Mtunzini Conservancy v Tronox KZN Sands (Pty) Ltd and Another (10629/2012) [2013] ZAKZDHC 1; 2013 (4) BCLR 467 (KZD); [2013] 2 All SA 69 (KZD) (8 January 2013)

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[2013] ZAKZDHC 1
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Mtunzini Conservancy v Tronox KZN Sands (Pty) Ltd and Another (10629/2012) [2013] ZAKZDHC 1; 2013 (4) BCLR 467 (KZD); [2013] 2 All SA 69 (KZD) (8 January 2013)

IN THE KWAZULU-NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
Case No: 10629/2012
In the matter between:
MTUNZINI CONSERVANCY
.......................................................................
Applicant
and
TRONOX KZN SANDS (PTY) LTD
..................................................
First
Respondent
UMLALAZI MUNIUCIPALITY
....................................................
Second
Respondent
JUDGMENT
Delivered on 8 January
2013
Vahed
J:
The first respondent conducts
business,
inter alia
, as an extractor of minerals from the
earth. In ordinary parlance, it is in the mining business. One of
its areas of operation
is described in the papers as the “Fairbreeze
mining enterprise”, or more simply as the “Fairbreeze
mine”,
where the mining operations are, as described in its
answering affidavit, “… directed at extracting the
heavy minerals
from five ore bodies present in what are technically
described as ‘mineralised sand dunes’. It should be
clarified,
however, that these dunes are not the first dunes from
the beach, but are in fact ancient accumulations of soil situated
almost
exclusively more than a kilometre from the high water mark of
the sea … [and] … the soil or sand in the mining area

is very much like the well-known red-coloured ‘Berea sand’
…” familiar to most. The Fairbreeze mine
extends over a
number of adjacent immovable properties,which lie immediately south
of the townlands of Mtunzini on the KwaZulu-Natal
north coast, and
the parcel of land, taken as a whole,in part straddles the N2
National Highway (“the Fairbreeze properties”).
They all
fall within the area of jurisdiction of the second respondent. The
five iron ore bodies are, however, not contiguous.
This application concerns the
applicant’s entitlement to an interdict restraining the first
respondent from commencing or
continuing any development, as defined
in section 1, read with section 38(3), of the KwaZulu-Natal Planning
and Development Act,
No 6 of 2008 (“the KZNPD Act”),
including, but not limited to, the carrying out of construction,
mining or any other
operations on any portion of the Fairbreeze
properties until the first respondent has applied for and has been
granted approval
for its proposed development by the second
respondent in terms of section 38(1) of the KZNPD Act.Section 1 of
the KZNPD Act defines
Development
in the following terms:
‘ “
development
”
in relation to any land, means the erection of buildings and
structures, the carrying out of construction, engineering,
mining or
other operations on, under or over land, and a material change to the
existing use of any building or land for non-agricultural
purposes;’
and section 38 of that Act says:
‘
38.
Development of land situated outside area of scheme permissible only
In accordance with this Chapter.
—
(1)
The development of land situated outside the area of a scheme may
only occur to the extent that it has been approved by a municipality

in whose area the land is situated.
(2)
A municipality may approve the development of land situated outside
the area of a scheme only in accordance with this Act.
(3)
For the purposes of this Chapter development means the carrying out
of building, construction, engineering, mining or other
operations
on, under or over any land, and a material change to the existing use
of any building or land without subdivision, but
it does not include—
(
a
)
the construction or use of the first dwelling and outbuildings or
improvements usually associated therewith on a separately registered

subdivision, including a secondary self contained residential unit
which may be attached or detached but must be clearly associated
with
the first dwelling house and may not exceed 80m
2
;
(
b
)
the construction or use of any dwelling and outbuildings usually
associated therewith for the settlement of a traditional household
on
land on which a traditional community recognised in terms of section
2 (5) (
b
)
of the KwaZulu-Natal Traditional Leadership and Governance Act, 2005
(Act No. 5 of 2005), lawfully resides;
(
c
)
land used for the cultivation of crops or the rearing of animals;
(
d
)
the carrying out of works required for the maintenance or improvement
of an existing road within its existing boundaries;
(
e
)
the provision of any engineering services in accordance with the
municipality’s integrated development plan; and
(
f
)
the maintenance and repair of engineering services.’
The first respondent opposes the
relief sought. The second respondent, cited as an interested party,
has not delivered any affidavits.
That is most unfortunate. In my
view, given the importance of and the complexities involved in this
matter, I would have expected
the second respondent to have applied
its mind to the matters in issue and concluded that the fitting and
responsible approach,
as the concerned local government body, was to
assist the Court, through an affidavit deposed to by a responsible
official, by
placing all the relevant information at its disposal
and under its control before the Court. Indeed, I would have
thought, having
been cited as an interested party, that common sense
and common courtesy dictated that it had a duty to do so.
THE PARTIES
The applicant was an association
incorporated under section 21 of the Companies Act of 1973. I assume
that with the repeal of
that Act it continues to exist as a
non-profit company in terms of section 8(1), read with section 10
and schedule 1 of the
Companies Act, 71 of 2008
. It describes its
main business as being the promotion of a wildlife and environmental
conservancy in the greater Mtunzini area.
Acting in that interest it
was a registered interested and affected party, submitting comments,
objections and detailed representations
in opposition to a number of
applications for approvals, authorisations and/or permissions made
by the first respondent relating
to
inter alia
, the
environment, mining, water use and land use.
The first respondent’s business
is the production of mineral commodities, which include feedstock to
the pigment industry,
low manganese pig iron, zircon and rutile. It
was formerly known as EXXARO Sands (Pty) Ltd, before that as Ticor
South Africa
(Pty) Ltd and before that as Iscor Heavy Minerals (Pty)
Ltd, when its business was first established and planned in the late

