Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Photo: Financial Mail

On Friday, 23 September 2011, the Supreme Court of Appeal handed down two landmark judgements that confirm the power of local authorities to regulate zoning for mining. The SCA held that a mining right or permit issued by the Department of Mineral Resources under the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) does not do away with the need for obtaining the correct planning authorisation from local authorities.

Very few mines in South Africa currently hold the correct zoning under local planning legislation, since mining authorisations have traditionally been regarded as authorisations that trump most other legislation (and certainly local legislation).

The SCA judgement was handed down in two separate cases, known as the Maccsand and Swartland cases. Follow the links to download the judgements, including the preceding High Court judgements.

In the judgements, the SCA held that Minister of Mineral Resources is not required to consider municipal planning when she grants a mining right or permit in terms of the MPRDA. She will not consider and will probably not even have the information available to her as to the current use of land, much less the municipality’s views on how the issue of a mining right/permit will impact on its inhabitants and its future plans. As a result, it cannot be said that the MPRDA provides a surrogate municipal planning function that displaces local planning legislation (in this case, the Western Cape Land Use Planning Ordinance (LUPO)), and it does not purport to do so. Its concern is mining, not municipal planning. Therefore, LUPO continues to function alongside the MPRDA. Once a mining right/permit has been issued, mining will not be permitted, unless LUPO allows for that use of the land.

While the Western Cape High Court held that a mining company is still required NEMA environmental authorisation for any listed activities to be undertaken during the mining process, the SCA held that because the government notice listing the relevant activities was repealed on 2 August 2010, the prayers for interdicts stopping these activities without an environmental authorisation were redundant, and the prayers for declarators academic.

Unlike the Western Cape High Court who pronounced on this issue, the SCA declined to give guidance by way of declaratory relief on the relationship between the MPRDA and NEMA.

All parties were ordered to pay their own costs.