Land claimants have lodged a renewed court bid to stop sand mining in Macassar.
While the land may be awarded to a number of victims forcibly removed from the land under apartheid laws, a mining company says it will go out of business altogether if forced to stop operations there.
The matter has a long history, dating from 1997 when a land claim was lodged for Zandvliet Commonage, now referred to as erf 1197, Macassar.
Sand mining company Maccsand obtained rights to mine the dunes in 2000.
The Macassar Land Claims Committee took the matter to court and in 2003 the Land Claims Court prohibited sand mining of the dunes, as well as the rezoning of the land.
The case then went to the Supreme Court of Appeal, which made some amendments to the order, effectively allowing for limited mining of the dunes pending the outcome of the land claim.
In a separate case, Maccsand took on the City of Cape Town in an attempt to mine sand from two dunes in Mitchells Plain.
The case went all the way to the Constitutional Court, which found last year that any land on which mining was planned had to first be re-zoned in terms of municipal and provincial land use planning ordinances.
After this ruling, the company applied to the City of Cape Town in October for a permit for the Macassar dunes – zoned for agricultural use – which would allow a temporary departure from the zoning scheme regulations.
The Macassar Land Claims Committee has now gone back to the Land Claims Court, seeking an order that, among other things, prevents Maccsand from mining the dunes without a “temporary departure” permit and that prevents the zoning of the land from being changed to allow mining.
Maccsand, however, which is among the respondents, is opposing the application, contending that if such an order were granted, it would go out of business.
Among the arguments presented in court yesterday by advocate Joel Krige, acting for the committee, was that the claimants had a clear right to the restoration of the land unless it was trumped by aspects of public interest.
It was possible, he further argued, to expunge the company’s mining rights and restore the land to the claimants.
“You’re entitled to claim free of encumbrances, and this is one of those encumbrances,” said Krige.
Advocate Les Rose-Innes, for Maccsand, said his fundamental point was that even though sand was being mined, the land would be rehabilitated if the claimants’ land claim was successful and the erf was restored to them.
He argued that the relief the committee was seeking was essentially asking the court to “interfere” with city planning procedures.
In terms of the Constitutional Court’s ruling, the land either had to be rezoned or a temporary departure from the zoning scheme had to be granted.
The claimants, however, were doing “everything in their power” to prevent the company from obtaining a temporary departure, Rose-Innes argued.
“The obvious purpose is to achieve a situation where Maccsand is prevented from mining,” he said.
The company’s only mining operations were at the Macassar dunes, and should it be prevented from sand mining there, he said, the company would cease to mine and go out of business. - Cape Times