Spatial Planning and Land Use Management Bill [B14B-2012]: provincial mandates

Meeting report

Spatial Planning and Land Use Management Bill [B 14B-2012]: Negotiating Mandates consideration
The Chairperson informed the Committee that all provinces had submitted their Negotiating Mandates and indicated that some provinces supported the Bill while others supported the Bill provided that their recommendations were recognised. Exceptionally, Limpopo recommended that the Bill be rejected and not proceeded with. Gauteng and Free State were in favour of the Bill without any recommendations or concerns. The Chairperson said that due to the presence of the State Law Advisor as well as the Parliamentary Legal Advisor, each amendment proposed by each province, had to be considered on its own merit. Amendment would be dealt with province by province and item by item.

Mr M Makhubela (Limpopo, COPE) said that it was the duty of the provincial legislature to go through the Bill and look at all clauses. The provincial legislature should then provide recommendations to the Committee with respect to the clauses with which it was not happy. It was the duty of the Committee to determine the way forward after considering the provincial legislature’s negotiating mandate. The legal team should be engaged where it was not clear.

The Chairperson said that the Eastern Cape Legislature Mandate should first be considered.

Eastern Cape Provincial Legislature
The Chairperson read the Negotiating Mandate and informed the Committee that the Eastern Cape Provincial Legislature supported the Bill. The Eastern Cape Legislature supported the Bill with the following recommendations: to specify and clarify roles of traditional leaders to avoid clashes with traditional leaders and municipalities; to state the role of the Department of Rural Development and Agrarian Reform (DRDAR) regarding the allocation of sites going forward, to address mapping financial implications in rural areas, consider mining laws, creation of a uniform standard of planning and development, councillors to be part of tribunal, to deal with the legal use of land and land invasion by legal occupants, and to clarify the role of municipalities.

Mr Sunday Ogunronbi, Chief Director: Spatial Planning & Information, Department of Rural Development and Land Reform, Mr Sisa Makabeni, State Law Advisor, Office of the Chief State Law Adviser, and Ms Sueanne Isaac, Parliamentary Legal Advisor, objected to amendment proposed.

The Committed objected too.

KwaZulu-Natal Legislature
Ms N Magadla (Kwazulu-Natal, ANC) read the Negotiating Mandate and informed the Committee that the KwaZulu-Natal Provincial legislature supported the Bill subject to the following amendments: deletion of Clause 28(4); 40(2); and the deletion of the phrase “except any change affecting the scheme regulations in terms of section 25(2)(a) from Clause 41(2)(d; provided substitution of clauses 33, 36 and 53; proposed amendments of the definition of municipality, Clause 36, 51(6); and proposed the insertion of Clause 41(2)(f), 58(6), and item (bb) in Schedule 1.

Mr Makabeni said that there was no way to change the definition because the proposed definition did not change anything.

Mr Makhubela said that the chiefs must decide on Bill in terms of locality.

The Committee unanimously objected to the proposed definition.

With respect to the deletion of Clause 28(4), Mr Ogunronbi said that the Clause could not be deleted because the Constitution allocated specific power to Municipalities, including power to make laws. The municipalities could elaborate on or make any change on land use scheme.

Mr Makabeni rejected proposed amendment.

Ms Isaac rejected the amendment.

The Committee unanimously rejected the proposed amendment.

With respect to the substitution of Clause 33, Mr Ogunronbi stated that the Clause should be retained as it stood.

Mr Makabeni rejected the proposed amendment and said that the proposal did not add anything to the Bill

The Committee rejected the proposal unanimously.

With respect to Clause 40(2), Mr Ogunronbi said that this section ensures the principle of impartiality.

Mr Makabeni said that the Clause dealt with the policy issue, therefore the Department should deal with it.

Mr D Worth (Free State, DA) supported the proposed amendment. Other Committee Members rejected the amendment.

Limpopo Legislature
Mr Makhubela read the Negotiating Mandate and informed the Committee that the Limpopo Provincial legislature received the Bill with mixed feelings, however, an overwhelming majority of stakeholders, especially, traditional leaders, held a strong view that the Bill must be rejected and not proceeded with. He raised some concerns with the Bill and that it could be amended. Limpopo Provincial Legislature proposed the following amendments and expressed concerns:

The Bill to include the definition of landowner;

The Bill to address the ultra-rural areas which was left out;

The Bill was silent on joint cooperation between traditional leaders and municipality;

Application for land should be made to traditional leaders instead of municipalities;

Traditional leaders must be given power over use of tribal land and municipality could not use tribal land for development without consulting traditional leaders, who were owners of the land;

The Bill should limit the role of municipalities to the provision of services but not authority over land;

The Bill should address the issue of land restored to previously disposed communities managed by Communal Property Associations on behalf of those communities

The issue of trust land was not covered by the Bill, making difficult for traditional leaders to claim the title deed on trust land;

The Bill did not include customary laws and practices and did not adequately address the interest of traditional leaders.

The Chairperson said that there was no need for the Committee to consider the Limpopo Provincial Legislature concerns because it had rejected the Bill. However, the Department could respond in writing to their concerns.

