Most Read Contributor in South Africa, September 2016
The Constitutional Court has confirmed a decision of the Western
Cape High Court that section 44 of the Land Use Planning Ordinance
is unconstitutional and invalid, thereby closing off the ability of
developers and objectors to appeal to province to overturn and
replace unfavourable rezoning, subdivision and departure decisions
made by local authorities. This decision confirms the
Constitutional Court's interpretation of the Constitution's
division of functional competences and applies throughout the
The ruling gives local authorities the final say on how land
inside their boundaries is developed and effectively puts the
traditional appeal function of experienced provincial planning
departments to pasture. The decision means that parochial local
(municipal) interests are likely to prevail with only indirect
provincial oversight having any sway on local authority decisions.
The decision of the Constitutional Court takes effect immediately
but does not have retrospective effect, which means that only those
appeals that have already been decided or those appeals that are
still pending will not be affected by the decision.
The Constitutional Court acknowledged that there is pending
national and provincial legislation that deals with provincial and
local authority planning. The Constitutional Court decision appears
to be consistent with this new land use planning regime which
envisages that rezoning, subdivision and departure applications
will be decided by municipal planning tribunals with appeal
decisions being made by the executive authority of the local
authority. This will however raise questions as to the independence
of the appeal authority as a separate sphere of government will no
longer consider appeals because these will in the future be
internally dealt with within the local authority itself.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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