About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2011
>>
[2011] ZASCA 142
|
|
Louw NO and Others v Swartland Municipality (650/2010) [2011] ZASCA 142 (23 September 2011)
Links to summary
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case no: 650/2010
In the matter between:
HUGO WIEHAHN LOUW N.O.
….........................................................
First
Appellant
CORNELIA JOHANNA ELIZABETH LOUW
N.O.
…......................
Second
Appellant
IGNATIUS VILJOEN N.O.
…...............................................................
Third
Appellant
IZAK BARTHOLOMEAS VAN DER VYFER
N.O.
…........................
Fourth
Appellant
ELSANA QUARRY (PTY) LIMITED
….................................................
Fifth
Appellant
MINISTER OF MINERAL RESOURCES
….........................................
Sixth
Appellant
and
SWARTLAND MUNICIPALITY
….............................................................
Respondent
Neutral
citation:
Louw NO v Swartland
Municipality
(650/10)
[2011] ZASCA 142
(23 September 2011)
Coram:
HARMS AP, CLOETE,
SHONGWE and WALLIS JJA and PLASKET AJA
Heard:
16 August 2011
Delivered:
23 September 2011
Summary:
Mining and municipal
planning – whether holder of mining right 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)
ORDER
On appeal from:
Western Cape
High Court, Cape Town (Le Grange J sitting as court of first
instance):
(a) The appeal is dismissed.
(b) The sixth appellant is ordered to
pay the respondent’s costs, including the costs of two counsel,
jointly and severally
with the first to fourth respondents and the
fifth respondent.
JUDGMENT
PLASKET AJA (HARMS AP, CLOETE, SHONGWE
and WALLIS JJA concurring)
[1] This appeal
from the Western Cape High Court, Cape Town concerns a single issue.
It is whether the grant of a mining right issued
by the Minister of
Mineral Resources in terms of s 23 of the Minerals and Petroleum
Resources Development Act 28 of 2002 (the MPRDA)
entitles the holder
of that right to undertake mining operations without obtaining
authorisation in terms of the Land Use Planning
Ordinance 15 of 1985
(C) (LUPO). This ordinance, operative in the provinces that formerly
comprised the province of the Cape of
Good Hope, empowers
municipalities to determine and enforce the use to which land in
their areas of jurisdiction may be put. Le
Grange J found that LUPO
applied in these circumstances.
1
The appeal against
that decision is with his leave.
[2] The material facts are not in
dispute. The first to fourth appellants are the trustees of the Hugo
Louw Trust which owns the
farm Lange Kloof near Malmesbury within the
area of jurisdiction of the respondent, the Swartland Municipality.
The fifth appellant
(Elsana) is the holder of a mining right issued
in terms of s 23(1) of the MPRDA by the sixth respondent, the
Minister of Mineral
Resources, authorising it to mine granite on
Lange Kloof.
[3] In terms of
LUPO, Lange Kloof was and is zoned ‘agricultural 1’ which
means that the land may be used for the cultivation
of crops or
plants, the breeding of animals or be left as natural veld.
2
[4] On 30 May 2008,
the Hugo Louw Trust gave its consent to Elsana to mine granite on
Lange Kloof. On 3 June 2008 an application
was made to the Swartland
Municipality for the rezoning of the land from ‘agricultural I’
to ‘industrial III’
(which includes mining as a use)
3
for the purpose of
establishing a ‘granite quarry subject to the issuing of a
mining right’ in terms of the MPRDA.
[5] The rezoning application was made
on the assumption that a rezoning in terms of LUPO was necessary
before mining operations
could commence. Having been advised later by
the Department of Mineral Resources that ‘the granting of
mining rights and
the control over mining activities was the
exclusive preserve of national government’ as represented by
the Department, Elsana
withdrew the rezoning application before it
was considered by the Swartland Municipality.
[6] On 17 February 2009 the Minister
granted Elsana a mining right, authorising it to mine granite for 30
years on Lange Kloof.
It commenced its preparations for its mining
operations. In June 2009 the Municipal Manager of the Swartland
Municipality wrote
to the Hugo Louw Trust to say that it had come to
the attention of the municipality that Lange Kloof was being prepared
for mining.
