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Western Cape High Court upholds City’s challenge to mining licence

20 August 2010 at 1:40 pm

Today, the Western Cape High Court granted an order in favour of the City of Cape Town to stop a company, who had been given a mining licence by the Department of Mineral Resources, from mining until permission has been granted under the Western Cape Land Use Planning Ordinance, 1985 for the land to be used for mining. You can download this judgement in PDF here.

In their judgement, Davis J and Baartman J also confirmed that the company, Maccsand, required an environmental authorisation in terms of the National Environmental Management Act, 1998 (NEMA) for two listed activities. The court also ordered Maccsand and the Minister of Minerals and Energy to pay the City’s legal costs.

Key quotes from the judgement:

  • “…the Constitution does not refer expressly to exclusive national competencies. … 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 government and not the other way round. … The Constitution does not give national legislation the right to take away the planning function of municipalities. …” (pp. 18-19)
  • “…the requirement for environmental authorisation under NEMA in respect of listed activities was not removed because the activity may now be regulated in terms of another law. … notwithstanding the processes and authorisations under other laws including the MPRDA, that an environmental authorisation under NEMA must be obtained…” (p.32)