Land Use Management Bill [B27-2008]: public hearings

Agriculture, Land Reform and Rural Development

29 July 2008
Chairperson: Mr R Mohlaloga (ANC)
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Meeting Summary

The Committee heard submissions on the Land Use Planning Bill (the Bill).

City of Cape Town firstly complained that the consultation on this Bill was not sufficient, that the Bill was not published on the Department’s website and only was received two months after publication in the Government Gazette. Quite apart from that issue, the City was concerned that the Bill also contained provisions that would infringe on the constitutional status of institutions, powers and functions of local government and stressed that local government must not be seen as subordinate, but distinctive. It was concerned about the Bill’s centralisation of powers to determine norms and standards to the Minister, and suggested that the Bill should be re-drafted. In addition queries were raised around the establishment of the National Land Use Regulator and appointments to this office. Members raised a number of questions around the consultation process, asked what time frames were deemed appropriate, and asked for written suggested amendments.

The Community Law Centre, University of the Western Cape, also raised some constitutional issues, saying that there was an overlap of functions and the Bill should provide better definitions for the planning and land use management and clarify the confusion in the allocation of powers. It should clarify the roles of local and district municipalities and define the jurisdiction of the National Land Use Regulator. Clause 73 was seen as overstepping the powers of intervention provided to national government, and clause 78(4) was also criticised as overstepping the support abilities.  Members asked for proposed amendments, asked about the involvement of the Community Law Centre in this field, and for comments upon judicial interpretation and the suggestion that the provincial growth and development strategy should have legal status.

The FW de Klerk Foundation supported the concept of more equitable access to land, but felt that the current Bill did not reach its objectives. It was suggested that economic growth should encompass the protection of the environment. The term “public interest” was not clearly defined. Clause 5 should be amended to encompass inputs of Ministers of Trade and Industry, Finance, Water Affairs and Forestry, Energy and Minerals, and the Minister of Environmental Affairs. The Foundation welcomed the devolution of powers to municipal level, but suggested some further provisions in regard to the land being sufficient to provide for a sustainable agricultural entity. Questions from Members related to the extent of consultation with the Department, the statistics being used, the suggested definition of public interest and the membership of the Municipal Land Use Committee.

The South African National Biodiversity Institute welcomed references to sustainability and the need for protection of natural and environmental resources. It suggested that the word “environmental” be highlighted as a substantial consideration. It raised concerns with clause 78 of the Bill and the transitional provisions. Members agreed that the issue of forward planning should be included in the next draft, and called for further clarity on issues of spatial planning.

The SA Geomatics Institute was concerned by the exclusion of the private sector from workshops, with government departments, and claimed that surveyors and role players were not consulted. He suggested that private sector members should sit on Land Use Management Committees as they had expertise. He was concerned that many municipalities did not abide by time frames and suggested a need to extend time periods. Members questioned his suggestions, which were based on Eastern Cape experience

Meeting report

Land Use Planning Bill (the Bill): Public Hearings
City Of Cape Town Submission

Ms Fiona Ogle, City Planning Directorate, City of Cape Town (CCT), said that the Bill contained provisions which, if adopted would infringe on the constitutional status of institutions, powers and functions of the local government. She said that Local Government was not a subordinate tier of government. It was one of the three spheres of government that, in terms of Chapter 3 of the Constitution, was described as distinctive, interdependent and interrelated.

She cited many examples that emphasised that local government was not just another appendage of the National Government. She felt that the Bill centralised powers to determine norms and standards to the Minister. The City of Cape Town believed that the Bill should be sent back to the drafters for revision. Ms Ogle said that the establishment of the National Land Use Regulator, and the appointment to this Office in the manner proposed by the Bill was unconstitutional.

Discussion
The Chairperson asked whether consultations had taken place and the reasons that the City Of Cape Town had not been consulted.

Mr Sunday Ogunronbi: Director: Land Planning and Property Law, Department of Land Affairs replied that the Department (DLA) had consulted. He admitted that the consultations might not have been inclusive enough.

Dr A Van Niekerk (DA) asked about the kind of consultation that the City Of Cape Town had expected if they had not been consulted.

Ms Ogle replied that the City Of Cape Town had not been consulted on the current version of the Bill, but that consultation had taken the form of a newspaper notice in April, to which the CCT had responded.

