GlobalView

Add Add to Quick Collection

Please use this identifier to cite or link to this item: http://hdl.handle.net/10210/17012

OCR Text

The Impact of the Legislations Used to Regulate Spatial Planning and Land
Use Management in South Africa

Nokhukanya Dlamini, Dr. Walter Musakwaz

Research Student, zSenior Lecturer
Department of Town and Regional Planning
Faculty of Engineering and the Built Environment
University of Joharmesburg, Beit Street, Doomfontein, South Africa
2 Email: wmusakwa@uj .ac.za, TelI-i-ZT-l 15596318

Abstract

1n most post-independence states in Africa, there is still a mixture of pre and postcolonial planning
legislation. South Africa has put in place a myriad of planning legislations to make cities and towns great
places to live. However, have these planning laws created great places 0r still perpetuated segregation,
albeit of another kind? New laws such as spatial planning and land use management act have been put in
place, but one wonders, is it just a repackaging of previous failed policies? This study therefore looks at the
extent at which post-apartheid planning legislation have created great places in towns and cities in the
Eastern Cape. Emerging findings point out that nothing much has changed, therefore what could be the way
forward in creating spatially and economically integrated cities and towns.

Keywords: DFA, SPLUMA, Ordinance, Planning, Tribunals

1. INTRODUCTION

Spatial planning land use management as well as development are dynamic elds that change constantly.
The challenges facing spatial planning and land use management are affecting either directly or indirectly
on the feasibility of development projects. It also affects the socio-economic feasibility with specic
reference to urban growth patterns, it affects the physical feasibility as it affects the legal requirement and
it affects the financial feasibility due to time constraints. Cloete (1999).

The historical background of spatial planning in the South Africa is the most of the challenges facing land
use management. Reference is here not only made to the Political and Physical history, but also the
legislative history. Between 1910 and 1930 where British planning inuence began, there was a strong
provincial inuence over land, together with a tendency to shape settlement pattern along ethnical and class
lines. From 1930, which is Post-war reconstruction, the concept of an in wardly orientated neighborhood
unit and the dominance of the motorcar. Cloete (1999:16-19)

From 1948, which is Grand apartheid era, featured the formulation and implementation of separate
development of all aspects. From 1976, the Soweto uprising resulted inter alia in a rapid increase of informal
settlements .From 1985, late apartheid reforms this is a stage where change was eminent due to internal and
international opposition. National Development 8c Planning Commission (l999:45) Yogi & Aksum
(200794) states that the urban development problems and land use management currently in most Aican

Conference Proceedings: Planning Africa 2014 - Making Great Places, 19"*-22"" October, 2014,
International Convention Centre (ICC), Durban, South Africa
ISBN: 978-0-86970-781-4 558

cities are rooted in historic, socio economic and physical development processes intertwined with
ineffective urban development policies.

A major problem facing the newly elected government in 1994 was the distortion of urban space because
of apartheid planning. Various measures have been put in place to address this. These measures include
planning and developmental policies, and revisions to legislation. This process has been bedevilled by old-
order legislation and policies, much of it fragmented and not uniformly applicable.

The purpose of this paper is determined if Town Planning Legislations used in Spatial Plamiing and Land
Use Management in South A-ica in post 1994 have created great cities to live using Lukhanji Local
Municipality, in the Eastern Cape as an example. Lastly the paper assess if the new hyped legislation
(Spatial Planning and land Use Management Act) will address the challenges facing spatial planning and
land use management in the municipalities.

2. HISTORICAL BACKGROUND ON SPATIAL PLANNING AND LAND USE MANAGEMENT
IN SOUTH AFRICA AND, COLONISED SUB SAHARAN COUNTRIES

Conventional formal urban planning practice in (Sub-Saharan) African countries was largely of British
colonial origin and much of urban plarming legislation in the region derived and evolved from the
succession of British Town and Country planning legislations/Acts. Earlier British colonial town planning
legislations with the general objective to control urban expansion and provide for slum clearance and
renewal (Home, 1997) were enacted in British colonies with strong settler activities and potential for inter-
communal conicts. This included South Africa in the late 1920s.

