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[2014] ZAGPPHC 365
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Aquila Steel SA (Pty) Ltd v South African Steel Company (Pty) Ltd (14612/2013) [2014] ZAGPPHC 365 (30 May 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
[GAUTENG
DIVISION, PRETORIA]
CASE NUMBER:
14612/2013
DATE: 30 MAY 2014
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
AQUILA
STEEL SA (PTY)
LTD
.............................................................................................
Appl
icant
and
SOUTH AFRICAN STEEL
COMPANY (PTY)
LTD
...........................................................
Respondent
JUDGMENT
CILLIERS AJ
Introduction
[1]
This is an application by the Respondent for leave to appeal
against the judgment delivered in the main application on 14 March
2014.1 shall refer to the parties as they are cited in the main
application.
[2]
In
applications for leave to appeal the grounds of appeal should be set
out clearly and succinctly in clear and unambiguous terms
so as to
enable the
court
and the other party to be fully informed of the case the Respondent
seeks to make out.
[1]
In the
present application this was not done.
[3]
The
Respondent elected to merely list various findings that it contends
constitutes errors by the court and to list a number of
aspects that
the court, according to the Respondent, ought to have considered or
should have made findings on.
[4]
The Respondent does not furnish the reasons for the lists of
errors by the court on which it relies as the grounds of appeal in
the application for leave to appeal.
[5]
The application for leave to appeal is accordingly not an
example of clarity and the grounds raised also seem to overlap in
some
respects.
[6]
I shall deal with the grounds for the appeal with reference to
the subject- matter addressed in each of the grounds on which
reliance
is placed.
The abandoned
ground of appeal
[7]
The first issue that was raised in the notice of appeal was
that the court, so the Respondent contended, found itself unable to
agree with the reasoning of the Constitutional Court in Maccsand v
City of Cave Town
2012 (4) SA 181
(CC)
.
This ground of appeal is clearly unfounded and wrong. Mr Putter, who
appeared at the hearing of the application leave to appeal
on behalf
of the Respondent, did not persist with this ground on which reliance
was initially placed in the application.
The Town
Planning and Townships Ordinance (Tvl), 15 of 1986 as a relevant law
[8]
The following grounds of appeal seem to address the same
subject-matter:
(i)
the ground of appeal that the court erred in not considering
that section 23(6) of the Act requires the holder of the prospecting
right to comply with relevant laws;
(ii)
the ground of appeal that the finding was effectively made
that the
Town Planning and Townships Ordinance (Tvl), 15 of
1986
(“
the
Ordinance
')
is
not a relevant law;
(iii)
the ground of appeal that the court assumed that the mere
granting of a prospecting right excludes the application of the
Ordinance
resulting in the Ordinance ceasing to apply to the land in
question.
[9]
It
is settled that a holder of a mining right or a mining permit has to
comply with zoning requirements in addition to the relevant
provisions of the Mineral and Petroleum Resources Development Act, 28
of 2002 (as amended by Act 49 of 2008) (“
the
Act
”)
[2]
[10]
The Ordinance applies to the properties.
[11]
In
relation to the above I have held hat regard must be had to each
provincial ordinance to ascertain whether there is compliance
or
should be compliance with zoning requirements, because each ordinance
is different and the result of any enquiry into whether
or not land
use approval by the local authority is required will depend upon the
wording of the particular provincial legislation.
[3]
[12]
It follows that the Ordinance was clearly dealt with as
a relevant law as contemplated by the provisions of section 23(6) of
the
Act.
Land use
approval
[13]
The following grounds of appeal seem to address the same
subject-matter:
(i)
the ground of appeal that the court erred in finding
that the provisions of sections 21 and 22 of the Ordinance excludes
the “
Municipality
"
from regulating land use as far as prospecting on agricultural land
is concerned;
(ii)
the ground of appeal that the court erred in finding that,
because the land on which the prospecting takes place falls outside a
town planning scheme entitles the Applicant to exercise its
prospecting right without notification to the “
Municipality
”
;
(iii)
the ground of appeal that the court erred in finding that,
where the Applicant wants to exercise prospecting rights on
agricultural
land outside of a town planning scheme, it is
unnecessary to apply to the “
Municipality
”
for such land use;
(iv)
the ground of appeal that the court erred in finding that the
provisions of sections 21 and 22 of the Ordinance prohibits the
“
Municipality
”
from preparing a town planning scheme where the prospecting rights
are taking place outside the boundaries of the town planning
scheme;
(v)
the ground of appeal that the court erred in failing to accept
that the Act and the Ordinance have different objects and that each
does not purport to serve the purpose of the other;
(vi)
the ground of appeal that the court erred in failing to
consider the fact that prospecting cannot take place until the land
use
in question was appropriately considered by the “
Municipality
”
and therefore permissible within the constitutional order.
