Abstract

Keywords

Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA); land use management system; municipal boundaries; land use planning; land tenure; land use administration; municipalities; wall-to-wall land use schemes; municipal governance; urban edge

……………………………………………………….

The administration and decision-making of land use planning changed with the enactment 1

* Aneri Heukelman. MURP BTRP (NWU). Pr.Pln A/1822/2014 SACPLAN. Sessional Lecturer, University of the Witwatersrand, School of Architecture and Planning, Johannesburg. E-mail: aneri.heukelman@wits.ac.za / aneri.heukelman@gmail.com. PhD student, North-West University, Unit for Environmental Sciences and Management, Hoffman Street, Potchefstroom, 2531. ORCID: orcid.org/0000-0001-5683-1979.

 Elizelle Juaneé Cilliers. PhD URP MURP MCom BTRP (NWU). Professor of Urban and Regional Planning, Head of School of Built Environment University of Technology Sydney, Faculty of Design, Architecture and Building, Harris Street, Ultimo, 2007. Extraordinary Professor of Urban and Regional Planning, North-West University. ORCID: orcid.org/0000-0002-8581-6302.

1 The Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA).

Firstly, the article considers what the spatial planning and land use management system is and what constitutes it. Secondly, it considers the land use scheme as the key planning tool to govern land use planning within the planning system and its administration. Thirdly, the changing landscape of municipalities or local government is considered, more particularly its geographical and administrative scope in terms of land use planning. These considerations will answer the question of what impact section 33(1) of SPLUMA has on the capacity of municipalities, being the body of first instance for land use planning and development administration. These physical changes to land use administration necessitate a re-thinking or consideration of the needed capacity and possibly the structure of the land use administration system.

What can be constituted as the spatial planning and land use management system? Legislation primarily informs the framework and structure of this system. SPLUMA is the first and most long-awaited national legislation that introduced a unified system for spatial planning and land use management in order to address the system that consisted of fractured legislation inherited from the apartheid government. 4

4 Schoeman 2015 Town and Regional Planning 53, 55.

that resulted in the adoption of SPLUMA with reference to land use planning.

2.1 The content of SPLUMA and what the system includes

The purpose of SPLUMA was to create a unified and integrated spatial planning and land use management system for the whole of South Africa. 10

10 Schoeman 2015 Town and Regional Planning 53-55; Van Wyk and Oranje 2014 Planning Theory 356-357.

management 16

16 Sections 24-32 of SPLUMA. S 26(1) of SPLUMA specifically indicate that a land use scheme has the force of law, whereas the Spatial Development Framework (SDF) is indicated as a guide for decision-making on land development applications; see ss 22(2) and 42(b).

2.2 Structure of legislation pre SPLUMA/SPLUMA and its influence on addressing the planning system

The legal structure of the inherited system 24

24 Schoeman Urban and Regional Planning 3. Schoeman categorised the nature of spatial planning that involved the related planning legislation in South Africa into three phases as follows: the urban and rural formation phase (1652 to 1948); the urban and rural separation (fragmentation) phase (1948 to 1994); and the urban re-integration phase and rural development (post-1994). The urban and rural formation phase, as well as the fragmentation phase, produced numerous pieces of legislation that had to be redressed to confront the urban and rural segregation.

national legislation and the local town planning schemes. As part of addressing this structural difficulty, SPLUMA with its Regulations were promulgated as national legislation, 25

25 See GN R239 in GG 38594 of 23 March 2015.

2.3 The absorption and replacement of legislation within SPLUMA

SPLUMA was set to create the spatial planning and land use management system in South Africa that accumulated and integrated the content of the Development Facilitation Act (DFA), Green Paper on Development and Planning (1999), the White Paper on Spatial Planning and Land Use Management (2001) and the Draft Land Use Management Bill (2008) 31

31 Schoeman 2015 Town and Regional Planning 52.

2.3.1 Development Facilitation Act (DFA) and the SPLUMA system

The DFA was repealed by SPLUMA. SPLUMA absorbed and appropriately adjusted the general principles for land development of the DFA. 34

34 Section 3 of the Development Facilitation Act 67 of 1995 (specifically s 3(1)(c)(i-vii), listing the development principles); Schoeman 2017 International Journal of Transport, Development and Integration 183.

