Abstract

‘Municipal planning’ is a functional area that appears in Part B of Schedule 4 of the Constitution. Schedule 4 areas are areas of concurrent national and provincial legislative competence. Section 156(1)(a) of the Constitution provides that ‘a municipality has executive authority in respect of, and has the right to administer the local government matters listed in Part B of Schedule 4’. Local government’s right to exercise executive and administrative authority over municipal planning was recently enforced in the Supreme Court of Appeal and Constitutional Court decisions in City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal & others. It is important to determine the distinction between legislative power over municipal planning on the one hand and executive/administrative power on the other. I argue in this article that town planning schemes, zoning schemes, and land use planning schemes are legislative in character. This is despite the fact that it has been authoritatively established that rezoning applications which result in amendments to spatial schemes are executive/administrative and hence the prerogative of local government. I refer to a line of authority which has had traction in some states in the United States in order to illustrate my arguments. Ultimately I argue that the Durban Metropolitan Open Space (D’Moss) amendments to the town planning schemes in Durban are legislative amendments. The article aims to examine these issues in order to add to the debate on the parameters of municipal powers in South Africa and their impact on the other spheres of government.