SA Affordable Housing January - February 2020 // ISSUE: 80 | Page 33
LEGAL MATTERS
sectional title plans by the Surveyor-General, in other
words within three to six weeks from 3 July 2017.
• If one argues that despite the existence of the sectional
title plans duly approved by the Surveyor-General a
certificate in terms of Section 53 of the City of
Johannesburg: Municipal Planning By-Law, 2016 is also
required, it added at least 10 months to the registration
process of this scheme from date of approval of the
sectional title plans by the Surveyor-General.
What is worrying about this is that despite all the existing legal
hoops through which a developer must jump to construct a
building for a residential sectional title development scheme,
without losing enthusiasm, the municipality in this case added
another piece of red tape which prolonged the completion of this
project by another ten months.
THE ROLE OF THE PROVINCIAL LEGISLATURE
WITH SPLUMA
In the instance of the ERF 1258 sectional title development
scheme SPLUMA unfortunately did not achieve its goal of
achieving a uniform, effective and comprehensive system of
spatial planning and land use management for the Republic.
Apart from the different interpretations of the relevant and
irrelevant legislation, it is also because the nine provinces did
not exercise their rights in terms of Section 10(1) of and
Schedule 1 to SPLUMA by introducing provincial legislation in
terms of this Act.
The nature and scope of the powers assigned by SPLUMA to
the provincial legislatures are found in Section 10(1) thereof and
Schedule 1 thereto, in line with Section 104(1)(b)(iii) of the
Constitution which states that a provincial legislature has the
authority to pass legislation on any matter outside Schedule
4 and 5 that has been ‘expressly’ assigned to it by national
legislation.
Paragraph (d) in Schedule 1 to SPLUMA indicates that:
“Provincial legislation regulating land development, land use
management, township establishment, spatial planning,
subdivision of land, consolidation of land, the removal of
restrictions and other matters related to provincial planning and
municipal planning may – repeal or amend provincial legislation,
including ordinances –
(i) which is consistent with this Act;
(ii) that apply to land development, land use management,
township establishment, spatial planning, subdivision of
land, consolidation of land, the removal of restrictions;
(iii) that deals with other matters related to planning and
provincial planning in that province;”
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This means that the Gauteng Province has the powers to repeal
existing provincial planning legislation like the Town Planning
and Townships Ordinance, 1986 (Ordinance 15 of 1986) to
remove any uncertainty created by Section 2(2) of SPLUMA.
CAN A BY-LAW BE ALLOWED TO DERAIL THE
DEVELOPMENT PROCESS?
Some municipalities jumped the gun by prematurely adopting
by-laws in terms of this Act despite the provinces failing to
introduce the essential SPLUMA provincial legislation.
In Section 43 of the Constitution of South Africa, 1996 it is
indicated that the legislative authority of the national sphere of
government is vested in Parliament, of the provincial sphere of
government in the provincial legislatures and the local sphere of
government in the municipal councils. All spheres of government
and all organs of state within each sphere must not assume any
power or function except those conferred on them in terms of
the Constitution.
If the national legislation in terms of Section 53 of SPLUMA
read with Section 41(2) then does not require the submission of
a Section 53 SPLUMA certificate with the opening of a sectional
title register it immediately creates questions about the
constitutionalism of a by-law like Section 53 of the City of
Johannesburg: Municipal Planning By-Law, 2016, which explicitly
requires such certificate for the registration of a sectional title
scheme.
CONCLUSION
If the nine provinces exercise their rights in terms of Section
10(1) of and Schedule 1 to SPLUMA by introducing provincial
legislation in terms of this Act it will eliminate the necessity to
have to apply the rules of interpretation of statutes in order to
decipher the existing legislation to source the intent of the
legislator.
The repeal of outdated provincial planning legislation will
bring clarity to the consequences of such repeal and in doing so,
bring it in line with the new planning dispensation introduced by
SPLUMA.
This will also bring cohesion between all three spheres of
government with regard to SPLUMA which will eradicate the
conflict created between Section 53 of SPLUMA read with Section
41(2) and Section 53 of the City of Johannesburg: Municipal
Planning By-Law, 2016 for instance.
It is now long overdue to address the inconsistencies which
were caused, even though unintentionally, by the introduction of
SPLUMA on 1 July 2015 which instead of streamlining the
development process, added extra red tape, time and costs to the
development process.
Environmental law: Our Development Law Unit has nine
specialists addressing development requirements in the
fields of planning law, environmental law, construction law,
renewable energy law and local government law. The Unit
partners with land developers to function as a vital
watchdog and one-stop-shop for all legal requirements of
land development projects, including low cost housing
projects.
For more information related to the information published,
please contact Gert Minnaar at [email protected] or visit our
website www.stbb.co.za to view contact information for your
nearest branch.
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