IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No. 16416/10
In the appeal between:

and

MEC FOR ENVIRONMENTAL AFFAIRS & 

JUDGMENT

Introduction

1. The applicant is the owner of Portions 19 and 27 (portions of Portion 4) of the Farm Ganse Vallei No 444. These properties, which are 18,9714 ha in extent, are contiguous. They are located about five kilometres to the northeast of the Plettenberg Bay central business district. To the east of the properties is the Bitou River estuary. In between the properties and the estuary is a sliver of land that lies below the estuary's high-water mark. The properties are within the area of the Bitou Municipality ('the Municipality'), which is the second respondent. The first respondent is the MEC for Environmental Affairs & Development Planning in the Provincial Government of the Western Cape ('the MEC).
2. There currently exists on Portion 27 (13,8322 ha) a single residence and some outbuildings. The property has been used as a single residence for many years. Portion 19 (5,1392 ha) is vacant. The applicant, which purchased the properties in 2006, wishes to undertake a development on them comprising a retirement village of 150 units, a townhouse development of 50 units, 26 single residential units, 25 lagoon-site residential units, private open space and private access roads.

4. On 27 July 2010 the applicant launched the present application wherein it sought the review and setting aside of the MEC's refusal on various grounds, including that he had based his decision on considerations that involved an impermissible intrusion into the Municipality's exclusive executive competence in respect of municipal planning. After receiving the MEC's record in terms of rule 53(l)(b) the applicant delivered supplementary papers and amended its notice of motion. In these supplementary papers the applicant asked for an order declaring that the KWP RSP was invalid because it was based upon and informed by race-based separate development planning principles. The applicant also added a further ground of review, namely that the MEC (so it was alleged) did not have the RSP before him at the time of considering the matter and was thus not in the position properly to have considered the application for the RSP's amendment.
5. The MEC opposes the application and has filed answering papers to which the applicant has replied. At the hearing the applicant was represented by Mr SP Rosenberg SC and Ms PS Van Zyl and the MEC by Mr AM Breitenbach SC and Ms S Mahomed. The Bitou Municipality did not file a notice of opposition and did not participate in the hearing.

The legal instruments

The Physical Planning Act of 1967

The Physical Planning Act of 1991

12. An approved RSP under the 1991 PPA is thus broadly similar in nature, purpose and effect to an approved guide plan under the repealed s 6A of the 1967 PPA.

The Development Facilitation Act

Land Use Planning Ordinance

The Systems Act

21. The municipality's IDP (which should include an SDF) must be submitted by the municipal council to the MEC for local government in terms of s 32 of the Systems Act. The Act does not require the MEC to approve the IDP as such. However, he may within 30 days ask the municipality on certain grounds to adjust the IDP. If there is a dispute in this regard, there is a prescribed process for the determination thereof.

Provincial policy documents
24. The Western Cape Provincial Government ('the WCPG') has published various policy documents the function of which is to make known the policies that will guide decisions within its competence on planning matters. Among these are the Provincial Urban Edge Guideline and guidelines relating to the approval of golf estates and the approval of resort developments. These planning policies were all approved in December 2005.

Western Cape SDF/Structure Plan

The alleged invalidity of the KWP RSP

The content and character of the KWP RSP

33. The RSP was prepared and approved in 1982/1983 at a time when the full panoply of apartheid legislation, including the Group Areas Act 36 of 1966, was in force. The applicant's attack on the RSP's validity in the supplementary founding affidavit is that it is a document rooted in the policy of apartheid. It contemplates and promotes the development of the KWP area from the perspective and to the benefit of the white group. It thus offends ss 9, 10, 21, 22, 24, 25 and 26 of the Constitution.
34. In his answering affidavit the MEC refers to map 11 as 'the Plan'. He says that subsequent to the repeal of the Group Areas Act in June 1991 the Cape Provincial Administration ('the CPA') and thereafter the WCPG have disregarded the race-based elements of the document containing the Plan. He says that this has been possible because the Plan itself contains no reference to race or apartheid spatial planning and that the few such references in the narrative accompanying the Plan (ie in chapter 6) were rendered redundant by the repeal of the Group Areas Act. He also states that the Plan is not law but a policy document which can be and has been amended from time to time to accommodate changes in circumstances. He points out that the applicant has not alleged that the MEC's decision on the amendment in this case or indeed on any amendment application since the repeal of the Group Areas Act has been informed by apartheid spatial planning.
35. These were essentially the competing positions that were developed before me in argument.

