Heard on : 24 February 2010 Decided on : 18 June 2010
JAFTA J :
Introduction The main issue in this case is the constitutionality of Chapters V and VI of the Development Facilitation Act 67 of 1995 (Act). These chapters authorise provincial development tribunals established in terms of the Act to determine applications for the rezoning of land and the establishment of townships. A dispute arose in the province of Gauteng between the City of Johannesburg Metropolitan Municipality (City) and the Gauteng Development Tribunal (Tribunal), a provincial organ created by the Act. This dispute is about which sphere of government is entitled, in terms of the Constitution of the Republic of South Africa, 1996 (1996 Constitution), to exercise the powers relating to the establishment of townships and the rezoning of land within the municipal area of the City. The resolution of the dispute eluded the parties and the City instituted an application in the High Court, challenging the constitutional validity of the Act.1 This challenge proved unsuccessful.
On 22 September 2009, on appeal, the Supreme Court of Appeal granted an order that declared Chapters V and VI of the Act to be invalid but suspended the declaration of invalidity for 18 months to enable Parliament to remedy the defects identified by the Court.2 As required by section 167(5)3 read with section 172(2)(a)4 of the Constitution, and Rule 165 of the Rules of this Court, the order of the Supreme Court of Appeal has been submitted to this Court for confirmation.
The City seeks confirmation of the invalidity order, leave to appeal against certain ancillary orders relating to the suspension of the declaration of invalidity, and also leave to appeal against the dismissal of its appeal in relation to the review of two decisions of the Tribunal. It cites the Tribunal as the first respondent; the Gauteng Development Appeal Tribunal (Appeal Tribunal) as the second respondent; Ivory -Palm Properties 20 CC as the third respondent; Mr Pieter Marthinus van der Westhuizen and Mrs Elfreda Elizabeth van der Westhuizen, as the fourth and fifth respondents respectively; the Minister for Land Affairs (Minister), now known as the Minister for Rural Development and Land Reform, as the sixth respondent; and the Member of the Executive Council for Development Planning and Local Government, Gauteng (MEC) as the seventh respondent.
The third to fifth respondents are landowners who successfully applied in terms of the Act to the Tribunal for the rezoning of two immovable properties and the establishment of a new township development on each property. They did not resist the relief sought in the High Court, as they chose to abide the decision of that Court, and have not participated in the proceedings that followed.
The Tribunal, the Appeal Tribunal, the Minister and the MEC oppose the application for confirmation and appeal against the order granted by the Supreme Court of Appeal. I will refer collectively to these parties as the respondents.
The Member of the Executive Council of KwaZulu-Natal for Local Government and Traditional Affairs (MEC, KwaZulu-Natal), as will appear below, is allowed to join the proceedings as is the Department of Agriculture, Rural Development and Land Administration, Mpumalanga Province (Mpumalanga Department). These parties will be referred to in this judgment as the provincial departments. In the same way, eThekwini Municipality is granted permission to join the proceedings. It made common cause with the City and supported the application for confirmation.
Lastly, the South African Property Owners Association and the South African Council for Consulting Professional Planners were admitted as amici curiae. They generally align themselves with the respondents and the provincial departments in requesting this Court not to confirm the declaration of constitutional invalidity.
It is now convenient to set out the factual background relevant to the determination of the case.