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[2011] ZASCA 141
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Maccsand (Pty) Ltd v City of Cape Town and Others (SCA) [2011] ZASCA 141; 2011 (6) SA 633 (SCA); [2011] 4 All SA 601 (SCA) (23 September 2011)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case nos: 709/2010 &746/10
In the matter between
:
MACCSAND (PTY) LTD
….........................................................................
First
Appellant
MINISTER OF MINERAL RESOURCES
…...........................................
Second
Appellant
and
CITY OF CAPE TOWN
….......................................................................
First
Respondent
NATIONAL MINISTER OF WATER AFFAIRS
AND ENVIRONMENT
…...................................................................
Second
Respondent
MINISTER OF LOCAL GOVERNMENT,
ENVIRONMENTAL AFFAIRS AND
DEVELOPMENT
PLANNING, WESTERN CAPE PROVINCE
…...................................
Fourth
Respondent
MINISTER OF RURAL DEVELOPMENT AND
LAND REFORM
….................................................................................
Fifth
Respondent
THE CHAMBER OF MINES OF SOUTH
AFRICA Amicus curiae
Neutral
citation:
Maccsand v City of Cape Town
(709/10;
746/10) [2011] ZASCA 141 (23 September 2011)
Coram:
HARMS AP, CLOETE,
SHONGWE and WALLIS JJA and PLASKET AJA
Heard:
16 August 2011
Delivered:
23 September 2011
Summary:
Mining, municipal
planning and environmental management – whether holder of
mining right or mining permit in terms of Minerals
and Petroleum
Resources Development Act 28 of 2002 also requires land use planning
authorisation in terms of Land Use Planning
Ordinance 15 of 1985 (C)
– whether holder of mining right or mining permit also obliged
to apply for environmental authorisation
to conduct activities listed
in terms of
National Environmental Management Act 107 of 1998
ORDER
On appeal from:
Western Cape
High Court, Cape Town (Davis and Baartman JJ sitting as court of
first instance):
(a) The appeal is upheld to the extent
that paragraphs 2, 3, 4.2 and 5 of the order of the court below are
set aside.
(b) Each party, including the
amicus
curiae
, shall bear its own costs.
JUDGMENT
PLASKET AJA (HARMS AP, CLOETE, SHONGWE
and WALLIS JJA concurring)
[1] This appeal
from the Western Cape High Court, Cape Town concerns two issues. The
first is whether the grant of a mining right
or a mining permit
issued by the Minister of Mineral Resources in terms of
s 23
and s 27
of the Minerals and Petroleum Resources Development Act 28 of 2002
(the MPRDA) entitles the holder of the right or permit
to undertake
mining operations without obtaining authorisation in terms of the
Land Use Planning Ordinance 15 of 1985 (C) (LUPO),
which empowers
municipalities to determine and enforce the use to which land in
their areas of jurisdiction may be put. The second
issue is whether
such a holder is precluded from commencing or continuing with its
mining operations without first obtaining environmental
authorisations in terms of the National Environmental Management Act
107 of 1998 (NEMA) in respect of activities listed under s
24(2)(a)
of NEMA. Davis J (with whom Baartman J concurred) found that both
LUPO and NEMA applied to mining operations.
1
The appeal against
both of these findings is with the leave of the court below.
The facts
[2] The material
facts are not in dispute. The first appellant (Maccsand) was
authorised by a mining right issued to it by the second
appellant,
the Minister of Mineral Resources (the Minister) in terms of s 23(1)
of the MPRDA and a mining permit issued to it in
terms of s 27 of the
MPRDA to mine sand on two pieces of land, the Westridge dune and the
Rocklands dune, situated in Mitchell’s
Plain and owned by the
first respondent, the City of Cape Town (the City). The Westridge
dune consists of three erven,
2
one of which was
zoned as rural and two as public open space in terms of LUPO. The
Rocklands dune was zoned as public open space.
[3] The Westridge dune’s mining
area is 16.3 hectares in extent although its total area is 74.2
hectares. It is situated in
a residential area. It is abutted on
three sides by private homes and by vacant land on the fourth side.
The mining right authorised
mining for a period of nine years. The
Rocklands dune is 3.643 hectares in extent but the proposed mining
area is 1.5 hectares
in extent. It too is situated in a residential
area. It abuts private homes and lies between two schools. The mining
right authorised
mining for a period of two years, which could be
renewed for a maximum of a further three years.