Mpumalanga Legislature
The Chairperson read the Negotiating Mandate and informed the Committee that the Mpumalanga Provincial Legislature supported the Bill subject to the proposed amendments.

The Province had suggested that Clause 3(e) (Objects of the Bill) be amended by inserting by inserting the phrase “with regard to spatial planning and land use management systems” at the end of the paragraph thereof.

Mr Ogunronbi said that there would be no damage if the Clause were left as it was. The Clause must not be read in isolation but should be read together with the title. He requested the Committee to reject proposed insertion.

Mr Makabeni agreed with the Department’s position and requested that the proposal be rejected as it limited the power of national, provincial and local spheres.

Ms Isaac requested the Committee to reject the amendment because the proposed insertion did not add anything on what was already written.

The Committee unanimously rejected the proposed insertion.

The Province had suggested, with reference to clauses 22, that the legal effect of municipal spatial development framework be stated as was done in Clause 17, dealing with provincial spatial development framework. This could be done by amending Clause 22 or inserting a new Clause entitled “legal effect of municipal spatial development framework.”

Mr. Ogunronbi said that the concern raised was addressed in the Bill, especially under clauses 22(1), 21, 20 and 17. The suggested amendment did not add any substantive value to the Bill. Accordingly, the Committee should reject the suggested amendment.

Mr Makabeni said that the suggested amendment was not clear. The amendment sought to decrease the power of the municipality. He rejected the amendment.

Ms Isaac rejected the amendment too.

The Committee unanimously rejected the proposed amendment.

The Province had raised a serious concern that the role of traditional leaders was not clearly pronounced in the Bill and proposed that the consultation of traditional leaders should therefore be made compulsory during the drafting of municipal spatial development frameworks, and not only in land use management issue under Chapter 5, Clause 23(2). In the light of this, the Province had suggested that Clause 23(2) should indicate that a municipality, in the performance of its duties should allow the participation of traditional leaders subject to section 81 of the Local Government: Municipal Structure Act (No. 17 of 1998), and the Traditional Leadership and Governance Framework Act (No 41 of 2003).

Mr Ogunronbi explained that there the Clause dealt with the policy issue and thus should not be disturbed. He indicated that the issue raised was dealt with under Clause 12 (preparation of spatial development frameworks). The Clause included areas of traditional leaders’ participation. The authority of the municipality did not affect the traditional leaders’ council with respect to consultation. The traditional leaders’ participation had adequately been addressed by the Bill. Therefore, Clause 23 should be left as it was.

Mr Makabeni supported this view and said that Mr Oguarali was correct in his analysis and rejected the amendment proposal because the role of traditional leaders had already been covered by the Bill.

Ms Isaac said that the matter raised by the Province was catered for and addressed by the Bill. The Bill did not exclude the participation of the traditional leaders.

The Committee unanimously rejected the suggested amendment.

The Province had suggested, with reference to Clause 36, that a traditional leader should be made an ex officio member of the Municipality Planning Tribunal (MPT).

Mr Ogunronbi objected to this suggestion and explained that the inclusion of traditional leader in the MPT should be determined by the municipality. However, traditional leaders should participate in the Land Use Scheme. Traditional leaders, like politicians, should deal with serious matters but not day-to-day duties and functions. He requested the Committee to reject the suggested amendment.

Mr Makaseni said that the Committee should bear in mind that all the provinces did not have traditional leaders. Based on this as well as the explanation given, he rejected the amendment.

Ms Isaac said that traditional leaders should be concerned with the policy-related matters and they should not engage with practical, administrative, and functional roles. The traditional role was clearly covered by the Bill. Their role should remain political.

The Committee unanimously rejected the proposed amendment.

Northern Cape Legislature
Mr G Mokgoro (Northern Cape, ANC) read the Negotiating Mandate and informed the Committee that the Northern Cape Provincial legislature supported the Bill and provided further inputs for consideration.

The Province had provided inputs concerning Clause 36 and suggested that the Bill should ensure that there was no political interference with the composition of MPT. With respect to Clause 58, the Province sought clarification regarding penalties that would be imposed against the parties that changed the form of the land through mining activities.

The Chairperson explained that the Northern Cape Provincial Legislature inputs and concerns should be answered in writing.

Western Cape Legislature
Mr O de Beer (Western Cape, COPE) read the Negotiating Mandate and informed the Committee that the Provincial legislature supported the Bill provided that the proposed amendments were considered and incorporated in the Bill.

The Province, with reference to Clause 5(1) said that the competence of provinces to exercise executive authority in matters on an inter-municipal nature should be amended especially sub-Clause 1 paragraph (c) and (d).

Mr Ogunronbi shed more light on the impugned provision and indicated that the elements enumerated in the list in Clause 5(1) fell under the local government power. Clause 10 provided for the provincial power to legislate. Therefore, the matter raised by the Province should be regulated in terms of provincial law.

Mr Makaseni explained that Clause 5 adequately covered the role of municipality in regard with spatial planning and that competency of municipality was covered.

Ms Isaac concurred with Mr Ogunrobi and Mr Makaseni.

