity concerning this issue.

Ms Ngwenya-Mabila also referred to the assertion by the Ethekwini Municipality that the lack of accompanying regulations was a short coming which should be addressed before the Bill was enacted. She stated that in most cases, the regulations came after the Bill had been passed into an Act. She therefore asked for clarity concerning the assertion by Ethekwini Municipality.

Ms Ngwenya-Mabila also asked for clarity concerning the issue of appeals.

Mr A Trollip (DA) observed that it appeared that there were many issues of mutual consent at local government level and that confusion also appeared to be arising from the Bill.  He asked the DRDLR why it appeared there was a consistent trend of concern from local government around these common issues. He further observed that it appeared that most of these common issues had been made to the DRDLR previously but that they had not been taken into account. He therefore sought to know why the DRDLR had not considered these issues.

Mr Trollip referred to the statement by the Ethekwini Municipality that necessary support and capacity would be required for the implementation of the Bill. He asked for clarity concerning what kind of support was being referred to.

Ms Ngwenya-Mabila asked SALGA how it wanted the Committee to repeal legislation that was not administered by it.

The Chairperson asked the municipalities to respond to the questions.

Mr Nortje (City of JHB) responded to the question concerning whether the Committee was expected to repeal those Acts which were in conflict with the Bill, and said it was not necessary that the Committee should repeal the legislation. The power to repeal was that of Parliament. He stated that there was a need for Parliament to repeal all such archaic laws which would cause a conflict with the Bill.

The Chairperson stated that the Department of Justice had been asked by Parliament to review all archaic laws that had an impact not only on municipalities but also on development and the administration of justice in general. He stated that the Committee might decide to collaborate with the Portfolio Committee on Justice in order to see how those laws which might cause a conflict with the Bill could be repealed.

Mr Phewa (Ethekwini Municipality) responded to the question referring to what necessary support and capacity would be required for the implementation of the Bill. He replied that the focus was on capacitation prior to implementation. He stated that a more structured process in terms of how this would unfold would be needed. For instance there was a need to interpret the provisions of the Bill upfront to the municipalities as they would be the ones actually implementing the larger part of the Bill.

The Chairperson interjected and asked if Mr Phewa was not aware of SALGA’s claim that it was currently working with the DRDLR to enlighten municipalities on the provisions of the Bill. He stated that he would be surprised if the Ethekwini Municipality was not aware of this development.

Mr Phewa replied that the SALGA process had been concentrating only on the coordination of the inputs and responses to the Bill. What was more important concerned how the municipalities would be dealing with the implementation of the Bill at a practical level.

Mr Phewa further responded to the question relating to regulations. He admitted that the process was that regulations came into force subsequent to the enactment of a law. However, experience had shown that regulations took too long to come into force and the vacuum created by the absence of the regulations could create confusion. Therefore it would be better if regulations were released sooner rather than later, after the enactment of a any legislation.

Ms van der Vyver (City of TSH) responded to the question relating to the assertion that the Bill would result in an interference by the provinces with the day-to-day operations of municipalities. She replied that the submission was directed at Schedule one, which set out the matters on which the provinces could legislate. She stated that the powers given to the Provinces in the Bill were so wide that they attempted to reinvent the institutional arrangements within the municipalities, and this was the context in which concern had been expressed about interference. The other issue around Schedule one was that the Municipal Systems Act allowed for a local government to handle a spatial development framework. The Bill would also allow the municipality to handle a spatial development framework, and the same position was also the case for provincial legislation. Therefore there would be three separate legislations which would provide for spatial development framework, however, none of these had the same contents. The effect would be that local authorities would find themselves in a situation in which they would have to comply with the MSA, the Bill as well as provincial legislation when spatial development framework was to be done, and none of the contents were the same. This would therefore result into conflict.

Ms van der Vyver further commented on the observation that there was a mutual consent between municipalities on the issues raised concerning the Bill. She acknowledged that it was the sole preserve of the DRDLR to accept or reject the issues raised by municipalities, but the fact that municipalities had a consensus on the contentious issues arising from the Bill showed that there was a need to address all the issues raised. She stated that it would be in order if the DRDLR could give a feedback concerning why most of the issues earlier raised by municipalities had not been addressed. The lack of feedback could make the new legislation impossible to implement.

