East Cape Game Properties (Pty) Limited v Dudley Grayame Brown and Others

The applicant purchased Portion 105 of the Farm Kragga Kamma 23 (the property) in 2011 with the intention to rezone it for residential development. At the time of purchase, the first respondent was mining sand on the property under a mining permit issued under section 27 of the MPRDA, which was due to expire in December 2015. The property is zoned Agricultural Zone 1 under the Cape Land Use Planning Ordinance (LUPO), which does not permit mining as a primary or consent use. The second respondent obtained a separate mining permit for another site on the property. In 2015, the applicant and respondents entered into an agreement for the applicant to take over mining operations, which was later terminated in January 2016. The applicant contended that the first respondent continued mining after his permit lapsed, and that the second and third respondents were mining unlawfully because mining is not permitted under the property's zoning.

• Whether the first respondent continued mining after the lapsing of his mining permit
• Whether mining activities can lawfully be conducted on property zoned Agricultural Zone 1 under LUPO where mining is not a permitted use
• Whether the MPRDA mining permit overrides or gives preference to use rights under land use planning legislation
• The proper interpretation and application of section 14 of LUPO regarding deemed zoning based on factual utilization as at 1 July 1986
• Whether the applicant established the requirements for an interdict (clear right, injury, and no alternative remedy)
• Whether the zoning determination constitutes administrative action subject to review under PAJA
• Whether the court should stay proceedings pending a proposed review application of the zoning decision
• The admissibility and effect of the zoning certificate issued by the municipality

1. The main application against the first respondent is dismissed with costs. 2. The second and third respondents are interdicted from: 2.1 utilizing the property for mining or removal of sand or any other substance, unless and until the property is zoned to permit mining (in which event the interdict will lapse); 2.2 entering upon the property whilst so interdicted, save for fulfilling any component of the order with prior authority of the applicant. 3. The second and third respondents are ordered to pay the applicant's costs in the main application, jointly and severally, including costs of two counsel. 4. The respondents' counter-application is dismissed with costs, including costs of two counsel. 5. The first to third respondents are ordered to pay the applicant's costs of the application to strike out, including costs of two counsel.

The binding legal principles are: (1) Mining rights granted under the MPRDA do not override or take preference over land use rights established under land use planning legislation (following Maccsand). A mining permit holder must comply with both mining legislation and applicable zoning schemes. (2) Where property is zoned in a manner that does not permit mining, mining activities on that property are unlawful notwithstanding a valid mining permit, and constitute a criminal offence under section 39(2) read with section 46(1) of LUPO. (3) Administrative action, including zoning determinations under LUPO, remains valid and binding until set aside by a court in judicial review proceedings (applying Oudekraal Estates principles). (4) The maxim omnia praesumuntur rite esse acta applies to zoning determinations under section 14 of LUPO. Once it is established that property has been granted a particular zoning, it is presumed that all necessary preceding steps (including the factual enquiry into actual land use) were complied with. The onus shifts to the party challenging the zoning to place facts before the court showing otherwise. (5) Courts do not have general discretion to stay proceedings beyond recognized grounds of abuse of process or lis pendens, and will not stay proceedings to permit ongoing criminal conduct. (6) Section 47 of the MPRDA does not provide an internal remedy available to affected third parties to have administrative decisions reviewed (following Bengwenyama Minerals).

The court made several obiter observations: (1) While accepting for purposes of the judgment that granting of use rights under LUPO zoning schemes constitutes administrative action subject to PAJA, the court did not definitively decide this issue. (2) The court commented on proper practice in motion proceedings, noting that while applicants must generally make out their complete case in founding papers, this requirement must yield to circumstances where a denial of facts could not reasonably have been expected, particularly where facts appeared to be common cause from prior correspondence and the respondent's own documentation. (3) The court observed that respondents' reliance on their "duplicating affidavit" (fourth set of papers filed without leave) was procedurally improper, noting that rule 6(5)(e) requires court permission before filing additional affidavits beyond the three sets provided for in rule 6, and that courts may disregard such affidavits as pro non scripto. (4) The court commented critically on the fifth respondent's refusal to provide an affidavit confirming zoning on grounds it was not joined in the proceedings, while simultaneously providing a zoning certificate - describing this stance as "somewhat peculiar." (5) The court rejected any suggestion that a municipal official would have misrepresented the zoning at the applicant's behest knowing it would be presented to the court, stating there was "no basis in logic or in law" for such an assumption.

This case confirms and applies the Constitutional Court's principle in Maccsand (Pty) Ltd v City of Cape Town that mining rights under the MPRDA do not override land use planning legislation, and that mining activities require both a valid mining permit and compliance with applicable zoning schemes. The judgment reinforces that unlawful land use (including mining in contravention of zoning) constitutes a criminal offence under LUPO and courts will not stay proceedings to sanction ongoing criminal conduct pending proposed review applications. The case also provides important guidance on: (1) the admissibility of municipal zoning certificates as public documents under the Civil Proceedings Evidence Act; (2) the application of the presumption that official acts are validly performed (omnia praesumuntur rite esse acta) to zoning determinations under LUPO; (3) the limited circumstances in which courts will exercise discretion to stay proceedings; and (4) the requirements for establishing genuine factual disputes in motion proceedings, particularly the need to set out primary facts rather than bald conclusions. The judgment demonstrates the continued interplay between mining law and environmental/planning law in South Africa.