Spatial Planning & Land Use Management Bill: proposed amendments: State Law Advisors' Briefing

Meeting report

Spatial Planning and Land Use Management Bill: Department of Rural Development and Land Reform and Office of Chief State Law Advisors: Proposed amendments
Mr Enver Daniels, Chief State Law Advisor, Office of the Chief State Law Advisor, noted that a response had now been prepared, in collaboration with the legal advisors from the Department of Rural Development and Land Reform (DRDLR), to the opinion of Adv I Jamie, which tried to address some of the concerns that he had raised.

He noted that the response which had been delivered orally at a previous meeting had now been printed out for Members.

The Chairperson noted that it was not necessary for the legal advisors to go through that response again.

Ms Ayesha Johaar, Deputy Chief State Law Advisor, explained that the drafters would be taking the Committee through two documents. The one entitled “Portfolio Committee Amendments – B-14A” set out the changes to the clauses. The references to page and line numbers reflected them as they appeared in the original Bill (B14-2012). The drafters had also prepared a version of the Bill, noted as B14B, which set out the clauses as they would appear if the Committee accepted the proposals now being made.

She noted that B14A was the result of the earlier discussions at the Committee, and in addition the drafters had added other amendments, after considering the opinion of Adv Jamie. Not every amendment may be directly linked to the opinion, as the new draft was an attempt to make the clauses work together better, and to address the concerns of unconstitutionality.

Mr Daniels then proceeded to take Members through document B14A.

Arrangement of sections
On page 5, in line 11, there was a technical amendment to substitute “to” for  “for”.
On page 5, line 24, there was a proposal to omit “of members” and substitute “from membership”.

Clause 1
A new definition of “development rights” was being inserted, reading:  “Development rights means any approval granted to a land development application.

In addition, the definition of “erf” was to be deleted.

Mr A Trollip (DA) stressed that the Committee needed to know exactly what was being included and removed, and to get a reason.

Mr Daniels responded that the written response to Adv Jamie’s opinion contextualised the amendments. “Erf” was already defined in the Land Survey Act of 1997.

He continued that the definition of “inclusionary housing” was to be deleted. The definition of “rezone” was also to be omitted.

Mr Daniels reminded the Committee that some of these changes had been proposed by the Committee, and he would not attempt to explain these. The changes that the drafters had made could be fully explained. The changes to clause 1 were changes that the Committee wanted when it had deliberated on the Bill.

There was a substitution of a heading for Chapter 5.

Clause 2
Mr Daniels said that a new subclause was being added, reading: “except as provided for in this Act, no legislation not repealed by this Act may prescribe an alternative or parallel mechanism, measure, institution or system on spatial planning, land use, land use management and land development in a manner inconsistent with the provisions of this Act”.  This was inserted to ensure that no overly-broad interpretation would be applied to the Bill, which addressed one of the concerns raised by Adv Jamie.

Clause 7
A new subclause had been added, reading:  “(vi) A Municipal Planning Tribunal considering a application before it may not be impeded or restricted in the exercise of its discretion solely on the grounds that the value of land or property is affected by the outcome of the application”. This also answered a concern of Adv Jamie, and it noted that the Tribunal would be able to consider the application, even if the value could differ.

Clause 8
Mr Daniels explained that this clause related to norms and standards. Subclause (1) was to be substituted with the following: “The Minister must, after consultation with organs of state in the provincial and local spheres of government, prescribe norms and standards for land use management and land development that are consistent with this Act, the Promotion of Administrative Justice Act, and the Intergovernmental Relations Framework Act”. He pointed out that the essence of this was that organs of state in the provincial and local government spheres would be consulted.

The Chairperson noted that the original wording made reference to informing the public about the regulations, via the Government Gazette, and he wondered if this requirement had now been moved elsewhere in the Bill.

Mr Daniels read out the original clause 8(1), which referred to “after public consultation”. The new reference to intergovernmental relations meant that the spheres would have to cooperate with each other. The Minister could not prescribe norms and standards without consulting the spheres of government, who would be directly affected by the norms and standards, and the prescription would be informed by their response. The Minister would regulate as to how the public would participate. Normally, the draft norms and standards would be published for public comment.

The Chairperson asked whether this was set out in any clause.

Ms Johaar confirmed that both the original and B-versions of the Bill provided, in clause 8(3), for public consultation.

Clause 54
Mr Daniels added that although he was intending to take Members through the Bill systematically, it would be useful, at this point, to refer to clause 54. Here, there was a proposal to add a new clause 54(2), which required the Minister to give notice of the proposed regulations in the media, invite the public to submit written representations within 60 days, consider the representations and table the regulations in Parliament, prior to promulgating them. That explained the process.

