South Africa: Getting Zoned Out Of Business: The Sequel - The Outcome Of The Constitutional Court Appeal In The Maccsand Matter

Last Updated: 26 April 2012
Article by Stephen Levetan and Olivia Rumble

Most Read Contributor in South Africa, September 2018

On 11 April 2012 the Constitutional Court handed down the much awaited judgment in the matter of Maccsand (Pty) Ltd v City of Cape Town and Others. As we pointed out in our earlier newsflash of October 2011, ( implications of the SCA's decision in the cases of Maccsand and Louw), this matter concerns the interplay of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) and the Land Use Planning Ordinance of the Western Cape (LUPO) which regulate mining and land use planning respectively. Specifically in issue in this matter was whether the granting of a mining right or permit by the Department of Mineral Resources (DMR) entitled the holder of the right or permit to commence mining or continue with mining activities without the required land use authorisation in terms of LUPO.

The decision of the Supreme Court of Appeal (SCA) which held that a mining right in terms of the MPRDA did not obviate the need to also obtain the relevant land use zoning in terms of LUPO, was appealed by Maccsand to the Constitutional Court. A cross-appeal was also lodged by the MEC for Local Government, Environmental Affairs and Development Planning, Western Cape Province (MEC) against the SCA's refusal to grant a declaratory order on the question of whether an environmental authorisation for certain listed activities in terms of the National Environmental Management Act 107 of 1998 (NEMA) was also required for mining activities.

The Constitutional Court in its unanimous judgment delivered by Justice Jafta, dismissed the appeal and held that there is no conflict between LUPO and the MPRDA. Rather, each is concerned with different subject matter, namely the regulation of land use and mining respectively. Accordingly it was held that the exercise of a mining right granted in terms of the MPRDA is subject to LUPO and that the applicant was thus required to obtain the relevant land use zoning before it could continue to mine on the property. The Court however dismissed the application for cross appeal regarding the question of whether an environmental authorization was required in terms of NEMA for mining activities, mainly because the regulations in question in the original High Court matter had been repealed and the listing of activities relating to mining in the new (2010) regulations, had not yet been put into force. Accordingly, the Court held that the cross-appeal had no prospects of success.

In arriving at its decision, the Constitutional Court held that the issues in the appeal were not confined to the Western Cape Province. As national legislation, the MPRDA applies throughout the country. LUPO, on the other hand, applies in three provinces: the Western Cape, parts of the Eastern Cape and parts of the North-West province. However, as all the other provinces have similar ordinances and, in some instances, planning laws, the Court held that the determination of the issues in the appeal will have an effect beyond the parties to the matter.

The outcome of the appeal to the Constitutional Court confirms the conclusion we reached in our October 2011 newsflash, which we repeat for the benefit of our readers. Any use of land which is contrary to its zoning will require a re-zoning or land-use departure, regardless of whether a mining right or other such statutory rights have been obtained. This decision is thus of relevance not only to mining activities, but has a wide application to all development activities, for example, industrial or housing developments, regardless of where they are situated. Most environmental authorisations for such developments under NEMA will include a condition to the effect that the authorisation is subject to compliance with any other law. Obtaining the correct land use planning authorisation under the applicable Municipal zoning scheme and Provincial planning laws would be such other law. Careful attention should thus be paid to this aspect so as to ensure that the activity undertaken is in accordance with the land's authorised land-use to avoid the activity being halted by the relevant Municipality/Local Authority with the obvious negative commercial consequences for the activity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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