 Ms van der Vyver made further comments concerning the question relating to the repeal of old laws conflicting with the Bill. She stated that the Bill did not give any status to developments that were done in terms of other legislation, which had now become archaic laws. As long as no status had been given to those developments, it would mean that a vacuum would have been created.

Mr Maganlal responded to the question concerning the five-year review. He stated that the point being made was that given the amount of work and resources required to review the scheme, experience had shown that it was very difficult to do a review of a land use scheme covering an entire municipality every five years, even for municipalities that were well resourced. There was therefore a need for the DRDLR to meet with the municipalities in order to work out a feasible time frame for the review.

The Chairperson asked the DRDLR to react to some of the comments made by the municipalities. He directed the DRDLR to start by reacting to the comments made concerning the lack of feedback from the Department.

My Sunday Ogunronbi, Chief Director of DRDLR, stated that it was not entirely correct that the DRDLR had not given any feedback. What the DRDLR had not done was to give individual responses to comments made by individual organisations. The DRDLR had engaged in several deliberations with various interested stakeholders and a consultation report had been submitted to Parliament. The DRDLR had engaged in over a hundred meetings with various municipalities and stakeholders and it would therefore require the entire machinery of the Department to respond to comments individually, and this was not realistic. What the DRDLR had done was to classify comments into various categories in order to respond to them in unison. The DRDLR had also incorporated some of the comments into the Bill and it was not the true position that the comments from the municipalities had been disregarded.

Concerning the issue raised in respect of the possible encroachment on the powers or mandate of municipalities, and the assertion that Schedule one of the Bill might not be legally sound, Mr Ogunronbi stated that the provision of schedule one was not prescriptive and that it had been couched in a totally non-mandatory manner.

Regarding the assertion that the Bill had created parallel legislation, he stated that the intention of the Bill was not to allow different pieces of legislation to create parallel or alternative modes of bringing applications. The position was that all applications had to be brought first to a municipality and it would therefore not be legitimate for a province to create a piece of legislation that would allow for a parallel process.

The Chairperson asked Mr Ogunronbi to deal specifically with the issues of time frame for review; internal appeals; the role of councillors in the planning tribunals; national interest; and transitional arrangements. He directed Mr Ogunronbi to be precise in his response in view of the fact that there were other presentations to be dealt with.

In respect of transitional arrangements, Mr Ogunronbi conceded that what was in the Bill was not sufficient. Efforts would be made to strengthen the provisions.

In respect of the issue of national interest, it had been expressly stated in the Bill that all applications were to be lodged with municipality, whether it had national or provincial interest. The primary land use regulator in respect of clause 33 of the Bill remained the municipality. It was admitted that the Bill had not provided for what matters would fall under provincial and national interest. However, further work had to be done on the Bill to ensure that whenever the national government sought to join in application which was already lodged with the municipality; it had to be on certain explicit criteria, laid beforehand.

Concerning repeal, the DRDLR could not propose the repeal of provincial laws. Laws which were provincial laws would have to be repealed by the provinces themselves and these could not be repealed by the national parliament.

The position of the DRDLR on the five-year review was that the electoral cycle in the country was five years, and this had been the rationale for providing for the five-year period. However, the Bill had not stated that there was a need to  bring in a new spatial development framework after five years, because a review might result in nothing being required.

Griqua Royal House submission
Mr P William, on behalf of the Griqua Royal House, stated that Parliament was to be applauded for its efforts to ensure public participation in the formulation of the legislation. However, there were concerns about some processes at local government level.

Mr William observed the fact that Griqua was denied the opportunity to raise concerns and objections in respect of the Land Restitution Act of 1913.  This had resulted in anger and disapproval in the acceptance of the legislation. The indigenous people were coming from a history in which their foreparents had been brutally abused, exploited and even humiliated by the foreigners coming to their beloved country. The opportunity to comment on the Bill came at a time when the indigenous people were going to celebrate Heritage Day, demonstrating their culture and stimulating debate on the existence of the tribe in a democratic South Africa.

