Planning Law Reform and Change in Post-apartheid South Africa

Chapter 3
Planning Law Reform and Change in Post-apartheid South Africa

Mark Oranje and Stephen Berrisford

Over the last seventeen years, much has been said and written about the need to radically transform the deeply unequal and divided South African society and the country’s settlement pattern that not only reflects, but also entrenches and enforces it. While significant changes have been made in the country’s institutional superstructure, the material conditions on the ground have proven to be far harder to change. In addition to this, components of the superstructure that could potentially assist in ensuring the latter, such as planning law, have proven resistant to change. Despite this, a strong view remains that a new planning law can, and will make a major impact in the pursuit of societal transformation.

These introductory comments raise many questions, such as: Does this positive view of the transformative power of planning law have merit? What is the view based on? Is it located in a belief in the power of planning law to create and sustain economic value through the allocation and regulation property rights? Following on from this, if it was perceived in this way, why did the State not do more to see new planning legislation passed? What prevented it from seeing through the desired changes, and why is planning law reform so difficult to push through?

In this chapter, we seek to engage these questions through an exploration of the post-Apartheid endeavours at producing a new planning law-framework for the country. In this process, we explore the challenges the process encountered and the results/impacts of the changes that were made.1 While not comprehensive, it does provide a base to enable at least a tentative engagement with the issues as raised. In addition, it provides a case-study for those interested in transforming planning law for the purpose of using it to realize other objectives, for example environmental sustainability.

The chapter has four parts. The first provides a brief overview of planning and planning law in South Africa, pre-1994. The second tells the story of the route travelled with regard to planning law over the last seventeen years. The third discusses elements of the post-1994 route, seeks to make sense of what happened and engages the questions as raised above. The last provides a series of conclusions.

Planning and Planning Law circa 1994

When South Africa’s first democratically elected government took office in May 1994, it found a planning system and planning law framework that had for more than 150 years been intertwined in the economic objectives and ideological ambitions of successive colonial and Apartheid regimes.2 As this framework is the one that the new government sought to change, a few notes on its history, characteristics and functioning are of value.

Planning legislation (in name) was first introduced in South Africa in the early 1930s. This followed a long struggle by a small group of visionary urbanists, primarily architects, to overcome strong property sector interests and drawn-out intergovernmental tussles as to where such legislation should be located. The system made provision for orderly procedures to be followed when (1) establishing new settlements, and (2) allocating and changing the development rights on properties. This was a far cry from the modernist, utopian ideals of many of its early proponents, which included comprehensive futurist plans and targeted intervention for the public good (Oranje 1998).

Given the country’s status as a British colony until 1910, and a Dominion between 1910 and 1961, it was strongly influenced by similar legislation passed in Britain. In essence, conditions in that country were the main point of reference.3 At the same time, planning law was from the outset conceived and promulgated for exclusive use in the ‘European/White areas’ in towns and cities.4 The comprehensive and enforced planning system established in this way, enabled (1) the orderly development of towns and cities in ‘White South Africa’, and (2) the creation and protection of property wealth in these areas. In ‘areas set aside for African occupation’, rudimentary land-use planning/parcelling was done; nothing that even remotely resembled the detailed regulatory systems put in place in White areas, even after more sophisticated planning systems were instituted in ‘peripheral urban areas set aside for Black people’ in the mildly reformist 1980s and early 1990s.

The decades of macro-segregation, separation and the ‘cutting out’ of ‘Bantustans/homelands’ from ‘white South Africa’ from the early 1970s onwards, resulted in the creation of a complicated legal framework. The four provinces created in 1910, and the ten Bantustans over the next eighty years, each had in place a different planning law system. When nine new provinces were created in 1994, provincial and local authorities were tasked with administering in some cases up to seventeen pieces of planning legislation, each with different application procedures, terminologies, definitions and submission and approval mechanisms (Oranje 2002). As part of the agreements reached in the run-up to the 1994-elections by the then governing National Party and the African National Congress (ANC), any law in existence before the political transition remained in force afterwards in relation to the geographical area to which it had applied beforehand. In doing so, a situation of legally sanctioned, unequal treatment was established, as the legislation for the former ‘White areas’ provided far more public protection and community participation than the legislation in the former ‘African areas’ did.

