An email sent to a City of Cape Town official on Monday, December 8, 2025, at approximately 7:45 AM, has become part of an affidavit concerning the Municipal Planning Tribunal (MPT). The communication was directed to Jill Fabing, the deputy information officer for the City of Cape Town. This specific email, sent at around 7:45 AM on December 8, 2025, originated from Jaco van der Westhuizen. Van der Westhuizen serves as the manager of development policies, processes and legislation within the development management department of the City of Cape Town’s spatial planning and environment directorate.
Jaco van der Westhuizen, identified as the administrator and record-keeper of the MPT, is directly linked to the email. Fabing subsequently appended Van der Westhuizen’s email to an affidavit on December 11, 2025. This action formally incorporated the communication into official legal documentation, noting its relevance to the ongoing scrutiny of the MPT. Further communication occurred when a ratepayer directly emailed Van der Westhuizen on March 29, 2026, indicating continued public engagement and concern regarding the tribunal's operations and decisions. The nature of these direct communications from ratepayers often revolves around specific planning applications or broader transparency issues.
Information Access Denied
A senior member of the Constantia Ratepayers and Residents Association subsequently issued a formal request under the Promotion of Access to Information Act (PAIA). This request sought specific information regarding the Municipal Planning Tribunal (MPT), aiming to shed light on its composition and operational procedures. The PAIA request specifically sought the names, professional qualifications, affiliations, and appointment dates of MPT members, alongside their attendance records for both 2024 and 2025. This full request showed the ratepayers' desire for greater transparency regarding the individuals making key land use decisions.
Jill Fabing, the deputy information officer for the City of Cape Town, partially granted the PAIA request. The granted information included the names of MPT members, their appointment dates, and portions of their attendance records. This partial disclosure provided some insight into the tribunal's personnel and their participation in proceedings. However, Fabing stated that the City of Cape Town does not possess records detailing the professional qualifications and affiliations of MPT members. This indicates a significant gap in the official documentation maintained by the City regarding the MPT’s composition, raising questions about the criteria for member selection and the verification of their expertise. The absence of such records has fueled concerns among ratepayers about the professional backgrounds of those adjudicating complex development applications.
Separately, a senior counsel opinion that has not been made public to ratepayers was utilized by the MPT in April 2026. This opinion served as a justification for the MPT's stance on subdivision applications. Specifically, it was applied to properties located on Augusta’s Way and Monterey Drive, influencing decisions related to their development. The lack of public access to this legal opinion has been a point of contention for affected ratepayers, who argue that decisions impacting their properties should be based on publicly available legal interpretations, allowing for proper scrutiny and understanding of the MPT's rationale. This situation notes a broader challenge in balancing legal privilege with the public's right to information regarding municipal planning decisions.
Tribunal Composition and Process
Jaco van der Westhuizen, identified as the manager of development policies, processes and legislation within the development management department of the City of Cape Town’s spatial planning and environment directorate, is linked to the email central to the affidavit. His role places him at the intersection of policy formulation and the practical application of planning regulations. The Municipal Planning Tribunal (MPT) is responsible for adjudicating all Category 1 land use applications, which encompass rezonings, subdivisions, permanent departures, and the removal of restrictive title deed conditions. These applications are often complex and can have significant impacts on property values, community character, and environmental considerations. The MPT's decisions are therefore critical to the urban development landscape of Cape Town.
Van der Westhuizen stated that "the MPT consists of 23 members, [eight] external experienced planning professionals and the remainder internal senior… planning officials." This composition aims to combine external expertise with internal municipal knowledge. He elaborated that "most of them have served more than 10 years," suggesting a degree of continuity and accumulated experience within the tribunal. Van der Westhuizen further asserted, "If you believe that [any of them] do not qualify to serve as a member of the MPT, kindly provide me with the necessary evidence and I will investigate." This statement places the onus on the public to demonstrate any perceived lack of qualification, rather than the City proactively disclosing full qualification details. He also detailed that "It is mandatory that each member that serves on a regional MPT panel must sign a form that they have no interest or conflict in any matter that serves before the MPT on that day of the meeting. If a member is conflicted he/she must then recuse himself/herself from the report." This protocol is designed to ensure impartiality in decision-making, a fundamental requirement for any quasi-judicial body.