As custodians of all legislative Acts, Parliament needed to correct the perception that citizens were only recipients. Parliaments also needed to establish whether the people of South Africa were the masters or clients in the development of Bills. The past had taught the Griqua too many lessons on the development of an Act which was enforced upon them. The apartheid regime had never recognised the human factor. A recipe for failure or disaster was when Parliament was not learning, listening and interacting with the people in order to develop legislation. In the event, Parliament had failed to recognise and consult the following documents: the Constitution; the Manila Declaration of 1989; Johannesburg Summit on Sustainability in 2002; United Nations Agenda 21 (1992); Earth Charter Initiative; United Nation Millennium Goals (2000);and the New Biodiversity Act.

There was no representation from the Saldanha Bay Municipality and the Chairperson called on the Chamber of Mines to make its presentation.

Chamber of Mines submission
Mr Anton van Achterbergh, Head of the Legal Department, and Prof Michael Dale, made the presentation on behalf of the Chamber of Mines.

Mr Van Achterbergh highlighted the importance of the mining industry for the South African economy. The mining industry had created 1 353 000 jobs -- 514 000 direct, and 838 000 indirect in industries that used mining products or supplied the mining industry. A dependency ratio of about 10 to 1 meant that 13,5 million people were dependent for daily food on mining jobs. Mining accounted for 16,2% of total formal non-agricultural employment in South Africa. Every direct mining job created approximately two jobs in other sectors. Mining accounted for about 19% of gross domestic product (GDP) and was a critical earner of foreign exchange, namely more than 50% of the foreign exchange flowing into the country. Mining accounted for 20% of investment (12% of which was direct investment) and attracted significant foreign savings (R1,4 trillion, which was 29% of the value of the Johannesburg Stock Exchange). It also accounted for 17,7% of corporate tax receipts, namely R26 billion, plus R5,5 billion in royalties.

Mining incurred R437 billion in expenditures, of which approximately R389 billion was spent locally. Dividends accounted for R12,7 billion, while R89 billion was spent in wages and salaries, R1,3 billion on community development, R4,1 billion on skills development and R800 million on corporate social investment, in addition to social and labour plans and Mining Charter commitments.

Prof Dale thereafter highlighted the special attributes of minerals and mining. He stated that minerals were area-bound and occurred across boundaries. Minerals were in the national and economic interest of the whole of South Africa and constituted vested rights. It was pertinent to note that a municipality could not plan in advance for unknown future mining. Consultation with municipalities, other State Departments, communities, owners and occupiers already occurred at the time of application for mining rights, approval of the social and labour plan, and approval of the environmental management programme.

He stated that historically mining was recognised as predominantly land use and as such there could be no use of mining land for non-mining uses (including township establishment) without the permission of the Mining Commissioner under the Mining Rights Act 1967. The Minister of Minerals and Energy was empowered to order cessation of non-mining uses, including the inclusion of land in a town planning scheme under the Minerals Act 1991. The Courts could grant interdicts against non-mining uses, including township establishment.   However this hindered or prevented prospecting and mining.

In respect of the consequential special recognition of mining in land use legislation, no town-planning schemes could be established on proclaimed mining land by virtue of the Town Planning and Townships Ordinance, 1986 (Transvaal). There was continuance of existing uses for 15 years, with the possibility of a further 15 years, after promulgation of a town-planning scheme in terms of the Town Planning and Townships Ordinance, 1986 (Transvaal). No township establishment could occur without the mineral right holder’s consent, as provided under this ordinance and the Development Facilitation Act 1995. The concept of land development excluded prospecting and mining under the Development Facilitation Act, 1995. Also no physical planning permit was required for prospecting or mining, or uses incidental thereto under the Physical Planning Act, 1967 and the Physical Planning Act, 1991. Furthermore there was exemption of prospecting and mining, and uses incidental thereto, from town-planning schemes under the Southern Johannesburg Regional Town-planning Scheme 1962. It was the opinion of the Chamber of Mines that those concepts which favoured mining merited to be carried forward into the Bill.

Concerning minerals and mining in post-1994 South Africa, it was pertinent to note that national, provincial and municipal competences ranked equally. Mining was a national competence in terms of the Constitution of the Republic of South Africa 1996, and the Mineral and Petroleum Resources Development Act 2002 (MPRDA). The State had sovereignty and custodianship         of mineral resources.  The Minister of Mineral Resources under the MPRDA was empowered to grant prospecting and mining rights even over residential areas      or land reserved in terms of other laws, while the Minister of Finance was empowered to levy a resource rent in the form of State Royalties. Holders of prospecting and mining rights under the MPRDA were entitled to prospect and mine and to exercise ancillary surface use rights while surface uses which impeded mineral development required the consent of the Minister of Mineral Resources.

