About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2012
>>
[2012] ZACC 7
|
|
Maccsand (Pty) Ltd v City of Cape Town and Others (CCT103/11) (CC) [2012] ZACC 7; 2012 (4) SA 181 (CC); 2012 (7) BCLR 690 (CC) (12 April 2012)
Links to summary
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 103/11
[2012] ZACC 7
In the matter between:
MACCSAND (PTY) LTD
….........................................................................
Applicant
and
CITY OF CAPE TOWN
….................................................................
First
Respondent
MINISTER FOR WATER AFFAIRS
AND ENVIRONMENT
….............................................................
Second
Respondent
MEC FOR LOCAL GOVERNMENT,
ENVIRONMENTAL AFFAIRS AND DEVELOPMENT
PLANNING, WESTERN CAPE PROVINCE
….............................
Third
Respondent
MINISTER FOR RURAL DEVELOPMENT AND
LAND REFORM
…........................................................................
Fourth
Respondent
MINISTER FOR MINERAL RESOURCES
….................................
Fifth
Respondent
and
CHAMBER OF MINES OF SOUTH AFRICA
….......................
First
Amicus Curiae
AGRI SOUTH AFRICA
….......................................................
Second
Amicus Curiae
Heard on : 16 February 2012
Decided on : 12 April 2012
JUDGMENT
JAFTA J (Mogoeng CJ, Yacoob ADCJ, Cameron J, Froneman J, Khampepe J,
Maya AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and
Zondo AJ
concurring):
Introduction
At
the heart of these applications is the interplay in the mining
sector between the Mineral and Petroleum Resources Development
Act
1
(MPRDA), on the one hand and on the other, the Land Use Planning
Ordinance
2
(LUPO) and the National Environmental Management Act
3
(NEMA). Leave to appeal is sought against the judgment of the
Supreme Court of Appeal which partly upheld the decision of the
Western Cape High Court (High Court). Maccsand (Pty) Ltd (Maccsand)
seeks leave to appeal against the part of the order that
dismissed
its appeal.
The
MEC for Local Government, Environmental Affairs and Development
Planning, Western Cape Province (MEC) seeks leave to cross-appeal
against the same part of the order but only in the event that this
Court finds that LUPO does not apply to land, in respect of
which a
mining right and permit have been granted in terms of the MPRDA. The
MEC also seeks leave to cross-appeal against a ruling
in terms of
which the Supreme Court of Appeal refused to grant a declaratory
order.
Statutory framework
I
consider it convenient at the outset to outline the framework within
which the issues arise. The MPRDA is a fairly new enactment,
which
came into force on 1 May 2004. It seeks to achieve a number of
objects, the majority of which are transformative. Among
its key
purposes is the commitment made by the state to eradicate all forms
of discriminatory practices in the mineral and petroleum
industries,
by promoting access by all South Africans to mineral and petroleum
resources.
4
The creation of equitable access is facilitated by declaring the
mineral and petroleum resources to be the heritage of all the
people
and making the state a custodian of these resources for the benefit
of all South Africans. This enables the state, through
the Minister
for Mineral Resources, to control and regulate access to these
resources.
5
In
order to ensure that access to resources by black people and women
6
is promoted, one of the requirements for granting a mining right is
that the exercise of the right must be capable of expanding
opportunities for black people and women to enter the industry
concerned and benefit from the exploitation of the resources.
In
addition, the granting of the right must promote employment and
advance the social and economic welfare of all South Africans.
7
As
one of the laws passed to promote section 24 of the Constitution,
8
one of the MPRDA’s purposes is to protect the environment by
ensuring ecologically sustainable development of mineral and
petroleum resources while at the same time promoting economic and
social development.
Section
23(1) of the MPRDA empowers the Minister for Mineral Resources to
grant mineral rights if certain listed conditions are
met.
9
If all the conditions are satisfied, the Minister is bound to issue
the mineral right. The Minister is free to impose whatever
terms and
conditions under which the right may be exercised.
10
Every right so granted comes into effect on the date on which the
environmental management programme is approved.
11
In
order to exercise the right, the holder of a mining right needs a
permit authorising it to enter the land in which the mineral
is
located and carry out mining to extract it from the land. A permit
of this kind is issued by the Minister for Mineral Resources
if
three conditions are met.
12
First is that the mineral in question must be capable of being mined
optimally within a period of two years. Second is that the
area on
which mining is to be carried out must not exceed 1.5 hectares.
Third, the applicant must have submitted an environmental
management
plan.
The
interplay between the MPRDA and NEMA
Both
Acts were passed to promote the right to an environment entrenched
in section 24 of the Constitution.
13
The MPRDA obliges the Minister for Mineral Resources to consult with
her colleague responsible for the administration of NEMA
when she
considers an environmental management plan or programme. In
addition, this Minister must request written comments on
the plan or
programme concerned from the head of the department whose minister
is consulted.
14
The Minister for Mineral Resources cannot approve an environmental
management plan or programme without considering those comments
and
a recommendation by the Regional Mining and Development Committee.
15
NEMA
was enacted as a general statute that co-ordinates environmental
functions performed by organs of state.
