Royal Bafokeng Nation: Oral s ubmissions on the Spatial Planning and Land Use Management Bill, 14 of 2012 21 August 2012.

Royal Bafokeng Nation:

Oral submissions on the Spatial Planning and Land Use Management

Bill, 14 of 2012

21 August 2012

Introduction

• This presentation is made on behalf of the Royal Bafokeng Nation (“RBN”), by Bell Dewar, and should be read in conjunction with the RBN’s written submissions submitted to the Portfolio Committee on 10 August 2012

• Because of South Africa’s history, the law governing land use is fragmented. The RBN welcomes the Bill which should function as a framework to guide and assist provincial and local government on implementing their Constitutional obligations in relation to land use management and spatial planning

The RBN and its interest in the Bill• Universitas Personarum, legal person, ± 150 000 members• Traditional Community in terms of the Traditional

Leadership and Governance Framework Act, 41 of 2003• RBN owns/administrates ± 1200 square kilometres of land

in the North West in the vicinity of Rustenburg (Phokeng)• Nature of ownership/administration of RBN land• RBN’s interest in the Bill is based on:

– The effective implementation of the RBN’s Vision 2035 and Masterplan programmes,

– The RBN’s experiences with detrimental, poorly managed and improperly overseen use of RBN land

– RBN’s desire to ensure that its land is used sustainably and for the benefit of the community

Abuse of RBN land• Damage caused to RBN land on which prospecting rights were

granted without consulting RBN• This land was and is not

zoned for mining (mostly agricultural)• Severe hazard to community safety• Land owner’s rights bypassed,

zoning requirements not considered

RBN Vision 2035 and Masterplan

• Main objective: to create sustainable growth and prosperity for the community

• Under the Masterplan, certain objectives and projects have been set out, such as schools, social services, recreational facilities and adequate housing

• Provision is made in the Masterplan for inter alia mining and related activities

• It is not the purpose of the Masterplan to sterilise RBN land for purposes of mining, but rather to ensure that all activities conducted on RBN land (including mining and prospecting activities) are undertaken in a lawful and sustainable manner

RBN Vision 2035 and Masterplan•Realistic and Practical plan•Emphasis on sustainability and development•RBN working together with Rustenburg Local Municipality (“RLM”) in its implementation•Substantial amount of RBN land is planned to be used for mining and quarrying

RLUMS

• Implemented under the Town Planning and Townships Ordinance, 1986 and the Municipal Structures Act, the RLM has implemented the Rustenburg Land Use Management Scheme (“RLUMS”)

• RBN land is governed by RLUMS• The RLUMS is comparatively advanced compared to other

jurisdictions and is currently implemented (revised in 2008)• RLM, RBN and the mines in the area are currently working

together to implement a consolidated Masterplan and RLUMS

• RBN has a strong relationship with RLM

Observations• Constitution

– Municipal Planning (includes zoning) is assigned to municipalities (Section 155) and municipalities have executive authority and duty to administer

– Sections 41 and 151 of the Constitution – The Bill should be a framework for provincial and local

government to exercise their Constitutional obligations in relation to spatial planning and zoning

– The Bill should enable municipalities to effectively implement and administer their zoning schemes

– The Bill is in line with the Constitutional imperative

Issues• Mining and related activities

– Maccsand Constitutional Court decision– Mining companies must comply with the law (the

MPRDA and all other applicable laws), including land use management law

– Important to RBN that the Bill does not result in a situation where activities (including mining activities) can be conducted on RBN land in circumstances where the land is not zoned appropriately

– A blanket exclusion of all mining and related activities in the Bill would, in RBN’s view, be unconstitutional and prejudicial to the RBN’s rights as landowner

Issues• Public Participation in decision making process

– Clause 23(2) of the Bill – ‘participation’ of traditional council in land use scheme adoption/amendment

– What level of participation is envisaged?– As a traditional community the RBN would not be

satisfied with merely assisting in determining how community-owned land is zoned. The RBN believes it should have a right to determine how its land is zoned

– Crucial for RBN to have control over how its land is used– Communal and Tribal Land require special

considerations over and above mere ‘participation’

Proposals/Suggestions/ Conclusion

• Amendment to clause 51 – removal of words: “…but no variation or revocation of a decision may detract from any rights that may have accrued as a result of the decision…”. By its nature, rights will have accrued in any event. Toothless provision

• A dispute resolution mechanism with teeth is required. What happens in the case of a dispute between land owner and land “user” regarding rezoning applications? What powers does the municipal planning tribunal envisaged by the Bill have to deal with such a dispute?

• Provision for more participation/control by traditional communities

• RBN believes it, as traditional community landowner, RBN should have ultimate control over how its land is used. (cf section 104 in MPRDA)

Proposals/Suggestions/ Conclusion

• MPRDA and town planning legislation must work contemporaneously (Maccsands). A blanket exclusion of mining activities from the ambit of land use management in general is unacceptable, and the RBN contends, unlawful. The Constitutional Court has pronounced clearly on this issue.

• One cannot exempt particular activities from the ambit of the Bill. Simply exempting mining will be catastrophic – what body will regulate the land?

• Cooperation amongst stakeholders, landowners and municipalities is vital. The RBN believes the Bill caters for this.