2.3.1.1 DFA and land use planning administrative authority incorporated in the SPLUMA system

The DFA was intended to facilitate and quicken development as post-apartheid legislation as a temporary measure awaiting the passing of an all-inclusive piece of land use legislation. 38

38 Albert Dykema v Arthur Pule Malebane and Bela-Bela Local Municipality (CCT332/18) [2019] ZACC 33 (10 September 2019).

The landmark Constitutional Court ruling related to a matter between the City of Johannesburg Metropolitan Municipality (CoJ) and the Gauteng Development Tribunal, that affirmed the Supreme Court of Appeals judgement. This judgement declared that Chapters V and VI of the DFA

were unconstitutional and invalid 42

42 City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal (CCT89/09) [2010] ZACC 11 (18 June 2010) Media Summary.

country still functioned within this dual administrative system. The DFA was entirely repealed by the proclamation of SPLUMA, 46

46 City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal (CCT89/09) [2010] ZACC 11 (18 June 2010) Media Summary; Steyn and Van Wyk Planning Law Casebook 29.

The three-year time period, 2010-2013, was a period where the regulation of municipal planning was caught in a forced state awaiting the promulgation of legislation that would conclude the transition from the DFA to SPLUMA. 49

49 Albert Dykema v Arthur Pule Malebane and Bela-Bela Local Municipality (CCT332/18) [2019] ZACC 33 (10 September 2019); Kleynhans 2024 Interview.

Physical Planning Act 88 of 1967 and read with section 36 of the Physical Planning Act of 1991 to change the use of land within a controlled area. 52

52 Mpumalanga Department of Co-operative Governance and Traditional Affairs Applications.

The tangible long-anticipated change in planning legislation was presented in the Land Use Management Bill, published in 2008. This was followed by the Draft Spatial Planning and Land Use Management Bill in 2010, which developed into the Spatial Planning and Land Use Management Bill, 2012 and then effectively into SPLUMA. The administration from the provincial government in terms of land use planning was only transferred to municipalities, physically, after the implementation of SPLUMA. The registers held by the provincial government had to be processed for the provincial archives to release the physical records to municipalities, which had to agree to the receipt of the physical records. In the Province of Mpumalanga, this physical transfer formed part of the process of the development and establishment of the new SPLUMA wall-to-wall land use schemes. The physical records had to be incorporated into the new land use scheme register as required by SPLUMA.

The DFA was guided by development principles 54

54 Section 25(2)(c) of SPLUMA.

The DFA played a significant role in the development of the land use planning and development administration, in the re-thinking and structuring of administration as well as the advancement of an understanding of what land use planning was. The integration of the ordinances and the re-demarcated municipal areas also played a significant role in the development of land use planning and management system.

2.4 The provincial ordinances and the changing landscape of the provinces after the declaration/promulgation of the Constitution and eventual relationship with SPLUMA in its transition

The establishment of the nine provinces of South Africa had a significant influence on the development of the land use planning system as it is today. The formation of the provinces and the land use planning legislative background that was fundamentally influenced by the provincial legislation prompts a discussion of the history of land use planning legislation. Though the provincial ordinances from the previous dispensation directed land use planning and development within the urban edge or urban areas, the related applications were authorised by municipalities. 58

58 The Town Planning and Townships Ordinance 15 of 1986 establishes that the local authority prepares and administers the town planning scheme (today better known as land use scheme), noted that the scheme was purposed for a particular urban area (previous dispensation municipal structure). This Ordinance was valid for the Gauteng, Mpumalanga, Limpopo and North West provinces as explained below. The Townships Ordinance 9 of 1969 for the province of the Free State determined that the local authority is similarly responsible for the administration of the land use scheme, and township establishments would be submitted to the provincial government. Other ordinances mentioned in section 2.4 have similar structures and applications.

River Colony, Transvaal, Natal and the Cape of Good Hope. 60

60 Devenish 2011 Obiter 108.

The re-demarcation of provinces was established by the Interim Constitution of 1993, but founded in the Constitution of 1996 64

64 Schedule 1A of the Constitution.

under the authority of such municipalities. 67

67 National Treasury 1999 http://www.treasury.gov.za/publications/igfr/1999/chapters.pdf (Chapter 1: Profile of the Provinces); the Constitution of the Republic of South Africa 200 of 1993 (the Interim Constitution); and the Constitution.