16
It also provides for “co-operative, environmental governance
by establishing principles for decision-making on matters
affecting
the environment”.
17
As is evident from the long title, NEMA was passed to establish a
framework regulating the decisions taken by organs of state
in
respect of activities which may affect the environment.
18
It lays down general principles which must be followed in making
decisions of that nature.
In
order to give effect to general objectives of integrated
environmental management, NEMA requires the Minister for
Environmental
Affairs (now Minister for Water Affairs and
Environment), with the concurrence of the MEC to identify activities
which may not
commence without environmental authorisation from a
competent authority.
19
These activities are listed in notices published in the Government
Gazette.
20
When
listing activities, the Minister for Water Affairs and Environment
must identify the competent authority responsible for
granting
environmental authorisation in respect of each listed activity.
21
Section 24C(2) requires this Minister to be identified as the
competent authority in relation to activities enumerated there.
Most
of these activities have implications for international
environmental relations. Section 24C prescribes that the Minister
for Mineral Resources be identified as the competent authority where
an activity constitutes mining or a related activity occurring
within mining.
22
This means that it is only the Minister for Mineral Resources who is
competent to grant authorisations in respect of these activities.
She must also be consulted before any activity relating to mining is
listed.
Section
24O sets out the criteria to be taken into account when a competent
authority considers an application for authorisation.
23
In peremptory terms the section requires the Minister for Water
Affairs and Environment or the Minister for Mineral Resources,
as
the case may be, to comply with NEMA and take into account factors
enumerated in the section when determining an application
for an
authorisation.
In
addition, these Ministers or other competent authorities are obliged
to consult every state department that administers a law
relating to
the environment.
24
A state department consulted in terms of section 24O must submit
written comments within 40 days of the request by the consulting
Minister.
25
If a consulted state department objects to an application for
mining, the Minister for Mineral Resources is obliged to refer
the
objection to the Regional Mining Development and Environmental
Committee for consideration and recommendation.
26
This Committee must consider the objection and make a recommendation
to the Minister for Mineral Resources for a final decision.
27
The
requirement for consulting every department that administers laws
relating to environmental matters guarantees a co-ordinated
and
integrated environmental governance and management. It ensures that
all role players are taken on board before a decision
authorising an
activity which affects the environment is made.
The interplay between LUPO and the MPRDA
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.
28
The interim Constitution permitted it to continue in force subject
to amendment or repeal by the competent authority.
29
Later the President assigned its administration to the provincial
government of the Western Cape.
30
LUPO
authorises municipalities to prepare structure plans which are
submitted to the provincial government for approval.
31
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.
32
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.
33
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.
34
But a rezoning may also be initiated by the municipality in whose
jurisdiction the land falls or the provincial government.
35
LUPO obliges municipalities to enforce compliance with its
provisions.
36
More importantly it prohibits the use of land for purposes other
than the one permitted in terms of the zoning scheme.
37
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
against this legislative background that the issues arising in this
matter fall to be decided. But before considering them,
it is
necessary to set out briefly the facts and the history of
litigation.
Facts
In
October 2007 the Minister for Mineral Resources, acting in terms of
section 27 of the MPRDA, granted a mining permit to Maccsand.
This
permit authorised Maccsand to mine sand on the Rocklands dunes which
are 3.643 hectares in extent, but the mining was restricted
to an
area of 1.5 hectares in extent. These dunes are located in a
residential area between two schools and close to private
homes. The
City of Cape Town (City) is the owner. The permit authorised
Maccsand to carry out sand mining for a period of two
years, which
could be renewed for a period of not more than three years. But in
terms of LUPO the Rocklands dunes were zoned
as public open space.
This meant that unless the land was appropriately rezoned, it could
not be used for mining.
In
August 2008 the Minister for Mineral Resources issued a mining right
to Maccsand which entitled it to mine and remove sand
from the
Westridge dune which is 74.2 hectares in extent. The proposed mining
area was however limited to 16.3 hectares. This
dune too is situated
in a residential area. Private homes abut the dune on three sides
and vacant land abuts it on the fourth
side. The Westridge dune
consists of three erven owned by the City. Two erven were zoned as
public open spaces whereas one was
zoned rural. This zoning did not
allow the land to be used for mining. Both the Rocklands and the
Westridge dunes are located
in Mitchell’s Plain, a residential
area within the municipal area of the City.
In
February 2009 Maccsand commenced mining operations on the Rocklands
dunes. The City, which is obliged to ensure compliance
with LUPO,
instituted proceedings for an interdict restraining Maccsand from
mining sand on the dunes until the dunes were rezoned
to allow
mining.
In the
High Court
The
City later amended the relief it sought in the High Court, by adding
that Maccsand also be interdicted from mining on the
dunes until
authorisations were granted to it under NEMA. Although no relief was
sought against them, the Minister for Mineral
Resources, the
Minister for Water Affairs and Environment, the MEC and the Minister
for Rural Development and Land Reform were
cited with Maccsand as
respondents.