[14]
It does not follow' from the fact that the Ordinance is a
relevant law, as contemplated by the provisions of section 23(6) of
the
Act, that land use approval from the local authority is always
required in consequence of this fact alone.
[15]
The answer as to whether land use approval from the relevant
local authority is required in a particular set of facts will depend
on the wording of the particular provincial ordinance that applies
and the zoning requirements, if any, in relation to the property
in
question.
[16]
The Respondent did not include as a ground of appeal that the
court erred in the finding that it is clear from the provisions of
section 18 of the Ordinance that all land within the area of
jurisdiction of a local authority do not automatically form part of
a
town-planning scheme or are zoned as such.
[17]
It is common cause in the present matter that the land in
question i.e. the farms Cornwall 313 KQ and Koedoevlei 128KQ
(“
the
properties
''’)
fall outside a town-planning scheme and not within a zoning scheme in
terms of the Ordinance. Although the properties are used
as
agricultural they are not zoned as such and they do not form part of
a town-planning scheme.
[18]
The
judgment in
Maccsand (Pty) Ltd v City of Cape Town
(supra) makes it plain that the Act is concerned with mining and that
the provincial ordinances do not regulate mining. These ordinances
rather govern the control and regulation of the use of land.
[4]
The judgment further makes it clear that an overlap between the
functions occur because mining is carried out on land
[5]
and that each is concerned with different subject-matter.
[6]
[19]
In consequence of the aforementioned findings in
Maccsand (Pty) Ltd v City of Cape Town
(supra)
the zoning requirements in respect of the properties (with reference
to the provisions of the Ordinance) fall to be considered
with a view
to ascertaining whether land use approval by the local authority
concerned is required for the exercise of the prospecting
right.
[20]
Zoning requirements are not in existence in respect of the
properties.
[21]
The wording of sections 21 and 22 of the Ordinance
unambiguously and expressly excludes from the ambit of municipal town
planning
land on which prospecting, digging or mining operations are
being carried out, unless such land is situated within an approved
township or within a township in respect of which a notice as
contemplated in section 111 of the Ordinance was published. In the
recent, as yet unreported judgment, of
Coal of Africa
Limited and Another v Akkerland Boerderv (Pty) Ltd (38528/2012)
[
2014]
ZAGPPHC 510 (5 March 2014)
the Court in that judgment
also came to the same conclusion to which I did in relation to the
interpretation and the effect of
the provisions of section 21 of the
Ordinance.
[22]
The absence of zoning requirements in terms of the Ordinance
regarding the properties renders the obtaining of land use approval
by the local authority unnecessary.
The Spatial
Development Framework
[23]
The Respondent raised, as a further ground of appeal that the
court erred in failing to accept that, what is required from a
“Municipality”
insofar as town planning is concerned,
relates to a land use within its Spatial Development Framework.
[24]
Section 35(1 )(d) of the Systems Act provides as follows:
“
35
Status
of Integrated Development Plan
(1)
An integrated Development Plan adopted by the council of the
municipality -
(a)
....
(b)
Bind the municipality in the exercise of
its executive authority, except to the extent of any inconsistency
between a municipality’s
Integrated Development Plan and
national or provincial legislation, in which case such legislation
prevails;
(c)
…... “
[25]
It follows from
the
provisions of Section 35(1
)(b) of the Systems Act that the
Ordinance (as provincial legislation) would prevail in the event of a
conflict between an Integrated
Development Plan (with a Spatial
Development Framework as a core component thereof) and the Ordinance.
[26]
The provisions of the Ordinance accordingly have precedence
over the Spatial Development Framework.
[27]
The zoning requirements of the properties are regulated by the
Ordinance and, in respect of the properties no zoning requirements
are in existence.
The
Constitutional interest of a local authority in land use
[28]
The ground of appeal that the court erred in not
finding that the “Municipality” has a constitutional
interest to consider
a land use on agricultural land and the ground
of appeal that the holder of a prospecting right is, by reason of the
acknowledgement
by the
Constitution of the Republic of South
Africa, 108 of 1996
(“
the Constitution
”)
of the direct effect of the Ordinance in mining applications, not
relieved from obtaining the necessary land use planning
authorisation
from the “
Municipality
” addresses the same
subject-matter.
