THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 650/2010
In the matter between:
HUGO WIEHAHN LOUW N.O.

First Appellant
CORNELIA JOHANNA ELIZABETH LOUW N.O.
Second Appellant
IGNATIUS VILJOEN N.O.

Third Appellant
IZAK BARTHOLOMEAS VAN DER VYFER N.O.
Fourth Appellant
ELSANA QUARRY (PTY) LIMITED

Fifth Appellant
MINISTER OF MINERAL RESOURCES

Sixth Appellant

and

SWARTLAND MUNICIPALITY

Respondent

Neutral citation: Louw NO v Swartland Municipality (650/10) [2011] ZASCA 142
(23 September 2011)

Coram:
HARMS AP, CLOETE, SHONGWE and WALLIS JJA and
PLASKET AJA

Heard:
16 August 2011

Delivered:
23 September 2011

Summary:
Mining and municipal planning – whether holder of mining right
in terms of Minerals and Petroleum Resources Development Act
28 of 2002 also requires land use planning authorisation in
terms of Land Use Planning Ordinance 15 of 1985 (C)

ORDER

On appeal from: Western Cape High Court, Cape Town (Le Grange J sitting as
court of first instance):
(a) The appeal is dismissed.
(b) The sixth appellant is ordered to pay the respondent’s costs, including the costs
of two counsel, and in regard to the costs incurred on or before 21 July 2011,
jointly and severally with the first to fourth appellants and the fifth appellant.

JUDGMENT

PLASKET AJA (HARMS AP, CLOETE, SHONGWE and WALLIS JJA concurring)
[1] This appeal from the Western Cape High Court, Cape Town concerns a
single issue. It is whether the grant of a mining right issued by the Minister of
Mineral Resources in terms of s 23 of the Minerals and Petroleum Resources
Development Act 28 of 2002 (the MPRDA) entitles the holder of that right to
undertake mining operations without obtaining authorisation in terms of the Land
Use Planning Ordinance 15 of 1985 (C) (LUPO). This ordinance, operative in the
provinces that formerly comprised the province of the Cape of Good Hope,
empowers municipalities to determine and enforce the use to which land in their
areas of jurisdiction may be put. Le Grange J found that LUPO applied in these
circumstances.1 The appeal against that decision is with his leave.

[2] The material facts are not in dispute. The first to fourth appellants are the
trustees of the Hugo Louw Trust which owns the farm Lange Kloof near
Malmesbury within the area of jurisdiction of the respondent, the Swartland
Municipality. The fifth appellant (Elsana) is the holder of a mining right issued in
terms of s 23(1) of the MPRDA by the sixth respondent, the Minister of Mineral
Resources, authorising it to mine granite on Lange Kloof.

1 Swartland Municipality v Louw NO & others 2010 (5) SA 314 (WCC).

[3] In terms of LUPO, Lange Kloof was and is zoned ‘agricultural 1’ which
means that the land may be used for the cultivation of crops or plants, the breeding
of animals or be left as natural veld.2

[4] On 30 May 2008, the Hugo Louw Trust gave its consent to Elsana to mine
granite on Lange Kloof. On 3 June 2008 an application was made to the Swartland
Municipality for the rezoning of the land from ‘agricultural I’ to ‘industrial III’ (which
includes mining as a use)3 for the purpose of establishing a ‘granite quarry subject
to the issuing of a mining right’ in terms of the MPRDA.

[5] The rezoning application was made on the assumption that a rezoning in
terms of LUPO was necessary before mining operations could commence. Having
been advised later by the Department of Mineral Resources that ‘the granting of
mining rights and the control over mining activities was the exclusive preserve of
national government’ as represented by the Department, Elsana withdrew the
rezoning application before it was considered by the Swartland Municipality.

[6] On 17 February 2009 the Minister granted Elsana a mining right, authorising
it to mine granite for 30 years on Lange Kloof. It commenced its preparations for its
mining operations. In June 2009 the Municipal Manager of the Swartland
Municipality wrote to the Hugo Louw Trust to say that it had come to the attention
of the municipality that Lange Kloof was being prepared for mining. He said that
this was not authorised as the land was zoned for agricultural use. The trust was
requested to cease its unlawful activities and, instead, to apply to the municipality
for a rezoning that would allow for the mining operations to proceed.

[7] The trust’s attorneys wrote to the municipality to inform it that Elsana had
been granted a mining right in terms of s 23(1) of the MPRDA, that its mining
operations were being conducted on the strength of this mining right and that the
demand that mining operations should cease had ‘no basis in law’. On 9 July 2009,
the municipality launched an urgent application against the trustees of the trust,
Elsana and the Minister to interdict mining operations on Lange Kloof until it had
been rezoned in terms of LUPO to permit mining.

2 See Scheme Regulations made in terms of s 8 of LUPO s 1.0 (definition of ‘agriculture’).
3 See Table B of the Scheme Regulations made in terms of s 8 of LUPO.

[8] On 21 December 2009, Le Grange J made an order in the following terms:
‘(a) The first to fourth respondents, in their capacity as trustees of the Hugo Louw Familie
Trust, and fifth respondent, are interdicted and restrained from conducting mining activities
and/or permitting others to conduct mining activities on the immovable property described
as the remainder of the Lange Kloof farm, No 701, Malmesbury Division, Western Cape
Province, unless and until the said immovable property is rezoned from Agricultural I to
Industrial III, or any such other rezoning which permits mining activities.
(b) The first to sixth respondents to pay the costs of this application, jointly and severally,
including the costs occasioned by the employment of two counsel.’

