Constitutional Court: the saviour of farm land

The days of the minister of Mineral Resources granting permission to mining companies to operate on farm land against farmers’ wishes seem to be over, thanks to the Constitutional Court’s landmark interpretation of two pieces of legislation. Jaco Visser looks at recent judgements.

The Constitutional Court has come to the rescue of many farmers who have mineral resources on their land and mining companies on their doorstep ready to dig in. In short, the court, in two judgements given on the same day in April by Justice Chris Jafta, decided that provincial legislation regulating land use must be read concurrently with national legislation regulating mining rights.

This means that, where a province has land use legislation and a farm has been zoned for, say, agricultural purposes, the land needs to be rezoned for mining purposes notwithstanding the fact that a mining licence has been granted by the Mineral Resources minister.

There is thus, as Justice Jafta indicated in his unanimous judgement, an interplay between provincial legislation, in this case the Land Use Planning Ordinance (LUPO) of the former Cape of Good Hope province, and the Mineral and Petroleum Development Act (MPDA).

Two cases
The cases before the Court both originated in the Western Cape. In the first, the minister of Mineral Resources granted a mining licence to mining company Maccsand to mine sand on dunes next to a residential area, Mitchell’s Plain, in Cape Town. The dunes were, in terms of LUPO, zoned as public open space and rural land. This zoning did not allow the dunes to be mined.

Maccsand started mining the dunes in February 2009 and the City of Cape Town, tasked to ensure adherence to LUPO, had the local high court interdict the mining. The case was heard in the Western Cape High Court, the Supreme Court of Appeal, and finally the Constitutional Court. Maccsand argued that the minister’s act of granting the mining licence in terms of the MPDA had trumped LUPO.

It argued further that the Constitution, which regulates the powers of various levels of government, did not allow the provincial or local government to regulate mining and that this was the sole prerogative of the national government. This, in short, meant that LUPO could not take precedence over the MPDA in matters of mining. The second case involves a farming trust, the Hugo Louw Trust, which owns the farm Lange Kloof within the boundaries of the Swartland municipality in the Western Cape.

The trust granted mining rights to Elsana quarry to mine for granite on the farm. One of the trustees was a director of Elsana. The land on which the mining was planned had been zoned for agricultural purposes and mining was not allowed.
Elsana applied to the municipality for the land to be rezoned, but in February 2009 the Mineral Resources minister advised Elsana that this application was no longer necessary and granted Elsana a licence to mine granite.

The owner of a neighbouring farm then complained to the municipality that blasting on Lange Kloof was having an adverse affect on his cows’ milk production. The municipality and provincial government took the case to the Western Cape High Court, the Supreme Court of Appeal and, finally, the Constitutional Court, where it was heard together with Maccsand’s case.

One conclusion
Two of the arguments on which the Constitutional Court had to decide stood out. The first was that LUPO ceased to apply when a mining right was granted by the minister. Justice Jafta found that this was not the case. In fact, he held that the MPDA states that the granting of a mining licence is subject to the MPDA and other relevant laws, which may include LUPO.
Secondly, it was argued that the local sphere of government regulating land use now vetoed the national sphere of government regulating mining.

Justice Jafta held that this was not the case and that the Constitution “allocates powers to three spheres of government in accordance with the functional vision of what is appropriate to each sphere”. However, the various spheres of government might see the exercise of their powers overlapping, as in the case in mining, which by its very nature involves use of the land.

“All that LUPO requires is that land must be used for the purpose for which it was zoned,” he ruled. In effect, this means that the land must be rezoned in terms of provincial legislation and only then can mining – granted in a separate decision in terms of national legislation – begin. These actions, namely rezoning and granting of a licence, are thus two different decisions and do not boil down to a ‘veto’, as argued by the minister of Mineral Resources.

The court’s decision means that land-use planning legislation (LUPO in this case) is not trumped by national mining legislation (MPDA). In future, land will need to be rezoned for mining purposes, notwithstanding the fact that a mining licence has been granted to mine it.

Farmers and communities
The result of this saga is that farmers, municipalities and provincial governments can apply for land to be rezoned. Before land can be rezoned, however, comment and input from affected owners, neighbours and community members must be solicited. Pretoria cannot unilaterally decide where mining will be conducted anymore. This public participation could be the dawn of a new dispensation in relations between farmers and their surrounding communities.

Concerned people could oppose the applications to have commercial or ecologically or culturally sensitive farm land declared mining areas. This means that a local farming community will have to co-operate with other local parties when mining is on the cards. The need for job creation – traditionally the biggest consideration for allowing land to be mined – has to be weighed against the productive capacity of the land as well as damage to the environment.

Hence, the local community can force the hand of the mining company to include onerous and expensive land rehabilitation programmes to its mining plan before land is rezoned. The local community can also force the mining company, again through rezoning, to set large sums of money aside for future land rehabilitation.

Mining companies have to be made aware of the necessity to preserve both the aesthetics and productive capacity of land. At the same time, a new approach towards land-use urgently needs to be instilled in the minds of South Africans –namely, that mining is not the only way to obtain financial benefit from the land. Agriculture has a vital part to play too.
Thanks to the Constitutional Court, this perspective has received a powerful – and very necessary – boost.

Sources: Constitutional Court of South Africa
The views expressed in our weekly opinion piece do not necessarily reflect those of Farmer’s Weekly.