In most municipalities, urban planning was located as a sub-section in City Engineers’ Departments (Oranje 1998). Situated in these technical departments, planning was essentially called upon to do two things: (1) development control through the regulation of land-use and development rights, and (2) so-called ‘forward/master planning’. The latter was instituted in the 1970s in the larger towns and cities, and typically entailed the production of static blueprint-like master and structure plans. These plans had limited powers of enforcement, were generally not considered in municipal budgeting and were primarily used when engaging prospective developers on development applications. These plans were not treated with much respect by developers or other professionals, leading in many municipalities to the gradual marginalization of plans and their drafters and custodians, that is, the planners.

The introduction of planning legislation in the country was accompanied by the emergence and development of a distinct planning profession. Whereas ‘planning work’ (for example settlement layouts and applications for land development rights) was in the first half of the twentieth century largely done by architects and land surveyors, a new planning profession emerged in the 1950s. New on the scene, much smaller than the older established professions (notably the architects and the engineers), and eager to be taken seriously, the profession adopted a low-key, subservient role. As such, it was an exercise in ‘pleasing’ – both the State and the private, property development sector. This resulted in planners expediently focusing on the technical detail of their work and steering clear of controversy. This meant that they did not speak out en masse against the implications of Apartheid for the lives and life chances of Black South Africans in peripheral, rudimentary and under-serviced settlements throughout the country. In a far cry from the reformist roots of planning in notably Great Britain, planners acted as cold, task-oriented bureaucrats. They were cogs in a machine that was very good at keeping things as they were, not at changing them. This bureaucratic, apolitical stance met with growing opposition from progressive individuals and NGOs especially from the 1980s onwards, which by the early 1990s had resulted in a deep fracture in the profession. This, together with the scorn heaped on it for its unquestioning involvement in the Apartheid system,5 saw the planning profession weak and divided at the transfer of power in April 1994.

Planning Law Post-1994

While there were many uncertainties in the early days of the new dispensation, there was no lack of certainty that the pre-1994, differentiated planning system had to be replaced with ‘one equal planning system for all’. On the specifics of this new system there was less clarity. Should there for instance be one national planning Act, or one national Act operating in tandem with nine provincial Acts, or only nine provincial Acts? It was hoped that this would be resolved through the Constitution-writing process underway at the time, but this was not to be.

The final 1996-Constitution addressed the issue of which ‘sphere’ of government – national or provincial – would exercise particular legislative competences. However ‘town/urban planning’ was not included in the crucial lists of law-making functional areas.6 The lists did include other areas for law-making such as ‘provincial planning’, ‘regional planning and development’, ‘municipal planning’ and ‘urban and rural development’, but did not clarify how these related to the existing structure and activity of ‘town and regional planning’. This resulted in legal uncertainly as to whether national or provincial government was charged with the responsibility of planning law reform.

Amidst these uncertainties, the national government passed new legislation in October 1995, the Development Facilitation Act (‘the DFA’).7 The DFA signalled a major departure from the pre-1994 planning legislation in a number of ways: Firstly, the Act was grounded in and included a set of normative principles with which all development and planning activities had to comply. These principles centred on the need to remove the spatial inequities created by apartheid and as such signalled a transformative role for planning. Secondly, the Act instituted strategic planning in the local government sphere by requiring all municipalities to prepare Land Development Objectives (LDOs) on a five-year base, and to conduct annual reviews of these ‘plans’. The LDOs effectively became the first post-apartheid municipal planning instrument. Thirdly, the DFA provided for provincial Development Tribunals as an alternative decision-making body on land use and land development applications. The choice whether to submit an application to a Development Tribunal or the municipality lay with the applicant. These Tribunals had extraordinarily wide powers, including the right to suspend the operation of a number of planning, environmental and land administration laws that would otherwise have had a dilatory effect on the application. The Tribunals were also empowered to summon witnesses to appear before them, including government officials. Almost the only constraint on the Tribunals’ discretion was that their decisions had to be consistent with the applicable LDOs. Finally, in step with its interim status, the Act provided for the establishment of a national Development and Planning Commission (DPC)8 on which planning and development experts and activists would serve. This body was charged with researching alternatives to the inherited legal and policy frameworks for urban (and rural) development and planning, and advising the new government on reform in these areas.

