The consultation process on new legislation that aims to provide clear guidelines on land use as well as the zoning and re-zoning of land has not yet been completed, and it seems likely that the bill will not be passed before the deadline set by the Constitutional Court. This was revealed when the Department of Rural Development and Land Reform (DRDLR) briefed the Select Committee on Land and Environmental Affairs on the Spatial Planning and Land Use Management Bill, which is intended to replace the Development Facilitation Act.
The department’s executive manager for spatial planning and information, Sunday Ogunronbi, explained that, in June 2010, the Constitutional Court had ruled certain provisions of the act unconstitutional and invalid, but had suspended the order of validity, to give the department until 17 June 2012 to correct the situation. A decision had then been taken to replace the act with the Spatial Planning and Land Use Management Bill.
But DRDLR director-general Mdu Shabane said there isn’t enough time left to process the bill, in order to meet the Constitutional Court deadline. Hence an application has been made to the court to extend the deadline for a further two years. However, according to Annelize Crosby, Agri SA’s legal and policy advisor, the department has had ample time to complete consultation on the bill.
“I don’t know why it waited until the last minute to finalise the bill because there’s been more than enough time for proper consultation in the National Council of Provinces (NCOP) and the portfolio committee,” she said. Crosby added that the National Economic Development and Labour Council (Nedlac) process on the bill hasn’t yet been completed and the concerns raised by organised agriculture during the Nedlac process have not yet been taken into consideration.
“We feel that the bill in its current form does not offer sufficient protection for agricultural land,” said Crosby. “In the Nedlac process we argued that special conditions should apply for high potential agricultural land to ensure that it cannot be freely rezoned for other uses such as mining or residential developments.” The DA’s spokesperson for rural development and land reform, MP Athol Trollip, has complained that the bill is being rushed through parliament saying that public participation and consultation “has been not only deficient but wholly inadequate.”
Trollip added he’s worried “the problematic provisions of this bill that have been deemed to be unconstitutional have not adequately been amended or amended at all.” One of the main concerns about the bill is that it could create conflict between the spheres of government, and several stakeholders have said the bill might interfere with the separation of powers.
Prof Dirk Kotzé, from the Department of Political Sciences at Unisa, told Farmer’s Weekly that the bill is an example of the division of constitutional powers between the national and provincial governments. Schedule 4 Part A of the Constitution lists the concurrent powers, that is those shared by the national and provincial governments, such as regional planning and development and related matters like soil conservation, he said.
“However, there’s no direct reference to ‘land use’, which means that the national government will usually handle the policy aspect in this regard and the provincial government will be in charge of implementation. “This also means that provincial legislation (ordinances) should not be in conflict with national legislation and where there is conflict the provincial legislation will have to be amended,” said Prof Kotzé.