Constitutional court rules on development facilitation act

We have earlier reported on the woes of the Development Facilitation Act (Act 67 of 1995) (DFA) as planning tool, following decisions by the High Court and Supreme Court of Appeal. We have also reported that the decision of the latter court was referred to the Constitutional Court for ratification, since the constitutionality of an Act of Parliament could not be determined by a lesser court. Earlier this year the matter was heard by the highest court, but judgment was deferred.

On 18 June 2010 the Constitutional Court delivered judgment in the application by the City of Johannesburg Metro Municipality (CJMM) for the confirmation of an order made by the Supreme Court of Appeal, declaring Chapters V and VI of the DFA unconstitutional and thus invalid.

The Constitutional Court concurred with CJMM that the powers to rezone land and to approve the establishment of townships are components of “municipal planning”, a function assigned to municipalities by section 156(1) of the Constitution. In a unanimous judgment the Court held that the Constitution envisages a degree of autonomy for the municipal sphere. Herein municipalities can exercise their original constitutional powers, free from undue interference from the other spheres of government. It further held that since the said powers are elements of “municipal planning”, an exclusive municipal function, therefore Chapters V and VI of the DFA were indeed constitutionally invalid. The Court found that the DFA sought to wrongly assign exclusive (or parallel) powers to the provincial sphere of government in the person of the various Development Tribunals.

However the Court also recognised the argument by the South African Property Owners Association and the planning community that should the DFA be totally struck off the table, it would create a void in areas where there is no other planning tool available. It is mostly in the northern provinces of the old Transvaal, particularly in areas of the former homelands and so-called self governing areas where Ordinance 15 of 1986 never applied, where otherwise no alternative process will exist. Furthermore many rural municipalities simply have no capacity to apply the procedures of the Ordinance and they in fact welcome the use of the DFA for development of land. In view of this evidence the Court then suspended the order of invalidity for 24 months, to allow Parliament to rectify the defects in the Act, or to pass new legislation.

The situation as it stands now with the DFA is as follows:

1. All DFA applications which were duly submitted by 18 June 2010 will proceed to conclusion by the Tribunals;
2. In the areas of jurisdiction of CJMM and that of eThekwini Municipality (Greater Durban) the Tribunals are prohibited to accept new applications after 18 June 2010, since these authorities have proved that they are capable of exercising their constitutional powers.
3. Elsewhere new DFA application may still be submitted to Tribunals and be heard and finalised, on proviso that the Tribunals, in dealing with applications, adhere to municipalities’ local policies and Spatial Development Framework proposals.
4. Most provinces have since made progress with alternative legislation, in view of the stated purpose of the DFA that it was merely an interim measure. In this regard Gauteng will soon promulgate the Gauteng Development Planning Act, while KZN has already adopted a similar Act. Northwest Province has drafted an Act which is currently being considered for approval by the Legislature. When these alternative measures are being adopted, the use of the DFA will be phased out and will finally terminate on 18 June 2012.