Hughenden Estate and the Kramer land Developments
Let me sound a word of warning to our readers, members and associates and that is to enquire and engage one’s ability to sift through the spin; to shut out the noise; and to focus our attention on what we know to be true while resisting the temptation to get caught up in the emotion. A great Scottish philosopher called David Hume made an unforgettable statement a few centuries ago. “Reason is the slave of passion,” he said, “not the other way round. We believe what we want to believe and that is why we live in bubbles till they burst. Ostriches bury their heads in the sand. So do human beings”.
Here’s a note from one of our members who has cut through the spin and bared the reality before us concerning the many reports doing the rounds about the City’s intentions to acquire all the erven in Hughenden Esate and to buy a couple of erven on the eastern bank of the Hout Bay River, all for housing for an enlarged Imizamo Yethu, and the questionable legality of the mayor as the final arbiter regarding any appeal against the City’s plans:
“In relation to what is happening in Hout Bay concerning Hughenden Estate and the Kramer land alongside the Hout Bay River, in both instances de Lille is going to have to rezone the relevant erven to enable the construction of a township thereon; the Hughenden erven are presently zoned Single Residential and the riverside erven are Rural. To build anything other than a housing estate of free-standing houses on individual erven the land will have to be rezoned Single Residential Zone 2: Incremental Housing. Even if the City decides to go immediately to building a housing estate of free-standing houses on individual erven zoned Single Residential, the erven in Hugenden Estate, which are so zoned, will have to be sub-divided; a process which requires an Application to sub-divide (Sec. 52 of the Municipal Planning By-Law [MPBL]), even if it is the City itself which is the owner of the land. Such an application will trigger the need for the City to give notice of its intention to consider its own application to rezone and/or subdivide and to accept objections to this move: (Sec. 79(1) of the MPBL) from a person whose rights or legitimate expectations are materially and adversely affected if the application is approved: (Sec. 82 (1) (c) read with (Sec. 82 (2) (a) of the MPBL).
To my mind there will be many persons whose rights or legitimate expectations will be materially and adversely affected if sub-division applications for Hugenden Estate and Hout Bay riverside erven are approved. There will also be many persons who have genuine reasons to object to a re-zoning of Hout Bay riverside erven from Rural to SR1 or SR2. Such persons may object to the intended sub-divisions and/or rezoning in terms of Sec. 90 of the MPBL but Sec. 98 gives the City the power to approve the application despite any objections to the proposed action. In that event the Appeal process set out in Sec. 108 of the MPBL is triggered: "A person contemplated in subsection (2) and an applicant contemplated in section 103 may appeal to the appeal authority by giving written notice of the appeal and grounds of appeal."
Now we are getting to the nub: the appeal authority is the mayor. As she is the person who has overall authority of the City's land use planning and thus will have been responsible for the City's application to sub-divide and/or rezone the erven discussed above, to give her the power as the appeal authority to rule on an appeal against her own decision is clearly nonsensical. It is at this point that Adv. Paul Hoffman's advice kicks in: "In my view the city will have trouble defending the adjudication structure it has set up due to the supremacy of the independence and impartiality criteria. Look also at the definition of the rule of law (supreme under C 1) at www.worldjusticeproject.org for its expectations of adjudicative machinery."
Here is another commentary on the questionable legality of the mayor
as the final appeal authority
in land use planning matters
“A number of civic bodies in Cape Town have become increasingly concerned by the dictatorial attitude of local politicians in land use planning matters, which has prompted us to research the legalities surrounding this mind-set.
The dictatorial trend was initiated by Helen Zille during her term as mayor, with her mantra “I am going to replace Red Tape with a Red Carpet for developers”. The underlying purpose of this policy was sensible: to encourage much-needed development in the Metropole to assist in the integration of the many thousands swarming into Cape Town to escape the poverty and maladministration in the Eastern Cape.
Unfortunately, as is so often is the case with blanket type policies that are not thoroughly thought through, this mantra has spawned unintended consequences; in this case the “Development at all costs” approach of Zille’s successor as mayor, Patricia de Lille.
In her development crusade de Lille has been aided by the unfortunate wording of Sec. 51 of the national Spatial Planning and Land Use Management Act, No.16 of 2013, (SPLUMA), read with the definition of 'executive authority' in that Act:
51. (1) A person whose rights are affected by a decision taken by a Municipal Planning Tribunal may appeal against that decision by giving written notice of the appeal and reasons to the municipal manager within 21 days of the date of notification of the decision.
(2) The municipal manager must within a prescribed period submit the appeal to the executive authority of the municipality as the appeal authority.
(3) The appeal authority must consider the appeal and confirm, vary or revoke the decision.
(4) A person whose rights are affected within the provisions of subsection (1) includes—
(b) the municipality where the land affected by the application is located;
Definition of ‘‘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.
Ms de Lille is the executive mayor of the Cape Town municipality. Thus, in terms of SPLUMA, if the Cape Town Municipal Planning Tribunal comes to a decision which de Lille doesn't like, she only has to get the municipal manager, who reports to her, to appeal against the decision. The municipal manager then refers the matter to de Lille as the executive authority. As the executive authority she then makes the decision that suits her and her backers.
To make doubly sure of her power to do whatever she wants in land use planning matters, de Lille arranged that the City of Cape Town on 01 July 2015 introduced its Municipal Planning By-Law, based largely on SPLUMA. The By-Law’s sections 108, 109 & 114 tell the tale:
(1) A person contemplated in subsection (2) and an applicant contemplated in section 103 may appeal to the appeal authority by giving written notice of the appeal and grounds of appeal.
(2) The following persons may appeal against a decision made in terms of this By-Law:
(c) the City Manager;
109 Procedure for appeal
(1) A person authorised to appeal must lodge the appeal with the City Manager, provided that if the appeal is by the City Manager, the City Manager must lodge the appeal with the appeal authority.
(3) The appeal authority is the Mayor.
To remove this unbridled power of the mayor it is necessary to show that this power is unconstitutional; that it enables a mayor to be neither impartial nor independent in his/her decision making regarding a land use appeal. It is suggested that the city will have trouble defending the adjudication structure it has set up due to the supremacy of the independence and impartiality criteria in the Constitution.
Sec. 2 of the Constitution states:
2 Supremacy of Constitution
This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.
Sec. 7 says:
(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.
(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
While Sec. 34 states:
34 Access to courts
Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
In short, if SPLUMA and the Municipal Planning By-Law are inconsistent with the Constitution these bits of legislation are invalid. In compliance with Sec. 7(2), the municipality is obliged to respect, protect, promote and fulfil everyone’s rights, including those set out in Sec. 34. This section demands a fair dispute resolution procedure including the criteria “independent and impartial”. We suggest that it is feasible to argue that the mayor can be neither independent nor impartial in the role of final appeal authority in land use planning matters, especially when it comes to the type of dispute that is to be adjudicated using the machinery set up.
The test is quite straightforward: if the mayor is found to be simply lacking in independence or impartiality then the law is inconsistent with the Constitution and thus invalid.”