ARPL1010

Planning for property

developers
15 August 2023
1. Welcome
2. Legal system and the Constitution
3. Bill of Rights
4. Property Clause
5. Administrative Action andPromotion of Administrative Justice
6. Structure of Planning Law
7. Government
8. Neighbours and public participation

Content:
 Who makes the decisions regarding development?

Who decides, who decides about development planning and management?

What gives you the right to develop?

What informs development decisions?

• The understanding of the structure, principles, and
procedures of the South African Legal system.
• Knowledge and understanding of the law relevant to
planning.

Purpose and outcome:

What is law?
 • Rules interpreted by institutions of
state
• Legislature makes laws
• Judicial authority applies laws
• Executive authority enforces laws

What is law?
 A definition would be:
“Law is that body of rules governing human conduct that is
recognised as binding by the state and, if necessary ,
enforced”.

What is law?
Indigenous or Customary Law

English Law

Dutch Law

Roman Law
 Constitution
The State

National

Provincial

Local

LAND
“There is only one system of law. It is shaped by the
Constitution which is the supreme law, and all law, including
common law, derives its force from the Constitution and is
subject to constitutional control” – Constitutional Court in 2000
(Van Wyk, 2020:70).
Basic principle – single system of law – no parallel systems of law
(Van Wyk, 2020:71)
What source of law applies to planning law? – guided by Bill of
Rights – most likely to promote the spirit, purport and object of
Bill of Rights (van Wyk, 2020:71).

Single system of law in South Africa

• Spatial Planning and Land Use Management Act 16 of 201
• Local Government: Municipal Systems Act 32 of 2000 (M
• National Environmental Management Act 107 of 1998 (NE

Principles informing Planning Law

• Constitution – allocates legislative and executive power in
terms of planning to three spheres of government.
• Planning includes:
• National and Provincial competence – “regional planning and
development” and “urban and rural development”
• Provincial Planning – functional area of exclusive provincial
competence
• Municipal Planning – functional area of municipal and
executive competence.

The Constitution – functional areas related to

planning
• No clear definition of what property is
• Includes:
• Ownership of land
• Limited real rights – servitudes, conditions of title
• Land Use Scheme – obtain rights
• Creditors rights (contract)

The 1996 Constitution - Section 25 – What is

property?
“no person may be deprived of property except in terms of a law of gen
Deprivation of property is the limitation or restriction of property
Deprivations - imposed for the public benefit by the state - promote or
Examples:
zoning laws preventing a homeowner from running a business from home
urban planning legislation preventing a landowner from erecting a multi-story bu
environmental legislation which prevents a farmer from ploughing near a river

Section 25 – What is depravation?

`[n]o one may be deprived of property except in terms of a law of general application
This is called the deprivation clause
Applied to planning – determines certain limitations and restrictions – legitimate dep
‘deprivation’ definition: an exercise which is possible only with reference to ‘exprop
Most common: land-use planning and development controls, building regulations an
Condition of title - type of restriction envisaged by the corresponding s 28(2) of the C

Section 25 – What is depravation?

The expropriation clause provides, in general, that:

`[p]roperty may only be expropriated in terms of a law of

general application -
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which
and the time and manner of payment of which have either
been agreed to by those affected or decided or approved by a
court.'

Section 25 - Expropriation
Property can only be expropriated by:
law of general application
for public purposes or public interest
subject to compensation
“Law of general application” - law that applies generally to all - can also include a zon
The expropriation must be for public purposes or public interest
The amount, time and manner of payment of compensation - agreed to by relevant p
Section 25(3) - the amount, timing and manner of payment of compensation - just an

Section 25 - Expropriation
Section 33(1) of the 1996 Constitution - ‘administrative action’ - everyo
‘Administrative action’ - not defined in the Constitution
Promotion of Administrative Justice Act 3 of 2000 (PAJA) provided a sta
Supreme Court of Appeal describes ‘administrative action’ as the condu

Section 33 – Administrative action

Planning law component – administrative action – decision of administrative nature (Could you
Just administrative action in terms of Section 33 – determined by courts

