R A Le Sueur and R A Le Sueur N.O. & Others v Ethekwini Municipality and Others

The applicants, as property owners and trustees within KwaZulu-Natal, challenged two municipal resolutions by Ethekwini Municipality: (1) a resolution to introduce split zonings (28 October 2010), and (2) a resolution to introduce D-MOSS (Durban Municipality Open Space Systems) amendments (9 December 2010). The first respondent withdrew the split zoning amendments during proceedings, leaving only the D-MOSS amendments in dispute. The applicants argued the D-MOSS amendments were invalid because: (a) they were adopted under the repealed Town Planning Ordinance No. 27 of 1947 (TPO) rather than the KwaZulu-Natal Planning and Development Act No. 6 of 2008 (PDA) which replaced it; and (b) municipalities lacked constitutional authority to legislate on environmental matters, which fell under national and provincial competence in Schedule 4 Part A of the Constitution.

• Whether the D-MOSS amendments were validly adopted despite being initiated under the repealed Town Planning Ordinance
• Whether the transitional provisions in Schedule 4 Item 12 of the Planning and Development Act saved the amendments
• What constitutes a 'resolution to adopt provisions' for purposes of the transitional saving provision
• Whether municipalities have constitutional and legislative authority to legislate on environmental matters at the local level
• Whether 'municipal planning' as a constitutional functional area encompasses environmental protection and conservation
• Whether municipal environmental regulation conflicts with national and provincial competence over the environment

The application was dismissed with costs, including costs of two counsel. The first respondent was ordered to pay the applicants' costs on an unopposed basis in respect of the split zoning amendments that had been withdrawn.

The binding legal principles established are: (1) A 'resolution to adopt provisions' in transitional legislation refers to the initial resolution by a municipality to initiate the amendment process (expressing its desire or intention), which must precede publication of notices, not the final resolution adopting the amendment at the end of the process. (2) Municipalities have constitutional and legislative competence to regulate environmental matters at the local level as part of their 'municipal planning' function under Schedule 4 Part B of the Constitution. (3) The constitutional allocation of functional areas to different spheres of government does not create hermetically sealed compartments; overlapping competencies are permissible and require cooperative governance. (4) 'Municipal planning' as understood at the adoption of the Constitution encompassed environmental protection and conservation, including regulation of land use to protect the natural environment. (5) Section 24 of the Constitution (environmental rights) applies to all spheres of government, including municipalities. (6) National environmental legislation (NEMA and related acts) expressly recognizes the role and competence of municipalities in environmental management at the local level, particularly through integrated development plans and spatial development frameworks.

The court made several non-binding observations: (1) The court noted that if the split zoning amendments were to be re-introduced, any constitutional challenges could be addressed at that time in the appropriate forum. (2) The court declined to address arguments raised for the first time in reply regarding 'expropriation by stealth' and lack of compensation, noting these were impermissibly new matters and that no actual expropriation had occurred. (3) The court observed that the Minister of Environmental Affairs and the relevant MECs did not oppose the application or challenge the municipality's competence, which would have been surprising if the municipality were truly transgressing into their exclusive domain. (4) The court commented that the applicants' failure to challenge the factual affidavits of the municipality's expert witnesses (Roberts and Forbes) significantly weakened their case, citing New Clicks. (5) The court noted that allegations of bias against expert witnesses would go to weight, not admissibility, and where factual evidence is unchallenged, weight is not diminished. (6) The court expressed agreement that it is impossible as a matter of accepted town planning practice to divorce environmental and conservation concerns from town planning principles.

This case is significant in South African law because it clarifies: (1) the interpretation of transitional provisions when planning legislation changes, specifically that the initial resolution to initiate amendments (not the final adoption) triggers the saving provision; (2) the constitutional scope of municipal planning competence, confirming it includes environmental protection and conservation at the local level; (3) that the constitutional allocation of 'environment' to Schedule 4 Part A (concurrent national and provincial competence) does not exclude municipalities from regulating environmental matters within their municipal planning function; (4) the principle of cooperative governance applies to environmental matters, with overlapping competencies across the three spheres being permissible and indeed inevitable; (5) the historical and contemporary understanding that municipal planning cannot be divorced from environmental concerns; and (6) that national environmental legislation (NEMA, Biodiversity Act) recognizes and provides for municipal involvement in environmental management. The judgment reinforces the integrated, cooperative nature of South Africa's three-sphere governmental system and the importance of local government in day-to-day environmental protection.