Subjecting a decision on municipal planning and building regulations to an appeal to a review board encroached on the exclusive competence of a municipality and was inconsistent with the Constitution, the Constitutional Court has found, notes TimesLIVE.

The court confirmed an order by the Gauteng High Court (Johannesburg) that Section 9 of the National Building Regulations and Building Standards Act of 1977 was invalid, to the extent that it empowered the National Building Regulations Review Board to exercise appellate powers over decisions of a municipality.

The Act prohibits the construction of buildings within a municipal area without prior approval by the relevant municipality of the building plans. The matter relates to a 2012 application by ATC South Africa Wireless Infrastructure to the City of Johannesburg to erect a cellular mast on its property in Northriding. Two adjacent landowners objected but the City approved the plans and the mast was erected.

The two landowners, relying on the Act, lodged an appeal to the review board in February 2013. The City raised preliminary points, one of which was that the review board had no jurisdiction over the matter. The board dismissed the City's preliminary points and the City then lodged a High Court application to challenge the constitutional validity of Section 9, saying it had authorised the board to seize a municipal function.

The High Court agreed with the City and declared that Section 9 was constitutionally invalid.

City of Johannesburg Metropolitan Municipality v Chairman of the National Building Review Board

In a unanimous judgment, Justice Chris Jafta said the three spheres of government enjoyed a degree of autonomy to exercise powers and perform functions within a defined space, according to the same TimesLIVE article. 'While the national and provincial spheres enjoy legislative authority over matters entrusted to the local sphere‚ the constitution does not empower these spheres to exercise the executive authority of municipalities.' He said the role played by the national sphere in municipal affairs was restricted to regulating the exercise of power by municipalities. Jafta said there was no constitutional provision that allowed a member of Cabinet to intervene in the exercise of constitutional powers by municipalities.

Full TimesLIVE report