Spatial Planning and Land Use Management Bill [B14-2012]: deliberations on public comments

Meeting report

Introduction
The Chairperson referred to the presentations and submissions made during the public hearings on the Spatial Planning and Land Use Management Bill [B14-2012] (SPLUMB). There was a need to identify the core issues in order for the Committee to satisfy itself that the submissions would be helpful in structuring the Bill in a way that would be useful for those who would be affected by its use.

There were eight apologies.

The Chairperson acknowledged the Parliamentary Legal Adviser, the State Law Adviser and the legal advisers from the Department of Rural Development and Land Reform (DRDLR). All the legal advisers would be making their different submissions in respect of the issues raised at the public hearings.

Spatial Planning and Land Use Management Bill (SPLUMB): public hearings inputs - deliberations
The Chairperson identified the core issues which had arisen from the submissions made at the hearings. These issues were in relation to definition, national interest, traditional councils and communal land, spatial justice, appeals, Schedule 1, exemptions, time frame, and consultation.

The Chairperson asked Members and the legal advisers if they were in agreement with the issues he identified. He asked if there was any other issue which he had not mentioned.

Ms P Ngwenya-Mabila (ANC) stated that no issues had been left out.

Parliamentary Legal Adviser's opinion
The Chairperson called on the Parliamentary Legal Adviser to present her opinion in respect of the identified issues.

Ms Sueanne Isaac, Parliamentary Legal Adviser, stated that she would address very briefly only some of the issues identified by the Chairperson. This was because there would still be a more comprehensive opinion on all the issues which would be provided later. 

Ms Isaac addressed the issue of why the Bill was not referred to the National House of Traditional Leaders (NHTL). She stated that because of the Joint Rules of Parliament, every Bill had to be tagged, and part of the tagging process was that the Joint Tagging Mechanism had to make a decision as to whether any Bill ought to be referred to the House of Traditional Leaders in terms of the Traditional Leadership and Governance Framework Act (No. 41 of 2003) (TLGF). Section 18 of the Act provided that any parliamentary bill pertaining to customary law or customs of traditional communities must, before it was passed by the House where it was introduced, be referred by the Secretary of Parliament to the NHTL for comments. A look at the provision would show that it referred to Bills which pertained to customary law or customs of traditional communities. While the SPLUMB did refer in certain instances to traditions and culture the Bill itself did not in a substantial way deal with customary law or the customs of traditional communities. The SPLUMB rather sought to provide the national framework for spatial planning and land use management in South Africa. Therefore it could be concluded that the Bill did not pertain to customary law and there was no requirement to refer the Bill to the NHTL. However, the Committee was entitled to seek the opinion of the NHTL if it believed that was necessary. 

In respect of the issue relating to whether the SPLUMB needed to be co-sponsored, in terms of Rule 249 (3) of the Rules of the National Assembly the Committee could consult with any other Committee which might have a direct interest in the substance of the Bill.

In respect of the issue of public participation, there were three sub issues arising from this issue. The first issue was public participation during the departmental process which was in relation to whether there was adequate public participation when the DRDLR drafted the Bill. In terms of the Constitution there was a duty on Parliament and provincial legislatures to involve the public in the legislative processes and if Parliament failed to uphold this duty the Bill could be held to be constitutionally invalid. However, there was no similar legal duty on the DRDLR and as such it could not be held legally liable for not engaging with the public. Parliament had the duty to ensure there was proper consultation and the public hearing was the proper forum to ensure that the submissions of the public were appraised. While Parliament had a duty to ensure public participation, there was no legal duty on Parliament to incorporate the opinions of the public into the legislation.

Ms Isaac ended the presentation of her opinion.

The Chairperson directed Ms Isaac to ensure that the comprehensive opinion on all the issues was submitted to the Committee before 12 September 2012.

State Law Adviser's opinion
The Chairperson directed the State Law Adviser to present her opinion.

Ms Ntombi Mayekiso, State Law Adviser, addressed the issue of whether it was pertinent to refer the SPLUMB to the NHTL. She stated that the State Law Advisers were of the opinion that it was not necessary to refer the Bill to the NHTL in terms of Section 18 (1) (a) of the Traditional Leadership and Governance Framework Act 2003 , since it did not contain provisions pertaining to customary law or customs of traditional communities. The SPLUMB sought to provide a framework for spatial planning and land use management in the Republic, a framework for policies, principles, norms and standards for spatial planning and land use management, and related matters. Even though traditional leaders broadly must be consulted in connection with the SPLUMB because of land, SPLUB did not specifically pertain to customary law or customs of traditional communities. Traditional leaders in this instance would be consulted only in the same manner as other stakeholders.