1990s.
As indicated earlier, the second
respondent is the local authority within whose area of jurisdiction
the affected operations occur.
THE FAIRBREEZE PROPERTIES
The founding papers suggest, largely
correctly, that a number of immovable properties make up the parcel
of land referred to as
the Fairbreeze properties and upon which the
Fairbreeze mine exists. The properties are owned by different
entites; a large number
by Mondi Limited, three by the first
respondent, but still registered under its former name, EXXARO, one
by SANRAL (which is
in essence the N2 National Road) and one by a
person known as Murray, and in respect of which a servitude exists
in favour of
ESKOM.
During argument it became common
cause that the application did not extend to the SANRAL and ESKOM
properties and one of the properties,
described as “Sarcola
16183”, registered in the name of EXXARO, and thus owned by
the first respondent.
The five ore bodies referred to above
are described as FBA, FBB, FBC, FBC Extension (“FBC Ext”),
and FBD. The ore
body identified as FBC Ext lies closest to the town
of Mtunzini and extends over the remaining two properties owned by
the first
respondent (EXXARO). All the other ore bodies extend over
the properties owned by Mondi Limited.
THE BACKGROUND FACTS
The first respondent also conducts
identical (or at the very least, similar) mining operations at its
Hillendale mine which is
situated “… a little to the
south of Richards Bay.”
According to the first respondent, it
invested capital in its mining operations and in a central
processing complex (involving
two 36 megawatt electric arc furnaces)
in Empangeni. The capital investment was justified by the presence
of the ore bodies at
both Hillendale and Fairbreeze. It commenced
mining at Hillendale and intended a seamless transition of mining
activities from
Hillendale to Fairbreeze. Hillendale is approaching
the end if its mining life.
During March 1998 the first
respondent, in terms of the then applicable Minerals Act, No. 50 of
1991 (“Minerals Act”),
obtained mining authorisations
from the Department of Mineral and Energy Affairs. These
authorisations were in respect of the
Hillendale mine and in respect
of the land encompassing ore bodies FBA, FBB, FBC and FBD at the
Fairbreeze mine. In addition,
it contends that from as far back as
1998 it held an approved Environmental Management Programme, also
issued by the Department
of Minerals and Energy Affairs.
The first respondent goes on to state
that mining authorisations approved and granted under the Minerals
Act are generally referred
to as “old order mining rights”.
The Mineral and Petroleum Resources Development Act, 28 of 2002
(“MPRDA”)
came into force on 1 May 2004. It repealed the
Minerals Act and provided (in the Second Schedule thereof) for the
conversion
of an “old order mining right” into a mining
right as defined in MPRDA. This could only be achieved if the
relevant
Minister was satisfied that the holder of the “old
order mining right” had,
inter alia
, conducted mining
operations in respect of the right in question and was in possession
of an approved environmental programme.
The first respondent’s
“old order mining rights” were converted in July 2008.
The correspondence exchanged between
the attorneys representing the applicant and the first respondent,
shortly before the present
application was launched, demonstrate how
that point was reached. In a letter dated 18 September 2012 the
applicant’s attorneys
wrote to the first respondent’s
attorney in the following terms:
‘
We
refer to the above matter in which you act for Tronnox (formerly
EXXARO).
Our
clients are most concerned that your client intends construction of
the Fairbreeze Mine in the near future. In that regard,
we refer to
an article which appeared in the Zululand Observer on 14 September
2012. In that article, your client is quoted as
saying that the
approval of its amended environmental management programme (EMPR) and
environmental authorisation, entitled it
to commence with "selected
construction activities while awaiting further authorisations".
Our
clients vehemently deny that your client is entitled to commence with
any construction activities whatsoever on the affected
properties,
until such time as it has applied for, and been granted, the
necessary development approval in terms of the KwaZulu-Natal
Planning
and Development Act NO.6 of 2008 (the "PDA"). It is clear
that our clients are correct in this regard, if one
has regard to the
provisions of
inter alia
Chapter 4 of the PDA read with the
definition of "development" as contained in section 1 of
the PDA.
Furthermore,
in the light of the Constitutional Court's ruling in the recent
Maccsands's
case, it cannot be contended that your client is
not bound by the provisions of both the PDA and the uMlalazi Town
Planning Scheme.
On
our client’s instructions, we recently wrote to the uMlalazi
Municipality and we enclose a copy of the reply received from
the
Municipal Manager dated 13 September 2012, together with a copy of
our original request. The Municipality has unequivocally
supported
our client's view that no development may take place on the affected
properties until such time as your client has been
granted the
necessary development approval in terms of the PDA.
In
the circumstances, we have been instructed to write to you to obtain
your confirmation that your client will not commence any
activity
falling within the definition of "development" as defined
in the PDA, on any of the properties in respect of
which
environmental authorisation was granted, until such time as your
client is in possession of the necessary development approval
in
terms of the PDA and the current EIA appeals have been resolved. We
would be most grateful if you would let us have such confirmation
as
a matter of urgency.
We
have been instructed to place on record that if your client does
attempt to commence "development" without the necessary
PDA
approval, our client will have no alternative but to seek appropriate
relief in the High Court in the event that the Municipality
itself
fails to take such action timeously. We trust however that this will
not be necessary.’
The letter dated 13 September 2012
addressed by the second respondent’s Municipal Manager to the
applicant’s attorneys,
referred to in the fifth paragraph of
that letter, reads as follows:
‘
I
refer to your letter, dated 31 August 2012, where you have requested
that the uMlalazi Municipality confirm the following:
"Confirm
whether EXXARO does indeed require development authorisation in
terms of the PDA before it commences titanium mining
on the listed
properties"
It
is confirmed that EXXARO does need development authorisation, in
terms of appropriate legislation, before it commences titanium
mining
on the listed properties.
2.
"Confirm whether you have been approached by representatives of
EXXARO with a view to launching such a PDA Application"
The
Municipality's appointed town planning service provider, Mr Coenraad
Strachan from Inhloso Planning cc, did have a PDA Pre-Application

Meeting with Mr Henri Cullinan from Vuka Planning Africa Inc.,
acting, it is understood, on behalf of EXXARO, on the 22 February

2012, at which the technical requirements of a potential PDA
Application for Mining rights on Fairbreeze Ext. C, was discussed.
3.
"Confirm that you will ensure that we receive notice of any such
PDA application, in addition to any notice required to
be delivered
to any of our client's individual members;
It
is confirmed that you will receive notification via the public
notification process stipulated in Section 5 of Part 1 of Schedule
1
of the PDA.
4.
Confirm that you will take prompt action against EXXARO in terms of
chapter 8 of the PDA should any person attempt to commence

"development" of the properties (as defined) without the
necessary development approval"
It
is confirmed that the uMlalazi Municipality will take prompt action,
in terms of Section 8 of the PDA, should any person attempt
to
commence "development" of the properties (as defined)
without the necessary development approval.
I
trust the above has satisfactory answered your queries.’
On 28 September 2012 the applicant’s
attorney sent another letter to the first respondent’s
attorneys in the following
terms:
‘
We
refer to our letter to you of 18 September 2012, to which we have not
yet received any substantive response.
We
are instructed that our clients today attended a communications
meeting at the Tradewinds Hotel, Mtunzini. We are instructed
that
your client's representatives J. Beukes and E. Scholtz informed the
meeting that Tronox would be commencing the mining development
on 1
October 2012. When asked how it could do so without the necessary
planning approval, the said representatives stated that
they had "no
comment". They then said the matter was in the hands of your
firm.
In
the absence of any response from you, our client must assume that
your client has been advised that it may commence the development

prior to obtaining planning approval. We require your confirmation or
rebuttal urgently.
We
are instructed to state once again that if any attempt is made to
commence the development, our client will approach court as
a matter
of urgency for an interdict. Please confirm by return that in that
event we may serve the papers on your offices.’
On 5 October 2012 the first
respondent’s attorneys replied in the following terms:
‘
We
refer to your letters dated 18 and 28 September 2012 under the above
heading.
We
confirm that our client has noted the contents, but denies them. In
so doing it has sought advice on its legal position, which
advice
includes that of senior counsel. Its reasons are as follows:
1.
With respect to the mining blocks known as FBA, FBB, FBC and in so
far as any activities will occur on it, FBD, mining commenced

lawfully well before the amendment of section 11 of the Town Planning
Ordinance 29 of 1949. At that time mining did not fall within
the
ambit of that section and as such no development permission was
required.
2.
This was confirmed at that time by the KwaZulu-Natal Department of
Local Government and Traditional Affairs in a letter dated
15
February 2006, which you are already in possession of.
3.
Support for this contention is found in the 2008 amendment of the
Ordinance which brought mining within its scope.
4.
Whilst the successor to the Ordinance, the Kwazulu-Natal Planning and
Development Act 6 of 2008 ("KZN PDA"), does indeed
require
mining developments to obtain planning permission, it is not
retrospective, and consequently the fact that mining on the
aforesaid
blocks had commenced prior to its introduction, once again means that
no permission under the Act is required.
5.
For the mining block known as Fairbreeze C Extension (FBCX) held
under a separate mining right, our client has however acknowledged

that planning authority is required in terms of the KZN PDA as mining
activities did not commence on this site prior to such permission

being required. Our client has accordingly appointed a professional
to compile the application in terms of the requirements of
this Act.
Consequently
our client will not provide you with the undertaking you seek, and
has appointed a contractor to undertake certain
aspects of the
project on the basis that it holds the necessary permission for these
activities. These activities, which commenced
on 1 October 2012, are
as follows:
•
establishing
platforms on the primary wet plant area;
•
construction
of the link or access road between the proposed N2 off-ramp and the
plant site;
and
•
construction
of a temporary access road.
We
do not believe the municipality had an opportunity to apply its mind
to the aforementioned facts before addressing its letter
of 13
September 2012 to you. Our client is accordingly engaging with it to
discuss the matter.
In
the interim, should your client approach the high court for an
interdict this will be opposed, and an appropriate costs order