[4] While Maccsand asserted that it
was entitled to mine without further authority, the City insisted
that it could not do so without
obtaining a consent use in respect of
the Rocklands dune and a departure from the restrictions imposed by
the zoning scheme in
respect of the Westridge dune. Without having
attempted to do so, Maccsand began to mine the Rocklands dune. The
City launched
an application for an interdict to stop this mining. An
interim order was duly granted and the City then amended its notice
of
motion to include orders for relief in terms of NEMA as well.
[5] The City’s attorneys sought
an undertaking from Maccsand that it would not mine the Westridge
dune without the necessary
authorisations required by LUPO and NEMA.
When no undertaking was furnished, the City launched a second
application to interdict
the mining of this dune as well. The matters
were later consolidated. During the course of the litigation the
fourth respondent,
the Minister of Local Government, Environmental
Affairs and Development Planning, Western Cape Province was joined as
a party.
He made common cause with the City.
[6] In due course, the consolidated
applications were argued and the court below issued an order in the
following terms:
‘
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
terms 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 R386 of 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 R386 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:
authorisation
has been granted in terms of LUPO for the land in question to be
used for mining;
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
terms 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.’
[7] The court below held in respect of
the LUPO issue that the argument that the MPRDA excluded the
application of LUPO was flawed
because it undermined the division of
powers envisaged by the Constitution and would have the effect of
eradicating a municipality’s
planning function whenever a
national competence impacted on land use. It was accordingly held
that in the absence of a constitutionally
permissible override, which
was absent, LUPO applied. In respect of the NEMA issue, the court
below held that even though a great
deal of NEMA has been
incorporated into the MPRDA, this did not have the effect of ousting
the obligation placed on Maccsand by
s 24 of NEMA to obtain
environmental authorisations where its mining activities involved
listed activities.
[8] It was argued
by Maccsand and the Minister that there is no need for a person to
whom a mining right or mining permit has been
issued to possess or
obtain the necessary land use authorisation in terms of LUPO. The
submission was made that the MPRDA, being
legislation concerned with
a competence vested in the national sphere of government, prevails
over LUPO to the extent that the
two conflict. They also contended
that LUPO is not a ‘relevant law’ in terms of s 23(6) of
the MPRDA and therefore
that the holder of a mining right is not
required to comply with it. It was also argued by them and the
Chamber of Mines, which
was admitted as
amicus
curiae
, that the MPRDA incorporates
aspects of NEMA in order to give effect to s 24 of the Constitution
in the context of mining and that
the aspects that it does not
incorporate do not apply to mining.
[9] The City and the Minister of Local
Government, Environmental Affairs and Development Planning of the
Western Cape Provincial
Government argued that the MPRDA does not
deal with land use planning and consequently there is no conflict
between the MPRDA and
LUPO. They contended that if the MPRDA were to
be interpreted as being in conflict with LUPO, the MPRDA would be
unconstitutional
to that extent because municipal planning is an
executive competence that is vested exclusively in the local sphere
of government.
Lastly, they argued that LUPO is indeed a relevant law
for purposes of the MPRDA and that provisions of NEMA that were not
directly
incorporated into the MPRDA nonetheless apply to mining.
The LUPO issue
[10] The
Constitution devolves governmental powers in various ways. Not only
does it separate powers between the legislative, executive
and
judicial arms of government
3
but it also divides
legislative and executive powers among three spheres of government.
It does this in s 40(1) which provides:
‘
In
the Republic, government is constituted as national, provincial and
local spheres of government which are distinctive, interdependent
and
interrelated.’
[11] This division
of power represents a significant change from the hierarchical
structure of government that existed under the
pre-1994 constitutions
in which the national legislature was sovereign and all-powerful, and
provincial and local government exercised
only those powers that had
been allocated to them by the sovereign legislature. Now the position
is different.
4
As Ngcobo J held in
Doctors
for Life International v Speaker of the National Assembly &
others
5
the ‘basic
structure of our government consists of a partnership’ between
the three spheres of government, oiled by
the principles of
co-operative government. These principles require, inter alia, that
the various spheres of government ‘exercise
their powers and
functions in a manner that does not encroach on the geographical,
functional or institutional integrity of government
in another
sphere’.
