Maccsand (Pty) Ltd v City of Cape Town

Maccsand (Pty) Ltd was granted a mining permit (October 2007) and mining right (August 2008) by the Minister for Mineral Resources under the Mineral and Petroleum Resources Development Act (MPRDA) to mine sand on the Rocklands dunes (3.643 hectares, restricted to 1.5 hectares) and Westridge dunes (74.2 hectares, restricted to 16.3 hectares) in Mitchell's Plain, Cape Town. Both areas were owned by the City of Cape Town and zoned under the Land Use Planning Ordinance (LUPO) as public open space and rural land - zoning which did not permit mining. When Maccsand commenced operations in February 2009, the City sought an interdict to stop mining until the land was appropriately rezoned under LUPO and environmental authorisations were obtained under the National Environmental Management Act (NEMA).

• Whether LUPO applies to land in respect of which mining rights and permits have been granted under the MPRDA
• Whether a holder of mining rights under the MPRDA must comply with municipal land use planning legislation (LUPO)
• Whether the MPRDA displaces LUPO as a 'relevant law' applicable to mining operations
• Whether requiring compliance with LUPO constitutes an impermissible intrusion by the local sphere of government into the exclusive national competence over mining
• Whether sections 146 or 148 of the Constitution should be applied to resolve any conflict between the MPRDA and LUPO
• Whether it is in the interests of justice to grant leave to appeal and cross-appeal
• Whether environmental authorisations under NEMA are required for mining activities

1. Condonation granted for late filing by the MEC and the City; 2. Leave to appeal granted; 3. Appeal dismissed; 4. Leave to cross-appeal refused; 5. Direct access refused; 6. Minister for Mineral Resources ordered to pay the City of Cape Town's costs in the Constitutional Court, including costs for two counsel; 7. Other parties to pay their own costs in the Constitutional Court. The interdicts granted by the High Court requiring rezoning under LUPO before mining could proceed were upheld.

1. Mining rights and permits granted under the MPRDA are subject to compliance with 'any relevant law' as stated in section 23(6) of the MPRDA, which includes provincial and municipal land use planning legislation such as LUPO. 2. The phrase 'any relevant law' in section 23(6) must be given its ordinary wide meaning and is not confined to laws regulating mining only. 3. LUPO and the MPRDA serve different purposes and regulate different subject matters - the MPRDA governs mining (national competence) while LUPO regulates land use (municipal planning competence). 4. The fact that mining cannot proceed until land is appropriately rezoned under LUPO does not constitute an impermissible intrusion by the local sphere of government into the exclusive national competence over mining. 5. There is no conflict between LUPO and the MPRDA requiring resolution under sections 146 or 148 of the Constitution because each law operates within its own sphere of competence. 6. The overlap between mining and land use regulation is permissible in the constitutional order and reflects the principle that spheres of government do not operate in hermetically sealed compartments. 7. When one sphere's decision cannot be implemented without consent from another sphere within whose jurisdiction the decision is to be executed, this does not constitute a 'veto' but rather the legitimate exercise of concurrent powers requiring cooperative governance.

1. Jafta J observed that potential difficulties arising from one sphere requiring consent from another sphere could be resolved through cooperation between organs of state, as required by section 41 of the Constitution, and failing that, through review proceedings. 2. The Court noted that while LUPO permits only landowners to apply for rezoning, land may also be rezoned at the instance of the provincial government or municipality, so Maccsand could request Provincial Government intervention to effect rezoning. 3. On costs, the Court applied the general principle in constitutional litigation that an unsuccessful private party should not ordinarily be ordered to pay costs against the state, but an unsuccessful state party should pay costs. However, a court of appeal should not interfere with a lower court's costs order unless the discretion was not judicially exercised or was based on wrong facts or principles. 4. The Court stated that direct access is improper where issues have already been adjudicated by another court - an issue that is the subject of leave to appeal cannot simultaneously be the subject of direct access. 5. Mining plays an important role in the national economy and investors require clarity on statutory requirements, making this an appropriate case for Constitutional Court determination to establish certainty.

This judgment is a landmark decision clarifying the relationship between national mining legislation and provincial/municipal land use planning legislation in South Africa. It establishes that mining rights granted under the MPRDA do not automatically override municipal zoning schemes, and that holders of mining rights must comply with land use planning requirements. The case demonstrates how different spheres of government can exercise concurrent powers in overlapping functional areas without impermissibly intruding on each other's competence. It reinforces the constitutional principle of cooperative governance between spheres of government. The decision has national implications as similar land use planning legislation exists in other provinces, and provides important guidance for mining investors on the regulatory requirements they must satisfy. It balances the national imperative of mineral resource development with local government's legitimate role in land use planning and environmental protection.