Devolution by court injunction: The case of land use planning and management in South Africa

Abstract

In South Africa, the legal and policy framework for land use planning and control underwent a significant transformation in which power over land use planning and control was shifted from provinces to local governments. This shift has taken over fifteen years to materialize as national and provincial governments resisted the devolution of authority. It was ultimately made inevitable by five Constitutional Court judgments in which local government asserted its authority. This article discusses the importance of the reform of planning laws in Africa and outlines key tenets of the recent reform. It discusses the devolution of planning powers to local government and the role played by the judiciary in unlocking the impasse. The central question is whether the court-led transformation of the planning sector was the appropriate mechanism for ushering in change. It is argued that the consequences of devolution for the planning sector in South Africa have been very significant and not all unreservedly positive. It is furthermore argued that the developments in South Africa are relevant for other countries on the continent, particularly as more and more countries constitutionally entrench devolution or decentralization programmes.