Ms Mayekiso addressed the issue of appeals. The Bill provided for an internal appeal process in Clause 51. The issue raised at the public hearing was that since the decisions of the Municipal Planning Tribunal was a decision of a municipality, that meant that an appeal to the Executive Authority of a municipality became an appeal to the same body which made the decision (player and referee situation). Firstly it had to be noted that Clause 51 dealt with internal appeals which meant that the appeal process was taking place within the municipality, hence the appeal body was the highest authority within a municipality. This was how all internal appeals were conducted. The purpose of internal appeals was to exhaust all internal measures in order to avoid taking every decision to court. Providing for internal appeals was a method of internal dispute resolution and it saved costs. The ordinary appeals to the courts were still available. Clause 51 recognised that the internal appeals provided for in Section 62 of the Local Government: Municipal Systems Act (No. 32 of 2000) and those appeal measures would still remain in place. Therefore what Clause 51 did was to provide for an over and above the Systems Act scenario or an extension of the Municipal Systems Act 2000 provisions because this was framework legislation. There was a need to provide for appeals against the decisions of Municipal Planning Tribunals which was not provided for in the Municipal Systems Act 2000.

Ms Mayekiso further addressed the issue of transitional arrangements. Chapters V and VI of the Development Finance Act had been declared unconstitutional. The Bill did not contain transitional provisions relating to development applications that were submitted in terms of the Development Facilitation Act (No. 67 of 1995) (DFA) and that were not finalised by 17 June 2012. This had created a legal vacuum since the application for an extension of the deadline had not been granted by the Constitutional Court. The state legal advisers supported the view that a transitional provision to the effect that applications submitted in terms of the DFA that were approved prior to 17 June 2012 must be dealt with and finalised in terms of SPLUMB should be incorporated.

She stated that the opinion was limited to the issues addressed above and that all other issues would be dealt by the DRDLR.

Discussion
Mr A Trollip (DA) directed his question to the State law Adviser and the Parliamentary Legal Adviser. He referred to the issue of transitional provisions and expressed his concern that in the absence of provincial legislation in certain provinces there would be an existing vacuum. He asked for the situation in the event of such an existing vacuum and how such situation was to be addressed if SPLUMB did not address transitional provisions.

The Chairperson stated that he would like the DRDLR to respond to certain issues before an answer was given to Mr Trollip's question. He directed the DRDLR to respond to the issue of traditional leaders because when the Bill was submitted to the Committee certain documents had been attached which indicated the interaction of the DRDLR with the NHTL.

Mr Sunday Ogunronbi, DRDLR Executive Manager: Spatial Planning and Information, stated that there had been series of engagements with the NHTL in respect of SPLUMB and certain resolutions had been reached with the NHTL in 2008. The major issue which the NHTL wanted addressed in the Bill was the acknowledgement that traditional leaders played roles which were similar to the roles played by presently by municipalities. In respect of this SPLUMB had relied on and referred to Section 81 of the Local Government: Municipal Structures Act (No. 58 of 1999) (MSA) as a basis to say that municipalities in areas under traditional leaders should allow the participation of traditional leaders when issues were being deliberated upon. This reference to the provisions of the MSA had been provided for under Clause 23 (2) of SPLUMB.

The Chairperson asked Members to pose their question in respect of the Mr Ogunronbi’s submission concerning traditional councils.

Mr Trollip referred to the assertion by Mr Ogunronbi that land use decisions in traditional communal land areas ought to involve the participation of traditional leaders. He stated that the word ‘may’ had been used in the SPLUMB. He asked if this was adequate enough to enable participation.

The Chairperson stated that he would put Mr Trollip’s question in a different way. He stated that it appeared that Mr Ogunronbi was suggesting that the role of traditional leaders would be found within wards and district municipality areas. He asked if there were enough and adequate rules and guidelines in the MSA to enable the traditional leaders to perform their role.

Mr Ogunronbi replied that it would be admitted that Clause 23 (2) of SPLUMB, which invited the traditional council to rely on their rights in terms of the MSA to participate in the development, preparation and adoption of a land use scheme, might actually seem insufficient. However, it was uncertain if the DRDLR had the power to regulate the rights of traditional leaders in the SPLUMB.

