Abstract:

Constitutional challenges regarding the protection of biodiversity at local government level:  An overview of the eThekwini Municipality’s “D’MOSS” town planning scheme amendments

Norman L Brauteseth, Robert M Cheves

Norman Brauteseth & Associates, P.O. Box 1345, Westville, 3630

Section 24 of the 1996 Constitution of the Republic of South Africa enshrines the environmental right, providing inter alia for protection of the environment and the promotion of conservation through reasonable legislative measures. Part A to Schedule 4 to the Constitution however provides that the “environment” is a matter of concurrent national and provincial legislative competence. The local sphere of government is therefore precluded from legislating on the environment unless in terms of an assignment under section 156 of the Constitution.
In the matter of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (6) SA 182 (CC) the Court made it clear that the DFA Tribunal which functioned in the Provincial sphere of government had no authority to make decisions regarding matters which fell within “municipal planning”, as they fell exclusively within the local sphere of government. It thus affirmed the principle that while municipalities may have exclusive jurisdiction over “municipal planning”, they lack any jurisdiction to legislate regarding the environment. This has profound implications for municipalities who are bound to apply the principle of “sustainable development” in all decision making, and are often best placed to prevent ongoing destruction of biodiversity and goods and services.
The eThekwini Municipality has chosen to include its D’MOSS “policy” in each of its town planning schemes.   Is such a control incidental to the “municipal planning” function or an impermissible venture outside its area of constitutional competence? In this paper we propose to explore the extent of the constitutional separation of powers between the three spheres of government in the arena of environmental management.

Presentation Topic

Constitutional challenges regarding the protection of biodiversity at local government level:  An overview of the eThekwini Municipality’s “D’MOSS” town planning scheme amendments

 

 

Contact Mr Brauteseth:

Norman Brauteseth & Associates, P.O. Box 1345, Westville, 3630

 

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