Joburg challenges zoning act

The city of Joburg was to go to the Constitutional Court today in an attempt to nullify an act giving the Gauteng Development Tribunal the right to rezone land.

The city wants the Constitutional Court to confirm a Supreme Court of Appeal ruling declaring chapters five and six of the Development Facilitation Act (DFA) unconstitutional.

The DFA provides for the Gauteng Development Tribunal, which was established by the provincial government, to hear applications for matters including the rezoning of land.

This, according to the city, conflicts with the town planning and townships ordinance which provides for the city to make a determination on the same matters.

The city first challenged the act in the Johannesburg High Court in 2007 after the Gauteng Development Tribunal approved two applications for rezoning of land in Roodekrans and Ruimsig, west of Joburg, in 2004. Both areas fell outside the municipality's urban development boundary.

The application was, however, dismissed by the High Court in 2008, prompting the city to approach the Supreme Court of Appeal the following year.

The Supreme Court of Appeal then ruled that chapters five and six of the DFA were invalid, and that the Development Tribunal should not accept or consider any application for the granting or alteration of land use rights in a municipal area.

The Development Tribunal would also not amend any measure regulating or controlling land use within a municipal area, the court ruled then.

The city wanted the court to declare the legislation to be invalid with effect from August 16, 2005 and to review the approval by the Development Tribunal of the establishment of the two townships in Roodekrans and Ruimsig.

The court dismissed the application, saying the decisions of the development tribunals would be difficult to reverse. It ruled that the appropriate order was to protect the validity of decisions already made, enable tribunals to continue functioning until the offending legislation was replaced, but restrict their activities to legitimate functions.

"Needless to say, the declaration of invalidity has no force unless and until it is confirmed by the Constitutional Court," the court ruled.

Other parties which have requested to join the proceedings include the MEC for local government and traditional affairs in KwaZulu-Natal, the eThekwini municipality and Mpu-malanga's MEC for agriculture, rural development and land ad- ministration.

The SA Property Owners' Association and the SA Council for Consulting Professional Planners have been admitted as friends of the court.

They oppose confirmation of the Supreme Court of Appeal's order.

The Star

Posted at 09:47AM Feb 24, 2010 by Editor in Residential  |