sought. We confirm that you may serve papers on our offices, and
kindly ensure that notice is given.’
In paragraph 2 of that letter
reference is made to a letter dated 15 February 2006 from the
KwaZulu-Natal Department of Local
Government and Traditional
Affairs. That letter advised the first respondent in the following
terms:
‘
With
reference to your letters dated 18 November 2005, and subsequent
information supplied in your letter dated 19 January 2006.
After
careful consideration of your application, we wish to inform you that
no development or subdivision application is required
in terms of
Town Planning Ordinance 27 of 1949 to conduct mining operations on
land located outside of Town Planning Scheme areas.
As you indicated
that this land is to be used for "bona fide mining purposes"
no change of land use application is required
at this stage. Should
you or any future owners wish to use this land for non-agricultural
purposes, a development application will
be required at that stage
for the Municipality, Department of Agriculture and Environmental
Affairs, and our consideration in terms
of the relevant legislation.’
And so the scene was set for the
present application, which was commenced under a certificate of
urgency dated 11 October 2012.
THE ISSUES
The applicant has defined the issues
that require determination in the following terms:
‘
1.
Whether the applicant has
locus
standi
and a “
protectable
interest”
in the relief sought.
Whether,
when the first respondent commenced mining activities in 2002, it
required prior authorisation in terms of Section 11(2)
of the Town
Planning Ordinance, No. 27 of 1949 (KZN).
In
the event that the first respondent is operating unlawfully, whether
the Court should exercise its discretion against granting
the relief
sought.’
The first respondent has preferred to
state the issues thus:
‘
a.
When it commenced mining in 2002 did the first respondent require
planning authorisation in terms of section 11(2) of the Town
Planning
Ordinance, 27 of 1949?
b.
If the question set out in (a) above is answered in favour of the
applicant, can any order follow? This turns only partly on
the
question whether the applicant has a “protectable interest”.
The decision probably turns on the question of whether
the applicant
is the right person seeking the right relief in the right
proceedings. The question as to the court’s discretion
may or
may not arise in dealing with that issue.’
Mr
Salmon
SC appeared for the
applicant while Mr
Olsen
SC (with Ms
Gabriel
SC)
appeared for the first respondent. Counsel have provided me with
extensive and well-researched heads of argument for which
I am
grateful. I am mindful of the
caveat
that judges ought not to
slavishly adopt counsels’ heads of argument but nevertheless
consider it appropriate, from time
to time, to borrow freely from
that furnished to me. Where I do so I shall, in most cases, refrain
from acknowledging any specific
source, contenting myself that this
paragraph constitutes sufficient, and appreciative acknowledgement.
There seems to be no material
difference between the applicant and the first respondent in their
statement of the issue relating
to authorisation in terms of section
11(2) of the Town Planning Ordinance, No. 27 of 1949 (KZN) (“the
TPO”). Such
difference that the two statements may intend is
so subtle that it escapes me.
The remaining issues are markedly
different.
I propose dealing with the TPO issue
first.
THE TPO ISSUE: DID THE FIRST
RESPONDENT REQUIRE AUTHORISATION?
In 2002 section 11 of the TPO (which
had last been amended in 1992) read as follows:
‘
11.
Establishment of private townships and development of land.
(1)
No person shall establish a private township without the approval of
the Administrator.
(2)
(a) No person shall, without the prior authorisation of the
Administrator, develop within the meaning of this section any land

whether inside or outside a local authority area; provided that the
preceding provisions of this subsection shall not apply if-
a
town planning scheme applies to such land, or
(ii)
such land is situate in an approved private township in respect of
which there is no town planning scheme and such development
complies
with the conditions of establishment relating to use of such township
applicable at the time at which such development
is proposed to be
undertaken,
unless
the Administrator has-
(aa)
in relation to a local authority area or any other area specified by
him, generally, or
(bb)
specially,
directed
that application for such authorisation shall be made.
(b)
The authorisation contemplated by paragraph (a) shall be applied for
in the form prescribed by regulation.
(3)
The provisions of this Ordinance shall apply to any development as
defined in subsection (6) as if it were a private township:
Provided
that the Administrator may exempt such an application from one or
more provisions of this Chapter subject to such conditions
as he may
impose.
(4)
The Administrator, in authorising any development in terms of this
section, may do so subject to any conditions not inconsistent
with
the provisions of this Chapter, or he may stipulate that application
be made for permission to establish a private township
in terms of
this Chapter prior to such development.
(5)
The local authority, if any, shall not approve a building plan
relating to the proposed development until notification has been

given to such local authority by the Director-General: Provincial
Administration of Natal that the conditions, if any, subject
to which
the Administrator has authorised such development, have been complied
with to the satisfaction of the Administrator.
(6)
For the purpose of this section, the word "development"
means the erection of buildings or the use of land without

subdivision for non-agricultural purposes but does not include the
erection of a first dwelling house and the usual outbuildings
on the
land.’
In summary, the first respondent’s
argument is as follows:
In 1992, when the TPO was amended, to
a form which it retained until 2008, the only authority required to
mine was furnished under
the Minerals Act;
The Minerals Act in turn required
adherence to certain other pieces of national legislation, but
furnished an absolute right to
mine once a mining authorisation was
granted;
Because provincial laws were
absolutely subservient to national laws until the Interim
Constitution of 1993, section 11(6) of
the TPO cannot be read to
have covered mining and cannot be read to have been intended to
cover mining;
The Constitution (ie. the final
Constitution of 1996) gave legal force to laws which existed when it
came into effect, but restricted
the scope of such legal force to
what it was
immediately before the Interim Constitution
came
into force. The reach of such pre-constitutional legislation could
only be extended by amendment, which was only done in
2008.
In the result the first respondent
did not require planning permission, and it is common cause that
subsequent legislation does
not affect the position because it is
not retrospective in effect.
The applicant’s counter to
this, again in summary, is that it is nonsensical to suggest that
the Minerals Act and the TPO
are so conflicted with the result that
the term
non-agricultural purposes
in section 11(6) of the
TPO must be interpreted to exclude
mining
, or be deemed to be
of no force in relation to
mining
. It contends that the first
respondent has exaggerated the importance and status of the Minerals
Act. It also contends that in
comparing the two pieces to
legislation, it is necessary to draw a distinction between mining as
a land use and mining as a process
of mineral extraction. Finally it
submits that in construing the Minerals Act, it is of paramount
importance to distinguish between
the definitionsand the word use of
mine
when used as a noun from when it is used as a verb.
In analysing the arguments it is
necessary to make extensive reference to the Minerals Act.
In section 1 the following relevant
terms are defined:
‘ “
mine”
means, when-
used
as a noun-
any
excavation in the earth, including the portion under the sea or
under other water or in any tailings, as well as any borehole,

whether being worked or not, made for the purpose of searching for
or winning a mineral; or
any
other place where a mineral deposit is being exploited,
including
the mining area and all buildings, structures, machinery, mine dumps,
access roads or objects situated on such area and
which are used or
intended to be used in connection with such searching, winning or
exploitation or for the processing of such
mineral: Provided that if
two or more such excavations, boreholes or places, or excavations,
boreholes and places, are being worked
in conjunction with one
another, they shall be deemed to comprise one mine unless the
Director: Mineral Development notifies the
owner thereof in writing
that such excavations, boreholes or places,or excavations, boreholes
and places, comprise two or more
mines; and
(b)
used as a verb, the making of any excavation or borehole referred to
in paragraph
(a)
(i) or the exploitation of any mineral
deposit in any other manner, for the purpose of winning a mineral,
including any prospecting
in connection with the winning of such
mineral;
“
mineral”
means any substance, whether in solid, liquid or gaseous form,
occurring naturally in or on the earth, in or under water or in

tailings and having been formed by or subjected to a geological
process, excluding water, but including sand, stone, rock, gravel
and
clay, as well as soil, other than topsoil;
“
mining
area”
means the area comprising the subject of any prospecting permit or
mining authorization, including-
any
adjacent surface of land;
(b)
any non-adjacent surface of land, if it is connected to such area by
means of any road, railway line, power line, pipe line, cableway
or
conveyor belt; and
(c)
any surface of land on which such road, railway line, power line,
pipe line, cableway or conveyor belt is located,
under
the control of the holder of such permit or authorization and which
he is entitled to use in connection with the operations
performed or
to be performed under such permit or authorization;
“
mining
authorization”
means any authorization granted under a mining permit or a mining
licence;
“
mining
licence”
means any authorization issued in terms of section 9 for any period
exceeding two years;
“
mining
permit”
means any authorization issued in terms of section 9 for a period not
exceeding two years;
“
mining
right”
means any right or any share therein acquired under any section
mentioned in section 47 (1) or (5) or any right to dig or to mine

