Maccsand (Pty) Ltd v City of Cape Town 2012 (4) SA 181 (CC)

Nic Olivier, Clara Williams, Pieter Badenhorst

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.


Keywords


: co-operative government; conflict of laws; intergovernmental relations; Land Use Planning Ordinance 15 of 1985; land use; Mineral and Petroleum Resources Development Act 28 of 2002; mining; planning; rezoning

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References


Bibliography

Badenhorst 2011 TSAR

Badenhorst PJ "Conflict resolution between owners of land and holders of rights to minerals: a lopsided triangle?" 2011 TSAR 326-341

Badenhorst and Mostert Mineral and Petroleum Law

Badenhorst PJ and Mostert H Mineral and Petroleum Law of South Africa: Commentary and Statutes Revision Service 8 (Juta Lansdowne 2004)

Franklin and Kaplan Mining and Mineral Laws

Franklin BLS and Kaplan M The Mining and Mineral Laws of South Africa (Butterworths Durban 1988)

Kaplan and Dale Guide to the Minerals Act

Kaplan M and Dale MO A Guide to the Minerals Act 1991 (Butterworths Durban 1992)

Register of legislation

Constitution of the Republic of South Africa, 1996

Development Facilitation Act 67 of 1995

Intergovernmental Relations Framework Act 13 of 2005

Land Use Planning Ordinance 15 of 1985

Local Government: Municipal Systems Act 32 of 2000

Mineral and Petroleum Resources Development Act 28 of 2002

Minerals Act 50 of 1991

National Environmental Management Act 107 of 1998

Spatial Planning and Land Use Management Bill B14 of 2012

Subdivision of Agricultural Land Act 70 of 1970

Register of cases

Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2007 2 SA 263 (SCA)

Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 4 SA 113 (CC)

City of Cape Town v Maccsand (Pty) Ltd 2010 6 SA 63 (WCC)

Doctors for Life International v Speaker of the National Assembly 2006 6 SA 416 (CC)

Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, 1996 1996 4)SA 744 (CC)

Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province 2007 6 SA 4 (CC)

Holcim SA (Pty) Ltd v Prudent Investors (Pty) Ltd 2011 1 All SA 384 (SCA)

Hudson v Mann 1950 4 SA 485 (T)

Intercape Ferreira Mainliner (Pty) Ltd v Minister of Home Affairs 2010 5 SA 367 (WCC)

Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2010 6 SA 182 (CC)

Johannesburg Municipality v Gauteng Development Tribunal 2010 2 SA 554 (SCA)

Minister of Public Works v Kyalami Ridge Environmental Association (Mukhwevho Intervening) 2001 3 SA 1151 (CC)

Louw v Swartland Municipality 2011 ZASCA 142

Maccsand (Pty) Ltd v City of Cape Town 2011 6 SA 633 (SCA)

Maccsand (Pty) Ltd v City of Cape Town (CCT 103/11) 2012 ZACC 7

Meepo v Kotze 2008 1 SA 104 (NC)

Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd 2009 1 SA 337 (CC)

Register of internet sources

PMG 2012 www.pmg.org.za

Parliamentary Monitoring Group 2012 Spatial Planning and Land Use Management Bill [B14-2012]: Briefing by Minister, 24 July 2012 www.pmg.org.za/node/33021 [date of use 2 Aug 2012]




DOI: http://dx.doi.org/10.17159/1727-3781/2012/v15i5a2534

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