Author: Gary Moore

Date: 11 July 2018

The Spatial Planning and Land Use Management Act, 2013[1] states that it is a statute to[2] provide a framework for spatial planning and land-use management in the Republic.[3]

The object of the Act is[4] to provide for a uniform[5] system of spatial planning and land-use management for the Republic.[6]

A. The Act encroaches unnecessarily on provincial planning

Provincial planning is constitutionally an area of exclusive provincial competence.[7] The Constitution authorises Parliament to legislate on matters falling in areas of exclusive provincial legislative competence, when necessary to maintain “economic unity”.[8]

The Act asserts that it is necessary to establish a uniform[9] system of spatial planning and land-use management throughout the Republic “to maintain economic unity”.[10] Yet it cannot properly be said that[11] that a uniform Republic-wide spatial-planning and land-use management system is “necessary” to maintain economic unity.[12]

If rationalising existing spatial-planning and land-use-management laws is deemed desirable,[13] it does not follow that it must be implemented at national level. Spatial planning and land-use management affect particular areas and locales, and have no national dimension.

Hence the Act, in purporting to encroach on the exclusive provincial legislative power of provincial planning, does not conform to the Constitution.[14] Under the Rule of Law, any exercise of public power, including legislative action, is subject to constitutional review.[15]

B. The provision that a Tribunal may depart from a municipal spatial-development framework, if “site-specific circumstances” justify it, is unduly vague

The Act states that a Municipal Planning Tribunal[16] required to make a land-development decision may depart from the municipality’s spatial-development framework’s provisions, if “site-specific” circumstances justify it.[17]

But every site has its specific circumstances. That is why the Act requires official approval[18] for development[19] of any piece of land.[20] A Tribunal may, pursuant to a land-development application, amend a land-use scheme or change the form or function of land.[21]

In considering an application, a Tribunal must[22] take into account certain factors that can be called site-specific circumstances, being facts and circumstances “relevant to the application” and the rights and obligations of “those affected”.[23]

The provision that the Tribunal may depart from the spatial-development framework if justified by site-specific circumstances is unduly vague, in giving no guidance about when a departure is permissible and when it is not.

The Rule of Law requires a law to[24] be sufficiently clear and predictable that a course of action can be based on it.[25]

C. The provision that the Minister may exempt from the Act any piece of land or area “in the public interest” confers an unduly unfettered discretion

The Act states that Minister[26] may[27] “in the public interest” exempt any specified piece of land or area from one or all the provisions of the Act.[28]

The “public” is a term of uncertain import,[29] and must be construed in its context.[30] An action can be “in the public interest” even if it benefits only a portion of the public.[31]

In a statute about spatial planning and land-use management, the phrase “the public interest” is capable of narrow or broad interpretation. It could mean the interests of only those most directly affected by whether a particular site or area (small or large), is exempted from provisions of the Act. Or it could mean the interests of a some larger section, class or portion of the public who may benefit if that land is exempted.

It is concluded that the provision which authorises the Minister to exempt any land or area from the Act “in the public interest” violates the Rule of Law by being unduly flexible and vague, and in consequence by giving the Minister unduly wide discretionary authority.

The Rule of Law excludes wide discretionary authority by the government.[32] In a society governed by the Rule of Law, laws should be sufficiently defined, and government discretion should be sufficiently limited, to ensure that the law is not applied arbitrarily.[33]

 

[1] Spatial Planning and Land Use Management Act 16 of 2013 (hereinafter the “Act”).

[2] Inter alia.

[3] And promote greater consistency in application procedures and decision-making by authorities responsible for land-use decisions and development applications Act, Long title.

[4] Inter alia.

[5] And effective and comprehensive.

[6] The Act observes that multiple national, provincial and former-homeland laws create fragmentation and duplication; some urban and rural areas do not have spatial-planning and land-use-management laws; various laws governing land use give rise to uncertainty about the status of municipal spatial-planning and land-use-management systems; and informal and traditional land-use-development processes are poorly integrated into formal systems of spatial planning and land-use management. Act, preamble.