acquired under a tributing agreement as defined in section 1 of the
Mining Titles Registration Act, 1967 (Act 16 of 1967), or any
other
subgrant acquired by virtue of the first-mentioned right or any share
therein;’
As indicated earlier, the first
respondent obtained a mining authorisation under the Minerals Act in
March 1998.
That was obtained and granted in
terms of section 9 of the Minerals Act which provided for the
Director: Mineral Development,
upon application in the prescribed
form, to issue a mining authorisation to the holder of the right to
minerals, or to a person
who has acquired the written consent of
such holder to mine therefor.
Section 9 reads as follows:
‘
9
Issuing of mining authorization
The
Director: Mineral Development shall, subject to the provisions of
this Act, upon application in the prescribed form and on
payment of
the prescribed application fee, issue a mining authorization in the
prescribed form for a period determined by him
authorizing the
applicant to mine for and dispose of a mineral in respect of which
he-
is
the holder of the right thereto; or
(b)
has acquired the written consent of such holder to mine therefor on
his own account and dispose thereof,
in
respect of the land or tailings, as the case may be, comprising the
subject of the application.
(2)
If the State is the holder of the right to any mineral, the consent
referred to in subsection (1)
(b)
may, upon written
application, be granted by the Minister, subject to such terms and
conditions as may be determined by him.
(3)
No mining authorization shall be issued in terms of subsection (1),
unless the Director: Mineral Development is satisfied-
(a)
with the manner in which and scale on which the applicant intends to
mine the mineral concerned optimally under such mining authorization;
(b)
with the manner in which such applicant intends to rehabilitate
disturbances of the surface which may be caused by his mining
operations;
(c)
that such applicant has the ability and can make the necessary
provision to mine such mineral optimally and to rehabilitate such

disturbances of the surface; and
(d)
that the mineral concerned in respect of which a mining permit is to
be issued-
(i)
occurs in limited quantities in or on the land or in tailings, as the
case may be, comprising the subject of the application;
or
(ii)
will be mined on a limited scale; and
(iii)
will be mined on a temporary basis; or
(e)
that there are reasonable grounds to believe that the mineral
concerned in respect of which a mining licence is to be issued-
(i)
occurs in more than limited quantities in or on the land or in
tailings, as the case may be, comprising the subject of the
application; or
(ii)
will be mined on a larger than limited scale; and
(iii)
will be mined for a longer period than two years.
(4)
Section 7 shall apply
mutatis mutandis
in relation to the
performance of mining operations under a mining authorization.
(5)
Any application for a mining authorization shall be lodged with the
Director: Mineral Development concerned and shall, in addition
to the
other information and documents which may be required by him, be
accompanied by-
(a)
proof of the right to the mineral in respect of the land or tailings,
as the case may be, comprising the subject of the application;
(b)
a sketch plan indicating the location of the intended mining area,
the land comprising the subject of the application, the lay-out
of
the intended mining operations and the location of surface structures
connected therewith;
(c)
particulars about the manner in which and scale on which the
applicant intends to mine such mineral under such mining
authorization
optimally and to rehabilitate disturbances of the
surface which may be caused by the intended mining operations;
(d)
particulars about the mineralization of the land or tailings, as the
case may be, comprising the subject of the application;
(e)
particulars about the applicant's ability to make the necessary
provision to mine such mineral optimally and to rehabilitate such

disturbances of the surface; and
(f)
particulars about the applicant's ability to mine in a healthy and
safe manner,
acceptable
to the Director: Mineral Development.
(6)
The Director: Mineral Development may exempt any applicant for a
mining authorization from one or more of the provisions of
subsection
(5)
(b)
, subject to such conditions as may be determined by
him.
(7)
The Director: Mineral Development shall consult as to the issuing of
a mining authorisation with the Chief Inspector of Mines,
and no
mining authorisation may be issued unless the Chief Inspector of
Mines is satisfied that the applicant has the ability and
can make
the necessary provision to mine in a healthy and safe manner.
(8)
Subsection (7) shall apply
mutatis
mutandis
in relation
to the issuing of a prospecting permit in terms of section 6 or a
permission in terms of section 8.’
The first respondent submits that
such authorisation was the instrument which allowed the practical
exercise of the rights referred
to in section 5(1) of the Minerals
Act and which, stripped of the irrelevancies, covered the entire
scope of mining (from prospecting
through to the establishment of
infrastructure and the disposal of the fruits of such mining),
speaking directly to the facts
of this case. Significantly, section
5(2) provides that no person shall prospect or mine without the
necessary authorisation
granted in accordance with the Minerals Act.
Section 5 of the Minerals Act reads
as follows:
‘
5
Right to prospect and mine for and to dispose of minerals
Subject
to the provisions of this Act, the holder of the right to any
mineral in respect of land or tailings, as the case may
be, or any
person who has acquired the consent of such holder in accordance
with section 6 (1)
(b)
or 9 (1)
(b)
, shall have the
right to enter upon such land or the land on which such tailings are
situated, as the case may be, together with
such persons, plant or
equipment as may be required for purposes of prospecting or mining
and to prospect and mine for such mineral
on or in such land or
tailings, as the case may be, and to dispose thereof.
No
person shall prospect or mine for any mineral without the necessary
authorization granted to him in accordance with this Act:
Provided
that-
the
South African Roads Board established by
section
2
of the South African Roads Board Act, 1988 (
Act
74 of 1988
), and any provincial administration shall not require
any such authorization for the searching for and the taking of sand,
stone,
rock, gravel, clay and soil for road-building purposes under
the laws applicable to them: Provided further that the said Roads

Board or provincial administration shall, in any such case for the
purposes of this Act, be deemed to be the holder of or applicant
for
a prospecting permit or mining authorization, in respect of the
mineral and land concerned; and
(b)
the occupier of land who otherwise lawfully takes sand, stone, rock,
gravel, clay or soil for farming purposes or for the effecting
of
improvements in connection with such purposes on such land, shall not
require any such authorization and the provisions of this
Act shall
not be applicable in any such case.
Any
person mining any mineral under a mining authorization may, while
mining such mineral, also mine and dispose of any other
mineral in
respect of which he is not the holder of the right thereto, but
which must of necessity be mined together with the
first-mentioned
mineral: Provided that such person shall compensate the holder of
the right to such other mineral for his mineral
to an amount
mutually agreed upon or, if no agreement can be reached, to an
amount determined by arbitration in accordance with
the
Arbitration
Act, 1965
(
Act
42 of 1965
), or by any competent court if the last-mentioned
person prefers the last-mentioned procedure: Provided further that
in determining
the last-mentioned amount,
section
12
of the Expropriation Act, 1975 (
Act
63 of 1975
), shall
mutatis
mutandis
apply
as if an expropriation of property or the taking of a right has
taken place in terms of the last-mentioned Act.’
The MPRDA introduced a markedly
different scheme. Section 23 of the MPRDA provides:
‘
23.
Granting and duration of mining right.
—
(1)
Subject to subsection
(4), the Minister must grant a mining right if—
(
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
No. 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.
(2)
The Minister may, having regard to the nature of the mineral in
question, take into consideration the provisions of section

