On 29 January 2016, the Constitutional Court (“CC”) of South Africa, in the matter of Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal Tribunal and Others, confirmed an order of the High Court, declaring section 45 of the KwaZulu-Natal Planning & Development Act 6 of 2008 (“the PDA”) constitutionally invalid.  Upon so doing, the CC then also consider whether or not the order would be retrospective in terms of finalised appeals, as well as how pending appeals with the Tribunal would be affected.  The Environment & Clean Energy Law team from Shepstone & Wylie Attorneys represented the applicant in this case (Tronox).

Section 45 of the PDA states:

“A person who applied for the development of land situated outside the area of a scheme or who has lodged written comments in response to an invitation for public comment on a proposal to develop the land, who is aggrieved by the decision of the municipality contemplated in section 43(1), may appeal against the municipality’s decision to the Appeal Tribunal.”

The heart of this matter dealt with the distribution of power amongst the municipal, provincial and national spheres of government, as well as the CC’s role in finding legislation constitutionally invalid.  “At issue was whether section 45 constitutes provincial interference in municipalities’ exclusive and constitutionally-enshrined domain.”  The Court also had to consider whether Chapter 10 (sections 100 to 134) of the PDA should be declared constitutionally invalid in its entirety.  Chapter 10 established the Appeal Tribunal and its independence, and provides for aspects of its functioning.  In spite of this independence, section 106 gives the responsible Member of the Executive Council  (“MEC”) the power to appoint members of the Appeal Tribunal.

Tronox, the applicant in this case, is the largest fully integrated producer of titanium ore and titanium dioxide in the world.  In October 2012, Tronox lodged an application in terms of the PDA with Umlalazi Municipality for prospective land use rights for areas situated outside a scheme, as defined in the PDA (previously un-zoned agricultural land).  A scheme refers to the zoning of land within the purview of the municipality.  Mtunzini Conservancy (the second respondent) and Mtunzini Fish Farm (the third respondent) submitted written objections to Tronox’s application.  On 19 February 2014, Umlalazi Municipality granted Tronox’s application, following which, Mtunzini Conservancy and Mtunzini Fish Farm lodged appeals against the Municipality’s decision with the Appeal Tribunal in terms of section 45 of the PDA.  Before the appeals could be heard, Tronox approached the KwaZulu-Natal High Court, requesting inter alia that section 45 and the whole of Chapter 10 of the PDA be declared unconstitutional to the extent that the provisions constitute interference by the provincial government in municipal planning decisions.  Tronox also requested that Mtunzini Conservancy and Mtunzini Fish Farm’s appeals be declared unlawful and void.

In considering whether or not section 45 is constitutionally invalid, the Court considered section 156(1) of the Constitution that states:

“A municipality has executive authority in respect of, and has the right to administer—

(a) the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5; and

(b) any other matter assigned to it by national or provincial legislation.”

The Court stated that “Part B of Schedule 4 includes “municipal planning” and it was common cause throughout the proceedings that the municipal decisions caught by section 45 and relevant to this matter fell within the ambit of “municipal planning”.”

The Court considered a number of cases in making their decision.  These cases included Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others (“Gauteng Development Tribunal”), Minister of Local Government Environmental Affairs and Development Planning, Western Cape v Habitat Council and Others (“Habitat”) and Minister of Local Government, Environmental Affairs and Development Planning of the Western Cape v Lagoonbay Lifestyle Estates (Pty) Ltd and Others (“Lagoonbay”).

In Gauteng Development Tribunal, the CC struck down both Chapters V and VI of the Development Facilitation Act.  These chapters authorised provincial development tribunals, established in terms of the Act, to determine applications for the re-zoning of land and the establishment of townships.  In this case, Jafta J stated that: “the Constitution confers different planning responsibilities on each of the three spheres of government in accordance with what is appropriate to each sphere.”  In Gauteng Development Tribunal, the CC “affirmed the inviolability of executive municipal power and the necessity of interpreting the Constitution in a manner which respects that power. The original powers of executive authority allocated by the Constitution to the municipal sphere cannot also be allocated to the provincial sphere. This Court further held that—

“The national and provincial spheres cannot, by legislation, give themselves the power to exercise executive municipal powers or the right to administer municipal affairs. The mandate of these two spheres is ordinarily limited to regulating the exercise of executive municipal powers and the administration of municipal affairs by municipalities.”

In Habitat, the CC confirmed an order of the High Court declaring section 44 of the Land Use Planning Ordinance constitutionally invalid.  Section 44 granted persons aggrieved by municipal land use decisions leave to appeal to the Western Cape provincial government who could then replace the municipal decision with their own, if they saw fit.  In Lagoonbay, Mhlantla AJ summarised the CC’s approach to autonomous provincial powers:

“(a) [B]arring exceptional circumstances, national and provincial spheres are not entitled to usurp the functions of local government;

(b) the constitutional vision of autonomous spheres of government must be preserved;

(c) while the Constitution confers planning responsibilities on each of the spheres of government, those are different planning responsibilities, based on ‘what is appropriate to each sphere’;

(d) ‘“planning” in the context of municipal affairs is a term which has assumed a particular, well-established meaning which includes the zoning of land and the establishment of townships’; and

(e) the provincial competence for ‘urban and rural development’ is not wide enough to include powers that form part of ‘municipal planning’.” (emphasis in original.)

