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LEARNING OUTCOMES
• Discuss the origin of the European town planning
system.
• Discuss the commencement of discriminatory legislative
measures in South Africa.
• Distinguish between planning in the four provinces of
apartheid South Africa.
A FRAGMENTED Lecture 6 • Discuss regional planning in South Africa.
SYSTEM – Tuesday, 29 • Discuss Apartheid planning in South Africa.
APARTHEID LEGACY August 2023 • Discuss the apartheid legacy and attempts at its
AND ATTEMPTS AT eradication.
ITS ERADICATION • Discuss the development of the Spatial Planning and
Land Use Management Act 16 of 2013 2

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APARTHEID LEGACY AND ATTEMPTS APARTHEID LEGACY AND ATTEMPTS

AT ITS ERADICATION
• The 1986 amendment to the Black Communities Development Act 4
of 1984 permitted the granting of ownership to black urban residents.
• The 1991 White Paper on Land Reform led to:
• the Abolition of the Racially Based Land Measures Act 108 of 1991,
which repealed the majority of racially based land laws;
• the Upgrading of Land Tenure Rights Act 112 of 1991, which provided
for the upgrading and conversion into ownership of certain tenure rights;
and
• the Less Formal Township Establishment Act 113 of 1991.
• The Constitution of the Republic of South Africa of 108 of 1996 also
made an important contribution. The enactment of the Constitution
necessitated a different approach to planning law and numerous
aspects of the Constitution are significant for the multi-faceted nature
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AT ITS ERADICATION (CONTINUED)
• One of the most fundamental changes was the introduction of an entirely new
system of three spheres of government, each with its own specified , allocated
legislative and executive competencies, requiring the enactment of new legislation.
• All the rights of the Bill of Rights have to be respected, protected, promoted and
fulfilled, and everyone has the right to have their dignity respected and protected.
• In the past, where ad hoc decision were made and no reasons provided, the right to
just administrative action and the Promotion of Administrative Justice Act 3 of
2000 have resulted in the recognition that fair and just procedures have to be
followed.
• Along with the property clause, the right to just administrative action can inform the
subdivision of planning law into land management planning and land
development management.
• Where environmental issues intersect with planning issues, the right to an
environment that is not harmful to one’s health and well-being and the
principles and procedures set out in the National Environmental Management 4

planning. Act 107 of 1998 must be recognized and applied.

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APARTHEID LEGACY AND ATTEMPTS
AT ITS ERADICATION (CONTINUED)
• A new planning ethos was adopted in the Development Facilitation Act 67 of 1995
(DFA), since repealed by SPLUMA.
• The DFA originated in the National Housing Forum that was investigating ways to
alleviate problems related to the delivery of low-income housing.
• The idea was that it should only provide an interim solution, while long-term
planning reform was being resolved.
• It was promulgated in 1995 at a time in South Africa when land reform was the
main topic and it was classified as land redistribution legislation.
• Numerous provision of the Act stressed its purpose as legislation geared towards
addressing the imbalances of the past and to fast-track land development and
the delivery of housing.
• The new normative planning paradigm brought about by the DFA was effected
by the introduction of principles of land development and general principles for
decision-making and conflict resolution (Chapter II).
5 townships took advantage of the unintended loophole and employed
• Chapter III established development tribunals at provincial level whose main task it
was to consider and approve or refuse land development applications.
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APARTHEID LEGACY AND ATTEMPTS
AT ITS ERADICATION (CONTINUED)
• The practice of creating and conferring upon provincial tribunals the
authority to approve land use applications that might be in conflict with a
municipality’s plans led to many problems that are at the root of the decision of
unconstitutionality in Johannesburg Metropolitan Municipality v Gauteng
Development Tribunal and Others.
• In the Supreme Court of Appeal, Lewis JA held that the DFA:
Is not meant for municipal planning in the strict sense. Its purpose is to redress inequalities
left by a policy of separate development, where people of different races were physically
divided and whose housing and poverty were vastly unequal. Hence the need for
reconstruction and development at a pace that might not be accommodated within the
framework of ordinances regulating normal municipal planning.
• Central in planning law is a determination of which spheres of government
have legislative and executive competence for specified functional areas. It was
not until 2010 that some clarification of the competence for municipal planning
was given by the court.
• The Gauteng Development Tribunal decision is very significant in that it placed the
role of municipalities on a solid footing. Local government is at the coalface7of
planning. Its objects and development duties reinforces its responsibilities
towards the citizens it serves and for whom it must provide proper planning.
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APARTHEID LEGACY AND ATTEMPTS
AT ITS ERADICATION (CONTINUED)
• Chapter IV dealt with land development objective (LDOs). This initiative
was short-lived as it was replaced by a system of integrated development
planning under the Local Government Municipal Systems Act 32 of 2000.
• Chapters V and VI contained extensive procedures for land
development. These chapters were declared invalid by the Constitutional
Court.
• Chapter VII set out procedures for land tenure matters at national level so
that than would be otherwise have been the case end-user finance could
be made available at a stage earlier. The Act introduced the concept of
“initial ownership”, a right entitling the holder to use and occupy the land
as if was the registered owner. The reason for this was to make land available
for people to occupy without first having to go through all the formal
channels of township establishment.
• Initially, the DFA was seen through a land reform lens. However, it was
not long before developers who wished to establish non-land reform
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provisions of the DFA to establish upmarket residential townships, as well as
game and golf estates.
SPATIAL PLANNING AND LAND USE
MANAGEMENT ACT 16 OF 2013
• The enactment of SPLUMA had a long history.
• Immediately after 1994 the focus on the Department of Land Affairs was land
reform, but by 1997 this emphasis had shifted with the publication of the
White paper on South African land policy.
• The National Planning Commission (1997) recommended the streamlining of
various policy, legislative and regulatory frameworks relating to land-
use planning and management.
• The draft Green paper on Development Planning was produced by the
NPC.
• In 2001 the Wise land use: White paper on spatial planning, land use
management and land development highlighted how planning for and
regulation of the use and development of land had been neglected since
1994.
• The Draft Land Use Management Bill (2001) was appended to this white 8
paper, with variation in June 2002, July 2003, January 2006, and March 2007.

