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[2010] ZAWCHC 144
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City of Cape Town v Maccsand (Pty) Ltd and Others (4217/2009, 5932/2009) [2010] ZAWCHC 144; 2010 (6) SA 63 (WCC) ; [2011] 1 All SA 506 (WCC) (20 August 2010)
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No.:
4217/2009
5932/2009
In
the matter between:
CITY
OF CAPE TOWN
Applicant
and
MACCSAND
(PTY) LIMITED
First
respondent
MINISTER
OF MINERALS AND ENERGY
Second
Respondent
NATIONAL
MINISTER OF WATER
AFFAIRS
AND ENVIRONMENT
Third
Respondent
MINISTER
OF LOCAL GOVERNMENT,
ENVIRONMENTAL
AFFAIRS AND
DEVELOPMENT
PLANNING,
WESTERN
CAPE PROVINCE
Fourth
Respondent
MINISTER
OF RURAL
DEVELOPMENT
AND LAND REFORM
Fifth
Respondent
JUDGMENT
delivered on the 20
tn
day of August 2010
DAVIS
J
INTRODUCTION
Second
Respondent granted first respondent, a black empowerment mining
company, mining rights in terms of section 23 of the Mineral
and
Petroleum
Resources Development Act 28 of 2002 (MPRDA) in respect of Erven
1210 and 9889 Mitchell's Plain and Erf 1848 Schaapkraal
together
with a mining permit in terms of section 27 of MPRA in respect of
Erf 1.3625 Mitchell's Plain. Applicant and fourth
respondent contend
that the Land Use Planning Ordinance 15 of 1985 (LUPO) requires, in
addition to any right acquired under the
MPRDA, that authorisation
by applicant be procured before any exercise of these mining rights
can take place.
Thus,
the central dispute in this application is whether a mining permit
or mining right granted under the MPRDA exempts the holder
from
having to obtain authorisation for its mining activities in terms of
laws which regulate the use of that land, in particular
the
provisions of LUPO and the National Environment Management Act 107
of 1998 (NEMA).
The
application, which was initially brought by the applicant, was for
an order interdicting and restraining first respondent
from
conducting mining activities on the relevant erven, unless and until
the necessary authorisations in terms of LUPO had been
sought and
obtained together with certain ancillary relief.
The
initial application was brought in respect of Erf 13625, the so
called Rocklands Dune. Applicant subsequently brought an application
in respect of the other three erven and these two applications were
then consolidated. Fourth respondent was joined as a party
on the
insistence of second respondent. Having been so joined, fourth
respondent then brought certain conditional counter-applications,
one of which counter-applications necessitated the joining of a
further party, the fifth respondent.
These
counter applications are brought only on condition that this Court
finds in the main application that, upon a proper interpretation
of,
firstly, section 27(2) of the Physical Planning Act, No. 125 of 1991
("the
PPA "),
and
secondly, the MPRDA, either the provisions of LUPO and the
regulations of the zoning schemes promulgated thereunder do not
apply in respect of any right of any person to prospect for or to
mine any mineral, or a person undertaking mining operations
is
exempt from the requirement to comply with the provisions of LUPO
and the regulations of the zoning schemes promulgated thereunder,
for an order declaring-
6.6.1.
that the PPA is inconsistent with the Constitution and invalid to
that extent; and/or
6.6.2.
that the MPRDA is inconsistent with the Constitution and invalid to
that extent.
Fourth
respondent, in a further alternative, and, in the event of the Court
finding that the conditional relief sought falls within
the
exclusive jurisdiction of the Constitutional Court, seeks to
interdict Maccsand from commencing or continuing mining operations
on the Rocklands and Westridge dunes until the matter is determined
by the Constitutional Court.
Notwithstanding
the submissions of fourth respondent, applicant insists that the
dispute can and should be decided on the narrow
basis as envisaged
in the original applications, namely that (i) mining activity may
not be carried out unless authorisation
has been granted under land
use and environmental legislation; and (ii) in this case, no such
authorisation has been so granted.
THE
FACTUAL BACKGROUND
A
brief
explanation of the facts is necessary to understand the full extent
of the dispute. The Rocklands Dune (Erf 13625) is vacant
land of
3.643 hectares in extent and is located in the residential area of
Mitchell's Plain, adjacent to private homes and situated
between two
schools.
The
Westridge Dune (Erven 1210, 9889 Mitchell's Plain and 1848
Skaapskraal) are continguous erven also located in the residential
area of Mitchell's Plain. These erven constitute 16.3 hectares in
extent The northern, southern and eastern sides of this dune
abut
onto private homes. The area to the west of the dunes is vacant land
or, in this case, the dune abuts onto a major road.
There is an
informal settlement on Erf 1210.
On
16 October 2007 first respondent was granted a mining permit in
respect of Erf 13625 in terms of Section 27 of MPRDA. On 29
August
2008, first respondent was granted a mining right in respect of
Erven 1210, 9889 and 1848 in terms of Section 23 of MPRDA.
The city
owns or has the right to ownership of all of these erven. Erven
13625, 1848 and 9889 are all zoned public open space
and Erf 1210 is
zoned
"rural".
Applicant
and first respondent have engaged through correspondence with regard
to the possible exploitation of the mining rights
and permits since
June 2006. It appears that first respondent applied for these rights
in September 2006. Applicant refused to
support the application and
informed both first and second respondent of its position. It
further informed both parties that
authorisation in terms of LUPO
was required before mining activities could be conducted on the
erven.
Applicant
was not notified by either first or second respondent that a permit
in respect of Erf 13625 had been granted until first
respondent
delivered the permit to applicant's law enforcement office in
Mitchell's
Plain,
less than two weeks before it commenced mining. On 17 February 2009
first respondent started mining activities on the erven
but did not
give applicant any notification for such commencement in terms of
Section 5(4) of the MPRDA.