26.
(3)
The Minister must refuse to grant a mining right if the application
does not meet all the requirements referred to in
subsection
(1)
.
(4)
If the Minister refuses to grant a mining right, the Minister must,
within 30 days of the decision, in writing notify the applicant
of
the decision and the reasons.
(5)
A mining right granted in terms of subsection
(1) comes into effect on the date on which the environmental
management programme
is approved in terms of section
39 (4).
(6)
A mining right is subject to this Act, any relevant law, the terms
and conditions stated in the right and the prescribed terms
and
conditions and is valid for the period specified in the right, which
period may not exceed 30 years.’
As will be seen, section 23(6) of the
MPRDA stipulates that a mining right is subject to the Act itself
and to
any relevant law
. It was submitted that this
was in stark contrast to the Minerals Act, which provided for mining
rights to be absolute, subject
only to the dictates imposed by the
Minerals Act itself and to other
national
legislation
related to the specific mining activity. Examples include the
references in section 19 of the Minerals Act to the
1983 Coal Act,
the 1982 Atomic Energy Act and the 1987 Energy Act.
The result, so the submission went,
was that the Minerals Act provided that mining was regulated solely
by national legislation,
to the exclusion of all other law, and that
that regulation was sacrosanct. Section 23 of the Minerals Act
underscored that submission.
I was reminded that at the time there
were no “wall-to-wall municipalities” and that the only
concern that could
have been held by national government was the
potential for increased cost if mining land was incorporated into
urban areas.
Section 23 of the Minerals Act
provides as follows:
‘
23
Power of Minister in case of exercising of surface rights contrary to
object of optimal exploitation of minerals
(1)
If any person in any manner uses or causes to be used or intends to
use or to cause to be used the surface of any land or includes
or
causes it to be included or intends to include or to cause it to be
included into any town planning scheme which may, in the
opinion of
the Minister, detrimentally affect the object of this Act in relation
to the optimal exploitation of any mineral which
occurs or may occur
in economically exploitable quantities in or on such land or in
tailings on such land, the Minister may-
(a)
cause an investigation to be held into the matter; and
(b)
after consideration of the comment contemplated in subsection (2), if
any, and the result of the investigation contemplated in
paragraph
(a)
, issue a direction ordering such person to take such
rectifying steps within a period specified in the direction as may be
required
by the Minister.
(2)
Before any direction referred to in subsection (1)
(b)
is issued, the Director: Mineral
Development shall serve a written notice on the person referred to in
that subsection, whereby
he is notified of the steps being
contemplated by the Minister and whereby he is given the opportunity
to comment on the intention
of the Minister regarding such steps
within a period specified in the notice, which shall not be less than
30 days.’
That concern appears to be reinforced
by section 7 of the Minerals Act which reads as follows:
‘
7
Prohibition or restriction on prospecting on certain land
Subject
to section 20 of the National Parks Act,
1976
(
Act
57 of 1976
),
no
person shall prospect in or on land which-
comprises
a township or urban area;
(b)
comprises a public road, a railway or a cemetery;
has
been reserved or is being used under this Act or any other law for
government or public purposes; or
(d)
may be defined and so determined by the Minister by notice in the
Gazette
,
except
with the written consent of the Minister and in accordance with such
conditions as may be determined by him.
(2)
The Director: Mineral Development concerned shall have power to
determine or cause to be determined and point out or cause to
be
pointed out the boundaries of the places referred to in subsection
(1).’
Against that backdrop of the national
legislation one can evaluate the development of, and the amendments
over time to, the TPO.
In its original form the TPO only
prohibited the establishment of a private township without the
approval of the Administrator
of the Province. It read:
‘
No
person shall establish a private township or sell or lease or offer
for sale or lease any site in a private township (other than
an
existing private township) unless the establishment of such private
township was approved by the Administrator under any Ordinance

repealed by this Ordinance or, after the commencement of this
Ordinance, unless the establishment of such private township has
been
approved by the Administrator and notified by him as approved in
terms of this Ordinance.’
In 1974 the TPO was amended and the
structure then resembled that quoted at paragraph 26 above. However,
in the 1974 version section
11 provided:
‘
(1)
No person shall establish a private township without the approval of
the Administrator.
(2)
No person shall without the authorisation of the Administrator
develop within the meaning of this section any land whether inside
or
outside a local authority area, unless such land is situate in and
complies with the conditions of establishment relating to
use, of an
approved private township or, in the absence of such conditions, with
the town planning scheme applicable at the time
of such
establishment. Such authorisation shall be applied for in such form
as may be prescribed by regulation.
(3)
The provisions of this Ordinance shall apply to any development as
defined in this section as if it were a private township:
Provided
that the Administrator may, if he is of the opinion that the granting
of an application in terms of subsection (2) will
not prejudice
anyone, including in particular the owners of property in the
vicinity of the land concerned in the application.
dispense with the
requirement that the application be advertised:Provided further that
the Administrator may also exempt such an
application from one or
more other provisions of this Chapter subject to such conditions he
may impose.
(4)
The Administrator, in authorising any development in terms of this
section, may do so subject to any conditions not inconsistent
with
the provisions of this Chapter, or he may stipulate that application
be made for permission to establish a private township
in terms of
this Chapter prior to such development.
(5)
The local authority, if any, shall not approve a building plan
relating to the proposed development until notification has been

given to such local authority by the Provincial Secretary that the
conditions, if any, subject to which the Administrator has authorised

such development, have been complied with to the satisfaction of the
Administrator.
(6)
For the purpose of this section, the word "development"
means the development of land without subdivision tor building

purposes or urban settlement or deemed by the Administrator to be
destined for such purposes or settlement but does not include
the
erection of a first dwelling house and the usual outbuildings on the
land.
(7)
The provisions of this section relating to development shall not
apply to any area under the control and jurisdiction of a local

authority which has in operation an approved town planning scheme or
a town planning scheme in course of preparation unless the

Administrator otherwise directs.’
It will be noted that the 1974
version of the TPO was markedly different from that quoted at
paragraph 26 above.
On 7 May 1992 the TPO was amended to
take the form quoted in paragraph 26 of this judgment.
The first respondent submits that it
is relatively easy to discern the legislative purpose behind the
1992 amendment of the TPO.
Prior to the amendment the
Administrator’s permission was required for the use of land
“for building purposes or
urban settlement”. However,
disputes could easily arise as to what comprised “building
purposes” or “urban
settlement”. In addition, the
section could easily interfere with genuine agricultural
development. Accordingly, it appears
that the mischief at which the
section was aimed, would be better targeted by requiring provincial
approval for any non-agricultural
use of land.
The first respondent submits further
that it must be assumed that the provincial government was fully
aware of the fact that at
the time mining was governed exclusively
by national mining legislation, particularly the Minerals Act. On
the face of it section
11(6) of the TPO had wide meaning, but in
context it could not have been intended to convey that, contrary to
section 5 of the
Minerals Act, the Provincial Executive Council was
going to impose its own power of control over mining.
The Minerals Act was promulgated when
the Republic of South Africa Constitution Act, 110 of 1983 was still
in force. Section 30
of Act 110 of 1983 provided that:
‘
[t]he
legislative power of the Republic is vested in the State President
and the Parliament of the Republic which, as the sovereign