Mr M Dlali (ANC) cautioned the Members not to focus on the consultation issue, saying that the focus should rather be on substantive issues. He asked whether the City Of Cape Town was part of South African Local Government Association (SALGA), and whether it had members in that Association. He enquired about the reasons why CCT was claiming that there was not sufficient time, seeing that there had been 30 days to consider the Bill and come with suggested amendments. He wanted the reasons that the Portfolio Committee did not discuss the Bill. He wanted to know whether the City Of Cape Town had asked for an extension so that it could go through the Bill extensively. He then asked for clarification on the comments around Clause 7(2)

Ms Fiona Stewart, Legal Consultant to CCT, Fairbridges Attorneys, replied that the CCT was a member of SALGA but the Constitution entitled each and every municipality to comment on draft legislation. She said that the City was officially on recess when the notice was published, hence the thirty days provided was not enough for its portfolio committee to go through the Bill. The Government Gazette had published the Bill in April, but by that stage it was the certified copy being published, not merely a draft.

Ms Ogle noted that the City had only received the Bill on 17 July 2008.

Mr Ogunronbi said that Parliamentary notices were done according to certain rules.

Ms
Phumelele Ngema, Senior State Law Adviser, DLA, replied that Bills would be published whether they had been certified or not.

The Chairperson asked whether Bills were made accessible to the public before they were published.

Ms Ngema replied that Bills were published before they were made available to Committee Clerks, so that the Departments could take into account public comments.

Ms Stewart said that Section 154 of the Constitution stipulated that draft legislation that was primarily concerned with municipalities, should be made available to those municipalities before it could be introduced to parliament.

Ms Ogle added that the City Of Cape Town had tried to get hold of the Bill from the Department, to no avail, and it was not even available on the Department’s website. Cape Town officials had to wait for the Bill to be published before having sight of it.

The Chairperson enquired about the 2002 consultation.

Ms Stewart replied that the 2002 Bill was completely different from the version of the Bill that appeared in 2008.

Mr Ogunronbi said that the Department had complied with Rule 241 of the Constitution, which stated that consultation should be done before the Bill was published by parliament. Consultation was not done in a rigid and technical manner.

Mr A Botha (ANC) cautioned the meeting about finger-pointing and he said that the Members were not experts on town planning. He suggested that that they should move from the question of consultation and leave the technicalities for later debate. He wanted to know whether consultation was to the benefit of the country or not. He then emphasised the importance of the Bill. He asked the Cape Town officials for their suggested amendments.

Ms Stewart suggested that the Department could address municipalities at a central point like Pretoria, alternatively hold workshops with municipalities.

Mr Botha asked the Cape Town officials what timeframes they were looking at.

Mr Dlali said the hearings were not meant for “politicking”. He felt that the City of Cape Town should rather concentrate on presenting the problematic clauses and their suggested amendments.

Ms Stewart replied that three months would be enough time for cross-referencing to the 2001 Bill.

Ms C Nkuna (ANC) asked for clarity on the unlimited powers of the Minister.

Mr Van Niekerk said that there would be a problem if the people on the ground were not properly consulted.

Mr Dlali said that Cape Town officials should have been prepared long before and should not complain. The officials should rather raise the problematic areas of the Bill because they were “getting a third bite of the cherry”. He said that it was clear that the delegation had not prepared for giving their full responses.

Ms Stewart then commented on the provisions of the Bill. She maintained that Clause72 gave too much powers to the Minister to make regulations to set norms and standards. She suggested that the Department must compare the 2002 and 2008 versions of the Bill. This clause was regarded as contrary to Section 44 of the Constitution.

Ms Ngema said that the Bill attempted to set a legal framework that dealt with land use. Legislation on norms and standards was not open-ended in regard to Ministerial powers.

Mr Ogunronbi said that Bill did not give overall unconstitutional powers to the Minister, and because norms and standards changed they were not included in the Bill. Whilst Parliament made the laws, the Minister would make norms and standards. He added that Clause 5 gave parameters on how far the powers of the Minister could go.