The consideration of the formation and inclusions of the provinces are important for the demarcation and reflection of the inclusivity of the wall-to-wall local municipal areas and its administration as it explains some of the considerations that are and should be included in the development of the land use management system.

The transitioning of the administrative systems per province is indicated below: 69

69 National Treasury 1999 http://www.treasury.gov.za/publications/igfr/1999/chapters.pdf (Chapter 1: Profile of the Provinces); Municipal Demarcation Board Municipal Powers and Capacity Assessment 2018 Mpumalanga; Stats SA 1991 Population Census 1991 xvii-xxi.

The different administrative bodies that were integrated into the municipalities had different land ownership administrations.

2.5 The complication of land tenure and SPLUMA

Land is the common entity vested in all planning matters, specifically land use planning and development administration. Land ownership is protected under the Constitution’s property clause. 77

77 Van Wyk Planning Law 187.

Land tenure was and still is a complicated issue that leaves people residing in some of the mentioned previous "homelands" or trust areas without security of tenure. The Development Trust and Land Act established the land administrative system for "permission to occupy" (PTO), which had its own administrative system. 79

79 Du Plessis "Traditional Leadership and Authority" 5.

necessary documents. The property to be transferred will not entail vast areas of land or farm portions. It will only transfer the area that is indicated on the proposed township establishment application, with a small border around the proposed development area. The related area will be subdivided from the original farm portions, and only that area transferred to a municipality. The transfer of state land does not happen as frequently as it should to enable registered individual ownership by title deed. The Dr JS Moroka Local Municipality in Mpumalanga does not own the land that their administrative building is on, for example. The land that is owned by the state that communities are living on and expressing land uses follows a system that is not easily integrated into the SPLUMA system. The land use register and the process of applications for these areas could be described as an experiment. There are no clear guidelines or institutional processes on how to address this other than the transfer of state land process. Other legislation that assisted in the transformation to the development of SPLUMA should be discussed briefly to consider the effort that went into the process of legislative development for a new land use planning system.

3.1 Town planning schemes: land use planning within the urban edge (urban areas)

The land use scheme as known in terms of SPLUMA, 85

85 Section 24(1) of SPLUMA indicates the requirement for a single land use scheme for its entire area. S 25(1) indicates that this land use scheme must determine its use and development.

Marloth Park Town Planning Scheme of 2000, for example, was promulgated under the provision of section 18 of the Town Planning and Township Ordinance 15 of 1986. 89

89 This Ordinance was relevant for the provinces of Mpumalanga, Gauteng, Limpopo and the North-West, which together formed the Transvaal province from the previous dispensation.

This means that usually each urban area would have its own administration for land use planning applications. Each administration would have planners and administrators managing the applications within the urban edge.

3.2 Subdivisions outside the urban edge and SPLUMA

Outside the urban edge, the subdivision as part of land use planning and development administration was applied for in terms of the Subdivision of Agricultural Land Act 70 of 1970 (SALA). 92

92 The Subdivision of Agricultural Land Act 70 of 1970 (SALA), which came into operation on 2 January 1971, was used to subdivide all agricultural land before the implementation of SPLUMA but was not repealed (the government published an Act in 1998 that repealed the whole Act, but the Presidency never proclaimed the operational date).

and Development of Agriculture Land Bill was introduced to the National Assembly in 2021 and it was purposed to replace SALA. 94

94 Ramothar, Marais and Coetzee 2021 https://www.fasken.com/en/knowledge/2021/07/26-the-repeal-of-the-subdivision-of-agricultural-land-act indicated that the Preservation and Development of Agriculture Land Bill was introduced to the National Assembly on 22 April 2021 by the Minister of Agriculture, Land Reform and Rural Development where transitional arrangements were established.

3.3 Land use schemes: wall-to-wall land use planning in urban and rural areas

Outside the urban edge, the provincial government managed the land use planning and development applications. This administration was largely based on the Physical Planning Act of 1967 and the Physical Planning Act

of 1991 related to a controlled area. 101

101 The Mpumalanga Provincial Government Department of Co-operative Governance and Traditional Affairs' application form to change land use in a controlled area states the foundation of s 6(1) read with s 8(1)(a) of the Physical Planning Act 88 of 1967 read together with the Physical Planning Act of 1991.