legislative authority in and over the Republic, shall have full power
to make laws for the peace, order and good government of
the
Republic; provided that the powers of Parliament in respect of any
bill contemplated in section 31 shall be exercised as provided
by
that section.’
Section 31 dealt with provisions
relating to what was then called “own affairs of a population
group”.
The 1983 Constitution did not deal
with provincial government. As the first respondent correctly points
out, Provincial Councils
and their Executive Councils were still
regulated by the earlier 1961 Constitution, which was re-named the
“Provincial
Government Act, 32 of 1961. Section 85 of that Act
provided that:
‘’
[a]ny
Ordinance made by a Provincial Council shall have the effect in and
for the Province as long and as far only as it is not
repugnant to
any Act of Parliament.’
Thus it was contended that any
interpretation of the TPO that had the effect contended for by the
applicant was of no force because
it would be repugnant to the
Minerals Act.
The Provincial Government Act, 69 of
1986 again reorganised the structure of provincial government.
Administrators and Executive
Committees appointed by the State
President replaced Provincial Councils. This obtained until its
repeal by the Interim Constitution
of 1993. The force of ordinances
was not expanded upon.
Accordingly it was clear, so the
submission goes, that in 1992 when the TPO was amended, it could not
have been intended to bring
mining within the scope of application
of section 11. The ordinance had no force in that regard. The first
respondent continues
the submission by saying that the State
President’s appointees could legislate in the broad terms that
they did, safe in
the knowledge that the section could not be
interpreted to convey that mining was a “non-agricultural”
activity.
It was unlikely that they governed the province, ignorant
of the provisions of the Minerals Act.
With the advent of the 1996
Constitution a new legislative scheme obtained. The transition to
this new scheme was controlled by
Schedule 6 of the Constitution,
which defined “old order legislation” as being
legislation enacted before the advent
of the 1993 Interim
Constitution. Item 2 of Schedule 6 of the Constitution provides that
all law that was in force when the Constitution
took effect
continues in force subject to amendment or repeal and consistency
with the Constitution and provides further in subitem
2(2)(a) that
‘
[o]ld
order legislation that continues in force …
does
not have a wider application territorially or otherwise, than it had
before the previous Constitution took effect unless
subsequently
amended to have a wider application …’
The argument is developed further
that before the 1993 Interim Constitution came into force section 11
of the TPO did not require
provincial planning approval for mining
and that consequently the effect of Schedule 6 of the 1996
Constitution was that that
situation persisted. In other words it
gained no (otherwise) wider application
, which it could only
do by subsequent amendment.
That amendment occurred in 2008 with
the passing of the KwaZulu-Natal Town Planning Ordinance Amendment
Act, 3 of 2008. The amendment
Act cosmetically amended the TPO by,
inter alia
, substituting the expression “responsible
Member of the Executive Council” for the expression
“Administrator”,
“municipality” for “local
authority”, “municipal area” for “Natal”,
and so forth.
Insofar as section 11 was concerned the key amendment
was to sub-section 11(6) which in the 2008 amendment now read:
‘
(6)
For the purposes of this section“
development”
means the carrying out of building, construction, engineering, mining
or other operations on, under or over any land, and a material
change
to the existing use of any building or land without subdivision, but
it does not include—
(
a
)
the construction or use of the first dwelling and outbuildings or
improvements usually associated therewith on a separately registered

subdivision, including a secondary self contained residential unit
which may be attached or detached but must be clearly associated
with
the first dwelling house and may not exceed 80m
2
;
(
b
)
the construction or use of any dwelling and outbuildings usually
associated therewith for the settlement of a traditional household
on
land on which a traditional community recognised in terms of section
2 (5) (
b
) of the KwaZulu-Natal Traditional Leadership and
Governance Act, 2005 (Act No. 5 of 2005), lawfully resides;
(
c
)
land used for the cultivation of crops or the rearing of animals;
(
d
)
the carrying out of works required for the maintenance or improvement
of an existing road within its existing boundaries;
(
e
)
the provision of any engineering services in accordance with the
municipality’s integrated development plan; and
(
f
)
the maintenance and repair of engineering services.’
It will immediately be appreciated
that sub-section 11(6) of the TPO, after the 2008 amendments, is
identical to section 38(3)
of the KZNPD Act, which followed but
eighteen months later.
The 2008 amendment of the TPO is
indicative of the provincial government’s appreciation of the
correct position in law when
it introduced mining as an activity
requiring provincial planning authorisation. Accordingly, when
mining commenced in 2002,
the TPO did not envisage planning approval
from the provincial government.
The first respondent’s argument
is most persuasive.
That the Minerals Act trumped
everything else (barring specific other national legislation) is in
my view reinforced by the provisions
of the other sections of the
Minerals Act. In particular, section 39 which deals with an
environmental management programme,
section 40 dealing with the
removal of buildings and other structures when mining ceases
temporarily or permanently, section
41 which gives the Director:
Mineral Development wide powers concerning the issuing of directives
and the laying down of conditions
with regard to the surface of the
land and section 63 which allows the Minister to promulgate
regulations dealing with an extensive
range of issues, including
water sources, equipment and the environment, suggestthe prevailing
importance and status of the Minerals
Act.
Sections 39, 40, 41 and portions of
63 of the Minerals Act read as follows:
‘
39
Environmental management programme
(1)
An environmental management programme in respect of the surface of
land concerned in any prospecting or mining operations or
such
intended operations, shall be submitted by the holder of the
prospecting permit or mining authorization concerned to the Director:

Mineral Development concerned for his approval and, subject to
subsection (4), no such operations shall be commenced with before

obtaining any such approval.
(2)
The Director: Mineral Development may-
(a)
on application in writing and subject to such conditions as may be
determined by him, exempt the holder of any prospecting permit
or
mining authorization from one or more of the provisions of subsection
(1) or grant an extension of time within which to comply
with any
such provision;
(b)
approve an amended environmental management programme on such
conditions as may be determined by him; or
(c)
without application being made therefor, but after consultation with
such holder, amend any approved environmental management programme.
(3)
Before the Director: Mineral Development-
(a)
approves any environmental management programme referred to in
subsection (1) or any amended environmental management programme

referred to in subsection (2)
(b)
; or
(b)
grants any exemption or extension of time under subsection (2)
(a)
or any temporary authorization under subsection (4); or
(c)
effects an amendment under subsection (2)
(c)
,
he
or she shall consult as to that with the Chief Inspector of Mines and
each department charged with the administration of any
law which
relates to any matter affecting the environment.
(4)
The Director: Mineral Development may, pending the approval of the
environmental management programme referred to in subsection
(1),
grant temporary authorization that the prospecting or mining
operations concerned may be commenced with, subject to such
conditions as may be determined by him.
(5)
(a)
The Director-General may, pending the approval of an
environmental management programme referred to in subsection (1),
require that
an environmental impact assessment be carried out in
respect of the intended prospecting or mining operations by a
professional
body designated by the Director-General.
(b)
Any costs in respect of an environmental impact assessment referred
to in paragraph
(a)
shall be borne by the holder of the
prospecting permit or mining authorization referred to in subsection
(1).
40
Removal of buildings, structures and objects
Whenever
a prospecting permit or mining authorization which is held is
suspended, cancelled or terminated or lapses, and the prospecting
for
or exploitation of any mineral which was authorized under such permit
or authorization finally ceases, the person who was the
holder of
such permit or authorization immediately prior to such suspension,
cancellation, termination or lapsing, as the case
may be, shall
demolish all buildings, structures or any other thing which was
erected or constructed in connection with prospecting
or mining
operations on the surface of the land concerned and shall remove all
debris as well as any other object which the Director:
Mineral
Development concerned may require and, as far as is practicable,
restore any such surface to its natural state to the satisfaction
of
and within a period determined by such Director: Mineral Development:
Provided that such demolition or removal shall not be
applicable in
respect of buildings, structures or objects-
(a)
which shall, in terms of any other law, not be demolished or removed;
(b)
as may be determined by such Director: Mineral Development, or in
respect of which he has granted exemption subject to such conditions

as may be determined by him; or
(c)
which the owner of the land wishes to retain and which has been
agreed upon accordingly in writing with such former holder of such

permit or authorization.
41
Restrictions in relation to use of surface of land
(1)
The Director: Mineral Development may issue directives and determine
conditions in relation to the use of the surface of land
comprising
the subject of any prospecting permit or mining authorization in
order to limit any damage to or the disturbance of
the surface,
vegetation, environment or water sources to the minimum which is
necessary for any prospecting or mining operations
or processing of
any mineral: Provided that such directives and conditions shall not
be construed as placing the holder of any
such prospecting permit or
mining authorization, in a better position
vis-à-vis
the owner of such land in relation to the use of the surface thereof.
(2)
No person shall contravene or fail to comply with any directive or
condition referred to in subsection (1).
63
Regulations
(1)
The Minister may, by notice in the
Gazette
, make regulations
regarding-
…
.
(b
A
)
the conditions on which equipment, structures, surface of land and
water sources may be undermined, the prohibition on or restriction
of
the erection of equipment and structures and the use of the surface
of land and water sources in the vicinity of the working
places of a
mine;
(c)
the protection of equipment, structures, the surface of land and
water sources and the making safe of undermined ground and of

dangerous excavations, tailings, waste dumps, ash dumps and
structures, of whatever nature, made in the course of prospecting or

