Maccsand (Pty) Ltd v City of Cape Town and Others

Maccsand (Pty) Ltd obtained a mining right and a mining permit under the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) to mine sand on land within the jurisdiction of the City of Cape Town. The land was zoned for public open space and rural use under the Western Cape Land Use Planning Ordinance 15 of 1985 (LUPO), and mining was not a permitted land use. Maccsand commenced or intended to commence mining without obtaining rezoning or land-use approval from the municipality. The City of Cape Town contended that mining could not lawfully proceed without compliance with LUPO. The High Court and the Supreme Court of Appeal held, in essence, that LUPO continued to apply. Maccsand applied for leave to appeal to the Constitutional Court, arguing that the grant of a mining right under the MPRDA entitled it to mine notwithstanding LUPO zoning restrictions.

Leave to appeal was granted, but the appeal was dismissed. The Constitutional Court confirmed that LUPO applies to land on which mining rights and permits have been granted and that mining may not commence without the necessary rezoning or land-use approval. The cross-appeal by the MEC did not succeed in obtaining additional declaratory relief.

This case is a leading authority on the relationship between mining rights and land-use planning in South Africa. It confirms that holders of mining rights must comply with provincial and municipal land-use legislation and that mining rights do not trump zoning laws. The judgment reinforces the constitutional principle of cooperative government and clarifies the division of regulatory competence between national mining regulation and local land-use control.