Abstract
The Constitution determines that the legislative and executive powers regarding 'regional planning and development', 'urban and rural development', 'provincial planning' and 'municipal planning' are divided among the three spheres of government. Yet the boundaries between these items listed in Schedules 4 and 5 of the Constitution are opaque and their precise content is not always apparent. Overlaps, conflicts and uncertainty may occur.
 
 In a number of landmark decisions the courts have provided content to these different functional areas. Clarity on what 'municipal planning' comprises leads to more certainty on the content of the other planning areas. Draft legislation such as the Spatial Planning and Land Use Management Bill (B14-2012) can also assist in adding substance to a demarcation of these different functional areas. Yet uncertainties still remain, occasioned by constitutional provisions such as sections 100, 139(1) and 155(6)-(7), that permit intervention by national and provincial government in provinces and municipalities respectively, as well as the support and monitoring by provincial government in respect of municipalities.
 
 Few clear solutions are immediately apparent. The role of the constitutional principles of co-operative government where uncertainty and conflict exist is examined, especially where no veto of one sphere over another is possible. Principles of interpretation can also assist in delineating the boundaries of the different functional areas. It seems, however, that the courts will find themselves having to address the remaining inconsistencies.
Highlights
In a somewhat unusual manner, the South African Constitution provides for three 'distinctive, interdependent and interrelated' 'spheres' of government[1] instead of the more conventional 'levels' or 'tiers', where the lower tier is beholden to the higher
A groundbreaking decision of the CC was Johannesburg Metropolitan Municipality v Gauteng Development Tribunal,[23] a case dealing with the constitutionality of chapters V and VI of the Development Facilitation Act 67 of 1995
The trend set by Wary Holdings and Gauteng Development Tribunal was confirmed in the Maccsand and Swartland Municipality[53] cases
Summary
In a somewhat unusual manner, the South African Constitution provides for three 'distinctive, interdependent and interrelated' 'spheres' of government[1] instead of the more conventional 'levels' or 'tiers', where the lower tier is beholden to the higher. Against the background of the legislative and executive authority of the different spheres of government, this article will attempt to unravel the content of the four functional areas directly relating to planning. These areas, as listed in Schedules 4 and 5 of the Constitution, are 'regional planning and development', 'urban and rural development', 'provincial planning' and 'municipal planning'. Giving practical effect to cooperative government and intergovernmental relations in South Africa is easier said than done, not least because of the allocation of functions to the different spheres by the Constitution itself
Sign-in/Register to view highlights & summary Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callDisclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