6
[12] Once
governmental power is divided in this way, it becomes necessary to
allocate powers to each sphere of government. The Constitution
achieves this by s 44 (national legislative competence); s 85(2)
(national executive competence); s 104(1) (provincial
legislative competence); s 125(2) (provincial executive competence);
and ss 156(1) and (2) (local executive and legislative competence).
Schedule 4 of the Constitution lists functional areas of concurrent
national and provincial legislative competence and Schedule
5 lists
functional areas of exclusive provincial legislative competence.
7
In this way powers
are distributed among, and in some cases reserved, to each sphere of
government. A necessary corollary of this
is that one sphere may not
usurp the functions of another, although intervention by one sphere
in the affairs of another is permitted
in limited circumstances.
8
In addition
deadlock-breaking measures are in place for instances when
legislation originating from different spheres conflicts;
9
and the idea of
cooperative government includes dispute resolution provisions so that
inter-governmental disputes may be resolved
without litigation.
10
[13] In this
scheme, how are national legislative competences to be identified? In
Ex
Parte President of the Republic of South Africa: In Re
Constitutionality of the Liquor Bill
11
Cameron AJ set out
the approach thus:
‘
By
contrast with Schedule 5, the Constitution contains no express
itemisation of the exclusive competences of the national Legislature.
These may be gleaned from individual provisions requiring or
authorising “national legislation” regarding specific
matters. They may also be derived by converse inference from the fact
that specific concurrent and exclusive legislative competences
are
conferred upon the provinces, read together with the residual power
of the national Parliament, in terms of s 44(1)(a)(ii),
to pass
legislation with regard to “any matter”. This is subject
only to the exclusive competences of Schedule 5 which
are in turn
subordinated to the “override” provision in s 44(2). An
obvious instance of exclusive national legislative
competence to
which the Constitution makes no express allusion is foreign affairs.’
[14] Applying this
approach, it is clear that the regulation of mining is an exclusive
national legislative competence and that
the administration of the
MPRDA is vested in the national executive. Mining is not mentioned in
either Schedule 4 or 5 and so,
by ‘converse inference’ it
is a legislative competence that falls within the scope of the term
‘any matter’
as contemplated by s 44(1)(a)(ii) of the
Constitution;
12
and the MPRDA
itself vests its administration in the Minister of Mineral Resources
and her officials within the national executive
sphere of government.
[15] The ‘national character’
of the MPRDA is evident from its objects, set out in s 2, which are
of such a nature that
the vesting of both legislative and executive
competence in the national sphere of government is appropriate.
Section 2 provides:
‘
The
objects of this Act are to –
(a)
recognise the internationally accepted right of the State to exercise
sovereignty over all the mineral and petroleum resources
within the
Republic;
(b)
give effect to the principle of the State's custodianship of the
nation's mineral and petroleum resources;
(c)
promote equitable access to the nation's mineral and petroleum
resources to all the people of South Africa;
(d)
substantially and meaningfully expand opportunities for historically
disadvantaged persons, including women, to enter the mineral
and
petroleum industries and to benefit from the exploitation of the
nation's mineral and petroleum resources;
(e)
promote economic growth and mineral and petroleum resources
development in the Republic;
(f)
promote employment and advance the social and economic welfare of all
South Africans;
(g)
provide for security of tenure in respect of prospecting,
exploration, mining and production operations;
(h)
give effect to section 24 of the Constitution by ensuring that the
nation's mineral and petroleum resources are developed in
an orderly
and ecologically sustainable manner while promoting justifiable
social and economic development; and
(i)
ensure that holders of mining and production rights contribute
towards the socio-economic development of the areas in which
they are
operating.’
[16] LUPO differs
from the MPRDA in at least two respects. First, it is ‘old
order legislation’ in that it is ‘legislation
enacted
before the 1993 Constitution took effect’.
13
It continues in
force subject to amendment or repeal and consistency with the
Constitution.
14
While it may not
have a wider effect than it had before the 1993 Constitution took
effect, it ‘continues to be administered
by the authorities
that administered it when the new Constitution took effect, subject
to the new Constitution’.