[7] Constitution s 104(1)(b)(ii) read with Sched 5 part A.

(However, regional planning and development and urban and rural development are areas of concurrent national and provincial legislative competence.)

[8] Inter alia. Constitution s 44(2)(b).

[9] And comprehensive.

[10] Act, Preamble.

[11] Despite the Act’s assertion to that effect.

[12] Thus, national legislation purporting to regulate retail sales of liquor by retailers or manufacturers whose operations were essentially provincial goes further than necessary. The exclusive provincial competences relate primarily to activities that take place within the province or can be regulated in a manner that has a direct effect upon its inhabitants alone. Ex parte President of the Republic of South Africa In re: Constitutionality of the Liquor Bill 2000 (1) BCLR 1 (CC) esp pars [72], [75], [78], [80], [83], [84], [85].

[13] The Act observes that multiple national, provincial and former-homeland laws create fragmentation and duplication; some urban and rural areas do not have spatial-planning and land-use-management laws; various laws governing land use give rise to uncertainty about the status of municipal spatial-planning and land-use-management systems; and informal and traditional land-use-development processes are poorly integrated into formal systems of spatial planning and land-use management. Act, preamble.

[14] A law inconsistent with the Constitution is liable to be held invalid to that extent. Constitution s 172(1)(a).

[15] Democratic Alliance v Acting National DPP [2012] 2 All SA 345 (SCA) pars [27]–[29], [31].

[16] Or other authority required or mandated to make a land-development decision.

[17] Act s 22(2).

[18] Anyone who uses land contrary to a land-use scheme or alters the form and function of land without approval commits an offence. Act s 58(1)(b) and (c) read with s 26(1)(a) and (2)(a) and (b).

[19] A change of use of land including township establishment, subdivision or consolidation of land, deviation from the use permitted i.t.o. a land-use scheme, or erection of buildings or structures on land.

[20] “Land” means any erf, farm portion or agricultural holding, and includes any improvement or building on the land and any real right in land. Act s 1(1) sv “land”.

[21] Act s 41 (change with approval of Municipal Planning Tribunal) read with s 1(1) svv “land development”.

[22] Inter alia.

[23] Act s 42(1)(c)(iii) and (iv).

[24] So far as possible.

[25] Lord Bingham, “The Rule of Law” (sixth Sir David Williams lecture, Centre for Public Law, Univ of Cambridge, 16 Nov 2006) first sub-rule.

[26] On request from a province or municipality.

[27] By notice in the Gazette.

[28] And substitute alternative provisions “consistent with this Act” to apply in the case. Act s 55(1)(a)(i) and (ii).

The exemption may be made subject to such conditions, inclusive of directives relevant to the performance of any function by any organ of state or competent authority within a specified time limit as the Minister, after consultation with the said organ of state or competent authority, considers appropriate: s 55(2).

[29] Jennings v Stephens 1936 (1) All ER 409 (CA) at 412 per Lord Wright MR.

[30] And with common sense. President of the Republic of South Arica and others v South African Rugby Football Union and others 1999 (10) BCLR 1059 (CC) par [175] by the court (Chaskalson P, Langa DP, Ackermann, Goldstone, Kriegler, Madala, Mokgoro, O’Regan, Sachs and Yacoob JJ).

[31] Clinical Centre (Pty) Ltd v Holdgates Motor Co (Pty) Ltd 1948 (4) SA 480 (W) at 488 per Roper J.

[32] Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (8th ed, 1926, Macmillan & Co) pp 198–9; C Ling, “Martin Krygier’s Contribution to the Rule of Law”, The Western Australian Jurist vol 4 [2013] 211 216.

[33] Robert Stein, “Rule of Law: What Does It Mean?” 18 Minn. J. Int’l L. 293 (2009) at 302.

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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