As stated in the Bill, the protection against deprivation and expropriation of property, such as prospecting and mining rights, availed in terms of the Constitution of the Republic of South Africa 1996. Although mining was a national competence, mining also had to comply with municipal and provincial legislation, but there was the potential for sterilisation of mineral resources -- landowners could try to prevent re-zoning for mining purposes which could be detrimental to the national interest.

Under the Bill there was a resultant two-fold encroachment on mining. The first encroachment was that the mineral holder needed to procure zoning of land for mining uses   Previously, municipal jurisdiction had been limited to urban and peri-urban areas. However, under the Bill, mineral jurisdiction included even rural areas, where most mining occurred. The second encroachment was that land developments by others for non-mining uses prevented mining uses, in regard to which the mineral right holder’s consent had been previously required in order to protect existing, known future and even unknown future mining operations.  However, under the Bill there was no provision for the consent of existing mineral right holders, let alone in regard to known or unknown future mining operations where no mineral right holder yet existed.

The Chamber’s solution to the encroachment on mining in the Bill was the insertion of suitable provisions in the Bill by relying on section 44(2) and 155(7) of the Constitution of the Republic of South Africa 1996, to protect existing mining operations, known future mining operations and unknown future mining operations.

In respect of the Chamber’s proposed concepts and clauses to deal with mineral and mining aspects, the Chamber’s proposal to deal with the first encroachment identified above (the need to zone land for mining purposes) was the exclusion of, or alternatively, the recognition and accommodation of existing, known future and unknown future mining operations. There should also be recognition of national policies and national legislation in relation thereto in respect of development plans (clause 7); norms and standards (clause 8); support and monitoring (clauses 9 and 10); spatial development frameworks (chapter 4); land use schemes (chapter 5) and alignment of authorisations (clause 30).

All the abovementioned aspects should expressly exclude prospecting and exploration operations as well underground mineral operations. There should be express inclusion of mineral holders as competent applicants for land development (clause 45(1)(c)). The transitional provisions should include provision for existing uses (clause 60).  If mineral operations did require consent, such consent should be the lowest form of consent. Existence of mineralisation not previously taken into account should constitute a site-specific circumstance warranting departure in regard to all the abovementioned aspects.

The Chamber’s proposed concept in respect of the second encroachment (land developments by others of non-mining uses which prevent mining uses) was that land use schemes needed to have the consent of the Minister of Mineral Resources, and any holder of a mineral rights authorisation. There should be a prohibition on land use schemes in respect of land used for mining operations. Mineral operations should be expressly recognised as being in the national interest, so as to render all land developments subject to referral to the Minister of Rural Development and Land Reform.

To address mineral and mining aspects generally there should be express provisions that all relevant functionaries ought to act in consultation with the Minister of Mineral Resources in all the abovementioned aspects. The Minister of Mineral Resources should be designated or delegated in the Bill as the responsible Minister in regard to all aspects of land development and land use which impacted upon mineral operations. These aspects should be dealt with in the Bill as framework legislation, and should not be deferred to regulations, guidelines, or provincial or municipal legislation which would then consequently also need to be taken into account.

Prof Dale asked the Committee to amend the Bill so as to ensure encouragement of mineral investment in South Africa in the furtherance of the national interest.

Free State Department of Cooperative Governance and Traditional Affairs (COGTA) submission
Dr Henning Stapelberg, Town Planner for COGTA, Free State, stated that since 1894, Cogta Free state had had central land use considerations approval.  In other words, the townships board had been established in 1894 and work was still being done by the board in considering all land use applications. This meant that the municipality had never had any opportunity to process or consider any application, except for giving comments on land use applications. These were all handled by the Townships board, to the MEC.

He stated that the municipalities had always had the powers that they enjoyed now. The Constitutional Court only articulated these powers and made them material and effective. There were a few general concerns in respect of the Bill, and the major concern was that it was going to be expensive and complex for Cogta Free State to ensure that the municipalities would be able to process and decide on the land use applications. Cogta Free State was in the fortunate position of having drafted its own provincial legislation up to the final stage. However it was still using the old legislation, such as the Ordinance of 1969 and the Removal of Restrictions Act of 1967, and there was therefore a need to keep these pieces of legislation and not repeal them otherwise Cogta Free State would not be able to do anything until there was a new legislation. Therefore while some of the other provinces were pleading for more repeal, Cogta Free State was pleading for fewer repeals, because the repeal of the Restriction Act and the Physical Planning Act would result in it being handicapped.

