Appropriate internal appeal mechanisms for approval of building plans: exploring the gaps left by the Constitutional Court

Abstract

This article explores the gaps left by the Constitutional Court's jurisprudence in relation to what the appropriate internal appeal mechanism should be at the level of municipalities for the approval of building plans. This follows the unanimous judgment of the Constitutional Court in City of Johannesburg Metropolitan Municipality v Chairman of the National Building Regulations Review Board 2018 5 SA 1 (CC) in which the Court found section 9 of the National Building Regulations and Building Standards Act 103 of 1977 (NBR Act), subjecting municipal building decisions to appeal by a "Review Board" appointed by the Minister of Trade and Industry, to be inconsistent with the original constitutional powers of municipalities over planning and building regulations. We argue that although the ground for holding section 9 of the NBR Act unconstitutional is already deeply entrenched in the Court's planning jurisprudence, the judgment has left a whopping gap on where prospective/future appeals can be lodged and the nature of such an appeal mechanism, where municipal officials disapprove building plans in terms of section 7 of the NBR Act. It is submitted that the invalidation of section 9 by the Court has completely left it up to each individual municipality to decide on whether and how an internal appeal for the approval of building plans is to be pursued. After exploring the options available in terms of other local government legislation, we argue that the most appropriate way to close the gap left by the Court is for Parliament to enact an amendment to the NBR Act providing for an internal appeal mechanism that allows for a measure of coherence and uniformity across municipalities, and yet respects the autonomy of local government.