Daniel Jacobus Lukas Jacobs and Another v Transand (Pty) Ltd and Another

The applicants (married in community of property) are registered owners of Portion 11 of the Farm Hartenbosch 217 (Kleingeluk), Mossel Bay. The first respondent (Transand) has conducted mining operations on the property since 1969 under a 1974 notarial lease of mineral rights and subsequently held a mining right under the Mineral and Petroleum Resources Development Act. In 1998, Transand applied for a temporary departure under section 15 of the Land Use Planning Ordinance 15 of 1985. On 5 May 1999, the Executive Committee of the South Cape District Council approved the temporary departure subject to conditions, including that the property's zoning be determined as Agriculture Zone 1. The departure expired in May 2005. No rezoning or further departure was subsequently granted. In 2014, Transand indicated it would extend mining to new areas. The applicants objected on the basis that mining is not a permitted use under Agriculture Zone 1 and sought interdictory relief. The municipality issued zoning certificates confirming Agriculture Zone 1 zoning. Transand opposed, arguing the property had never been properly zoned Agriculture Zone 1, or alternatively was deemed zoned Industrial Zone III under section 14(1) of the Ordinance.

• Whether the property was validly zoned Agriculture Zone 1 under the Land Use Planning Ordinance
• Whether mining is a permitted use under Agriculture Zone 1 zoning
• Whether the property had a deemed zoning of Industrial Zone III under section 14(1) of the Land Use Planning Ordinance
• Whether the applicants established the requisites for a final interdict (clear right, injury actually committed or reasonably apprehended, absence of alternative remedy)
• Whether a pactum de non petendo in a 2004 agreement between the parties precluded the applicants from seeking interdictory relief
• Whether the court has discretion to suspend an interdict where the conduct complained of constitutes a criminal offence

1. The first respondent is interdicted and restrained from conducting or permitting any mining activities on Portion 11 of the Farm Hartenbosch 217 (Kleingeluk), Mossel Bay, unless and until authorisation has been granted under the Land Use Planning Ordinance 15 of 1985 or the Scheme Regulations authorising the land to be used for such activities. 2. The first respondent is ordered to pay the costs of the proceedings on a party and party scale, including costs consequent upon employment of two counsel.

1. A mining right granted under the Mineral and Petroleum Resources Development Act does not exempt the holder from compliance with land use planning requirements under the Land Use Planning Ordinance. 2. For property to have valid zoning under the Land Use Planning Ordinance, there must be evidence of a council decision determining the zoning; zoning certificates alone are insufficient proof. 3. Both the section 14(1) determination of utilisation and the section 14(3) determination of the most restrictive zoning must be completed for deemed zoning to exist. A section 14(1) determination alone does not create deemed zoning. 4. Where conduct complained of in interdict proceedings constitutes a criminal offence under section 39(2) and 46 of the Land Use Planning Ordinance, the court has no discretion to suspend the operation of the interdict, as to do so would countenance illegality contrary to the rule of law. 5. A pactum de non petendo will not preclude legal proceedings where circumstances have fundamentally changed from those contemplated when the agreement was concluded, or where the agreement was not directed at entirely unlawful future conduct.

The Court made several obiter observations: (1) Section 34 of the Constitution guarantees everyone's right to have disputes resolved by courts, and this fundamental right can only be limited by law of general application; a private agreement (pactum de non petendo) is not such a law and cannot override constitutional rights to access to courts. (2) While the Court has on occasion suspended interdicts where conduct constitutes an offence (citing Intercape Ferreira and 410 Voortrekker Road cases), such suspension is limited to instances where rights of vulnerable groups (such as refugees) must be safeguarded. (3) The Court did not need to determine whether the Full Council of the South Cape District Council had delegated decision-making powers to its Executive Committee, as this issue would be relevant to review proceedings but not to the interdict application. (4) The Court acknowledged that Transand would suffer prejudice in no small measure, including impacts on 110 employees and contractual obligations, but emphasized that such prejudice must yield to the primacy of the rule of law.

This case is significant in South African land use planning and mining law for several reasons: (1) it clarifies the interplay between the Mineral and Petroleum Resources Development Act and the Land Use Planning Ordinance, confirming that a mining right does not override land use planning requirements (following Maccsand v City of Cape Town); (2) it provides guidance on the requirements for establishing valid zoning under section 14 of the Land Use Planning Ordinance, emphasizing the need for documentary evidence of council decisions rather than mere zoning certificates; (3) it demonstrates the strict approach courts take when conduct constitutes a criminal offence, refusing to suspend interdicts even where significant economic prejudice will result; (4) it illustrates the primacy of the rule of law over commercial considerations; and (5) it clarifies that both section 14(1) (determination of utilisation) and section 14(3) (determination of most restrictive zoning) processes must be completed for deemed zoning to arise.