Le Sueur and Another v Ethekwini Municipality and Others (9714/11) [2013] ZAKZPHC 6 (30 January 2013)

Le Sueur and Another v Ethekwini Municipality and Others (9714/11) [2013] ZAKZPHC 6 (30 January 2013)

The court found that the Ethekwini Municipality had validly adopted the D-MOSS amendments, as a resolution to proceed was taken before the repeal of the Town Planning Ordinance and the process was not abandoned, thus saved by transitional provisions of the Planning and Development Act. The court held that municipalities possess constitutional and statutory authority to legislate on environmental matters as part of municipal planning, supported by national and provincial legislation and policy. The argument that environmental regulation is reserved exclusively for national and provincial government was rejected, as the Constitution envisages overlapping and cooperative governance. The...

Citation
[2013] ZAKZPHC 6
Parties
Applicant: R A Le Sueur; Applicant: R A Le Sueur N.O. & Others; Respondent: Ethekwini Municipality; Respondent: Minister of Environmental Affairs; Respondent: MEC: Agriculture & Environmental Affairs KZN; Respondent: MEC: Co-Op Governance & Traditional Affairs; Respondent: Any Other Interested Party; Respondent: City of Cape Town (Amicus Curiae)
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
30 January 2013
Case Number
9714/11
Procedural Posture
Review Application / Final Judgment After Opposed Motion
Outcome
Application dismissed with costs, including costs of two counsel. Costs for split zoning amendments awarded to applicants on an unopposed basis.
Judges
Gyanda
Legal Topics
Municipal Planning, Environmental Regulation, Ultra Vires, Constitutional Mandate, Transitional Provisions, Town Planning Schemes
Administrative Law Constitutional Law Land and Property Municipal Planning Environmental Regulation Ultra Vires Constitutional Mandate Transitional Provisions +1 more

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Parties

R A Le Sueur

Applicant

R A Le Sueur N.O. & Others

Applicant

Ethekwini Municipality

Respondent

Minister of Environmental Affairs

Respondent

MEC: Agriculture & Environmental Affairs KZN

Respondent

MEC: Co-Op Governance & Traditional Affairs

Respondent

Any Other Interested Party

Respondent

City of Cape Town (Amicus Curiae)

Respondent

Procedural Posture

Review Application / Final Judgment After Opposed Motion

Legal Issues

  1. 1 Whether the D-MOSS amendments to the Ethekwini Town Planning Schemes were validly adopted under the repealed Town Planning Ordinance or saved by transitional provisions of the Planning and Development Act.
  2. 2 Whether the Ethekwini Municipality had constitutional and statutory authority to legislate in respect of environmental matters through town planning schemes.
  3. 3 Whether the D-MOSS amendments amount to unconstitutional expropriation or deprivation of property rights.

Ratio Decidendi

The court found that the Ethekwini Municipality had validly adopted the D-MOSS amendments, as a resolution to proceed was taken before the repeal of the Town Planning Ordinance and the process was not abandoned, thus saved by transitional provisions of the Planning and Development Act. The court held that municipalities possess constitutional and statutory authority to legislate on environmental matters as part of municipal planning, supported by national and provincial legislation and policy. The argument that environmental regulation is reserved exclusively for national and provincial government was rejected, as the Constitution envisages overlapping and cooperative governance. The...

Court Disposition

Application dismissed with costs, including costs of two counsel. Costs for split zoning amendments awarded to applicants on an unopposed basis.

Orders

  • The application is dismissed with costs, including the costs of two counsel.
  • The first respondent is directed to pay the applicants' costs in respect of the split zoning amendments on an unopposed basis.