The most fundamental and critical challenge faced by urban areas in most developing countries,
particularly in (Sub-Saharan) African countries is the debilitating weak institutions of urban development
planning and management. Municipal authorities are usually underfunded to meet their responsibilities.
The institutional base and infrastructure for effective urban planning and urban development management
is still largely very weak. Urban local governments are also characterised by a weak and unviable revenue
base, inadequate technical and administrative skills and limited political will and commitment on the part
of the central and other higher-level governments to let the local institutions and their instruments function.
(Cheema 1987: 149).As a result local authorities are crippled and fmd it difcult to redress the imbalances
and improve the quality of life of its citizens.

Planning is only as effective as the administrative system supporting it and the political philosophy,
willingness and commitment of the state in which it operates allows it to be (McAuslan 1985). Most central
and state governments in Africa are yet to promote institutional strengthening at the local level. The other
challenge is poor governance, corruption, and waste of resources. From Nigeria, Kenya and Zaire, to several
other African countries, the refrain is about how much the governing elites have taken out of the countries
and invested all over the world, rather than in their own countries.

As summed up by Agbola (2005), who states that many cities in Africa are burdened by dramatic crises
ranging from unemployment, environmental degradation, deciencies in urban services and inadequate
housing, deterioration of existing infrastructure, lack of access to key resources and to violence. The upshot
of the foregoing challenges is that unless they are effectively addressed, the hope and quest for liveable
places in urban areas will continue to be a gment of peoples imagination.

While formal plans, codes, ordinances, or such other land-use control measures may not necessarily seem
the most important factors inuencing land-use patterns and their growth, in the current context of massive
urbanization in Sub-Saharan Africa, they are still exceedingly important. It is through them that the relevant

Conference Proceedings: Planning Africa 2014 - Making Great Places, 19t"-22"d October, 2014,
International Convention Centre (ICC), Durban, South Africa
ISBN: 978-0-86970-781-4 559

public authorities national, state, provincial, local government or planning agencies inuence where and
in what direction, for what and when urban growth will occur. Besides, effective land-use planning and its
major land-use policy instrument, such as zoning are in essence a hazard prevention and mitigation exercise
(Stren, l992).Most African cities can therefore be likened to rat colonies from which it is not honest to
expect order unless and until fonnal institutions of city planning and management are restored and
strengthened to perform their functions of city planning and city building. This is a core challenge of these
planning legislations in Aican countries.

Understanding the root cause of the challenges facing town planning is very important as it leads to citizens
to seek desired solutions. This will assist town planners not to adopt plans that created the challenges that
exist today.

3. EFFECT OF POST 1994 TOWN PLANNING LAWS IN SOUTH AFRICA

Old planning laws and the spatial legacy of apartheid as well as the high-level drive to change these in
South Aica has been largely ineffective to alter land use planning and land development. Indeed the same
laws that were used to implement apartheids grand plan of segregation and inequality are largely the same
tools still being used by planners across the country to determine whether or not and on what conditions
land development projects should proceed.

As highlighted above, laws designed to implement the urban plans of apartheid remain stubbornly in place.
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 fell back entirely
on pro-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.

The planning system in South Africa, like the European models, reects a hierarchical structure of national,
provincial, and local plans. This approach centres on the notion that local policies are subordinate to
provincial policies and those in turn, are subordinate to national policies. This is based on the assumption
that national government is the rst custodian of public interest in respect of spatial plarming and land-use
management.

Municipalities were instructed to establish separate African revenue accounts based on the income from
nes, fees and rents exacted from 'natives' in the locations; this money was to be used for the upkeep and
improvement of the locations. The critical mction entrusted to the local authorities was, however, the
administration of tougher Pass laws: Africans deemed surplus to the labour needs of White households,
commerce and industry, or those leading an idle, dissolute, or disorderly life, could be deported to the
reserves. In implementing the Act, local authorities were careful to consider the needs of industry. In
Joharmesburg, for instance, where industrialists made no bones about wanting a large pool of permanent
standby labour, it was only intermittently applied until the end of the 1940s.

