April 19 2012 at 11:28

Good bedtime reading for insomniacs, but the rest of us would first have to grab a strong cup of coffee. I’m talking about the Constitutional Court judgment in the Maccsand case that will be remembered for two reasons: for the important question it answered and for the important question it did not answer. The case, decided last week, deals with mining rights and whether a go-ahead from the Minister of Mineral Resources is all that’s required for potential miners to start lawful mining work.

The Mineral and Petroleum Resources Development Act seemed clear to minister Susan Shabangu: companies wanting to mine needed permission from her department only. 

The Minister of Water Affairs and Environment, Edna Molewa, claimed that the National Environmental Management Act (Nema) meant she also had a real voice on whether mining is approved. And at local authority level, municipalities believed they too had a significant say in whether mining may be carried out in municipal areas not zoned for mining. Both these challenges to Shabangu’s views were raised in the Maccsand matter, but the Constitutional Court dealt only with the views of the municipal government, in this case the City of Cape Town.

When it came to the issue raised by the environment minister, the court effectively decided the time was not right to resolve this particular dispute. Here’s the strange thing: the fact that the judges dodged the question of the environment minister’s oversight role does not mean there were no gains for the eco-lobby.

Mining ventures have had things pretty much their own way under the Mineral Act and the court’s ruling in favour of a significant role for local authorities could somewhat redress the balance, at least where miners target municipal areas.

In this case, the City of Cape Town relied on the Land Use Planning Ordinance (Lupo) to challenge Maccsand, whose mining operations were carried out in a residential part of Mitchell’s Plain, near schools and private homes, zoned public open space by the city, which is the owner of the land. As far as the municipality was concerned, unless the land was appropriately rezoned, it could not be used for mining. Shabangu found this intolerable, arguing that mining rights approved by her department under the minerals law trumped Lupo requirements. 

The Constitutional Court disagreed, upholding the Supreme Court of Appeal’s view, namely that far from representing an “unjustified intrusion” by the local sphere of government into the national sphere, these different laws “serve different purposes within the competence of the sphere charged with the responsibility to administer each law”. Thus the minerals law governs mining while Lupo regulates the use of land.

Overlap between the two functions does not cause an impermissible veto because spheres of government do not operate in sealed compartments and, ruled the court, Maccsand could not mine in Mitchell’s Plain until the disputed land was “appropriately rezoned”. Dealing with Maccsand’s concern that Lupo would effectively bar mining in cases where the land owner did not want to apply for rezoning, the court said the provincial government could be asked to intervene in such a case. Maccsand might now try to persuade the province to overturn the municipal decision. But that battle lies in the future and, given the strong provincial opposition argued in the Maccsand case, could be pointless.

For the moment, however, the Constitutional Court has clearly indicated that mining rights may be subject to multilevel authorisation. Miners should get used to this idea, as well as to the notion that the valid involvement of municipalities will extend beyond the provincial boundaries of Lupo, and across SA.

The judgment, in short, creates a constitutional principle of valid municipal interest and involvement in mining permissions when the relevant municipality exercises its local development powers.

Why is this relevant? The mineral law is “biased” in favour of exploiting mineral resources with limited grounds for refusing a mining right; municipalities, however, must consider broader issues in making land planning decisions.

It’s in this more holistic municipal view of what is good for people and for the environment that the importance of the Maccsand judgment lies.

The message for environmentalists is to include municipal councillors and other officials in their lobby work: it could be time well spent.



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