Before
the High Court, both the Minister for Mineral Resources and Maccsand
contended that to construe LUPO as applying to land
used for mining
would be inconsistent with the scheme of the Constitution. They
argued that the Constitution divides and confers
powers to each
sphere of government and where it does not permit a concurrent
exercise of powers, one sphere cannot interfere
with the exercise of
power by another sphere. They submitted that mining falls under the
exclusive competence of the national
government and therefore LUPO
does not apply to land used for mining because it regulates a
municipal functional area.
Relying
on decisions of this Court,
38
the High Court rejected the argument and held that LUPO applies to
land used for mining.
39
Regarding the claim for an interdict based on NEMA, the High Court
rejected the argument advanced by the Minister for Mineral
Resources
to the effect that NEMA did not apply to mining activities because
the MPRDA adequately protects the environment. Invoking
section
39(2) of the Constitution, the High Court held that the MPRDA and
NEMA must be construed in a manner that both laws apply
to mining
activities.
40
Consequently
the High Court issued interdicts in these terms:
“
(1)
the respondent may not commence or continue with mining operations on
erf 13625, Mitchell’s Plain; erf 9889, Mitchell’s
Plain;
erf 1848, Schaapkraal; and/or erf 1210, Mitchell’s Plain (‘the
properties’) until and unless authorisation
has been granted in
terms of the Land Use Planning Ordinance 15 of 1985, Cape (‘LUPO’)
for the land in question to
be used for mining;
(2) the first respondent may not
commence or continue with mining operation on the properties until
and unless an environmental
authorisation has been granted in terms
of the National Environmental Management Act 107 of 1998 (‘NEMA’)
for the carrying
out of the activity identified in item 20 of
Government Notice R386 of 21 April 2006 on the land in question;
(3) the first respondent may not
commence or continue with mining operations on erf 9889, Mitchell’s
Plain; erf 1848, Schaapkraal;
and erf 1210, Mitchell’s Plain
until and unless an environmental authorisation has been granted in
terms of NEMA for the
carrying out of the activity identified in item
12 of Government Notice R386 of 21 April 2006 on the land in
question.
(4) The first respondent is
interdicted from commencing or continuing with mining operations on
the properties until and unless:
4.1 authorisation has been
granted in terms of LUPO for the land in question to be used for
mining.
4.2 an environmental
authorisation has been granted in terms of NEMA for the carrying out
of the activity identified in item 20
of Government Notice R386 of 21
April 2006 on the land in question.
(5) The first respondent is
interdicted from commencing or continuing with mining operations on
erf 9889, Mitchell’s Plain;
erf 1848, Schaapkraal; and erf
1210, Mitchell’s Plain until and unless an environmental
authorisation has been granted in
terms of NEMA for the carrying out
of the activity identified in item 12 of Government Notice R386 of 21
April 2006 on the land
in question.
(6) The costs of this
application are to be paid by first and second respondents, jointly
and severally with one another, including
the costs of two counsel.”
In the Supreme Court of Appeal
Unhappy
with the order issued by the High Court, Maccsand and the Minister
for Mineral Resources appealed to the Supreme Court
of Appeal. They
argued that a land use authorisation in terms of LUPO was
unnecessary where a mining right or permit had been
issued in terms
of the MPRDA. They submitted that in the event of a conflict between
these laws, the MPRDA prevailed because
it regulated a functional
area vested in the national sphere of government. They argued
further that LUPO is not a “relevant
law” in terms of
section 23(6) of the MPRDA and as a result a holder of a mining
right need not comply with it. The Chamber
of Mines of South Africa
(Chamber), admitted as an amicus curiae, supported the argument
advanced by the appellants that NEMA
did not apply to mining because
the MPRDA gave sufficient effect to section 24 of the Constitution.
41
Having
considered the devolution of power between the three spheres of
government and the objects of LUPO and the MPRDA, the Supreme
Court
of Appeal held that these pieces of legislation operate alongside
each other. Therefore, the Court held further that a
holder of a
mining right or permit cannot proceed to mine unless LUPO permits
mining on the land concerned. However, the Supreme
Court of Appeal
set aside the interdicts based on NEMA on the ground that Government
Notice R386, on which they were based, was
repealed before the High
Court delivered its judgment. This meant, the Court held, that items
12 and 20 which required authorisation
before the relevant
activities could commence were no longer in force and could not be
contravened in the future. The Court concluded
that the interdicts
on this aspect were invalidly issued.
The
MEC had also sought a declarator to the effect that, notwithstanding
the rights and permits issued in terms of the MPRDA,
no person may
commence or continue with a mining activity listed in terms of
section 24 of NEMA without an environmental authorisation.
The
Supreme Court of Appeal refused to make the order on the ground that
the matter was of a hypothetical nature because none
of the parties
to the dispute had the interest envisaged in section 19(1)(a)(ii) of
the Supreme Court Act.
42
In this
Court
As
mentioned earlier, Maccsand seeks leave to challenge the order of
the Supreme Court of Appeal to the extent that it dismissed
the
appeal. It has cited as first to fifth respondents: the City, the
Minister for Water Affairs and Environment, the MEC, the
Minister
for Rural Development and Land Reform and the Minister for Mineral
Resources. But the Minister for Rural Development
and Land Reform
did not participate in these proceedings.