In 1951, in their objective to keep Black people permanently from the urban areas, the government
introduced The Bantu Authorities Act, No 68 of 1951. The Bantu Authorities Act was one of the Acts that
attempted to keep South African citizens apart on a racial and ethnic basis. The government introduced this
Act by setting up Black ethnic governments known as Homelands. The government used this Act to push
Black people out of urban areas to stay in these homelands. These homelands were subsequently granted
independent status by the central government. Homelands were under chiefs who were subordinate to their
masters in Pretoria. The Inhabitants of these homelands would lose South African citizenship and all
political rights including voting. They even had to have passports to enter South Africa. The Act
commenced in 17 July 1951. It was repealed by section 69 of the Black Communities Development Act,
Act No 4 of 1984. With these provisions, any African unlawfully resident on White-owned land could be

Conference Proceedings: Planning Africa 2014 - Making Great Places, 19"-22d October, 2014,
International Convention Centre (ICC), Durban, South Africa
ISBN: 973-0-85970-781-4 550

evicted; and Areas in White South Africa where Blacks owned land were declared "Black spots", and the
state began to implement measures to remove the owners of this land to the reserves.

The history of the development of human settlements shows what the impact was of the various pieces of
legislation used in different provinces and even within a province itself, different pieces of Town Planning
Legislations were applicable. For instance, the Eastern Cape was divided into three, Former Transkei,
Former Ciskei, and Republic of South Africa. Therefore, three pieces of legislations were applicable and
still are which are: (Transkei Townships Ordinance 33 of 1934), Land Use Regulations of 1987 and Land
Use Ordinance 15 of 1985.

These different pieces of legislation were employed to fragment settlement patterns that also resulted in
uniquely different settlement components with distinctive features. However, Land Use Planning
Ordinance 15 of 1985 was administered carefully whilst others were left out and difficult to administer.
The institutional capacity that was made available to administer the different areas where the previous Cape
Provincial Administration played a strong role in determining how plarming procedures and decisions
would be implemented in former Republic areas.

Town Planning legislation in fonner White areas focused on forward planning (structure plans) and land
use management (zoning schemes).In contrast, the legislation applied in Bantustans and so-called Black
Areas focused on land tenure, which in most cases was not a permanent right in law (although in reality it
always was).

An interesting development in the realms of planning, especially with the dawn of democracy is the shift
of the leading role in planning from the technocrats to the politicians. The decision-making processes
regarding planning matters are increasingly intertwined in a web between politicians and planners. As with
European experience, the inuence of politicians has drastically increased over the last decade or so. Plans
that are not accepted by politicians are often unsuccessful

The planning process, in general, including spatial planning, has gained another dimension in the form of
the participatory approach. This is partly due to the mobilisation of environmental concerns in planning
decisions. However, it has become commonplace for spatial plans to have the support of the public that it
is intended for. It is generally acknowledged that public support for spatial plans has become an imperative
for their success.

4. METHODOLOGY

Research Methodology can be dened as procedures used in making systematic observations or otherwise
obtaining data, evidence, or information as part of a research project or study (Babbie 2010). Babbie
(20l0:89) suggests two approaches to data collection, namely: Quantitative and Qualitative approaches.
For purpose of this study, we utilised a mixed research approach, because the study will be based on
multiple realities, constructivism, and certain theory. The mixed methods were used because the study seeks
to gather peoples perceptions as well as the impact of town planning legislation. It is also an evaluatory
research because the study assesses the impact of planning legislations in South A-ica.

Methods

Questionnaires with open and closed questions and secondary data was used in this study. Fifteen
questionnaires were distributed amongst town planning consultants, general applicants (public), and town
planners in local, provincial or government departments. The questionnaires consisted of (yes/no)
questions, which required respondents to explain or elicit further information. The rst part of the
questionnaire consisted of questions regarding the old town planning legislation (Table 1)

Table 1: Sample Questionnaire

Conference Proceedings: Planning Africa 2014 - Making Great Places, 19lh-22"d October, 2014,
International Convention Centre (ICC), Durban, South Africa
ISBN: 978-0435970-781-4 561

No Statement YES NO EXPLAIN
1 Do you understand different town planning legislations
applicable in Lukhanji Local Municipality

