The courts have shown the appetite to stop this practice, by among other ways, imposing cost orders to not only traditional leaders found guilty of illegally allocating municipal land but also to community members who take up occupation of municipal land on the instruction or advice of a traditional leader. To avert this, community members, prospective residents and developers must determine the ownership of the land before purchasing or leasing it. They also need to ensure that the land they seek to erect residential dwellings or develop is zoned or designated for that purpose in the land use scheme of the municipality. Failure to do this can unfortunately result in the residential dwellings being demolished by the municipality. The municipality can also exercise its land use management authority to block any property development which does not align with its land use planning scheme. This article examines whether traditional leaders can also utilise their land allocation authority to block developments in their areas of jurisdiction.

Land allocation as a form of land use management

Traditional leaders are responsible for land allocation in rural areas. Their authority to allocate land in terms of customary law ought to be regarded as a form of land use management. The customary law system of land allocation involves the granting of rights of access and use on the basis of accepted group membership, and a degree of group control or supervision over how these rights are exercised. This means that the customary system of land allocation should be seen as a form of a land use management system that is observed in rural areas. The main difference between the forms of land use management powers exercised by traditional leaders and municipalities is what guides the process of exercising this power. On the one hand, traditional leaders apply unwritten, customary norms, principles and values, which emanate from indigenous sources. On the other hand, municipalities apply written, statutory-based rules, principles and values which emanate from new statutes that codify a system of planning whose objective, amongst others, is the creation of a healthy and safe environment. It is therefore submitted that the process of allocating land by traditional leaders should be construed as a form of managing the use of the land of an area under the custodianship of a traditional leader.

Can traditional leaders block developments?

The Spatial Planning and Land Use Management Act of 2013 (SPLUMA) provides for measures to address the co-existence between a municipality and a traditional authority. This is particularly important when it comes to making decisions regarding land use management on land administered by traditional leaders in terms of customary law, but situated within the area of the municipality. In terms of sub-regulation 19(2) of the SPLUMA regulations, it is provided that if a-

"traditional council does not conclude a service level agreement with the municipality, as contemplated in sub-regulation 19(1), that traditional council is responsible for providing proof of the allocation of land in terms of customary law. This proof of land allocation is then provided to the applicant of a land development or land use application. The applicant will then submit it in accordance with the provisions of these regulations."

In practical terms, this means that a person or developer may not submit a land development or land use application to the municipality without proof of a land allocation decision from the relevant traditional leader. In other words, the municipal planning tribunal or the authorised official may not entertain an application if the traditional leader of the area, where development is proposed, has not approved the proposed development. It is thus submitted that the confirmation by SPLUMA, read with the Traditional and Khoisan Leadership Act of 2019, that traditional leaders retain their authority to manage land use and their role as custodians of communal land, suggests that traditional leaders are the "authorities of first instance" - in terms of receiving a formal request for a land allocation from rural residents or developers. In the same vein, traditional leaders are obliged by the SPLUMA Regulations to generate proof of a land allocation decision taken in terms of customary law and to provide it to the applicant of a land development or land use application. The applicant will thereafter submit that proof of land allocation, in accordance with the SPLUMA Regulations and the relevant municipal planning by-laws, to the municipality. It is only then may the municipal planning tribunal or the authorised official considers and decides on the land use or land development application.

Commentary

The authority to manage land use in rural areas under the jurisdiction of traditional leaders is shared between municipalities and traditional leaders. This means that a municipality and a traditional authority can make land use decisions but the exercise of that authority must be to achieve orderly and responsible developments guided by the integrated development plan and land use scheme of the municipality. SPLUMA makes it clear that no land may be used for purposes not permitted in the land use scheme.  What must happen if a land allocation made by a traditional leader is not consistent with the land use scheme of the municipality? Once proof of a land allocation decision taken in terms of customary law has been provided to the municipality, the next step is for the municipality to ascertain whether that allocation is consistent with its land use scheme. If the allocation made by the traditional leader is not consistent with the municipality’s land use scheme, an application must then be made to the municipality for a rezoning or amendment of the land use scheme. If the municipality decides that the land use scheme may not be amended to accommodate the land allocation, the development may not proceed.

On the other hand, what should happen in a case where the proposed development fits within the land use scheme of the municipality, but the traditional leader disagrees with the development? Is the traditional leader empowered to block the proposed development? It is submitted that a traditional leader may oppose the proposed development by not issuing the developer or applicant with the required proof of the land allocation decision. Although the municipal planning tribunal or the authorised official are charged with making decisions on land use and land development applications, they may not, however, entertain the said application because one of the required approvals namely, traditional approval, is not obtained.

Conclusion

Under the customary system of land management, traditional leaders exercise land use management powers in terms of which land use rights are determined, conferred and controlled in a similar way to that of the municipality when it applies its land use scheme. This indigenous system of land use management, which forms part of the wider communal tenure regime governing access to and use of rights to land, shares some elements with the Eurocentric system of planning established by SPLUMA, which includes land use management. Whether a particular system of land use management consists of codified or unwritten rules, this does not mean that the systems are entirely different to one another in terms of their functional elements, or what they are designed to regulate or control. The fact that developments in traditional areas cannot proceed without the blessing of any of these two institutions points to the need for them to work together to give effect to the intention of SPLUMA. Traditional leaders and municipalities need to cooperate on land management issues to give effect to the intention of SPLUMA which is to create orderly and planned developments in a healthy and safe environment.

By Xavia Poswa