Mining rights granted by the national government do not trump municipal planning schemes, the Constitutional Court has ruled.
A judgment to this effect, made last week in a case described as “raising issues of great constitutional importance”, has been welcomed by environmentalists and lawyers representing groups fighting several mining and prospecting permits in the Western Cape and elsewhere.
One is advocate Martin Coetzee, who is heading the legal challenge by property owners in the Moutonshoek valley near Piketberg against approved prospecting for tungsten and other minerals in this agricultural area.
Saying the Concourt judgment had “finally brought an end to this matter”, Coetzee added: “Some people might now try and argue that prospecting and mining are not the same. I, however, would say that they might be farting against thunder! I have yet to see any agricultural zoning that permits prospecting as a primary, additional or even consent use.”
The Concourt judgment, written by Justice Chris Jafta, dismissed an appeal by local aggregate company Maccsand against a Supreme Court of Appeal judgment that had in turn confirmed an earlier Western Cape High Court ruling.
This was to the effect that Maccsand could not mine sand from sand dunes in Rocklands and Westridge in Mitchells Plain before these properties – most of them zoned public open space – had been rezoned for mining, despite its permit from the Mineral Resources Department.
The Concourt also dismissed an appeal by the Minister of Mineral Resources, Susan Shabangu, against a SCA judgment that confirmed the municipality’s refusal to allow granite mining on a farm in the Swartland area because it had not been zoned for mining in terms of the provincial Land Use Planning Ordinance.
Melissa Fourie, executive director of the Centre for Environmental Rights, said the Concourt’s “crucial” judgment confirmed that mining operations and mining companies had to comply with all laws, and that the national Mineral and Petroleum Resources Development Act did not trump other legislation.
Cape Argus