But based on arguments presented by amicus curiae (someone who assists the court) like the SA Property Owners Association (SAPOA), the Constitutional Court also ordered a 24-month transition period, during which the invalidity will be suspended and Parliament will prepare new legislation.

“SAPOA is pleased with the outcome of the case,” says SAPOA CEO Neil Gopal.

 “The judgement gives direction for a more orderly planning regime in SA, but also acknowledges the need for a transitional period to ensure that the development community is not compromised.”

The original case saw the City of Johannesburg challenging the Gauteng Development Tribunal as to who held ultimate authority over land management decisions. The Supreme Court of Appeal found for the City in late 2009, and the matter went before the Constitutional Court in February of this year.

“SAPOA, which represents by far the majority of urban land developers in South Africa, has been monitoring the case carefully,” says SAPOA legal services manager Tsakane Shilubane.

“When it came before Constitutional Court, SAPOA realised the urgency of championing the industry’s cause and immediately applied to be amicus curiae, along with the SA Council for Consulting Professional Planners (SACCPP).”

SAPOA argued before the Court that municipal capacity constraints and land development application delays caused by the invalidity order would hamstring both development activity and economic growth in SA.

“Indeed, SAPOA pointed out, that large areas of the country would be left with no planning framework or tools, for an undetermined period of time,” says Shilubane.

The Court agreed, with Justice Chris Jafta acknowledging in his judgement that if the order of invalidity takes immediate effect, land development will come to a complete halt in most areas.

“This undoubtedly will not be in the interest of the administration of land use and good governance. Most significantly, prospective land developers in the affected areas will be prejudiced,” he writes.

In addition to the 24 month transition period, the Court ordered several other measures in its judgement, designed to create certainty for developers during the transition period.

Provincial development tribunals in Johannesburg and Durban are mandated to hear and complete all existing applications, although no new applications will be accepted.

Other provincial tribunals will continue with existing and new applications during the transition period.

“The judgement also directs that development tribunals must consider all municipal development plans, bylaws and Acts of Parliament in reaching their decisions,” says Shilubane.

As Gopal notes, the case examined the question of where control of municipal land use lies.

“For this reason, it’s a landmark finding that will have implications for land development throughout SA,” says Gopal.