Clause 8 (continued)
Mr S Ntapane (UDM) raised a question as to why clause 8(3) said that the Minister “may”, instead of “must”.

Mr Daniels responded that this clause gave the Minister the discretion to prescribe norms and standards. If he decided to exercise his discretion (which was what the “may” referred to), he would still have to follow the processes outlined. He gave the example that a Minister responsible for infrastructure development may wish to approach the Minister responsible for Rural Development and Land Reform, asking him to make regulations, and the latter may, but was not obliged, to concede to this request.

The Chairperson said that there was a general concern in Parliament that Ministers tended to work in silos.

Mr Daniels agreed that there were such concerns, but clause 8 did stress the consultative process across the spheres, and an extensive public participation process had to be followed. The Minister responsible for Rural Development, and the provincial and local governments who had primary responsibility for planning were directly involved, but a request from another Minister would have to be considered by all these bodies, and public comment obtained. This would, in practice, help to break down the silo mentality.

The Chairperson said that in a sense this Committee had tested that by calling the six other Portfolio Committees whose departments were directly affected by this Bill, and they had confirmed that those other departments had not reported to them on the Bill. Of course, it had been tabled in Cabinet, yet this Committee would have expected more cooperative input.

Clause 10
Mr Daniels noted that a new subclause (6) was to be added, reading:  “Provincial legislation having the effect of regulating land use, land use management and land development within  a province must promote the development of local government capacity, to enable municipalities to perform their municipal planning functions”.

Mr Trollip said that this was probably a useful clause but, in practice, this was easier said than done. Some municipalities had no planning capacity, although ideally each should be capacitated to do planning. If this was not possible, the planning must vest with someone.

Clause 12
Mr Daniels pointed out the addition of the phrase “Mineral resources and” after line 26.

In addition, a new paragraph (a) was to be inserted, reading: “The national government and provincial government and a municipality must participate in the spatial planning and land use management processes that impact on each other, to ensure that the plans and programmes are coordinated, consistent and in harmony with each other”.

He said that this would compel organs of state to work together.

The Chairperson agreed that this clause read well. There had been concerns with the previous wording that a Minister could proffer an excuse that other departments were not cooperating, and this wording forced all the spheres to cooperate.

Mr Daniels added that on page 13, from line 46, the original paragraph (a) would be omitted.

Clause 14
Mr Daniels noted that in clause 14, at line 27, after “principles” the words “and norms and standards” would be introduced. The concept of “norms and standards” had been introduced throughout the Bill and was added here for consistency.

Ms Johaar added this was motivated by comments made by Adv Jamie, who said that the previous wording was too abstract, and too vague. Generally, there would have to be compliance with principles set out in Chapter 2, but the reference to “norms and standards” would give an indication of exactly how this must be complied with.

Clause 18
On page 15, from line 51, in clause 18(3), paragraphs (a) and (b) were to be omitted. The clause now referred to geographic areas being declared to be a region. This was done in response to comments made by Adv Jamie.

Clause 19
Mr Daniels pointed out that, firstly, after the words “principles”, the words “norms and standards” were omitted.

The wording had also been changed on page 16, line 25, which now stated that the regional development framework must “comply” (instead of “be consistent with”. This was a point discussed in an earlier meeting.

Clause 21
Mr Daniels indicated the insertion of the phrase “norms and standards” in line 46. Other technical corrections were also made: the replacement of “for” with “of” in line 48 of page 16, and renumbering on page 17, in line 31.

Clause 22
Mr Daniels noted the deletion of subparagraph (b) from page 17, from line 49. Clause 22(2) would now refer only to site specific circumstances that justified a departure from the provisions of such municipal spatial development framework.

A reference to the Intergovernmental Relations Framework Act (IGRFA) was inserted, in response to advocate Jamie’s opinion.

Clause 23
Mr Daniels said that a new subclause (2) was proposed to replace the current wording, which he read out (see attached document). This provided that a municipality, in the performance of its duties, must allow the participation of a traditional council.

The Chairperson indicated his approval of this new clause, saying that all South Africans had to be included in processes for the exclusion of any grouping created the potential for further problems.

Clause 24
Mr Daniels noted a change to clause 24(2)(a). On page 18, in line 21, the word “suitable” was being replaced with the word “appropriate”.