[9] Le Grange J found that the MPRDA and LUPO regulated different
undertakings – mining, on the one hand, and land use planning, on the other – and
that there was no conflict between the two that required resolution: once a person
has been granted a mining right, he or she can only begin mining operations if
mining is permitted as a land use in terms of LUPO.

[10] Shortly before this appeal was to be heard, the trustees of the trust and
Elsana withdrew their appeal and tendered the costs of the Swartland Municipality.
The Minister persisted with the appeal.

[11] This appeal was argued together with a similar matter, Maccsand v City of
Cape Town.4 As that judgment determines the outcome of this appeal, I do not
intend to set out the reasoning in any detail. Suffice it to say that for the reasons
set out from paragraphs [10] to [35] of the Maccsand judgment this court
concluded that the MPRDA does not concern itself with land use planning and the
Minister, when she considers the grant of a mining permit, does not, and probably
may not, take into account such matters as a municipality’s integrated
development plan or its scheme regulations. As a result, the MPRDA does not
provide a surrogate municipal planning function in place of LUPO and does not
purport to do so. Its concern is mining, not municipal planning.

[12] LUPO thus operates alongside the MPRDA with the result that once a
person has been granted a mining right in terms of s 23 of the MPRDA he or she
will not be able to commence mining operations in terms of that right unless LUPO
allows for that use of the land in question.

4 Maccsand v City of Cape Town (709/2010; 746/2010) [2011] ZASCA 141 (23 September 2011).

[13] The appeal in this matter must accordingly fail. As stated above, the first to
fifth respondents withdrew their appeal and tendered costs. The Minister persisted
with the appeal. There is no reason why costs should not follow the result.

[14] The following order is made:
(a) The appeal is dismissed.
(b) The sixth appellant is ordered to pay the respondent’s costs, including the costs
of two counsel, and in regard to the costs incurred on or before 21 July 2011,
jointly and severally with the first to fourth appellants and the fifth appellant.

_____________________
C. Plasket
Acting Judge of Appeal

APPEARANCES

Sixth appellant:                                           MM Oosthuizen SC (with him K Warner)
Instructed by:
State Attorney, Cape Town
State Attorney, Bloemfontein

Respondent:                                                        J Newdigate SC (with him P Vivier)
Instructed by:
Terblanche Slabber Pieters, Cape Town
Hill, McHardy and Herbst, Bloemfontein
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

23 September 2011

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Louw NO v Swartland Municipality
(650/10) [2011] ZASCA 142 (23 September 2011)
Media Statement

Today the Supreme Court of Appeal (SCA) delivered judgment dismissing the appeal by the
appellants against the finding of the Western Cape High Court, Cape Town that the grant of a
mining right issued by the Minister of Mineral Resources in terms of s 23 of the Minerals and
Petroleum Resources Development Act 28 of 2002 (the MPRDA) does not entitle the holder
of that right to undertake mining operations without obtaining authorisation in terms of the
Land Use Planning Ordinance 15 of 1985 (LUPO). This ordinance, operative in the provinces
that formerly comprised the province of the Cape of Good Hope, empowers municipalities to
determine and enforce the use to which land in their areas of jurisdiction may be put.

The facts and history of this matter can be summarised as follows:
In terms of LUPO, Lange Kloof was and is zoned ‘agricultural 1’ which means that the land
may be used for the cultivation of crops or plants, the breeding of animals or be left as natural
veld.  Hugo Louw Trust, owners of the farm Lange Kloof, gave consent to Elsana Quarry (Pty)
Ltd to mine granite on the farm. An application for rezoning of the property from 'agricultural I'
to 'industrial III" was made to the Swartland Municipality but was withdrawn after the
Department of Mineral Resources advised the parties that the granting of mining rights was
the exclusive preserve of the national government and authorisation under LUPO was not
required.

Elsana commenced preparations to mine granite on Lange Kloof. The Municipal Manager of
the Swartland Municipality informed the Hugo Louw Trust that the land was not zoned for
mining, that the mining activities had to cease and that they had to apply for rezoning of the
land. The trust's attorneys wrote to the municipality to inform it that Elsana had been granted
a mining right and that as a result the demand that mining operations should cease had no
basis in law.  An urgent application was launched by the Minister against the trustess of the
trust, Elsana and the Minister seeking to interdict mining operations until the property had
been rezoned in terms of LUPO. The interdict was granted by the court below.

The SCA held that MPRDA does not concern itself with land use planning and the Minister,
when she considers the grant of a mining permit, does not, and probably may not, take into

account such matters as a municipality’s integrated development plan or its scheme
regulations. As a result, the MPRDA does not provide a surrogate municipal planning function
in place of LUPO and does not purport to do so. Its concern is mining, not municipal planning.

LUPO thus operates alongside the MPRDA with the result that once a person has been
granted a mining right in terms of s 23 of the MPRDA he or she will not be able to commence
mining operations in terms of that right unless LUPO allows for that use of the land in
question.

The appeal was as a result dismissed with costs.
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