15
Secondly, having
been promulgated by the erstwhile Administrator of the Cape of Good
Hope for that province prior to April 1994,
and the administration
thereof having since been assigned to the province of the Western
Cape in June 1994, as well as to other
provinces that made up the
erstwhile Cape of Good Hope, LUPO is provincial legislation for
purposes of the Constitution. Similar
provincial legislation is in
place in the rest of the country.
16
[17] In terms of
LUPO, powers are granted to municipalities to regulate land use in
their areas of jurisdiction, subject to oversight
by the provincial
government. So, every municipality is empowered to prepare structure
plans ‘in respect of the land situated
in its area of
jurisdiction’,
17
the purpose of
which is to ‘lay down guidelines for the future spatial
development of the area to which it relates (including
urban renewal,
urban design or the preparation of development plans) in such a way
as will effectively promote the order of the
area as well as the
general welfare of the community concerned’.
18
A structure plan
may ‘authorise rezoning in accordance with such structure plan
by a [municipal] council’.
19
[18] Furthermore,
while the Premier of the Western Cape is empowered to make scheme
regulations
20
in order to effect
control over zoning, such scheme regulations ‘may authorise the
granting of departures and sub-divisions
by a council’.
21
The purpose of a
zoning scheme in general terms is 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’.
22
[19] Applications
for amendments to land use restrictions applicable to a property or
for the temporary use of a property for a
use for which no provision
has been made in the scheme regulations are directed to ‘the
town clerk or secretary’ of
a municipality and if a municipal
council has been authorised to do so, it may grant or refuse such an
application. (If it has
not been so authorised, the Premier takes the
decision.)
23
Similarly, a
municipal council may, if authorised to do so by a structure plan,
grant or refuse applications by the owner of land
for its rezoning.
24
[20] These powers
must be seen in a broader context, namely the obligation placed on
every municipality in terms of
s 25(1)
of the
Local Government:
Municipal Systems Act 32 of 2000
to adopt an integrated development
plan which is required to reflect, inter alia, ‘a spatial
development framework which
must include the provision of basic
guidelines for a land use management system for the municipality’.
25
In terms of
s
35(1)(a)
the integrated development plan ‘is the principal
strategic planning instrument which guides and informs all planning
and
development, and all decisions with regard to planning,
management and development, in the municipality’.
[21] From the above
it can be seen that municipalities play a central role in land use
planning in their areas of jurisdiction.
It is, no doubt, appropriate
for them to do so given their knowledge of local conditions and their
intimate link with the local
electorate whose interests they
represent. The importance of this planning function was commented on
by Rogers AJ in
Intercape
Ferreira Mainliner (Pty) Ltd & others v Minister of Home Affairs
& others
26
when he said that
land use contrary to LUPO would frustrate the very purpose of town
planning and, even if the disregard of LUPO
was relatively minor,
‘the character of the area and the welfare of the members of
the community in that area would be jeopardised
and the planning
objectives of the local authority . . . frustrated’.
[22] I turn now to
consider the constitutional position of municipalities and the powers
and functions that are vested in them by
the Constitution. A
municipality under the present constitutional dispensation ‘is
not a mere creature of statute, otherwise
moribund, save if imbued
with power by provincial or national legislation’ but an organ
of state that ‘enjoys “original”
and
constitutionally entrenched powers, functions, rights and duties that
may be qualified or constrained by law and only to the
extent the
Constitution permits’.
27
[23] Section 151 of the Constitution
concerns itself with the status of municipalities. It provides:
‘
(1)
The local sphere of government consists of municipalities, which must
be established for the whole of the territory of the Republic.
(2)
The executive and legislative authority of a municipality is vested
in its Municipal Council.
(3)
A municipality has the right to govern, on its own initiative, the
local government affairs of its community, subject to national
and
provincial legislation, as provided for in the Constitution.
(4)
The national or a provincial government may not compromise or impede
a municipality's ability or right to exercise its powers
or perform
its functions.’
[24] Section 152(1)
lists a number of objects of local government. They include the
provision of democratic and accountable government
at local level,
28
the promotion of
social and economic development
29
and the promotion
of a safe and healthy environment.
