RUBBER-STAMPED: Zero deviations — the record of Cape Town’s planning tribunal in 1,328 rulings

The contents of ‘Addendum B’“It should not be lost on the [Municipal Planning Tribunal] that these are predominantly vulnerable and low-income communities who can barely afford to pay the municipal rates for electricity and water as it stands,” the objector noted.“This additional stress on the grid will in no way, shape or form benefit them in these circumstances.”Out of the totality of information contained in the 1,328 cases that Cape Town’s Municipal Planning Tribunal (MPT) had presided over since 1 July 2025, it was these two sentences – buried deep in the minutes of the northeastern panel meeting of 14 July 2026 – that offered the most instructive guidance to Daily Maverick.The impact on the surrounding communities is directly relevant to the IDT’s two considerations above on power and land usage. KAI is not only situated next to the Cape Town International Airport and other warehouses. Across the highway are the Barcelona and KTC suburbs of the Gugulethu township (where many of our client’s members live), there is a St Joseph’s Children’s Hospital on the same corner and many other surrounding residential areas. The Applicant claims that these communities will not be affected *however what they fail to acknowledge is that as soon as the data centre is operational these communities will be competingfor electricity and consequently water supply with the data centre. None of these communities have the kind of substation or cooling system technologies that the Applicant describes in their application, instead they have free standing taps and pre-paid electrical boxes. The Applicant, in fact describes that the data centre will be drawing much of its electrical supply from the neighbouring Eskom substation in Phillip therefore looping in another community who will inevitably be competing with the data centres for electricity and water. It should not be lost on the MPT that these are predominantly vulnerable and low-income communities who can barely afford to pay the municipal rates for electricity and water as it stands. This additional stress on the grid will in no way shape or form benefit them in these circumstances.Furthermore, data centres as digital infrastructure, bring in ID’s third consideration around cloud computing security, which is of particular relevance to the general public. The size of the data centre indicates that it will be particularly vulnerable to security breaches leaving the general public in danger of suffering from the inevitable theft of the personal data. This is significant within the new digital reality and must be considered with the utmost care. MPT is in no position to grant this application. The Applicant has negligently or purposefully mischaracterised this application and has failed to comply with the essential provisions of the By-Law. They allege that it is a mere rezoning application and an amendment to the “basket of rights”, which will have no consequences on anyone outside the envisioned erf. We, for the above reasons...Our analysis, which aimed to discern the overriding patterns across all decisions of the Cape Town MPT over the 13 months to 31 July 2026, needed an anchor in the relevant legislation. If we were going to find anything meaningful in the combined rulings of the four district panels (northeastern, northwestern, southeastern and southwestern), the unambiguous application of the national statutes that governed all of South Africa’s MPTs was essential.And so our requisite starting point was finally located in the aforementioned minutes in “Addendum B,” a document compiled by the Legal Resources Centre (LRC), which had appeared before the Cape Town MPT on behalf of a pair of distinct yet ideologically aligned clients.The LRC’s primary client in the matter was the Housing Assembly, a local non-profit made up of residents of “informal settlements, backyard dwellings, temporary relocation areas, rental properties and inadequately constructed RDP housing” across the Western Cape. Its secondary client was Foxglove, a non-profit organisation registered in the United Kingdom, which, among its various global missions, was “investigating the environmental, social and governance implications of hyperscale data centre development in South Africa.”The case, as most observers of Cape Town’s property and land-use space would have known, concerned a subdivision and consolidation application for a parcel of land adjacent to the airport, to pave the way for the establishment of two giant data centres.In brief, the developer wanted to rearrange and combine a number of plots, essentially redrawing and “rezoning” the boundaries, which had always been the kind of thing that the MPT was set up to approve. As per the required procedure, the developer had submitted a proposal to the City’s planning department, which had then opened the application to public comment while compiling its own recommendations