WARBURTON ATTORNEYS MONTHLY SUSTAINABILITY LEGISLATION, REGULATION AND PARLIAMENTARY UPDATE: AUGUST 2010

SECTION A: ENVIRONMENTAL (NATIONAL)

National Water Act 36 of 1998

1. Notice requiring persons who take water from surface and groundwater resources for the purpose of storing such water and who engage in a stream flow reduction activity as contemplated in section 36 are required to apply for a water use licence in terms of section 43(1) for the purpose of compulsory licensing. Published in GG 33454 Notice Number 709 dated 12 August 2010.

2. Notice requiring persons who wish to take water from the underground water resource within the Tosca Molopo geographic area must submit a licence application within 60 (sixty) days from the date of publication of this Notice. Published in GG 33453 Notice Number 708 dated 12 August 2010.

3. Notice requiring persons within the Jan Dissels River catchment in the Western Cape geographic who wish to use water in respect of Section 21(a) taking water from surface and groundwater resources and the storage of water to apply for a water use licence in terms of section 43(1) for the purpose of compulsory licensing. Published in GG 33477 Notice Number 734 dated 20 August 2010.

4. Restrictions on the use of agricultural water within the quaternary drainage areas K20A, K10W, K10F and K10B in the Western Cape Province. Published in GG 33458 Notice Number 711 dated 17 August 2010.

Mineral and Petroleum Resources Development Act 28 of 2008

5. Invitation for representatives from relevant stakeholders on proposed moratorium under section 49(1) against receiving of new applications for prospecting rights in terms of section 16 of the Act. Published in GG 33493 Notice Number 824 dated 24 August 2010.

6. Moratorium on the receiving of new applications for prospecting rights for a period of six (6) months from 1 September 2010 until 28 February 2011. Published in GG 33511 Notice Number 768 dated 31 August 2010.

Marine Living Resources Act 18 of 1998

7. Publication of the general guidelines for marine ranching and stock enhancement in South Africa and the guidelines and potential areas for marine ranching and stock enhancement of Abalone (Haliotis Midae) in South Africa. Published in GG 33470 Notice Number 729 dated 20 August 2010.

National Ports Act 12 of 2005

8. Invitation to apply for registration as Vessel Agent. Published in GG 33462 Notice Number 802 dated 20 August 2010.

Promotion of Access to Information Act 2 of 2000

9. Manual in accordance with the Act published by the Commission for Conciliation, Mediation and Arbitration. Published in GG 33455 dated 13 August 2010.

10. Manual in accordance with the Act published by the Mpumalanga Department of Safety, Security and Liaison. Published in GG 33441 dated 13 August 2010.

11. Manual in accordance with the Act published by the Department of Economics Development, Environment and Tourism. Published in GG 33442 dated 13 August 2010.

12. Manual in accordance with the Act for Lesedi Local Municipality. Published in GG 33321 dated 27 August 2010.

13. Manual in accordance with the Act: Publication of Updated Information Manual for the Office of the Premier: Mpumalanga Provincial Government. Published in GG 33468 dated 20 August 2010.

Constitution of the Republic of South Africa 1996

14. Assignment of powers and functions performed in terms of section 98 by the Minister of Water and Environmental Affairs. Published in GG 33437 Notice Number 39 dated 4 August 2010.

SECTION B: SAFETY AND HEALTH (NATIONAL)

Medicines and Related Substances Act 101 of 1965

15. Medicines Control Council: Conditions of registration of a medicine in terms of section 15(7). Published in GG 33435 Notice Number 753 dated 13 August 2010.

Compensation for Occupational Injuries and Diseases Act 130 of 1993

16. Compensation Fund: standard assessment rate charges 2009 and 2010. Published in GG 33426 Notice Number 754 dated 6 August 2010.

SECTION C: SAFETY, HEALTH AND ENVIRONMENTAL
Draft National Legislation and Regulations

National Water Act 36 of 1998

17. Invitation to submit written comments in terms of section 110 on the proposed raising of the Hazelmere Dam and the environmental impact assessment relating hereto. Published for public comment in GG 33449 Notice Number 705 dated 10 August 2010.

18. Invitation to submit written comments in terms of section 110 on the proposed raising of the Hazelmere Dam and the environmental impact assessment relating hereto. Published for public comment in GG 33462 Notice Number 724 dated 20 August 2010.

National Environmental Management: Biodiversity Act 10 of 2004

19. Draft biodiversity management plan for Encephalartos Latifrons. Published in GG 33456 Notice Number 798 dated 13 August 2010.

Agricultural Product Standards Act 119 of 1990

20. New draft regulations regarding the sale of dairy ice-cream, ice-cream, frozen dessert and frozen yoghurt. Published in GG 33443 Notice Number 774 dated 13 August 2010.