30
Section 155(6)
places an obligation on a province to take steps ‘by
legislative or other means’ to ‘provide for
the
monitoring and support of local government in the province’ and
to ‘promote the development of local government
capacity to
enable municipalities to perform their functions and manage their own
affairs’. Section 155(7) provides that
both the national
government (subject to s 44) and provincial governments ‘have
the legislative and executive authority to
see to the effective
performance by municipalities of their functions in respect of
matters listed in Schedules 4 and 5, by regulating
the exercise by
municipalities of their executive authority referred to in section
156(1)’.
[25] Section 156(1), in turn,
provides:
‘
A
municipality has executive authority in respect of, and has the right
to administer –
the
local government matters listed in Part B of Schedule 4 and Part B
of Schedule 5; and
any
other matter assigned to it by national or provincial legislation.’
Section 152(2) empowers municipalities
to legislate in order to administer effectively those matters which
they may administer.
One of the matters that is listed in Part B of
Schedule 4 as a matter over which municipalities have executive
authority and powers
of administration is municipal planning.
[26] The effect of
s 152, when read with Part B of Schedule 4, on the competences of the
various spheres of government was summarised
thus by Nugent JA in
Gauteng
Development Tribunal
:
31
‘
It
will be apparent, then, that, while national and provincial
government may legislate in respect of the functional areas in
Schedule
4, including those in Part B of that schedule, the executive
authority over, and administration of, those functional areas is
constitutionally
reserved to municipalities. Legislation, whether
national or provincial, that purports to confer those powers upon a
body other
than a municipality will be constitutionally invalid. None
of that is controversial.’
[27] What remains
to be determined in respect of this aspect of the case is the meaning
of the term ‘municipal planning’
in Part B of Schedule 4.
Once again, the answer is provided by Nugent JA in
Gauteng
Development Board
:
32
‘
It
is clear that the word “planning”, when used in the
context of municipal affairs, is commonly understood to refer
to the
control and regulation of land use, and I have no doubt that it was
used in the Constitution with that common usage in mind.
The prefix
“municipal” does no more than to confine it to municipal
affairs.’
[28] This
interpretation is consistent with what Yacoob J, albeit in a minority
judgment, held planning legislation to be in
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd & another
33
namely ‘legislation
concerning zoning and subdivision of land’. Nugent JA’s
interpretation of municipal planning
was, furthermore, held to be
correct by Jafta J in
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal &
others
34
when he said:
‘
Returning
to the meaning of “municipal planning”, the term is not
defined in the Constitution. 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.’
[29] It was argued by Maccsand and the
Minister that the MPRDA vests in the national executive sphere of
government, as a necessary
component of the power to regulate mining
in the national interest, the power to determine mining-related land
use rights, and
that consequently there is no room for the land use
planning regime of LUPO in respect of mining. If this argument is
correct it
raises the spectre of the MPRDA being in conflict with the
Constitution’s division of powers. The anterior question,
however,
is whether as a matter of interpretation the MPRDA does
indeed purport to determine questions of land use dealt with under
LUPO.
[30] The Minister
represents the State as custodian of the nation’s mineral and
petroleum resources and, in this capacity,
is empowered to ‘grant,
issue, refuse, control, administer and manage any reconnaissance
permission, prospecting right, permission
to remove, mining right,
mining permit, retention permit, technical co-operation permit,
reconnaissance permit, exploration right
and production right’.
35
She is, in this
capacity, obliged to ‘ensure the sustainable development of
South Africa’s mineral and petroleum resources
within a
framework of national environmental policy, norms and standards while
promoting economic and social development’.
36
[31] A person may, in terms of s 22 of
the MPRDA, apply to the Minister for a mining right. If the
application complies with the
prescribed requirements, it is placed
before the Minister for her decision. In terms of s 23(1) she ‘must’
grant a
mining right if eight factors are present and, in terms of s
23(3), she must refuse to grant it if ‘the application does not
meet all the requirements referred to in subsection (1)’. Those
requirements are:
‘
(a)
the mineral can be mined optimally in accordance with the mining work
programme;
(b)
the applicant has access to financial resources and has the technical
ability to conduct the proposed mining operation optimally;
(c)
the financing plan is compatible with the intended mining operation
and the duration thereof;
(d)
the mining will not result in unacceptable pollution, ecological
degradation or damage to the environment;
(e)
the applicant has provided financially and otherwise for the
prescribed social and labour plan;
(f)
the applicant has the ability to comply with the relevant provisions
of the Mine Health and Safety Act, 1996 (Act 29 of 1996);
(g)
the applicant is not in contravention of any provision of this Act;
and
(h)
the granting of such right will further the objects referred to in
section 2 (d) and (f) and in accordance with the charter
contemplated
in section 100 and the prescribed social and labour plan.’
