Shelton v Eastern Cape Development Tribunal

The Constitutional Court declared Chapters V and VI of the Development Facilitation Act 67 of 1995 (DFA) constitutionally invalid on 18 June 2010, with the declaration suspended for 24 months to allow Parliament to enact remedial legislation. No such legislation was enacted during the suspension period. On 15 June 2012, one working day before the expiry of the suspension period on 17 June 2012, PA River Development Company (Pty) Ltd lodged a land development application with the Eastern Cape Development Tribunal. The two appellants, Shelton and Campbell, objected to the application. The tribunal granted the application on 28 January 2013, some seven months after the suspension period had expired. The appellants sought a declaration that the tribunal had no jurisdiction to decide the application after 17 June 2012. The High Court dismissed the review application, finding the tribunal had power to decide despite the suspension period expiring.

• Whether a development tribunal retained the power to determine an application lodged during the suspension period but decided after the expiry of that period when the order of constitutional invalidity became operative
• The proper interpretation of the Constitutional Court's suspension order and its intended scope
• Whether the expiry of the suspension period without enactment of remedial legislation resulted in the tribunal losing jurisdiction to decide pending applications
• The effect of retrospective invalidity on pending applications not determined during the suspension period
• Whether section 60(2) of the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) validated the tribunal's decision

The appeal was upheld. The order of the High Court was set aside and replaced with: (a) a declaration that the Eastern Cape Development Tribunal had no jurisdiction under section 33 of the DFA to decide PA River's application after expiry of the Constitutional Court's suspension order; (b) the tribunal's decision granting the land development on the specified properties was set aside; (c) costs were to be borne by the First Respondent (the tribunal).

Once the period of suspension of a declaration of constitutional invalidity expires without enactment of remedial legislation, bodies deriving authority from the invalidated provisions lose jurisdiction to determine applications, even if those applications were lodged during the suspension period. The Constitutional Court's suspension order must be interpreted according to its express terms and the reasons given, and courts will not imply extensions of jurisdiction beyond the suspension period that would contradict the default constitutional principle that invalid legislation is retrospectively invalid from promulgation. A tribunal cannot exercise powers declared unconstitutional after the expiry of a suspension period, and neither policy statements nor transitional provisions in subsequent legislation can validate decisions made without lawful authority under an invalid Act.

The court observed that the lodging of the application opportunistically one day before expiration of the suspension period could not preserve the tribunal's powers to decide the matter after the expiry date, and noted the tribunal should not have accepted an application one day before expiry when it could not be decided within that day. The court also commented that if an unusual order varying the default position of retrospective invalidity were intended, one would expect the Constitutional Court to have expressed it in clear language setting out the justifying circumstances. The court noted that the transitional provisions of SPLUMA (section 60(2)) could only apply if the tribunal had acted lawfully under the DFA, which it had not.

This case is significant in South African constitutional law for clarifying the effect of suspended declarations of invalidity when the suspension period expires without enactment of remedial legislation. It establishes that tribunals or bodies deriving authority from constitutionally invalid provisions lose jurisdiction once the suspension period expires, even regarding applications lodged during the suspension period. The judgment reinforces the principle that courts cannot revive invalid Acts beyond the suspension period and that the default position of retrospective invalidity applies unless explicitly varied by court order. It also confirms that policy statements and transitional provisions in subsequent legislation cannot validate decisions made without lawful authority. The case emphasizes strict interpretation of suspension orders and that courts will not imply extensions of powers beyond what is expressly stated, particularly where such implications would contradict constitutional principles.