A local government's executive authority in respect of "municipal planning"

Abstract

The Development Facilitation Act' came into operation on 22 December 1995 and it inter alia provides for Development Tribunals to be established in the respective Provinces to consider any land development application. The DFA did not, however, repeal the various provincial ordinances2 which applied in the respective former provinces. Thus, the Development Tribunals, as a provincial body and established in terms of a national act, are currently taking decisions on any land development application, whilst you also have municipalities who take decisions on land development applications in terms of the old provincial Ordinances still in operation. In other words, two decision making bodies from different spheres of government taking decisions on development applications in the same area of jurisdiction. Not all the Provinces established these Tribunals. However, the establishment of these Tribunals in those Provinces that did adopt such an approach and them taking decisions on any land development application, even if the land is situated within the jurisdiction of a municipality, has now lead to an intergovernmental dispute between such municipalities and the respective Provincial Governments. This is certainly the case in the Gauteng Province. The dispute stems from section 156 of the 1996 Constitution of the Republic of South Africa3 which states that a municipality has executive authority in respect of and has the right to administer the local government matters listed in parts B of schedules 4 and 5 to the Constitution. It is the functional areas of the powers and functions of provincial and local government that are listed in these schedules with part A confined to provincial government and part B to local government. Schedule 4 contains the functional areas of concurrent national and provincial legislative competence and schedule 5 the functional areas of exclusive provincial legislative competence. The problem arises in that these schedules list the functional areas without any detailed definitions of each functional area. There seems to be a considerable overlap between provincial and local government functional areas. This lack of clarity, in practice, creates confusion about who does what and who has authority over what. One of these functional areas listed in schedule 4 part B as a local government matter is "municipal planning". On the other hand schedule 4 part A lists "regional planning and development" as well as "urban and rural development" as functional areas. Because of the above mentioned overlap of the different functional areas, municipalities are arguing that it has the exclusive right to do "municipal planning" in its area of jurisdiction, in other words, the exclusive right to take decisions on all land development applications in its area of jurisdiction, whilst the respective Provincial Governments are arguing that it does not have such an exclusive right based on the fact that "urban and rural development" have been included as one of its functional areas. The Tribunals established in terms of the DFA are, therefore, taking decisions on any land development application submitted in terms of the DFA, even if the land is situated within the jurisdiction of a municipality, as it is of the view that such authority falls within the ambit of "urban and rural development" as one of its functional areas as a provincial body. This paper will endeavour to explain the confusion that currently exists around "municipal planning" on the one hand compared to "urban and rural development" on the other. It will also try to put a definition to "municipal planning" and then lastly it will analyse whether a local government's executive authority in respect of "municipal planning" is being compromised or impeded by national and/or provincial government. This will be done with specific reference to the DFA and the powers and functions set out in it and the Development Tribunals established in terms thereof, compared to the provisions of especially the Local Government: Municipal Systems Act, provisions of other relevant local government legislation relating to town-planning and the Constitution.