Inconsistencies in National and Provincial Legislation and their Impact on Municipal Planning Processes and Service Delivery

Abstract

The architects of apartheid deliberately used legislation and urban and regional planning to perpetuate segregation and inequalities within all spatial planning systems in South Africa. Now that South Africa knows better after the democratisation in 1994, it must decisively use legislation and registered regional planners to redress the imbalance of the past ensuring municipal planning is recognised as the core function with strategic intelligence to deal with land reform, spatial planning, land development, land use management, and service delivery issues. Municipal planning is highly regulated. The transition from apartheid to a constitution democracy in 1994 resulted in the formulation of the current Constitution of the Republic of South Africa and other pieces of legislation and policies. Although the formulation of pieces of legislation was intended to fast track development and to rectify the imbalances of the past in so far as spatial planning and land use management is concerned, in practice, there is a slow pace in spatial transformation. The transformative agenda of the democratic government seeks to build a capable state whereby issues of spatial planning, land use management, provision of housing, infrastructure, job creation, and improved access to basic services are at the heart of rectifying the ills created by the apartheid planning. While government passed legislation, such inadvertently created a situation whereby pre-1994 legislation existed parallel to post-1994 legislation. Even though some of the post-1994 legislation repealed few of the pre-1994 legislation, to date there are pre-1994 legislation that regulate and have an impact on municipal planning that are still applicable guiding how government addresses and processes land development applications. There are also challenges that have been created by the lack of comprehensive law reform on legislation framework regulating and impacting on municipal planning. These challenges include duplications, and some inconsistencies, in spatial planning and development requirements and processes. There are delays associated with satisfying authorisation requirements as provided for by multiple pieces of legislation. Such delays have deprived both the state and investors financial gains necessary to grow the economy, creating jobs and ultimately rendering much-needed services and housing provisions to communities. Lack of consistent law reform has created dysfunctionality and uncertainties in spatial planning, land development and land use management. The study was piloted in three metropolitan municipalities in Gauteng (namely City of Johannesburg, City of Tshwane and City of Ekurhuleni). Participants were selected in the three metropolitan municipalities and questioners as well as interviews were conducted. The participants identified the slow pace of structured land reform as a challenge that stalls development and economic growth of the country. As a result, this shows the three piloted metropolitan municipalities in Gauteng are not to be immune to the ramifications of land reform challenges whereby the disadvantaged black majority communities still do not have the benefit of land tenure security. Through the mixed-method research methodology, a qualitative approach was chosen to be appropriate in gaining insight on municipal planning employed by the three metropolitan municipalities. Furthermore, observation and cross-case analysis were used to understand and compare data collected from various sources. The findings indicated the need for a comprehensive law reform exercise to be undertaken, to assess pieces of legislation that needed to be repealed or harmonised. Where legislation provides similar authorisation processes, such processes can be aligned or integrated. Furthermore, the study indicated the need to have land reform undertaken as part of municipal planning as municipalities are the only sphere designed to have the intelligence to implement and have the advantage of being closer to the communities. Thus, municipal planning, specifically the spatial planning system, land use management system and land administration system will achieve land reform outcomes. The ‘rules of the game’ for formal land reform in terms of the amendment of section 25 of the Constitution for expropriation of land without compensation is in the process of formulation and will create further challenges adding to the existing inconsistencies within land use management in addressing the spatial planning realities (land use and spatial planning) and challenges of service delivery.