[32] Section 27
deals with applications for mining permits. Such a permit may only be
issued if two requirements are met. They are
that ‘the mineral
in question can be mined optimally within a period of two years’
and that ‘the mining area
in question does not exceed 1.5
hectares in extent’.
37
Section 27(6)
provides that the Minister must issue the mining permit if these
requirements are met and an environmental management
plan has been
submitted by the applicant.
[33] It is clear,
in my view, from a reading of s 23 and s 27 that not one of the
considerations that the Minister is required to
take into account is
concerned with municipal planning. She does not have to, and probably
may not, take into account a municipality’s
integrated
development plan or its scheme regulations.
38
She will not
consider and probably will not even have the information available to
her as to the current use of land, much less
the municipality’s
views on how the issue of a mining right or mining permit may impact
on the inhabitants and on its future
plans. As a result, it cannot be
said that the MPRDA provides a surrogate municipal planning function
that displaces LUPO and it
does not purport to do so. Its concern is
mining, not municipal planning. That being so, LUPO continues to
operate alongside the
MPRDA. Once a mining right or mining permit has
been issued, the successful applicant will not be able to mine unless
LUPO allows
for that use of the land in question.
[34] It was argued
by Maccsand and the Minister that this results in a duplication of
administrative functions that cannot have
been intended. The short
answer is that I have found that the MPRDA and LUPO are directed at
different ends and therefore there
is no duplication. In any event,
for as long as the Constitution reserves the administration of
municipal planning functions as
an exclusive competence of local
government, a successful applicant for a mining right or a mining
permit will also have to comply
with LUPO in the provinces in which
it operates. The authority to mine granted by the Minister after
taking into account mining-related
considerations is ‘logically
anterior to the procurement of consents that may be necessary for its
execution’, to borrow
a phrase from
Minister
of Public Works & others v Kyalami Ridge Environmental
Association & another (Mukhwevho Intervening)
.
39
In any event, as
the cases (including the
Kyalami
Ridge
case)
demonstrate, dual authorisations by different administrators, serving
different purposes, are not unknown, and not objectionable
in
principle – even if this results in one of the administrators
having what amounts to a veto.
40
In
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd & another
,
41
Kroon AJ made the
point that there is no reason why ‘two spheres of control
cannot co-exist’ and that where, as in that
case and this case,
one operates from ‘a municipal perspective and the other from a
national perspective’ they each
apply their own ‘constitutional
and policy considerations’.
42
[35] In the result, the LUPO issue
must be decided against Maccsand and the Minister and in favour of
the City and the Minister
of Local Government, Environmental Affairs
and Development Planning in the Western Cape. That means that the
appeal must fail in
respect of paragraphs 1 and 4.1 of the order
issued by the court below.
The NEMA issue
[36] In the court
below it was declared that Maccsand was not entitled to commence or
continue its mining operations until and unless
an environmental
authorisation had been granted in terms of NEMA for the carrying out
of the activities listed as item 20 (in respect
of all four erven)
and item 12 (in respect of the Westridge dune) in Government Notice
R386 promulgated in
Government
Gazette
28753
of 21 April 2006. Interdicts to this effect were also granted.
[37] It is
unnecessary to examine the legislative scheme of NEMA because on 2
August 2010 Government Notice R386 was repealed in
its entirety.
43
That meant that
items 20 and 12 of the listings were no longer in operation and could
not be contravened in the future. This rendered
the prayers for the
interdicts redundant and the declarators academic. While the matter
had been argued over a number of days in
April 2010, the judgment of
the court below was handed down on 20 August 2010, with the court
obviously not having been informed
of the repeal. That being so, the
interdicts in respect of items 20 and 12 of Government Notice R386
could not validly have been
issued and the declarators were made in
the erroneous belief that the listing notices were current. There was
thus no reason for
the declarators to have been made in the absence
of a live, concrete dispute, and they served no purpose. The appeal
must therefore
succeed to the extent that prayers 2, 3, 4.2 and 5 of
the court below’s order must be set aside.
