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Constitutional Court confirms unconstitutionality of parts of the Development Facilitation Act

29 June 2010 at 9:46 pm

On 18 June 2010, the Constitutional Court delivered judgment in an application by the City of Johannesburg Metropolitan Municipality (the City) for the confirmation of an order made by the Supreme Court of Appeal, declaring Chapters V and VI of the Development Facilitation Act 67 of 1995 unconstitutional and thus invalid.

The Court held that the powers to consider and approve applications for the rezoning of land and the establishment of townships are elements of “municipal planning”, an exclusive municipal function assigned to municipalities by section 156(1) of the Constitution read with Part B of Schedule 4. Consequently, Chapters V and VI of the Act were found to be constitutionally invalid as they assign exclusive municipal powers to organs of the provincial sphere of government.

In order to mitigate any disruptive effect that an order of invalidity might have on past and future developments, the Court suspended the order of invalidity for 24 months to allow Parliament to rectify the defects in the Act, or to pass new legislation. Further, the order imposes a condition prohibiting development tribunals from hearing new applications for land developments within the jurisdictions of the City and the eThekwini Municipality, as these municipalities were shown to have the capacity to exercise the contested powers. However, the tribunals are entitled to finalise all pending applications in these jurisdictions. The declaration of invalidity will not have retrospective effect if it comes into force.

The full media summary and judgements in both the Concourt and the SCA are available here.

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Section 24of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

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