29 January 2016 – This morning, Justice Johann van der Westhuizen, in his last act as a member of the Constitutional Court of South Africa, handed down judgment in Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal Tribunal and Others  ZACC 2 (full judgment, media summary). The case is about whether it is constitutional for a province to decide an appeal against a municipality’s refusal to approve land development plans.
Tronox, a massive producer of titanium ore, wanted to expand its mining operations into new areas in KwaZulu-Natal. It applied to the local municipality for approval, which was granted. But a local conservancy and fish farm opposed the new development and took the decision on appeal to the province, relying on the appeal power granted in section 45 of the KZN Planning and Development Act. Before the appeal was heard, the disgruntled Tronox challenged that empowering section on the basis that it allows provinces to intervene impermissibly in functions the Constitution specifically reserves for municipalities. Tronox’s hope was, of course, to keep intact, and safe from provincial scrutiny, the approval that the municipality had granted it.
Van der Westhuizen J’s unanimous judgment upholds Tronox’s challenge to section 45. This was to be expected. The Constitutional Court has made crystal clear, in a 2014 judgment, that the sorts of powers granted by section 45 are invalid because they allow provinces a role in municipal affairs that the Constitution discountenances. Municipalities, not provinces, get to decide what happens on land within their jurisdiction. Van der Westhuizen J’s judgment routinely applies these principles to find that section 45 is unconstitutional. Unusually, though, his order allows the appeal against Tronox’s approval to go ahead (albeit that the province must now be mindful of the muncipality’s land-use policies), even though Tronox won on the main issue — suggesting, perhaps, that the Court had some sympathy with the conservancy’s environmental concerns.
Sadly absent from the judgment are Van der Westhuizen J’s characteristic Monty Python references and literary flourishes. His irreverent good humour will be missed, along with his legal acumen, constitutional expertise, and his scholarly and clear-eyed judgments on important issues.