The DFA342 aimed to overcome bottlenecks in existing regulations such as Spatial Planning and Land Use Management White Paper speed and development, particularly the delivery of allocated land for low income residential.343 It further introduced provisions such as Section 67 to facilitate and expedite land for development projects. The purpose of the DFA
342 Development Facilitation Act (n96).
343 White Paper (n10).
is to ensure that land is utilised productively to ensure that there is sustainable development.
It is quite evident that sustainable development cannot be achieved by mere availability of land, it requires more than vacant land. There is need for support programmes to land beneficiaries, and such support programmes should not be limited to funding and giving of machinery equipment but extended to skills development and mentoring programmes. The DFA has shown great commitment to speed up development particularly in rural areas, by making provision for creation of land development objectives including measures to track performances of such development in terms of Section 27,28 and 29.344
This also implies that provincial government can assess the intention and performance of the local government to ensure that development is fast tracked, particularly in the rural regions. The importance of land development objectives is to provide guidance for land development decisions regarding the intended goals and development in a particular area, taking into account the availability of resources in that area.345 In order to avoid delays in decision making, support must be given to local authorities, especially in rural institutions, in the formulation of these objectives. The process of setting land development objectives needs to be consistent with the Integrated Development Plans mandatory in local government legislation.346
The role of local government in developmental projects is guided by the annual Integrated Development Plan known as IDP. The IDP sets out the annual developmental plans of the local government. The local government confines itself in achieving these developmental plans. And if the land objectives are included in the IDP, the local government will task itself to realise these objectives as part of the annual developmental plans. In this manner, proposed developments in rural areas will be speedily approved because local government is well vested with the developmental needs of the area and is well orientated about the day to day challenges face by members of the community because of the inadequacy of developmental infrastructures.
The DFA has established the National Development and Planning Commission, which investigates a new legislative and policy framework for land development and planning in South Africa. Its purpose is to provide counsel to the national government and, if so
344 See Section 27,28 and 29 of Development Facilitation Act 67 of 1995.
345 Development Facilitation Act (n96).
346 White Paper (n10).
requested, provincial government on future policies and laws regarding land development procedures.347 Section 31(1) of the DFA lays out the procedure to be followed by land development applicant when applying for establishment of land development.
The DFA further requires the application to be submitted to the relevant Development Facilitation Tribunal (DFT) of the province in which the property is situated. Section 33 of the DFA lays out the consideration in which the DFT will consider when approving the application for development establishment. However, in some extent an applicant may apply for development establishment on a property that was designated for a different development establishment. And in such instances the applicant will be required not to only comply with the provisions of the DFA but also with Section 60(2) of Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) and apply for change of land use with the relevant municipality.
In Albert Dykema vs Bela Bela Local Municipality and Arthur Malebane (91319/15) ZACPPHC/ 2017/ 227 the applicant in this matter brought an urgent application to court on the 11th November 2015, seeking interim relief interdicting the first respondent, the Municipality from considering the application of the second respondent or any other adjacent property owner for change in land use from farming to that designated for a filling station.
The applicant owns a farm in the jurisdiction of the municipality and in order for him to develop a filling station and a resort on his property, it requires the approval of the Development Facilitation Tribunal for Limpopo. The applicant made an application for land use rights from that of the resort and agricultural farming to special for the purposes of one stop facilities in terms of the DFT for Limpopo Province on 7 August 2012. Objections were made by other oil companies and other filling stations operators but there was a considerable support from SANRAL as well as Waterbeg District Municipality. In November 2012 the applicant was advised of the approval of his application in terms of the DFA by the DFT.
The applicant’s concern was the municipality’s failure to finalise conversion as contemplated in the DFA read together with Section 60(2) of the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). Moreover, the municipality accepted an identical
347 Ibid note 346.
application for land use change lodged by the second respondent in respect of the latter’s property located 19 Km from the applicant’s property.
The applicant sought a mandamus against the first respondent to compel it to complete the remaining statutory functions to finalise the approval process of land use rights by the DFT.
The court held that the first respondent is directed to process the applicants’ land use change and dispose thereof an accordance with the provisions of Section 60(2)(a) of the Spatial Planning Land Use Management Act 16 of 2013. And that such a process must commerce within 60 Days from the date of order being brought to the notice of the Municipal Manager or other appropriate official of the municipality. 348
In instances where applicants experience counter claims or delays in their application of change of land use due to local government’s poor administration and implementation of the provisions, the court will interpret the provisions of Section 31(1) of the DFA together with Section 60(2) of SPLUMA to enforce compliance with the provisions. As stated in the case of Albert Dykema vs Bela Bela Local Municipality and Arthur Malebane.
DFA is very instrumental in accelerating development such as industrial infrastructures in rural areas, however, the challenge is availability of resources to fund the development.
Government is committed to ensure that people living in rural areas, experiencing upright poverty are given speedy approvals for development projects such as the change in land usage from commercial to farming projects. But the challenge is that people living in rural areas have no funds nor skills to productively utilise the land with developmental projects, they need funds, resources and skills to run developmental projects which will be sustainable and also helps alleviate poverty amongst black people. The focus of Government should be on providing support services not on continuous availing land that will not be utilised at all due to lack of resources and skills. The continuous availing of non- utilised land will have a negative effect on the economy, when land that is used productively is expropriated and redistributed to Black people with no support services to continue the business with the land, the revenue that was contributed to the economy by the land in question will cease.
348 Albert Dykema vs Bela Bela Local Municipality and Arthur Malebane (91319/15) ZACPPHC/ 2017/ 227.