Maccsand in the Constitutional Court: Dodging the NEMA issue

• Jurisdiction: South Africa
• Date: 16 August 2019
• Published date: 16 August 2019
• Author: Tracy Humby
• Pages: 55-72

55

MACCSAND IN THE CONSTITUTIONAL COURT:

DODGING THE NEMA ISSUE

[DISCUSSION OF MACCSAND (PTy) LTD v CiTy of CAPe

TowN 2012 4 SA 181 (CC)]

Tracy Humby

BMus BProc LLB LLM PGDip (Tertiary Ed) PhD

Associate Professor, University of the Witwatersrand

1 Introduction

The relationship between t he Mineral and Petroleum Resou rces

Development Act 28 of 2002 (“MPRDA”) and the Land Use Planning

Ordinance 15 of 1985 (“LUPO”) on the one hand, and between the M PRDA

and the National Environme ntal Management Act 107 of 1998 (“NEMA”)

on the other, were the twin pilla rs of contention in the recently decided ca se

of Maccsand (Pty) Ltd v City of Cape Town.1 The Constitutional Court, i n

holding that the MPRDA does not superse de the LUPO, has made it clear

that applicants for mini ng permits and rights cannot avoid the need to comply

with municipal plann ing law.2 The subject of this note, however, is the court’s

handling of the relationship bet ween the MPRDA and the NEM A. Despite

extensive argument on th is matter in both t he Supreme Court of Appeal

and the Constitutiona l Court, the lat ter avoided dealing with the issue. T he

purpose of this note is t o ventilate the argu ments raised in con nection with

the NEMA issue and to c ritique the cour t’s response. It is further sug gested

that the court’s decision on the relationship bet ween the MRPDA and LUPO

nevertheless goes some way to resolving the N EMA issue as well.

2 Facts

Maccsand, a sand and st one supplier based in Somerset West, held a mining

permit 3 to mine sand on the Rock lands Dune, and a m ining right4 for the

same resource on the Westridge Du ne. The dunes form pa rt of the Cape

Flats Dune Stra ndveld ecosystem in Mitchell’s Plain, Western Cape. The

Departme nt of Mineral Resources (“DMR”) had gr anted these authorisations

in 2007 and 2008, respe ctively, in terms of the MPRDA. The City of Cape

1 2012 4 SA 181 (CC) The m atter was first h eard in the Western Cap e High court and re ported as City of

Cape Town v Maccsand ( Pty) Ltd 2010 6 SA 63 (WCC) and subseque ntly in the Supreme Co urt of Appeal

as Mac csand (Pty) Ltd & Minister of Mine ral Resources v City of Cape Town (Cha mber of Mines as

amicus cur iae) 2011 6 SA 633 (SCA)

2 Maccsand (Pt y) Ltd v City of Cape Town 2012 4 SA 181 (CC) paras 40-51

3 A mining pe rmit is an author isation granted i n terms of s 27 of the MPR DA It i s meant for smaller scal e

mining an d is valid for no longer than t wo years

4 A mining r ight is an authorisat ion granted in te rms of s 23 of the MPRDA and may aut horise mining for

up to 30 years

(2013) 24 Stell LR 55

© Juta and Company (Pty) Ltd

Town (“the City”) owned the erven upon which mi ning were to take place, all

of which were either zoned “public open space” or “ru ral”. Notwithstanding

the assu mptions that could ow from these zoning designat ions, the mini ng

areas on both dunes were sit uated close to residences and schools. The City

was opposed to the gra nt of both mining author isations because the zon ing

schemes in terms of LUPO d id not authorise the use of the land for min ing

– so either the zoning scheme had t o be amended to authorise m ining on the

land, or a depart ure from the zoning scheme had to be g ranted. Maccsand and

the DMR, however, argued that exploitation of mineral s could not take place

effectively unless mini ng was regulated solely by the MPRDA. The “LUPO

issue” thus revolved around whether an applicant for a mi ning authorisat ion

was required to comply with bot h the MPRDA and the LUPO or, put another

way, whether the MPRDA “superseded” the LUPO.

Notwithstandi ng that its LUPO house was not in order, Maccs and

commenced min ing operations on the Rockla nds Dune in Febru ary 2009.

The City subsequently applied in the Wester n Cape High Cour t for an

interim interdict pen dente lite and a nal interdict prohibiting Maccsand

from commencing or cont inuing its mining activities on the du nes until it had

obtained an authoris ation under LUPO.

In March 2009, the Depar tment of Local Government , Environmental

Affairs and Development Plann ing, Western Cape (“the P rovince”) joined the

fray by providing Maccsand w ith a notice of its intention to issue a compliance

notice in terms of sect ion 31L of the NEMA on the grounds, among others,

that its mining of the Rock lands Dune invoked “liste d activities” 12 and 20

of GN R 386,5 being activities that requi re a prior environment al impact

assessment in ter ms of the NEMA. Behind the insistence on complianc e with

these provisions lay a concern for the end angered status of the du nes: The

Cape Flats Dune Stra ndveld ecosystem has been classied a s “endangered”

in the national list of ecosyste ms that are threatened and in need of prote ction

in terms of the National Envi ronmental Mana gement: Biodiversity Act 10 of

2004.6 In orde r to remove the sand, a bulldozer would rst remove the t opsoil

and natural vegetat ion covering the dunes. T he expected duration of the mine

on the Rocklands Dune wa s two years, after wh ich Maccsand had proposed

to convert the proper ty into the quotidia n drearine ss of a playground, skate

park, dir t track and grafti wall wit h an associated parking area and block of

toilets.7 For the Westridge Dunes, wit h a longer expected duration for mi ning

of 38 to 40 years, Maccsand had propose d a rehabilitation programme, but the

5 S 24(2) of the NEMA auth orises the Minist er responsible for the envi ronment to identif y activities that

may not commenc e without a prior envi ronmental auth orisation The f irst listing s of such activities wer e

promulgated a s GN R 385-387 in GG 28752 of 21-05-2006 Activity 12 wa s defined as “ the transfor mation

or removal of indige nous vegetatio n of three hect ares or more of any si ze where tra nsformat ion or

removal would occu r within a critically e ndangered ecosystem, l isted in terms of s 52 of the National

Environme ntal Manage ment Biodiversit y Act, 2004”; whi le activit y 20 was defin ed as “the t ransform ation

of any area zoned for u se as public open spac e or for a conservatio n purpose to anot her use”

6 See GN 1002 in GG 34809 of 09 -12-2011

7 Third Resp ondent’s Heads of Arg uments in t he Application s for Leave to Cross-A ppeal and Di rect

Access in the matter b etween Maccsand ( Pty) Ltd v City of Cape Town 2012 4 SA 181 (CC) para 17

56 STELL LR 2013 1

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