This
action prompted applicant to launch an urgent application to
interdict and restrain first respondent from continuing mining
activities on Erf 13625 unless and until it obtained the requisite
authorisations in terms of LUPO. On 4 March 2009 applicant's
attorney wrote to first respondent requesting an undertaking that
they would not commence mining activities on the remaining
erven, an
undertaking which first respondent then failed to furnish. This
omission prompted a further application for an interdict
which was
brought by applicant on 24 March 2009, in this case seeking to
prevent first respondent from conducting mining activities
on the
remaining erven until the necessary authorisations had been
procured.
THE
CORE DISPUTE
Applicant's
case is that neither of the zones applicable in respect of the
Rocklands or Westridge Dunes authorises the use of
this land for
mining. Applicant avers that two actions would have to be taken
before lawful mining activity could take place;
either the zoning
scheme would have to be amended to authorise mining on the relevant
land or a departure would have to be granted
from the existing
zoning scheme to allow mining to take place on the land.
By
contrast, both first and second respondent contend that, once second
respondent or his or her delegate have granted a mining
right or
permit, the holder is granted a right to undertake mining at the
location and that no other law or authority may
"veto"
the
decision taken by the relevant Minister or delegate.
Mr.
Rose-Innes,
who
appeared together with Ms. Bawa on behalf of first respondent,
submitted that, in this case, there were three different legal
regimes which operated at different spheres of government, all of
which were relevant to mining, being NEMA, LUPO and the MPRDA.
Mr.
Rose-Innes
submitted
that, if there was a clash between these three regimes, then if
second respondent, pursuant to the powers granted in
terms of the
MPRDA, approved the application for mining, this decision put an end
to the case; that is this decision trumped
all other considerations.
In
amplification of this submission, Mr.
Rose-Innes
contended
that the MPRDA had introduced a new mineral order when it came into
effect on 1 May 2004, repealing the 1991 Minerals
Act, and much of
the common law. The State is now the custodian of mineral resources
and, thus, ownership of minerals vests in
the State. The Act deals
with the regulation of mineral resources as a whole and, of
necessity, with the regulation of land use
where the mining takes
place.
Mr.
Rose-Innes
submitted
further that, without the land use being regulated by the MPRDA,
exploitation of the mineral resource could not effectively
take
place. He submitted further that the entitlement to use the land in
the manner required for the exercise of mining rights,
was
inherently part of the exercise thereof and hence the grant of the
mineral right without this entitlement could mean that
mining rights
might not be capable of being exercised at all. Certainly, in his
view, they would not be exercised in a nationally,
uniform manner.
Mr.
Rose-Innes
then
referred to Chapter 4 of the MPRDA (Sections 9 -56) which deals with
mineral and environmental regulations. In his view,
the provisions
of this chapter were comprehensive and self-contained. In
particular, he referred to section 48, entitled
"Restriction
or prohibition on prospecting and mining on certain land".
Subsection
(1) provides
"Subject
to section 20 of the National Parks Act, 1976 (Act No, 57 of 1976),
and subsection (2), no reconnaissance permission,
prospecting right,
mining right or mining permit may be issued in respect of
(a)
land comprising a residential area;
(b) any
public road, railway or cemetery;
(c)
any land being used for public or government purposes or reserved
in terns of any other law; or
(d) areas
identified by the Minister by notice in the Gazette in terms of
section 49. "
Section
48(2) provides that a mining right or permit may be issued in
respect of land as contemplated in section 48(1), if the
Minister is
satisfied that-
"(a)
having regard to the sustainable development of the mineral
resources involved and the national interest it. is desirable
to
issue it;
(b)
the reconnaissance on prospecting or mining will take place within
the framework of national environmental management policies,
norms
and standards; and
(c)
the granting of such rights or permits will not detrimentally affect
the interests of any holder of a prospecting right or
mining permit,
"
Mr.
Rose-Innes
contended
that section 48 thus contemplated the granting of mining rights and
permits without the zoning of such land being affected
in
circumstances where the requirements of section 48(2) have been met.
By
contrast, Mr.
Budlender,
who
appeared together with Ms.
Van
Huyssteen
for
the applicant, submitted that land could not be used for mining
activities without the authorisation by applicant, acting
pursuant
to the provisions of LUPO. He referred to the long title of LUPO
which states that its purpose Ms to regulate land use
planning and
to provide for matters incidental thereto'. In particular, section
11 of LUPO provides
"11
General purpose of zoning scheme
The
general purpose of a zoning scheme shall be to determine use rights
and to provide for control over use rights and over the
utilisation
of land in the area of jurisdiction of a local authority. "
Pursuant
to the applicable provisions of LUPO, erven 13625 and 9899 are zoned
public open space. In terms of applicants' zoning
scheme,
regulations promulgated under LUPO, Erf 1848 is zoned public open
space and Erf 1210 is zoned rural in terms of the Divisional
Council
Cape's zoning scheme regulations under LUPO.
These
zoning categories do not permit mining. Thus, Mr.
Budlender
submitted
that the only way in which mining activities could take place,
contrary to the zoning scheme, was by way of recourse
to section 15
of LUPO, which reads:
"15
Applications for departure
(1)(a)
An owner of land may apply in writing to the town clerk or secretary
concerned, as the case may be-
(i)
for an alteration of the land use restrictions
applicable to a
particular zone in terms of the scheme regulations
concerned, or
(ii)
to
utilise land on a temporary basis for a purpose for
which no
provision has been made in the said regulations in
respect of a
particular zone. "
Much
was made by both first and second respondent that, were the
applicant's approach to be correct, the effect of LUPO and the
relevant zoning schemes would be to confer on the owner of a
property, such as the applicant, a
veto
power
on the exercise of a mining right. This power would follow because
only the owner could apply, in terms of section 15 for
a departure
from the zoning scheme which prohibited mining activity.
To
this argument, Mr.
Budlender
submitted
that the Provincial Minister, in this case fourth respondent, could
amend the scheme conditions so that mining was permissible
on the
land in question. Fourth respondent could act in terms of the powers
granted to the Provincial Minister pursuant to section
9(2) of LUPO.
