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

Maccsand (Pty) Ltd was granted a mining permit in October 2007 and a mining right in August 2008 by the Minister for Mineral Resources under the Mineral and Petroleum Resources Development Act (MPRDA) to mine sand on the Rocklands and Westridge dunes in Mitchell's Plain, within the City of Cape Town's municipal area. These dunes were zoned under the Land Use Planning Ordinance (LUPO) as public open spaces and rural land, which did not permit mining. When Maccsand commenced mining operations in February 2009, the City of Cape Town instituted interdict proceedings to prevent mining until the land was rezoned under LUPO and until environmental authorizations were obtained under the National Environmental Management Act (NEMA). The High Court granted interdicts based on both LUPO and NEMA. Maccsand and the Minister for Mineral Resources appealed to the Supreme Court of Appeal, which upheld the LUPO-based interdict but set aside the NEMA-based interdicts on the basis that the relevant government notice had been repealed. Maccsand then sought leave to appeal to the Constitutional Court.

• Whether the Land Use Planning Ordinance (LUPO) applies to land in respect of which mining rights and permits have been granted under the MPRDA
• Whether LUPO constitutes a 'relevant law' to which mining rights are subject under section 23(6) of the MPRDA
• Whether the application of LUPO to mining activities constitutes an impermissible intrusion by the local sphere of government into the exclusive national competence over mining
• Whether there is a conflict between the MPRDA and LUPO that must be resolved under sections 146 or 148 of the Constitution
• Whether the declaratory order sought by the MEC regarding NEMA authorizations should be granted
• The interplay and overlap between different spheres of government in relation to mining, environmental management, and land use planning

1. Condonation granted. 2. Leave to appeal granted. 3. The appeal is dismissed. 4. Leave to cross-appeal is refused. 5. Direct access is refused. 6. The Minister for Mineral Resources must pay the costs of the City of Cape Town in this Court, including costs occasioned by the employment of two counsel. 7. The other parties must pay their own costs in this Court.

A mining right or permit granted under the MPRDA does not displace the application of LUPO to the land in question. Section 23(6) of the MPRDA expressly provides that mining rights are subject to "any relevant law," which includes land use planning legislation such as LUPO. The phrase "any relevant law" must be given its ordinary wide meaning and is not limited to laws regulating mining only. LUPO and the MPRDA serve different purposes within the competence of different spheres of government: the MPRDA governs mining (national competence) while LUPO regulates land use planning (local competence). The overlap between these functions does not constitute an impermissible intrusion by one sphere into another because spheres of government do not operate in sealed compartments. The Constitution requires spheres of government to cooperate with one another in mutual trust and good faith when exercising overlapping powers. There is no conflict between LUPO and the MPRDA requiring resolution under sections 146 or 148 of the Constitution because each law deals with different subject matter and the MPRDA expressly contemplates compliance with other relevant laws.

The Court observed that if rezoning is refused by a municipality, this does not constitute a "veto" of the mining decision but rather the exercise of lawful power by the municipality. Such difficulty may be resolved through cooperation between organs of state, and if cooperation fails, the refusal may be challenged on review. The Court noted that while LUPO permits landowners to apply for rezoning, land may also be rezoned at the instance of provincial government or the municipality, and Maccsand could request provincial intervention to effect rezoning. On the issue of direct access, the Court commented that it is improper to seek direct access in respect of matters already decided by another court, as direct access implies that issues have not been adjudicated elsewhere. An issue that is the subject of an application for leave to appeal cannot simultaneously be the subject of an application for direct access. Regarding costs in constitutional litigation, the Court reiterated the general rule that an unsuccessful private party in proceedings against the state should not be ordered to pay costs, but if the state is unsuccessful it is generally ordered to pay costs. However, where a private party makes common cause with a state party in relation to issues raised unsuccessfully, the private party may be ordered to pay costs jointly and severally with the state party.

This case is a landmark decision on cooperative governance in South Africa's constitutional democracy. It clarifies the relationship between national mining legislation and provincial/municipal land use planning laws, establishing that mining rights granted under national legislation remain subject to provincial and local land use requirements. The judgment reinforces the principle that spheres of government exercise concurrent and overlapping powers that must be coordinated through cooperation rather than one sphere displacing another. It affirms that section 23(6) of the MPRDA, which subjects mining rights to "any relevant law," includes land use planning legislation. The case has significant implications for mining operations throughout South Africa, particularly in provinces where land use planning ordinances operate. It establishes that holders of mining rights must comply with local zoning requirements, and that such compliance does not constitute an impermissible "veto" by local government over national decisions but rather the proper exercise of concurrent constitutional powers. The judgment provides important guidance on interpreting the phrase "any relevant law" broadly rather than restrictively.