He said that this was not authorised as the land was
zoned for agricultural use. The trust was requested to cease its
unlawful
activities and, instead, to apply to the municipality for a
rezoning that would allow for the mining operations to proceed.
[7] The trust’s attorneys wrote
to the municipality to inform it that Elsana had been granted a
mining right in terms of s
23(1) of the MPRDA, that its mining
operations were being conducted on the strength of this mining right
and that the demand that
mining operations should cease had ‘no
basis in law’. On 9 July 2009, the municipality launched an
urgent application
against the trustees of the trust, Elsana and the
Minister to interdict mining operations on Lange Kloof until it had
been rezoned
in terms of LUPO to permit mining.
[8] On 21 December 2009, Le Grange J
made an order in the following terms:
‘
(a)
The first to fourth respondents, in their capacity as trustees of the
Hugo Louw Familie Trust, and fifth respondent, are interdicted
and
restrained from conducting mining activities and/or permitting others
to conduct mining activities on the immovable property
described as
the remainder of the Lange Kloof farm, No 701, Malmesbury Division,
Western Cape Province, unless and until the said
immovable property
is rezoned from Agricultural I to Industrial III, or any such other
rezoning which permits mining activities.
(b)
The first to sixth respondents to pay the costs of this application,
jointly and severally, including the costs occasioned by
the
employment of two counsel.’
[9] Le Grange J found that the MPRDA
and LUPO regulated different undertakings – mining, on the one
hand, and land use planning,
on the other – and that there was
no conflict between the two that required resolution: once a person
has been granted a
mining right, he or she can only begin mining
operations if mining is permitted as a land use in terms of LUPO.
[10] Shortly before this appeal was to
be heard, the trustees of the trust and Elsana withdrew their appeal
and tendered the costs
of the Swartland Municipality. The Minister
persisted with the appeal.
[11] This appeal
was argued together with a similar matter,
Maccsand
v City of Cape Town
.
4
As that judgment
determines the outcome of this appeal, I do not intend to set out the
reasoning in any detail. Suffice it to say
that for the reasons set
out from paragraphs [10] to [35] of the
Maccsand
judgment this court
concluded that the MPRDA does not concern itself with land use
planning and the Minister, when she considers
the grant of a mining
permit, does not, and probably may not, take into account such
matters as a municipality’s integrated
development plan or its
scheme regulations. As a result, the MPRDA does not provide a
surrogate municipal planning function in
place of LUPO and does not
purport to do so. Its concern is mining, not municipal planning.
[12] LUPO thus operates alongside the
MPRDA with the result that once a person has been granted a mining
right in terms of s 23
of the MPRDA he or she will not be able to
commence mining operations in terms of that right unless LUPO allows
for that use of
the land in question.
[13] The appeal in this matter must
accordingly fail. As stated above, the first to fifth respondents
withdrew their appeal and
tendered costs. The Minister persisted with
the appeal. There is no reason why costs should not follow the
result.
[14] The following order is made:
(a) The appeal is dismissed.
(b) The sixth appellant is ordered to
pay the respondent’s costs, including the costs of two counsel,
jointly and severally
with the first to fourth respondents and the
fifth respondent.
_____________________
C. Plasket
Acting Judge of Appeal
APPEARANCES
Sixth appellant: MM Oosthuizen SC
(with him K Warner)
Instructed by:
State Attorney, Cape Town
State Attorney, Bloemfontein
Respondent: J Newdigate SC (with him P
Vivier)
Instructed by:
Terblanche Slabber Pieters, Cape Town
Hill, McHardy and Herbst, Bloemfontein
1
Swartland
Municipality v Louw NO & others
2010
(5) SA 314
(WCC).
2
See
Scheme Regulations made in terms of s 8 of LUPO s 1.0 (definition of
‘agriculture’).
3
See
Table B of the Scheme Regulations made in terms of s 8 of LUPO.
4
Maccsand
v City of Cape Town
(709/2010;
746/2010)
[2011] ZASCA 141
(23 September 2011).