mining operations or which are connected therewith, the imposition of
monetary and other obligations in connection with such safe-making
on
persons who are or were responsible for the undermining of such
ground or the making of such excavations, tailings, waste dumps,
ash
dumps or structures or for the dangerous condition thereof, or who
will benefit from such safe-making, and the assumption by
the State
of responsibility or co-responsibility for such safe-making in
particular cases;
(d)
(i) the conservation of the environment at or in the vicinity of
any mine or works;
(ii)
the management of the impact of any mining operations on the
environment at or in the vicinity of any mine or works;
(iii)
the rehabilitation of disturbances of the surface of land where such
disturbances are connected to prospecting or mining operations;
(iv)
the prevention, control and combating of pollution of the air, land,
sea or other water, including ground water, where such
pollution is
connected to prospecting or mining operations;
(v)
pecuniary provision by the holder of a prospecting permit or mining
authorization for the carrying out of an environmental management

programme;
(vi)
the establishment of accounts in connection with the carrying out of
an environmental management programme and the control
of such
accounts by the Department;
(vii)
the assumption by the State of responsibility or co-responsibility
for obligations originating from regulations made under
subparagraphs
(i), (ii), (iii) and (iv) of this paragraph; and
(viii)
the monitoring and auditing of environmental management programmes;’
The applicant argues that the
Minerals Act drew a distinction in its employment of the word
mine
when used as a verb and when used as a noun. It supported that
argument not only by reference to the definitions in the Act but

also by reference to the substantive sections already discussed
earlier in this judgment. The essence of this aspect of the argument

is that while the first respondent may be correct in the assertion
that the Minerals Act was all encompassing when it legislated
for
the activity of mining (ie. the verb); it had to yield to applicable
planning legislation in all aspects that related to
the physical
presence and attributes of a mine (ie. the noun).
That argument, although superficially
attractive, flounders at the first hurdle. The right granted to a
holder of mining rights,
in terms of the Minerals Act, could do
anything and everything set out in section 5 of the Act. In
paragraph 34 above I set out
the section in full and summarised the
first respondent’s argument in that regard. It is appropriate
to repeat section
5(1) (stripped of the irrelevancies I referred to)
to illustrate the point:
‘
Subject
to the provisions of this Act, the holder of the right to any mineral
in respect of land … or any person who has
acquired the
consent of such holder in accordance with section … 9 (1)
(b)
,
shall have the right to enter upon such land … together with
such persons, plant or equipment as may be required for purposes
of …
mining and to … mine for such mineral on or in such land …
and to dispose thereof.’
In my view, armed with that right,
and given that the Minerals Act also legislated for all the other
controls (including physical
and environmental ones), the holder of
a mining authorisation needed no other permissions. Everything was
subject to the provisions of the Act
, and adequately
catered for in the Act.
The applicant also argues that if I
were to find that a conflict exists between the Minerals Act and the
TPO, I ought to hold
that it was inconceivable that in 2002 the TPO
remained frozen in time until altered by subsequent amendment.
However, I adopt the first
respondent’s argument that no conflict existed. The TPO simply
did not apply to mining, which
was regulated exclusively by the
Minerals Act.
As against that Mr
Salmon
argues that a conflict exists because the TPO is legislation (see
section 239 of the Constitution) and as such a court is enjoined,
in
terms of section 39(2) of the Constitution, when interpreting any
legislation, to promote the spirit, purport and objects
of the Bill
of Rights.
That argument overlooks the
provisions relating to old order legislation as set out in Schedule
6 of the Constitution (see paragraph
53 above) as the TPO could not
enjoy wider
or otherwise
application until amendment.
In any event, and even if there is a conflict, then section 150 of
the Constitution supports the
interpretation that the Minerals Act
held sway.
In the correspondence that preceded
the application(see paragraph 14 above) the applicant referred to
the decision in
Maccsand (Pty) Ltd v City of Cape Town &Ors
2012 (4) SA 181
(CC), contending that the conclusion was inescapable
that the first respondent had to comply with the TPO and thereafter
the
KZNPD Act.
Maccsand
dealt with the Land
Use Planning Ordinance, 15 of 1985 (Western Cape) (“LUPO”)
and the Constitutional Court concluded,
inter alia
, that the
relevant national mining legislation and the provincial ordinance
were not in conflict and that the national legislation
did not
override the provincial ordinance.
In his heads of argument Mr
Salmon
conducted a detailed analysis of LUPO and the Mining Rights Act, 20
of 1967, the latter being the applicable national legislation
at the
time concerned. He concluded that that detailed analysis
demonstrated that the identical situated obtained here and that
the
Minerals Act ought not to override the TPO. In doing so he relied
principally upon the following extracts from
Maccsand
(footnotes omitted):
‘
15.
LUPO is a pre-Constitution legislation, which came into force in July
1986. It constitutes provincial legislation that was enacted
by the
Provincial Council of the former Cape of Good Hope. The interim
Constitution permitted it to continue in force subject to
amendment
or repeal by the competent authority. Later the President assigned
its administration to the provincial government of
the Western Cape.
LUPO
authorises municipalities to prepare structure plans which are
submitted to the provincial government for approval. The purpose
of
the structure plan is to lay down guidelines for future spatial
development. It may also authorise rezoning of land by a
municipality. In Chapter 2 LUPO empowers the provincial government
to make scheme regulations which determine the use to which
land may
be put in accordance with the zoning applicable to the land. The
main object of scheme regulations is to control zoning.
If
a landowner wants to use land for a purpose not permitted in terms
of the zoning scheme or regulations, she or he must apply
to the
municipality for rezoning or for a use departure. If either is
granted, the land must be used for the permitted purpose
within a
period of two years, failing which that rezoning lapses. But a
rezoning may also be initiated by the municipality in
whose
jurisdiction the land falls or the provincial government. LUPO
obliges municipalities to enforce compliance with its provisions.

More importantly it prohibits the use of land for purposes other
than the one permitted in terms of the zoning scheme.
Therefore
in terms of LUPO, mining may only be undertaken on land if the
zoning scheme permits it (or a departure is granted).
If not,
rezoning of the land must be obtained before the commencement of
mining operations. The zoning that permits that land
to be used for
mining does not, however, license mining nor does it determine
mining rights. The role played by LUPO is limited
to the control and
regulation of the use of land.
…
.
It
is apparent from the present facts that long before the MPRDA was
passed, LUPO applied to land falling within the municipal
area of
the City. The Rocklands dunes and part of the Westridge dunes were
zoned for use as public open spaces before Maccsand
was granted the
mining right and permit. The question that arises is whether upon
the grant of those rights to Maccsand, the
application of LUPO to
the land concerned ceased. Maccsand and the Minister for Mineral
Resources, supported by the Chamber,
contended that because LUPO
does not regulate mining, it does not apply to land in respect of
which mining rights have been granted.
Proceeding
from the premise that mining falls under the exclusive competence of
the national sphere of government, these parties
argued that to hold
that LUPO applies would amount to permitting an unjustified
intrusion of the local sphere into the exclusive
terrain of the
national sphere of government. This, they argued, is contrary to the
constitutional imperative that spheres of
government must exercise
their powers in a way that does not encroach on functional areas of
other spheres.
…
.
46.
Maccsand also contended that the Supreme Court of Appeal, by finding
that mining is subject to compliance with LUPO, permitted
a local
authority to usurp the functions of national government in a manner
which is not contemplated in the Constitution. This
argument is based
on a misinterpretation of the judgment of the Supreme Court of
Appeal. That Court did not find that LUPO regulates
mining. Instead,
it held that the MPRDA and LUPO have different objects and that each
did not purport to serve the purpose of the
other. The MPRDA’s
concern, the Court found, was mining and not municipal planning,
hence it held that the two laws operate
alongside each other.
50
Because LUPO regulates the use of land and not mining, there is no
merit in the assertion that it enables local authorities to
usurp the
functions of national government. All that LUPO requires is that land
must be used for the purpose for which it has been
zoned.
Another
criticism levelled against the finding of the Supreme Court of
Appeal by Maccsand and the Minister for Mineral Resources
was that,
by endorsing a duplication of functions, the Court enabled the local
sphere to veto decisions of the national sphere
on a matter that
falls within the exclusive competence of the national sphere. At
face value this argument is attractive but
it lacks substance. The
Constitution allocates powers to three spheres of government in
accordance with the functional vision
of what is appropriate to each
sphere.But because these powers are not contained in hermetically
sealed compartments, sometimes
the exercise of powers by two spheres
may result in an overlap. When this happens, neither sphere is
intruding into the functional
area of another. Each sphere would be
exercising power within its own competence. It is in this context
that the Constitution
obliges these spheres of government to
cooperate with one another in mutual trust and good faith, and to
co-ordinate actions
taken with one another.
The
fact that in this case mining cannot take place until the land in
question is appropriately rezoned is therefore permissible
in our
constitutional order. It is proper for one sphere of government to
take a decision whose implementation may not take place
until
consent is granted by another sphere, within whose area of
jurisdiction the decision is to be executed. If consent is,
however,
refused it does not mean that the first decision is vetoed. The
authority from whom consent was sought would have exercised
its
power, which does not extend to the power of the other functionary.
This is so in spite of the fact that the effect of the
refusal in
those circumstances would be that the first decision cannot be put
into operation. This difficulty may be resolved
through cooperation
between the two organs of state, failing which, the refusal may be
challenged on review.’
Maccsand
was concerned with a
comparison of LUPO and the MPRDA and the Constitutional Court found
there to be a relationship between the
two. In paragraphs 42 to 45
of its judgment the Constitutional Court said (footnotes omitted):
’
42.
It is true that mining is an exclusive competence of the national
sphere of government. It is also true that the MPRDA is concerned

