Reportable

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

5932/2009
In the matter between:

and

NATIONAL MINISTER OF WATER 

MINISTER OF LOCAL GOVERNMENT, 
ENVIRONMENTAL AFFAIRS AND 
DEVELOPMENT PLANNING, 

MINISTER OF RURAL 

DAVIS J

INTRODUCTION

Second Respondent granted first respondent, a black empowerment mining company, mining rights in terms of section 23 of the Mineral and
Petroleum Resources Development Act 28 of 2002 (MPRDA) in respect of Erven 1210 and 9889 Mitchell's Plain and Erf 1848 Schaapkraal together with a mining permit in terms of section 27 of MPRA in respect of Erf 1.3625 Mitchell's Plain. Applicant and fourth respondent contend that the Land Use Planning Ordinance 15 of 1985 (LUPO) requires, in addition to any right acquired under the MPRDA, that authorisation by applicant be procured before any exercise of these mining rights can take place.

Thus, the central dispute in this application is whether a mining permit or mining right granted under the MPRDA exempts the holder from having to obtain authorisation for its mining activities in terms of laws which regulate the use of that land, in particular the provisions of LUPO and the National Environment Management Act 107 of 1998 (NEMA).

The application, which was initially brought by the applicant, was for an order interdicting and restraining first respondent from conducting mining activities on the relevant erven, unless and until the necessary authorisations in terms of LUPO had been sought and obtained together with certain ancillary relief.

The initial application was brought in respect of Erf 13625, the so called Rocklands Dune. Applicant subsequently brought an application in respect of the other three erven and these two applications were then consolidated. Fourth respondent was joined as a party on the insistence of second respondent. Having been so joined, fourth respondent then brought certain conditional counter-applications, one of which counter-applications necessitated the joining of a further party, the fifth respondent.

6.6.1. that the PPA is inconsistent with the Constitution and invalid to that extent; and/or
6.6.2. that the MPRDA is inconsistent with the Constitution and invalid to that extent.
Fourth respondent, in a further alternative, and, in the event of the Court finding that the conditional relief sought falls within the exclusive jurisdiction of the Constitutional Court, seeks to interdict Maccsand from commencing or continuing mining operations on the Rocklands and Westridge dunes until the matter is determined by the Constitutional Court.

Notwithstanding the submissions of fourth respondent, applicant insists that the dispute can and should be decided on the narrow basis as envisaged in the original applications, namely that (i) mining activity may not be carried out unless authorisation has been granted under land use and environmental legislation; and (ii) in this case, no such authorisation has been so granted.

THE FACTUAL BACKGROUND

The Westridge Dune (Erven 1210, 9889 Mitchell's Plain and 1848 Skaapskraal) are continguous erven also located in the residential area of Mitchell's Plain. These erven constitute 16.3 hectares in extent The northern, southern and eastern sides of this dune abut onto private homes. The area to the west of the dunes is vacant land or, in this case, the dune abuts onto a major road. There is an informal settlement on Erf 1210.

Applicant and first respondent have engaged through correspondence with regard to the possible exploitation of the mining rights and permits since June 2006. It appears that first respondent applied for these rights in September 2006. Applicant refused to support the application and informed both first and second respondent of its position. It further informed both parties that authorisation in terms of LUPO was required before mining activities could be conducted on the erven.

Applicant was not notified by either first or second respondent that a permit in respect of Erf 13625 had been granted until first respondent delivered the permit to applicant's law enforcement office in Mitchell's
Plain, less than two weeks before it commenced mining. On 17 February 2009 first respondent started mining activities on the erven but did not give applicant any notification for such commencement in terms of Section 5(4) of the MPRDA.

This action prompted applicant to launch an urgent application to interdict and restrain first respondent from continuing mining activities on Erf 13625 unless and until it obtained the requisite authorisations in terms of LUPO. On 4 March 2009 applicant's attorney wrote to first respondent requesting an undertaking that they would not commence mining activities on the remaining erven, an undertaking which first respondent then failed to furnish. This omission prompted a further application for an interdict which was brought by applicant on 24 March 2009, in this case seeking to prevent first respondent from conducting mining activities on the remaining erven until the necessary authorisations had been procured.