38. Large parts of the document are devoted to describing climate, vegetation, geology, topography and other environmental features. As one would expect, these parts of the document are racially neutral. Apartheid thinking and its affects are apparent, at least explicitly, only where land use by humans is under discussion. One first encounters this in paragraph 3.3 of chapter 3 where the existing areas of human habitation are identified by race. Paragraph 3.5 gives population statistics by race for the KWP area. The urban population of the area was said to be 20 698 in 1980, of whom 7 238 were white, 11 221 coloured and 2 239 black. Plettenberg Bay, the town with which this case is particularly concerned, was reported to have a population of 6 610 comprising 41.1% whites, 51.7% coloureds and 7.2% blacks. Paragraph 3.6.1 referred to the popularity of the KWP area as a holiday destination. A significant proportion of dwellings occupied by white persons were said to be holiday houses (66% in the case of Plettenberg Bay). The absence of corresponding figures for coloured and black persons suggests that they were not regarded as owning holiday properties.
39. Chapter 4 stated that urban and other development within the KWP area would focus mainly on recreation and forestry. The area's greatest asset was said to lie in its holiday and tourist potential. The assessment in that chapter of factors affecting the future pattern of spatial development took into account expected population growth. This was done along racial lines. It was observed by the authors that white persons might emigrate to the KWP area from the Republic's neighbouring states (presumably a reference to homelands such as Transkei, Ciskei etc).

41. Chapter 4 goes on to state (para 4.3) that additional land would have to be provided especially for holiday houses. In the context of what went before, the authors clearly took it for granted that the holiday houses in question would be in areas designated exclusively for white occupation.
42. In the part of chapter 5 dealing with urbanisation (para 5.11) the authors said that because scenic beauty was to be found throughout the KWP area there had been a tendency towards scattered township development. If this tendency continued the natural assets of the area could be lost. Future township development should thus only be permitted if it took the form of the normal extension of an existing town. The document proceeds with a detailed examination of each of the existing towns, with land use requirements being dealt with separately for whites, coloured and blacks. In the case of Plettenberg Bay, white residential development up to the year 2000 was expected to require 3 500 stands. Since 2 440 stands already existed, another 1 060 would have to be provided. Areas to the north and south west of the existing town were identified as suitable for this purpose. Given the size of the existing coloured and black areas (which were side by side in an area called New Horizons) and the projections for the population growth of these groups, no additional space for them was needed.
43. The manner in which the document treats Plettenberg Bay is typical of the document as whole. For example, in the case of Knysna the document says that the spatial requirements for white residential purposes has been determined from the rate at which dwellings for this group were erected in prior years. The spatial requirements for coloured and black people were dealt with separately with reference to their group areas and projected population growths (see para 5.11.1.2). Sedgefield and Wilderness were dealt with in a similar fashion (paras 5.11.3 and 5.11.4), save that there was no reference to spatial requirements for black residential purposes, the reason being that these towns had no residential areas for blacks (para 4.2).
44. Against this background, one comes to chapter 6 and map 11. There is relatively little explicit racial terminology in chapter 6 and none in map 11. However, when paragraph 6.1 says that township development may take place in the areas designated for that purpose on map 11, one knows from the preceding chapters that the township areas were identified on map 11 on the premise that the existing racially divided areas of urban occupation would continue by force of law to be racially divided; that the areas designated for township development were based on projections of population growth profoundly influenced by legal restrictions on where people could live; that holiday-house development was essentially the preserve of the white group; and that the presence of coloured and black persons in the area was tolerated largely because of their utility in providing labour.
45. Accordingly, I cannot accept the argument for the MEC that map 11 and chapter 6 themselves are largely free of offensive apartheid social planning. They are very much the product of that system. In laying down guidelines for the future spatial development of an area (s 6A(l)(a) of the 1967 PPA) the authors of the guide plan had to strike a balance between residential development and other uses. It is apparent that this is what the authors of the KWP RSP were trying to do. However, they struck this balance on assumptions regarding township development that were, as the applicant has alleged, rooted in apartheid policy.

46. The MEC contends that subsequent to the repeal of the Group Areas Act in 1991 the race-based elements of the document containing map 11 have been disregarded and that this has been possible because map 11 contains no racial restrictions and because there is very little racial terminology in chapter 6. This is not a satisfactory answer to the challenge. The designation of land uses in map 11 as read with chapter 6 was determined in the manner I have indicated. The way the lines were drawn was fundamentally informed by racially discriminatory legislation. These lines do not lose their racial character merely because one acknowledges that the underlying racist reasoning in chapters 3 to 5 of the RSP is repugnant.
47. It is apparent that since 1983 there must have been many amendments to the RSP. Some would have been made before the repeal of the Group Areas Act, others afterwards. In the present case details have been furnished only of four relatively recent amendments in respect of the area in the vicinity of the applicant's properties. Details of the other amendments are unknown to the court.

