THE PLANNING PERSPECTIVE
OF LAND REFORM
PROFESSOR JEANNIE VAN WYK
OUTLINE
•
•
•
•
•
•
Some history
Development Facilitation Act 67 of 1995
White Paper Wise Land Use 2001
Planning powers
SPLUMA 16 of 2013
Proposed provincial legislation
2
HISTORY
• Prior to 1994 (and largely still the case) planning
was regulated according to the division of land in
South Africa:
- “White” South Africa;
- “Black” townships in “white” South Africa;
- Homelands (Gazankulu, KaNgwane,
KwaNdebele, KwaZulu, Lebowa,
QwaQwa);
- “Independent” states (Transkei,
Bophuthatswana, Ciskei, Venda)
- SADT land
3
IN PRACTICE
4
CoJ v GDT 2010 para 32
“… 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. They have no application to the former
“independent” homelands and self-governing
territories, which were governed by a parallel system
of planning legislation. 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.”
5
Development Facilitation Act 67/1995
“Policy, administrative practice and laws should
promote efficient and integrated land development
in that they contribute to the correction of the
historically distorted spatial patterns of settlement
in the Republic…” (s 3(1)(c)(vii))
6
Wise Land Use White Paper 2001
“…. an extraordinarily complex and inefficient legal
framework, with planning officials in all spheres of
government having to deal with numerous different
systems within the jurisdiction of each province,
and indeed within most municipalities. The
difficulty of dealing with this legal inheritance
compounds the already difficult task of planning
for sustainable, integrated and equitable land use
and development in South Africa. The need to
rationalise this situation, through overarching
national legislation, is an important rationale ….”
7
PLANNING POWERS IN CONSTITUTION
3 spheres of government
National/provincial concurrent power
- “Regional planning and development” (Sch 4 Part A)
- “Urban and rural development” (Sch 4 Part A)
- “Municipal planning “(Sch 4 Part B)
Provincial exclusive power
- “Provincial planning” (Sch 5)
Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal 2010 (6) SA 182 (CC)
8
SPLUMA 16 of 2013
Preamble:
“…many South Africans continue to live and work in places
defined and influenced by past spatial planning and land
use laws and practices which were based on racial
inequality, segregation and unsustainable settlement
patterns. Moreover the continued existence and operation
of multiple laws at national and provincial spheres of
government in addition to the laws applicable in the
previous homelands and self-governing territories have
created
fragmentation,
duplication
and
unfair
discrimination..”
9
SPLUMA – Development Principles
- spatial justice, whereby—
(i) past spatial and other development imbalances
must be redressed through improved access to
and use of land;
(ii) spatial development frameworks and policies at
all spheres of government must address the
inclusion of persons and areas that were previously
excluded, with an emphasis on informal settlements,
former homeland areas and areas characterised by
widespread poverty and deprivation;
(iii) spatial planning mechanisms, including land use
schemes, must incorporate provisions that enable
redress in access to land by disadvantaged
communities and persons; … (s 7(a))
10
SPLUMA REPEALS
• Removal of Restrictions Act 84/1967
• Physical Planning Act 88/1967
• Less Formal Township Establishment Act
113/1991
• Physical Planning Act 125 /1991
• Development Facilitation Act 67/1995
11
PROVINCIAL LEGISLATION
Northern Cape Planning & Development Act 7/1998, now
SPLUMB 2012
KwaZulu-Natal Planning and Development Act 6/2008
Western Cape Land Use Planning Bill GG 7080 of
18/01/13
Gauteng Planning and Development Bill 2012
Limpopo SPLUMB 2012
Eastern Cape Planning and Development Bill 2012
Mpumalanga Planning Bill 2013
North West SPLUMB 2013
Free State Planning and Development Bill 2013
12
AIMS of PROVINCIAL BILLS
Gauteng Planning and Development Bill 2012:
“WHEREAS the system of land use planning and
development in provincial legislation has not been
changed since the introduction of non-racial
democracy in South Africa and is no longer
appropriate;
WHEREAS there is a need for the use and
development of land to be developmental and to
be based on normative values which reflect
democratic imperatives….” (Preamble)
13
AIMS of PROVINCIAL BILLS
Western Cape Land Use Planning Bill GG 7080 of
18/01/13:
“…. planning legislation has not kept track with
constitutional changes as development management
is currently still being conducted in terms of legislation
that predates the Constitution”. (Memorandum on
objects)
14
REPEALS
Land Use Planning Ordinance 15/1985 (C)
Western Cape
Town Planning and Townships Ordinance 15/1986 (T)
Gauteng,
Limpopo,
Mpumalanga
Gauteng,
Limpopo,
Western Cape
Black Communities Development Act 4/1984 (R1897)
Black Administration Act 38 /1927 (GN R1886/1888)
Limpopo,
Mpumalanga
Act 1/1991 & 10 /1992 Kwandebele Town Planning Acts Mpumalanga
Rural Areas Act (House of Representatives) 9 /1987
Western Cape
15
CONCLUSIONS?
Thank you
16