Clause 28
On page 19, line 57, a new subclause (4) was inserted, reading: “Despite the provisions of sections 35 and 41, any change to the land use scheme of a municipality, affecting the scheme regulations setting out the procedures and conditions relating to the use and development of land in any zone, in terms of section 25(2)(a), may only be authorised by the Municipal Council”

The Chairperson noted that this now removed the possibility of an individual being told to do something, because the full Municipal Council was responsible for the decision.

Clause 30
Mr Daniels noted that this clause was changed in response to Adv Jamie, and the phrase “the relevant Municipality” would replace the original wording of “A Municipal Planning Tribunal”.

Clause 31
On page 20, in line 32, there was a technical substitution of “to” for “for”.

The word “central” was to be substituted with “publically accessible” in clause 31(2). Written records must now be made accessible to the public at publically accessible offices.

Clause 32
Mr Daniels said that on page 20, in line 44, the phrase “or town planning” was omitted.

On page 21, in line 3, the words “subject to subsection (8)” were inserted.

On page 21, in line 35, the following would be added to clause 32(7): “and return it as soon as practical, after achieving the purpose for which it was removed or seized”.

The Chairperson noted that if a person was found to have used land illegally, then there was no reason to return the land for illegal use again.

Mr Daniels explained that this clause related to the powers of search and seizure, and it now specified that an item needed for evidential purposes would have to be returned.

Mr Daniels added that new subclauses (8) to (12) were being added (see attached document). These specified that an inspector may only carry out an inspection of a private dwelling when authorised to do so, in terms of a warrant issued by a competent court, that other persons, specifically a police officer may accompany the inspector, the power of the inspector to issue a compliance notice, the duration of the compliance notice, and a requirement upon the inspector to conduct a search with strict regard to decency and order and with regard for each person’s right to dignity, freedom, security and privacy. He noted that a few grammatical changes were still needed to this clause, which would be made.

Clause 35
Mr Daniels read out the new clause 35(3), as follows: “A municipality must, in order to determine land use and land development applications within its municipal area, categorise development applications to be considered by an official, and those to be referred to the Municipal Planning Tribunal” This was an attempt to streamline the process.

A renumbering of clauses had been done, on page 22 in line 24. At that line a reference would also be inserted “subject to subsection (3).

Mr Daniels then read out clauses 35(3) and (4) (see attached document) which referred to other legislation.

Clause 37
There were a number of technical amendments. On page 39, at line 24, after the first “Municipal Council” the phrase “and subject to section 139 of the Constitution” was to be inserted.

In lines 35 and 36 of page 2, there were references to “section 36(1)(b)”.

On page 22, at line 34, the word “employment” was to be substituted with “service”.

Clause 38
In clause 38 (1), the words “from membership “ were to be used instead of “of members”. This was consistent with the earlier amendments to the arrangement of sections.

In clause 39(5), the words “there are good reasons” would be replaced with “there are reasonable grounds “ (justifying removal from office).

Clause 39
In clause 39(1), the phrase “an executive authority of the municipality as the appeal authority” would be added after the word “Tribunal”.

Clause 41
Clause 41(2)(d) was being amended, on page 24, in line 34, by inserting, after “scheme” the following: “except any change affecting the scheme regulations in terms of section 25(2)(a) “.

Clause 45
The numbering was to be changed as subclauses (2) and (4) would be switched around

Clause 50
Clause 50(3) was now to be omitted, on page 27, from line 1. This had referred to a development application being done without approval.

Mr Ntapane asked why this had been left out

Mr Daniels said that all development applications would now have to be approved

Clause 51
Mr Daniels said that in clause 51(1), on page 27, in line 7, the phrase “notwithstanding the provisions of section 63 of the Municipal Systems Act” would be omitted.

Mr Trollip asked why this had been done.

Mr Daniels responded that this was a change that the Committee had requested.

Mr Trollip accepted that the Committee may have asked for that, but still wanted the reasons why the drafters thought it could be moved. The Municipal Systems Act (MSA) prescribed certain matters.

Mr Daniels said that the reasons would become clearer as he went through the rest of the clause.

He added that in clause 51(3), on page 27, from line 14, the phrase from “but no variation ..to.. any rights in the clause” was to be omitted. The clause would now simply read: “The appeal authority must consider the appeal and confirm, vary or revoke the decision”. 

The addition of the new subclauses (6) and (7) answered the question on subclause (1). These clauses dealt with a municipality authorising another body to assume the obligations of an appeal authority, and said that no appeal in respect of a decision may be lodged in terms of section 62 of the MSA.