Mr Dlali asked for clarity on the powers of the Minister regarding norms and standards. He reminded the City Of Cape Town that South Africa was a unitary state rather than a federal state. Local authorities should not do anything that would be in conflict with other municipalities. The role of the national Government was crucial on such issues. He asked City of Cape Town to present their suggested amendments. In particular he queried what was seen to be the problem with the Land Use regulator. Mr Dlali asked the role of the Provincial Government in relation to the Bill

Mr Botha cautioned Members to tread carefully because municipalities were elected by the people, and thus had every right to raise their concerns.

Community Law Centre University Of The Western Cape Submission
Prof Jaap de Visser, University of Western Cape, said that the Constitution had identified local government as best situated to determine and drive democratic development. He then noted few problematic areas of the Bill.

Firstly, he noted that there was an overlap on functions allocated under the Constitution. The Bill should provide definitions for the planning and land use management related functions in Schedules 4 and 5. This would clarify the confusion regarding the allocation of powers between different spheres of government.

Secondly, he submitted that the Bill should clarify the roles between local and district municipalities, because the Constitution does not differentiate between the two. He was of the view that any attempt to interfere with local governments’ exercise of “ municipal planning” would be unconstitutional.

Prof de Visser said that the jurisdiction of the National Land Use Regulator was not clearly defined.

He submitted also that the National and Provincial powers over municipal planning were unconstitutional. He felt that clause 73 would overstep the power of intervention provided to national government and was therefore unconstitutional.

Prof de Visser then submitted that the clause 78 (4) overstepped the powers provided to national and provincial governments to support municipalities in exercising the “municipal planning” function, and was similarly therefore unconstitutional.

Discussion
Mr Van Niekerk asked Prof De Visser to present his recommended amendment rather than merely pointing at loopholes.

Mr Botha asked whether the Community Law Centre had the capacity to help with inputs.

Prof de Visser replied that the Community Law Centre could only help at local government level, because that was their speciality.

Mr Van Niekerk asked when the Community Law Centre had started to be involved with the Bill.

Prof de Visser replied that it had been involved from the time that it was introduced as a White Paper.

Mr Dlali enquired about the reason that the Centre would rely on the courts for rigid interpretation. The courts were supposed to interpret legislation, rather than advise legislators

Prof de Visser said that there was no such reliance, because the courts had limited capacity and did not always have a good track record, especially the lower courts. The functional role of the Constitution was related to definition. He added that courts could provide guidance, but that guidance would not bind Parliament.

Ms Ntuli asked for clarity on the comments on page 4, in relation to the Demarcation Board’s definition and asked why the courts should scrutinise legislation. She asked for clarity also on the last paragraph listed on page 6 and the second last paragraph on page 7.

The Chairperson asked for clarity on the Provincial and Development Growth Strategy (PGDS).

Mr Ogunronbi replied that the Provincial Growth and Development Strategy (PGDS) had no legal standing although most Provinces were applying the PGDS as a norm.

Prof de Visser said that PGDS should have a legal status and should be clearly defined. He added that Linking PGDS to provincial interests was far too wide. He likened PGDS to National Spatial Development because it was not legally defined.

FW De Klerk Foundation for Constitutional Rights Submission
Adv Nichola De Havilland, Deputy Director said that the de Klerk Foundation supported the concept of more equitable access to land and natural resources. Her concern was that the Bill did not address the promotion, efficient use and management of the Land. Environmental concerns were clearly catered for.

Adv De Havilland said that the economic growth should encompass the protection of the environment. She felt that the term “public interest” was not clearly defined. Clause 5 prescribed that the Minister should set norms and standards. This clause should be amended to encompass inputs of Ministers of Trade and Industry, Finance, Water Affairs and Forestry, Energy and Minerals, and the Minister of Environmental Affairs.

The Foundation supported the devolution of powers to municipal level. It welcomed the application of Section 25 of the Constitution in Clause 35. She suggested that where land use was altered to agricultural use, the Bill should specifically provide that the extent of land must be sufficient to provide for a sustainable and viable agricultural entity.

Discussion
The Chairperson said that the bulk of the Foundation’s submission centred on agricultural land use.

Mr Ogunronbi asked whether the Foundation had consulted with the Department of Agriculture on land use by municipalities.

Adv Dirk Du Toit, Deputy Minister of Agriculture, cautioned Adv Havilland to use statistics that were reliable, and cite where they emanated. Sometimes people used statistics that were alarmist.

Adv de Havilland replied that it was a reality that food security was a threat, irrespective of where the statistics came from.