49. I have no reason to doubt that subsequent to the repeal of the Group Areas Act applications for the amendment of the RSP have been decided without reference to racial considerations. I do not think that this is a sufficient ground for concluding that the racially-based content of the RSP has disappeared. The MEC has not alleged and there is no evidence to suggest that subsequent to 30 June 1991 or subsequent to the coming into force of the interim Constitution in April 1994 there has been any systematic review of the KWP RSP in order to assess whether the balance struck in 1983 between urban development and other land uses remains appropriate in the light of the radical change in legal regime.

51. The KWP RSP is thus in my opinion an instrument that violates the founding values of human dignity and non-racialism in s 1 of the Constitution and the fundamental rights of equality and dignity in ss 9 and 10 of the Constitution. It is not necessary to refer to case law on the subject of equality and discrimination. If past laws sanctioning racial segregation materially influenced the content of the RSP, as I find to be the case, inconsistency with the Constitution is manifest. Subject to the matters to be addressed immediately hereafter, I consider that the RSP should be declared invalid.

Law or conduct — s 172(1)

55. I do not believe one should lightly find that a court is impotent to deal with an instrument such as the KWP RSP which has been found to be constitutionally offensive. The need for a remedy lies not in the fact that there was conduct by an official in 1983 when the RSP was approved but because by virtue of s 27(1) of the 1991 PPA an approved RSP has certain legal effects. If there is constitutional inconsistency, however, it is not to be found in s 27(1) of the 1991 PPA but in the content of the KWP RSP.

Suspension and retrospectivity

66. The absence of an RSP leaves unaffected a substantial body of other regulatory instruments governing development. In the present case, for example, the Bitou Municipality will need to approve an application for rezoning and subdivision. The WC SDF (which is a LUPO structure plan)will be relevant to the Bitou Municipality's assessment of the desirability of the applicant's proposed rezoning and subdivision (see s 36(1) of LUPO). If the application for rezoning and subdivision is granted, any person who objected will be entitled to appeal to the MEC (s 44 of LUPO).

70. Finally, it is not apparent to me how I could give directions regarding the non-application (during the period of suspension) of the race-based portions of the KWP RSP. The objection to the RSP is that race-based considerations were material in the way the designations of approved land uses in map 11 read with chapter 6 were arrived at. Those designations represent the substantive content of the RSP. If they are to be disregarded, nothing will be left of the RSP.

Conclusion on invalidity of KWP RSP

First review ground: MEC did not have RSP before him
73. In its supplementary founding affidavit the applicant alleged that from the rule 53 record it appeared that there was no copy of the RSP in the documentation considered by the MEC and that no reference was made to any relevant portions thereof in the documents which were before him; that it had thus been impossible for him properly to apply his mind to the question whether the RSP should be amended; and that in the circumstances he had failed to take into account relevant considerations (ie the content of the RSP) and had acted unlawfully.
74. In written argument the applicant's counsel submitted that the MEC (as a relatively new appointment) was left ignorant about the RSP's view of the area's background, the factors affecting the future pattern of the area's spatial development and the RSP's specific provisions for the area's future development. They also submitted that because the MEC did not have the RSP he would not have known about relevant amendments to the plan. Inoral argument Mr Rosenberg placed particular emphasis on the MEC's supposed lack of knowledge concerning relevant recent amendments to the RSP.

76. It is convenient here briefly to summarise the MEC's comments on these four amendments: [a] Regarding the Hanglip property and the two Ganse Vallei properties, the MEC says that in each instance Mr Uys rejected the departmental recommendation that the amendment application be refused, and that he (Mr Bredell) would not have approved these applications. Among the objections raised in each instance by the department was that the proposed amendments related to properties falling outside the urban edge, [b] In the case of the Hanglip property, a subsequent application by the owner for the environmental approval required by the ECA was substantially refused; only a relatively modest eco-tourism alternative was permitted. The MEC has rejected an appeal against the said environmental decision, [c] The necessary environmental authorisation for the development of the second Ganse Vallei property was subsequently refused and again the MEC rejected an appeal, [d] The old Nick amendment is one the MEC would have approved. The property falls within Plettenberg Bay's urban edge.

79. Since these are motion proceedings, I cannot reject the MEC's statements about his knowledge of the RSP and the consideration he gave to the documents unless they are plainly untenable. Such a finding is not warranted. In my view the MEC knew enough about the RSP to apply his mind to the amendment application.