The Committee unanimously rejected the amendment.

The Province had proposed that provincial spatial development should be reviewed every 10 years.

Mr Ogunronbi said that the Province wanted to see a review once in ten years; however, the Department could not wait ten years because five years was sensible and manageable. Although the Province raised the issue of the cost, a review could materially take a place or not. Sometimes, after a review, the reviewer might come to the conclusion that nothing needed to be changed. Accordingly, the Committee should reject the amendment.

Mr Makaseni said that the amendment proposed related to a policy matter, therefore, the Committee should decide.

Ms Isaac agreed with Mr Makaseni.

Mr Makhubela said that it was not wise to wait for the law to be repealed by abrogation. The Western Cape Provincial Legislature might not know what the term “abrogated” meant. He objected.

Mr Mokgoro said that prolongation means that the people in the Western Cape wanted prolongation in order to sit with the land for a possible longer time so that they can use the land for their own benefit. He objected.

Mr Worth supported the amendment

The Chairperson and Ms B Mabe (Gauteng, ANC) objected.

The item number 3 on the list of proposed amendments was rejected by the Committee because it was like the proposed amendment under item number 1.

On item number 4, the Province suggested that the definition of “region” should be re-defined because the Bill viewed the region as “any area that shares distinct economic, social or natural features” and proposed that the definition should read “a geographical area consisting of the areas, or parts of the areas, of more than one province.”

Mr Ogunronbi said that the definition was so wide as to include the national sphere because it could not be excluded. The amendment should be rejected.

Mr Makaseni said that the national government should have power to trump regional legislation if there was a conflict.

Ms Isaac said that the proposed definition should be rejected.

Mr Worth supported the proposed amendment, while the Chairperson, Mr Makhubela, Mr Mokgoro, and Ms Mabe objected.

On item number 5, the Province, with reference to Clause 9(1)(b) proposed that the provinces should bear the primary monitoring; national government should step in when the provinces failed. This would avoid overlapping monitoring functions that was likely to lead to unnecessary duplication and expense.

Mr Ogunronbi explained that what was proposed was not what the Constitution provided for.

Mr Makaseni said that if the Committee agreed with proposed amendment, the Committee would indirectly be amending the Constitution.

Mr Worth supported the proposed amendment, while the Chairperson, Mr Makhubela, Mr Mokgoro, and Ms Mabe objected.

On item number 6, the amendment proposed regarding the identified overlap between the Bill and the Municipality System was rejected.

Mr Ogunronbi, based on consultation with the Province, said that the proposal was not credible and he could not recommend it to be accepted.

Mr Makaseni said that the Bill adequately dealt with planning system and he did not see a need to amend the Bill.

Ms Isaac said that if the clause 9(1)(b) remained as it was, there would be no overlapping monitoring functions that could lead to unnecessary duplication and expense. The proposal was unnecessary.

The Committee unanimously rejected the proposal.

On item number 7, the Province suggested that Clause 45(2) would result in undue delays in the application procedure.

Mr Ogunronbi said that the possible fear raised was addressed in Clause 44. Amendment of the Clause should therefore be rejected.

Mr Makaseni and Ms Isaac concurred

The Committee unanimously rejected the amendment.

On item 8, the Province suggested the insertion of a general transitional Clause.

Mr Ogunronbi said that there was no danger that the inserted general transitional Clause sought to safeguard.

Mr Makaseni said that if there was any potential danger, this should be guarded against in terms of provincial law.

Ms Isaac objected to the proposed amendment.

Mr Worth supported the proposed amendment, while the Chairperson, Mr Makhubela, Mr Mokgoro, and Ms Mabe objected.

On Item 9, The Province suggested, with reference to Clause 22(2) that “site-specific circumstances” should be deleted.

Mr Ogunronbi said that this Clause was extensively debated on and was drafted in terms of the outcome of debate and consultation.

Mr Makaseni objected.

Ms Isaac indicated that the term “circumstances” was too broad and objected to amendment.

The Committee unanimously rejected the amendment.

On item 10: The Province sought clarity of the intention of Clause 28, specifically the word “rezoning”.

Mr Ogunronbi said that the Clause should remain as it was.

Mr Makaseni said that it was clear on the procedure to be followed.

Ms Isaac rejected it on the basis of the same reason.

The Chairperson requested the Committee and legal team to state whether they supported or reject the proposed amendments.

On the other items of amendment presented by the Province, Mr Worth supported items 11, 13, 15, 17 and 24.

Mr Ogunronbi, Mr Makaseni, and Ms Isaacs rejected all the proposed amendments.

The Chairperson, Mr Makhubela, Mr Mokgoro, and Ms Mabe objected.

The Chairperson requested the Department to answer in writing by the following day on all issues and concerns raised by provinces, and she requested SALGA to quickly read their concerns.

South African Local Government Association (SALGA) Presentation
Ms Margaret Murcott, SALGA Advisor: Economic Development and Planning, made representation on the Bill and indicated that some outstanding issues needed to be addressed before the Bill could be passed.

The Chairperson requested that those outstanding issues should be responded to in writing.

The meeting was adjourned.