Mike Coleman
Viewing East London through the lens of a satellite camera reveals just how little post-1994 development has shifted away from apartheid-era patterns of land use.
We see the matchbox exile of RDP housing at Reeston, for example — 20km from the city centre — and, in contrast, the undeveloped 20-hectare "sleeper site", formerly owned by Transnet and now municipal land, right next door to the central business district. In the intensifying debate about land reform, this contrast brings important attention to bear on the role of spatial planning in implementing land-use decisions.
The link was explicitly made at the ANC's land summit on expropriation in May, when NEC member Ronald Lamola said: "Spatial planning is now happening at a local level. There is no Act that gives specific powers to the national government in order to guide this process."
Indeed, there has been little link between national policy and local spatial planning decisions on development; in this Lamola put his finger on a crucial omission. But there is rich irony in his call for a national law that will allow central government to lead the process. Spatial planning in South Africa had long been largely a provincial function, with authority delegated to bigger towns and cities under "town planning".
In 1998 and 2000, the Municipal Structures and Systems Act created wall-to-wall municipalities, covering not just urban but rural areas too, and requiring them to create integrated development plans (IDP) and spatial development frameworks (SDF).
Unfortunately, there was no implementing link between these guideline documents — which fell under cooperative governance and traditional affairs nationally — and actual decisions under the existing spatial planning system, which fell under the department of land affairs nationally, but under provincial legislation and provincial departments of local government.
There is further irony in the fact that a law which purports to put in place a uniform national planning system has created over 200 separate municipal planning bylaws, all varying.
For 15 years land affairs and its successor, rural development and land reform, dithered over a national spatial planning law until the drafting of the Spatial Planning and Land Use Management Act (SPLUMA) of 2013, which came into effect in 2015. Hence the irony of Lamola's call for a national law. There is one — SPLUMA — put in place by his own ANC government.
This Act effectively removed spatial planning authority from provinces and gave it to 257 municipalities at the local government level. This was confirmed by the Constitutional Court. There is further irony in the fact that a law which purports to put in place a uniform national planning system has created over 200 separate municipal planning bylaws, all varying.
There are a number of constraints to the implementation of SPLUMA. Each municipality has to put in place its own spatial planning bylaw (because the SPLUMA regulations are inadequate), and appoint its own Municipal Planning Tribunal and Appeal authority, all to be gazetted.
Many are not yet compliant, including the two Eastern Cape metros, each with large planning departments, let alone small local municipalities who have only one or two junior planners and are consequently placed under unfair pressure. Development applications are consequently still being processed under the applicable old legislation.
At the same time, no provision was made for the existing provincial ordinances to be repealed by their respective legislatures, or for transitional arrangements until SPLUMA is fully implemented. Most of the members of SPLUMA tribunals are municipal and government officials, whereas previous planning boards always balanced officials with public appointees.
The generic bylaw pushed to the municipalities by the department of rural development and land reform insisted on two each of professional qualified lawyers, engineers, architects, planners, environmentalists and auditors. Many municipalities have removed this dream-world requirement to match more realistic criteria and budgets.
The repeal schedule of the Act threw out some valuable babies with the bathwater, including public participation and negotiation provided for under the former Development Facilitation Act.
Yet its crucial that tribunal members include public outsiders, because oversight of a process confined only to officials is not acceptable in the present setting, which is defined by a weakness of municipal governance and a high potential for corruption. Removing title conditions, previously restricted to the High Court, can now be done by a municipal official. Even more concerning is that the appeal body is now the mayor.
Then a wall-to-wall land use scheme has to be prepared, including rural areas where traditional leaders are adamantly opposed to what they see as a diminution of their authority. The land use categories scheduled by the Act do not cover the complexities of communal land tenure and use.
Furthermore, the repeal schedule of the Act threw out some valuable babies with the bathwater, including public participation and negotiation provided for under the former Development Facilitation Act, along with the powers it conferred to hasten land reform schemes. Thousands of site applications under the repealed Less Formal Townships Act are left in limbo.
To meet Lamola's and the ANC's intentions at national level will require persuading the government to match function to organisation by realigning the spatial planning function of SPLUMA away from the department of rural development and land reform (which has no capacity or authority over municipalities) to the department of cooperative governance and traditional affairs, which is responsible for municipalities and has experience and capacity in the planning field.
This would leave rural development and land reform to cope with the consequences of the expropriation initiatives, in which it supposedly does have the capacity.
Mike Coleman is a land, rural development and agricultural planning consultant based in Eastern Cape. This article was commissioned by the Institute of Race Relations (IRR), a think tank that promotes political and economic freedom. If you agree with what you have just read then click hereor SMS your name to 32823.