[29]
The judgment of the Constitutional Court in
Maccsand
(Pty) Ltd v City of Cape Town
(supra) dealt conclusively
with the constitutional framework of the overlap between the national
sphere of government in regulating
mining and the local sphere of
government regulating land use as well as the different
subject-matter that they are concerned with.
[30]
It is within the context of the provisions of the
Constitution, and the recognition therein of the constitutional
interest of a
local authority in land use within its area of
jurisdiction, that it was held in
Maccsand (Pty) Ltd v City
of Cape Town
(supra) that a holder of a mining right or a
mining permit has to comply with zoning requirements in addition to
the relevant provisions
of the Act.
[31]
The consideration of the applicable zoning requirements (if
any) on the properties in terms of the provisions of the Ordinance is
accordingly in consonance with the constitutional imperatives in this
regard.
[32]
The dispute in the main application did not concern a general
consideration of the general constitutional interest that a local
authority may have to consider a land use on agricultural land.
[33]
The
Respondent did not challenge the constitutional validity of the
Ordinance or any part thereof. In particular: the Respondent
did not
seek an order declaring the provisions of sections 21 and 22 of the
Ordinance to be inimical to the notion of wall-to-wall
municipalities
decreed by the provisions of section 151 of the Constitution.
[7]
[34]
In my view the constitutional validity, or not, of the
provisions of sections 21 and 22 of the Ordinance has no bearing on
the disputes
as they presented in the present matter. The properties
are not the subject of any town planning scheme or zoning scheme.
Zoning
requirements are accordingly not in existence in respect of
the properties.
[35]
The absence of zoning requirements in terms of the Ordinance
regarding the properties renders the obtaining of land use approval
by the local authority unnecessary.
The National
Heritage Act
[36]
The grounds of appeal in relation to the findings regarding
the reliance by the Respondent on the provisions of the National
Heritage
are mutually exclusive.
[37]
The first ground of appeal is that the court ignored the
provisions of the National Heritage Act, whilst the further grounds
are
directed at specific findings that were made with regards to the
provisions of the National Heritage Act.
[38]
The provisions of Section 36 of the National Heritage Act
provide that graves and burial sites are protected.
[39]
Section 36(3) of the National Heritage Act provides as
follows:
“
(3)
No person may, without a permit issued by SAHRA or a Provincial
Heritage
Resources
Authority -
(a)
Destroy, damage, alter, exhume or remove
from its original position or otherwise disturb the grave of a victim
of conflict, or any
burial ground or part thereof which contains such
graves;
(b)
Destroy, damage, alter, exhume or remove
from its original position or otherwise disturb any grave or burial
ground older than sixty
years which is situated outside the formal
cemetery administered by local authority; or
(c)
Bring onto or use at the burial ground
or grave referred to in paragraph (a) or (b) any excavation equipment
or any equipment which
assists in the detection or recovery of
metals. ”
[40]
The relevant provisions of Section 36 of the National
Heritage Act prohibits the Applicant from undertaking certain
activities at
the burial ground or grave refer to in Section 36(3)(a)
and (b) and from undertaking the actions described in Section
36(3)(a)
and (b).
[41]
The prohibition of certain conduct at the burial sites or
graves contemplated in Section 36 of the National Heritage Act does
not,
however, in my view amount to a prohibition on the holder of a
prospecting right to gain access to the property in respect of which
he hold the prospecting right. The prospecting right can still be
exercised outside of the burial grounds or graves contemplated
by the
provisions of Section 36 of the National Heritage Act.
Conclusion
[42]
In my view the Respondent does not have a reasonable prospect
of success on appeal and it does not have a reasonable prospect that
a different court may come to a different conclusion on the issues
raised in the grounds of appeal. I am also not of the view that
the
Respondent established that another court might reverse or materially
alter the order.
[43]
In the result I make the following order:
1.
The application for leave to appeal is dismissed;
2.
The Respondent in the main application is ordered to
pay the costs.
CILLIERS
AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
[1]
Songono v Minister of Law and Order
1996 (4) SA 384
(E) at 385I-J.
[2]
Maccsand
(Pty) Ltd v City of Cape Town and Others
2012 (4) SA 181
(CC) and
M
inister
for Mineral Resources v
Swartland
Municipality and Others 2012 (7) BCLR 712 (CC).
[3]
South
African Mineral and Petroleum Law MO Dale and Others [Issue 14] at
197.
[4]
Paragraph
[42] at 197B-C.
[5]
Paragraph
[43] at 197D.
[6]
Paragraph
[51 ] at 200B.
[7]
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal
2010 (6) SA
186
(CC) at
[78],