Johannesburg – The Department of Mineral Resources’ promise
to the mining industry to combine all approval processes for mining projects
within a single process under one umbrella is in tatters.
The department’s say on how and where mining can take place
was seriously diluted on Thursday by a far-reaching double ruling by the
The ruling confirms the need to rezone land on which mining
takes place. This may be a small matter, but in practice it gives provinces and
municipalities the final word on the application of the mining rights awarded
by the department.
In the court documents the department declared the situation
The Chamber if Mines says this creates an “impossible
situation” similar to that with which mines already have to deal in regard to
It also affords activists opposing mining projects powerful
new ammunition to get interdicts against existing mining projects and to nip
potential new mining projects in the bud.
The rezoning consultation process duplicates processes that
already have to be followed in terms of the Mineral and Petroleum Resources
Development Act, but is being broadened so that other groups and stakeholders’
interests are also taken into account, according to legal experts with whom
Sake24 had discussions.
The preference that mining, thanks to the act, enjoys over
other land uses, is now being affected, says Warren Beech, a partner at legal
firm Webber Wentzel involved with environmental concerns.
Until now, he said, mining has effectively enjoyed
preference over, for instance, agriculture, but with the zoning requirements
other interests could carry more weight. There is no guarantee of success in
getting land rezoned and it is entirely possible that mines might be stopped in
“The balance of power has been disturbed.”
The two matters relate to mining projects in the Western
Cape against which interdicts were obtained by the Cape Town and Swartland
municipalities because the land on which mining is taking place was incorrectly
The zoning ordinance in question has existed for decades,
but has never been used against mines, said Beech.
It's unacceptable for the mere issue of a mining right to
take precedence over the zoning ordinance, was the Constitutional Court’s
Yet exactly this has been accepted practice since the
ratification of the Mineral and Petroleum resources Development Act in 2004.
The Department of Mineral Resources and the Chamber of
Mines’ argument that this allowed municipalities to “veto” a national
department’s decisions was, said the Constitutional Court, appealing, but
The Constitution compels the different levels of government
to work together and cooperate in good faith when their powers overlap, says
A decision by one level of government may be executed only
once another level has agreed to it.
Such decisions can, as with any administrative decision, be
reviewed in the courts, says the Constitutional Court. The decision relates
only to the zoning ordinance in the former Cape Province, but similar
ordinances regulate zoning in all provinces and, according to the ruling, the
case has national implications.
Beech said the principle has now been established and is applicable to all mines in the country that are mainly on agricultural land.
The advice to any prospective mining group would now be to
apply for rezoning and to comply with the dual environmental regulation
applicable to mines, said Beech.
The Department of Mineral Resources has for years promised
to address the multilayered system of approvals for mines.
This was in fact one of the most significant promises in the
revised 2010 Mining Charter, and a legislative amendment to this end was made
in 2009, but never carried through. The department is now further than ever
from its objective and the dual system is in effect a threefold system. As part
of their applications for mining rights, mines have to conduct an environmental
impact study, individually comply with the requirements of the National
Environmental Management Act, obtain a water licence elsewhere and now rezone as well. The Coal of Africa
Vele Mine in Limpopo and Mine Waste Solutions’ “mega-mine dump” sagas, which
both came to a temporary halt owing to the provisions of the act, clearly
showed the dangers mines face – and how powerful the dual system can prove for
According to Beech the years of deadlock result from concerns that the department, which should stimulate mining, cannot at the same time police the environmental impact.
The water authorities’ inability to deal with mine
applications in good time means that a huge number of mines are being operated
“technically illegally” without water licences, said Manus Booysen, another
partner at Webber Wentzel.
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