If the Minster so refused, it was possible that his decision could
be taken on review. Further, Mr.
Budlender
submitted
that the Premier may rezone the land to make mining permissible,
acting pursuant to section 18 of LUPO on his or her
own initiative.
It would then be open to an aggrieved party, such as first
respondent, or the holder of the mining right, to
approach the
Premier and request that he or she exercise this power. Again, the
possibility of a review could be contemplated,
if the Premier so
refused.
Mr.
Budlender
further
submitted that the applicant could re-zone the land to make mining
permissible in terms of section 18 of LUPO, of which
a refusal to do
so, could again trigger a review application. Furthermore, section
55(1) of the MPRDA was of application, if
the extraction of the
minerals concerned was of such importance that other policy
considerations should be over-ridden. Second
respondent could thus
expropriate the land, a power which was available, if it was
necessary for the achievement of the objects
contained in sections
2(d), (e), (f), (g), (h) of the MPRDA.
Viewed
within the context of these submissions, the critical decision for
resolving this dispute turned on a determination of
a clash, as Mr.
Rose-Innes
described
it, between the legislative regimes set out respectively in the
MPRDA and LUPO.
In
further framing this dispute, Mr.
Budlender
correctly
noted that the very nature and purpose of LUPO was that it
represented the key mechanism for municipal planning, in
this case,
for the Province of the Western Cape. If LUPO was over-ridden, it
would make it extremely difficult for authorities
such as applicant
to fulfil their constitutional function with regard to municipal
principal planning.
It
is thus to the question of the respective constitutional
responsibilities of an authority, such as applicant, and second
respondent, to which I must turn for a resolution of this problem.
THE
CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY ET AL:- THE
CONSTITUTIONAL COURT DISPOSES OF PART OF THE PROBLEM
In
order to determine the respective competence of national, provincial
and local government, a considerable debate took place
between
counsel concerning the meaning of 'municipal planning' as listed in
Part B of Schedule 4 of the
South
African
Constitution Act
108
of 1996 ("the Constitution").
In
particular, section 156 (l)(a) of the Constitution provides that a
municipality has executive authority in respect of these
matters.
First and second respondents contended that legislation like LUPO
had to give way to the MPRA if the objectives of the
latter were to
be properly fulfilled.
Hence
the debate turned on two questions: the meaning of the phrase
'municipal planning' and the fit between the former and the
national
power dealing with mining. Subsequent to oral argument in the
present dispute, the Constitutional Court delivered a
judgment in
The
City
of
Johannesburg
Metropolitan
Municipality
and
The
Gauteng Development
Tribunal
and
Others
(
[2010] ZACC 11
, judgment delivered on the 18
th
June 201.0) which gave clear meaning to the term municipal planning.
The
main issue in this case was the constitutionality of Chapters V and
VI of the
Development Facilitation Act 67 of 1995
which authorised
provincial development tribunals to determine applications for the
rezoning of land and the establishment of
townships. A dispute arose
between the City of Johannesburg Metropolitan Municipality and the
Gauteng Development Tribunal which
had been created by the
Development Facilitation Act, the
dispute concerning which sphere of
government was entitled, in terms of the Constitution, to exercise
the powers relating to
the establishment of townships and the
rezoning of land within the municipal area of the City.
In
order to determine the dispute, the Constitutional Court was obliged
to examine the constitutional scheme relating to the levels
and
powers of the three tiers of government. As
Jafta
J
said,
in terms of section 40 of the Constitution, which defines the model
of government so contemplated:
"the
government consists of three spheres: the national, provincial and
local spheres of government. These spheres are distinct
from one
another and yet interdependent and interrelated. Each sphere is
granted the autonomy to exercise its powers and perform
its
functions within the parameters of its defined space. Furthermore,
each sphere must respect the status, powers and functions
of
government in the other spheres and "not assume any power or
function except those conferred on [it] in terms of the
Constitution. "
(para
43).
Of
equal importance is a further observation by
Jafta
J:
"the
national and provincial spheres are not entitled to usurp the
functions of the municipal sphere except in exceptional
circumstances, but only temporarily and in compliance with strict
procedures. This is the constitutional scheme in the context
of
which the powers conferred on each sphere must be construed."
(para
44).
The
starting point for the determination of
The
City
of
Johannesburg
case
was section 156(1) of the Constitution which affords municipality's
original constitutional powers. It reads thus:
"(I)
A municipality has executive authority in respect of, and has the
right to administer-
(a)
the local government matters listed in Part B of Schedule 4 and Part
B of Schedule 5; and
(b)any
other matter assigned to it by national or provincial legislation. "
Part
B of Schedule 4 includes the following functional area, "Municipal
Planning".
In
determining the meaning of "municipal planning", a terai
not defined in the Constitution,
Jafta
J,
on
behalf of a unanimous Constitutional Court, found as follows:
"But
"planning" in the context of municipal affairs is a term
which has assumed a particular, well-established
meaning which
includes the zoning of land and the establishment of townships. In
that context, the term is commonly used to define
the control and
regulation of the use of land. There is nothing in the Constitution
indicating that the word carries a meaning
other than its common
meaning which includes the control and regulation of the use of
land. It must be assumed, in my view, that
when the Constitution
drafters chose to use "planning" in the municipal context,
they were aware of its common meaning.
Therefore, I agree with the
Supreme Court of Appeal that in relation to municipal matters the
Constitution employs "planning"
in its commonly understood
sense. As a result I find that the contested powers form part of
"municipalplanning". "
(para
57).
Two
significant implications flow from this judgment for the purposes of
the present dispute: Firstly, municipal planning includes
the
control and the regulation of the use of land which falls within the
jurisdiction of a municipality and secondly, the national
and
provincial spheres of government cannot by legislation give
themselves
the
power to exercise executive municipal powers nor the right to
administer municipal affairs. A mandate of these two spheres
of
government should ordinarily be limited to regulating the exercise
of executive municipal powers and the administration of
municipal
affairs by local authorities.
