Maccsand (Pty) Ltd v City of Cape Town and Others
Jurisdiction | South Africa |
Citation | 2012 (4) SA 181 (CC) |
Maccsand (Pty) Ltd v City of Cape Town and Others
2012 (4) SA 181 (CC)
2012 (4) SA p181
Citation |
2012 (4) SA 181 (CC) |
Case No |
CCT 103/11 |
Court |
Constitutional Court |
Judge |
Mogoeng CJ, Yacoob ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Maya AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo AJ |
Heard |
February 16, 2012 |
Judgment |
April 12, 2012 |
Counsel |
L Rose-Innes SC (with N Bawa) for the applicant. |
Flynote : Sleutelwoorde B
Mines and minerals — Mining right — Nature and ambit — Limitation — Town planning — Town planning and zoning schemes — Exercise of mining right C subject to compliance with LUPO — Land Use Planning Ordinance 15 of 1985 (Cape); Mineral and Petroleum Resources Development Act 28 of 2002.
Headnote : Kopnota
M, a mining company, obtained a mining right and permit under the Mineral and Petroleum Resources Development Act 28 of 2002 in respect of dunes D zoned as public open space under the Land Use Planning Ordinance 15 of 1985 (Cape). In issue was whether LUPO's application to the land ended on grant of the mining right and permit. The court held that it did not: exercise of the mining right was subject to LUPO and mining could not take place until the land was appropriately rezoned. (Paragraphs [34], [40], [48] and [51] at 195D – F, 196F – H, 198E/F – H and 200B.) E
Cases Considered
Annotations:
Case law
Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) (2005 (6) BCLR 529; [2005] ZACC 3): dictum in F para [138] applied
Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others 2011 (4) SA 113 (CC) (2011 (3) BCLR 229; [2010] ZACC 26): referred to
Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): dictum in para [21] G applied
City of Cape Town v Maccsand (Pty) Ltd and Others 2010 (6) SA 63 (WCC): referred to
Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province, and Others H 2007 (6) SA 4 (CC) (2007 (10) BCLR 1059; [2007] ZACC 13): referred to
Giddey NO v JC Barnard and Partners 2007 (5) SA 525 (CC) (2007 (2) BCLR 125; [2006] ZACC 13): dictum in paras [19] – [22] applied
Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (6) SA 182 (CC) (2010 (9) BCLR 859; [2010] ZACC 11): referred to I
Maccsand (Pty) Ltd and Another v City of Cape Town and Others 2011 (6) SA 633 (SCA): referred to
Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another (Mukhwevho Intervening) 2001 (3) SA 1151 (CC) (2001 (7) BCLR 652; [2001] ZACC 19): dictum in para [59] applied J
2012 (4) SA p182
Tongoane and Others v Minister of Agriculture and Land Affairs and Others 2010 (6) SA 214 (CC) (2010 (8) BCLR 741; [2010] ZACC 10): dictum in para [131] applied A
Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another 2009 (1) SA 337 (CC) (2008 (11) BCLR 1123; [2008] ZACC 12): referred to.
Statutes Considered
Statutes B
The Mineral and Petroleum Resources Development Act 28 of 2002: see Juta's Statutes of South Africa 2010/11 vol 6 at 2 – 251.
Ordinances
C The Land Use Planning Ordinance 15 of 1985 (Cape).
Case Information
An appeal against a decision of the Supreme Court of Appeal.
L Rose-Innes SC (with N Bawa) for the applicant.
G Budlender SC (with E van Huyssteen) for the first respondent.
L Nkosi-Thomas SC (with N Rajab-Budlender) for the second respondent. D
AM Breitenbach SC (with R Paschke) for the third respondent.
MM Oosthuizen SC (with K Warner) for the fifth respondent.
SJ Grobler SC (with P Lazarus) for the first amicus curiae.
A Katz SC (with H Kruger) for the second amicus curiae.
Cur adv vult. E
Postea (April 12).
Judgment
Jafta J (Mogoeng CJ, Yacoob ADCJ, Cameron J, Froneman J, Khampepe J, F Maya AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo AJ concurring):
Introduction
[1] At the heart of these applications is the interplay in the mining sector G 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 H appeal against the part of the order that dismissed its appeal.
[2] 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 I 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
2012 (4) SA p183
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)
MEC also seeks leave to cross-appeal against a ruling in terms of which A the Supreme Court of Appeal refused to grant a declaratory order.
Statutory framework
[3] I consider it convenient at the outset to outline the framework within B 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 C 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]
[4] In order to ensure that access to resources by black people and D women [6] is promoted, one of the requirements for granting a mining right
2012 (4) SA p184
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)
A 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]
B [5] As one of the laws passed to promote s 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.
C [6] Section 23(1) of the MPRDA empowers the Minister for Mineral Resources to grant mineral rights if certain listed conditions are met. [9] If
2012 (4) SA p185
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)
all the conditions are satisfied, the Minister is bound to issue the mineral A 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]
[7] In order to exercise the right, the holder of a mining right needs a B 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 C 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
[8] Both Acts were passed to promote the right to an environment D entrenched in s 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 E Mineral Resources cannot approve an environmental management plan
2012 (4) SA p186
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)
A or programme without considering those comments and a recommendation by the Regional Mining and Development Committee. [15]
[9] NEMA was enacted as a general statute that co-ordinates environmental functions performed by organs of state. [16] It also provides for B '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...
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