CONSTITUTIONAL COURT DELIVERS FATAL BLOW TO THE DFA
In a recent judgment the Constitutional Court confirmed a decision by the Supreme Court of Appeal that Chapters V and VI of the Development Facilitation Act, 1995 (DFA) are unconstitutional. The City of Johannesburg had originally brought the matter to court because the DFA was being used by developers to override the City’s town planning scheme and other planning instruments. The Supreme Court of Appeal had held that the resolution of such matters by the development tribunal, a body established by the province as authorised by national legislation, resulted in unlawful interference in the sphere of “municipal planning” which is reserved for legislative action by the provincial and municipal spheres of government, and over which local government has “executive authority” in terms of section 156 of the Constitution.
Before the Constitutional Court, Johannesburg was joined by the Ethekwini Municipality while other parties joined in support of the Gauteng Development Tribunal and other related parties which had originally opposed the application. Judge Jafta held that “municipal planning’ was a well-established concept and entailed, among other things, the zoning of properties and the establishment of townships. This, however, was precisely the type of work that the tribunals were also engaged upon and it was not open to them.
The Court issued an order declaring the relevant Chapters of the DFA unconstitutional, but suspended the effect of this order for 24 months to enable Parliament to take corrective action. It also imposed a number of conditions, which took immediate effect. Among these conditions was one prohibiting the tribunals from accepting any new applications for development within the areas of the Johannesburg and Ethekwini Municipalities. Another debarred all tribunals from suspending any Act of Parliament or by-law.
One of the main reasons for the popularity of the DFA process was that the tribunals had ostensible power to suspend certain Acts and did so. Primarily, the suspension of the Subdivision of Agricultural Land Act, No 70 of 1970 was much sought after by developers because otherwise the approval of the Department of Agriculture was required for the subdivision of “agricultural land” to which many developments were related. The Department is notorious for refusing approval as a matter of principle, being an extremely jealous guardian of agricultural resources.
Shorn of the ability to suspend Act 70 of 1970, there is no doubt that the DFA process will rapidly lose steam and eventually all momentum. It is quite conceivable that a number of such applications which are “in the pipe-line” will be withdrawn by developers who will see no purpose in pursuing them.
This article has been written by Michael Hands, a Consultant in the Commercial Dept at Garlicke & Bousfield Inc. For more information kindly telephone him on: 031 570 5566 begin_of_the_skype_highlighting 031 570 5566 end_of_the_skype_highlighting.