Abstract
The Constitutional Court in Maccsand (Pty) Ltd v City of Cape Town (CCT 103/11) 2012 ZACC 7 decided that the granting of mining rights or mining permits by the Minister of Mineral Resources in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 does not obviate the obligation on an applicant to obtain authorisations in terms of other legislation that deals with functional domains other than minerals, mining and prospecting. This applies to all other legislation, irrespective of whether the responsible administrator of such other legislation is in the national, provincial or local sphere of government. The effect of the decision is that planning and other authorities which derive their statutory mandate and powers from other legislation retain all their powers as regards planning and rezoning, for instance. In addition, the Minister of Mineral Resources cannot make a decision on behalf of, or for, such functionaries. The judgement also clarified the question of whether or not a national Act can supersede provincial legislation dealing with a distinctly different functional domain. In principle, the decision also indicates that the fact that a range of authorisations are required in terms of separate statutory instruments (each with its own functional domain and administered by its own functionary) does not necessarily amount to conflicts between these instruments. An owner of land may now insist that his land may not be used for mining purposes if it is not zoned for such purposes. It is submitted that, in order to provide certainty to land owners, developers and government functionaries, and to promote investor confidence (especially in the mining sector), an intergovernmental system for the consideration of applications by the functionaries responsible for the separate statutory instruments needs to be developed as a high priority.
 
Highlights
The Maccsand series of cases started with an application by the City of Cape Town in the High Court[1] for an order interdicting and restraining Maccsand (Pty) Ltd from conducting mining activities until the authorisations in terms of the (Western Cape) Land Use Planning Ordinance 15 of 1985 had been granted
Resources Development Act 28 of 2002) rights: (b) the relationship between the owner of the land concerned and the holder of an MPRDA mining right; and (c) the impact of the existence of various sets of legislation, each of which requires the issuing of authorisations by functionaries other than the Minister of Mineral Resources, and the related implications for decisions taken in terms of the MPRDA, within the context of the
The Constitutional Court had to deal with the key question of whether or not a mining right issued in terms of section 23(1) of the Mineral and Petroleum Resources Development Act 28 of 2002) and a mining permit issued in terms of section 27 of the MPRDA by the Minister trump the need to comply with other legislation relating to land use and rezoning
Summary
All of the judges of the CC concurred with the judgement written by Jafta J. Found that LUPO is not applicable to land on which an MPRDA mining right or a mining permit has been granted, as well as (b) the SCA's refusal to grant a declaratory order.[65] In addition, the MEC applied for direct access to the CC to apply for the declarator.[66]. The Minister is empowered by section 23(1) of the MPRDA to grant mining rights, and, as a result, the reference to mineral rights is incorrect. The CC at the outset regarded a mining permit as a statutory permission that has to be obtained after the grant of a mining right in order to mine Such a permit is issued by the Minster if the following three requirements are met: (a) the mineral is capable of being mined optimally within a two-year period; (b) the area concerned does not exceed 1.5 ha; and (c) the applicant has submitted an environmental management plan.[73].
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