Mr Trollip said this only clarified what had been done, but not why it had been done. He asked why no appeal could be lodged, as prescribed in the MSA, in terms of subclause (7).

Ms Johaar explained that this amendment tried to ensure that the MSA and the Bill were not in conflict, and where one piece of legislation could claim to be superior to the other. The Bill, once passed, and the MSA would have to be read in conjunction with each other, but neither was to assume superior status to the other. The use of “notwithstanding” had assumed that the Bill would trump the MSA, and this clause was now amended directly in answer to the previous court decisions on the matter.

Mr Daniels added that the drafters had also wanted to ensure that no person could lodge an appeal both in terms of this Bill and the MSA.

Clause 52
Mr Daniels noted that a new clause 52(7) was to be added, on page 28, after line 5, reading: “Nothing in this section authorises the lodgment or referral of an application for land use or land development to the Minister, without such application having first been lodged and considered by the relevant municipality in terms of section 33(1)”.

The Chairperson noted that the mining houses did not want this; they wanted to get licences and permits from the national Minister, but this clause would ensure that the municipalities could not be bypassed. He hoped that exemptions would not be granted.

Mr Daniels agreed that the hands of the municipality were being strengthened.

Clause 54
Mr Daniels reminded the Committee that he had dealt with this, when debating clause 8.

Clause 56
This clause dealt with delegation, and the whole of clause 56, as set out on page 29, from line 11, was to be substituted with a new clause, reading:  “Any power except the power to make regulations and the power to determine land use and land development applications as contemplated in section 35, conferred in this Act upon a Minister, a Premier or a municipality may, in general or in cases of particularity, be delegated by the person or body entrusted with that power to a political officer holder or an official in the employment or service of the relevant sphere of government; provided that any such delegation must be in writing and must specify full particulars and the limitations of such a delegation”

Clause 58
Mr Daniels noted a change of reference, in clause 58(1)(a), to clause 38(3), on page 29, line 23.

Clause 58(1)(b) was to be amended on page 29, line 24, by the addition of “as contemplated in section 26(2)”.  would be added

Clause 58(1)(d), on page 29, line 27, was to be deleted and substituted with “hinders or obstructs any inspector in the performance of any function in terms of this Act”.

Mr Ntapane noted that clause 56 stated that powers could be delegated to a person by the Minister, and he wondered if clause 58 needed to contain anything more specific in relation to that delegation.

Mr Trollip thought that the referral to “this Act” would cover that point.

Mr Daniels agreed and said that the new clause 58(1)(d) referred to “the performance of any function in terms of this Act”. In addition, an inspector was now defined as a person designated under clause 32.

Ms Johaar added that clause 32 provided specific conditions under which an inspector was appointed. That person would get a certificate, and there was no possibility of having a further or arbitrary delegation of that power.

Transitional provisions: clause 60
Mr Daniels noted that the whole of clause 60(2), on page 29, from line 50, was being substituted with a new clause (see attached document). This provided, in subclause (a) that a matter pending before a tribunal established under section 16 of the Development Facilitation Act, must continue under that Act. Subclause (b) noted that a reference to a tribunal in terms of section 15 must be construed as a reference to a local or metropolitan municipality. Subclause (c) said that references to designated officers were to be construed as references to an official of a local or metropolitan municipality. Subclause (d) said that the Minister may prescribe a date by which the applications, appeals or other matters should be disposed of, and make arrangements for any that were not disposed of by this date.

Schedule 1
Mr Daniels indicated the change in (d), by omitting the word “re-enact”.

Schedule 3
Mr Daniels indicated that this dealt with the repeal of laws, and another Act was to be added. This would mean that the whole of the Less Formal Township Establishment Act, Act no 113 of 1991, would be repealed.

Chairperson’s remarks on procedure
The Chairperson He thanked the legal advisors from the Department of Rural Devleopment and Land Reform and the State Law Advisors. Members would now have to consider the three documents tabled, and would do this at the meeting scheduled for 29 January 2013. The Committee would then also consider and adopt its Report on the Bill. The Members needed time to apply their minds thoroughly to the latest amendments.

Mr Trollip agreed that Members needed to read the new document He asked the drafters to summarise briefly what generic issues these latest amendments had affected, including how the traditional leadership issue and referral to the National House of Traditional Leaders, and difficulties about transfers from one sphere to the other had been answered.

Mr Daniels reiterated that OCSLA and the DRDLR had prepared a response to Adv Jamie’s opinion, and these changes would, in its view, address some of the issues raised. The written response to the opinion contextualised the changes. He asked again if the Committee wanted the drafters to take the Committee through it.

