CCT117/13

[2014] ZACC 9

2014 (5) BCLR 591 (CC)

2014 (4) SA 437 (CC)

Cameron J

10 February 2014

http://hdl.handle.net/20.500.12144/3738

Application for confirmation of a declaration of invalidity made by the Western Cape High Court: Habitat Council and Another v Provincial Minister of Local Government, Environmental Affairs and Development Planning in the Western Cape and Others; City of Cape Town v Provincial Minister of Local Government, Environmental Affairs and Development Planning in the Western Cape and Others (6227/2013; 23061/2009) [2013] ZAWCHC 112; 2013 (6) SA 113 (WCC) (14 August 2013).

Land Use Planning Ordinance 15 of 1985 – constitutionality of section 44 – provision is unconstitutional Local government competences – provincial government competences – section 155 of the Constitution – all zoning and subdivision decisions, no matter how big, lie within the competence of municipalities. Application for confirmation of a declaration of invalidity made by the Western Cape High Court, Cape Town, of section 44 of the Land Use Planning Ordinance 15 of 1985. The section gives a province the power to hear appeals against municipalities’ planning decisions and to replace them with its own decision. The applicant had relied upon this section to overturn land-use planning decisions made by the City of Cape Town. The High Court held that section 44 was unconstitutional because it allows provinces to intervene in decisions the Constitution reserves for municipalities. The Constitutional Court confirmed that section 44 is unconstitutional, holding that it is at odds with the Constitution’s division of functional competences, which envisages robust municipal powers. But the Court did not confirm the rest of the High Court’s order. It held that no provincial appellate power over municipal planning decisions is justified. Neither the province’s own planning competences nor its powers of oversight justify a power to intervene in particular municipal decisions. Rather, those powers are exercised through separate statutory mechanisms. And there was no need to afford provinces an appellate power in the interim. The Court confirmed the declaration of invalidity, which took effect immediately but does not apply to finalised appeals. Judgment: Cameron J (unanimous).