2 The process of preparing town planning applications is
transparent

3 The turnaround time for determining the outcome of town
planning applications is too long

The second part of the questioner consisted of question relating to SPLUMA. (Table 2)

No Statement Yes No Explanation

9 SPLUMA is promising to bring positive change X
than existing legislations in town planning

9 Do you think SPLUMA will make it more complex X
for the determination of town planning
applications

10 Planning Tribunals will do better job than current X
committees taking decisions on town planning
matters

11 SPLUMA provides for better spatial planning X
than DFA

Statistical and thematic analyses were employed in analysing the questionnaires. Secondary data was also
utilised in the study and this was utilised to garner perceptions on town-planning legislations

APPLICABLE TOWN PLANNING LEGISLATIONS, THE CASE OF LUKHANJI LOCAL
MUNICIPALITY

Old planning laws and the spatial legacy of apartheid as well as high level drive to change those laws South
Africa has been unable to effect any major changes to the legal frameworks governing land use and land
development. Indeed the same laws that were used to implement apartheids grand plan of segregation and
inequality remained the tools used by plarmers across the country to control land use planning and
management.

As highlighted above, laws designed to implement the urban plans of apartheid remain stubbornly in place.
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 fell back entirely

Conference Proceedings: Planning Africa 2014 - Making Great Places, 19"-22" October, 2014,
International Convention Centre (ICC), Durban, South Africa
ISBN: 978-0-86970781-4 562

on pre-democratic plarming legislation. Fundamental to effective planning law reform is a constitutional
framework that clearly delineates the legislative powers to regulate planning and land use.

Like many municipalities in South Africa, in the case of Lukhanji, the history of the development of human
settlements shows the impact was of the various pieces of legislation used in different provinces and even
within a province itself, different pieces of Town Planning Legislations were applicable. For instance, the
Eastern Cape was divided into three, Former Transkei, Former Ciskei, and Republic of South Africa.
Therefore, three pieces of legislations were applicable and still exist, which are: (Transkei Townships
Ordinance 33 of 1934), Land Use Regulations of 1987 and Land Use Ordinance 15 of 1985.

These various pieces of legislation were employed to create a fragmented settlement pattern that resulted
in uniquely different settlement components with distinctive features. However, Land Use Planning
Ordinance 15 of 1985 was administered carefully whilst others were rather left out and difcult to
administer. The institutional capacity that was made available to administer the different areas where the
previous Cape Provincial Administration played a strong role in determining how plarming procedures and
decisions would be implemented in former Republic areas. In support of the mentioned statement, is that,
development applications in terms of Land Use Ordinance 15 0f 1985 which is applicable in former RSA
areas is simple to administer and enforce, whereas other legislations that are applicable for fonner Ciskei
and former Transkei areas are difcult and cumbersome to administer as municipal council only
recommends to provincial department

Town Planning legislation in formerly White areas focused on forward planning (structure plans) and land
use management (zoning schemes) and was based on planning and managing land use. In contrast, the
legislation applied in Bantustans and so-called Black Areas often muddied the waters and also dealt with
land tenure, the right to use a piece of land for a specic purpose came with a right to occupy that piece of
land, which in most cases was not a permanent right in law (although in reality it always was).

An interesting development in the realms of planning, especially within the context of democratic rule, has
been the shift of the leading role in planning from the technocrats to the politicians. The decision-making
processes regarding planning matters are increasingly intertwined between politicians and planners. As
with European experience, the inuence of politicians has increased over the last decade or so. Plans that
are not accepted by politicians more than often produce no results, as they will not be marketed. The role
of the Town planners is to advise on issues of development, but it is often evident that advice given by town
planners is never taken serious. Politicians as decision makers on planning matters, often expect town
planners to implement their plans regardless of the advice given by town planners, which create a conict
and contradiction to available plans aimed at correcting the spatial imbalances of the past planning and to
have effective land use management system.

The planning process, in general, including spatial planning, has gained another dimension in the form of
the participatory approach. This is partly due to the mobilisation of enviromnental concerns in plarming
decisions. However, it has become commonplace for spatial plans to have the support of the public that it
is intended for. It is generally acknowledged that public support for spatial plans has become an imperative
for their success.

