Shelton v Eastern Cape Development Tribunal and Others

Chapters V and VI of the Development Facilitation Act 67 of 1995 (DFA), which empowered provincial development tribunals to decide land development applications, were declared constitutionally invalid by the Constitutional Court in June 2010, with the declaration suspended for 24 months to allow Parliament to enact remedial legislation. No such legislation was enacted within the suspension period, which expired on 17 June 2012. The second respondent lodged a land development application with the Eastern Cape Development Tribunal on 15 June 2012, one working day before expiry of the suspension. The appellants objected to the application. Despite the suspension period having expired, the tribunal granted the application in January 2013. The appellants sought judicial review, contending that the tribunal lacked jurisdiction after 17 June 2012. The High Court dismissed the review, finding the tribunal retained jurisdiction. The appellants appealed to the Supreme Court of Appeal.

The appeal was upheld. The High Court’s order was set aside and replaced with an order declaring that the Eastern Cape Development Tribunal had no jurisdiction under s 33 of the DFA to decide the application after expiry of the suspension period, setting aside the tribunal’s approval of the land development, and ordering the first respondent to pay costs.

The case clarifies the legal consequences of the expiry of a suspension of constitutional invalidity where Parliament fails to enact remedial legislation. It confirms that administrative bodies cannot continue exercising powers derived from constitutionally invalid statutes after the suspension period, unless expressly authorised by a court order. The judgment is significant for land use planning and constitutional remedial jurisprudence, reinforcing limits on implied extensions of invalid statutory powers.