Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Response to the Constitutional Court’s judgement in the case of Maccsand (Pty) Ltd v City of Cape Town and Others, CCT 103/11

1. The Centre for Environmental Rights welcomes the judgement of the Constitutional Court in this case handed down today. The judgement confirms the Supreme Court of Appeal’s decision that, where mining is not permitted by a zoning scheme, the holder of a mining right or permit cannot start to mine, unless and until the land is rezoned to allow mining.
2. The Court clearly and correctly held that the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) – like the National Environmental Management Act, 1998 (NEMA) – is intended to promote s.24 of the Constitution[1], the Constitutional right to healthy environment, and that these statutes require the Minister for Mineral Resources to consult and cooperate with environmental authorities who administer NEMA.
3. While the Court placed great emphasis on cooperative governance between authorities with overlapping mandates, particularly in relation to environmental matters, this judgement also confirms that it is proper and appropriate for government departments and different spheres of government to approach the courts to resolve conflicts between them, should cooperation not be successful.
4. Crucially, the judgement confirms that mining operations and mining companies must comply with all laws, and that the MPRDA does not trump other legislation, including provincial legislation like the Land Use Planning Ordinance.[2] In other words, rights granted in terms of the MPRDA do not enjoy any special status. For too long, the mining sector has operated on the assumption that mining approvals outweighed any other legal requirements.
5. Today’s judgement marks the beginning of the end of decades of special treatment for the mining industry. The consequences of decisions made on mining operations without proper regard for other authorities and other legislation are severe, aggravate the detrimental impact mining operations have on the environment, and do nothing to benefit the country, the mining industry, mine workers or communities. It can no longer be justified.
6. In view of this judgement, it is clear that the MPRDA and any future amendment to the MPRDA must respect the constitutionally mandated functions of the different spheres of government and recognise the essential role of the Department of Water Affairs, the Department of Environmental Affairs, provincial and local government in decisions on mining.[3]

Queries and quotes attributable to Melissa Fourie, Executive Director, Centre for Environmental Rights. [email protected], 021 447 1647 or 072 306 8888.

[2] Ordinance 15 of 1985

[3] See http://cer.org.za/virtual-library/letters/review-of-the-mprda-2002-and-mprda-amendment-act-2008/