MINING:
A TRUMP?
But
even if municipal planning includes the regulation of all land under
the jurisdiction of a municipality, the first and second
respondents
contend that mining is a national competence and hence trumps the
relevant power of local government. Much was thus
made by the first
and second respondents that mining was
"an
exclusive national competence".
This
argument was employed for the justification that a national
competence such as mining could over-ride municipal planning,
even
if the latter phrase was given the extensive meaning accorded to it
by the Constitutional Court.
However,
as Mr.
Budlender
correctly
observed, the Constitution does not refer expressly to exclusive
national competences. Schedule 4 of the Constitution
provides for
functional areas of concurrent national and provincial legislative
competence. Schedule 5 provides for functional
areas of exclusive
provincial legislative competence. In Part B of both Schedules a
list of
"local
government matters"
is
contained. Both of these schedules need to be read together with
sections 155 and 156 of the Constitution. For completion,
mention
shall be made that certain of the provincial powers can be gleaned
from Schedules 4 and 5 read together with sections
104 and 146 of
the Constitution.
When
these sections are examined together, it is clear that the
Constitution does not detail exclusive national competence but
carves out areas for provinces and municipalities, leaving the
balance, being areas which are not so specified, to national
government. In other words, the functional competence of the
national government is defined by way of an examination of the
functional competences of the local and provincial governments and
not the other way round. In terms of section 44(l)(a)(2) of
the
Constitution, national government can pass legislation with regard
to any matter, including the matters within the functional
area
listed in Schedule 4 which would include municipal planning.
As
Jafta
J
pointed
out at para 54 in the
City
of
Johannesburg Metropolitan
Municipality
case,
supra,
the
national sphere can regulate the exercise of executive municipal
powers and the administration of municipal spheres by municipalities
but cannot abrogate to itself the power to exercise executive
municipal powers nor assume the right to administer municipal
affairs by way of legislation outside of the scope of the
Constitution.
The
Constitution does not give national legislation the right to take
away the planning function of municipalities. In this connection,
much was made of section 25 of the MPRDA which provides, in terms of
subsection (2), that the holder of a mining right must
(d)
comply with the relevant provisions of this Act, any other relevant
law under terms and the conditions of the mining right.
Thus, had
Parliament wanted to ensure that the MPRDA overrode legislation such
as LUPO, the question arises as to why it would
have phrased the
MPRDA in the fashion set out in section 25(2)(d). To over-ride the
provisions of LUPO, Parliament would have
been required to directly
insert a provision, such as 'notwithstanding the provision of any
other law'. This was not the case
in the present dispute. By
contrast, the relevant legislation includes, within the potential
supervisory scope, the provisions
of
"any
other law
".
CONCLUSION
The
absence of a national legislative over-ride read, together with the
decision in
City
of
Johannesburg Metropolitan Municipality,
supra,
leads
to a conclusion that LUPO has clear application to the present
dispute. This finding does not of course preclude the possibility
of
an overlap between the powers of national and local government. To
the contrary, as the Constitutional Court held in
Wary
Holdings (Pty) Ltd
vs
Stalwo
(Pty) Ltd and Another
2009(1)
SA 337 (CC) at para 80:
"There
is no reason why the two spheres of control cannot co-exist even if
they overlap and even if, in respect of the subdivision
of
'agricultural land', the one may in effect veto the decision of the
other. It should be borne in mind that the one sphere
of control
operates from a municipal perspective and the other from a national
perspective, each having its own constitutional
and policy
considerations. "
This
approach also finds an echo in
Fuel
Retailers Association
of
Southern
Africa v Director-General: Environmental Management, Department
of
Agriculture, Conservation and Environment,
Mpuma!ansa
Province
and Others
2007
(6) SA 4
(CC), in particular where the Court held at para 85:
"The
local authority considers need and desirability from the perspective
of town-planning, and an environmental authority
considers whether a
town-planning scheme is environmentally justifiable, A proposed
development may satisfy the need and desirability
criteria from a
town-planning perspective and yet fail from an environmental
perspective. "
For
it to be held that LUPO has no application to the use of land in a
case such as the present dispute, the very idea of concurrent
powers
as envisaged in Schedule 4 of the Constitution would be called into
question. The following example is illustrative of
this concern. An
examination of Schedules 4 and 5 reveals that correctional services,
including the construction of prisons,
is considered as an exclusive
national competence; that is, it clearly not a provincial nor a
local competence. Could it then
be suggested that the construction
of a prison by the Department of Correctional Services could take
place in circumstances where
the municipality, in whose jurisdiction
the prison is proposed to be constructed, would have no say at all
about the location
of the proposed prison? Such a conclusion would
not simply limit but eradicate the municipality's powers of
municipal planning,
allowing prisons to be located in, for example,
an area zoned residential, no matter the views of the duly elected
local government.
MINING
AS A LAND USE
The
approach that I have adopted leads thus to the further question as
to whether mining is a land use, which in turn would fall
within the
scope of applicant's constitutional powers.
Mr.
Rose-Innes
submitted
that mining is not a
"land
use".
In
his view, nowhere do the provisions of LUPO authorise mining nor
does LUPO characterise mining in matters incidental thereto
as a
"land
use".
Both
Mr.
Rose-Innes
and
Mr.
Oosthuizen,
who
appeared together with Mr.
Warner
on
behalf of second respondent, submitted that, were it otherwise and
LUPO was interpreted so that the use of land for mining
was included
within the range of land uses controlled by LUPO, so that use
restrictions were applied in respect of the use of
land for mining,
this would effectively result in LUPO controlling mining activity. A
mining right inherently consists of the
use of the land for mining.
Hence, it would be constitutionally impermissible for the national
competence relating to the regulation
of mining to be subjected to
the provisions of LUPO, which in turn could result in the
prohibition of nationally authorised mining
in the designated area.