HOW APPLICABLE LEGISLATIONS IN THE CASE OF LUKHANJI

There are different regulations governing the use of land within a municipal area. Land use management in
a municipal area is regulated in terms of the Scheme, which supports the control and management of
development within a municipality in a form of Provincial Ordinances and Acts, which are Land Use
Planning Ordinance l5 of 1985 (LUPO) for former Cape Province areas/ former Republic of South Africa,

Conference Proceedings: Planning Africa 2014 - Making Great Places, 19"-22"d October, 2014,
International Convention Centre (ICC), Durban, South Africa
ISBN: 978-0-86970-781-4 563

Townships/Transkei Ordinance 33 of 1934 for urban areas of former Transkei and Land Use Regulations
Act 15 of 1987 for the former Ciskei.

Schemes comprise of Scheme Regulations, Zoning Plans and a Zoning Register. The Scheme Regulations
make provision for various zonings, each containing permitted use rights (as primary rights and by way of
councifs special consent) and development restrictions in terms of building height, coverage, building lines
etc.

The preparation of the scheme follows procedures set out in the Ordinances. Municipal officials are required
to administer land use and development control and keep scheme records up to date. Any proposed
amendment to the scheme need to take the form of a formal application to the municipality, which is then
processed and commented on by technical staff within the municipality. A nal decision is made by the
Council or if delegated powers are not with the municipality, Council makes recommendations to the
respective Boards at provincial level. The nal approval in such instances is issued by the MEC.

Municipal ofcials are obliged to ensure that land development is as permitted in terms of the scheme and
must monitor compliance with the scheme. Any non-conforming land uses must be dealt with in line with
stipulations of applicable regulations. The Scheme links to the SDF and IDP as it cannot be amended in a
manner that is contrary to the proposals set out in the SDF, unless a strong argument in support of such
deviation is presented and accepted by Council.

LAND USE PLANNING ORDINANCE 15 OF 1985

Land Use Planning Ordinance 15 of 1985 (LUPO), applicable in former Cape Province areas Applications
are submitted to local authorities, advertised for public comment and circulated to various municipal sector
departments for technical comments, before a decision is made. Applications in terms of LUPO can be
approved by the municipal council.

TOWNSHIPS ORDINANCE 33 OF 1934

Townships Ordinance 33 of 1934 for urban areas of fonner Transkei Land Use Regulations Applications
are submitted to local authorities, advertised for public comment and circulated to various municipal sector
departments for technical comments, before a decision is made. Municipal council only make
recommendations to the Province, an application must be approved at a Provincial level.

ACT 15 OF 1987 FOR THE FORMER CISKEI

Applications are submitted to local authorities, advertised for public comment, and circulated to various
municipal sector departments for technical comments, before a decision is made. Municipality council only
make recommendations to the Province, an application must be approved at a Provincial Level.

POST 1994 PLANNING LEGISLATION- DEVELOPMENT FACILITATION ACT

The imbalances le by the previous governance system of separate development are still visible, despite
the progress made by the government. The DFA became necessary because the process of approving land
use applications, under the control of municipal authorities across all property types, was painfully slow.
Despite the promulgation of the DFA, housing delivery has not caught up with the growing population
numbers of the targeted population sector. In the meantime, however commercial and high value residential
developments accelerated at an unprecedented pace in one of the largest property booms in South Africa,
to the dissatisfaction of the municipal managers.

COHfE FEnCE Proceedings: Planning Africa 2014 - Making Great Places, l9""-22d October, 2014,
international Convention Centre (ICC), Durban, South Africa
lSBN: 973-0-86970-781-4 564

When the DFA was enacted, the Ordinances were not repealed. The drafters at the time hoped that for the
sake of meeting the promises made to the electorate, the two pieces would co-exist harmoniously side by
side. The other reason for not repealing the Ordinance was that the target areas where the accelerated
development was required did not have town-planning schemes, which the established suburbs had. On the
other hand, DFA had time frames were incorporated in its provisions within which the municipalities were
forced to have reached certain milestones in the application assessment process.

