As mentioned earlier, the Act was passed before the 1996 Constitution came into force. It was designed to apply throughout the country to speed up land development. Its primary objects are, as the long title proclaims: to facilitate and expedite the implementation of the reconstruction and development programmes and projects by introducing extraordinary measures; to lay down general principles regulating all land developments, irrespective of whether the development is undertaken in terms of the Act or some other law;27 and to establish, in all provinces, development tribunals with powers to determine land development applications.
In Chapter III, the Act establishes, for each province, a development tribunal consisting of members appointed by the Premier subject to approval by the provincial legislature.28 The Act requires that tribunals should have, as some of their members, representatives of local government.29 However, during the hearing we were informed that in the Western Cape Province members of the tribunal have not been appointed and, as a result, the municipalities exercise the contested powers in terms of the relevant ordinance.
The powers and functions of the development tribunals are se t out in section 16 which provides:
“A tribunal —
(a) shall deal with any matter brought before it in terms of section 30(1), 33, 34, 40, 42, 51, 48(1), 57 or 61 or any matter arising therefrom;
(b) in dealing with any matter referred to in paragraph (a), (c) or (d) may—
(i) grant urgent interim relief pending the making of a final order by the tribunal;
(ii) give final decisions or grant or decline final orders;
(iii) refer any matter to mediation as contemplated in section 22;
(iv) conduct any necessary investigation;
(v) give directions relevant to its functions to any person in the service of a provincial administration or a local government body;
(vii) determine any time period within which any act in relation to land development is to be performed by a person;
(viii) decide any question concerning its own jurisdiction;
(c) shall deal with any other matter with which it is required to deal in terms of this Act;
(d) may generally deal with all matters necessary or incidental to the performance of its functions in terms of or under this Act.”
Chapter V consists of sections 30 to 47. It defines the process that must be followed in submitting applications to a development tribunal and outlines some of the powers and functions of the tribunals referred to in section 16. Section 30 empowers tribunals to grant exemptions from the provisions of this chapter on terms and conditions deemed necessary by them. Section 31 identifies the parties who may apply for land development and sets out the procedure to be followed in submitting an application to a designated officer. The applicant is required to give notice of its application to prescribed parties30 who are permitted to make comments on or lodge objections against the application. Then the applicant is afforded the opportunity to reply. Once all representations are submitted, the designated officer compiles a report which he or she submits, together with the documents received from the parties, to the tribunal.31 The key section is section 33 which regulates the determination of land development applications by tribunals and also entrusts them with wide ranging powers. This includes the power to override municipal instruments governing land administration and the power to exclude the operation of laws – including Acts of Parliament – in relation to land forming the subject-matter of a land development application.
Section 33 provides:
“(1) After receipt of the documents referred to in section 32 and on the date referred to in section 31(4)(b), a tribunal shall consider and may approve or refuse the land development application in whole or in part or postpone its decision thereon and may in approving the land development application impose one or more of the conditions contemplated in subsection (2).
(2) In approving a land development application a tribunal may, either of it its own accord or in response to that application, impose any condition of establishment relating to—
(a) the provision of engineering services;
(b) the provision or transfer of land to any competent authority for use as a public open space, or the payment of a sum of money in lieu thereof;
(c) the provision of streets, parks and other open spaces;
(d) the suspension of restrictive conditions or servitudes affecting the land on which a land development area is to be established;
(e) the registration of additional servitudes affecting the land on which a land development area is to be established;
(f) the question whether any building standards laid down in regulations made under the National Building Regulations and Building Standards Act, 1977 (Act No. 103 of 1977), or in any zoning scheme, regulation or bylaw of a local authority under any law, are to apply in respect of the erection of buildings or any class of buildings on a land development area;
(g) the question whether it is nevertheless necessary for building plans to be submitted to and approved by the competent authority prior to the erection of buildings in the case where a condition is imposed to the effect that the building standards contemplated in paragraph (f) will not apply in respect of a land development area;
(h) the question whether the use of land in a land development area is to be regulated by—
(i) a zoning scheme or other measure under any law governing land development or land-use planning in the area concerned;
(ii) general provisions relating to land use which have been prescribed; or
(iii) specific provisions relating to special or strategic projects which have been prescribed;