To promote co-ordinated physical planning and the utilisation of the Republic’s resources and for those purposes to provide for control of the zoning and subdivision of land for industrial purposes and of the establishment or extension of factories, for the establishment of controlled areas, for restrictions upon the subdivision and use of land in controlled areas and for other matters incidental thereto. 102

102 The summary of the Physical Planning Act 88 of 1967.

The controlled areas mentioned are areas that are declared or established under section 5 of the Physical Planning Act as a controlled area or the disestablishment of a controlled area in a proclamation in the Government Gazette. 103

103 Section 5 of the Physical Planning Act of 1967.

The concern with the validity of the Physical Planning Act was that the structure of municipalities had been changed with section 151(1) of the Constitution of 1996. The Constitution explicitly indicates that municipalities (local government) must be established over the whole of South Africa. 105

105 McLachlan and Van Schoor Letter from Chief State Law Adviser.

The wall-to-wall land use schemes would implicate the land use planning and development administration of the provincial government and the administration of municipalities to reform into one administration under the authority of every municipality. This would have a significant impact on capacity and the need for capacity within municipalities to take over the provincial government administration. Apart from the converging provincial administration, the administration of the different urban areas already merged through the re-demarcation of municipalities. This implies that there would be more than one town planning scheme in the current SPLUMA’s single wall-to-wall land use scheme. 107

107 Section 24(1) of SPLUMA.

Municipalities were under pressure after the 1st of July 2015 to comply with SPLUMA. The provincial governments at this point already anticipated the need for assistance to municipalities to align their administration with SPLUMA. 108

108 De Visser 2009 Commonwealth Journal of Local Government 13. This supportive role of the provincial government that relates to supervision forms part of its institutional role towards a municipality.

providers to adjust this generic by-law according to their respective contexts if they chose to use it. These by-laws were proclaimed or officially declared in the Government Gazette at a very high cost. 111

111 The Government Printing Works charged R1002.98 per page in 2015 for proclamations. A by-law would typically consist of approximately 90 pages.

3.3.1 SPLUMA section 24(1) and the wall-to-wall land use schemes

One of the most significant differences between a SPLUMA-compliant wall-to-wall land use scheme and the previous "town planning schemes" could be said to be the area covered and the nature of the area covered. Section 24(1) of SPLUMA indicates that a land use scheme should be developed that covers the entire municipal area. This requires each municipality to develop a wall-to-wall land use scheme that includes all urban areas, rural areas, agricultural land, previously disadvantaged areas and traditional authorities. One should note that in any of the more current land use schemes, it would indicate within the document that it represents the accumulation and integration of the relevant previous town planning schemes. This includes all areas under previous land use planning and development administrations. This integration of administration is complicated and the "how to" integration of the land use planning and development administration was left to the municipality. This was not just administrative integration, but other complications such as different ways of land ownership were present in many municipalities. The implications of processing planning applications and applying this on the land use register were left to the resolution of municipalities.

Municipalities would make decisions on development applications based on the urban edge and the location of the proposed development in terms of it.

The urban edge is not a legislative line and has the nature of a policy, 113

113 Cilliers and Schoeman "Urban Development Boundary" 87; Van Wyk Planning Law 239.

4.1 The comprehensive land use planning system vested in SPLUMA section 33(1) – the significance of the geographical municipal structure

The role of the municipality has been established in its authority over the processing and decision-making of land use planning and development applications. Section 33(1) of SPLUMA establishes the municipality as the body of first instance for land use planning and development applications within its vicinity. 115

115 Laubscher et al SPLUMA Practical Guide 183-185. After the submission of the land use and land development applications to the municipality, it is considered by the MPT (s 35(1)) or the appointed municipal official (s 35(2)).

capacity. The advancements of the government to establish this system have been long in coming and the focus was on establishing the necessary legislation. It is understandable that the considerations for capacity for this system did not enjoy the needed official administrative considerations. It was an onerous and tremendous task to produce framework legislation that could cover and address a new land use planning and development system, while addressing the historical legislation of this system, without interrupting development. Municipalities frequently are criticised for the slow processing of applications or not enforcing land use practices according to the schemes. At times the mentioned lack of assessment that was initially necessary to address the administrative system is at play. The responsibility of specifically smaller municipalities is tremendous to maintain and administer the land use planning and development system. The comprehensive system is purposed for a significantly larger administrative system and should be equipped with more professional planners and supportive staff.