The
Chamber, a voluntary association comprising mining finance companies
and companies involved in the mining of minerals, was
admitted as an
amicus curiae. The objects of the Chamber are to “advance,
promote and protect the mining and other interests
of its members”.
43
It also acts on their behalf in cases where decisions are likely to
affect the common interests of its members.
Agri
South Africa (Agri SA) was also admitted as an amicus curiae. It is
an association representing nine provincial unions and
twenty eight
commodity organisations. Its members are commercial agricultural
producers. The Chamber and Agri SA were permitted
not only to submit
written argument but also to make oral submissions at the hearing in
this Court. Agri SA argued in favour
of applying NEMA to mining
activities whereas the Chamber advanced argument to the contrary.
In
addition to the conditional cross-appeal, the MEC sought leave to
cross-appeal against the ruling of the Supreme Court of Appeal
not
to grant the general declarator sought by the MEC. In the
alternative, the MEC sought direct access to this Court to apply
for
the declarator which the Supreme Court of Appeal had refused to
grant.
Issues
Apart
from the question whether leave to appeal and to cross-appeal should
be granted, we have to determine whether the MEC must
be granted
direct access to seek the relief he failed to obtain in the Supreme
Court of Appeal. Regarding the merits, two issues
arise. The first
issue is whether a holder of a mining right or permit granted in
terms of the MPRDA may exercise those rights
only if the zoning
scheme made in terms of LUPO permits mining on the land in respect
of which the mining right or permit was
issued. The second issue is
whether, in the present circumstances, the general declarator sought
by the MEC in the Supreme Court
of Appeal should be granted.
In
view of the fact that the application for leave to appeal is limited
to the issue pertaining to the applicability of LUPO to
land used
for mining, I find it convenient to separate the issues. I will
consider the application for leave to appeal first
and this will be
followed by the merits should I hold that leave ought to be granted.
The outcome on the merits of this issue
will have a bearing on the
conditional application to cross-appeal. But I need to dispose of
condonation applications first.
Condonation
The
MEC sought condonation for the late filing of the application for
leave to cross-appeal and direct access. The City also sought
condonation for the late filing of its written argument. Both
applications are not opposed. These parties were late by one day
and
the explanations furnished in both instances are satisfactory. No
other party was prejudiced by the delay because documents
were
served on them timeously. In these circumstances condonation should
be granted.
Leave to appeal – LUPO issue
As
the matter clearly raises constitutional issues, the only question
that needs consideration on this aspect of the case is whether
it is
in the interests of justice to grant leave. That the case raises
issues of great constitutional importance cannot be gainsaid.
As
stated earlier, the interface between the MPRDA and LUPO is at the
heart of the present dispute. On the face of it, there
may be a
tension between these two laws with regard to circumstances where
the land in respect of which a mining right or permit
has been
granted under the MPRDA is not zoned to be used for mining in terms
of LUPO. The administration of these laws falls
under different
spheres of government, which are under a constitutional obligation
to exercise their powers in a manner that
does not encroach on the
geographical, functional or institutional integrity of government in
another sphere.
44
The
issues arising in this matter are not confined to the Western Cape
Province. As national legislation, the MPRDA applies throughout
the
country. LUPO, on the other hand, applies in three provinces: the
Western Cape; parts of the Eastern Cape; and parts of the
North-West
Province.
45
There are similar provincial laws in other provinces as well.
46
Therefore the final determination of this dispute will have an
effect beyond the present parties.
Mining
plays an important role in the national economy. Potential investors
and those who have already invested in mining require
clarification
on the statutory requirements that they must meet, if they are to
exercise mining rights granted in terms of the
MPRDA. A decision by
this Court would give clarity and establish certainty. I am
satisfied that it is in the interests of justice
to grant leave to
appeal.
The merits – LUPO issue
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.
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.
47
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.
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.
48
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.
49
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.
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.
51
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.
52
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.
53
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.
But
Maccsand argued that because LUPO permits the owner of the land to
apply for rezoning, mining right and permit granted to
it will never
be exercised due to the fact that it is not the landowner and
therefore cannot apply for rezoning. It is true that
LUPO authorises
a landowner to apply for rezoning of land.
54
However, land may also be rezoned at the instance of the provincial
government or the municipality in whose jurisdiction it is
located.
55
In the light of the City’s opposition to the mining in
question, it is still open to Maccsand to request the Provincial
Government to intervene and have the rezoning effected.
The
final argument advanced by Maccsand and the Minister for Mineral
Resources was that if it is found that both the MPRDA and
LUPO apply
to land used for mining, then the application of the two laws gives
rise to a conflict. It was submitted that this
conflict must be
resolved by invoking section 146 of the Constitution,
56
alternatively section 148 of the Constitution.
57
Section 146 finds no application to the present dispute for the
reason, among others, that the MPRDA is not legislation falling
within a functional area listed in Schedule 4 of the Constitution.
But
more importantly the two sections do not apply because there is no
conflict between LUPO and the MPRDA. Each is concerned
with
different subject matter. And, as stated earlier, the exercise of a
mining right granted in terms of the MPRDA is subject
to LUPO. This
is what the MPRDA proclaims.
58
It follows that the appeal must fail for all these reasons.
