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CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 117/13

In the matter between:

MINISTER OF LOCAL GOVERNMENT,

ENVIRONMENTAL AFFAIRS AND

DEVELOPMENT PLANNING, WESTERN CAPE..................................................Applicant

and

THE HABITAT COUNCIL...............................................................................First Respondent

EVANGELICAL LUTHERAN CHURCH,

STRAND STREET........................................................................................Second Respondent

CITY OF CAPE TOWN..................................................................................Third Respondent

TRUSTEES FOR THE TIME BEING

OF THE GERA INVESTMENT TRUST.................................Fourth to Seventh Respondents

and

CITY OF JOHANNESBURG

METROPOLITAN MUNICIPALITY...............................................................Amicus Curiae

And in the matter between:

MINISTER OF LOCAL GOVERNMENT,

ENVIRONMENTAL AFFAIRS AND

DEVELOPMENT PLANNING, WESTERN CAPE.............................................. Applicant

and

CITY OF CAPE TOWN................................................................................First Respondent

GORDONIA MOUNT PROPERTIES (PTY) LTD................................Second Respondent

GORDON’S BAY RATEPAYERS ASSOCIATION................................. Third Respondent

and

CITY OF JOHANNESBURG

METROPOLITAN MUNICIPALITY..................................................... Amicus Curiae

Neutral citation: Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v The Habitat Council and Others; Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v City of Cape Town and Others [2014] ZACC 9

Coram: Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Majiedt AJ, Van der Westhuizen J and Zondo J

Heard on: 10 February 2014

Decided on: 4 April 2014

Summary: Land Use Planning Ordinance 15 of 1985 – constitutionality of section 44 – provision is unconstitutional

Local government competences – provincial government competences – section 155 of the Constitution – all zoning and subdivision decisions, no matter how big, lie within the competence of municipalities

ORDER

On application for confirmation of an order of constitutional invalidity granted by the Western Cape High Court, Cape Town (Davis J):

1. Paragraph 1 of the order of the Western Cape High Court, Cape Town, declaring section 44 of the Land Use Planning Ordinance 15 of 1985 unconstitutional and invalid, is confirmed.

2. The declaration of invalidity is not retrospective and does not apply to appeals pending in terms of section 44.

3. Paragraphs 2 to 4 of the High Court’s order are not confirmed.

JUDGMENT

CAMERON J (Moseneke ACJ, Skweyiya ADCJ, Dambuza AJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Majiedt AJ, Van der Westhuizen J and Zondo J concurring):

Introduction

[1] This is an application for confirmation of an order of the Western Cape High Court, Cape Town (High Court) declaring section 44 of the Land Use Planning Ordinance[1] (LUPO) unconstitutional and invalid. The section gives the Western Cape provincial government (Province) the power to decide appeals against municipalities’ planning decisions and to replace them with its own. The question is whether direct provincial intervention in particular municipal land-use decisions is compatible with the Constitution’s allocation of functions between local and provincial government. This Court recently raised but did not decide this issue in Lagoonbay.[2]  It must now be decided.

Factual background

[2] The application arises from two planning decisions. In the first, Gordonia Mount Properties (Pty) Ltd sought approval from the local municipality, the City of Cape Town (City), to develop a residential estate on the slopes above Gordon’s Bay. When the City failed to process its application timeously, the developer appealed to the Minister of Local Government, Environmental Affairs and Development Planning of the Western Cape (Provincial Minister) in terms of section 44(1)(d) of LUPO.[3] The Provincial Minister upheld the appeal, granting planning approval and permitting the property’s rezoning and subdivision in terms of sections 16 and 25 of LUPO.[4]

[3] In the second, the Gera Investment Trust sought to redevelop a building of historical significance in the Cape Town city centre. The City’s special consent was required in terms of the applicable zoning scheme regulations, because the property fell into an “urban conservation area”.[5]  The City considered the proposed development and, faced with objections from the Habitat Council,[6] refused to grant special consent. The Trust appealed in terms of section 44 to the Provincial Minister, who upheld the appeal. However, recognising that the City had a role to play in guiding the development, he gave it an opportunity to impose conditions on his approval. The City was slow in finalising the conditions, causing the Provincial Minister to impose conditions of his own in terms of section 42(1) of LUPO.[7]

