Unravelling Apartheid Spatial Planning Legislation in South Africa

Abstract

The reform of spatial planning and land use legislation in South Africa has been difficult to achieve. The laws designed to implement the urban plans of apartheid remain stubbornly in place. This case study shows that despite there having been three windows of opportunity during which far-reaching law reform seemed likely there has been little change. The only post-apartheid national land development law, the Development Facilitation Act, has been found to transgress the Constitutional powers of local government. With its demise the country falls back entirely on pre-democratic planning legislation. Fundamental to effective planning law reform is a constitutional framework that clearly delineates the legislative powers to regulate planning and land use. A clear and shared understanding of what planning can and cannot achieve is also important, as is an effective alignment of planning law reforms with those of other sectoral laws such as local government and environment. Planning law, especially in a country of great inequality, inevitably gives rise to litigation. Drafters of new planning legislation cannot afford not to pay attention to the minutiae of how the planning system operates. Such a failure opens new planning initiatives to legal attack.