[38] The repeal of Government Notice
R386 appears to be part of a wider, continuing process of amendment
of NEMA and its subordinate
legislation that is aimed, it would seem,
at rationalising environmental regulation generally and in relation
to the specific undertaking
of mining. Argument was addressed to us
on the effect of the amendments that have been effected, including
amendments that have
yet to be brought into force. We were asked to
give guidance by way of declaratory relief on the relationship
between the MPRDA
and NEMA.
[39] I decline to
accede to the request. The proper approach to this issue was set out
by Corbett CJ in
Shoba
v Officer Commanding, Temporary Police Camp, Wagendrift Dam &
another; Maphanga v Officer Commanding, South African Police
Murder
and Robbery Unit, Pietermaritzburg & another
44
when he said:
‘
Generally
speaking, the Courts will not, in terms of s 19(1)(a)(iii) [of the
Supreme Court Act 59 of 1959], deal with or pronounce
upon abstract
or academic points of law. An existing or concrete dispute between
persons is not a prerequisite for the exercise
by the Court of its
jurisdiction under this subsection, though the absence of such a
dispute may, depending on the circumstances,
cause the Court to
refuse to exercise its jurisdiction in a particular case. . . . But
because it is not the function of the Court
to act as an advisor, it
is a requirement of the exercise of jurisdiction under this
subsection that there should be interested
parties upon whom the
declaratory order would be binding.’
It is not clear to me that any of the
parties have the type of interest required by s 19(1)(a)(iii) in the
dispute on which we are
requested to give advice. If I am incorrect,
however, I am nonetheless of the view that the hypothetical nature of
the dispute
entitles us to refuse to engage with it.
Costs
[40] In the court
below, the City achieved substantial success even though it was not
entitled to the relief concerning NEMA. As
a result, its costs ought
to be borne by Maccsand and the Minister of Mineral Resources. In
this court, Maccsand and the Minister
of Mineral Resources succeeded
in part in that, while they lost the LUPO issue, they won the NEMA
issue. I would not classify this
as substantial success because the
City and the Province were equally successful. I am of the view that
because of the success
each of the parties has achieved on appeal,
they should bear their own costs. The Chamber of Mines, as
amicus
curiae
,
and the Minister of Local Government, Environmental Affairs and
Development Planning, Western Cape Government should also bear
their
own costs.
The order
[41] The following order is made:
(a) The appeal is upheld to the extent
that paragraphs 2, 3, 4.2 and 5 of the order of the court below are
set aside.
(b) Each party, including the
amicus
curiae
, shall bear its own costs.
_____________________
C. Plasket
Acting Judge of Appeal
APPEARANCES
First appellant: L Rose-Innes SC (with
him N Bawa)
Instructed by:
Cliffe Dekker Hofmeyr Inc, Cape Town
Claude Reid Inc, Bloemfontein
Second appellant: MM Oosthuizen SC
(with him K Warner)
Instructed by:
State Attorney, Cape Town
State Attorney, Bloemfontein
First respondent: G Budlender SC (with
him E Van Huysteen)
Instructed by:
Cullinan and Associates, Cape Town
Barbara Cordiers Attorneys,
Bloemfontein
Fourth respondent: AM Breitenbach SC
(with him R Paschke)
Instructed by:
Werksmans, Paarl
Naudes, Bloemfontein
Amicus Curiae
: SJ Grobler SC
(with him P Lazarus)
Instructed by:
Deneys Reitz, Johannesburg
Webbers, Bloemfontein
1
City
of Cape Town v Maccsand (Pty) Ltd & others
2010 (6) SA 63
(WCC).
2
The
three erven are erf 9889, Mitchell’s Plain, erf 1848,
Schaapkraal and erf 1210, Mitchell’s Plain. The Rocklands
dune
is erf 13625, Mitchell’s Plain.
3
South
African Association of Personal Injury Lawyers v Heath & others
[2000] ZACC 22
;
2001 (1) SA 883
(CC) para 22.
4
Fedsure
Life Assurance Ltd & others v Greater Johannesburg Transitional
Metropolitan Council & others
[1998] ZACC 17
;
1999
(1) SA 374
(CC) paras 26-40;
Johannesburg
Municipality v Gauteng Development Tribunal & others
2010 (2) SA 554
(SCA) para 24.
