Constitutional court of south africa

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Which Constitution applies?

  • The amici argued that the 1996 Constitution cannot be invoked as a benchmark against which the constitutionality of the impugned chapters is tested. They submitted that the constitutional validity of the Act must be tested against the interim Constitution11 which was in force at the time the Act came into operation on 22 December 1995. This is so, it was argued, because the City does not allege inconsistency with the Bill of Rights but contends that the impugned chapters infringe the sections which allocated powers to the three spheres of government. For the proposition that the interim Constitution applies, reliance was placed on Ynuico Ltd v Minister of Trade and Industry and Others.12 They submitted further that under the interim Constitution the impugned chapters were valid and their constitutionality is preserved by item 2 of Schedule 6 of the 1996 Constitution.

  • The reliance on Ynuico is, in my view, without merit. The authority cited does not support the proposition advanced. In Ynuico the single submission which was addressed by this Court was this: whether a pre-constitutional statute that assigned plenary legislative powers to a member of the executive was in violation of section 37 of the interim Constitution.13 Section 2(1)(b) of the Import and Export Control Act 45 of 1963 empowered a Minister to issue a notice that prohibited the importation into South Africa of certain goods without a permit. On 23 December 1988, the Minister issued a prohibitory notice. Having failed to secure a permit, the applicant in that case challenged the constitutionality of the section. It contended that the old Parliament, when it enacted the Act in question (in 1963), violated section 37 of the interim Constitution, even though that Constitution came into force on 27 April 1994. It argued that section 37 entrusted Parliament, and Parliament alone, with plenary legislative power which could not be surrendered to a Minister. In rejecting the constitutional challenge, this Court held that, based on the wording of section 37, the section did not apply to pre-constitutional legislation as the reference to Parliament under section 37 meant Parliament as constituted in terms of the interim Constitution and not the old order Parliament.14 This narrow finding does not support the amici’s broad contention that the validity of the Act in this case cannot be challenged under the 1996 Constitution.

  • The submission that item 2 of Schedule 615 of the 1996 Constitution preserved the validity of all laws which were valid under the interim Constitution is also not accurate. It is true that the item retained the laws which were in force before the 1996 Constitution came into operation. But the item explicitly decrees that the validity of these laws is subject to them being consistent with the Constitution. This then means that if the impugned chapters are inconsistent with the 1996 Constitution, they became invalid when it came into force. They may have been invalid also under the interim Constitution. Whether that is so is unnecessary to decide, since they were not challenged then. They are challenged now, and it is under the present Constitution that their validity must be determined.

    1. It is now convenient to set out the background to legislation regulating land use management .

    Background to land use management legislation

    1. Prior to 1994, land use in South Africa was primarily governed by four provincial ordinances.16 These pieces of old order legislation remain in force. As has been mentioned, the City exercises its powers to rezone land and to approve the establishment of townships in terms of the Ordinance. The Ordinance authorises the relevant provincial authority (referred to in the Ordinance as the “Administrator”)17 to administer the Ordinance and, in terms of section 2, to declare municipalities to be “authorised local authorities” with the mandate to exercise powers contained in Chapters II, III and IV.18

    2. The Ordinance provides for the creation of town-planning schemes by municipalities. These schemes set out the manner in which land within the municipal area will be used (“zoning”). Authorised local authorities are empowered to consider and approve applications to amend these schemes (commonly referred to as “rezoning applications”) and are also empowered to approve the establishment of townships,19 all subject to appeals to the provincial authority. Where a local authority has not been authorised, the final decision on the approval of rezoning applications or township developments rests with the provincial authority. A similar scheme applied under the KwaZulu-Natal Town Planning Ordinance, in terms of which eThekwini Municipality exercised the contested powers. As from 1 May 2010, eThekwini Municipality now exercises these powers under the KwaZulu-Natal Planning and Development Act.20

    3. As has been alluded to above, the difficulty with these ordinances is that they apply only in those territories that formed part of the old Cape, Natal, Orange Free State and Transvaal Provinces.21 They have no application to the former “independent” homelands22 and self-governing territories,23 which were governed by a parallel system of planning legislation.24 Furthermore, the creation of the nine provinces has meant that there has been further fragmentation as each province may be subject to a multiplicity of territorially-based legislative regimes.

    4. This situation cries out for legislative reform. The Act was intended to provide a temporary stop-gap, pending the enactment of comprehensive land use legislation that would rationalise the existing laws.25 The Land Use Management Bill26 is intended to play this role. However, its enactment has been frequently stalled. We have been informed that it has been withdrawn for reconsideration.

    5. With this background in mind, it is now possible to consider the relevant provisions of the Act.

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