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WWF-SA welcomes the judgement of the Constitutional Courtin the case of Maccsand (Pty) Ltd v City of Cape Town and Others yesterday.
This judgement confirms the Supreme Court of Appeal’s decision earlier that, where mining is not permitted by a provincial zoning scheme, the holder of a mining right or permit cannot start to mine, unless the land is rezoned to allow mining.
“We welcome this decision as mining cannot be the exception when all other economic activity is subject to thorough processes, planning and environmental management,” says the Head of WWF’s Biodiversity Unit, Dr Deon Nel.

He explains, “Decisions about granting mining rights, as with decisions about any other economic activity, must be subject to proper processes across all levels of government. We have land use planning for a reason. Mining cannot be treated as a law unto itself, to which the rest of the laws of the land do not apply.”
The Court held that the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) – like the National Environmental Management Act, 1998 (NEMA) – is intended to promote s.24 of the Constitution, the Constitutional right to healthy environment, and that these statutes require the Minister for Mineral Resources to consult and cooperate with environmental authorities who administer NEMA.
The Constitutional Court was asked to resolve a jurisdiction row between local and national government and rule whether a mining right granted by the Minister of Mineral Resources overrides the municipal Land Use Planning Ordinance (LUPO) regulations and NEMA.

“The judgement emphasizes that national mining legislation cannot trump other legislation, including provincial legislation, when decisions about mining rights are made,” says Nel.

“Mining applications are considered in a piece-meal manner and no government department is currently assessing the trade-offs and cumulative impacts of mining across the landscape in the context of other land uses,” says Nel.

“Mining, whether in a single area or on many smaller areas can cause major local and downstream impacts, and applications should be assessed with thorough attention to these potential impacts. From a biodiversity or ecosystem services perspective, WWF recommends that areas highlighted as priorities for society due to their exceptional value (such as water provisioning) should remain unmined,” he concludes.