The Spatial Planning and Land Use Management Act (or SPLUMA) and Regulations
The Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) is a national law that was passed by Parliament in 2013. The law gives the Department of Rural Development and Land Reform (DRDLR) the power to pass Regulations in terms of SPLUMA to provide additional detail on how the law should be implemented. The final version of these Regulations (Regulations in terms of SPLUMA GG 38594 GN R239) was published on 23 March 2015. The law came into effect on 1 July 2015, while a commencement date for the Regulations are yet to be published.
Why are SPLUMA and its Regulations important?
SPLUMA aims to develop a new framework to govern planning permissions and approvals, sets parameters for new developments and provides for different lawful land uses in South Africa. SPLUMA is a framework law, which means that the law provides broad principles for a set of provincial laws that will regulate planning. SPLUMA also provides clarity on how planning law interacts with other laws and policies.
The law is important because the repeal of many apartheid era laws has left our planning laws fragmented, complicated and inconsistent. For this reason, section 3 of SPLUMA says that the law tries to develop a ‘uniform, effective and comprehensive system’ of planning that ‘promotes social and economic inclusion’.
Although SPLUMA has progressive elements, the coming into effect of the law has been subject to a lot of controversy and debate. This is largely as a result of the powers that SPLUMA and its Regulations grant to traditional councils. While CLS (and others) have argued that SPLUMA and its Regulations grant too much power to traditional councils, the traditional leadership lobby has resisted the Act and has called for government to suspend its implementation on the basis that they were not consulted properly during the legislative process.
There are a number of serious concerns in relation to the powers granted to traditional councils in terms of the SPLUMA Regulations.
What do the SPLUMA Regulations say?
The powers of traditional councils in relation to planning and land use are governed by regulation 19(1) and (2) of the SPLUMA Regulations, which read:
“19 (1) A traditional council may conclude a service level agreement with the municipality in whose municipal area that traditional council is located, subject to the provisions of relevant national or provincial legislation, in terms of which the traditional council may perform such functions as agreed to in the service level agreement, provided that the traditional council may not make a land development or land use decision.
(2) If a traditional council does not conclude a service level agreement with the municipality … that traditional council is responsible for providing proof of allocation of land in terms of the customary law applicable in the traditional area to the applicant of a land development and land use application in order for the applicant to submit it in accordance with the provisions of the Regulations.”
These provisions provide that a municipality can conclude an agreement with a traditional council which would allow a traditional council to take over some of the land planning and land use powers and functions that are vested in the municipality (as long as the traditional council is not empowered to make a decision in relation to land planning and land use). In cases where the municipality does not conclude this type of agreement with a traditional council, the traditional council would be required to provide proof of land allocation in terms of customary law.
Although the final version of the Regulations is an improvement on earlier versions, the extensive powers granted to traditional councils remain problematic.
What are the concerns with the SPLUMA Regulations?
There are various reasons why regulation 19(1) and (2) is of concern. Some of these reasons are briefly discussed below.
- Concerns over the legal recognition of traditional councils
The SPLUMA Regulations give powers to traditional councils as defined in section 3 of the Traditional Leadership and Governance Framework Act of 2003 (the Framework Act). The Framework Act deems the pre-existing tribal authorities (that were created under apartheid) to be traditional councils if they comply with two transformation requirements. The first is that 40% of traditional council members must be elected. The second is that one third of traditional council members must be women. Many traditional councils across the country have not met these requirements, with traditional council elections either being flawed or non-existent. Limpopo, for example, has not had any traditional council elections in the last 10 years. In many councils the women’s quota has also not been met.
This means that most traditional councils are not validly legally constituted, and so may not have the legal capacity to exercise the powers granted to them in terms of the SPLUMA Regulations.
- Traditional councils are given wide-ranging powers in relation to land-allocation, -planning and -use
Regulation 19(2) empowers traditional councils to provide proof of a customary land allocation to anyone living in that traditional area that makes an application for development and land use. This would mean that traditional councils would be able to define the content of customary law (by determining what qualifies as ‘customary’ for purposes of proof) and creates the potential for local land allocation to be taken over by traditional councils. In addition, to assume that traditional councils are the only people entitled to decide what the content of customary land rights are will undermine the customary laws and practices of many rural communities. For many of these communities land allocation and management takes place at multiple different levels, including family, household, clan, village and sub-community. Local customary law is therefore often characterised as a layered system rather than a system that centralises power in traditional councils. To focus land planning and land use in traditional councils therefore does not hold true to many rural people living in the former homelands.
There are also questions about whether traditional councils can legally be granted land planning and land use powers in terms of service level agreements with municipalities. This is because the Constitution does not provide for traditional leadership or traditional councils to exercise governmental functions or powers. This was confirmed in the Certification of the Constitution of the Republic of South Africa, 1996 case where the Constitutional Court made it clear that if traditional leaders were supposed to have governmental powers and functions the 1993 Interim Constitution would have specifically said so. Instead, it was only stated that the ‘institution, status and role’ of traditional leaders should be recognised. This is also how traditional leaders are recognised in section 211 of the Constitution at present, which makes their recognition subject to customary law. Against this background, the constitutionality of substituting elected local government officials with largely unelected (and sometimes apartheid-imposed) traditional councils to perform land use and management functions of a municipality is concerning.
- Lack of accountability measures
It is unclear from regulation 19 how traditional councils will be held accountable for the land use management powers and functions that they could perform in respect of service level agreements, or for the responsibility of providing proof of customary land allocations (where there is no service level agreement). The land development and use application of any person living in a traditional area is still dependent on the actions of a traditional council. This is because the Regulations require that the council first provides proof of a land allocation, or assume that the traditional council will be in control of the initial allocation process, in order for a person to submit their application. Effective mechanisms for holding a traditional council accountable to ordinary people and local government are therefore missing in the Regulations.
- The SPLUMA Regulations could cause confusion about the powers of traditional councils
Regulation 19 specifically states that traditional councils will not have decision-making powers in relation to land planning and land use. However, the regulation still allows for some powers and functions to be outsourced to traditional councils. Exactly what these powers and functions are remains unclear as the Regulations do not elaborate on this. This lack of clarity has the potential to cause significant confusion among municipalities, traditional councils and communities, who are unlikely to agree on what land planning and management powers can or cannot be granted to traditional councils.
Please download the SPLUMA Act Booklet in PDF.