Section 33 – Administrative action

• Administration - administrator’s task is clearly set out
• Decision-maker – makes choices between two or more legally valid options =
discretionary power
• Discretionary power – an official makes a choice between two or more valid legal
possibilities – free choice within limits of law – the choice determines consequences
of the action.
• Decision-maker – grant or refuse an application for rezoning or removal of restrictive
condition – discretion.
• Discretionary power – use facts that was prescribed by statute and exists before the
exercise of choice
• Discretionary powers – regulate township establishment and development as well as
environmental conservation
• Relationship – owner/developer of property – the state – and neighbours/3 rd parties

Section 33 – Administrative action

Section 33 of the 1996 Constitution provides that:
(1) Everyone has the right to administrative action that is lawful,
(2) Everyone whose rights have been adversely affected by
(3) National legislation must be enacted to give effect to these rights
(a) provide for the review of administrative action by a court o
(b) impose a duty on the state to give effect to the rights in
(c) promote an efficient administration.

Section 33 – Just administrative action

• Item 23 Schedule 6 to the Constitution - national
legislation giving effect to section 33 must be enacted
within three years
• Delayed operalisation of section 33(1)-(2)
• 3 February 2000 - the Promotion of Administrative
Justice Act 3 of 2000 (PAJA)

Section 33 – Just administrative action

However, Item 23 Schedule 6 to the Constitution provides that
national legislation giving effect to section 33 has to be enacted
within three years. In the meantime, the provisions in the interim
Constitution remained in place. This meant that the operalisation
of section 33(1)-(2) was put on hold until the promulgation of
national legislation. That legislation was the Promotion of
Administrative Justice Act 3 of 2000, which came into operation
on 3 February 2000. The brief discussion that follows attempts to
put into a planning law perspective the most important aspects of
the right to just administrative action.

Right to administrative action

Administrative action’ is defined in section 1 of PAJA as
any decision taken, or any failure to take a decision, by −
(a) an organ of state, when −
(i) exercising a power in terms of the Constitution o
(ii) exercising a public power or performing a public
(b) a natural or juristic person, other than an organ of state

Right to administrative action

• Cora Hoexter - ‘lawful administrative action’ means that
• Lawfulness - section 33 - seems to coincide with the cons
• No power without authority

Lawful administrative action

Authority may be delegated
‘Delegation’ means that one authority may transfer its powers to
another to act in its stead.
Constitutional and other legal restrictions on the ability to
delegate power.
‘Jurisdiction’ - entails that decision makers must remain within
the bounds of their powers and may not misconstrue their
powers
‘Error of law’ - recognised as a ground of review in section 6(2)(d)
of PAJA, - ‘a court of tribunal has the power to judicially review
an administrative action if the action was materially influenced
by an error of law.’

Lawful administrative action

Section 6(2)(b) of PAJA - judicial review - where a mandatory
Fuel Retailers Association - review decision made by Dept. A
Walele – City of Cape Town – failed mandatory procedural re

Lawful administrative action

Procedurally fair – depends on circumstance of each case
Minimum requirements:
Administrator to provide affected person with clear statement of administrative
As well as notice of nature purpose of proposed administrative action
Reasons for administrative action
If the administrator does not comply with requirements – decision will

Procedurally fair administrative action

Section 33(2) of the Constitution, PAJA - any person whose rights have
Within 90 days after receiving the request, administrator to give that p

Reasons for administrative action

Administrator fails to furnish adequate reasons - be presumed that the administrativ
An administrator may depart from the requirement to furnish adequate reasons if th
In determining whether such a departure is reasonable and justifiable, an administra
(i) the objects of the empowering provision;
(ii) the nature, purpose and likely effect of the administrative action concerned
(iii) the nature and the extent of the departure;
(iv) the relation between the departure and its purpose;
(v) the importance of the purpose of the departure; and
(vi) the need to promote efficient administration and good governance.