The Chairperson asked why the word ‘may’ was used in Clause 23 (2) and not the word ‘should’. This was because the use of the word ‘may’ meant that the onus was being put on the traditional council and the traditional community. The use of the word ‘should’ meant that when the processes for a land use scheme took place the traditional council would compulsorily participate.

Mr Ogunronbi responded that, subject to the advice of the State Law Adviser, the DRDLR would ensure that Clause 23 (2) was amended to replace the word ‘may’ as used in the clause with the word ‘should’.

The Chairperson directed the State Law Adviser to respond to Mr Ogunronbi’s statement.
 
Ms Mayekiso stated that there was no objection if the DRDLR wanted to amend Clause 23 (2) and that the amendment would be in order.

The Chairperson stressed the fact that the use of the word ‘should’ in Clause 23 (2) would compel the municipality to involve the traditional council in cases involving land use schemes unlike the use of the word 'may’ which meant that the municipality could decide not to involve the traditional council if it so wished.

The Chairperson proceeded to deal with the issue of transitional arrangements and called on the State Law Adviser for comments.

Ms Mayekiso reminded the Committee that by the time the SPLUMB was tabled in Parliament the DRDLR was still within the deadline of the Constitutional Court and there was no vacuum at that stage until 17 June when the Constitutional Court refused to grant the extension. It was therefore pertinent in view of the legal vacuum which would be existing because of the refusal of extension to update the SPLUMB by including transitional provisions which would cover the fact that Chapter 5 and 6 of the DFA were constitutionally invalid. 

The Chairperson called on the Parliamentary Law Adviser for her comments.

Ms Isaac stated that her understanding of the situation was that due to the fact that Chapter 5 and 6 of the DFA had been declared illegal and unconstitutional by the Constitutional Court those provisions could no longer be relied upon any more. However, since the DFA did not repeal the previous legislation, the existing legislation would now be operational. The DRDLR would, however, be in the best position to explain what would happen in cases where there were gaps in specific areas.

The Chairperson called on the DRDLR to make its comments.

Mr Ogunronbi stated that the DRDLR had been hopeful that the SPLUMB would have been passed before 17 June 2012. The impact of the Constitutional Court judgement which declared Chapter 5 and 6 of the DFA invalid could be looked by inquiring into the areas where the provisions had been operational in the past. The fact was that the DFA was not operational in certain areas in the country such as the Western Cape. The provisions of Chapter 5 and 6 of the DFA also had no impact or effect in the Free State because there had been no DFA tribunal.

The Chairperson interjected and asked what legislation had been relied upon in the Free State if there were no tribunals in that Province. 

Mr Ogunronbi replied that the DFA tribunal had never existed in the Free State and so there was no vacuum in the absence of the provisions of Chapter 5 and 6 of the DFA. The position was that the old Ordinances were being used in Free State even though these pieces of legislation were in themselves also invalid though they had not yet been declared so by the Court nor directly challenged. The position was that reliance was similarly placed on these old pieces of legislation in those other areas where the DFA had applied before it had been declared invalid by the Constitutional Court.

The Chairperson stated that it appeared that there would be a vacuum if the old Ordinances were to be repealed which would adversely affect those areas where the DFA had been operational and which were relying on the old pieces of legislation. He stated that this was a precarious situation and that the DRDLR’s reliance on hope that the SPLUMB would be passed on time was not very tactical.

The Chairperson called on the lawyers to the DRDLR to make their comments.

Ms Tshepo Mahlaela, DRDLR Chief Director: Legal Services, admitted that the DRDLR had been relying on the hope that the SPLUMB would have been passed on time which would have saved the DRDLR from the predicament of having to deal with the issue of transitional arrangements.

Mr Ogunronbi opined that even in the absence of a national or provincial law the 1996 Constitution sufficiently empowered a municipality with the authority to make a by-law to receive an application.

The Chairperson suggested that it would be advisable for the DRDLR to meet with municipalities in those provinces where it was possible that there could be a vacuum in order to work out modalities for filling such vacuum. The DRDLR would report later on the progress made in this regard.

The Chairperson proceeded to consider the issue of appeals. He asked the DRDLR to make its comments regarding this issue.

Mr Ogunronbi stated that Clause 35 of SPLUMB created two possibilities which were that application for land development should be through one of two options. Clause 35 (1) provided that the municipality had to establish a Municipal Planning Tribunal in order to determine land use and development applications. Clause 35 (2) further provided that, despite subsection (1), the municipality could authorise that certain land use and land development applications could be considered and determined by an official in the employ of the municipality. These provisions showed that the municipality could decide to use either a tribunal or an official. Some of the comments made during the public hearing had suggested that Clause 35 (2) was non-existent. The only areas for determination were those comments which had stated that politicians ought to be allowed to take day-to-day land use decisions or, in the alternative, to let politicians decide and then create an independent appeal tribunal.