Conditional leave to cross-appeal
The
conditional cross-appeal, in terms of which the MEC sought to impugn
the constitutional validity of the MPRDA, does not arise
because the
condition on which it was based has not materialised. It depended on
a finding that the MPRDA displaced LUPO with
regard to land used for
mining.
Leave
to cross-appeal
The
MEC’s application for leave to cross-appeal must fail because
it is not in the interests of justice to grant leave.
The
cross-appeal has no prospects of success. The declaratory order
sought is based on an assumption that mining is listed in
an
operational notice as an activity which may not commence without an
environmental authorisation. This assumption is wrong.
Since the
repeal of Government Notice R386, on which the interdicts granted by
the High Court were based, the Minister for Water
Affairs and
Environment has not as yet put into force the listing of activities
relating to mining. Section 24C(2A) of NEMA requires
that the
Minister for Mineral Resources be made a competent authority
responsible for granting authorisations in respect of mining
activities. At present there is no listing in operation which
authorises this Minister to grant authorisation.
Direct
access
Direct
access is sought in the alternative to leave to cross-appeal. In the
present circumstances the request for direct access
is improper.
Since direct access implies that the issues sought to be raised have
not been adjudicated by another court, it is
impermissible to seek
direct access in respect of matters which were decided by another
court. Therefore, an issue which is the
subject matter of an
application for leave to appeal cannot, at the same time, be the
subject matter of an application for direct
access. This issue may
feature in a direct appeal and not direct access. If the MEC were
entitled to seek direct access, the
request would still fail for
lack of prospects of success. Accordingly direct access must be
refused.
Costs
On
costs in this Court, counsel for Maccsand argued that should the
appeal fail, the general rule applicable to costs in constitutional
litigation must be followed. That rule provides that an unsuccessful
private party in proceedings against the state should not
be ordered
to pay costs.
59
But if the state is unsuccessful, it is generally ordered to pay
costs. The dismissal of the appeal means that Maccsand, a private
party, and the Minister for Mineral Resources, a state party, have
been unsuccessful. The City has successfully opposed the appeal
and
therefore it is entitled to its costs. On the application of the
general rule Maccsand must be exempted from paying the City’s
costs. It did not raise a frivolous appeal nor did it behave in a
manner deserving of censure by this Court.
60
However,
Maccsand also sought to have the costs order issued by the High
Court set aside. The Supreme Court of Appeal left this
order
unaltered. The High Court ordered Maccsand and the Minister for
Mineral Resources to pay the City’s costs jointly
and
severally. Although the High Court’s judgment does not
expressly set out reasons for the costs order granted, it is
apparent that the order is based on the fact that both parties
unsuccessfully opposed the City’s claim. This, on the face
of
it, does not constitute an improper exercise of a discretion, on
account of either the facts or legal principles.
Sitting
on appeal, we are not entitled to interfere with the exercise of
that discretion even if we could have exercised it differently,
had
we been sitting as a court of first instance.
61
A court of appeal is entitled to interfere with the exercise of this
discretion only if it is shown that the discretion has not
been
judicially exercised or has been exercised on the basis of a wrong
appreciation of the facts or wrong principles of law.
62
Maccsand
has not established any of the grounds upon which this Court is
entitled to interfere. Indeed the fact that it made common
cause
with the Minister for Mineral Resources in opposing the City’s
claim, coupled with the fact that they were both unsuccessful,
support the view that the decision of the High Court was judicially
made. In similar circumstances this Court, in
Bengwenyama
Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and
Others
,
63
ordered a private party to pay costs jointly and severally with a
state party on the basis that it made common cause with the
state
party in relation to issues which were raised unsuccessfully.
Order
The
following order is made:
1. Condonation is granted.
2. Leave to appeal is granted.
3. The appeal is dismissed.
4. Leave to cross-appeal is refused.
5. Direct access is refused.
6. The Minister for Mineral Resources must pay the costs of the City
of Cape Town in this Court, including costs occasioned by
the
employment of two counsel.
7. The other parties must pay their own costs in
this Court.
For
the Applicant: Advocate L Rose-Innes SC and Advocate N Bawa,
instructed by Cliffe Dekker Hofmeyr Inc.
For
the First Respondent: Advocate G Budlender SC and Advocate E Van
Huyssteen, instructed by Cullinan and Associates.
For
the Second Respondent: Advocate L Nkosi-Thomas SC and Advocate N
Rajab-Budlender, instructed by the State Attorney.
For
the Third Respondent: Advocate AM Breitenbach SC and Advocate R
Paschke, instructed by Werksmans Inc.
For
the Fifth Respondent: Advocate MM Oosthuizen and Advocate K Warmer,
instructed by the State Attorney.
For
the First Amicus Curiae: Advocate SJ Grobler SC and Advocate P
Lazarus, instructed by Norton Rose South Africa.
For
the Second Amicus Curiae: Advocate A Katz SC and Advocate H Kruger,
instructed by MacRobert Inc.
1
Act
28 of 2002.
2
Ordinance
15 of
1985.
3
Act
107
of 1998.