THE CORE DISPUTE

Applicant's case is that neither of the zones applicable in respect of the Rocklands or Westridge Dunes authorises the use of this land for mining. Applicant avers that two actions would have to be taken before lawful mining activity could take place; either the zoning scheme would have to be amended to authorise mining on the relevant land or a departure would have to be granted from the existing zoning scheme to allow mining to take place on the land.

"Subject to section 20 of the National Parks Act, 1976 (Act No, 57 of 1976), and subsection (2), no reconnaissance permission, prospecting right, mining right or mining permit may be issued in respect of
(a)   	 land comprising a residential area;
(b)	any public road, railway or cemetery;
(c) 	any land being used for public or government purposes or reserved in terns of any other law; or
(d)	areas identified by the Minister by notice in the Gazette in terms of section 49. "

Section 48(2) provides that a mining right or permit may be issued in respect of land as contemplated in section 48(1), if the Minister is satisfied that-

"(a) having regard to the sustainable development of the mineral resources involved and the national interest it. is desirable to issue it;
(b) the reconnaissance on prospecting or mining will take place within the framework of national environmental management policies, norms and standards; and
(c) the granting of such rights or permits will not detrimentally affect the interests of any holder of a prospecting right or mining permit, "

"11   General purpose of zoning scheme
	The general purpose of a zoning scheme shall be to determine use rights and to provide for control over use rights and over the utilisation of land in the area of jurisdiction of a local authority. "

Pursuant to the applicable provisions of LUPO, erven 13625 and 9899 are zoned public open space. In terms of applicants' zoning scheme, regulations promulgated under LUPO, Erf 1848 is zoned public open space and Erf 1210 is zoned rural in terms of the Divisional Council Cape's zoning scheme regulations under LUPO.

"15   Applications for departure
	(1)(a) An owner of land may apply in writing to the town clerk or secretary concerned, as the case may be-
	(i) for an alteration of the land use restrictions
applicable to a particular zone in terms of the scheme regulations
concerned, or

It is thus to the question of the respective constitutional responsibilities of an authority, such as applicant, and second respondent, to which I must turn for a resolution of this problem.

THE CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY ET AL:- THE CONSTITUTIONAL COURT DISPOSES OF PART OF THE PROBLEM

In particular, section 156 (l)(a) of the Constitution provides that a municipality has executive authority in respect of these matters. First and second respondents contended that legislation like LUPO had to give way to the MPRA if the objectives of the latter were to be properly fulfilled.

The main issue in this case was the constitutionality of Chapters V and VI of the Development Facilitation Act 67 of 1995 which authorised provincial development tribunals to determine applications for the rezoning of land and the establishment of townships. A dispute arose between the City of Johannesburg Metropolitan Municipality and the Gauteng Development Tribunal which had been created by the Development Facilitation Act, the dispute concerning which sphere of government was entitled, in terms of the Constitution, to exercise the powers relating to the establishment of townships and the rezoning of land within the municipal area of the City.

(a) the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5; and 
(b)any other matter assigned to it by national or provincial legislation. "

Part B of Schedule 4 includes the following functional area, "Municipal Planning".

MINING: A TRUMP?

When these sections are examined together, it is clear that the Constitution does not detail exclusive national competence but carves out areas for provinces and municipalities, leaving the balance, being areas which are not so specified, to national government. In other words, the functional competence of the national government is defined by way of an examination of the functional competences of the local and provincial governments and not the other way round. In terms of section 44(l)(a)(2) of the Constitution, national government can pass legislation with regard to any matter, including the matters within the functional area listed in Schedule 4 which would include municipal planning.

CONCLUSION

"There is no reason why the two spheres of control cannot co-exist even if they overlap and even if, in respect of the subdivision of 'agricultural land', the one may in effect veto the decision of the other. It should be borne in mind that the one sphere of control operates from a municipal perspective and the other from a national perspective, each having its own constitutional and policy considerations. "

"The local authority considers need and desirability from the perspective of town-planning, and an environmental authority considers whether a town-planning scheme is environmentally justifiable, A proposed development may satisfy the need and desirability criteria from a town-planning perspective and yet fail from an environmental perspective. "

For it to be held that LUPO has no application to the use of land in a case such as the present dispute, the very idea of concurrent powers as envisaged in Schedule 4 of the Constitution would be called into question. The following example is illustrative of this concern. An examination of Schedules 4 and 5 reveals that correctional services, including the construction of prisons, is considered as an exclusive national competence; that is, it clearly not a provincial nor a local competence. Could it then be suggested that the construction of a prison by the Department of Correctional Services could take place in circumstances where the municipality, in whose jurisdiction the prison is proposed to be constructed, would have no say at all about the location of the proposed prison? Such a conclusion would not simply limit but eradicate the municipality's powers of municipal planning, allowing prisons to be located in, for example, an area zoned residential, no matter the views of the duly elected local government.