Marine Living Resources Act 18 of 1998

21. Draft criteria for allocating rights for Abalone (Haliotis Midae) ranching or stock enhancement pilot projects. Published in GG 33470 Notice Number 728 dated 20 August 2010.

SECTION D: SAFETY, HEALTH AND ENVIRONMENTAL

Provincial Legislation and Municipal By-Laws

Gauteng Province

22. Local Government: Municipal Property Rates Act 6 of 2004; Local Government: Municipal Systems Act 32 of 2000 and Local Government: Municipal Financial Management Act 56 of 2003: City of Johannesburg: Amendment of Property Rates and Tariff of Charges. Published in PG 152 Notice Number 1050 dated 6 August 2010.

23. Local Government: Municipal Systems Act 32 of 2000: City of Johannesburg Metropolitan Municipality: Repeal of the Public Roads and Miscellaneous By-law. Published in PG 153 Notice Number 2222 dated 11 August 2010.

24. Local Government: Municipal Systems Act 32 of 2000: West Rand District: Municipal Health Services By-law. Published in PG 154 Notice Number 1051 dated 13 August 2010.

Western Cape Province

25. Western Cape Department of Environmental Affairs and Development Planning: Second Edition Environmental Implementation Plan. Published in PG 6778 Notice Number 288 dated 20 August 2010.

26. Langeberg Municipality: Water By-law. Published in PG 6779 dated 20 August 2010.

Mpumalanga Province

27. Local Government: Municipal Systems Act 32 of 2003: Steve Tshwete Local Municipality: Municipal Management and Control of Informal Settlements By-law. Published in PG 1853 Notice Number 137 dated 13 August 2010.

Limpopo Province

28. Local Government: Municipal Finance Management Act 6 of 2003: Polokwane Municipality: Revocation and Determination of Tariffs for the 2010/2011 Financial Year. Published in PG 1825 Notice Number 174 dated 12 August 2010.

SECTION E: SAFETY, HEALTH AND ENVIRONMENTAL

Draft Provincial Legislation and Municipal By-Laws

North-West Province

29. Draft Management Plan Guidelines for the Keeping of Predators in the Province. Published for public comment in PG 6814 Notice Number 251 dated 3 August 2010.

30. Draft Amendments for the North West Fencing Policy. Published for public comment in PG 6814 Notice Number 250 dated 3 August 2010.

31. Draft Game Movement Regulations, 2010. Published for public comment in PG 6814 Notice Number 249 dated 3 August 2010.

32. Draft Provincial Minimum Standards for the Management of Reptiles in the Province (collecting, keeping in captivity, purchasing, selling, importing, exporting and transporting of indigenous and alien reptiles). Published for public comment in PG 6814 Notice Number 248 dated 3 August 2010.

Western Cape Province

33. Western Cape Nature Conservation Board: Witsand Proposed Construction of a Jetty and Slipway. Published for public comment in PG 6776 Notice Number 316 dated 13 August 2010.

SECTION F: PARLIAMENTARY MONITORING

Introduction:

The Constitution describes four kinds of bills, namely:

Section 74 bills: constitutional amendments.

Section 75 bills: ordinary bills not affecting the provinces. Once a Section 75 bill has been passed by the National Assembly (NA), it is referred to the National Council of Provinces (NCOP). If the NCOP amends the bill or rejects it, it is referred to the NA, which may pass the bill again, with or without amendments, and submit for the President's assent. In other words, the NA can pass a Section 75 bill even if the NCOP disagrees.

Section 76 bills: ordinary bills affecting the provinces. The NCOP and the NA both consider Section 76 bills.

Section 77 bills: money bills (must be introduced by the Minister of Finance in the NA).

Each type of bill has a different passage to becoming law and usually fits into only one category. If a bill does not fit clearly into one category, or if it fits into more than one category, it is usually redrafted or split into more than one bill, e.g., the NEM: Biodiversity Bill which was split into the NEM: Biodiversity Bill and NEM: Protected Areas Bill. Both of these have now been enacted.

(http://www.pmg.org.za/)

Sustainability Related Legislative Programme: Parliament of South Africa

BILLS BEFORE PARLIAMENT: (as of 1 June 2010)

• Before National Assembly Committees

- Land Use Management Bill (B27 of 2008)
- Prevention of Illegal Eviction from Unlawful Occupation of Land Amendment Bill (B8 - 2008)
- National Health Amendment Bill (B65 - 2008)
- Medicines and Related Substances Amendment Bill (B44 - 2008)
- Prevention of and Treatment for Substance Abuse Bill (B12 - 2008)
- Built Environment Professions Bill (B53 - 2008)
- South African National Water Resources Infrastructure Agency Limited Bill (B36 - 2008)
- Draft Taxation Laws Amendment Bills (10 & 11 of 2009)
- Higher Education Laws Amendment Bill (B16 of 2010)
- Skills Development Levies Amendment Bill (B25 of 2010)
- Higher Education and Training Laws Amendment Bill (B26 of 2010)
- Protection of Information Bill (B6 of 2010)
- Deeds Registries Amendment Bill (B 13 of 2010)
- Sectional Title Amendment Bill (B14 of 2010)

