The potential impact of the Draft Preservation and Development of Agricultural Land Framework Bill on land use and planning laws

Abstract

The South African regulatory framework on spatial planning, land use, land use management and land development is set out in the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). All land use planning legislation has to be consistent with its provisions. The SLUMA designate a municipality as the authoriser of all land use planning applications in South Africa. On the other hand, the Subdivision of Agricultural Land Act 70 of 1970 (SALA) bestows such authority on the Minister responsible for agriculture. Recently the Department of Agriculture, Forestry and Fisheries published the Draft Preservation and Development of Agricultural Land Framework Bill (DAFF Draft Bill). The DAFF Draft Bill proposes to repeal SALA in whole. The DAFF Draft Bill proposes for an agricultural land regulatory mechanism or system that takes in the input of all the three spheres of government in the process of agricultural land use and planning authorisation. In particular, the study focus on the possible changes or alterations that the DAFF Draft Bill will introduce to the current South African land use and planning jurisprudence in respect of the regulation of agricultural land use and planning in the event that it is enacted in its current form. Based on the Constitutional Court's jurisprudence on the definition and scope of “municipal planning” and the substance of section 33(1) of SPLUMA, the study argues that the DAFF Draft Bill is susceptible to both statutory and constitutional challenges in so far as the local government exclusive constitutional municipal planning functional area is concerned. This study concludes by recommending that certain clauses of the DAFF Draft Bill be revised accordingly to reconcile with section 33(1) of SPLUMA and the constitutional imperative in respect of the functional area of municipal planning.