4
Section
2 of the MPRDA provides:
“
The objects of this Act are
to—
(a) recognise the internationally accepted right of the
State to exercise sovereignty over all the mineral and petroleum
resources
within the Republic;
(b) give effect to the principle of the State’s
custodianship of the nation’s mineral and petroleum resources;
(c) promote equitable access to the nation’s
mineral and petroleum resources to all the people of South Africa;
(d) substantially and meaningfully expand opportunities
for historically disadvantaged persons, including women, to enter
the
mineral and petroleum industries and to benefit from the
exploitation of the nation’s mineral and petroleum resources;
(e) promote economic growth and mineral and petroleum
resources development in the Republic;
(f) promote employment and advance the social and
economic welfare of all South Africans;
(g) provide for security of tenure in respect of
prospecting, exploration, mining and production operations;
(h) give
effect to section
24 of the
Constitution by ensuring that the nation’s mineral and
petroleum resources are
developed in an orderly and ecologically
sustainable manner while promoting justifiable social and economic
development; and
(i) ensure that holders of mining and production rights
contribute towards the socio-economic development of the areas in
which
they are operating.”
5
Under
various sections of the MPRDA
,
the
Minister for Mineral Resources is empowered to grant rights
pertaining to mining.
6
The
MPRDA defines “historically disadvantaged person” in
section 1 as:
“
(a) any person, category of
persons or community, disadvantaged by unfair discrimination before
the Constitution took effect;
(b) any association, a majority of whose members are
persons contemplated in paragraph (a);
(c) any juristic person other than an association, in
which persons contemplated in paragraph (a) own and control a
majority of
the issued capital or members’ interest and are
able to control a majority of the members’ votes”.
7
See
section 23(1)(h) of the MPRDA.
8
Section
24 provides:
“
Everyone has the right—
to an environment that is not harmful to their health
or well-being; and
to have the environment protected, for the benefit of
present and future generations, through reasonable legislative and
other
measures that—
prevent pollution and ecological degradation;
promote conservation; and
secure ecologically sustainable development and use of
natural resources while promoting justifiable economic and social
development.”
9
Section
23(1) provides:
“
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.”
10
Section
23(6) provides:
“
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.”
11
Section
23(5) provides:
“
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)
.”
12
Section
27 provides:
“
(1) A mining permit may only
be issued if—
(a) the mineral in question can be mined optimally
within a period of two years; and
(b) the mining area in question does not exceed 1,5
hectares in extent.
. . .
(6) The Minister must issue a mining permit if—
(a) the requirements contemplated in
subsection
(1)
are
satisfied; and
(b) the applicant has submitted the environmental
management plan.”
13
Section
24 is set out above in n 8.
14
Section
40 provides:
“
(1) When considering an
environmental management plan or environmental management programme
in terms of
section
39
, the
Minister must consult with any State department which administers
any law relating to matters affecting the environment.
(2) The Minister must request the head of a department
being consulted, in writing, to submit the comments of that
department
within 60 days from the date of the request.”
15
Section
39(4)(b) provides:
“
The Minister may not approve
the environmental management programme or the environmental
management plan unless he or she has
considered—
any recommendation by the Regional Mining Development
and Environmental Committee; and
(ii) the comments of any State department charged with
the administration of any law which relates to matters affecting the
environment.”
16
NEMA’s
Long Title states:
“
To provide for co-operative
environmental governance by establishing principles for
decision-making on matters affecting the environment,
institutions
that will promote cooperative governance and procedures for
co-ordinating environmental functions exercised by organs
of state;
to provide for certain aspects of the administration and enforcement
of other environmental management laws; and to
provide for matters
connected therewith.”
17
Id.
18
Above
n 16 and Preamble of NEMA.
19
Section
24(2) of NEMA provides:
“
The Minister, or an MEC with
the concurrence of the Minister, may identify—
(a) activities which may not commence without
environmental authorisation from the competent authority;
(b) geographical areas based on environmental
attributes, and as specified in spatial development tools adopted in
the prescribed
manner by the environmental authority, in which
specified activities may not commence without environmental
authorisation from
the competent authority;
(c) geographical areas based on environmental
attributes, and specified in spatial development tools adopted in
the prescribed
manner by the environmental authority, in which
specified activities may be excluded from authorisation by the
competent authority;
(d) activities contemplated in
paragraphs
(a)
and
(b)
that may commence without an
environmental authorisation, but that must comply with prescribed
norms or standards:
Provided that where an activity
falls under the jurisdiction of another Minister or MEC; a decision
in respect of
paragraphs
(a)
to
(d)
must be taken after
consultation with such other Minister or MEC.”
20
Section
24D provides:
“
(1) The Minister or MEC
concerned, as the case may be, must publish in the relevant Gazette
a notice containing a list of—
(a) activities or areas identified
in terms of
section
24(2)
; and
(b) competent authorities identified
in terms of
section
24C
.
(2) The notice referred to in
subsection
(1)
must
specify the date on which the list is to come into effect.”
21
Section
24C(1) provides:
“
When listing or specifying
activities in terms of
section
24(2)
the
Minister, or an MEC with the concurrence of the Minister, must
identify the competent authority responsible for granting
environmental authorisations in respect of those activities.”