The Chairperson said that this was not necessary, if the document had been the same one presented orally by Mr Sunday Ogunronbi, Chief Director, DRDLR. The Committee wanted to be assured that the concerns were covered, particularly those around vagueness, broadness and prescriptiveness; it had been suggested that Chapters 2, 4 and 6 were problematic.

Ms Johaar said that originally, OCSLA and DRDLR had not shared Adv Jamie’s concerns on the constitutionality of the Bill. The drafters had, however, undertaken to the Committee that they would consider his perspective and try to address his concerns that the Bill was over-broad. She reminded the Committee that although Adv Jamie had said that this was not framework legislation, this was a general comment, and he had not pointed to any particular clauses that had to be amended. The drafters had tried to remove the uncertainty, by ensuring that the true realities of intergovernmental frameworks were reflected, and the challenges of cooperative governance, by incorporating more specific references to consultation with organs of state that may be affected by his Bill. As already indicated, certain aspects of municipal involvement had been bolstered.

In relation to the concerns about traditional leaders, the drafters had thought that there was already sufficient reference to traditional leaders and leadership, and did not agree that the Bill should be referred to the National House of Traditional Leaders. The drafters had now strengthened the role of the municipal Councils and legislative authorities, by insisting that they must consult with traditional leaders, who were in this way included in processes.

Ms Johaar summarised that these concerns were addressed in clauses 2, 7, 8, 14, 19, 22, 30, 32, 35, 56 and 58.

Members would note, when they re-considered the changes to these clauses, that there were now more specific references to organs of state, provincial and local spheres, reference to exact and tangible norms and standards (not to general developmental standards), to the IGRFA, and provision for the relevant municipality (rather than the Municipal Planning Tribunal) to take decisions. The concerns about constitutionality in relation to search and seizure were addressed by the new subclauses dealing with the powers and responsibilities of the inspector, including that s/he must have a warrant, that a police officer could accompany the inspector to ensure that the procedures were lawful and in accordance with the Criminal Procedure Act, that goods would not be permanently forfeited, and rights of the recipient of the warrant must be respected.

Ms Johaar noted that the drafters had not agreed with everything in Adv Jamie’s opinion, and still felt that some aspects he had raised were not necessary to incorporate in the text of the Bill. There was not agreement on all points.

Mr Trollip noted that, in previous meetings, there had been a perception that the drafters were rather defensive, but he was pleased that the opinion had been taken into account, as the document had been enriched by it. He suggested that the revised document should be presented again to Adv Jamie. He appreciated the fact that the opinion was obtained, saying that this Committee had managed to “catch the Bill by its tail feathers” and hold public hearings, prior to referral to the NCOP. He looked forward also to discussing the revised version with colleagues at provincial and local level, who had also expressed some reservations about the original wording.

The Chairperson reiterated his concern that other portfolio committees and departments had not considered this Bill and its impact on their work in depth. This Committee, however, had done its work, and had consulted. He suggested that it would be prudent of the DRDLR legal team to draw the Bill again to the attention of their colleagues in other departments, pointing out aspects that may affect them. The Committee did not want to see this Bill being stalled in the NCOP. He cited the fact that people often “woke up to issues” at a very late stage and said that e-tolling had been a prime example.

Dr Nozizwe Makgalemele, Deputy Director General, DRDLR, thanked the Committee for the whole process, which was fair and transparent.

The Chairperson said that the DRDLR’s agreement to take note of alternative suggestions was appreciated, and this document was an improvement on the previous drafts.

Mr Sunday Ogunronbi, Chief Director: Spatial Planning and Information, DRDLR, told Members that the DRDLR had also asked Adv Jeremy Gauntlett to look at the new document, and was hoping to have further input during December.

The Chairperson agreed that the compilation of all views was very useful.

Mr Trollip reiterated his view that the money spent on Senior Counsel’s opinion was well-spent and definitely preferable to having the DRDLR dragged through litigation on planning processes. This may have been a painful process, but the results were commendable.

Other Committee business: Minute adoption
The Chairperson tabled draft minutes of the meeting on 14 November 2012

Dr Makgalemele noted that the spelling of her name was incorrect, on page 1, and corrected the job description of Ms P Guduza, a Director in the Department.

The Minutes were adopted by Members, subject to these changes.

Committee programme
The Committee Secretary noted that the Geomatic Professions Bill had been tabled in Parliament.

The Committee would be meeting on 29 January to deliberate further on the Bill.

The meeting was adjourned.