Spatial planning bill ends long journey in Parliament

Provincial vote powers Bill through….

cropped-parlypng3.jpgThe Spatial Planning and Land Use Management Bill (SPLUMB), in its third drafting, eventually received approval by majority of the National Council of Provinces since, as a section 76 Bill, it required provincial level debate.  The Bill, when it becomes law did not have total support since seven provinces supported it with the Western Cape Provincial Legislature being the only exception.

The Eastern Cape Provincial Legislature failed to submit its mandate causing some uncertainty on its position.   Nevertheless, the Bill was approved by the NCOP on a majority vote basis, which means the Bill was returned to the National Assembly for reading and final voting with the obvious result, since the opposition party in the NA had supported the Bill.   The wild card therefore remains the Western Cape in its provincial role.

Second go

The original Bill was withdrawn some three years ago as there was not sufficient time left to process the Bill in order to meet the Constitutional Court deadline then set.   The problems were, as was stated by government at the time “a legacy of challenges around land use and planning, causing distortions brought about by separate development policies and the Group Areas Act.”    A two year extension was then sought from the Constitutional Court.

The department of rural development and land reform said it had been known since independence that the legislation had to be repealed but in June 2010 the Constitutional Court had ruled certain provisions of the anchor act and legislation on land use, as it stood, to be both unconstitutional and invalid.

Will new Bill solve problems downstream?

municipal meetingIn any case, questions arose at the time amongst parliamentarians regarding the ability of smaller municipalities to manage the processes envisaged by the that particular Bill in the language it had been written; the lack of involvement with stakeholders; what would happen in the case of conflict between the spheres of government; whether argument on the separation of powers would arise on what government wanted and what Parliament would accept and whether the state realized that a two year delay would possibly cause more confusion, argument and insecurity.

In presenting the first draft of the re-written SPLUMB to the relevant NA portfolio committee some years later, minister Gugile Nkwinti said, “The need for legislation in land use is urgent and has to precede any policy need”, indicating that the governing party may have to surrender some of its entrenched policies on the issue to provide urgently the legislation to enable local government to perform.

Bad practices

In their presentations on the Bill, the department told parliamentarians that there had to be a set of norms and standards outlined by over-arching legislation applying to all tiers of government.   Past practices, such as “building 60,000 homes without providing a school” had to be stopped, the department said.

Same problem: who defines “the national interest”?

The main issue to develop in the debate that followed was a discussion on what constitutes “the national interest”, an all important expression or term used in the new Bill part of which is an enabling clause which gave the minister the right to act in situations at all levels of government.

The reality is, said a commentator recently, despite the noble objectives of the SPLUMB proposals, to integrate policies for the development and use of land with other policies and programmes at different levels of government and with different departments is going to be an arduous task. “It might take another five years to get any form of commonality on local ordinances”, said one parliamentarian.

The fact that the Western Cape, for reasons which it considers critical, has rejected the Bill, emphasises this.

Transparency

Meetings with SALGA and traditional chiefs have now taken place and considerable consultation with municipalities.  Metros had also been dealt with and a debate commenced with the Legal Resources Centre making recommendations for improvement, both parties basically endorsing the proposals. A “road show” to all nine provinces was conducted to obtain opinion and Controlesa (The Congress of Traditional Leaders of South Africa) were included in meetings.

A few months ago, most members of the NA portfolio committee seemed confident that after nearly seven months of debate at portfolio committee level, sufficient compromise could be reached. The Bill was approved and went to the NCOP for further debate.

The objects defined

The Bill is over forty pages long and has as its objectives constitutional imperatives to promote land planning that takes into account the environment; that enables citizens to gain access to land on an equitable basis; the right of access to adequate housing and sustainable human settlements; and realizes the need of communities to have easily available sufficient food and water.

It follows the White Paper on the subject in 2001 and fills the gap of the failed Land Use Management Bill in 2008. Finally, the purpose of the new Bill is to eliminate discriminatory practices of the past. With the no adoption of the Bill coming from the Western Cape at provincial level, it remains to be seen how the opposition party deal with voting during the Bill’s final reading process.

WP local government complaints

However, SPLUMB, in its current form, will no doubt be shortly signed into law. With the Premier of the Western Cape, Patricia de Lille, now attempting to over-ride WP local government on a whole host of land planning matters, there are already major objections at many levels and it remains to be seen how practical much of this legislation is going to be at grass roots level.

More background articles on subject
http://parlyreportsa.co.za//justice-constitutional/spatial-planning-land-use-management-bill-moves-on/
http://parlyreportsa.co.za//cabinetpresidential/minister-says-need-for-legislation-on-land-reform-a-priority/

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