SPATIAL PLANNING AND LAND USE
MANAGEMENT ACT 16 OF 2013 (CONTINUED)
• In June 2008, a version of the Bill was published that provided some real
hope that new legislation to regulate planning would soon be
promulgated.
• The Memorandum on the Bill contained all the components to
rationalize the fragmented legislative system, to bridge the racial
divide in spatial terms and to transform the settlement patterns of
South Africa in a manner that would give effect to key constitutional
provisions. It contained provisions on:
• Directive principles
• Spatial planning frameworks (including national, regional, provincial and
municipal spatial development frameworks)
• Land use schemes
• Land use regulation and monitoring of intergovernmental support.
• However, the Bills constitutionality was challenged and was
subsequently withdrawn
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SPLUMA AND UNCERTAINTY REGARDING
THE ROLE OF PROVINCIAL LEGISLATION
• Where existing (older) provincial legislation is consistent
with SPLUMA, it remains applicable. However, it makes no
sense to employ provincial statutes in the new system
created by SPLUMA that caters specifically for
municipalities that must enact bylaws.
• All that remain at this point is to indicate that SPLUMA aims
to provide a framework for spatial planning and land use
management in South Africa. It is thus termed ‘framework
legislation’, leaving much of the detail to municipal by-
laws, now enacted in most municipalities throughout South
Africa. 11
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SPATIAL PLANNING AND LAND USE MANAGEMENT
ACT 16 OF 2013: POWERS OF THE TRIBUNAL AFTER
EXPIRY OF SUSPENSION
• In 2010, when the Constitutional Court (Johannesburg Municipality v
Gauteng Development Tribunal) declared Chapter V and VI invalid it
suspended the declaration for 24 months to enable parliament to correct
the defects or enact new legislation. This suspension was subject to
conditions.
• After the Constitutional Court Judgment, the Department of Rural
Development and Land Reform issued a policy statement on 22 March 2012,
stating that ‘applications received by development tribunals even after 17
June 2012 as if the Constitutional Court had not declared invalid Chapter
V and VI of the DFA’.
• At issue was whether a development tribunal retained the power on 15 June
2012 , after expiry of the suspension period to determine an application
lodged with one working day prior to the expiry of the suspension.
• Upon expiry of the suspension period, 17 June, the tribunal no longer had
the power to decide the application. Section 60(2) of SPLUMA is clear. On its
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coming into operation, all applications that had been submitted in terms of
the DFA had to be decided in terms of SPLUMA.
ANY FURTHER
QUESTIONS
Intoduction to and Classification of Law 12
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