The DFA however ended up being used by commercial and luxury residential developers to circumvent the
townships ordinance to get approval for their developments. Clearly, the target population could not benet
from the latters developments. Even worse, these developments were perceived to be creating urban sprawl
and bulk utility services were being rapidly depleted, to the detriment of the target communities. Such a
state of affairs is not how the politicians wanted things to go, so the DFA had to go.

Never the less the DFA was a very effective piece of legislation. It has helped to facilitate one of the
strongest property booms in South Aica. It did a good job of exposing the weaknesses inherent in the
Ordinance.

In June 2010, the Constitutional Court declared chapters 5 and 6 of the Development Facilitation Act (DFA)
that allowed the provincial sphere of government to set up development planning tribunals to decide on
municipal planning matters unconstitutional. A number of municipalities and provinces relied on the DFA
for making decisions regarding land use. The Constitutional Court gave government until 17 June 2012 to
rectify the unconstitutional parts of the DFA or come up with new legislation that will be constitutionally
sound.

INTRODUCTION OF SPATIAL PLANNING AND LAND USE MANAGEMENT ACT

The Constitutional judgement against chapter 5 and 6 of DFA imposed a new worldview on the planning
system in South Africa that breaks with past norms and has required some complex processes to be
developed in SPLUMA to deal with the issue of constitutionality. There is an argument to be made, that
the Court took an overly deterministic view of the matter without regard to the subtleties in a co-operative
governance approach to spatial planning.

Before 1994, the planning regulatory framework was designed to serve communities based on racial
segregation as part of the grand scheme of apartheid. Due to the incoherent and inefficient planning system,
government identied the need for new planning legislation that would address the apartheid spatial
planning legacy and deal with:

I Multiple laws and multiple institutions regulating development planning

I Rationalization of fragmented plarming laws that applied to certain areas based on the old
boundaries of the then four (4) provincial administrations, homelands, and Self-Governing
Tenitories (SGT);

I The repeal of the Development Facilitation Act, 1995 (Act No. 67 of 1995) as it was promulgated
as an interim measure to deal with the apartheid planning legacy.

A process to put new legislation in place was therefore initiated and saw the introduction of the Green paper
(1999) and White Paper (2001) on Spatial Planning and Land Use Management. The current Bill is therefore

Conference Proceedings: Planning Africa 2014 - Making Great Places, 19"-22"d October, 2014,
International Convention Centre (ICC), Durban, South Africa
ISBN: 978-0-86970-781-4 565

a product of a process that was initiated in 1999 and given impetus as a result of the June 2010 Constitutional
Court ruling on the Development Facilitation Act.

Due to the court judgement against chapters of DFA, Government was granted twenty-four months to come
up with a new legislation to repeal DFA. The Department of Rural Development and Land Reform then
initiated a process of developing new legislation that will repeal the DFA and other old order legislation
and subsequently published the rst dra of the Spatial Planning and Land Use Management Bill
(SPLUMA) on 6 May 201 1. The Department of Rural Development and Land Reform published the revised
version of the Spatial Planning and Land Use Management Bill and called for further comments on the
revised Bill. President Jacob Zuma signed the Bill into an Act on August 2013.

WHAT IS ENVISAGED BY SPLUMA

SPLUMA attempts to follow the requirements of the Constitutional Court ruling by locating the full
responsibility for spatial plarming and land use management at the municipal level, which is the level that
has least capacity to fulfil this role in SA at present. As such, it brings into being complex procedures and
arrangements that may well take considerable time to be fully understood and applied correctly.

It brings into being new institutional arrangements that will prove challenging to establish and to administer
and run correctly within the ambit of the law. However, if (once?) land use regulators are up-skilled and
apply the SPLUMA approach rigorously, the potential exists to streamline processes.

INCLUSION OF RURAL AREAS IN LAND USE MANAGEMENT PROCESS

Infornral land use management takes place on communally owned land, which is governed by the local
chief or traditional leaders. They determine what land can be used for and who may use the land. Communal
land lacks cadastral denitions and land use rights are oen linked to individuals. Where land is dened, it
is usually an informal sketch plan. Use of land is determined through verbal agreements between chiefs or
traditional leaders and community members. There might be cases where this is conrmed in writing
Umhlaba (2013:21)

The system of Permission to Occupy (PTOs) which were issued by local Magistrates in the past on
communal land has fallen away and in many cases, Pl'Os issued in the past have been destroyed or not
updated. This system did allow for some measure of control and record keeping.

