This article considers the legal question of whether a municipality can submit an application for the rezoning of land that it owns to itself, consider that application in the first instance itself, and thereafter consider an appeal in respect of that application itself. These are essentially the facts of the case currently before the Johannesburg High Court matter of GLERA v City of Johannesburg and others[1]. It must be emphasised at the outset that the concerns voiced herein relate only to the situation where the applicant in a rezoning application is the municipality or an organ of state or parastatal. They do not apply where the applicant is an independent third party.
Principles of natural justice
Before we starting talking about decisions in the town planning space, we need to look generally at the laws aimed at preventing bias by judges. It is an accepted principle of our law that no person should judge his own case.[2] This rule is based on the principle that the person (or panel) adjudicating the case should not be biased. This principle has been around forever in South African law and actually pre-dates the legislation that now deals with the fairness of decisions made by government, and even the Constitution.[3]
Our law takes the perception of bias very seriously – so seriously that it goes even further than requiring that there is no bias, to requiring that there must in addition not be any perception of bias. This is because justice must be done and must be seen to be done. In terms of our common law even if there is no actual bias, if a reasonable suspicion of bias can be construed from the facts, then this is enough to set aside the proceedings as being procedurally unlawful.[4]
“Municipal planning” decisions
Our Constitutional Court has confirmed that “municipal planning” (which includes rezoning) falls within the competence of the local authority (the municipality). [5] The Constitutional Court was asked to decide whether it was competent for an appeal to lie from a decision on a rezoning issue from the municipality to the Provincial level of government, and the Constitutional Court answered this in the negative.[6] This is relevant to our enquiry because it tells us that only a municipality can deal with rezoning applications. There is no appeal process to any person or body ‘outside’ of the municipality. As such, the appeal process must happen ‘inside’ of the municipality in order for it to be lawful in terms of the Constitution. The question is how this squares with the principles of natural justice that seek to avoid bias by adjudicators in the functional area of municipal planning where the applicant is the municipality itself.
SPLUMA
The Spatial Land Use Management Act[7] is a national piece of legislation that aims to create a more unified system of land use management across the country. Before this act every province regulated land use management in a different way in terms of its own special legislation. Although SPLUMA has not expressly done away with the whole of all of the pieces of legislation that governed land used management (town planning) in the various provinces before SPLUMA came in to effect, what it has done is provide that any provision of those “old order ordinances” that cannot be read in line with SPLUMA are invalid and are in effect “superseded” or “trumped” be the provisions of SPLUMA to the contrary.
SPLUMA essentially provides that a municipality must form a committee called a Municipal Planning Tribunal that must decide on applications relating to town planning and land use management matters (including rezoning issues) within that municipal jurisdiction according to the relevant biding principals, policies, and laws. In terms of SPLUMA, a person aggrieved by a decision of the Tribunal can appeal to a different committee known as the Appeal Authority (which committee reviews the decision of the Tribunal in terms of the relevant guiding principles, law and policies).
Composition of the Tribunal and Appeal Authority
SPLUMA also describes how these two committees must be made up. SPLUMA prescribes in section 36 that a Municipal Planning Tribunal must consist of (a) officials in the full time employ of the municipality, and (b) persons who are not employed by the municipality but who must have expertise in spatial planning, land use management etc. Municipal councillors may not be part of a Tribunal.
In terms of section 52 of SPLUMA, a municipality’s appeal authority is its executive authority. SPLUMA defines a municipality’s executive authority as follows:-
‘‘executive authority’’, in relation to a municipality, means the executive committee or executive mayor of the municipality or, if the municipality does not have an executive committee or executive mayor, a committee of councillors appointed by the Municipal Council”.
Municipal councillors cannot sit on the Tribunal, but can sit on the Appeal Authority. The same applies to the Mayor. There must be non-municipal officials on the Tribunal, but there is no such requirement for the Appeal Authority. However, the municipal officials who sit on the Tribunal (there could be as many as four out of five members of the Tribunal who are municipal officials) could also sit on the Appeal Authority if they are part of the executive committee of the municipality.
The concern from a legal perspective, however, is less an overlap with the persons sitting on both bodies (which would rarely, if ever, occur in practice) and more a concern with the fact that both bodies are appointed by COJ and comprise mostly of municipal officials. Although there is a requirement that there must be at least one non-municipal official on the Tribunal, this person can be overruled by the other four municipal officials. And there is no requirement for any independent person to be appointed to the Appeal Authority. As such, almost every single person on both bodies (save for one person) might be municipal officials, all of which could be “pushing a municipal agenda”.
Potential for bias, undue incidence and corruption
SPLUMA does not prohibit a municipality from making its own application for the rezoning of land in its own name to itself and deciding that application itself, provided that the composition of the tribunal to which the application is submitted meets the requirements set out in SPLUMA (which as above requires at least one non-municipal official to be appointed to the five member body).
It is submitted that this is a grave oversight of the legislature, as this allows for bias, undue influence and/or corruption to enter the picture because the bodies that hear the application (both at the initial stage and then later at the appeal stage) may be comprised almost entirely of municipal officials. It is submitted that the legislation should be amended to provide that in a situation where the municipality itself is the applicant, the persons that constitute the relevant bodies (or at least a majority of them) must be sourced from outside of the municipality and must be independent such that any influence or bias, undue influence and/or corruption (or even the perception of same) can be avoided all together.
[1] 19968/2017
[2] This is expressed by the latin principle nemo iudex in causa sua.
[3]Manyika GK The Rule Of Law, The Principle Of :Legality And The Right To Procedural Fairness: A Critical Analysis Of The Jurisprudence Of The Constitutional Court Of South Africa (March 2016) 14
[4] Kock and Another v Department of Education Culture & Sport Province of the Eastern Cape and Others (P317/2000) [2001] ZALC 47 (30 March 2001).
[5] City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others (CCT89/09) [2010] ZACC 11; 2010 (6) SA 182 (CC) ; 2010 (9) BCLR 859 (CC) (18 June 2010).
[6] Pieterse N.O. and Another v Lephalale Local Municipality and Others [2016] ZACC 40.
[7] 16 of 2013.