In the High Court

[4] The City, unhappy with the Provincial Minister’s intervention in the Gordonia matter, instituted proceedings in the High Court against the Province for an order declaring section 44 of LUPO unconstitutional and invalid.  And the Habitat Council, aggrieved by the Provincial Minister’s decision to permit the redevelopment of the historical site, instituted proceedings in the same Court seeking the same relief. The two matters were consolidated.[8] Invalidating section 44 of LUPO would mean that the Provincial Minister’s decisions in both matters would fall to be set aside.

[5] The Provincial Minister conceded that section 44 of LUPO is unconstitutional. The High Court concluded that the concession was correctly made, finding that the section is “manifestly inconsistent with the Constitution to the extent that it not only permits appeals to the province against every decision made by a municipality in terms of LUPO, but also because it allows [the Provincial Minister] to replace every decision with his own decision”. This, it said, was clearly at odds with the Constitution’s conferral upon municipalities of authority over “municipal planning”.[9] The High Court accordingly granted an order declaring section 44 of LUPO unconstitutional and invalid.

[6] But it did not follow, in the High Court’s view, that the Provincial Minister has no constitutionally permissible appellate powers over municipal planning decisions. This was for two reasons. The first is the potential for overlap between municipalities’ planning competence and three pertinent provincial competences, namely “regional planning and development”, “urban and rural development” and “provincial planning”.[10] The second is the “oversight” provinces are constitutionally enjoined to exercise over municipalities.[11] The High Court reasoned that appeals to the Province are legitimate to the extent that they engage the Province’s overlapping competences or are necessary for the Province to exercise its powers of oversight. In the former case, the Province may legitimately substitute a municipality’s decision with its own. In the latter, it may not. All that it may do is set the decision aside, giving reasons, and invite the municipality to reconsider the application. The High Court crafted its interim order in accordance with this approach.

[7] The High Court suspended its declaration of invalidity for 24 months to give the Province an opportunity to enact a new regime.  In the interim, it adopted an extensive reading in.  This keeps the Provincial Minister’s appellate powers alive to the extent that they are, in the High Court’s view, constitutionally permissible.[12]  To avoid the chaos that would otherwise result, it limited the retrospective effect of its order so that it would apply solely to appeals not yet finally determined.  In their case, the provisions of LUPO as read in under the Court’s order applied.[13]  In all these respects, the High Court was confirming the draft order to which the parties had agreed.

This Court

[8] Before this Court, the Provincial Minister urged us to confirm the High Court’s order in its entirety. None of the respondents appeared. However, the City of Johannesburg Metropolitan Municipality (City of Johannesburg) was admitted as a friend of the court (amicus curiae). Although LUPO, a Cape Ordinance, does not apply to the City of Johannesburg, it has an interest in this Court’s interpretation of the Constitution’s division of functional competences, since this will apply throughout the country.

[9] The City of Johannesburg’s stance was that provinces should not be allowed to intervene in functions that the Constitution reserves for municipalities. This would be in direct conflict with this Court’s jurisprudence. It contended that neither the provinces’ planning competences nor their powers of oversight entitle them to intervene at the level of individual municipal decisions. The provinces’ powers are exercised at a different level, it argued, through separate statutory mechanisms. These include the adoption of spatial development frameworks, which guide municipalities in their decision-making, and consultation during national government’s establishment of minimum standards.[14] There is therefore no justification for a provincial power to overturn municipalities’ land-use decisions.

Issues

[10] The questions are these:

(a) Are the provincial appellate powers in LUPO constitutionally invalid?

(b) If so, what is the appropriate remedy?

