FOURTH RESPONDENT’S HEADS OF ARGUMENT

This document contains the heads of argument submitted by the Fourth Respondent (the Minister of Local Government, Environmental Affairs and Development Planning, Western Cape Province) to the Supreme Court of Appeal of South Africa. The legal dispute centers on whether mining permits or rights granted under the Mineral and Petroleum Resources Development Act (MPRDA) exempt a holder from obtaining land-use authorisations under the Land Use Planning Ordinance (LUPO) and environmental authorisations under the National Environmental Management Act (NEMA). The Fourth Respondent argues that these regulatory regimes are concurrent and that a mining right does not override municipal zoning or national environmental requirements.

• The Fourth Respondent argues that the MPRDA does not exempt mining right holders from land-use planning requirements under LUPO and its zoning schemes. It contends that for mining to be lawful, both a mining authorisation under the MPRDA and a land-use authorisation under LUPO are required, noting that sections 23(6) and 25(2)(d) of the MPRDA state a mining right is subject to "any relevant law".
• The document asserts that 'municipal planning' (a local government matter) and 'provincial planning' (an exclusive provincial functional area) both involve the control and regulation of land use. The Fourth Respondent argues that the national government's exclusive powers over mining do not displace these planning powers, and that the three spheres of control can co-exist even if they overlap.
• The Fourth Respondent maintains that obtaining an authorisation under the MPRDA does not release a person from the requirement of obtaining an environmental authorisation under NEMA for listed activities. This is based on section 24(8)(a) of NEMA, which specifies that authorisations under other laws do not absolve the person from NEMA requirements unless specific alignment processes under section 24L are followed.
• The mining activities on the Rocklands and Westridge dunes are identified as falling under 'activity 20' of GN R386, which involves the transformation of an area zoned for public open space or conservation to another use. The Rocklands dunes (erf 13625) and two erven of the Westridge dunes (erf 9889 and erf 1848) are zoned as 'public open space'.
• The proposed mining of the Westridge dunes is found to fall under 'activity 12' of GN R386 due to the removal of indigenous vegetation. The mining area is 16.3 ha, and the Province estimates that at least 90% is covered by indigenous vegetation, resulting in the removal of 14.67 ha of vegetation.
• The Fourth Respondent disputes the claim that regulation 75(3) of EIAR, 2010 deems an EMP approved under the MPRDA to be an environmental authorisation under NEMA. It argues that an 'environmental management programme' (EMP) is a distinct document from an 'environmental authorisation'; the regulation only deems the EMP itself to be approved under NEMA, not the activity itself.
• The document identifies the Rocklands and Westridge dunes as habitats for the Cape Flats Dune Strandveld ecosystem, an indigenous vegetation type. This ecosystem was classified as 'Endangered' in 2004 and 2009, with November 2009 data indicating it is now 'Critically Endangered'.
• Maccsand's proposed post-mining use for the Rocklands dunes involves converting the property into a playground, skate park, dirt track, and graffiti wall with parking and toilets, rather than rehabilitating it with natural vegetation.

APA

Centre for Environmental Rights (2011). FOURTH RESPONDENT’S HEADS OF ARGUMENT. https://cer.org.za/wp-content/uploads/2011/08/Maccsand-Provinces-SCA-heads-2011-06-20b.pdf?x21779

Chicago

Centre for Environmental Rights. FOURTH RESPONDENT’S HEADS OF ARGUMENT. 2011. https://cer.org.za/wp-content/uploads/2011/08/Maccsand-Provinces-SCA-heads-2011-06-20b.pdf?x21779.

Wikipedia

{{cite report |author=Centre for Environmental Rights |title=FOURTH RESPONDENT’S HEADS OF ARGUMENT |date=20 June 2011 |url=https://cer.org.za/wp-content/uploads/2011/08/Maccsand-Provinces-SCA-heads-2011-06-20b.pdf?x21779 |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{centreforenvironmentalrights2011fourth, author = {{Centre for Environmental Rights}}, title = {{FOURTH RESPONDENT’S HEADS OF ARGUMENT}}, institution = {Centre for Environmental Rights}, year = {2011}, month = jun, url = {https://cer.org.za/wp-content/uploads/2011/08/Maccsand-Provinces-SCA-heads-2011-06-20b.pdf?x21779}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }