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[2012] ZACC 8
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Minister for Mineral Resources v Swartland Municipality and Others (CCT 102/11) [2012] ZACC 8; 2012 (7) BCLR 712 (CC) (12 April 2012)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 102/11
[2012] ZACC 8
In the matter between:
MINISTER FOR MINERAL RESOURCES
.................................................
Applicant
and
SWARTLAND MUNICIPALITY
….................................................
First
Respondent
HUGO WIEHAHN LOUW N.O.
…..............................................
Second
Respondent
CORNELIA JOHANNA ELIZABETH LOUW N.O.
…....................
Third
Respondent
IGNATIUS VILJOEN N.O.
….........................................................
Fourth
Respondent
IZAK BARTHOLOMEAS VAN DER VYFER N.O.
…....................
Fifth
Respondent
ELSANA QUARRY (PTY) LTD
…..................................................
Sixth
Respondent
MEC FOR LOCAL GOVERNMENT,
ENVIRONMENTAL AFFAIRS AND DEVELOPMENT
PLANNING, WESTERN CAPE PROVINCE
…..........................
Seventh
Respondent
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):
The
Minister for Mineral Resources has brought this application for
leave to appeal against the judgment of the Supreme Court
of Appeal
in terms of which her appeal was dismissed with costs. The Minister
had appealed against a judgment of the Western
Cape High Court
1
in which the Hugo Louw Trust (Trust) and Elsana Quarry (Pty) Ltd
(Elsana) were interdicted from conducting mining operations
on Lange
Kloof farm situated in the municipal area of Swartland Municipality
(Municipality).
The
Minister was cited as a respondent in the High Court even though no
relief was sought against her. Her interest in the matter
arose from
the fact that she had granted a mining right which Elsana claimed
authorised it to undertake mining operations on
the farm. The
Minister holds the view that the exercise of the right granted by
her in terms of the Mineral and Petroleum Resources
Development Act
2
(MPRDA) is not subject to the requirements of the Land Use Planning
Ordinance
3
(LUPO).
The
facts are straightforward and are not in dispute. The Trust owns the
farm which is 598.7328 hectares in extent and is surrounded
by other
farms. It granted Elsana permission to mine granite. The second to
fifth respondents are its trustees. The second respondent
is also a
director of Elsana.
In
June 2008 Elsana applied to the Municipality to have the farm
rezoned so as to allow for mining to be conducted on it. But
it
withdrew the application
before it
was
determined by the Municipality. This was done on the strength of the
advice received from the Department of Mineral Resources
to the
effect that rezoning was unnecessary.
In
February 2009 the Minister, acting in terms of section 23 of the
MPRDA, granted Elsana a mining right to be effective for a
period of
30 years, terminating on 16 February 2039. Mining was restricted to
an area comprising 71.25 hectares on the farm.
A quarry site was
established where the mining was to be carried out. Soon upon the
commencement of mining operations, the owner
of the neighbouring
farm lodged a complaint with the Municipality, alleging that the
blasting of dynamite had an adverse effect
on the production of milk
from its cows
.
Responding
to the complaint, the Municipality addressed a letter to the Trust
pointing out that mining operations on the farm
were not permitted
in terms of LUPO. At that time, the farm was zoned Agricultural I,
which meant that it could only be used
for agricultural purposes
like cultivation of crops or animal farming. In fact, before the
mining started, the farm was used
for grazing cattle and sheep. In
its letter the Municipality advised that the Trust should apply for
rezoning of the farm to
Industrial III, which would authorise mining
on the land. In reply, the Trust disputed that the mining operations
were illegal
and argued that these operations were conducted on the
strength of a mining right granted in terms of section 23 of the
MPRDA.
The
Municipality launched an urgent application in the High Court
against the Trust, Elsana and the Minister. It sought an interdict
restraining the Trust and Elsana from pursuing mining operations on
the farm until it had been rezoned in terms of LUPO to allow
mining.
In opposing this relief, the Minister asserted that the
Municipality’s understanding of the law was mistaken. She
argued that LUPO did not apply to land used for mining which was
regulated by the MPRDA. Meeting the requirements of the MPRDA
was,
on the Minister’s argument, sufficient to authorise the mining
operations on the farm.
The
Minister submitted to the High Court that it was “constitutionally
impermissible” to hold that LUPO applied to
land used for
mining because the Constitution excluded its application. Relying on
the decision of this Court in
Wary Holdings (Pty) Ltd v Stalwo
(Pty) Ltd and Another
,
4
the High Court held that LUPO regulates land use and that it directs
every local authority to comply and enforce compliance with
its
provisions. Properly construed, held the Court, LUPO is consistent
with the Constitution.
5
In conclusion the High Court rejected the contention that LUPO
authorised an unlawful intrusion into an area of exclusive national
competence by purporting to regulate mining. It held that LUPO
played no part in determining applications for mining rights.
6
Consequently
the High Court granted an interdict in these terms:
“
The
First to Fourth Respondents, in their capacity as trustees of the
Hugo Louw Familietrust, and [Elsana] are interdicted and restrained
from conducting mining activities and/or permitting others to conduct
mining activities on the immovable property described as
the
remainder of the Lange Kloof farm, No 701, Malmesbury Division,
Western Cape Province, unless and until the said immovable
property
is rezoned from Agricultural I to Industrial III, or any such other
rezoning which permits mining activities.”
With
leave of the High Court, the Minister appealed against this order to
the Supreme Court of Appeal. The Trust and Elsana withdrew
their
appeal shortly before the hearing in the Supreme Court of Appeal.
The Minister persisted.
The
Supreme Court of Appeal held that the MPRDA does not regulate land
use planning whereas LUPO does. The MPRDA, the Court held
further,
governs mining. Accordingly, it concluded that LUPO operates
alongside the MPRDA with the result that once a party is
granted a
mining right in terms of the MPRDA, it may not commence mining
operations unless the land to which the right applies
is
appropriately zoned in terms of LUPO.
7
The
application was heard in this Court together with
Maccsand v The
City of Cape Town
,
8
which is a matter similar to the present one. The reasons given for
granting leave and dismissing the appeal in that matter apply
equally to this case. As a result, I do not intend to repeat them
here. Suffice it to say, I agree with the Supreme Court of
Appeal
that a party who is granted a mining right or permit in terms of the
MPRDA may start mining operations only if the zoning
of the land in
terms of LUPO allows it. It follows that leave to appeal must be
granted here but the appeal must fail.
What
remains is the issue of costs. The Municipality and the MEC for
Local Government, Environmental Affairs and Development Planning,
Western Cape have successfully opposed the appeal and I can think of
no reason why they should be denied costs. The Minister
for Mineral
Resources must pay their costs. Elsana and the trustees did not take
part in the present hearing.
Order
The
following order is made:
1. Leave to appeal is granted.
2. The appeal is dismissed.
3. The Minister for Mineral Resources must pay the costs of Swartland
Municipality and the MEC for Local Government, Environmental
Affairs
and Development Planning, Western Cape, including costs of two
counsel.
For the
Applicant:
For the
First Respondent:
For the
Seventh Respondent:
Advocate MM Oosthuizen and Advocate K Warmer, instructed by the
State Attorney.
Advocate J Newdigate SC and Advocate P de B Vivier, instructed by
Terblanche Slabber Pieters.
Advocate A Breitenbach SC and Advocate R Paschke, instructed by
Werksmans Incorporated.
1
Swartland
Municipality v Louw NO and Others
2010 (5) SA 314
(WCC).
2
Act
28 of 2002.
3
Ordinance
15 of 1985.
4
[2008]
ZACC 12
;
2009 (1) SA 337
(CC);
2008 (11) BCLR 1123
(CC).
5
Swartland
Municipality
above n 1 at para 33.
6
Id
at para 34.
7
Louw
NO and Others v Swartland Municipality
[2011] ZASCA 142
at paras
11-2.
8
Maccsand
v City of Cape Town and Others
[2012]
ZACC
7
at paras 40-51.