Whatever the rights granted under the MPRDA, an authority like
applicant could then invoke powers under
LUPO to prevent the
exploitation of these rights.
The
scheme regulations which had been promulgated in terms of section 8
of LUPO recognise mining as a land use and have created
a special
zone for it. In more specific terms, Schedule 3 to LUPO deals with
planning control. It then provides
"The
following provision shall apply in the relevant zones
".
There
then appears as para 3.15, 'Industrial Zone III Primary use mining'.
Mining is then defined in the Regulations as
"an
enterprise which practises the extraction of raw materials, whether
by means of surface or underground methods and includes
the removal
of stone, sand, clay, kaolin, ores, minerals or precious stones".
LUPO
recognises mining as a land use and thus, on the strength of
The
City
of
Johannesburg
case,
such land use falls within municipal planning and applicants' as
well as fourth respondents' concurrent powers.
Mr.
Breitenbach,
who
appeared together with Mr.
Paschke
on
behalf of fourth respondent, submitted that the implication of
Wary
Holdings
,
which
judgment needs to be read together with
Gauteng
Development
Tribunal,
supra
(the
decision of the CC) suggested that 'provincial planning' as listed
in schedule 5A, as an exclusive provincial legislative
competence,
includes all the functions assigned to the provinces under the four
provincial Ordinances that survived the transition
to the present
constitutional regime, including LUPO. These would include the
powers to amend zoning schemes (section 9(2) of
LUPO) and the powers
to consider and determine appeals against municipal decisions to
grant or refuse applications for departures
from zoning schemes
(section 44(1 )(a) ofLUPO).
As
mining would entail the use of land, it follows, particularly on the
basis of the approaches adopted both in
Wary
Holdings
and
Fuel
Retailers Association
of
Southern Africa,
supra,
that,
in addition to the control of mining by the national sphere of
government under the MPRDA, the use of mining would also
be subject
to control by the provincial and municipal spheres of government, in
the present case under LUPO. Further, although
it is not relevant to
this dispute, the Transvaal Provincial Ordinance expressly
recognises mining as a land use, which provisions
supports the point
that this level of legislation an implicate the exercise of mining.
Significantly,
section 6 of the Physical Planning Act 88 of 1967 which provided for
restrictions upon the use of land in controlled
areas exempted from
the provision
"the
use of land for prospecting or mining for base minerals or for any
other purpose for which authority, permission or
consent is required
in terms of any other law or condition contained in the title deed
of the land (section 6(2) (c)).
In
summary, the finding that LUPO is applicable to the use of land,
including mining, is congruent with the constitutional scheme
of
concurrent powers, In
Fuel
Retailers
supra,
as
in this case, unless there is a direct invocation of powers to
override LUPO and the MPRDA, both legislative schemes operate
as
concurrent powers.
FOURTH
RESPONDENT'S APPLICATION
Both
applicant and the fourth respondent have contended that
environmental authorisation in terms of NEMA is required for the
mining on the Rocklands Dunes and the Westridge Dunes, because these
activities fall within item 20 of GNR 386 of GG 28753 of
21 April
2006 as amended ('activity 20'). In addition, fourth respondent
contends that the environmental authorisation in terms
of NEMA is
required for the mining on the Westridge Dunes because it will
entail an activity described in item 12 of GNR 386.
The
application of NEMA is made more difficult by virtue of the fact
that it has been amended three times since the operation
of the
MPRDA which commenced on 1 May 2004. The provisions of NEMA which
appear to be relevant to the determination of this dispute
are
complex. It is thus helpful to set them out fully:
"'24
Environmental authorisations
(1)
In order to give effect to the general objectives of integrated
environmental management laid down in this Chapter, the potential
impact on the environment of listed activities must be considered,
investigated, assessed and reported on to the competent authority
charged by this Act with granting the relevant environmental
authorisation,'
'(2)
The Minister, or an MEC with the concurrence of the Minister, may
identify-
(a)
activities
which may not commence without environmental
authorisation from
the competent authority;
'(4)
Procedures for the investigation, assessment and
communication of the potential consequences or impacts of
activities
on the environment-
(a)
must ensure, with respect to every application for an
environmental authorisation-
(b)
must
include, with respect to every application for an environmental
authorisation and where applicable-
'(7)
Compliance with the procedures laid down by the Minister or an MEC
in terms of subsection (4) does not absolve a person from
complying
with any other statutory requirement to obtain authorisation from
any organ of state charged by law with authorising,
permitting or
otherwise allowing the implementation of the activity in question. '
'(8)
(a)
Authorisations
obtained under
any
other law for an activity listed or specified in terms
of
this Act does not absolve the
ap
plicant
from obtaining authorisation under this Act unless an authorisation
has been granted in the manner contemplated in section
24L
.
(b)
Authorisations obtained after any investigation, assessment and
communication of the potential impacts or consequences of
activities, including an exemption granted in terms of section 24M
or permits obtained under any law for a listed activity or
specified
activity in terms of this Act, may be considered by the competent
authority as sufficient for the purposes of section
24(4), provided
that such investigation, assessment and communication comply with
the requirements of section 24(4)(a) and, where
applicable, comply
with section 24(4)
(b).'
'24K
Consultation between competent authorities and consideration of
legislative compliance requirements of other organs of state
having
jurisdiction
(1) The
Minister or MEC may consult with any organ of state responsible for
administering the legislation relating to any aspect
of an activity
that
also
requires environmental authorisation under this Act
in order to coordinate the respective requirements of such
legislation and to avoid duplication.
(2) The
Minister or an MEC, in giving effect to Chapter 3 of the
Constitution and section 24(4)(a)(i) of this Act, may after
consultation with the organ of state contemplated in subsection (1)
enter into a written agreement with the organ of state in
order to
avoid- duplication in the submission of information or the carrying
out of a process relating to any aspect of an activity
that also
requires environmental authorisation under this Act.
