Provincial government cannot ‘usurp’ municipal town planning powers
Residents can no longer appeal decisions taken by their local municipality by taking their grievances to their provincial authority. This is now the case following the case of Hendrik and Elizabeth Pieterse, who were trustees of the Waterkloof Family Trust, which owned farmland in the area of the First Respondent, the Lephalale Local Municipality, in Limpopo.
The trust obtained municipal permission to temporarily use a portion of the farm for a contractors’ residential camp (First Application), but when it lodged an application for the use of an additional portion (Second Application), the municipality declined.
The trust applied to the High Court (Court a quo) for an order declaring section 139 of the Town Planning and Townships Ordinance 15 of 1986 ( the Ordinance) invalid to the extent that its provisions constituted interference by the provincial government in municipal planning decisions. The trust also sought to review and set aside the municipality’s decision refusing the Second Application.
The Court a quo held that the Constitution confers on municipalities a power to govern the local government affairs of their respective areas and communities, and since municipal land use planning schemes are executive and administrative in nature, they are exclusively for the municipality to determine. The court thus declared section 139 of the Ordinance unconstitutional to the extent that it required an appeal of a municipal decision on a town planning matter to be appealed to a provincial (as opposed to a municipal) authority.
The matter was then referred to the Constitutional Court for confirmation.
In effect, section 139 of the Ordinance provided that appeals lay with the provincial authority, where an aggrieved objector was dissatisfied with the decision taken by the municipality on town planning issues.
However, in City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others (CCT89/09)  ZACC 11; 2010 (6) SA 182 (CC) ; 2010 (9) BCLR 859 (CC) (18 June 2010) (in the Gauteng Development Tribunal case) the court held that decisions on town planning matters fell exclusively within the municipality’s sphere of decision making capacity (as the sphere of local government) and that such decisions were not to be taken by the provincial authority.
The Constitutional Court confirmed that the object of section 139 is clearly to enable an aggrieved party, by a decision of a local authority, to appeal to a provincial appellate authority, which authority may overturn the municipality’s decision. This usurps local government’s power to manage municipal planning and fails to observe municipal autonomy and falls foul of the precedent set in the Gauteng Development Tribunal case.
The Constitutional Court thus confirmed the Court a quo’s decision and declared section 139 of the Ordinance to be inconsistent with the Constitution and invalid to the extent set out above.
Case: Pieterse NO v Lephalale Local Municipality (CCT184/16)  ZACC 40 (10 November 2016)
Words: Maike Gohl, associate, and Jonathan Salant, candidate attorney, at Schindlers Attorneys