Shelfplett 47 (Pty) Ltd v MEC for Environmental Affairs & Development Planning and Another (16416/10) [2012] ZAWCHC 16; 2012 (3) SA 441 (WCC) (5 March 2012)

Shelfplett 47 (Pty) Ltd v MEC for Environmental Affairs & Development Planning and Another (16416/10) [2012] ZAWCHC 16; 2012 (3) SA 441 (WCC) (5 March 2012)

The court found that the Knysna-Wilderness-Plettenberg Bay Regional Structure Plan (KWP RSP) was fundamentally informed by apartheid-era racial segregation and spatial planning, and its substantive content remains constitutionally offensive despite subsequent amendments and disregard of race-based elements in practice. The RSP constitutes 'law' for purposes of section 172(1)(a) of the Constitution and is inconsistent with the founding values of human dignity and non-racialism, as well as the rights to equality and dignity. The court declined to suspend the order of invalidity, finding no sufficient evidence that a regulatory lacuna would arise or that suspension was just and equitable. On...

Citation
[2012] ZAWCHC 16
Parties
Applicant: Shelfplett 47 (Pty) Ltd; Respondent: MEC for Environmental Affairs & Development Planning; Respondent: Bitou Municipality
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
5 March 2012
Case Number
16416/10
Procedural Posture
Review Application / Judgment on Merits
Outcome
The application succeeds. The Knysna-Wilderness-Plettenberg Bay Guide Plan, deemed to be a regional structure plan, is declared inconsistent with the Constitution and invalid. Costs awarded as specified.
Judges
Rogers AJ
Legal Topics
Invalidity of Subordinate Legislation, Racial Discrimination in Planning, Municipal Planning Competence, Review of Administrative Action, Suspension of Invalidity, Urban Edge Policy
Administrative Law Constitutional Law Land and Property Invalidity of Subordinate Legislation Racial Discrimination in Planning Municipal Planning Competence Review of Administrative Action Suspension of Invalidity +1 more

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Parties

Shelfplett 47 (Pty) Ltd

Applicant

MEC for Environmental Affairs & Development Planning

Respondent

Bitou Municipality

Respondent

Procedural Posture

Review Application / Judgment on Merits

Legal Issues

  1. 1 Whether the Knysna-Wilderness-Plettenberg Bay Regional Structure Plan (KWP RSP) is invalid for inconsistency with the Constitution due to its apartheid-rooted spatial planning.
  2. 2 Whether the MEC's refusal to amend the KWP RSP was reviewable on grounds of failure to consider relevant documents and impermissible intrusion into municipal planning functions.
  3. 3 Whether suspension of the order of invalidity is just and equitable.

Ratio Decidendi

The court found that the Knysna-Wilderness-Plettenberg Bay Regional Structure Plan (KWP RSP) was fundamentally informed by apartheid-era racial segregation and spatial planning, and its substantive content remains constitutionally offensive despite subsequent amendments and disregard of race-based elements in practice. The RSP constitutes 'law' for purposes of section 172(1)(a) of the Constitution and is inconsistent with the founding values of human dignity and non-racialism, as well as the rights to equality and dignity. The court declined to suspend the order of invalidity, finding no sufficient evidence that a regulatory lacuna would arise or that suspension was just and equitable. On...

Court Disposition

The application succeeds. The Knysna-Wilderness-Plettenberg Bay Guide Plan, deemed to be a regional structure plan, is declared inconsistent with the Constitution and invalid. Costs awarded as specified.

Orders

  • The Knysna-Wilderness-Plettenberg Bay Guide Plan, deemed to be a regional structure plan under the Physical Planning Act 125 of 1991, is declared inconsistent with the Constitution and invalid.
  • The applicant is directed to pay the first respondent's costs associated with the first respondent's application for striking-out dated 7 November 2011, including those attendant on the employment of two counsel.