5
Doctors
for Life International v Speaker of the National Assembly &
others
[2006] ZACC 11
;
2006
(6) SA 416
(CC) para 82.
6
Ex
Parte Chairperson of the Constitutional Assembly: In Re
Certification of the Constitution of the Republic of South Africa,
[1996] ZACC 26
;
1996
1996
(4) SA 744
(CC) para 289;
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal &
others
2010
(6) SA 182
(CC) para 43. See too, Constitution s 41(1)(g).
7
See
Johannesburg
Municipality v Gauteng Development Tribunal & others
(note 4) paras
25-26.
8
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal &
others
(note
6) para 44; Constitution s 100 and s 139.
9
Constitution
s 146-150.
10
Constitution
s 41(2), (3) and (4).
11
Ex
Parte President of the Republic of South Africa: In Re
Constitutionality of the Liquor Bill
[1999] ZACC 15
;
2000
(1) SA 732
(CC) para 46.
12
Section
44(1)(a)(ii) provides:
‘
The
national legislative authority as vested in Parliament –
confers on the National
Assembly the power –
. . .
to
pass legislation with regard to any matter, including a matter
within a functional area listed in Schedule 4, but excluding,
subject to subsection (2), a matter within a functional area listed
in Schedule 5 . . . .’
13
Constitution
Schedule 6, item 1.
14
Constitution
Schedule 6, item 2(1).
15
Constitution
Schedule 6, item 2(2).
16
Townships
Ordinance 9 of 1969 (Orange Free State); Town Planning Ordinance 27
of 1949 (Natal); Town Planning and Townships Ordinance
15 of 1986
(Transvaal). See
Johannesburg
Municipality v Gauteng Development Tribunal & others
(note 4) para 5.
17
LUPO
s 4(1).
18
LUPO
s 5(1).
19
LUPO
s 5(2).
20
LUPO
s 9(2).
21
LUPO
s 9(1).
22
LUPO
s 11. See too
Walele
v City of Cape Town & others
[2008] ZACC 11
;
2008
(6) SA 129
(CC) paras 129-131.
23
LUPO
s 15(1).
24
LUPO
s 16(1).
25
Local
Government: Municipal Systems Act s
26(e).
26
Intercape
Ferreira Mainliner (Pty) Ltd & others v Minister of Home Affairs
& others
2010
(5) SA 367
(WCC) para 105.
27
City
of Cape Town & another v Robertson & another
[2004] ZACC 21
;
2005 (2) SA 323
(CC) para 60.
28
Constitution
s 152(1)(a).
29
Constitution
s 152(1)(c).
30
Constitution
s 152(1)(d).
31
Note
4 para 28.
32
Note
4 para 41.
33
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd & another
[2008] ZACC 12
;
2009 (1) SA 337
(CC) para 131.
34
Note
6 para 57.
35
MPRDA
s 3(2)(a).
36
MPRDA
s 3(3).
37
MPRDA
s 27(1).
38
If
the Minister take these matters into account and refuses to grant a
mining right or mining permit on that account her decision
might
well be susceptible to review on the basis of her having regard to
irrelevant considerations. See the
Promotion of Administrative
Justice Act 3 of 2000
s 6(2)(e)(iii).
39
">
39
Minister
of Public Works & others v Kyalami Ridge Environmental
Association & another (Mukhwevho Intervening)
2001 (3) SA 1151
(CC) para 59.
40
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd & another
(note 33) para 80.
41
Note
33.
42
Para
80. See too
Fuel
Retailers Association of Southern Africa v Director-General:
Environmental Management, Department of Agriculture, Conservation
and Environment, Mpumalanga Province & others
2007 (6) SA 4
(CC)
para 82.
43
Environmental
Impact Assessment Regulations Listing Notice 1 of 2010, Government
Notice R544 promulgated in
Government
Gazette
33306
of 18 June 2010 reg 4.
44
Shoba
v Officer Commanding, Temporary Police Camp, Wagendrift Dam &
another; Maphanga v Officer Commanding, South African
Police Murder
and Robbery Unit, Pietermaritzburg & another
1995 (4) SA 1
(A)
at 14F-G.