22
Section
24C(2A) provides:
“
The Minister of Minerals and
Energy must be identified as the competent authority in terms of
subsection
(1)
where
the activity constitutes prospecting, mining, exploration,
production or a related activity occurring within a prospecting,
mining, exploration or production area.”
23
Section
24O(1) provides:
“
If the Minister, the Minister
of Minerals and Energy, an MEC or identified competent authority
considers an application for an
environmental authorisation, the
Minister, Minister of Minerals and Energy, MEC or competent
authority must—
(a) comply with this Act;
(b) take into account all relevant factors, which may
include—
(i) any pollution, environmental impacts or
environmental degradation likely to be caused if the application is
approved or refused;
(ii) measures that may be taken—
(aa) to protect the environment from harm as a result
of the activity which is the subject of the application; and
(bb) to prevent, control, abate or mitigate any
pollution, substantially detrimental environmental impacts or
environmental degradation;
(iii) the ability of the applicant to implement
mitigation measures and to comply with any conditions subject to
which the application
may be granted;
(iv) where appropriate, any feasible and reasonable
alternatives to the activity which is the subject of the application
and any
feasible and reasonable modifications or changes to the
activity that may minimise harm to the environment;
(v) any information and maps
compiled in terms of
section
24(3)
,
including any prescribed environmental management frame-works, to
the extent that such information, maps and frame-works are
relevant
to the application;
(vi) information contained in the application form,
reports, comments, representations and other documents submitted in
terms
of this Act to the Minister, Minister of Minerals and Energy,
MEC or competent authority in connection with the application;
(vii) any comments received from organs of state that
have jurisdiction over any aspect of the activity which is the
subject of
the application; and
(viii) any guidelines, departmental policies and
decision making instruments that have been developed or any other
information
in the possession of the competent authority that are
relevant to the application; and
take into account the comments of any organ of state
charged with the administration of any law which relates to the
activity
in question.”
24
Section
24O(2) of NEMA.
25
Section
24O(3) of NEMA.
26
Section
24O(4) of NEMA provides:
“
If any State department
contemplated in
subsection
(2)
objects
to the contents of an application for prospecting, mining,
exploration, production or related activities in a prospecting,
mining, exploration or production area, the Minister of Minerals and
Energy must refer the objection to the Regional Mining Development
and Environmental Committee for consideration and recommendation.”
27
Section
24O(5) of NEMA.
28
The
Cape of Good Hope was one of the four provinces that constituted
South Africa before 1994. Each province had the power to
make laws.
29
Section
229 of the interim Constitution provides:
“
Subject to this Constitution,
all laws which immediately before the commencement of this
Constitution were in force in any area
which forms part of the
national territory, shall continue in force in such area, subject to
any repeal or amendment of such
laws by a competent authority.”
30
GN
115 GG 15813, 17 June 1994.
31
See
section 4 of LUPO.
32
Section
5 of LUPO.
33
Section
9 of LUPO provides:
“
(1) Control over zoning shall
be the object of scheme regulations, which may authorise the
granting of departures and subdivisions
by a council.
(2) Scheme regulations may be amended or replaced by
the Administrator by notice in the Provincial Gazette after the
proposed
amendment or replacement has, if deemed necessary by the
director, been made known in such manner as the director may think
fit.”
34
Section
16 of LUPO provides:
“
(1) Either the Administrator
or, if authorised thereto by the provisions of a structure plan, a
council may grant or refuse an
application by an owner of land for
the rezoning thereof.
(2)(a) A rezoning in respect of which the application
has been granted by virtue of the provision of subsection (1) shall
lapse—
(i) if the land concerned is not, within a period of
two years after the date on which the application for rezoning was
granted,
utilised as permitted in terms of the zoning granted by the
said rezoning;
(ii) where it has been so granted for the purposes of
section 22, if a relevant application for subdivision in accordance
with
the rezoning concerned is not made in terms of section 24
within a period of two years after the date on which the application
for rezoning was granted, or
where such application for subdivision was indeed so
made, but the subdivision concerned or part thereof is not
confirmed, unless
either the Administrator or, if authorised
thereto by the provisions of the structure plan concerned, the
council extends the
said period of two years, which extension may
be granted at any stage.
Subject to the applicable provisions of section 7,
14(2), 14(4)(a) or 14(4)(b), land in respect of which a zoning has
lapsed
in terms of subsection (2) of this section shall be deemed
to be zoned in accordance with the utilisation thereof as
determined
by the council concerned.
(3) Where an application for rezoning is granted under
subsection (1) or a rezoning has lapsed in terms of subsection (2),
the
local authority concerned shall as soon as practicable amend the
zoning map concerned and, where applicable, a register in its
possession accordingly.”
35
Section
18 of LUPO.
36
Section
39(1) of LUPO.
37
Section
39(2) of LUPO provides:
“
No person shall—
contravene or fail to comply with—
the provision incorporated in a zoning scheme in terms
of this Ordinance, or
conditions imposed in terms of this Ordinance or in
terms of the Townships Ordinance, 1934,
except in accordance with the intention of a plan for a
building as approved and to the extent that such plan has been
implemented,
or
utilise any land for a purpose or in a manner other
than that intended by a plan for a building as approved and to the
extent
that such plan has been implemented.”
