On 18 June 2010, the Constitutional Court delivered judgment in an application by the City of Johannesburg Metropolitan Municipality (the City) for the confirmation of an order made by the Supreme Court of Appeal, declaring Chapters V and VI of the Development Facilitation Act 67 of 1995 (the Act) unconstitutional and thus invalid.  The City also sought leave to appeal against certain parts of the order of the Supreme Court of Appeal. This matter arose from a dispute between the City and the Gauteng Development Tribunal (the Tribunal), a provincial organ created by the Act. 

The Act empowers the Tribunal to approve applications for the rezoning of land and the establishment of townships, whereas the Town-Planning and Townships Ordinance 15 of 1986 empowers the City to make a determination on the same subject matter.  Aggrieved by this situation, the City instituted an application in the South Gauteng High Court, Johannesburg, challenging the constitutional validity of the Act and seeking a review of two of the Tribunal’s decisions.  The High Court dismissed the application and the City appealed to the Supreme Court of Appeal, which held that the relevant chapters of the Act were invalid and dismissed the appeal relating to the claims for review. The City appealed to the Constitutional Court.  The primary issue for determination was whether the Constitution empowers the municipal or the provincial sphere of government, or both, to exercise powers relating to the rezoning of land and the establishment of townships.

The Constitutional Court held that the Constitution envisages a degree of autonomy for the municipal sphere, in which municipalities exercise their original constitutional powers free from undue interference from the other spheres of government.  It was held that the Supreme Court of Appeal’s finding that “planning” in the context of municipal affairs has assumed a particular, well-established meaning which includes the zoning of land and the establishment of townships.  It was further held that the powers to consider and approve applications for the rezoning of land and the establishment of townships are elements of “municipal planning”, an exclusive municipal function assigned to municipalities by section 156(1) of the Constitution read with Part B of Schedule 4.  Consequently, Chapters V and VI of the Act were found to be constitutionally invalid as they assign exclusive municipal powers to organs of the provincial sphere of government.

In order to mitigate any disruptive effect that an order of invalidity might have on past and future developments, the Court suspended the order of invalidity for 24 months to allow Parliament to rectify the defects in the Act, or to pass new legislation.  Government then passed the Spatial Planning Land Use Management Bill (SPLUMB) which has been the subject of much debate since June 2011.

SAPOA’s circular relating to the latest developments and our stance in respect thereof can be found at www.sapoa.org.za