Spatial Planning & Land Use Management Bill: Legal opinion: Department, Parliamentary, State Law Advisors' responses

Meeting report

Spatial Planning & Land Use Management Bill: Legal opinion: Department & Parliamentary Legal Advisors’ responses
The Chairperson noted that a legal opinion had been obtained from Senior Counsel on the Spatial Planning and Land Use Management Bill (SPLUMB or the Bill) and asked the Department of Rural Development and Land Reform (DRDLR) to present its response.

Mr Sunday Ogunronbi, Chief Director: Legal, DRDLR, observed that the Senior Counsel’s opinion addressed the impact of SPLUMB on other pieces of legislation. It had also addressed the fact that the Bill had not been processed via the National House of Traditional Leaders in terms of s18 of the Traditional Leaders and Governance Framework Act 41 of 2003. Finally, it looked at the constitutional feasibility of exemptions in the Bill on matters relating to mining.

The opinion looked at whether the SPLUMB was properly constituted in terms of sections 44(2) and 155 (7) of the Constitution. This issue went to the root of the Bill, so there was a need to address it first. Section 44(2) of the Constitution allowed the National Parliament to make legislation on a matter which fell within a provincial competence if it was considered necessary for the National Parliament to intervene. Section 155(7) enabled the provincial government to make legislation that impacted on the mandates of municipalities. It was the opinion of the DRDLR that Senior Counsel should have set out in what way the Bill might encroach on a matter falling within Schedule 5 of the Constitution, and whether it did fall into the ambit of a section 44(2) matter. Even if the Bill impacted upon provincial matters, it was important to decide what the factual and policy considerations were that led to such intervention, before addressing whether the intervention was necessary or important. The DRDLR pointed out that Senior Counsel had not addressed this issue at all and had failed to state where and how the SPLUMB was seen as encroaching on provincial competence.

There was another difficulty also presented by the opinion for it was important to separate out the question of Parliament’s competence to make a law in terms of section 72, and the possible conflict. It was important to decide if in fact the national Parliament could legislate on subjects that went to the heart of Schedules 4 and 5 legislation. DRDLR held the view that Parliament could operate within s 44(2), in the absence of anything else in the Senior Counsel’s opinion to address in what respects Parliament might be encroaching on provincial powers. Section 44(2) was distinct from section 155(7), because the former addressed provincial competence while the latter addressed municipal competence, and the examples given by the Senior Counsel that suggested that the interventions through the SPLUMB were not necessary, and therefore did not fall properly within section 44 were in fact matters that related to municipal planning areas. As such, they related to section 155(7), and not to section 44(2). DRDLR felt that the examples given were inappropriate.

Mr Ogunronbi turned to the question of definitions. DRDLR was of the opinion that a definition provided by the SPLUMB was one that recognised the interaction between municipal planning, provincial planning and national planning. Senior Counsel had suggested that the definition in the Bill was unhelpful. However, the answer to this was that at some point municipal planning would inevitably interact with provincial planning. DRDLR suggested that the Senior Counsel should be asked to give some possible definitions of municipal planning that would insulate it from provincial planning, but Mr Ogunronbi felt that this would be a near impossibility.

The next point raised by Senior Counsel was that land use patterns could not be done at the same time, at national level, provincial level and municipal levels. DRDLR responded that in fact there was no reason why this planning could not be done at all levels, and this conclusion was questioned, in the absence of any further detail.

Discussion
Mr A Trollip (DA) commented that the response given by the DRDLR seemed to be not so much in the nature of a comment as a second legal opinion. He said it seemed that DRDLR was resistant to any criticism of the Bill, because it was the sponsor of the legislation.

Mr S Ntapane (UDM) agreed with Mr Trollip. He thought that Senior Counsel should be present, so that there could be further engagement between the two, to resolve the difference of opinion.

Mr Trollip further commented that the opinion of the DRDLR was not given in writing, so the Members had nothing from which to work.

The Chairperson observed that Mr Ogunronbi had conceded to few of the opinions held by the Senior Counsel but had countered virtually all.

Mr Ogunronbi stated that he would make the hard copies of the DRDLR response available to the Committee after the meeting. He agreed that it would be useful for DRDLR and Senior Counsel to engage, to clarify and reconcile the differences in opinion.

Parliamentary Legal Advisors’ opinion
Ms Suanne Isaac, Parliamentary Legal Advisor, also commented on the opinion, but said that she would focus on the issue around whether the National House of Traditional Leaders (NHTL) should have been consulted. Section 18(1) of the Traditional Leadership and Governance Framework Act provided that any Bill that pertained to the customary law and customs of any traditional community should be referred to the NHTL. Senior Counsel believed that the SPLUMB did relate to traditions and customs and therefore that the Bill should have been so referred. However, she disagreed with this view. In terms of the Constitution, municipal planning was specifically allocated as a local government competence, in which traditional leaders did not have any powers. The Bill did not relate directly to traditions and customs of traditional communities, as it dealt primarily with spatial land planning and land use management, a function specifically allocated to local government. It did not relate specifically to customs. She believed that there was no need for the Bill to be referred to the NHTL, but said that the Committee would have to take the final decision on whether it wanted to send the Bill through for comment.