for the MPT, which would make the final determination.But in this particular matter, unlike the vast majority of others before the tribunal, the public pushback had been mounted and supported by a team of technical and legal experts. Kimal Harvey, the LRC’s attorney, had argued in his oral submission – which, in written form, made up the contents of “Addendum B” – that the dimensions of the proposed data centres implied a draw-down from the public grid of 174 megawatts of electricity. The LRC’s research, conducted with the assistance of Foxglove, further demonstrated that this equated to roughly 4.4 billion litres of water per year, based on traditional cooling methods.For Daily Maverick’s purposes, the hinge point in these figures was less their sheer scale than the fact that it was the objector, not the applicant, that had brought them to the attention of the MPT. The developer, in other words, had neglected to inform the City of Cape Town about the magnitude of the strain on its resources; these specific details had been left up to “interested and affected parties” to figure out. Harvey alleged that by omitting such crucial information from its submission and claiming instead that the MPT was deciding on a simple “rezoning” application, the applicant had failed to engage with the socioeconomic consequences of the data centres for the residents of the surrounding communities, particularly the Barcelona and KTC suburbs of Gugulethu township – where, he added, many members of the Housing Assembly lived.Beyond that, by asserting “without any evidential basis” that the development would “have no impact on the biophysical environment”, the applicant, in Harvey’s estimation, had completely neglected its legislative duty to provide an assessment of the environmental fallout.It was right here, in the legal crux of the objection, that Daily Maverick found its statutory benchmark. For us, the ultimate significance of Harvey’s oral submission was his appeal to the precepts of the Spatial Planning and Land Use Management Act (Spluma), the piece of national legislation, promulgated in 2013, under which every MPT throughout South Africa had been set up.As far as the LRC was concerned, the “development principles” embodied in Spluma were crystal clear.“The principle of spatial sustainability,” Harvey stated, with reference to chapter 2 of the Act, “requires consideration of whether the development makes sustainable use of scarce resources, promotes long-term environmental integrity, and supports efficient and equitable patterns of land use.”Indeed, by Daily Maverick’s reading, this was exactly what it stated in chapter 2 of Spluma, with injunctions to consider “spatial justice” and “environmental impacts” laid out plainly in section 7. In chapter 6 of the Act, from sections 35-39, provision had been made for MPTs to institute these principles at the municipal level.Crucially, for the tribunals to perform this task without fear or favour, the legislators had protected them from vested interests – a point that the LRC would no doubt have considered paramount.In section 36(2) of Spluma, which prohibits municipal councillors from serving, and again in section 37(1), which establishes strict term limits for members, the doctrine of MPT independence from political or commercial interference had been laid down.Finally, to quell any doubt about how it was all supposed to fit together, the legislators had implanted section 42 in chapter 6. In “deciding an application”, this section states, an MPT must be “guided by the development principles” enshrined in chapter 2, and must give weight to “the public interest,” “the constitutional transformation imperatives” of the state and “the facts and circumstances relevant to the application”.The question of rubber stamps On page 9 of the meeting minutes for 14 July 2026, the northeastern panel recorded its ruling on the giant data centres. “The MPT approved the application for the reasons set out in the planner’s report,” the panel stated. The vote count was four-to-one, with the dissenting MPT member unnamed in the minutes but identified in general news items — his name was Wally Johnstone, and what he said about the five-member MPT panel that day was unequivocal: “I’m obliged to conclude most of us don’t know what is required in terms of water and electricity demand in an application we’re asked to approve.”The remaining members, for their part, were satisfied that the yet-to-be-delivered site development plan (SDP) would compensate for the evidentiary deficit. As the meeting minutes explained: “The submission of the SDP shall include sufficient information to satisfy the authorised official that the data centre design incorporates measures to minimise potable water consumption with potable water restricted where feasible for domestic and fire protection purposes only.”In other words, contrary to its mandate as defined by section 7 and section 42 of Spluma, the northeastern panel of the MPT had