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Dykema v Malebane and Another (CCT332/18) [2019] ZACC 33

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Dykema v Malebane and Another (CCT332/18) [2019] ZACC 33

11th September 2019

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[1] The best laid plans of mice and men often go awry.[1]  So, sometimes, do those of courts.  The unintended consequences of this Court’s judgment in Gauteng Development Tribunal need to be unravelled here.[2]

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[2] The case concerns the applicability of, and interaction between, successive legislative regimes governing municipal planning: the now repealed Development Facilitation Act (DFA)[3] and the Spatial Planning and Land Use Management Act (SPLUMA).[4]  In particular, the dispute turns on the legal status of decisions and applications during the transition period between these two legislative frameworks when there was a three-year gap in the regulation of municipal planning.

[3] This gap was the direct result of Parliament’s failure to enact remedial legislation to govern municipal planning before the expiry of this Court’s suspension of a declaration of invalidity in Gauteng Development Tribunal.  Indirectly, the risk of this legislative lacuna arose because this Court did not anticipate this potential failure by Parliament.  It thus granted an order that did not explicitly regulate the legal consequences of that eventuality.  Central to the current dispute is the proper interpretation of this Court’s order in that case in light of the reasoning that was provided to justify the order.

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[4] This case has unfolded against a changing legislative landscape.  It is necessary to have regard to that backdrop in order to understand the legal uncertainty that prevailed at various points in the current litigation.

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