1n terms of SPLUMA, it is said that rural town plarming schemes will be developed to manage land
development in rural areas.

Rural areas should not be seen as unique or exempt from the overall society. They are part of the continuum
of land use plarming and management as they have unique conditions and socio-cultural dimensions, and
consequently form part of the land resources of SA. As much as land owners/land users in urban areas have
limits to the rights of use regardless of their ownership status, so too should rural settlements be
administered in a way to ensure that wise land use prevails within the parameters of their unique situations.

POTENTIAL CHAOS

It is evident that rural leaders have not been properly consulted about SPLUMA. Rural areas are used to
developing their areas without consulting the municipality, in a fonn of submitting a building plan or
development application. 1f a person from nrral area wants to operate business, they do not submit any
application to seek permission from the municipality.

Conference Proceedings: Planning Africa 2014 - Making Great Places, 19"-22"" October, 2014,
I-iternational Convention Centre (ICC), Durban, South Africa
ISBN: 978-0-86970-781-4 566

Constitutional Court judgement dealing with the DFA and with a major property development in the
Western Cape called Lagoon Bay, have conrmed the proper interpretation of the Constitution which
identies the local government level as the principle sphere of government responsible for land-use
planning. Only in that way will we all be able to sit in the shade.

5. DISCUSSION

The ndings revealed that a little is known by ordinary people who are applicants who dont have any town
planning knowledge and also understand the need for them to apply for permission through land use
applications to municipalities in order to comply with legislations governing town planning. The origins of
different legislations in one municipal area as the case of the municipalities in South Africa remains a huge
confusion and has negatively affected the previously disadvantaged spatially and socio-economically.
Consequently there is legislation and policy confusion

Concerning DFA, the study reveals that the DFA was never intended to be denitive legislation and was
designed to be an interim tool to enable planners and planning authorities to deal with situations requiring
a more modern, normative (principle-led) approach than theexisting old order laws. The constitutional
court judgement came as a strrprise as DFA was doing very well in speeding up development. An
overwhelming majority of 75% percent of the respondents have a clear understanding of the existing and
old legislation before SPLUMA. It is argued that process before SPLUMA are well dened; however,
challenges relating to prolonged turnaround times (18 months) can hinder development. Moreover, some
applications nd the town-planning scheme restrictive in terms of promoting developments. SPLUIVIA
does away with conicting provisions regarding LDOs and dovetails with the Municipal Systems Act
provisions for SDFs and adds detail to how the overall planning system is envisaged to function.

The complexities of establishing and administering Tribunals under SPLUMA will prove onerous. Seventy
percent of the respondents agree that SPLUMA is a well thought out legislation however, 60% agree that it
will be very difcult to implement. There are teething problems to be expected as the mode of operation is
outside most Local Municipalities and District Municipalities sphere of experience. Land use regulators
will require lots of training and logistical support to get things right. Moreover, coordination of SPLUMA
will most likely prove cumbersome as various government departments currently prepare their own land
use plans. As a result coordination all these spatial plans is not well envisaged with SPLUMA. SPLUMA
is a well thought out document however, it does not spell out how the challenges of spatial coordination are
to be solved. This has been the case with most South African policies and laws. Perhaps it is also a key
factor in why most legislation has not fared well in creating great places to live and. work in. Moreover, it
appears that spatial arrangements under apartheid continue to persist as inequality and poverty continues to
rise. Therefore, one raise the questions are these new laws and legislation such as SPLUMA old wine in a
new bottle.

Few municipalities have the necessary skills and experience to implement SPLUMA and other related
provincial legislation. Therefore, provincial governments, local governments, the private sector, and civil
society will all need to work together if SPLUMA's noble aims are to be achieved.

Most people welcome inclusion of rural areas by SPLUMA in land use management system though
conicts might arise as there is no clear indication of consulting traditional authorities regarding inclusion
of rural areas.