The
Minister or an MEC may-
(
a)
after having concluded an agreement contemplated in subsection
(2), consider the relevance and application of such agreement
on.
applications for environmental authorisations; and
(b)
when he or she considers
an
application for environmental authorisation that also
requires authorisation in terms
of
other legislation
take account of either in part or in full and
as
far as specific areas of expertise are concerned, any process
authorised under that legislation as adequate for meeting the
requirements of Chapter 5 of this Act, whether such processes are
concluded or not and provided that section 24(4) (a) and, where
applicable, section 24(4)(b) are given effect to in such process.
24L
Alignment of environmental authorisations
(1)
If the carrying out of a listed activity or specified activity
contemplated in section 24
is
also regulated in terms
of
another law
or a. specific environmental management Act, the authority empowered
under that other law or specific environmental management
Act to
authorise that activity and the competent authority empowered under
Chapter 5 to issue an environmental authorisation
in respect of that
activity may exercise their respective powers jointly by issuing-
(a) separate
authorisations; or
(b) an
integrated environmental authorisation.
(2)
An
integrated environmental authorisation contemplated in
subsection
(I)
(b) may be issued, only if
(a)
the
relevant provisions of this Act and the other law or specific
environmental management Act have been complied with; and
(b)
the
environmental authorisation specifies the-
(i)
provisions
in terms of which it has been
issued; and
(ii)
relevant
authority or authorities that have issued it.
(3)
A
competent authority empowered under Chapter 5 to issue an
environmental authorisation in respect of a listed activity or
specified
activity may regard such authorisation as a sufficient
basis for the granting or
refusing of an authorisation, a permit
or a licence under a. specific environmental management Act if that
specific environmental
management Act is also administered by that
competent authority,
(4)
A
competent authority empowered under Chapter 5 to issue an
environmental authorisation may regard
an
authorisation in terms
of
any other legislation that meets all the requirements stipulated in
section
24(4)(a)
and, where applicable, section 24(4)(b) to be an environmental
authorisation in terms of that Chapter.'
(Emphasis
added)."
Section
24F(1) thus provides under the heading
"Offences
relating to commencement or continuation of listed activity"
that,
notwithstanding any other Act, no person may commence an activity
listed in terms of section 24(2)(a), unless the competent
authority
has granted
"environmental
authorisation"
for
the activity. Environmental authorisation is defined as follows:
"when
used in Chapter 5, means the authorisation by a competent authority
of a listed activity or specified activity in terms
of this Act, and
includes a similar authorisation contemplated in a specific
environmental management
Act".
It
therefore follows from this provision that, notwithstanding any
other Act, no person may commence an activity which has been
listed
in section 24(2)(a), save where the competent authority has granted
an environmental authorisation for the activity under
NEMA or a
similar authorisation contemplated in a specific environmental
management Act. Significantly, in the definition of
"specific
environmental management Acts "
the
MPRDA is not included.
Section
24(8)(a) of NEMA (which was inserted by section 2 of Act 62 of 2008;
that is after the enactment of the MPRDA and which
commenced on 1
May 2009), provides expressly that an authorisation obtained under
any other law (such as the MPRDA) for an activity
listed in terms of
NEMA, does not absolve the person concerned from obtaining
authorisation under NEMA, unless an authorisation
has been granted
in the manner contemplated in section 24L of NEMA. Briefly, section
24K(1) permits the National Environment
Minister or a MEC
responsible for environmental affairs to consult with any organ of
state responsible for administering
"legislation
relating to any aspect of
an
activity that also requires environmental authorisation under NEMA "
to
co-ordinate the respective requirements in such legislation and to
avoid duplication. Section 24K(3)(b) empowers the competent
authority to take account of any process which was authorised under
other legislation as being adequate for meeting the requirements
of
Chapter 5 of NEMA.
Section
24L of NEMA seeks to clarify the concept of
"the
alignment of environmental authorisations "
in
cases where a listed activity as set out in section 24 of NEMA is
also regulated by another law. Section 24L(1) provides that,
if the
carrying out of the listed activity contemplated in section 24 NEMA
"is
also regulated in terms of another law"
the
respective authorities may exercise their powers by
inter
alia
issuing
an integrated environmental authorisation.
When
these provisions are read together, they support Mr.
Breitenbach
's
argument that Parliament recognised that activities which required
environmental authorisation under NEMA may also be regulated
by
other legislation which required similar authorisation. Where the
requirements for authorisation in terms of legislation other
than
NEMA would meet the requirements of such authorisation under NEMA,
the legislation indicated the desirability for the organs
of state
responsible for issuing these authorisations to avoid duplication
and to integrate their decision making. But critically,
the
requirement for environmental authorisation under NEMA in respect of
listed activities was not removed because the activity
may now be
regulated in terms of another law.
NEMA
IN TERMS OF ITS RELATIONSHIP TO THE MPRDA
First
respondent relied upon amendments to NEMA which relate to mining,
and when implemented (which is not yet the case), would
transfer
environmental authorisations relating to mining to third respondent.
However, when the 'mining related amendments' to
NEMA commence,
mining activity will not be absolved from the requirement that
authorizations under NEMA are obtained if mining
or related
operations will entail activities listed under NEMA. All that will
happen is that the power to issue those authorizations
will be
transferred from the National Environment Minister or the provincial
MECs, to the Mining Minister. The authorizations,
which he or her
successor in that office will issue, will be authorizations in terms
of NEMA.
Second
respondent relied on the environmental provisions in the MPRDA to
contend that this Act has now "incorporated NEMA",
which
was "an indication that it applies to the exclusion of NEMA".
In this regard, Mr.
Oosthuizen
referred
to sections 2(h), 5(4)(a), 23(1 )(d) and 37 to 39 of the MPRDA. In
particular, section 37(1), provides that the principles
in section 2
of NEMA apply to all mining and serve as guidelines for the
interpretation, administration and implementation of
the
environmental requirements of the MPRDA.