Second review ground: Intrusion into municipal planning function

The MEC's reasons for his decision

The GDT case

The competing arguments in summary

The considerations mandated by the legislation

91. The 1991 PPA is old order legislation. It was not formulated with regard to the Constitution's distribution of areas of functional competence among various levels of government.
92. In terms of the 1991 PPA the object of an RSP is to promote the orderly physical development of an area for the benefit of all its inhabitants (s 5). The RSP must comprise broad guidelines for the future physical development of the area, and may provide that land shall be used only for a particular purpose or (with prescribed consent) for other purposes for which provision is made in the RSP (s 6). Section 27 expressly prohibits the rezoning of land for a purpose inconsistent with the RSP and prohibits the granting of permission for the subdivision or use of land in a manner inconsistent with the RSP.

93. The Act thus contemplates that an RSP will or may designate the use or uses to which land within the area may be put with a view to guiding future physical development. The object of so doing is to promote the orderly physical development of the area to the benefit of all its inhabitants.
94. The 1991 PPA imposes no restrictions on the matters which the relevant authority may take into account in formulating the RSP, provided the considerations are directed at the orderly physical development of the area for the benefit of all its inhabitants. The lawmaker must have intended the relevant authority to be entitled to have regard without limitation to all circumstances bearing on the desirability of land uses of various types in the area. For example, in laying down guidelines for township development in the area so as to promote orderly physical development, the relevant authority would entitled to consider the desirability of restricting urban sprawl and densifying existing areas of urban development. He would also be entitled to identify land suitable for residential expansion. In so doing he would inevitably have to consider the various possibilities and the relative importance of preserving particular areas for other uses or purposes (eg agricultural, industry, conservation, tourism). I cannot conceive how the relevant authority could frame an RSP without investigating and being influenced by considerations of this kind.

The Bitou Municipality's urban edge

106. However, and insofar as the question may be of some relevance, the applicant's contention is that the Bitou Municipality established a provisional urban edge in December 2005 as part of an SDF prepared by its town planning consultants, Visi Africa, and established a final wider urban edge at some later stage. The applicant's properties were outside the provisional urban edge but inside the wider urban edge.
107. The draft SDF containing the December 2005 urban edge appears to have been adopted by the Bitou Municipality's mayoral committee. Section 25 of the Systems Act requires the IDP (including the SDF) to be adopted by the municipality's council. There is no evidence that the December 2005 SDF was so adopted. In any event, since the urban edge in the said SDF did not include the applicant's properties, it does not appear to advance the applicant's case.

Characterisation of the MEC's considerations

115. This analysis may have the result that some of the considerations which a municipality takes into account in performing its municipal planning function of deciding rezoning and subdivision applications will be the same or similar to considerations taken into account by the relevant authority in performing the provincial planning function of approving or amending an RSP (for example, containing urban sprawl, conserving the natural environment and so forth). I see nothing problematic in this. The Constitution distributes legislative and executive competence among the various levels of government. The subjects on which the various levels of government may legislate and the executive functions they may perform are the subject of the distribution, not the reasons and considerations they may take into account.

117. It is perhaps worth noting that although an RSP has the potential to restrict a municipality's freedom of action in regard to rezoning and subdivision, the Systems Act appears to place in the municipality's hands the means of freeing itself from this restriction. This follows from the fact that in terms of s 35(2) of the Systems Act an SDF forming part of the municipality's duly adopted IDP prevails over an RSP.

Conclusion
119. For the reasons stated earlier I consider that the applicant is entitled to an order declaring the RSP to be invalid. I have also explained that if I had upheld the validity of the RSP I would have dismissed the application to review and set aside the MEC's decision to refuse the amendment of the RSP.
120. Although the applicant would have failed on the review application if I had upheld the validity of the RSP, the applicant has nevertheless succeeded in obtaining the primary relief it sought. I think it is entitled to all its costs, including those attendant on the employment of two counsel. This is subject to one qualification. In my view the MEC's striking-out application dated 7 November 2011 was well-founded. The applicant should bear the costs of that interlocutory application, even though I have not found it necessary to make any separate order on the merits of the interlocutory application.
121. My order is thus as follows:

[b] The applicant is directed to pay the first respondent's costs associated with the first respondent's application for striking-out dated 7 November 2011, including those attendant on the employment of two counsel.
[c] Save as aforesaid, the first respondent is directed to pay the applicant's costs, including those attendant on the employment of two counsel.

ROGERS AJ
5 March 2012