After looking at the above cases, the Court found that:

“…section 45 impermissibly interferes with municipalities’ exclusive constitutional power. The contention that the establishment of the Appeal Tribunal and the provision of an internal appeal do not involve the exercise of a provincial function or power is unconvincing. The Appeal Tribunal is established by the Province through legislation, namely the PDA, and this legislation subjects municipalities to an appeal process without their consent and regardless of whether or not they think it is appropriate.”

After finding section 45 constitutionally invalid, the court then went on to look at whether or not the section could be read down in order to render it constitutionally compliant or read in in order to render it constitutionally acceptable (the court highlighted that this remedy was more invasive).  The MEC in this case had argued that section 45 is reasonably capable of being read down, and failing that (if section 45 if found to be invalid), words could then be read in to render it acceptable.  In support of both, the MEC relied upon the Spatial Planning and Land Use Management Act 16 of 2013 (“SPLUMA”) that came into force in July 2015.  “In terms of section 51(1) of SPLUMA, a person whose rights are affected by a decision taken by a Municipal Planning Tribunal may appeal by giving written notice to the municipal manager within 21 days of being notified of the decision. The municipal manager must submit the appeal to the executive authority of the municipality as the appeal authority.”  Section 51(6) reads:

“A municipality may, in the place of its executive authority, authorise that a body or institution outside of the municipality or in a manner regulated in terms of a provincial legislation, assume the obligations of an appeal authority in terms of this section.”

The MEC argued that in the context of section 51(6), the Appeal Tribunal established by the PDA is “the most appropriate appellate tribunal”.  She contended that section 45 was reasonably capable of being interpreted to mean:

“A person who applied for the development of land situated outside the area of a scheme or has lodged written comments in response to an invitation for public comment on a proposal to develop the land, who is aggrieved by the decision of the municipality contemplated in section 43(1) may, subject to the provisions of section 51 of the Spatial Planning and Land Use Management Act 16 of 2013, appeal against the municipality’s decision to the Appeal Tribunal as the municipality’s appeal authority contemplated in section 51 aforesaid.” (Emphasis in the source.)

During the hearing, counsel for the MEC accepted eThekwini Municipality’s proposed wording for reading down or reading in of section 45 of the PDA, which was to add “if so appointed by the municipality in accordance with section 51(6)” at the end.  eThekwini Municipality’s proposed insertion came on the back of them pointing out several linguistic ambiguities in the MEC’s proposed interpretation.  Firstly, they pointed out, that on the MEC’s wording, municipalities should be taken to have appointed the Appeal Tribunal as the appeal authority under SPLUMA with regards to all appeals pending before SPLUMA came into force.  Also, on the face of it, it seemed as though the person appealing could choose between the tribunal and the executive authority.

Reading down could not happen, as the CC found section 45 of the PDA to be invalid.  In terms of reading in, the Court found that incorporating section 51 of SPLUMA into the construction of section 45 of the PDA placed undue strain on the interpretation of the provision. The Court stated:

“It is inconceivable that section 45 of the PDA could be given a construction which incorporates section 51 of SPLUMA in the manner suggested by the MEC. This interpretation would be more than “strained” – it would depart entirely from the language of the statute. SPLUMA was passed several years after section 45 of the PDA and the MEC’s submission is therefore unsustainable.”

The Court then moved on to consider whether Chapter 10 of the PDA is constitutionally invalid – the High Court chose not to consider this when the case went before them.  The CC also had to consider whether sections 15, 28, 57 and 67 were constitutionally invalid as they are the “other appeal provisions” in the PDA (as highlighted by eThekwini Municipality during trial).  The Court expressed their reluctance to decide on the validity of a statute where the issue had not been “pleaded or ventilated in the lower courts”, and thus found that since Chapter 10 was pleaded by Tronox in the High Court and the High Court decided not to decide on it, and since this decision had not been appealed, it was not the CC’s place to make this decision.  The CC also highlighted separation of powers and that it was the job of the legislature to consider and rectify possible deficiencies in the PDA (now that the CC had declared section 45 constitutionally invalid).

In terms of suspending the period of invalidity for 2 years as the MEC requested, the CC stated that the party seeking the suspension must place reliable information before the Court justifying such (as per Mistry v Interim Medical and Dental Council of South Africa and Others).  The CC found that the MEC had failed to do so, and that their submissions were inadequate.  The Court therefore ruled that no suspension would take place.

In terms of retrospectively, the CC found that, in order to avoid ensuing chaos, and in order to be just and equitable, all finalised appeals should be left untouched.  In terms of pending appeals, the CC found that “justice and equity require treating all pending appeals equally. There are no plausible reasons in policy or in law for treating Fish Farm and Mtunzini Conservancy’s appeals differently from the other pending appeals. Either all the pending appeals should go ahead or all should be nullified.”  The court highlighted that in S v Bhulwana, the CC had held that “it is only when the interests of good government outweigh the interests of individual litigants that successful litigants will not be granted relief. This is an example of such a case. Courts have generally been reluctant to strike down pending appeals for reasons of legal certainty and fairness to parties who have acted upon the assumption that they would have an appeal.”  The CC therefore ruled that pending appeals could go ahead.