Ms Nkuna asked for clarity on the definition of “public interest” and the need for qualified members of the Municipal Land Use Committee.

Adv de Havilland replied that qualification was not the only prerequisite, but that experience counted more. The majority of the Land Use Committee should have a combination of qualifications and experience.

Ms Ntuli suggested that members of the Land Use Committee should be trained on required skills.

Adv de Havilland said that she would welcome the training of the Land Use Committee members.

Mr Dlali asked for clarity on the inclusion of five Ministries in the determination of norms and standards, and about the pace of land restitution.

Adv de Havilland replied that all five Ministries had an impact on land use, hence the need for consultation. She said that the bulk of land was still in the hands of a white minority. It would be impossible to achieve the needs for which this Bill was intended without wide consultation and involvement. 

Mr Ogunronbi said that the Subdivision of the Agricultural Land Act of 1970 came into effect when all the land that fell outside municipal boundaries was regarded as agricultural land. With the advent of the “wall to wall” municipalities, land use schemes were used to administer what was formerly regarded as agricultural land.

South African National Biodiversity Institute (SANBI) Submission
Mr Jeff Manuels, representative for SANBI,  said that SANBI was an advisory and consultative body on matters relating to biodiversity. He said that SANBI welcomed the reference to the principles of sustainability and in particular agreed with the need for protection of natural and environmental resources. The Biodiversity Act also provided for publishing of bio-regional plans that highlighted critical biodiversity areas, where further loss of natural habitat should be avoided.

SANBI strongly recommended the inclusion of the word “environmental” into the definition clause so that it read, in so that matters could be considered if they were prejudicial to the economic, environmental, health or security interests of one or more provinces or the country as a whole.

Mr Manuels added that SANBI was also concerned with Clause 78 of the Bill, which dealt with transitional Provisions. It felt that land would be cleared for development before a land use scheme was in place, and that it would result in inappropriate loss of natural habitat.

Discussion
Mr Ogunronbi agreed that the issue of forward planning had been omitted, and said that the drafters would include this issue in the next version of the Bill.

Mr Botha (DA) asked for clarity on the comments on spatial planning.

Mr Manuels replied that different ministries played a critical role in Biodiversity planning. He added that SANBI needed an organogram that specified which sphere of government was responsible for what planning.

Mr Ogunronbi said that environmental considerations would always be taken care of.

Deputy Minister Du Toit noted that this Bill would not supersede any other Bill, but was meant to work with other Bills that impacted on land use.

South African Geomatics Institute Submission
Mr Peter Sulter, Chairperson, SA Geomatics Institute said that he was deeply concerned by the exclusion of the private sector from workshops that were held with government departments. Regional and Town planners were consulted but surveyors and other role players were not consulted.

He recommended that members of the private sector should be invited to sit in the Land Use Management Committee. Their inclusion would allow for wider scope of ideas. Another concern was the fact that smaller municipalities had no expertise to deal with complex developmental issues. The inclusion of the private sector would enable the municipal officials to learn from the formers’ expertise. He further raised a concern that municipalities did not stick to the specified time frames as published in the Land Use Planning Ordinance 15 of the 1985.

Discussion
Mr Dlali (ANC) and Mr Botha (DA) asked what was wrong with Ordinance 15 of 1985. Mr Dlali said that the private sector would be part of the Land Use Committees.

Mr Sulter said that Ordinance 15 needed to be overhauled so as to be in touch with reality. Municipalities did not stick to timeframes specified. He then suggested that the private sector could nominate Land Committee Members with voting powers.

The Chairperson cautioned members not to set precedents, because it would lead to traditional leaders and farmers also asking for voting powers.

Mr Ogunronbi said that the Bill was not specific as to which groupings should sit in Land Use Committees.

Mr Dlali said that he was concerned as to why Mr Sulter suggested a timeframe of nine months instead of three months for requests to be approved.

Mr Sulter said that he wished that Mr Dlali could be deployed to the Eastern Cape if he thought nine months was too long. He cited examples of requests that have been waiting for approval for years. He even said that if Mr Dlali could make the Eastern Cape Government speed things up, then he was willing to fly him to the Eastern Cape and thank him with a free holiday to the Shamwari game lodge. He said sometimes a letter of acknowledgement could take up to six months to be sent, from an office only three blocks away.

The meeting was adjourned.

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