Constitutional validity of section 44 of LUPO

[11] As he had done in the High Court, the Provincial Minister conceded before us that section 44 of LUPO is unconstitutional. That concession was correctly made.  As Moseneke J stated in Robertson—

“[t]he Constitution has moved away from a hierarchical division of governmental power and has ushered in a new vision of government in which the sphere of local government is interdependent, ‘inviolable and possesses the constitutional latitude within which to define and express its unique character’ subject to constraints permissible under our Constitution.  A municipality under the Constitution is not a mere creature of statute, otherwise moribund, save if imbued with power by provincial or national legislation.  A municipality enjoys ‘original’ and constitutionally entrenched powers, functions, rights and duties that may be qualified or constrained by law and only to the extent the Constitution permits.”[15]  (Footnotes omitted.)

[12] That constitutional vision of robust municipal powers has been expanded in the jurisprudence of this Court, and succinctly summarised by Mhlantla AJ in Lagoonbay:

“This Court’s jurisprudence quite clearly establishes that: (a) barring exceptional circumstances, national and provincial spheres are not entitled to usurp the functions of local government; (b) the constitutional vision of autonomous spheres of government must be preserved; (c) while the Constitution confers planning responsibilities on each of the spheres of government, those are different planning responsibilities, based on ‘what is appropriate to each sphere’; (d) ‘“planning” in the context of municipal affairs is a term which has assumed a particular, well established meaning which includes the zoning of land and the establishment of townships’ (emphasis added); and (e) the provincial competence for ‘urban and rural development’ is not wide enough to include powers that form part of ‘municipal planning’.”[16]  (Footnotes omitted.)

[13] This Court in Lagoonbay concluded, without deciding, that “[a]t the very least there is therefore a strong case” for holding that it is constitutionally impermissible for the Province to refuse rezoning and subdivision applications under LUPO.[17]  That strong case must be given effect here.  Section 44 of LUPO does not withstand constitutional scrutiny.  This is for all the reasons the Lagoonbay synopsis sets out.  The provincial appellate capability impermissibly usurps the power of local authorities to manage “municipal planning”,[18] intrudes on the autonomous sphere of authority the Constitution accords to municipalities, and fails to recognise the distinctiveness of the municipal sphere.  This is because, as Jafta J said in Gauteng Development Tribunal, the planning competence that the Constitution ascribes to municipalities “includes the zoning of land and the establishment of townships”.[19]  So the Provincial Minister was correct to concede that section 44’s general appellate power is unconstitutional.  Municipalities are responsible for zoning and subdivision decisions, and provinces are not.

[14] This makes sense, given that municipalities are best suited to make those decisions.[20] Municipalities face citizens insistent on delivery of governmental services, since they are the frontiers of service delivery.  It is appropriate that they should be responsible for zoning and subdivision.  For these entail localised decisions, and should be based on information that is readily accessible to municipalities.  The decision-maker must consider whether services – that are provided primarily by municipalities – will be available for the proposed development. And it must consider matters like building density and wall heights. These are best left for municipal determination.

[15] So section 44 of LUPO, which allows the Province to interfere in all municipal land-use decisions and substitute its decisions for those of the municipality, is clearly unconstitutional and invalid.  But that leaves a question. Are there any circumstances in which a province may permissibly hear appeals against a municipality’s land-use decisions? The High Court, holding that there are, adopted a reading in to preserve some appellate powers.

[16] The first broad circumstance the High Court identified is where the development that is the subject of the appeal engages the Province’s competences. In his original written submissions, the Provincial Minister contended that the High Court’s reading in was fully constitutionally compliant.  But, after Lagoonbay was handed down and the City of Johannesburg filed its submissions, the Provincial Minister acknowledged that his position had “evolved”. In further written submissions, he conceded that the portion of the High Court’s reading in[21] that seeks warrant in the Province’s overlapping competences is not constitutionally compliant. This is because the reading in envisages a “full-blown appellate function” for the Province in relation to land-use decisions that, in terms of the Constitution, must be decided by municipalities alone.