The City of Cape Town did not adopt its Municipal Planning By-Law under the Spatial Planning and Land Use Management Act (Spluma). According to Fiona Ogle, a legal advisor to the City of Cape Town, as recorded in minutes of submission, "The City of Cape Town did not adopt its Municipal Planning By-Law in terms of Spluma, it did so in terms of its original powers conferred by the Constitution." This distinction is significant, as it positions the City's planning framework outside of the national Spluma legislation, drawing instead on its constitutional mandate. The City of Cape Town has also characterized the precepts of Spluma as a "constitutional overreach," indicating a fundamental disagreement with the national legislation's applicability to its planning jurisdiction. This stance has implications for how development applications are assessed and the legal framework under which the MPT operates.
Objector's Concerns and Legal Battles
Tracey Davies, executive director of Just Share, represented the Constantia Ratepayers and Residents Association as a front-line objector. Davies stated that the City of Cape Town was no longer interested in applying the law as outlined in its development management scheme (DMS) for the Constantia overlay zone. Her concerns highlight a perceived shift in the City's approach to development, moving away from established local planning guidelines. She referred to a 2011 Supreme Court of Appeal ruling concerning restrictive title deed conditions, which she described as a precedent-setting case. This legal precedent, she argues, should guide the MPT's decisions, particularly regarding the removal or modification of such conditions. Davies noted her experience as an objector in approximately a dozen hearings, noting that she had not once prevailed against the MPT. This consistent outcome raises questions about the effectiveness of public objections within the MPT process and whether ratepayer concerns are adequately addressed.
Davies criticized current development patterns in Constantia, stating, "Once again, we have a corporate purchaser. This is not a Constantia landowner who wants to add a house for his children or for his mother or any of the things that the DMS envisaged. This is a registered property company buying a large erf in Constantia with the express purpose of carving it up for high-end development, which will clearly not contribute to the City’s purported aims of addressing spatial injustice, socio-economic divisions or the housing crisis." Her critique points to a disconnect between the City's stated objectives of promoting spatial justice and the actual outcomes of development approvals. She added that new cluster developments in Constantia, with units selling for upwards of R10-million, could hardly be considered a solution to spatial injustice or the broader housing crisis. This observation shows the argument that current development trends in affluent areas may exacerbate, rather than alleviate, existing socio-economic disparities.
On April 14, 2026, Daily Maverick attended MPT hearings for subdivision applications in Constantia, observing the proceedings directly. This direct observation by media notes the public interest and scrutiny surrounding these tribunal sessions. Davies also raised concerns about legal rights, asserting, "I reiterate again, this is a serious infringement and a breach of our rights under PAJA." Her reference to the Promotion of Administrative Justice Act (PAJA) suggests that the MPT's processes or decisions may be violating the established principles of fair administrative action, including the right to procedurally fair administrative action and the right to written reasons. This legal challenge shows the gravity of the ratepayers' concerns and their determination to ensure accountability.
Legal Opinions and Precedents
A Promotion of Access to Information Act (PAIA) request sought the names, professional qualifications, affiliations, and appointment dates of Municipal Planning Tribunal (MPT) members, alongside their attendance records for 2024 and 2025. This full request aimed to provide a transparent overview of the MPT's composition and activity. In February 2025, Fiona Ogle, a legal advisor to the City of Cape Town, utilized an unnamed senior counsel's opinion in a submission presented before the MPT. The use of an external legal opinion by a City legal advisor in a submission to the MPT indicates the complex legal interpretations often involved in planning decisions. Danfred Pheiffer, an administrative officer for the MPT, subsequently responded to Tracey Davies' request for this legal opinion, but the opinion itself was not made public to ratepayers. The same senior counsel opinion, unseen by ratepayers, was used by the MPT in April 2026 to justify its position on subdivision applications for properties on Augusta’s Way and Monterey Drive. The repeated reliance on this undisclosed legal opinion by the MPT, particularly in decisions affecting specific properties, has become a central point of contention for ratepayers and objectors, who argue for the necessity of transparency in legal justifications for planning decisions.