6. CONCLUDING REMARKS

Conference Proceedings: Planning Africa 2014 - Making Great Places, 19"-22"l October, 2014,
International Convention Centre (ICC), Durban, South Africa
ISBN: 978-0869707814 557

Due to the complex nature of the cadastre and property rights, colonial land administration laws and
regulations remain entrenched in many countries still to this day in Africa (United Nations 1997). In a
number of countries, such as Uganda, Ghana, Namibia, Mozambique and South Africa, new land
registration laws have been or are being introduced and discussed. These laws are an attempt to move away
from colonial forms of land administration on the one hand, but also to develop land administration systems
and laws that more closely reect the social land tenures on the ground (customary and/or informal).

I a case of South Africa, DFA played a huge role trying to turn around the situation inherited from apartheid
spatial planning. Constitutional court judgment against DFA chapter 5 and 6 paralyzed effectiveness of
DFA. This carne as shock and concern for development, but also assisted in pushing government to
promulgate Land Use Management Bill into law, which will repeal DFA and all planning ordinances that
were inherited from apartheid planning. It will only be good for South Africa to have one legislation
governing spatial planning and land use management. The implementation of SPLUMA is likely to prove
challenging and may well be challenged legally once the full implications of what it provides for are
grasped.

7. REFERENCES

w

Agbola, Tunde 2005, Real Estate Cycles and Housing Market Dynamics" Isead Paper Presented at the
Formal Inauguration of the Housing Development and Management Forum, lit-Zn November, 2005 at the
Conference Center, University of Ibadan.

Babbie, E. 2010.The Practice of Social Research, Twelfth Edition. Wadsworth: Cengage Learning

Babbie, E. and Mouton, J. 2006. The practice of social research. Cape Town South A-ica. Oxford
University Press.

Bless C and Hughson S, 2000 Social Research Method: An African Perspective, Cape Town, Juta
Education Ltd.

Bless, C. &Higson-smith, C. 1995. Fundamentals of Social Research Methods: An African Perspective.2nd
Edition.Kenwyn: Juta& Co. Ltd.

Burns, N., & Grove, SK. (2003). Understanding nursing research. 3rd edition. Philadelphia: Saunders.

Cheema, G.S. (1987): Strengthening Urban Institutional Capabilities: Issues and Responses (Manila,
Asia Development Bank (1987) Urban Policy Issues, (. 149)

Cloete, F. 2004. Measuring Sustainable Governmental Performance. Jomnal of Public Administration. Vol
39. No.4.December 2004.

Dempsey, P.A. 8L Dempsey, D.A. 2000.Using nursing research: process, critical evaluation and
utilisation.5th ed. Philadelphia: J B Lippincott.

Grinnell, J . R., R.M. & Williams, M. 1990.Research in Social Work: A Primer. Illinois: Peacock Publishers

Harrison and Todes, The Use of Spatial Frameworks in Regional Development in South Africa Regional
Studies, Vol 35.1 (2001)

Leedy, P.D. 2005. Practical research Planning and Design. Pearson Prentice Hall. New Jersey

Conference Proceedings: Planning Africa 2014 - Making Great Places, 19"-22" October, 2014,
International Convention Centre (ICC), Durban, South Africa
ISBN: 973-0-36970-781-4 558

McAuslan, Patrick (1985): Urban Land and Shelter for the Poor. (London, Earthscan) (p.66).

Oyugi, M.O. & ICAkumu, O.A. (2007), Land Use Management Challenges for the City of Nairobi, Urban
Forum, vol. l8, no. 1, pp. 94-113

Strydom, H. 2002. In De Vos, A.S., Strydom, H., Fouche, C.B., Delport, C.S.L. Research at Grass-Roots
for the Social Sciences and Human Service Professions.2nd Edition. Pretoria: J .L. van Schaik.

Stren, R. et al (1992): An Urban Problematique: The Challenge of Urbanization for Development
Assistance. (University of Toronto, Center for Urban and Community Studies).

Umhlaba Consulting Group, 2013. Land and Settlement Development.

United Nations: 1997

Cbnfere nce Proceedings: Planning Africa 2014 - Making Great Places, 19i"-22"" October, 2014,
International Convention Centre (ICC), Durban, South Africa
ISBN: 978-0-86970-781-4 559

Open in Browser | Download 39 KB