[17] Nevertheless, the Provincial Minister urged this Court to confirm the High Court’s reading in.  It should, he said, be tolerated as an interim mechanism.  Taking up a point from the City of Johannesburg, he reasoned that there can be no objection to provinces exercising their constitutional competences through procedures or approvals operating in parallel to municipalities’ powers.  Those parallel procedures afford provinces an effective veto over developments a municipality has approved. In that respect, he suggested, they do not differ from full-blown appellate powers.  Therefore, although affording the Province appellate powers during the reading-in period is not wholly constitutionally compliant, the powers are a good approximation of constitutionality.

[18] And it is essential, the Provincial Minister urged, that the Province’s veto power be preserved pending the enactment of a new, comprehensive statutory scheme.  Here, counsel for the Provincial Minister presented a bogey. There must, he urged, be some provincial legislative and executive surveillance over municipal planning decisions, because big municipal zoning and subdivision decisions could have extra-municipal effects. Without oversight the Province will be powerless to stop even very large developments that may have ruinous effects on the Province as a whole.  Here he instanced the possible approval by a municipality of a major new town, for example, “Sasol 4”,[22] which would have profound province-wide effects.

[19] This bogey must be slain. All municipal planning decisions that encompass zoning and subdivision, no matter how big, lie within the competence of municipalities. This follows from this Court’s analysis of “municipal planning” in Gauteng Development Tribunal.[23] Provincial and national government undoubtedly also have power over decisions so big, but their powers do not lie in vetoing zoning and subdivision decisions, or subjecting them to appeal. Instead, the provinces have coordinate powers to withhold or grant approvals of their own.[24]  It is therefore wrong to fear that a province would be powerless to stop the development of a “Sasol 4”.  That development would depend on myriad approvals, some of them provincial, some of them national.

[20] The second broad circumstance the High Court embodied in its reading in is when a provincial appellate power is necessary in the exercise of its powers of “oversight” over municipalities.  The Constitution expressly envisages that national and provincial governments have legislative and executive authority to see to the effective performance by municipalities of their planning functions.[25] This, the other two spheres of government can achieve by “regulating the exercise by municipalities of their executive authority” in relation to municipal planning.[26]

[21] But the powers in section 155(7), this Court has held, are “hands-off”. In the First Certification case, the Court described those powers thus:

“In its various textual forms ‘monitor’ corresponds to ‘observe’, ‘keep under review’ and the like. In this sense it does not represent a substantial power in itself, certainly not a power to control [local government] affairs, but has reference to other, broader powers of supervision and control. . . .

We do not interpret the monitoring power as bestowing additional or residual powers of provincial intrusion on the domain of [local government], beyond perhaps the power to measure or test at intervals [local government] compliance with national and provincial legislative directives or with the [Constitution] itself.  What the [Constitution] seeks hereby to realise is a structure for [local government] that, on the one hand, reveals a concern for the autonomy and integrity of [local government] and prescribes a hands-off relationship between [local government] and other levels of government and, on the other, acknowledges the requirement that higher levels of government monitor [local government] functioning and intervene where such functioning is deficient or defective in a manner that compromises this autonomy.”[27]  (Emphasis added.)

[22] It follows that “regulating” in section 155(7) means creating norms and guidelines for the exercise of a power or the performance of a function. It does not mean the usurpation of the power or the performance of the function itself. This is because the power of regulation is afforded to national and provincial government in order “to see to the effective performance by municipalities of their functions”. The constitutional scheme does not envisage the province employing appellate power over municipalities’ exercise of their planning functions. This is so even where the zoning, subdivision or land-use permission has province-wide implications.

[23] The Provincial Minister also urged us to accept that good government requires that it should be able to “safeguard provincial and regional interests” while the Province’s Land Use and Planning Bill is enacted and made ready for implementation.[28]  This, it urged, was because, if municipalities alone consider zoning and subdivision applications, “parochial municipal interests” will triumph.  The contention cannot be sustained. The Constitution envisages, subject only to the oversight and support role of national and provincial government, and to the planning powers vested in them, that parochial interests should prevail in subdivision and zoning decisions.