The implementation of the DFA had barely begun, when the Local Government Transition Act Second Amendment Act, No 97 of 19969 was passed. This law placed a legal requirement on all local authorities to prepare Integrated Development Plans (IDPs). The linkage of these Plans to the LDOs was clear, with this Act defining an IDP as

a plan … which has been compiled having regard to the general principles contained in Chapter 1 of the Development Facilitation Act, 1995 (No 67 of 1995), and where applicable, having regard to the subject matter of a land development objective contained in Chapter 4 of that Act. (Republic of South Africa, 1996: 4)

This period (the late 1990s) also saw a flurry of provincial law-making. In the case of Kwazulu-Natal, this went smoothly, resulting in the Kwazulu-Natal Planning and Development Act, No 5 of 1998, in June 1998. In the Western Cape, it was just the opposite with the initial conflict around the DFA escalating to what a regional newspaper referred to as a ‘constitutional battle’ (Oranje 2002). After much heated debate around the Bill, the Western Cape Planning and Development Act, No 7 of 1999, was eventually promulgated in April 1999. In the primarily rural Northern Cape, the provincial legislature not only succeeded in enacting its Planning and Development Act in 1999 but, uniquely at the time, in bringing the new law into operation. In the Gauteng Province, a bill was completed in 1999, but failed to make the final transition into legislation until 2003. A Development Planning Bill was drafted in the North West Province, but failed to get through the legislature. In the case of the Gauteng Province, the delay in getting the Act passed was said to be primarily a result of this province waiting for national government to finalize the Municipal Systems Bill, a new piece of legislation containing specific sections dealing with municipal planning (Oranje 2002).

At the same time, a range of national government departments embarked on a process of drafting new sector legislation, with the national Departments of Water Affairs and Forestry, Transport and Housing all promulgating new laws placing additional planning requirements on municipalities.10 In addition to this, driven both by a series of local factors, and international wisdom at the time favouring decentralized, local planning,11 the Ministry of Constitutional Development12 produced a White Paper on Local Government in 1998. This White Paper articulated strong developmental and planning roles for municipalities. Subsequent to this, the Department embarked on the preparation of a suite of enabling and empowering local government legislation to give expression to that policy framework.13

As South Africa entered the first decade of the twenty-first century, the country had (1) a White Paper on the rationalization of planning laws, and (2) a draft Land Use Management Bill, in the public domain. At this point it seemed likely that the country would have a new land-use management system in place by the time of the celebration of the ANC’s first decade in power in 2004. This, however, was not to be.

The first setback came with the new Land Use Management Bill itself, which was widely shunned. The reasons included: (1) its simplistic approach vis-à-vis the sophistication of the DFA and some of the post-1994 provincial bills and Acts; (2) the powers it sought to concentrate in the hands of the national Minister of Land Affairs responsible for the Act; and (3) the absence of an engagement with environmental aspects. At the same time, the Department of Land Affairs, the custodian of planning law and legislation regulating the planning profession, was going through a challenging period. To some extent, this was attributable to the department having lost many of its older White technocrats and the former activists that had joined its ranks in the first years after the democratic transition. Land reform, one of its key mandates, was also not proceeding as had been anticipated, which diminished its stature in the eyes of activists, researchers, the media and the public, as well as other national departments.