It was also pertinent to note that in the Free State there were no town planning schemes. Even some of the former predominantly white built-up areas were not governed by a town planning scheme and none of the former predominantly black areas or farmlands were subject to a town planning scheme. Free State had also never had proper planning legislation and this was why the Bill was a welcome development. The Bill was compelling the Free State to have its own provincial legislation. The major challenge being faced by the Free State was in relation to capacity -- and everything was needed at municipalities. The municipalities in Free State did not know how to process the applications. There were only four municipalities in the province with town planners and these town planners were few and inexperienced. The reality therefore was that the Free State was going into a total new era with the introduction of the Bill.

Western Cape Department of Environmental Affairs and Development Planning (WCDEADP) submission
Mr Chris Rabie and Prof Jaap de Visser made the presentation on behalf of the WCDEADP.  Prof De Visser commenced with the constitutional matters which arose in respect of the Bill. He stated that there were four provisions of the Constitution that the Bill impacted upon and which were spread out in two schedules. The consequence was that there were two competencies in Schedule 4A on regional planning and development as well as urban and rural development that implied that both national and provincial governments could make laws on the matter and if there were a conflict between the two laws, there was a mechanism in s146 of the Constitution that would solve the conflict. There was also the provincial competency in Schedule 5A which meant that only a provincial government could make and implement law on that issue, unless there were certain exceptions which were listed in section 44(2) of the Constitution. Finally municipal planning was a competency that was allocated to local governments, but within the framework set by national and provincial government which was provided by s155(6) and (7) of the Constitution.

Provincial governments had already adopted, or were in the process of adopting, provincial planning laws.  As a result there was a lot of legislative activity around planning taking place in all the nine provinces. There was therefore a need to ensure that all the various pieces of legislation were coordinated with each other, because section 41(1)(h) of the Constitution provided that: “national and provincial governments must co-operate with one another in mutual trust and good faith by…co-ordinating their…legislation with one another”.

Prof De Visser stated that there were certain provisions that should give guidance to the Committee on the extent to which anyone could proscribe to provincial governments, and the extent to which local governments could conduct land use planning. Section 146 was the key provision, but it had never been tested in court before and as such there was no precedent for it.  Basically, the provision answered the question about when national law prevailed over provincial law. The same would apply if an argument arose that the national law was trespassing on provincial planning, which was the exclusive competency of provinces -- the point of reference in this regard would be section 44(2), which provided for when a national law may prevail over provincial law.

The WCDEADP was concerned about intergovernmental consultation around the National Spatial Development Framework (NSDF) and wanted a more explicit role for provincial and local government and which would involve more transparency in consultation. The result would therefore be an alignment with the Municipal Systems Act. In respect of the alignment with the MSA, the Western Cape wanted to implement a plan-led system in order to achieve land use control in line with Metropolitan Special Development Frameworks (MSDFs). The municipality could deviate but it had to be in terms of a transparent procedure. However, the problem was that the Municipality Systems Act made the MSDF part of the Integrated Development Plan (IDP). The IDP was a broad strategic document which was reviewed every year in a participatory process and was ill-suited for land use management. The consequence was that the Western Cape could not insist on transparency in deviation from SDFs. The recommendation was for the Bill to remove MSDFs from IDP, or else address the overlap.

In respect of review cycles, while the Bill insisted on 5-year review cycles for PSDF, MSDF and land use schemes, the current Western Cape Bill insisted on 10-year review cycles for PSDF, MSDF and zoning schemes. It was therefore suggested that it would be better to permit provincial government to determine review cycles of PSDF, MSDF and land use scheme.

Another issue was the need to avoid involving intergovernmental relations.  A number of schemes were provided for in the Bill in respect of monitoring, consultation and dispute resolution mechanisms between provincial government and municipalities. Similarly the Western Cape Bill also provided for the same schemes. It was therefore suggested that it would be in order to allow provinces to design a provincial-local interface, while the Bill would provide a fall-back position only.

