The fate of South Africa’s development tribunals, established in terms of the Development Facilitation Act, is in the hands of the Constitutional Court.
On February 24 and 25, the highest court in the land will sit to decide whether a recent Supreme Court of Appeal decision dealing with these tribunals should stand or fall.
“If the Constitutional Court confirms the SCA judgment, it will be a victory for the City of Johannesburg but could be the death knell for development tribunals countrywide,” says Brian Kew, head of the property practice area at corporate law firm, Werksmans Incorporating Jan S de Villiers.
He has been closely following the legal wrangle between the Gauteng Development Tribunal and the City of Johannesburg for the past three years, since the City of Johannesburg first went to court over the issue.
The controversy started when the City refused to recognise and implement certain decisions of the tribunal, thereby impeding the practical implementation of rezonings, township establishment or subdivisions.
“The City was claiming that two chapters of the act were unconstitutional because they encroached on the rights of municipalities,” says Kew. “It said only municipal councils had the authority to deal with rezoning, township establishment and subdivision applications, and that the tribunals had no right to interfere in municipal matters.”
Fuelling the City of Johannesburg’s concern was that an increasing number of property developers were using the Gauteng tribunal to fast-track their development applications and to override policies of the City.
“Where the City’s town planning structures take two years or more to process an application, the tribunal averages about a year,” says Kew, explaining its popularity.
“It should also be said, however, that developers were taking applications that conflicted with the City’s policy on the urban development boundary to the tribunal, and that these applications were being approved.”
The City of Johannesburg lost the first round of the court battle in February 2008 when the Witwatersrand Local Division, as it was then known, ruled against it. Effectively, the court said developers were free to use both structures – the development tribunals or the municipal structures established under the Town-planning and Townships Ordinance.
The City continued with its legal challenge and, in August 2009, the Supreme Court of Appeal ruled that the two contested chapters of the Development Facilitation Act were indeed invalid.
“In effect, the City won,” says Kew. “Now, if the Constitutional Court confirms the Supreme Court of Appeal ruling, developers will no longer be able to bring their applications to the development tribunals.”
He says the ramifications would not be limited to Gauteng but would ripple throughout the country.
“By all accounts, the development tribunals have been working well across South Africa, and no other municipality has challenged the tribunals’ role in municipal planning. But if the Constitutional Court upholds the Supreme Court of Appeal decision, then all development tribunals in all the provinces would be unable to receive and hear applications for rezoning, township establishment and subdivisions.”