Mr.
Oosthuizen
also
referred to section 38(l.)(a), which provides that the holder of a
mining concession must, at all times, give effect to the
general
objectives of integrated environmental management laid down in
Chapter 5 of NEMA. Section 38(l)(b), provides that the
holder of a
mining concession must consider, investigate, assess and communicate
the impact of his or her prospecting or mining
on the environment as
contemplated in section 24(7) of NEMA.
According
to Mr.
Oosthuizen,
an
applicant for a mining right must in terms of section 39 of the
MPRDA conduct an environmental impact assessment and submit
an
environmental management programme, whilst a person applying for a
reconnaissance permission, prospecting right or mining
permit must
submit an environmental management plan as prescribed. The
environmental investigations, assessments and evaluations
necessary
for the environmental impact assessment, environmental management
programme or environmental management plan, are set
out in
sub-section 39(3) to (5) of the MPRDA and Part III of 16 of MPRDA
Regulations, specifically promulgated with respect thereto,
which
follow the well-known procedures of a scoping report and
environmental impact assessment with public participation.
Mr.
Oosthuizen
thus
argued that, with respect to the regulation of the environment
specifically affected by prospecting and mining operations,
the
MPRDA and MPRDA Regulations thus form special statutory measures to
deal with the management of the environment in respect
of
prospecting and mining operations. A special statute is indeed
necessary in this regard, because prospecting and mining is
a highly
specialised field with highly specialised requirements in view of
the various mining measures and methods which need
highly
specialised technical knowledge in order to assess the effect on the
environment and the management of the consequences
of prospecting
and mining. The Department of Mineral Resources is well-placed to
effectively regulate this aspect, as contemplated
by section 24 of
the Constitution.
In
Mr.
Oosthuizen's
view,
Parliament has entrusted the management of the environment, as
contemplated in section 24 of the Constitution, to the Minister
of
Mineral Resources through the MPRDA inasmuch as the effect and
management of prospecting and mining activities on the environment
are concerned.
To
evaluate these contentions, it is necessary to refer again to
sections 24(8) and 24L(4) of NEMA. These provisions deal expressly
with the question whether the obtaining of authorisations for
activities under other laws, which include the processes for the
investigation, assessment and communication of the potential impacts
or consequences of the activities, absolves the holders
of those
authorisations from obtaining environmental authorisations under
NEMA, if the activities are listed or specified under
NEMA. In my
view, these provisions make clear, notwithstanding the processes and
authorisations under other laws including the
MPRDA, that an
environmental authorisation under NEMA must be obtained unless the
competent authority, empowered to issue the
NEMA authorisation,
decides to regard the authorisation under another law as a NEMA
authorisation because it meets all the requirements
stipulated in
section 24(4).
The
further difficulty with an argument that a NEMA authorisation is, in
effect, not necessary, is the provision of section 24F(1)
which
provides that the requirement of an "environmental
authorisation" (a term defined in section 1 to mean an
environmental
authorisation under NEMA or another specific
environmental Act, which does not include the MPRDA) for activities
listed or specified
in terms of section 24(2) operates
"notwithstanding any other Act".
To
the extent that Mr. Oosthuizen's interpretation of the MPRDA has any
linguistic attraction, particularly before the NEMA amendments
begin
to operate, then the equally plausible interpretation of Mr.
Breitenbach
must
hold way. Environmental protection is enshrined as a right in the
Constitution. Hence, this Court must interpret legislation
to give
as much tangible protection to this right as the language of the
applicable statutes can reasonably bear. That is the
effect of the
mandate given to this Court by section 39(2) of the Constitution. In
any event, there is no express provision that
the provisions of the
MPRDA outlined above, render the NEMA provisions redundant.
MINING
ACTIVITY
BY
1
st
RESPONDENT
Activity
12 is defined as
"the
transformation or removal of indigenous vegetation of three hectares
or more of any size whether transformation or removal
would occur
within a critically endangered ecosystem, listed
in
terms of section
52
of the
National Environmental Management Biodiversity Act, 2004
.
It
has not been disputed that large parts of the dunes are covered with
indigenous vegetation and that the vegetation will be
removed during
the mining operations. First Respondent contends that the size of
the mining will result in the removal of 14.67
hectares of natural
vegetation and, save for a dispute about the extent thereof, there
appears to be no dispute that indigenous
vegetation will be so
removed. For these reasons therefore, Mr.
Breitenbach
was
correct, in my view, to submit that the provisions of NEMA are
applicable and thus require that environmental authorisation
must be
obtained in respect of each listed activity.
It
also follows from the structure of NEMA, as I have outlined it, and
the fact that the MPRDA did not require an environmental
impact
assessment before a mining right may be granted, that an
authorisation under NEMA was required. See, in particular sections,
24(8)(A),
section 24K
and
section 24L
of NEMA.
I
turn then to deal with whether the mining on the dunes falls within
activity 20. Activity 20 is defined as
"the
transformation
at
any area zoned for use as public open space or for a conservation
purpose to another use
".
It
is common cause that the erf upon which the Rockland
Dunes
was situated and two or three erven on which the Westridge Dunes are
situate are zoned public open space under the zoning
scheme
regulations of the Municipality of the City of Cape Town Zoning
Scheme or the Town Planning Scheme of the Divisional Council
of the
Cape.
From
the papers, it is clear that the nature of sand mining that is
proposed will entail the removal of the indigenous vegetation
in the
mining areas and the removal of large quantities of sand comprising
the dunes. At the very least, for the duration of
the mining
activities, the use of the surface of the mining area will be
transformed. Neither first nor second respondent disputed
fourth
respondent's assertion that for
"the
duration of the mining activities the land being mined will not be
able to be used as public open space
".
THE
MINING PERMITS
As
further support for the argument that it was not intended to exclude
the land zoning and environmental legislation from the
matrix of
considerations dealing with mining in this case, the tenns of the
permits granted by second respondent need to be taken
into account.