Another point was the overlapping regulation that could cause confusion in respect of land use schemes. The land use scheme was dealt with in section 25(2) of the Bill, comprising three components which were the regulations, map and register.  In respect of an application, one could apply for the amendment of a land use scheme by rezoning. It was interesting to note that the Western Cape Bill also made similar provisions.
In respect of appeals, the Bill provided for an appeal from the tribunal to the council/executive. Third parties could appeal but there were no changes to rights that had accrued, which raised the question of why a third party would want to appeal unless the decision had been suspended. This was contrary to the situation in the Western Cape where, instead of an appeal, the third party could lodge an objection with the MEC who would issue a recommendation back to municipality so that the decision could be revisited. It was therefore suggested that the MSA should be amended.

The WCDEADP suggested that the Bill should provide a framework for national-provincial interface and principles for provincial and municipal planning. Details should left to provincial legislation and by-laws. The Bill should provide detailed rules to fill gaps in the regulation of provincial and municipal planning. However, if there was no gap, then there was no need for detailed rules.

Community Law Centre/Urban LandMark submission
Mr Stephen Berrisford said that the Urban LandMark (ULM) was a think tank funded by UK Government to find ways to make urban land markets work better for the poor in South Africa. The ULM had worked closely with the Presidency on supporting earlier drafts of the Spatial Planning and Land Use Management (SPLUMB) Bill, especially since the 2008 hearings.  ULM had a direct interest in the legal framework for land use management, as it drew the legal line between what housing and buildings were lawful and which were not, which formed part of the formal economy and which remained informal. Together with the Community Law Centre, which was the main organizer, South African Cities Network (SACN) and DRDLR, the ULM was hosting a round table on the difficult legal issues that had arisen in the SPLUMB process. The purpose of the round table was to get a group of people who had been working through these issues to discuss openly and informally on how to go about resolving the difficult legal questions.

The difficult legal issues concerned how the law could secure national and provincial interests while simultaneously respecting local government’s role, as confirmed in the City of JHB DFA judgment; what remedies were available to a party who was unsatisfied with a municipality’s decision; what would be the impact of new legislation on professional and administrative capacity as local government assumed greater responsibilities; how the law could ensure that development management was harmonised across sectors and spheres, especially in the light of the Maccsands and Swartland decisions.

The view of the ULM in respect of the Bill was that it had improved much since 2008.  However, there were still difficult issues to resolve. The challenge with the Bill was to confirm and clarify the respective roles and functions of the spheres and sectors, and then future legislation could develop the innovative instruments needed to redress spatial imbalances and integrated legislation.  Until the respective roles and functions were confirmed, it would be difficult to expect the various spheres to innovate and take on strong vested interests.

The specific issues that had to be addressed in the revised Bill were narrowing down the definition of what constituted a provincial interest in a spatial planning process and a land use decision; narrowing down the definition of what constituted the national interest (art. 52); articulating clearly an approach to provincial or national intervention in the spatial planning and land use management functions of local government, bearing in mind section 139 of the Constitution (art. 10(1) c); clarifying the legal status of a municipal SDF in relation to provincial and national government decision-making (art. 22(1) and (3)); clarifying the role of the executive authority of a municipality in relation to the Muni Planning Tribunal (art. 23); and clarifying the status of the Bill in areas under traditional leadership, especially in peri-urban areas.

Discussion
Mr Trollip asked the ULM whether they felt that they had captured the attention of the Government and the DRDLR during the public participation relating to the Bill since 2008. He sought to know if there was real interaction during the public participation process.

Mr Trollip further asked for clarity from the WCDEADP concerning their proposals on dealing with appeals to tribunals.

Mr Rabie (first name and title?) replied to the question dealing with appeals from tribunals. He stated that the position of the Western Cape as regards appeals was that decision-making in respect of land use applications should rest with local government. Therefore, municipalities ought to be able to take the decisions.

Mr Berrisford responded to the question regarding interaction during the participation process.  He said he could not actually comment on the actual engagement or participation in relation to the Bill. However, in the past year the DRDLR had become more open and proactive in drawing in the concerns and views of many stakeholders in drafting the Bill. The DRDLR had appointed teams to engage with different organisations within the past year to get more comments and opinions in respect of the Bill.

The Chairperson thanked everyone at the meeting.

The meeting was adjourned.