deferred its obligation to consider the socioeconomic and environmental impacts of the data centres, opting instead to follow the City of Cape Town’s recommendation to approve the project.As it turned out, this decision of the MPT to abide by the wishes of the municipality was far from an isolated incident. On the contrary, as Daily Maverick’s analysis showed, not a single ruling by the Cape Town MPT since 1 July 2025 had deviated materially from the planner’s report.Put another way, of the 1,328 individual cases that comprised our dataset, we did not identify a single case where the MPT contradicted the plans of the development management department – which, to note its function in the municipal hierarchy, is the regulatory office for land use, zoning and building approvals that reports upwards into the spatial planning and environment directorate and then upwards again, through Deputy Mayor Eddie Andrews, into the DA-run mayoral committee. For us, this raised sharp questions about the manner in which the MPT was carrying out its mandate as an independent safeguard. Cape Town’s deputy mayor Eddie Andrews. (Photo: Kristin Engel) In terms of the methodology that brought us to our conclusions, Daily Maverick’s first step was to collate all meeting minutes, across all four panels, for the period under review. With due credit to the bureaucratic thoroughness of the City of Cape Town, the minutes were easily accessible on the municipal website, searchable by date under the subheading “Council and Committee Meetings”.The southeastern and southwestern panels, we discovered, did not meet in December 2025, with the northeastern and northwestern panels taking their own breaks in January 2026. At the time of this writing, minutes for the southwestern panel for July 2026 were unavailable.With the northwestern panel meeting twice in November 2025, and both the northeastern and northwestern panels meeting twice in May 2026, this equated to 50 meeting minutes for the period under review. The top-line data revealed that MPT decisions directly matched the City of Cape Town’s recommendation in 89.8% of cases overall (1,192 of 1,328). Broken down by category, administrative penalty determinations were direct matches in 96.2% of cases (929 of 966), while land use applications were direct matches in 73.3% of cases (263 of 359), with only three cases unclassifiable. The remaining cases across both categories were either deferred, withdrawn or ambiguous, with – to repeat – zero listed as explicit deviations from the planner’s report. Of the 11 right-of-reply questions we sent to the City of Cape Town, the first two focused on this particular set of results. Specifically, was Daily Maverick’s finding of “zero deviations” consistent with the City’s own understanding of the MPT’s record over the period? Also, did the City consider this level of direct alignment with staff recommendations to be consistent with the independent decision-making function of the MPT? On Friday 21 August, when the answers arrived, we were informed that they were to be attributed to Deputy Mayor Andrews in his role as mayoral committee member for spatial planning and environment.“The City employs approximately 60 technically trained, qualified and experienced professional planners to evaluate and assess each development and land use application that is submitted,” Andrews informed us. “Their assessments are guided by the Municipal Planning By-law, the Development Management Scheme which determines what each land parcel in the City’s metropolitan boundaries may be used for, and other relevant City policies such as the Municipal Spatial Development Framework, the eight District Spatial Development Frameworks, and local spatial development frameworks, and so forth.”Andrews emphasised, by underlining the text, that planners’ recommendations to the MPT “are based in law and policy”. He wanted us to know, “for this very reason, and despite independent scrutiny by the MPT decision-makers,” that “it would be logical for the majority of MPT decisions to largely correlate with case officer recommendations.”For Andrews, this logic was anchored in the fact that MPT members and City planning officers “must apply the very same legal and policy criteria”. Here, he underlined another sentence for emphasis: “If it were not the case, there would be great cause for concern.”He continued: “To insinuate the MPT system is dysfunctional or captured because of this correlation demonstrates a sheer misunderstanding of the decision-making processes and applicable criteria.”On this point, Daily Maverick could not help but notice that the reasoning of the deputy mayor was at risk of becoming circular. Put roughly, we asked the City whether the MPT was complying with its statutory duties, given the evidence. Andrews answered by stating that the law required the MPT to behave in a certain way, which explained the result. But, to us, that assumed the very matter in question – whether the MPT was in fact