with mining and that LUPO does not regulate mining nor does it
purport to do so. LUPO governs the control and regulation of the
use
of all land in the Western Cape Province. This function constitutes
municipal planning, a functional area which the Constitution

allocates to the local sphere of government.
43.
These laws, as the Supreme Court of Appeal observed, serve different
purposes within the competence of the sphere charged with
the
responsibility to administer each law. While the MPRDA governs
mining, LUPO regulates the use of land. An overlap between the
two
functions occurs due to the fact that mining is carried out on land.
This overlap does not constitute an impermissible intrusion
by one
sphere into the area of another because spheres of government do not
operate in sealed compartments.
44.
If it is accepted, as it should be, that LUPO regulates municipal
land planning and that, as a matter of fact, it applies to
the land
which is the subject matter of these proceedings, then it cannot be
assumed that the mere granting of a mining right cancels
out LUPO’s
application. There is nothing in the MPRDA suggesting that LUPO will
cease to apply to land upon the granting
of a mining right or permit.
By contrast section 23(6) of the MPRDA proclaims that a mining right
granted in terms of that Act
is subject to it and other relevant
laws.
45.
Maccsand and the Minister for Mineral Resources argued that LUPO is
not a “relevant law” envisaged in section 23(6)
because
it does not apply to mining. The words “any relevant law”,
they submitted, mean and are confined to a law applicable
to mining
like the
Mine Health and Safety Act. The
MPRDA does not define this
phrase and consequently it must be accorded its ordinary wide
meaning. There is no justification for
limiting it to laws regulating
mining only.’
As was pointed out earlier in this
judgment, the Minerals Act indicated that mining authorisations were
subject
only
(my emphasis) to the provisions of the
Minerals Act. It contained no provision similar to that in the
MPRDA.
The facts in
Maccsand
were
very different. The City of Cape Town, acting in terms of LUPO, had
zoned the area known as the Rocklands dunes as public
open space.
That was done quite properly and in the legitimate exercise of it
power to exercise planning controls within its
city limits. It was
only in 2007, and after the MPRDA came into force, that the Minister
for Mineral Resources, acting in terms
of section 27 of the MPRDA,
granted authority to Maccsand to mine sand on a portion of that
land. At that stage the zoning had
already attached to the land in
question. Consequently, the authorisation to mine could not, and did
not, upset the earlier planning
decision made in respect of that
land.
The position with the Fairbreeze mine
is quite different. The Fairbreeze properties were not inside a
municipal area and were
never the subject of any zoning controls
when mining authorisation was granted in 1988. That situation
persisted until 2002 when
mining activity commenced.
Accordingly, the question as to
whether the first respondent required any authorisation in terms of
the TPO when mining commenced
must be answered in the negative.
It becomes unnecessary to decide the
remaining issues.
COSTS
The applicant has asked, in the event
that it is unsuccessful, that it not be made to bear the first
respondent’s costs.
That submission is underpinned by
reference to the decision in
Biowatch Trust v Registrar, Genetic
Resources, &Ors
2009 (6) SA 232
(CC). There, in a unanimous
judgment,
Sachs
J said:
‘
16.
In my view, it is not correct to begin the enquiry by a
characterisation of the parties. Rather, the starting point should be

the nature of the issues. Equal protection under the law requires
that costs awards not be dependent on whether the parties are
acting
in their own interests or in the public interest. Nor should they be
determined by whether the parties are financially well-endowed
or
indigent or, as in the case of many NGOs, reliant on external
funding. The primary consideration in constitutional litigation
must
be the way in which a costs order would hinder or promote the
advancement of constitutional justice.’
In support of that submission the
applicant contends that:
it is relevant that the first
respondent itself urgently requires clarity as to whether it
commenced mining lawfully;
it should be taken into account that
the first respondent did not disclose the basis on which it
contended that it had lawfully
commenced mining until delivery of
its heads of argument. Prior thereto the applicant had only the
letter dated 5 October 2012
to go by;
there has been a reasonable and
justifiable confusion on the part of the applicant as to when the
first respondent commenced mining.
It contends that had the first
respondent issued a notice in terms of section 54(1) of the Minerals
Act during 2002 the issues
might have been resolved a long time ago.
None of those arguments impress me.
As indicated earlier (paragraph 19
above), the applicant rushed to court on urgent application a mere
four court days after receipt
of the letter of 5 October 2012. There
is no indication on the papers of any attempt to engage the first
respondent’s attorneys
in discussion on the contents of their
letter, nor indeed, if that had been done, what might have come of
that discussion. The
situation was, in my view, not so urgent as to
require immediate recourse to litigation. That must have been the
applicant’s
view as well because if it had thought differently
about the question of urgency, the Notice of Motion would presumably
have
made some reference to some sort of interim relief. It did not.
To my mind the contents of the letter of 5 October 2012 penned
by
the first respondent’s attorneys dictated that the more
prudent course would have been to embark upon some measure of

enquiry and engagement. Had that been done the outcome might have
been different. Had the enquiry and engagement process been
rebuffed
my attitude to costs might well have been different.
The reference to section 54(1) of the
Minerals Act is confusing. That section provides for the holder of
any mining authorisation,
at least 14 days before commencing with
any operations, to notify the Director: Mineral Development and the
Chief Inspector of
Mines in writing of such intended commencement.
There is simply no evidence in the papers that speaks to this topic.
In any event,
the applicant does not suggest how such notice, given
the identity of the intended recipients, would have assisted it.
In terms of
Biowatch
, I ignore
the fact that the first respondent might well have “deep
pockets”. I ignore also the fact that the applicant
might rely
on public funding and that it purports to act in the interests of
the public and the environment. Relevant too, is
the fact that the
applicant is not litigating against the State. Costs, in the
ordinary case, ought to follow the result; and
to allow it to do so
in this case would not hinder the promotion of constitutional
justice.
The issues have been complex and the
consequences of the order sought were potentially devastating for
the first respondent. It
is entitled to the costs of two counsel.
The application is dismissed with
costs, such costs to include those consequent upon the employment by
the first respondent of
two counsel.
_____________
Vahed J
CASE INFORMATION
Date of Hearing: 8
November 2012
Date of Judgment: 8
January 2013
Applicant’s
Counsel: R J Salmon SC
Applicant’s
Attorneys: Norman Brauteseth& Associates
4 Caefron Avenue
Westville
(Ref: Mr N
Brauteseth/NM0074)
Tel: 031 266 9300
admin@nbalaw.co.za
Respondent’s
Counsel: P J Olsen SC& A A Gabriel SC
Respondent’s
Attorneys: Shepstone & Wylie
24 Richefond Circle
Ridgeside Office Park
Umhlanga Rocks
(Ref: Mr I
Sampson/ljas/CLSC15035.2)
Tel: 031 575 7205
sampson@wylie.co.za