MINING AS A LAND USE
The approach that I have adopted leads thus to the further question as to whether mining is a land use, which in turn would fall within the scope of applicant's constitutional powers.

FOURTH RESPONDENT'S APPLICATION

Both applicant and the fourth respondent have contended that environmental authorisation in terms of NEMA is required for the mining on the Rocklands Dunes and the Westridge Dunes, because these activities fall within item 20 of GNR 386 of GG 28753 of 21 April 2006 as amended ('activity 20'). In addition, fourth respondent contends that the environmental authorisation in terms of NEMA is required for the mining on the Westridge Dunes because it will entail an activity described in item 12 of GNR 386.

The application of NEMA is made more difficult by virtue of the fact that it has been amended three times since the operation of the MPRDA which commenced on 1 May 2004. The provisions of NEMA which appear to be relevant to the determination of this dispute are complex. It is thus helpful to set them out fully:
"'24 Environmental authorisations

'(2) The Minister, or an MEC with the concurrence of the Minister, may identify-

'(4)   Procedures   for    the    investigation,    assessment   and communication of the potential consequences or impacts of activities on the environment-
(a)    must ensure, with respect to every application for an environmental authorisation-

'(7) Compliance with the procedures laid down by the Minister or an MEC in terms of subsection (4) does not absolve a person from complying with any other statutory requirement to obtain authorisation from any organ of state charged by law with authorising, permitting or otherwise allowing the implementation of the activity in question. '

'24K Consultation between competent authorities and consideration of legislative compliance requirements of other organs of state having jurisdiction

(2)	The Minister or an MEC, in giving effect to Chapter 3 of the Constitution and section 24(4)(a)(i) of this Act, may after consultation with the organ of state contemplated in subsection (1) enter into a written agreement with the organ of state in order to avoid- duplication in the submission of information or the carrying out of a process relating to any aspect of an activity that also requires environmental authorisation under this Act.

(3)	The Minister or an MEC may-

24L  Alignment of environmental authorisations

(a)	separate authorisations; or
(b)	an integrated environmental authorisation.

NEMA IN TERMS OF ITS RELATIONSHIP TO THE MPRDA

First respondent relied upon amendments to NEMA which relate to mining, and when implemented (which is not yet the case), would transfer environmental authorisations relating to mining to third respondent. However, when the 'mining related amendments' to NEMA commence, mining activity will not be absolved from the requirement that authorizations under NEMA are obtained if mining or related operations will entail activities listed under NEMA. All that will happen is that the power to issue those authorizations will be transferred from the National Environment Minister or the provincial MECs, to the Mining Minister. The authorizations, which he or her successor in that office will issue, will be authorizations in terms of NEMA.

To evaluate these contentions, it is necessary to refer again to sections 24(8) and 24L(4) of NEMA. These provisions deal expressly with the question whether the obtaining of authorisations for activities under other laws, which include the processes for the investigation, assessment and communication of the potential impacts or consequences of the activities, absolves the holders of those authorisations from obtaining environmental authorisations under NEMA, if the activities are listed or specified under NEMA. In my view, these provisions make clear, notwithstanding the processes and authorisations under other laws including the MPRDA, that an environmental authorisation under NEMA must be obtained unless the competent authority, empowered to issue the NEMA authorisation, decides to regard the authorisation under another law as a NEMA authorisation because it meets all the requirements stipulated in section 24(4).

The further difficulty with an argument that a NEMA authorisation is, in effect, not necessary, is the provision of section 24F(1) which provides that the requirement of an "environmental authorisation" (a term defined in section 1 to mean an environmental authorisation under NEMA or another specific environmental Act, which does not include the MPRDA) for activities listed or specified in terms of section 24(2) operates "notwithstanding any other Act".