exercising its judgement independently and properly.By Daily Maverick’s reckoning, independent decision-makers applying the same legal and policy criteria as the City could reasonably reach different conclusions, particularly in the face of complexities that involved questions of judgement. To us, while a high degree of correlation may have been explicable, it could not simply be treated as proof that the system was working as it should. “Nevertheless,” Andrews stated, contrary to Daily Maverick’s analysis and without referring to any evidence, “there are occasional instances where, after deliberation, the MPT comes to a different conclusion for specific reasons.”Where by-laws beat the Bill of RightsOn 7 July 2026, shortly after publication of our initial three-part investigation into the hidden workings of Cape Town’s MPT (see references below), Daily Maverick ran a standalone piece on an objection brought before the southeastern panel by a senior state advocate with the National Prosecuting Authority.The state advocate, Thersia du Toit-Smit, was taking on Engen Holdings, the applicant, in her private capacity as the mother of two minor children with autism spectrum disorder – but it was her experience as a criminal attorney, as well as the documented support of 221 of her Durbanville neighbours, that truly made the case stand out.What Du Toit-Smit knew, first and foremost, was that section 39 of the Constitution of the Republic of South Africa required “every court, tribunal or forum” to promote the spirit and objectives of the Bill of Rights. As a tribunal, to her, it was therefore obvious that the Cape Town MPT would not be able to approve Engen’s application for a service station on her street unless it took cognisance of sections 24 and 28 of the Bill of Rights (as laid out in chapter 2 of the Constitution).The service station was to be located 18.81m from her home and 50.43m from a primary school, which, in Du Toit-Smit’s estimation, would contravene the section 24 rights of both her own children and the pupils “to an environment that is not harmful to their health or well-being”. In her submission to the MPT, she invoked the “paramount importance” of “a child’s best interests” as enshrined in section 28(2).An image of Erf 15760 from Thersia du Toit-Smit’s upstairs bedroom window. (Photo: Supplied) Aside from the Constitution itself, Du Toit-Smit cited case law that included pertinent and binding rulings of the Constitutional Court and the Supreme Court of Appeal. She assumed, in this regard, that the presiding MPT panellists would be familiar with their statutory obligations under Spluma.Within a few minutes of wrapping up her presentation, it would dawn on Du Toit-Smit that her expectations were misplaced. In the recording of the hearing obtained by Daily Maverick, the most revealing segment was the discussion that ensued between the chair of the MPT, David Daniels, and the City of Cape Town’s technical adviser to the tribunal, Jaco van der Westhuizen.David Peter Daniels. (Photo: Girls & Boys Town) Daniels wanted to know whether the “very legal” arguments of the objector, particularly the “references to the Constitution,” were applicable. Van der Westhuizen responded that he was not qualified to “wander into the legal aspects” and that the MPT hearing was “not a court of law” – but what was applicable, he somehow still advised, was section 99 of the Municipal Planning By-Law, regarding which the applicant had made a submission based on “the facts”. The minutes of the southeastern panel for 24 March would therefore contain a familiar line: “The MPT approved the application for the reasons set out in the planner’s report.” Although the MPT would recommend amendments to the planners’ report, these would focus mostly on the inclusion of phrasing about the “desirability” of the service station and its “optimal use” of the land — despite the fact that Du Toit-Smit’s objection had highlighted the presence of six service stations within a 3km radius of the site.Also, while the approval would subject Engen Holdings to several technical conditions that addressed local water, traffic and environmental concerns, the MPT’s ruling would not engage with Du Toit-Smit’s constitutional framing or with its own legislative duties in that regard.Likewise, in his answers to Daily Maverick, Andrews would not directly engage with the statutory provisions that referred to the MPT’s mandatory independence.In our third, fourth and fifth questions put to the City of Cape Town on 17 August, we had focused on sections 35 to 39 of Spluma, in an effort to understand – once again – how the DA-led municipal council interpreted its obligations under the national legislation. As Daily Maverick readers may recall, the first instalment of our initial three-part investigation was an exposé of the council’s removal of all references to section 37(1) of Spluma from its own Municipal Planning By-Law. Titled “Members for life — The capture of Cape Town’s