The exclusion of traditional leaders from the Municipal Planning Tribunal (MPT) is another reason which traditional leaders have raised to oppose the implementation of SPLUMA in their areas of jurisdiction. The article argues that the perception that traditional leaders are excluded from participating or being members of the MPT flows from the misunderstanding of SPLUMA.

Background

Like the previous articles, this article is based on interviews conducted with various traditional leaders across three provinces namely, KwaZulu-Natal, Limpopo and the Eastern Cape. The interviews were conducted in line with the University of Western Cape’s Ethics Policy. In many of the interviews, it appears that traditional leaders not only misunderstood the Act but also prematurely concluded that it excluded them from participating or being members of the MPT.

SPLUMA introduced the MPT as the main organ for considering and taking decisions on land use and land development applications received by the municipality. The exception to this is when an official of the municipality is authorised to consider and make decisions on certain, specific land use applications. Be that as it may, SPLUMA treats MPTs as the main municipal organ charged with considering and taking decisions on land use and land development applications. As the primary decision-makers on land allocations for proposed developments in their areas of jurisdiction, traditional leaders became upset and angry after being advised that SPLUMA had “excluded” them from being members of the MPTs, or from even participating in them. It must be pointed out that SPLUMA does not explicitly state that traditional leaders are barred from being members of the MPTs or that they cannot participate in them.

A traditional leader from the Eastern Cape, when asked about the exclusion of traditional leaders from MPTs, he had this to say:

“We can read between the lines as traditional leaders, SPLUMA excludes us from the body that will take decisions about development that will occur on our land. Before SPLUMA we had a say on development, but now we will not form part of a structure that will be taking decisions about development that are planned for the area I am in charge of. What is the meaning of that?”

A provincial official shared her opinion on the exclusion of traditional leaders from MPTs:

“I don’t think it was a wise decision to say that traditional leaders cannot form part of the MPT. It is their areas at the end of the day and they will want to have a say on any development that happens in their areas whether we like or not. The exclusion of traditional leaders from MPTs is one of the reasons they do not want anything to do with SPLUMA”

A national official involved in the development and rolling out of SPLUMA explained the decision to exclude traditional leaders from the MPTs:

“We excluded traditional leaders from the MPTs because we wanted to insulate the MPTs from outside interference. But more importantly, we didn’t want a situation where elected councillors who are also traditional leaders would also become members of the MPTs”.

The contestation between traditional leaders and municipalities in traditional areas is mainly fuelled by the exclusion of traditional leaders from the decision-making processes of the municipality or its organs. The exclusion, regardless of whether it can be justified or not in law, tends to be received by traditional leaders in practice as a way of excluding them from a decision-making process that has a direct relevance to what can or cannot be built within an area they govern.

Commentary

The adage which says “perception is not reality” best describes the reason for the rejection of the implementation of SPLUMA analysed in this article. Many traditional leaders have argued that they are excluded from the MPT. It is unclear where this claim or “perception” originates from, because SPLUMA does not expressly exclude traditional leaders from being members of the MPT nor participating in these decision-making structures. In practice or aptly, “in reality” some municipalities in areas governed by traditional leaders have invited traditional leaders to participate in the MPTs. However, it is also possible that some traditional leaders have not had the pleasure of being invited to participate in the MPT, especially when the relevant Tribunal was considering an application for a proposed development in area that is under the authority of a traditional leader. This is what tends to intensify the contestation between these two institutions. To that end, this article suggests that municipalities should include traditional leaders as members or participants of the MPTs in their by-laws to take a pro-active approach and dispel this notion of exclusion by inserting provisions in their municipal planning by-laws which recognise the participation of a traditional leader in whose area a proposed development will be undertaken in the MPT. In other words, within a particular municipal area, it is often the case that three or four traditional leaders govern certain villages falling within the area. If that is the case, it is suggested that the relevant municipality should include provisions in its planning by-laws that recognise the participation of those traditional leaders in whose area of jurisdiction the proposed development will take place. Furthermore, SPLUMA makes provision for an MPT to bring in advisors as and when it deems necessary. This is one possible channel through which traditional leaders could be invited into MPTs and participate in matters which concern their areas of jurisdiction. The next article will examine the fourth major reason behind the rejection of SPLUMA by traditional leaders, namely the lack of trust in SPLUMA instruments and processes.

By Dr Xavia Poswa, Postdoctoral Fellow, North West University