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David P Danleis
CITY PLANNER. CITY OF Cape TOWN STADSBEPLANNER.
STAD KAAPSTAD
06 October 1994
M,r Roelf Meyer
Dear Mr
Meyer
SECTION @176(b) OF THE INTERIM CONSTITUTION
I would like
to draw your attention to sub-section 176(b) of the Interim Constitution and its
implications for the planning and management
of towns and
cities.
Prior to the elections in April of this year my department
made a submission to tile Transitional Executive Council Sub-Council on
Regional
and Local Government .ind Traditional Authorities (dated 199 .
4-01-31
and ,tttlched). In this sub-section we pointed out that subsection 176(b) as it
stood, and indeed as it still stands, will
have a very negative effect on
the process of approving town planning applications, through effectively
prohibiting the delegation
of such po@crs to officials.
Verbal
communication between members of the Sub-Council iny staff indicated. that there
was agreement on the TEC that the section
should be amended. The TL-C in fact
requited Mi. Berrisford of my staff to draft(t an amendment for
submissiontoparliament,-tftertlieelectioils.
to date the 'Sub-section has not
been amended. As the sub-section will only apply to elected local authorities,
ic after
the local elections of next year, there is still some time.
Nevertheless my department is anxious that this legislative obstruction
to
efficient aiid expeditions
planning, and indeed to the successful
implementation of the Reconstruction and Development Programme, be removed as
swiftly as possible.
Yours .sincerely
cc Minister Derek Hanekom,
Department of Land Affairs Minister Jay Nadoo)o, Ministry in the Office of the
President
Recommendation: i) That planning powers and dudes be
appropriately tiered, with the higher levels of government only exercising those
powers and carrying out those duties that = either widely and generally
applicable or which cannot be dealt with ,effectively at
a lower level and the
lower levels concentrating on the very detailed and
locally-specific
matters.
ii) That decisions and policies trade at
the lower levels bc. consistent with those formulated at the higher
levels.
2. AMENDMENT OF SUBSECTION 176(B) OF THE INTERIM
CONSTITUTION
Subsection 176(b) of the Constitution effectively prohibits
the delegation of town planning descion-making to municipal officials.
All
town-planing matters, and this covers a very wide range of different matters,
thus have to be considered by the elected councillors
of any local authority,
Many 'town-planning" matters in fact involve only minor changes to land
use or the environment and can quite satisfactory be dealt with by officials
acting under
delegated authority. Sub@on 176(b), as it currently stands, is
utterly inconsistent with efforts to make the planning decision-making
process
more efficient and accessible. A similar provision is included in subsection
16(5)(a) of the Local Government Transition
Act.
This Department
has already made various representations concerning these provisions to the TFC
and, more recently, to Masters Meyer,
Hanckorn and
--- Naidoo
(attached).
Recommendation: As a matter of the utmost urgency,
that subsections 176(b) of the interim Constitution and 16(5)(a) of the
Government Transition
Act be Amended to permit the delegation of town planning
decision-inaldng powers and responsibilities to local government
officials.
3. APPLICABILITY OF CHAPTER 10 OF THE
INTER1j'vl CONSTITUTION TO CTJRRENT (IE PRF-LLECTIONS)
LOCAL
GOVERNMENT BODIES
It is unclear from reading Chapter
10 of the Interim Constitution whether or not the Chapter applies to all
local government bodies as of 27 April 1994 or whether it only applies to
local government bodies to be elected in @s of the Interini Constitution.
This Council has taken legal op@on on the matter. The opinion given was that it
only binds elected
local government, ic that the operation of Chapter 10 is
suspended until such time as local government e)cctions are hold, It would
however be very helpful if this matter could be clearly -Stablished
by
parliament.
Recommendation: That the applicability of
Chapter 10 to existing and interim
local government bodies be
clarified.
4. AUTONOMY OF LOCAL
GOVERNMENT
Section 174 of the Interirn Constitution establishes local
government which 'shall be autonomous". Further, local government is given
=tain powers in section 175. Both these aspects of the Constitution must
be retained and strengthened. This is especially impotent in the light
of the extensive powers enjoyed by the provincial legislatures (Schedule 6 of
the Interim Constitution).
Sections 175 and Schedule 6 overlap in a
number of areas. These, are:
and
Functions
transportation facilities
Section 175: Local Government
Powers Schedule 6: Areas of Legislative
Competence of
Provinces
public transport
road traffic
regulation
roads
health services
education at all levels
excluding university and technicon
education
housing
police
environment
soil'cons
'Mation
urban and ru@ development
primary health
services
education
housing
security
provide access
to.[the above] services and amenities within a and healthy environment rendered
in a sustainable manner and ... financially
and physically
practicable
'here is obviously a degree to which provincial, and
indeed national, legislation will bind local government in these areas. This
is
clear from subsections 174(3) and 175(3) and (4).
'here will however also be
a degree to which local government is free to, devise its own ruim and by-laws.
This is apparent from
the guarantee of local government autonomy in section
174.
There will also be a grey area in between though in which the
local-proviiicia.1 .relationship will be unclear. If the precise nature
of this
relationship is not established there wiD be substantial confusion, un nty,
duplication and, inevitably, constitutional litigation.
The delays and expenses
that will flow from this must be avoided at all
costs.
Recommendation: That the powers and autonomy of local
government as set
out in the interim constitution are retained
and strengthened and that the relationship between the powers and
functions
of local and provincial governments is clearly stated.
'
5. CLASSIFICATION OF THE STATUS OF METROPOLITAN
GOVERNMENT
Recently the constitutionality of metropolitan
governments been questioned in certain quarters. While it would seem to be
relatively clear that
subsection 174(2) of the Interim Constitution does in fact
provide for metropolitan government it would be advisable, in the light
of the above queries, to clarify this issue.
Recommendation.. That
Chapter 10 make express provision for a her of local government to operate at a
metropolitan level.
I trust that these comments have been helpful.
Please accept my sincere apologies for their being late.
Yours
faithfully
Acting CITY PLANNER
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