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;” STBB offers a variety of legal services where our expertise and friendly approach allows us to deal with every legal matter in an effective and efficient manner ensuring a pleasant experience for our clients. In the property sector we cover: • Property law: We offer benchmark services for both retail and development property transactions. We are reputed for our teams of seasoned property law practitioners who share an extensive set of skills to smoothly address every aspect of property law and land development transactions. • Local Government, Planning, Development and www.saaffordablehousing.co.za SPONSORED BY STBB 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. JANUARY - FEBRUARY 2020 31