Reasons for administrative action

Government accountability - the right of access to information. This is contained in s
(1) Everyone has the right of access to –
(a) any information held by the state; and
(b) any information that is held by another person and that is
(2) National legislation must be enacted to give effect to this right, and may provid
Promotion of Access to Information Act 2 of 2000 (PAIA). Provides a statutory right o

Access to information
Planning law – role players

State
authorities

Planning Law
context

Owners of
land or Neighbours,
Community or
holders of Society
right in land
ayers - state authorities

National Government
State authorities

Provincial Government Each has specific

powers

Local Government

Co-operative Government
thorities and structures

National Government
State authorities

Various National Government Departments + President and deputy president

Provincial Government Each have

specific
powers
Premier and members of executive council + employees

Local Government
Municipalities, municipal councils and officials

Cooperative Government
uthorities and structure

National Government
State authorities

Various National Government Departments + President and deputy president

Provincial Government Each have

specific
powers
Premier and members of executive council + employees

Local Government
Municipalities, municipal councils and officials

Cooperative Government
uthorities and structure

National Government
State authorities

Various National Government Departments + President and deputy president

Provincial Government Each have

specific
powers
Premier and members of executive council + employees

Local Government
Municipalities, municipal councils and officials

Cooperative Government
State authority and structure - monitoring

• See section 4.4.1 regarding monitoring in the text book.

• National and provincial governments – oversee and monitor
functions of municipality – play a monitoring role that could develop
into being supportive – certain areas
• SPLUMA, Constitution
Read and note

• Section 4.5 – Legislative competence of government

• Structures to use in practice
• Legislation: Municipal Structures Act 117 of 1998 (3 categories of
municipalities); The Local Government: Municipal Systems Act 32 of
2000; the National Environmental Management Ac 107 of 1998
(NEMA); National Land Transport Act 5 of 2009; all the act on pages
137-140!, SPLUMA
Planning institutions

• Multi-disciplinary – planning/planning law – environment, local

government, housing and transport
• Planning – Department of Agriculture, Land Reform and Rural
Development and the Presidency

• Other departments: Human Settlements; Environment, Forestry and

Fisheries; Cooperative Governance and Traditional Affairs
Planning Institutions – National sphere

• National Planning Commission (NPC)

• Dept. Land Affairs = Department Rural Development and Land
Reform (2009) – responsible for land use planning and management
• Minister of Rural Development and Land Reform was responsible for
land-use planning matters
• DRDLR – provide legislative, institutional and technical skills –
regulate land use management, spatial planning and spatial
information management
• DRDLR + Presidency = SPLUMA
• Presidency – responsible for National SDF
• Department of Cooperative Governance and Traditional Affairs –
responsible for provincial SDF’s.
Planning Institutions – Provincial sphere

• Advisory institutions and decision making bodies and tribunals

• Executive council of a province = Premier, 5-10 members (appointed
by Premier)
• MEC’s of a province – responsible for the functions of the executive
assignment to them by the premier
Definition, Structure and Purpose

State
authorities

Planning Law
context

Owners of
land or Neighbours,
Community or
holders of Society
right in land
 Definition, Structure and Purpose

Neighbours – involved in planning process (3

categories):

1. Category of plan creation 2. Category for later planning 3. Category where neighbours
and implementation – decisions – rezoning, consent have a right to enforce the
provide inputs for new uses etc – that could affect provisions of a town planning
development the rights of neighbours. scheme or conditions of title
Public participation – Informally and formally
Public participation viewed differently by lawyers, planners and
developers = difficult to define
Possible definition:
...the right of all members of an informed
community to be actively involved in the
planning process which affects them

Community/Public participation
 Right: right to participate. Democratic

All members of the community: concern interested and affected parties

Informed: public adequately informed in order to contribute to constructive input

Planning Process: presupposes involvement during all stages

Which affects them: only affected should be involved

Other factors: agreement and commitment to process

Community/Public participation - principles

Planning Institutions – Municipal sphere

• Municipal Planning Tribunals (MPTs) – each municipality

• Consider land-use and development applications
• Decisions – Provincial Gazette
• Members – municipal officials and specialists
‘till next week!