The
mining pennit issued to first respondent in respect of Erf 13625 was
issued in terms of
section 27
of the MPRDA. It expressly provides
"this
permit does not exempt the holder from the requirements of
any
provision
of
any
of the laws
or from any restrictive provisional conditions contained in the
Title Deed of the land concerned nor does it encroach upon the
rights of any person who may have an interest in the land
concerned",
(my
emphasis)
Insofar
as erven 1210, 1848 and 9889 Mitchell's Plain (the Westridge Dune)
are concerned, the mining right is contained in a 12
page document
issued in terms of
section 23(1)
of the MPRDA. Of particular
relevance is paragraph 16 thereof which is entitled
"compliance
with the laws of the Republic
".
It provides that "the granting of this right does not exempt
the Holder and its successors in title and/or assigns from
complying
with the relevant provisions of the Mine, Health and Safety Act . .
. and
any
other law enforced in the Republic
of
South Africa
(my
emphasis)".
Whatever
the debate about the meaning of 'any other law', both of these
clauses which are contained in the relevant permits clearly
provide
that restrictive provisions and conditions contained in the title
deed might prevent the exercise of the mining right.
Viewed
accordingly, the permits appear to be based on the premise that
legislation, including the MPRDA, do not over-ride such
restrictive
provisions or conditions.
Mr.
Budlender
correctly
contended that, if a restriction in a title deed could prevent the
exercise of the right to mine, it was difficult to
see the basis by
which it could be contended that another law such as LUPO or NEMA
could not similarly prohibit mining from taking
place, save with the
permission of the relevant authority, in this case the local
authority or, on appeal, the provincial government.
It is equally
difficult to conceive of a plausible response to the point that,
while the rights of neighbours may be protected
by virtue of a
condition in a title deed, the rights of a broader constituency
could not be protected by a specific piece of
legislation, the very
purpose of which is to provide such a form of protection to the
community.
RELIEF
The
basis of the relief sought by both applicant and fourth respondent
is in the form of a final interdict. The requirements for
a final
interdict are trite; being the establishment of a clear right, an
injury actually committed or reasonably apprehended
and. no other
satisfactory remedy, that is, an absence of similar protection by
any means other ordinary remedy.
Setlogelo
Setloselo
1914
AD 221
at 227.
In
this case, applicant has shown a clear right to enforce the zoning
conditions of LUPO in the interests of the local community.
It has
adopted the view that the conduct of unlawful mining activities may
pose a danger to the public and hence it relies
on a LUPO requisite
approval to be obtained to mine. Without this authorisation, and
were mining to continue, applicant's powers
to comply with its
statutory obligations in terms of LUPO would be undermined. In
effect, its authority to regulate matters,
within its jurisdiction,
in the public interest as well as to carry out its constitutional
and statutory duties will be significantly
undermined.
The
injury reasonable apprehended by both applicant and fourth
respondent is first respondent's unlawful breach of the provisions
of LUPO and NEMA on land owned by applicant and which lands falls
within the applicant's area of jurisdiction. Applicant has
already
mined on Erf 13625. It is clear from the papers that it intends to
undertake mining on all four erven, pursuant to the
mining right or
permit it possesses, without regard to the provisions of LUPO and
NEMA. To the extent that applicant has made
efforts to obtain an
undertaking from first respondent to desist from mining, pending
authorisation, these have proved unsuccessful.
There
does not appear to be any effective, alternative remedy which is
available to applicant and fourth respondent. It would
be extremely
difficult to quantify the damages caused by the unlawful conduct of
first respondent in order to bring a claim against
it. Furthermore,
damages which sought to address the injury suffered by applicant as
the owner of the land would not deal with
the continuing injury
which may be caused to applicant as the local authority, by virtue
of the breach of its land use legislation.
Given
the conclusions to which I have come, there is no need to consider
the conditional applications brought by fourth respondent.
ORDER
For
these reasons the following order is made: It is declared that:
1. the
respondent may not commence or continue with mining operations on
erf 13625, Mitchell's Plain; erf 9889, Mitchell's Plain;
erf 1848,
Schaapkraal; and/or erf 1210, Mitchell's Plain ('the properties')
until and unless authorisation has been granted in
temis of the Land
Use Planning Ordinance 15 of 1985, Cape ('LUPO') for the land in
question to be used for mining;
2. the
first respondent may not commence or continue with mining
operation on the properties until and unless an
environmental authorisation has been granted in terms of the
National Environmental Management Act 107 of 1998 ('NEMA') for the
carrying out of the activity identified in item 20 of Government
Notice R386of 21 April 2006 on the land in question;
3. the
first respondent may not commence or continue with mining operations
on erf 9889, Mitchell's Plain; erf 1848, Schaapkraal;
and erf 1210,
Mitchell's Plain until and unless an environmental authorisation has
been granted in terms of NEMA for the carrying
out of the activity
identified in item 12 of Government Notice R3 86 of 21 April 2006 on
the land in question.
4. The
first respondent is interdicted from commencing or continuing with
mining operations on the properties until and unless;
4.1. authorisation
has been granted in terms of LUPO for the land in question to be
used for mining.
4.2. an
environmental authorisation has been granted in terms of NEMA for
the carrying out of the activity identified in item
20 of Government
Notice R386 of 21 April 2006 on the land in question.
5.
The
first respondent is interdicted from commencing or continuing
with
mining operations on erf 9889, Mitchell's Plain; erf 1848,
Schaapkraal; and erf 1210, Mitchell's Plain until and unless an
environmental authorisation has been granted in tenns of NEMA for
the carrying out of the activity identified in item 12 of Government
Notice R386 of
21
April 2006 on the land in question.
6. The
costs of this application are to be paid by first and second
respondents, jointly and severally with one another, including
the
costs of two counsel.
DAVIS,
J
I
agree
BAARTMAN,
J