38
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal and Others
[2010] ZACC 11
;
2010 (6) SA 182
(CC);
2010 (9) BCLR 859
(CC);
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another
[2008] ZACC
12
;
2009 (1) SA 337
(CC);
2008 (11) BCLR 1123
(CC); and
Fuel
Retailers Association of Southern Africa v Director-General:
Environmental Management, Department of Agriculture, Conservation
and Environment, Mpumalanga Province and Others
[2007] ZACC 13
;
2007 (6) SA 4
(CC);
2007 (10) BCLR 1059
(CC).
39
City
of Cape Town v Maccsand (Pty) Ltd and Others
2010 (6) SA 63
(WCC) at 72-3.
40
Ibid
at page 79.
41
Maccsand
(Pty) Ltd and Another v City of Cape Town and Others
2011 (6) SA
633
(SCA) at para 8.
42
Section
19(1)(a)(ii) of the Supreme Court Act 59 of 1959 provides:
“
A provincial or local
division shall have jurisdiction over all persons residing or being
in and in relation to all causes arising
and all offences triable
within its area of jurisdiction and all other matters of which it
may according to law take cognizance,
and shall, subject to the
provisions of
subsection
(2)
, in
addition to any powers or jurisdiction which may be vested in it by
law, have power—
.
. .
to review the proceedings of all such courts.”
43
Paragraph
2(a) of the Chamber’s constitution.
44
See
section 41(1)(g) of the Constitution.
45
Section
81(1) of the Northern Cape Planning and Development Act 7 of 1998
repealed LUPO.
46
The
Orange Free State’s Townships Ordinance 9 of 1969, applicable
in the Free State Province and the Transvaal Province’s
Town-Planning and Townships Ordinance 15 of 1986, which applies in
Gauteng, Limpopo and Mpumalanga.
47
Part
B of Schedule 4. See
Johannesburg Metropolitan Municipality
above n 38 at para 57.
48
The
permit issued in this case states that it is subject to any other
relevant law.
49
Act
29 of 1996.
50
Above
n 41 at para 33.
51
Johannesburg
Metropolitan Municipality
above n 38 at para 53.
52
Section
41 of the Constitution.
53
Minister
of Public Works and Others v Kyalami Ridge Environmental Association
and Another
[2001] ZACC 19
;
2001 (3) SA 1151
(CC);
2001 (7) BCLR
652
(CC) at para 59 and
Wary Holdings (Pty) Ltd
above n 38 at
para 80.
54
See
section 16 and 17 of LUPO.
55
Section
18 of LUPO provides:
“
(1) A rezoning may, on the
initiative of the Administrator or a council, be granted under
section 16(1) by either the Administrator
after consultation with
the council concerned or, if authorised thereto by the provisions of
a structure plan, that council in
respect of land situated in its
area of jurisdiction, irrespective of whether or not a local
authority is the owner of the land.
(2) The provisions of section 16 and 17 shall, in so
far as they can be applied, apply
mutatis mutandis
in
relation to such a rezoning; provided that where the local authority
concerned is not the owner of the land concerned, the
owner, if his
address is known or can be ascertained, shall be notified of the
proposed rezoning and be afforded an opportunity
of commenting;
provided further that the provisions of section 16(2) shall not
apply to land which is rezoned in terms of subsection
(1) of this
section with a view to the acquisition thereof by the council
concerned.”
56
Section
146, in relevant part, provides:
“
(1) This section applies to a
conflict between national legislation and provincial legislation
falling within a functional area
listed in
Schedule
4
.
(2) National legislation that applies uniformly with
regard to the country as a whole prevails over provincial
legislation if
any of the following conditions is met:
(a) The national legislation deals with a matter that
cannot be regulated effectively by legislation enacted by the
respective
provinces individually.
(b) The national legislation deals with a matter that,
to be dealt with effectively, requires uniformity across the nation,
and
the national legislation provides that uniformity by
establishing—
(i) norms and standards;
(ii) frameworks; or
(iii) national policies.
The national legislation is necessary for—
the maintenance of national security;
the maintenance of economic unity;
the protection of the common market in respect of the
mobility of goods, services, capital and labour;
the promotion of economic activities across provincial
boundaries;
the promotion of equal opportunity or equal access to
government services; or
the protection of the environment.”
57
Section
148 provides:
“
If a dispute concerning a
conflict cannot be resolved by a court, the national legislation
prevails over the provincial legislation
or provincial
constitution.”
58
Section
23(6) of the MPRDA.
59
Biowatch
Trust v Registrar Genetic Resources, and Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at para 21.
60
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at para
138.
61
Giddey
NO v JC Barnard and Partners
[2006] ZACC 13
;
2007 (5) SA 525
(CC);
2007 (2) BCLR 125
(CC) at paras 19-22.
62
Tongoane
and Others v Minister of Agriculture and Land Affairs and Others
[2010] ZACC 10
;
2010 (6) SA 214
(CC);
2010 (8) BCLR 741
(CC) at para
131.
63
[2010]
ZACC 26
;
2011 (4) SA 113
(CC);
2011 (3) BCLR 229
(CC) at para 88.