SECTION G: CASE LAW

City of Cape Town v Maccsand and Others (4217/2009, 5932/2009) [2010] ZAWCHC 144

The central dispute in this application revolved around whether a mining permit or mining right granted under the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) exempts the holder of such permit or right from having to obtain authorisation for its mining activities in terms of laws which regulate the use of that land, in particular the land use authorisation provisions of Land Use Planning Ordinance 15 of 1985 (LUPO) and the environmental authorisation provision of the National Environment Management Act 107 of 1998 (NEMA).

The applicant, the City of Cape Town (the City), approached the Western Cape High Court for an interdict restraining the first respondent, Maccsand (Pty) Ltd, from conducting mining activities on Rockland Dunes and Westridge Dunes in Mitchell's Plain. The City's submission was that the mining was not lawful due to both portions of land not being zoned for mining. When Maccsand first applied for the relevant mining rights in September 2006, the City refused to support the application on the basis that authorisation in terms of Land Use Planning Ordinance 15 of 1985 (LUPO) was required prior to mining activities being commenced, and that such authorisation had not been obtained.

Notwithstanding this lack of support from the City, Maccsand was granted the relevant mining rights by the Minister of Minerals and Energy and began mining activities on 17 February 2009, a mere two weeks after providing the City with the issued mining permit, and without obtaining the relevant LUPO authorisation.

The City avered that two actions would have had to be taken before lawful mining activities could take place. Either, (i) the zoning scheme would have to be amended to authorise mining on the relevant land; or, (ii) a departure would have to be granted from the existing zoning scheme to allow mining to take place on the land. Maccsand argued that once a mining right or permit has been granted, the holder is thereby granted a right to undertake mining at the location and that no other law or authority may veto such a decision.

Argumentation revolved around the fact that there are three different but relevant legal regimes which operate at different spheres of government, being NEMA, LUPO and the MPRDA. Maccsand's legal counsel argued that if the land use, for mining, was not regulated by the MPRDA, exploitation of the mineral resource could not effectively take place and that a mining right without this entitlement might not be capable of being exercised at all. Maccsand's counsel relied on chapter 4 of the MPRDA, in particular section 48 entitled "Restriction or prohibition on prospecting and mining on certain land".

The City's legal counsel countered this argument by stating that the purpose of LUPO was that it represented the key mechanism for municipal planning and, if over-ridden, would make it extremely difficult for authorities to fulfil their constitutional function with regard to municipal planning.

The Constitutional Court in The City of Johannesburg Metropolitan Municipality and The Gauteng Development Tribunal and Others [2010] ZACC 11, examined the constitutional scheme relating to the levels and powers of the three tiers of government and stated that each sphere must respect the status, powers and functions of the other spheres; and, furthermore that the national and provincial spheres are not entitled to assume functions of the municipality except in exceptional circumstances and only then temporarily and in compliance with strict procedures.

Although it was argued that mining falls within national competence and therefore "trumps" the power of local government, the court a quo found that the Constitution does not expressly define the functional competence of the national government. It rather states functions for provinces and municipalities, with the areas not so specified being left to national government.

The court finally looked at the relationship between NEMA and the MPRDA. The City of Cape Town contended that the environmental authorisation contemplated in terms of NEMA, is required for the mining activities proposed and already commenced with by Maccsand, as these activities fall within the listed activities published in terms of the EIA Regulations GN 385 of 21 April 2006. More specifically section 24(8)(a) of NEMA states that an authorisation obtained under any other law for an activity listed in terms of NEMA does not absolve the party from obtaining authorisation under NEMA, unless authorisation has been granted as contemplated in section 24L of NEMA (allows for the granting of integrated environmental authorisations). Although the mining related provisions in NEMA are not yet in effect , once these do take effect, mining activities will not be absolved from the requirement of obtaining authorisation under NEMA if such activities are listed under the EIA Regulations. Rather the power to issue those authorisations will be transferred to the Minister of Mineral Resources.

The court ordered Maccsand to cease mining operations until authorisation for the land in question had been granted under LUPO and authorisations for the applicable listed activities had been granted under NEMA. Furthermore Maccsand was interdicted from commencing or continuing with mining operations until the abovementioned authorisations had been obtained.

This Legal Brief should not be regarded a comprehensive discussion of the topics addressed and, in particular, should not be taken as legal advice or relied upon. For further information please contact: lulu@warburtons.co.za