4.1.1 The Constitution, the Municipal Demarcation Act and the wall-to-wall municipalities in the light of SPLUMA

The Constitution of 1996 established municipalities as an important sphere of government. 118

118 De Visser 2009 Commonwealth Journal of Local Government 9.

Various changes were made between 1993 and 2020, with significant re-demarcation during 2011 and 2020 124

124 Jeeva and Cilliers 2021 Town and Regional Planning 87-89 indicate that these changes were made to redefine administrative regions within the country in line with the Constitution and redefinition of administrative areas.

The structure of the re-demarcated municipalities was echoed in SPLUMA. SPLUMA in its definition of a municipality was in line with the 2000 to 2006 130

130 Jeeva and Cilliers 2021 Town and Regional Planning 87.

The inclusion of all areas within a municipal area and within a comprehensive land use scheme and subsequent land use planning and development system requires a practical example.

It would be useful to consider a municipality as an example of what a current wall-to-wall land use scheme will include and what it previously would exclude. A diversity of areas could be found in the integration and

compilation of the current Nkomazi Local Municipal Land Use Scheme. The Nkomazi Municipality is located within the Mpumalanga Province, bordering Eswatini, Mozambique and including parts of the Kruger National Park. The previous dispensation's "town planning schemes" that were promulgated in terms of the old provincial ordinance 132

132 Town-planning and Townships Ordinance no.15 of 1986 applied to the Mpumalanga Province.

can be envisaged. It will require an extraordinary administrative support framework to be able to be made to function efficiently and effectively.

The changing landscape of the land use planning and development administration in terms of SPLUMA after its implementation on the 1st of July 2015 had a significant practical impact on how land use planning and management are conducted in South Africa. This contribution identified the following as the main considerations:

6.1 Broadened scope of responsibility: Section 33(1) of SPLUMA effectively broadens the responsibility of municipalities in South Africa. It mandates them to include all areas, irrespective of their characteristics or utilisation, within a single land use scheme. Historically the current vast municipal area would include more than one or several land use schemes, one for each urban area. This requirement ensures the responsibilities of municipalities now extend to diverse land use types, from traditional lands to national parks.

6.2 Increased administrative burden and capacity building: The broadened scope under SPLUMA significantly enhances the administrative duties of municipalities. They are now tasked with the development and administration of comprehensive land use schemes. There were no official constructive processes to evaluate and determine capacity to facilitate the expanded responsibilities of municipalities. To efficiently handle this expanded responsibility, municipalities need to build capacity, potentially employing more professional planners and establishing new administrative systems for effective record-keeping and land use application management.

6.3 Potential risks of administrative fatigue and obstructions: If municipalities are not assisted in the evaluation of the needed capacity to effectively and efficiently administer the land use planning and development applications, it could have a negative impact on the overall planning and development processes. Inadequate administrative structures could lead to inefficiencies in the administration of planning and its applications, ultimately hindering local development and land use management.

6.4 Land use planning and development applications and land tenure: Land ownership is crucial in the consideration of planning and

development applications. The current system still requires the owners of land to provide permission to submit any land use planning and development application. Land ownership is still indicated by means of a title deed. This creates significant difficulties in the possible processing of applications. The previous "homelands" are predominantly still registered to the ownership of the government. This implies that the people with the permission to occupy the land do not have official ownership, and thus it means that municipalities must find a way to legally accommodate the people living on government owned land.

6.5 The land use register as required by SPLUMA is at risk: The difficulty in land ownership and the capacity issue within administration as indicated above in paragraphs 6.1, 6.2 and 6.3 poses a valid concern in the maintenance and credibility of the land use register.

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National Treasury 1999 http://www.treasury.gov.za/publications/igfr/1999/chapters.pdf

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Ramothar, Marais and Coetzee 2021 https://www.fasken.com/en/knowledge/2021/07/26-the-repeal-of-the-subdivision-of-agricultural-land-act

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List of Abbreviations