The position of the DRDLR as regards the Bill was that the power to take land use decisions belonged to a municipality which could not be relocated to another body outside the municipality. However, some people were of the opinion that the power should be relocated to a so called independent appeal tribunal. In practice these so called independent appeal tribunals were composed of private practitioners who made favours to each other and as such the tribunal could not be so independent.

The Chairperson proceeded to the issue of Schedule 1 taking some powers of the municipality to the province in respect of which there had been some objections in the submissions made at the public hearings. He asked the DRDLR for their comments.

Mr Ogunronbi stated that the DRDLR’s understanding of the Constitution was that the national and provincial levels were invested with powers to regulate the exercise of municipal powers in some areas. The intention of Schedule 1 was to enable provinces to assist municipalities to regulate certain areas and not necessarily take the powers of municipalities away. There had been some arguments that had alluded to the fact that provinces should not be allowed to regulate at all. However, the position of the DRDLR was that the middle ground should be maintained in which provinces would be allowed to regulate in certain areas. Provinces would be able to regulate in greater detail and look at local peculiarities. There were regional tasks that provinces should do as long as they were within a consistent national framework. All that would be needed was to refine the words used in the provision in order to provide more clarity in order to correct the impression that the powers of municipalities were been taken away.

Another reason why provinces should be allowed to regulate was because many of the old laws in the statue books which were due to be repealed were provincial laws which could only be repealed by provincial legislation. 
The Chairperson proceeded to the issue of national interest which was not clearly defined in SPLUMB. He directed the DRDLR to make its comments.

Mr Ogunronbi stated that the definition of national interest was as it was provided in Clause 52 (1) and (2) of SPLUMB. Further reference was made to Clause 52 (6) which provided that the Minister had to prescribe a set of criteria to guide the implementation of the section before the exercise of a power performance of a function contemplated in the Section. The Clause also prescribed the parameters within which the Minister would exercise this power. The cumulative effect of Clause 52 (1), (2) and (6) was that the definition of national interest could be found in the joint reading of the provisions in the Clause. 

The Chairperson asked Members if they had questions.

Members had no questions and the Chairperson moved on to the issue of definition. He stated that certain submissions had been made during the public hearing that the land use scheme as defined in the SPLUMB actually referred to zoning scheme. It had been submitted during the hearings that this definition was confusing. The DRDLR was asked to make its comments.

Mr Ogunronbi replied that historically in South Africa and in some other countries there had been town planning schemes which were also called zoning schemes. The same schemes had also been called land use schemes in some other countries and had further been referred to as land use zones in certain other countries. SPLUMB had attempted to define what made up a land use scheme and there was no doubt concerning the intention of what a land use scheme was intended to be known as in the Bill. The DRDLR had been confronted with the issue that it was importing terminologies from other jurisdictions into South Africa; however, the reality was that the term used in the Bill did not affect the substance of the Bill. It was granted that there were traditional names that people had been used to in certain areas of the country; however, the DRDLR believed that it was better for a national legislation to use a term which would apply in unison to all parts of the country and the term ‘land use scheme’ had been chosen.

The Chairperson proceeded to issue of spatial justice. The DRDLR was asked to make its comments

Mr Ogunronbi stated that there certain principles in respect of spatial justice in Clause 7 of SPLUMB. What was at issue in respect of spatial justice related to Clause 7 (a) (vi) which provided that the discretion of a Municipal Planning Tribunal which was considering an application before it might not be impeded or restricted on the ground that the value of the land or property was affected by the outcome of the application. The opposition to this provision was borne out of the fact that a person who had a highly valued property would not want the development of any next door property which might diminish the value of the former. This basis for opposition appeared to be fair in a normal society; however, in a society where one had to deal with the historic legacy of deliberate distortion of spatial form in order to advance certain economic interest, the argument became slightly different. No one had a legitimate right that the Government protect the value of his or her property; the only right owed by the Government was that it should not do anything that was arbitrary. Anyone who felt deeply aggrieved that the value of his or her property had been gravely affected still had a right of recourse to the law courts to contest an application.

The Chairperson informed the Committee that he was done with the issues which he had identified. He asked Members if they had further issues to raise.

Members replied that they had no further issue to raise.

The Chairperson thanked everyone for coming to the meeting.

The meeting was adjourned.