Appropriate Internal Appeal Mechanisms for Approval of Building Plans: Exploring the Gaps Left by the Constitutional Court

Authors

DOI:

https://doi.org/10.17159/1727-3781/2020/v23i0a7938

Keywords:

South African municipalities, building regulations, exclusive executive powers, building plans, review of municipal decisions

Abstract

This article explores the gaps left by the Constitutional Court's jurisprudence in relation to what the appropriate internal appeal mechanism should be at the level of municipalities for the approval of building plans. This follows the unanimous judgment of the Constitutional Court in City of Johannesburg Metropolitan Municipality v Chairman of the National Building Regulations Review Board 2018 5 SA 1 (CC) in which the Court found section 9 of the National Building Regulations and Building Standards Act 103 of 1977 (NBR Act), subjecting municipal building decisions to appeal by a "Review Board" appointed by the Minister of Trade and Industry, to be inconsistent with the original constitutional powers of municipalities over planning and building regulations. We argue that although the ground for holding section 9 of the NBR Act unconstitutional is already deeply entrenched in the Court's planning jurisprudence, the judgment has left a whopping gap on where prospective/future appeals can be lodged and the nature of such an appeal mechanism, where municipal officials disapprove building plans in terms of section 7 of the NBR Act. It is submitted that the invalidation of section 9 by the Court has completely left it up to each individual municipality to decide on whether and how an internal appeal for the approval of building plans is to be pursued. After exploring the options available in terms of other local government legislation, we argue that the most appropriate way to close the gap left by the Court is for Parliament to enact an amendment to the NBR Act providing for an internal appeal mechanism that allows for a measure of coherence and uniformity across municipalities, and yet respects the autonomy of local government.

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Author Biography

  • Oliver Fuo, Faculty of Law at the North-West University

    Dr. Oliver Fuo is Associate Professor in the Faculty of Law, North-West University, Potchefstroom Campus. His areas of expertise include: Local Government Law; Socio-Economic Rights Law; and Constitutional Environmental Law. He has published several peer reviewed papers on issues that cut accross his areas of specialisation in DHET accredited journals and has presented several papers in national and international conferences.

References

Bibliography

Literature

Fuo O "Intrusion into the Autonomy of South African Local Government: Advancing the Minority Judgment in the Merafong City Case" 2017 De Jure 324-345

Hoexter C "The Future of Judicial Review in South African Administrative Law" 2000 SALJ 484-519

Hoexter C Administrative Law in South Africa 2nd ed (Juta Claremont 2012)

Govender K "Administrative Appeals Tribunals" in Bennet TW et al (eds) Administrative Law Reform (Juta Cape Town 1993) 76-87

Michaelman F "Rule of Law. Legality and the Supremacy of the Constitution" in Woolman S et al Constitutional Law of South Africa 2nd ed (Juta Cape Town 2015) Vol 1, Ch 11

Quinot G et al Administrative Justice in South Africa – An Introduction (Oxford University Press Cape Town 2015)

South African Law Commission Project 24: Report - Investigation into the Courts' Powers of Review of Administrative Acts (The Commission Pretoria 1992)

Case law

City of Johannesburg Metropolitan Municipality v Chairman of the National Building Regulations Review Board 2018 5 SA 1 (CC)

City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2008 4 SA 572 (W)

City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2010 2 SA 554 (SCA)

City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2010 6 SA 182 (CC)

Georgiou v Nelson Mandela Bay Metropolitan Municipality 2016 4 All SA 524 (ECP)

JDJ Properties CC v Umngeni Local Municipality 2013 2 SA 395 (SCA)

Koyabe v Minister for Home Affairs 2010 4 SA 327 (CC)

MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd 2014 3 SA 481 (CC)

Minister of Local Government, Environmental Affairs and Development Planning of the Western Cape v Lagoonbay Lifestyle Estate (Pty) Ltd 2014 1 SA 521 (CC)

Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v The Habitat Council; Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v City of Cape Town 2014 4 SA 437 (CC)

Municipality of the City of Cape Town v Reader 2009 1 SA 555 (SCA)

Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 6 SA 222 (SCA)

Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal Tribunal 2016 3 SA 160 (CC)

Walele v City of Cape Town 2008 6 SA 129 (CC)

Legislation

Cape Land Use and Planning Ordinance 15 of 1985

Constitution of the Republic of South Africa, 1996

Development Facilitation Act 67 of 1995

Free State Townships Ordinance 9 of 1969

Local Government: Municipal Structures Act 117 of 1998

Local Government: Municipal Systems Act 32 of 2000

Natal Town Planning Ordinance 27 of 1949

National Building Regulations and Building Standards Act 103 of 1977

National Regulator for Compulsory Specifications Act 5 of 2008

Promotion of Administrative Justice Act 3 of 2000

Spatial Planning and Land Use Management Act 16 of 2013

Transvaal Town-Planning and Townships Ordinance 15 of 1986

Government publications

GN 2074 in GG 9927 of 13 September 1985 (Review Board Regulations)

GN R2378 in GG 12780 of 12 October 1990 (National Building Regulations)

GN R239 in GG 38594 of 23 March 2015 (SPLUMA Regulations)

Internet sources

City of Johannesburg Date Unknown City of Johannesburg Cellular Mast Policy http://www.joburgtourism.com/files/useruploads/user_anon/files/

apps_cellmast.pdf accessed 15 July 2018

National Regulator for Compulsory Specifications 2019 National Building Regulations https://www.nrcs.org.za/content_main.asp?menuID=12 accessed 5 February 2020

National Regulator for Compulsory Specifications 2019 National Building Regulations – Review Board Decisions https://www.nrcs.org.za/

content.asp?subID=4151#1 accessed 5 February 2020

Published

16-09-2020

Issue

Section

Articles

How to Cite

Raboshakga , N. ., & Fuo, O. (2020). Appropriate Internal Appeal Mechanisms for Approval of Building Plans: Exploring the Gaps Left by the Constitutional Court. Potchefstroom Electronic Law Journal, 23, 1-32. https://doi.org/10.17159/1727-3781/2020/v23i0a7938

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