Municipalities’ powers are derived from constitution‚ should not be interfered with: ConCourt

Subjecting a decision on municipal planning and building regulations to an appeal to a review board encroached on the exclusive competence of a municipality and was inconsistent with the Constitution.

In making this finding‚ the Constitutional Court confirmed an order by the Johannesburg High Court that Section 9 of the National Building Regulations and Building Standards Act of 1977 was invalid‚ to the extent that it empowered the National Building Regulations Review Board to exercise appellate powers over decisions of a municipality.

The Act‚ which came into operation in 1985‚ prohibits the construction of buildings within a municipal area without prior approval by the relevant municipality of the building plans.

The matter has its genesis in 2012 when ATC South Africa Wireless Infrastructure submitted to the City of Johannesburg an application to erect a cellular mast on its property situated in Northriding.

The City afforded the adjacent landowners an opportunity to make representations on the application‚ in compliance with its cellular mast policy. Two landowners objected to the erection of the mast. Despite their objections‚ the City approved the plans and the mast was erected.

The two landowners‚ relying on the National Building Regulations and Building Standards Act‚ lodged an appeal to the review board in February 2013.

Although the board is established by Section 9 of the same Act‚ the source of its appellate powers is Regulation 13 of the regulations made by the Minister of Trade and Industry.

The City raised preliminary points‚ one of which was that the review board had no jurisdiction over the matter.

The board issued a ruling in March 2015 dismissing the preliminary points raised by the City. The board also ordered the City to submit its response on the appeal by the landowners.

The City was unhappy with the review board’s decision and lodged a High Court application to challenge the constitutional validity of Section 9. The City said Section 9 had authorised the board to seize a municipal function.

The High Court agreed with the City and declared that Section 9 was constitutionally invalid.

In a unanimous judgment this week‚ Justice Chris Jafta said the constitution had established a government that consisted of three spheres: national‚ provincial and local.

He said these spheres‚ although related‚ each enjoyed a degree of autonomy to exercise powers and perform functions within a defined space. Jafta said this constitutional scheme gave effect to the principle of separation of powers among the spheres of government.

“In addition‚ this scheme abolishes the notion that municipalities are creatures of statute entrusted to provincial councils to administer.”

Jafta said when the City approved ATC’s building plans to erect a cellular phone mast on its property‚ the City was exercising its constitutional powers pertaining to building regulations and municipal planning.

“While the national and provincial spheres enjoy legislative authority over matters entrusted to the local sphere‚ the constitution does not empower these spheres to exercise the executive authority of municipalities.”

He said the role played by the national sphere in municipal affairs was restricted to regulating the exercise of power by municipalities.

Jafta said there was no constitutional provision that allowed a member of Cabinet to intervene in the exercise of constitutional powers by municipalities.