[miningmx.com] — MINING companies have to obtain permission not only
from the Department of Mineral Resources for mining or prospecting on a piece of
land, but also from local authorities if the land is not zoned for mining purposes.
This was implied in two rulings delivered by the Constitutional Court on Thursday, in
which it upheld earlier judgments by the Supreme Court of Appeal in the Maccsand vs
City of Cape Town, as well as the Minister for Mineral Resources vs Swartland
Municipality cases.
The court agreed that where municipal land was concerned, the relevant municipality
had the final say in whether mining was allowed – in terms of the Land Use Planning
Ordinance (LUPO) – and not the Minister, by extension of the Mineral and Petroleum
Resources Development Act (MRPDA).
In the Maccsand case, the company was granted a right to mine mineral sands in two
areas of Mitchells Plain in Cape Town. In the second case, the company Elsana Quarry
had a licence to mine granite for 30 years on the farm Lange Kloof in the Malmesbury
district, which falls under the jurisdiction of the Swartland municipalities.
In both cases the municipalities had ordered the mining companies to cease activities
because the land areas were not zoned for mining. The Minister of Mineral Resources
and Maccsand contended that land-use authorisation in terms of LUPO was
unnecessary where a mining right or permit had been issued in terms of the MPRDA,
whereafter the issue went to court.
In September, the Supreme Court ruled in favour of the municipalities.
“It is proper for one sphere of government to take a decision whose implementation
may not take place until consent is granted by another sphere, within whose area of
jurisdiction the decision is to be executed,’ read the Constitutional Court’s judgment.
“If consent is, however, refused, it does not mean that the first decision is vetoed.
The authority from whom consent was sought would have exercised its power, which
does not extend to the power of the other functionary.
“This is so in spite of the fact that the effect of the refusal in those circumstances
would be that the first decision cannot be put into operation. This difficulty may be
resolved through cooperation between the two organs of state, failing which, the
refusal may be challenged on review.’
Apart from dismissing Maccsand and the DMR’s request for seeking leave to appeal
against the Supreme Court’s decision, the Constitutional Court’s Judge J Jafta
indicated that the principles of this case would be applicable not only to the areas
where LUPO applies – the Western Cape as well as parts of the Eastern Cape and
North West – but to similar laws in other regions as well.
Matthew van der Want, partner at mining law firm Bell Dewar, said one implication of
the ruling was that where mines were operating in the absence of local government
authorisation, they were mining illegally.
He said the judgments also afforded extra ammunition to a landowner in negotiations
with a mining company, as the owner would be the principal personal able to apply for
the rezoning of any property.
“Municipalities and provinces are also empowered to rezone, but they would have to
consult with the relevant landowner before doing so,’ said Van der Want.
