THE PLANNING PERSPECTIVE OF LAND REFORM

1. THE PLANNING PERSPECTIVE OF LAND REFORM PROFESSOR JEANNIE VAN WYK

2. OUTLINE • Some history • Development Facilitation Act 67 of 1995 • White Paper Wise Land Use 2001 • Planning powers • SPLUMA 16 of 2013 • Proposed provincial legislation

3. HISTORY • Prior to 1994 (and largely still the case) planning was regulated according to the division of land in South Africa: - “White” South Africa; - “Black” townships in “white” South Africa; - Homelands (Gazankulu, KaNgwane, KwaNdebele, KwaZulu, Lebowa, QwaQwa); - “Independent” states (Transkei, Bophuthatswana, Ciskei, Venda) - SADT land

4. IN PRACTICE

5. CoJ v GDT 2010 para 32 “… the difficulty with these ordinances is that they apply only in those territories that formed part of the old Cape, Natal, Orange Free State and Transvaal Provinces. They have no application to the former “independent” homelands and self-governing territories, which were governed by a parallel system of planning legislation. Furthermore, the creation of the nine provinces has meant that there has been further fragmentation as each province may be subject to a multiplicity of territorially-based legislative regimes.”

6. Development Facilitation Act 67/1995 “Policy, administrative practice and laws should promote efficient and integrated land development in that they contribute to the correction of the historically distorted spatial patterns of settlement in the Republic…” (s 3(1)(c)(vii))

7. Wise Land Use White Paper 2001 “…. an extraordinarily complex and inefficient legal framework, with planning officials in all spheres of government having to deal with numerous different systems within the jurisdiction of each province, and indeed within most municipalities. The difficulty of dealing with this legal inheritance compounds the already difficult task of planning for sustainable, integrated and equitable land use and development in South Africa. The need to rationalise this situation, through overarching national legislation, is an important rationale ….”

8. PLANNING POWERS IN CONSTITUTION 3 spheres of government National/provincial concurrent power - “Regional planning and development” (Sch 4 Part A) - “Urban and rural development” (Sch 4 Part A) - “Municipal planning “(Sch 4 Part B) Provincial exclusive power - “Provincial planning” (Sch 5) Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2010 (6) SA 182 (CC)

9. SPLUMA 16 of 2013 Preamble: “…many South Africans continue to live and work in places defined and influenced by past spatial planning and land use laws and practices which were based on racial inequality, segregation and unsustainable settlement patterns. Moreover the continued existence and operation of multiple laws at national and provincial spheres of government in addition to the laws applicable in the previous homelands and self-governing territories have created fragmentation, duplication and unfair discrimination..”

10. SPLUMA – Development Principles - spatial justice, whereby— (i) past spatial and other development imbalances must be redressed through improved access to and use of land; (ii) spatial development frameworks and policies at all spheres of government must address the inclusion of persons and areas that were previously excluded, with an emphasis on informal settlements, former homeland areas and areas characterised by widespread poverty and deprivation; (iii) spatial planning mechanisms, including land use schemes, must incorporate provisions that enable redress in access to land by disadvantaged communities and persons; … (s 7(a))

11. SPLUMA REPEALS • Removal of Restrictions Act 84/1967 • Physical Planning Act 88/1967 • Less Formal Township Establishment Act 113/1991 • Physical Planning Act 125 /1991 • Development Facilitation Act 67/1995

12. PROVINCIAL LEGISLATION Northern Cape Planning & Development Act 7/1998, now SPLUMB 2012 KwaZulu-Natal Planning and Development Act 6/2008 Western Cape Land Use Planning Bill GG 7080 of 18/01/13 Gauteng Planning and Development Bill 2012 Limpopo SPLUMB 2012 Eastern Cape Planning and Development Bill 2012 Mpumalanga Planning Bill 2013 North West SPLUMB 2013 Free State Planning and Development Bill 2013

13. AIMS of PROVINCIAL BILLS Gauteng Planning and Development Bill 2012: “WHEREAS the system of land use planning and development in provincial legislation has not been changed since the introduction of non-racial democracy in South Africa and is no longer appropriate; WHEREAS there is a need for the use and development of land to be developmental and to be based on normative values which reflect democratic imperatives….” (Preamble)

14. AIMS of PROVINCIAL BILLS Western Cape Land Use Planning Bill GG 7080 of 18/01/13: “…. planning legislation has not kept track with constitutional changes as development management is currently still being conducted in terms of legislation that predates the Constitution”. (Memorandum on objects)

15. REPEALS Land Use Planning Ordinance 15/1985 (C) Western Cape Town Planning and Townships Ordinance 15/1986 (T) Gauteng, Limpopo, Mpumalanga Black Communities Development Act 4/1984 (R1897) Gauteng, Limpopo, Western Cape Black Administration Act 38 /1927 (GN R1886/1888) Limpopo, Mpumalanga Act 1/1991 & 10 /1992 Kwandebele Town Planning Acts Mpumalanga Rural Areas Act (House of Representatives) 9 /1987 Western Cape

16. CONCLUSIONS? Thank you