[24] That is enough to deal with the main issue. But both the Provincial Minister and the City of Johannesburg urged the Court to use the opportunity to give greater content in this judgment to the constitutional competence of “provincial planning”. This, the parties said, was to afford guidance to municipalities and provincial authorities as they review and reform the existing legislative framework for planning. This invitation is enticing. But it must be declined. Legislation that deals with municipal planning, both provincial and national, is pending.[29] The Constitution offers mechanisms by which the President and provincial Premiers, or legislators, can secure this Court’s determination of the constitutional validity of both Bills and statutes.[30] Outside these mechanisms, the Court should not pronounce on intricate matters with which legislatures are dealing. Practically, this means the Court should do no more here than is necessary to decide the sole question before it, namely the constitutional validity of the Province’s appellate powers over zoning and land-use decisions. That is judicial economy.[31]

Remedy

[25] It follows that the reading in the High Court ordered, with the consent of both the Provincial Minister and the other parties before it, cannot be confirmed. That reading in gives the Province interim appellate powers that are incompatible with the competence the Constitution affords municipalities over “municipal planning”. The Constitution grants the Province no direct decisional oversight over the exercise of these functions, and nothing in the evidence placed before us indicates that powers of this sort should be afforded as an interim measure.

[26] For the same reasons, if we suspend the declaration of invalidity, we will temporarily preserve an appellate power that is unconstitutional in its entirety. The Provincial Minister nevertheless urged us, for practical reasons, to suspend the declaration, as this Court often does in the exercise of its just and equitable remedial powers. He argued that, historically, provinces have borne ultimate responsibility for planning decisions. Accordingly they have large and experienced planning departments. By contrast, municipalities, especially the smaller ones, do not yet have the capacity and expertise to assume ultimate responsibility over all planning decisions. Provinces should retain their appellate powers while municipalities build capacity. This will, the Provincial Minister argued, have the additional benefit that faulty municipal decisions can be corrected by internal means rather than by flooding the courts with review applications.

[27] The contention that some local authorities lack planning capacity deserves serious consideration.  But it does not justify suspending the declaration of invalidity.  It cannot entail more than this: that the Province must, as the Constitution envisages, “promote the development of local government capacity to enable municipalities to perform their functions and manage their own affairs”.[32]  It cannot entail appellate oversight of zoning and subdivision decisions.  And local government capacity problems do not justify this oversight being afforded on an interim basis.  Instead, the Province is obliged to use its constitutional powers, which are not insubstantial, to assist municipalities to make planning decisions properly.  That it can do by helping them increase their capacity.  What legislative and other means the Province may use to do this is not before us and it is not necessary to express any view on it.

[28] Finally, the Provincial Minister asked this Court to limit the retrospective effect of the declaration of invalidity, as the High Court had done.  He noted, in particular, the chaos that would result if even finalised approvals granted by the Province on appeal were rendered invalid.  Similar difficulties would arise, he said, if approvals granted by a municipality and overturned on appeal were now resuscitated.

[29] Those practical difficulties cannot be gainsaid.  The retrospective effect of the declaration of invalidity will be limited accordingly.  At the end of all this, as emerged during argument, the Provincial Minister can have no real complaint about an order of invalidity that takes effect immediately, subject only to pending appeals being exempted from it.

Costs

[30] Since only the Provincial Minister and the City of Johannesburg, as amicus, appeared before us, a costs order would be redundant.[33]

Order

[31] It is ordered as follows:

1. Paragraph 1 of the order of the Western Cape High Court, Cape Town, declaring section 44 of the Land Use Planning Ordinance 15 of 1985 unconstitutional and invalid, is confirmed.

2. The declaration of invalidity is not retrospective and does not apply to appeals pending in terms of section 44.

3. Paragraphs 2 to 4 of the High Court’s order are not confirmed.

For the Applicant:

Advocate A Breitenbach SC, Advocate D Borgström and Advocate L Dzai instructed by the State Attorney.

For the Amicus Curiae:

Advocate S du Plessis SC and Advocate P Verveen instructed by Moodie & Robertson Attorneys.

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