planning tribunal,” the investigation drilled down into the amendments to the by-law that the council passed on 26 June 2025, exactly four days before Daniels was due to hit his statutory term-limit as MPT chair. By excising mention of section 37(1), which sets a firm ceiling of a continuous 10 years, and by granting itself the authority to reappoint members for further terms, we contended that the municipal council had deactivated a core mechanism of the Cape Town MPT’s independent functioning.At the time, the City of Cape Town’s spokesperson, Luthando Tyhalibongo, informed Daily Maverick that section 37(1) of Spluma was, in the estimation of his employers, an “overreach” into the “constitutional competencies” of the municipal council. It was a position, he explained, that had been sanctioned by “the City’s legal services department” with the assistance of “external” lawyers.“The City received advice that is legally privileged in this regard,” Tyhalibongo stated.Daily Maverick, on behalf of its readers, formally applied for that withheld legal opinion under the Promotion of Access to Information Act. Shortly before the disclosure deadline, the City would request (and be granted) a 30-day extension, citing the need for further internal consultation. Still, we remained hopeful that the City would provide clarity on its legal basis of its own accord. Unfortunately, in response to our third and fourth questions, which came at the independence provisions of Spluma from different angles, Andrews referred us back to his answers to our first two questions (see above). But in response to our fifth question, which enquired how the City distinguishes its own executive authority over municipal planning from Parliament’s role in setting norms and standards, he was slightly more forthcoming.“The MPT functions independently, and to imply a different interpretation is disingenuous,” he stated.“The MPT’s independence is not measured by how often it disagrees with officials. It is measured by whether it fully considers each matter for itself and is willing to change or reject a recommendation where there is a proper reason to do so. A low level of deviation is therefore entirely consistent with a competent administration: the professional recommendation is sound in most cases, and the MPT intervenes where the circumstances require it.”Same findings, different interpretationsIn late June, when Du Toit-Smit contacted Daily Maverick on the assumption that we would be interested in her story, one of the first things she did was offer us an appraisal of the potential legal consequences of our reporting.“Your article makes an interesting case that all MPT decisions since July last year are null and void,” she said, with reference to the first piece in our investigative series. What Du Toit-Smit also knew, as reported in the second part of our series, was that Van der Westhuizen had informed a Cape Town ratepayer in writing on 30 March that “most of [the MPT members]” had “served more than 10 years”.In other words, according to the City’s technical adviser to the MPT, it wasn’t just the chairperson’s term limits that had been removed by the amendments of late June 2025; it was the term limits of the majority of the tribunal.Daily Maverick’s decision to set the start of its data analysis at 1 July 2025 was informed by these facts – although we could not know how a court would rule if the City ever faced a challenge, we had a sound journalistic reason (and perhaps even a duty) to interrogate the full corpus of MPT decisions from that date. The Cape Town Foreshore. (Photo: Rebecca Pitt) The City of Cape Town, in its response to our questions, did not offer any evidence to counter our conclusions. To reiterate, Andrews did not materially contest our finding of zero deviations from his planners’ reports; what he contested, instead, was our interpretation of the findings.“Sustainable development is necessary for Cape Town,” Andrews told us, before baldly alleging that we suffered from a “sheer misunderstanding” of his directorate’s decision-making processes. “This is very clear from the City's adopted policies including the Integrated Development Plan (IDP). Our city is growing at 2.3% households per annum; this growth needs to be accommodated.”As Daily Maverick was aware from its observations of an expanding sample of MPT hearings, both live and recorded, it was to the IDP that tribunal members would refer when claiming authority for the overarching model of “densification” – and, on the face of it, the model made eminent sense.As a core strategy to combat urban sprawl and enhance resource efficiency, densification was clearly the way to go. But, again, Daily Maverick’s questions weren’t about what Andrews called “the City’s adopted policies”.Our questions, at their heart, were about the country’s national laws and the way they were being implemented. DMPart 2 of this series will focus on the penalty determinations, objections and refusals in the dataset.