Donwald Pressly
A CONSTITUTIONAL Court (Concourt) ruling that any land for which mining is planned must first be rezoned in accordance with municipal and provincial land use planning ordinances has been welcomed by groups wanting to stop mining activities in two areas of the Western Cape’s west coast and in an urban area of Cape Town.
Verlorenvlei Coalition co-ordinator Malie Grutter, and the World Wildlife Fund South Africa (WWF) welcomed the judgment in the case of Maccsand versus the City of Cape Town and others, which effectively means that the national government’s licensing procedures cannot override provincial and municipal laws.
The WWF reported that the judgment confirmed the Supreme Court of Appeal’s decision earlier that, where mining is not permitted by a provincial zoning scheme, the holder of a mining right or permit cannot start to mine unless the land was rezoned to allow mining.
The coalition said it considered the ruling “a redress in the balance of power between mining and other imperatives such as agriculture, job security, water conservation, environmental protection and social stability”.
The coalition represents community members in the Moutonshoek and Verlorenvlei area, 50km north west of Piketberg. It is fighting black-empowered company Bongani Minerals, which has been granted a licence to prospect for minerals, including tungsten, in their valley.
Its chief executive, Johannes van der Walt, said yesterday that Bongani had been conducting prospecting activities in Moutonshoek. “These activities do not fall under Lupo (land use planning ordinance). When we get to the mining application we will address Lupo (issues).”
Bongani Minerals agreed to stop prospecting pending legal proceedings being heard after the Bergrivier local municipality sought an interdict in the Western Cape High Court.
Van der Walt has consistently countered arguments that the prospecting procedures would undermine jobs and agricultural activity in the area.
However, Grutter argued that the region’s future as a thriving agricultural economy, which provided up to 1 500 jobs during the peak season and was a haven for nature lovers that came to enjoy the vlei and Elands Bay, hung in the balance.
The Concourt was asked to resolve the jurisdictional row between the national government and the local and provincial government. The judgment was that national legislation cannot trump other legislation and a mining right was subject to the ordinance.
Mineral Resources Minister Susan Shabangu argued that mining was an exclusive competence of the national government and the land use planning ordinance could be overridden.
The case arose after Maccsand was granted permission by the national department to mine sand dunes in public open space in Mitchells Plain under provisions of the Mineral and Petroleum Resources Development Act (MPRDA).
In a similar Concourt case, the west coast Swartland municipality brought an interdict against Elsana Quarry and the Hugo Louw Trust after the mineral resources minister had granted the company granite mining rights on Lange Kloof farm in the Malmesbury district.
Shabangu subsequently brought an application for leave to appeal against the Supreme Court of Appeal judgment in terms of which her appeal was dismissed with costs. She had appealed against a judgment of the Western Cape High Court as well.
Shabangu’s interest was reported as having arisen from the fact that her department had granted a mining right that Elsana claimed authorised it to undertake mining operations.
It was reported in the judgment that she held the view that the exercise of the right granted by her in terms of the MPRDA “is not subject to the requirements of the land use planning ordinance”.
Judge Chris Jafta, with judges Moegoeng, Yacoob, Cameron, Froneman, Khampepe, Maya, Nkabinde, Skweyiya, Van der Westhuizen and Zondo concurring, upheld the Supreme Court of Appeal view that the MPRDA did not regulate land use planning where Lupo did. And the MPRDA governed mining, the court ruled.
The judges further ruled that until the immovable property was rezoned from agriculture to industrial land, the Hugo Louw Trust and Elsana were “restrained from conducting mining activities”.
Grutter said the court rulings “feel like a watershed moment of relief giving an indication to people who live in this community that landowners and municipalities will have a slightly bigger say in decisions, which will affect all their futures”.
The Maccsand and Elsana rulings, she said, were forceful in their endorsement of the reach of the land use planning ordinances. “We are emboldened by the stance of the Constitutional Court in upholding the common citizen’s constitutional rights.”