State Law Advisors’ opinion
Ms Ntombi Mnyikiso, State Law Adviser, also responded to the opinion of the Senior Counsel. She dealt with the comment that the level of intervention, particularly in relation to matters set out in Chapters 2, 4 and 6 of the SPLUMB, went beyond what national government was permitted to do in terms of section 155(7) of the Constitution. Furthermore, Senior Counsel was of the view that the provisions were not supportive, as required by section 154(1) of the Constitution, as they were prescriptive and sought to direct municipalities on how to administer their affairs.

She suggested that Chapters 2, 4 and 6 of the Bill provided for a statutory framework that was applicable to all three spheres of government; local, provincial and national. Chapter 2 of the Bill provided for the Minister to prescribe norms and standards for land use management and land development, which must, amongst other points, be reflective of national policy, national policy priorities and programmes, land use management and land development. The norms and standards were also intended to promote social inclusion, spatial equity, desirable settlement patterns, rural revitalisation, urban regeneration, and sustainable development. Chapter 6 of the Bill provided that although municipalities were authorities of first instance in land development applications, authorisation for a related land use would have to be obtained in terms of the relevant legislation that dealt with that land use.

She then commented on the point about section 44(2). This section empowered Parliament to intervene, in line with section 76(1), in a matter that fell within a functional area listed in schedule 5, when it was necessary to do so. The State Law Advisors believed that both the national and provincial government had the legislative and executive authority to ensure effective performance, by the municipalities, of the matters listed in Part B of Schedules 4 and 5, and they could do so by regulating the exercise by municipalities of their executive authority.

She noted that in terms of the Constitution, “government” was constituted as the national, provincial and local spheres of government, which were distinctive, inter-dependent and inter-related. The SPLUMB provided a general statutory framework which was applicable to all spheres of government around development planning. It was important to bear in mind what “municipal planning” (as referred to in Part B of Schedule 4) meant. This matter was considered in the case of City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others, where the Constitutional Court observed that “municipal planning” was not defined in the Constitution. The Court found, however,  that ‘planning’, in the context of municipal affairs, was a term which had assumed a particular and well established meaning, and that it included the zoning of land and the establishment of townships. She believed that the SPLUMB had indeed observed the competence of the three spheres of government but providing, in national legislation, for a framework that related to spatial planning, land use and land development for the whole of the Republic. Clause 2 of the Bill provided that the Act applied to the entire area of the Republic. It was therefore legislation enabled under section 155(7) of the Constitution, insofar as it regulated provincial planning. It was important to remember that it was setting a system of spatial planning for the whole country.

She noted that Senior Counsel had concentrated, in the opinion, on the interpretation of section 44(2), and by extension also then 155(7) of the Constitution. SPLUMB did provide an overall direction, in clause 10, as to how the planning would work. However, clause 10(2) specifically allowed each province to institute different measures (within the overall scheme of clause 10), recognising that it might be necessary to have a different response to the differing customary and cultural practices in each province. A provincial context was therefore provided, with provincial support and monitoring, within the consistent overall regulation. She believed that Senior Counsel’s opinion that no discretion or alternatives should be allowed was untenable.

She then moved on to the portion of the opinion dealing with referral to the NHTL. She agreed with other opinions that this was not necessary, since the SPLUMB did not contain provisions pertaining to customary law or customs of traditional communities. Traditional leaders could be consulted in the same manner as other stakeholders, and more particularly within the parameters of the applicable laws and the Constitution.

The Office of the Chief State Law Advisor had come to the conclusion that the SPLUMB was consistent with the Constitution. Furthermore, the Bill was drafted in accordance with the norms and standards followed in the country. Many of the provisions cited by the Senior Counsel as being indicative of failure to achieve the core object of the Bill were probably due to a lack of exposure to spatial planning and land use matters. The national government had the power to legislate in terms of s 44(2) of the Constitution, but any apparent conflicts with the legislative powers of the provincial sphere were to be dealt with in terms of section 146 of the Constitution. She cautioned that government could not avoid legislating on matters of national interest because of perceived unwarranted intrusion into the provincial sphere.

The Chairperson reiterated that a final draft of the Bill should be presented in the following week

Other matters: Report on the strategic plan of the Committee
The Chairperson stated that the report on the strategic plan of the Committee outlined the way in which the Committee would conduct its business. It set out how the flow of information should occur between the DRDLR and the Committee, the capacity of the Committee to perform its functions to the best of its abilities, and the way in which the Committee might seek to influence the DRDLR to alter its priorities and execute the mandate given to it by the government.

Members had no dissenting comments on the report, and it was adopted.

Adoption of minutes
The Chairperson tabled the minutes of 9 October 2012, which were adopted with no alterations.

The minutes of 10 October were tabled.

Ms P Ngwenya-Mabila (ANC) noted some typographical errors, which needed to be corrected.

The minutes were adopted, subject to correction of the errors.

The minutes of 17 October 2012 were tabled and adopted without amendments.

The minutes of 31 October were tabled.

Ms Ngwenya-Mabila observed some errors in the numbering.

Members adopted the minutes, subject to the necessary corrections.

The meeting was adjourned.