(i) any amendment to a zoning scheme, other measure or provision referred to in paragraph (h), for the purpose of applying it to a land development area;
(j) the question whether the provisions of—
(i) sections 9A and 11 of the Advertising on Roads and Ribbon Development Act, 1940 (Act No. 21 of 1940);
(iii) section 12 of the National Roads Act, 1971 (Act No. 54 of 1971);
(iv) any law requiring the approval of an authority for the subdivision of land;
(v) any law requiring the issuing of a receipt, certificate or any other document by a local government body, public revenue officer or other competent authority, as a prerequisite to the transfer of land in a land development area; or
(vi) any other law relating to land development, but not the Restitution of Land Rights Act, 1994 (Act No. 22 of 1994), which in the opinion of the tribunal may have a dilatory effect on the development of a land development area or the settlement of persons therein,
shall apply in respect of a land development area in question: Provided that a decision to suspend the application of a law shall be taken after the tribunal has afforded the authority, if any, which is responsible for the administration of the law, and any other interested person or body an opportunity to provide the tribunal with its views on the expedience of such a decision in the circumstances;
(k) the provision of educational and other community facilities;
(l) the question whether the land in the land development area is to be subdivided in terms of this Chapter and if not, whether any other provisions of this Chapter will apply;
(m) the ownership of the land forming the subject of a land development application and the administration of the settlement of persons on such land by any person, trust, body of persons or juristic person with due regard to the wishes of the community concerned and subject to the provisions of any law;
(n) the environment or environmental evaluations;
(o) the manner in which members of any community residing in a settlement shall be consulted during the process of land development whenever land development takes the form of the upgrading of an existing settlement;
(p) the manner in which the interests of any beneficial occupier of the land development area are to be accommodated whenever land development takes the form of the upgrading of an existing settlement; and
(q) any other matter considered necessary by the tribunal.
(3) A condition of establishment imposed under—
(a) subsection (2)(d), has the effect that the restrictive condition or servitude concerned is suspended, subject to section 34;
(b) subsection (2)(f) or (g)—
(i) has effect despite any provision to the contrary contained in the National Building Regulations and Building Standards Act, 1977, or any law authorising a local government body to make building regulations or bylaws;
(ii) does not prevent any owner or prospective owner of land in a land development area from submitting building plans to the competent authority for its approval prior to the erection of the building concerned or complying with any national building regulation, zoning scheme, regulation or bylaw contemplated in that subsection;
(c) subsection (2)(h) or (i) has effect despite any provision to the contrary in any other law governing land development or land-use planning or zoning schemes;
(d) subsection 2(j) relating to the suspension of the application of any law referred to in that subsection, has the effect of suspending the application of such a law.
(4) A condition of establishment referred to in subsection (3) comes into operation upon notice of the condition being given by the designated officer in the Provincial Gazette, or if a later date is stated in the notice, from such later date.
(5) A condition imposed under subsection (2) according to which a land development applicant shall perform any act, shall state by which stage in the course of the establishment of the land development area such act shall be performed.
(6) The designated officer shall inform the registrar of the approval of a land development application.”
The reach of this section is so wide that it covers almost all land in the country. It applies to all land development applications irrespective of where the land is located and regardless of whether some other law governs development on it. The term “land development application” is defined as an application lodged in terms of section 31(2) or section 49(2) and must be construed with reference to “land development” which is defined in the widest terms to mean—
“any procedure aimed at changing the use of land for the purpose of using the land mainly for residential, industrial, business, small-scale farming, community or similar purposes, including such a procedure in terms of Chapter V, VI or VII, but excluding such a procedure in terms of any other law relating exclusively to prospecting or mining”.32
The provisions of Chapter VI are couched in terms identical to those of Chapter V analysed above. Chapter VI consists of sections 48 to 60 and governs applications for development relating to small-scale farming. Section 51 of Chapter VI is the equivalent of section 33 of Chapter V. As mentioned earlier, the scope of the two chapters is so wide that they cover all land developments excluding only developments that relate to prospecting and mining. There can be no doubt, therefore, that these chapters authorise development tribunals to determine applications for rezoning and the establishment of townships.
The question that needs consideration is whether, by conferring the powers concerned on development tribunals, these chapters are consistent with the provisions of the Constitution regulating the allocation of powers and functions to municipalities. I proceed to consider and interpret the relevant provisions of the Constitution.