It also follows from the structure of NEMA, as I have outlined it, and the fact that the MPRDA did not require an environmental impact assessment before a mining right may be granted, that an authorisation under NEMA was required. See, in particular sections, 24(8)(A), section 24K and section 24L of NEMA.

Dunes was situated and two or three erven on which the Westridge Dunes are situate are zoned public open space under the zoning scheme regulations of the Municipality of the City of Cape Town Zoning Scheme or the Town Planning Scheme of the Divisional Council of the Cape.

THE MINING PERMITS

As further support for the argument that it was not intended to exclude the land zoning and environmental legislation from the matrix of considerations dealing with mining in this case, the tenns of the permits granted by second respondent need to be taken into account.

Whatever the debate about the meaning of 'any other law', both of these clauses which are contained in the relevant permits clearly provide that restrictive provisions and conditions contained in the title deed might prevent the exercise of the mining right. Viewed accordingly, the permits appear to be based on the premise that legislation, including the MPRDA, do not over-ride such restrictive provisions or conditions.

RELIEF

In this case, applicant has shown a clear right to enforce the zoning conditions of LUPO in the interests of the local community.   It has adopted the view that the conduct of unlawful mining activities may pose a danger to the public and hence it relies on a LUPO requisite approval to be obtained to mine. Without this authorisation, and were mining to continue, applicant's powers to comply with its statutory obligations in terms of LUPO would be undermined. In effect, its authority to regulate matters, within its jurisdiction, in the public interest as well as to carry out its constitutional and statutory duties will be significantly undermined.

The injury reasonable apprehended by both applicant and fourth respondent is first respondent's unlawful breach of the provisions of LUPO and NEMA on land owned by applicant and which lands falls within the applicant's area of jurisdiction. Applicant has already mined on Erf 13625. It is clear from the papers that it intends to undertake mining on all four erven, pursuant to the mining right or permit it possesses, without regard to the provisions of LUPO and NEMA. To the extent that applicant has made efforts to obtain an undertaking from first respondent to desist from mining, pending authorisation, these have proved unsuccessful.

There does not appear to be any effective, alternative remedy which is available to applicant and fourth respondent. It would be extremely difficult to quantify the damages caused by the unlawful conduct of first respondent in order to bring a claim against it. Furthermore, damages which sought to address the injury suffered by applicant as the owner of the land would not deal with the continuing injury which may be caused to applicant as the local authority, by virtue of the breach of its land use legislation.

Given the conclusions to which I have come, there is no need to consider the conditional applications brought by fourth respondent.

ORDER
For these reasons the following order is made: It is declared that:
1.	the respondent may not commence or continue with mining operations on erf 13625, Mitchell's Plain; erf 9889, Mitchell's Plain; erf 1848, Schaapkraal; and/or erf 1210, Mitchell's Plain ('the properties') until and unless authorisation has been granted in temis of the Land Use Planning Ordinance 15 of 1985, Cape ('LUPO') for the land in question to be used for mining;
2.	the first respondent may not commence or continue with mining   operation   on   the   properties   until   and unless an environmental authorisation has been granted in terms of the National Environmental Management Act 107 of 1998 ('NEMA') for the carrying out of the activity identified in item 20 of Government Notice R386of 21 April 2006 on the land in question;
3.	the first respondent may not commence or continue with mining operations on erf 9889, Mitchell's Plain; erf 1848, Schaapkraal; and erf 1210, Mitchell's Plain until and unless an environmental authorisation has been granted in terms of NEMA for the carrying out of the activity identified in item 12 of Government Notice R3 86 of 21 April 2006 on the land in question.
4.	The first respondent is interdicted from commencing or continuing with mining operations on the properties until and unless;

4.1.	authorisation has been granted in terms of LUPO for the land in question to be used for mining.
4.2.	an environmental authorisation has been granted in terms of NEMA for the carrying out of the activity identified in item 20 of Government Notice R386 of 21 April 2006 on the land in question.

6.	The costs of this application are to be paid by first and second respondents, jointly and severally with one another, including the costs of two counsel.
								DAVIS, J
I agree
								BAARTMAN, J