Madam Deputy Speaker, notwithstanding the motivation by the Minister and the portfolio committee chairperson that we should pass this legislation, I would like to highlight some concerns that we have with the proposed legislation.
Despite the fact that this legislation has been 12 years in the making, as the Minister said, it does not mean that it should be railroaded through the legislative process. I stopped this Bill being snuck past the goalie last year when it was already in the NCOP, about to be processed without the appropriate consideration of the portfolio committee and the consideration of public submissions. The referral of the Bill to the relevant portfolio committee certainly enriched the final product. I have no doubt that it is a better piece of proposed legislation than it was before this intervention.
The Bill is intended to address apartheid spatial segregation and designed exclusion of certain communities, where certain communities, especially black communities, were confined to living on the periphery of cities. No one in their right mind could oppose the Bill's intention and it is certainly in line with the DA's policy of R2-D2, which embraces the issues around restitution, reconciliation, diversity and delivery.
Examples, though, of post-1994 RDP housing developments and spatial planning that the portfolio chair has just alluded to illustrate this perfectly. Despite name changes, from the Department of Housing to that of Human Settlements, and the reference to built environments becoming the new catch phrase, this government continues to build concentration camp-style housing developments that do nothing to improve the living standards and dignity of housing beneficiaries.
One of the chief objectives of this legislation is to reduce and streamline bureaucracy. I want to say that the worst thing for bureaucracy constipation is the delegation of authority to spheres of government and people who do not have the prerequisite skills. A doomed if you do, doomed if you don't mentality ends up blocking development. It also opens doors for corruption and opportunism.
I want to share an example with you - the Limpopo style of development that would use this kind of legislation to their advantage. In Polokwane there was a land swap, where a certain Mr David Mabilu, who owned a farm called Doringkraal, swapped 626 hectares valued at R1,1 million with the Polokwane Local Municipality for two erven valued at R9,7 million. [Interjections.] That is the kind of spatial redress we do not want. That is the kind of spatial redress that black economic empowerment, BEE, cadres feast on. We need to make sure when we pass legislation that we do not open an opportunity for those people who feed at the trough of BEE deals to make hay while the sun shines under certain legislation.
Civic organisations, the organisations that represent the people we represent in this Parliament - our voters - are concerned that their rights to object and appeal are being limited to financial interest provisions only. What about aesthetic and environmental considerations, let alone considerations of the integrated development plans, IDPs, of municipalities and the spatial development framework provisions? Appealing to an independent authority is the ultimate check and balance to somebody who uses the right to appeal. However, this is no longer applicable. Appeals will be made to the decision-making authority, where the municipality becomes the player and the referee.
The public hearing process, that was at first neither entertained by this Parliament nor honoured, resulted in mountains of submissions from metros, smaller municipalities, professional organisations such as the geometric and surveying fraternity, including civic and civil society interest groups, which gave rise to significant amendments, too.
There is possible conflict between the Spatial Planning and Land Use Management Bill and the Municipal Systems Act. This Bill does not clarify which piece of legislation trumps which. The passing of this Bill will require the repeal of existing legislation to prevent duplicate and conflicting and parallel legislation. Provinces will have to repeal relevant provincial laws or harmonise them if this is framework legislation. There is, however, still much debate whether this is actually framework legislation or whether this is defining legislation for all provinces.
The Bill is designed and drafted in a fashion that defines that all of its provisions must comply with all other legislation. The arrogance of the sponsors leaves me with little or no confidence that this is in fact not so. I am not entirely clear how this Bill secures provincial and national interests while simultaneously respecting the role of local authorities. The hon chairperson referred to the court case of the City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others. I also want to make mention of the judgment in Maccsand (Pty) Ltd v City of Cape Town and Others. Legal case law studies show that this is a critically important consideration which this Bill does not entirely take into account. The proposed Bill's application to peri-urban, and specifically communal land under traditional leadership, is not entirely clear, and the fact that the House of Traditional Leaders was not specifically targeted for public submission has resulted in a dubious cloud of misconception. The exclusion of communal land under traditional leadership is also a source of grave concern. Compatibility of this legislation with the unfathomable KwaZulu- Natal Ingonyama Trust Act is also most unclear and will in all probability be challenged in court.
The debate around agricultural land being granted unique categorisation status for conservation of agricultural resources and food security reasons has led to mining seeking similar exclusionary status. This is potentially a loophole that could create a proverbial legislative minefield.
Asiyiphiki imeko yesidima sabantu abangenayo imihlaba kunye neendawo zokuhlala. [We are not disputing the indignity of the people through their not having land and a roof over their heads.]
However, one does not need this legislation to address that. All one needs to do is to give people titles to the land that they live on in the homelands and give people titles to the RDP houses that have been built for them.
The portfolio committees initiative to seek legal opinion was a commendable one. This gave rise to the sponsor department seeking its own legal opinion. There was an interesting dynamic. The portfolio committee got the opinion of Adv Ishmail Jamie, SC, who regularly appears for the state and the department sought the opinion of Adv Gauntlett, SC, and Adv Keightley. An interesting observation - this is the same Gauntlett that is not good enough to serve on the Bench or in the Constitutional Court. The opinions dealt with constitutionality and both led to significant amendments and improvements. We thank the portfolio committee chair for allowing that process to go ahead.
This is, however, difficult legislation. If one does not have enough registered town planners, one cannot implement this legislation. In the Western Cape we are about to pass legislation next week, where the province will deal with those municipalities that do not have capacity. The big metros have the capacity to accept the provisions of the Bill. In fact, the City of Cape Town has more planners than the department and all the other municipalities in this province put together. The same applies to other big metros.
One of the biggest constraints is that the Department of Co-operative Governance and Traditional Affairs, for all intents and purposes, does not exist. This is where the real issue is. There are no Minmec meetings. Minister Baloyi has cancelled the last three during which they were to discuss sustainability issues of municipalities and the capacity of municipalities. This Bill will be stillborn because of the fact that the Department of Co-operative Governance and Traditional Affairs does not exist, for all intents and purposes. Under those circumstances, the DA will not be able to pass and adopt this legislation. Thank you. [Applause.]