The intersection of the role of municipalities under the Spatial Planning and Land Use Management Act 16 of 2013 and the role of traditional leaders in the process of allocating land.

The system of local government in South Africa has played a critical role to issues related to service delivery, development and bringing government closer to the people. While forms of local government existed pre-1994 in some parts of South Africa, in other areas they did not. One of those areas is the rural areas where traditional leaders continue to be the face of local governance in their villages, something which they have been for centuries. As such, when the idea of establishing a wall-to-wall system of local government throughout the country was debated in the early 1990’s, it is not surprising that traditional leaders vehemently opposed this idea.

For traditional leaders, the main aim was to remain the local governance structures in the rural areas and be the institution that would administer the provision of services and development in the new democratic dispensation. Therefore, when the system of local government was established by the Constitution and given the mandate to drive development throughout South Africa including in areas where traditional leaders governed, tension and contestation between municipalities and traditional leaders began to emerge in an insidious manner. That tension has endured for the past two decades since 1994 albeit it has been carefully managed by the ANC led government. But, now it seems that the enactment of the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) might have inadvertently resuscitated the tension between the two institutions.

The Spatial Planning and Land Use Management Act 16 of 2013

SPLUMA was passed in 2013 on the back of a Constitutional Court judgment that declared the Development Facilitation Act unconstitutional and gave the government until June 2012 to resolve the issues it had raised in its judgment. The Act confers to municipalities the authority to take decisions on matters concerning land use planning and land use management. It does so by giving effect and meaning to the functional area of ‘municipal planning’, a function which the Constitution allocates to local government in Part B of Schedule 4.

The Act declares that it applies to the entire area of the Republic including rural areas under the authority of traditional leaders. In fact, the Act establishes a wall-to-wall system of land use management. Most importantly, the Act requires each municipality to adopt and approve a single land use scheme within a period of five years after the Act has come into force. In addition, that scheme must include provisions that permit the incremental introduction of land use management and regulation in areas under traditional leadership.

Finally, SPLUMA directs that spatial development frameworks and land use management systems must be applicable in rural areas under traditional authority. This means that SPLUMA is intended to operate in a rural setting as if it was an urban area under the authority of a municipality and without the presence of a recognised governance structure, namely, traditional leadership. 

 

The ‘burning’ or emerging issue in this case

The reality however, is that in rural areas there exists a land use and land allocation system which is administered by traditional leaders in terms of customary law and this has been the case for many centuries. This has led to the emergence of two systems of land use management co-existing parallel to one another and operating in the same rural areas that are under the authority of traditional leaders. The operation and existence of two systems in the same area inevitably serves as a recipe for conflict and contestation unless there is agreement and co-operation on how both systems will operate. 

Therefore, the tension between municipalities and traditional leaders over which institution is rightfully empowered to allocate land use rights in rural areas deserves immediate attention. In other words, the intersection of the role of municipalities under SPLUMA and the role of traditional leaders in the process of allocating land along with land use rights in practice must be examined. This will enable stakeholders such as the planning sector, the three spheres of government, rural communities, NGO’s that conduct research in planning as well as traditional leaders to better understand the exact factors which escalated the pre-existing tension between the two institutions in the rural areas.

Conclusion

This article sought to highlight a thorny issue which has seemingly reignited the tension and contestation between traditional leaders and municipalities in the rural areas. There is no doubt that these tensions began to re-emerge after the passing of SPLUMA in 2013, leading traditional leaders to take to the streets and protest over the implementation of this Act in their areas of jurisdiction. While municipalities are still trying to grapple with this issue, it is clear that the tension and contestation has had a direct and palpable impact on local government’s legislative mandate in the rural areas with respect to planning. More broadly, it has also critically compromised the realisation of an important constitutional principle in the rural areas.

With respect to rural local government’s legislative mandate, SPLUMA came into effect in 2015 and it provides that at the time it comes into force, each municipality is given a period of five years in which it must develop a land use scheme for its municipal area, this includes areas under the authority of traditional leaders. Four years have already passed by and many municipalities have not developed their land use schemes. It is now a race against time for most municipalities in the rural areas to put together these schemes and ensure that they meet the 2020 deadline set by SPLUMA.

Currently, practice and anecdotal evidence indicates that an array of municipalities in the rural areas are nowhere near finishing the development of their land use schemes. Municipalities are largely struggling in this regard because of this renewed tension with traditional leaders which is seemingly attributed to SPLUMA. It is reported that municipal officials are often not allowed to assess and survey those areas where traditional leaders govern for purposes of including the areas in the municipality’s land use scheme. Consequently, a significant amount of time and effort has been spent rather on trying to secure the buy-in and co-operation of traditional leaders to implement SPLUMA in their areas of jurisdiction.  

Secondly, the wall-to-wall system of local government introduced by the Constitution of 1996 has not yet been fully realised throughout South Africa. There are areas governed by traditional leaders which are ‘no go areas’ for municipalities because of the tussle between municipalities and traditional leaders about which institution is the appropriate governance structure of a given village, community or kingdom. Thus, questions over whether the wall-to-wall system of local government has been fully achieved in South Africa may need to be debated and discussed. Similarly, the realisation of the wall-to-wall system of land use planning introduced by SPLUMA is also in serious jeopardy if the status quo remains unchanged. In short, the implementation of SPLUMA in rural areas, especially those areas governed by traditional leaders has left much to be desired. As such, a thorough investigation of the intersection of traditional leaders in land allocation and the role of rural municipalities in spatial planning and land use management may be a step towards the right direction in attempting to address this issu

© 2016 Dullah Omar Institute
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