Title
29 May 2015
The Director: Land Use and Soil Management
Department of Agriculture, Forestry and Fisheries
Private Bag X120
Pretoria
0001
e-mail: [email protected]
[email protected]
Dear Sir
DRAFT POLICY AND BILL ON PRESERVATION AND DEVELOPMENT OF
AGRICULTURAL LAND FRAMEWORK
Introduction
The Chamber of Mines (the Chamber) refers to the notice which
was published in the Government Gazette on 13 March 2015 inviting
comments on the aforesaid draft documents by 30 May 2015. The
Chamber would like to thank the Department of Agriculture, Forestry
and Fisheries for the opportunity to submit our written comments.
In what follows the Chamber will refer to the draft Bill as the
Bill.
About the Chamber of Mines of South Africa
The Chamber is a voluntary membership, private sector employer
organisation founded in 1889. The Chamber is an association of
mining finance companies and mines for various different
commodities. The Chamber exists as the principal advocate of major
policy positions endorsed by the mining industry employers and
represents these policy positions to various organs of South
African national and provincial governments and to other relevant
policy making and opinion-forming entities, both within South
Africa and abroad. The Chamber also works closely with the various
employee organisations in formulating these positions where
appropriate. It represents mining companies producing about 90% of
South Africas mineral production and employing about 90% of the
employees employed in the mining industry.
Some introductory comments about mining
Before dealing with the draft documents specifically, it will be
useful first to make some general introductory comments in relation
to mining, which should assist in putting our subsequent comments
on the draft documents in context.
Special attributes of mining
There are special attributes which apply to the mining industry
and which do not apply to other land uses, namely the
following:
Minerals are areabound.Mineral deposits, and therefore also
mining activities, extend across artificial land, municipal and
provincial boundaries.Mining is in the national interest and
affects the economic interest of South Africa as a whole.Vested
land use and development rights have been acquired and exist under
the current statutory provisions and which rights should not be
subjected to negation or deprivation.Mining is a temporary land use
activity.Upon cessation of mining once the minerals have been
extracted, the land must as far as is reasonably practicable be
rehabilitated to its natural or predetermined state.
As can be seen, mining, as a land use typology, is unique in
many respects. For one, it is geographically bound to the source of
the mineral and, as a result it cannot be planned for in a typical
planning sense. In other words, a planning body cannot, in advance,
determine the optimum situational context of a future mining land
use as it would typically do for other land-use typologies,
including farming. It follows that, in attending to the forward
planning obligations of various bodies as contemplated in the Draft
Policy and Bill on Preservation and Development of Agricultural
Land Framework, the bodies concerned will simply not be capable of
predetermining the future use of land for mining purposes.
The economic and social impact of mining
Mining is the Flywheel of the South African Economy -
Creates 1.35 million jobs (520 000 direct & 830 000
indirect).
Accounts for about 18% of GDP (8% direct, 10% indirect &
induced).
Critical earner of foreign exchange >50%.
Accounts for 20% of private investment (12% of total
investment).
Attracts significant foreign savings (R1.4 trillion/ 29% of
value of JSE).
Significant contributor to transformation (>R150 BEE deals
concluded)
2012, R28 billion & R5 billion in royalties.
Significant procurer of local goods and services (R488
billion)
R93.6 billion spent in wages and salaries
Significant contributor to infrastructure investment (50% of TFR
volume)
94% of electricity generation via coal power plants
Significant contributor to community development through SLPs
and Charter
R4 billion spent on skills development
R2 billion spent on community investment
Besides its direct contribution to the economy, mining also has
significant multiplier effects
Initial impactThis is the initial direct impact on GDP of the
mining sector (the actual activity of mining)
1st round effectDirect production as a result of the backward
linkages (suppliers) to the mining sector
Indirect effectIndirect effect of linkages to supply chain and
forward linkages of mining (the business activities created as a
result of expenditures off the mine site).
Induced effectThe indirect effect of mining generated revenues
and expenditures on lifting the tide of household income throughout
the economy and the effect of this on expenditures in the
economy.
Total impactThe sum of the above components
In summary, the positive benefits of mining on the economy are
generated at all levels of the economy, i.e. at local municipal,
regional, provincial and national levels. It is therefore extremely
important that land use planning at all these levels is done taking
into account the existence of the mining industry and its unique
characteristics.
The Chambers Fundamental Disagreement with the Bill
While the Chamber necessarily agrees with the object of food
security, it is of the view that the Bill does not reflect an
equitable balancing of agricultural needs against justifiable
economic and social development by recognising the predominant role
of mining in the national interest. The Bill reflects a silo
approach by the Department of Agriculture without a consideration
of the broader policies of the government as a whole.
The Bill encroaches on the functional competences of other
National, Provincial, and Municipal Departments of State in terms
of the Constitution of the Republic of South Africa, 1996
In the Chambers respectful submission, there is a fundamental
Constitutional problem with the Bill. The Subdivision of
Agricultural Land Act, 1970, which the Bill is designed to replace,
was intended to prevent fragmentation of agricultural land into
uneconomic farming units, such as by way of bequests to
descendants. The controls on selling, leasing, granting of rights,
and servitudes, were inserted to prevent circumvention of the main
control of subdivision. The objects of the Act were recently
summarised in the Blue Crane judgment to which further reference is
made in paragraph 6 below. The draft Bill however goes much further
in seeking to regulate not only agricultural uses themselves, but
other non-agricultural uses. It seems to the Chamber that this goes
well beyond the functions of the Minister of Agriculture and
encroaches upon and usurps the functions and competences of the
Ministers responsible for land, for planning, and for mineral
resources. Such encroachment is revealed by the references in the
draft Bill to rezoning, zoning or rezoning not being within the
functional competence of the Minister of Agriculture but indeed
within the functional competences of the National, Provincial and
Municipal authorities who are responsible for land use planning. It
therefore seems to the Chamber that the Bill insofar as it attempts
to regulate land use of agricultural land generally, is
unconstitutional in offending against the functional competences
which are provided for in the Constitution of the Republic of South
Africa, 1996. For that reason the Bill gives rise to an
intergovernmental dispute which will ultimately need to be decided
in terms of the Intergovernmental Relations Framework Act,
2005.
Conflicts with Landowners
With landowners having lost the mineral right and compensation
battles, to which the Mineral and Petroleum Resources Development
Act, 2002 gave rise, the Bill would provide an ideal opportunity
for intransigent and rapacious landowners, in furtherance of the
perennial and age-old conflict between mining and other surface
uses, to hold mining companies to ransom. That is not in the
national interest.
The National Development Plan (NDP)
Chapter 6 (Inclusive Rural Economy) which deals with
agricultural expansion cannot be read in isolation but instead must
be read and interpreted in the context of the NDP as a whole.
Chapter 3 (Economy and Employment) and Chapter 4 (Economic
Infrastructure) emphasise the role of mineral and petroleum
resource development in job creation, export earnings, and
infrastructural development, and have resulted in the focus by the
President of South Africa on infrastructural development as
reflected in all his recent speeches in and outside of
Parliament.
The Infrastructure Development Act, 2014
The importance of infrastructural development is also reflected
in the Infrastructure Development Act, 2014. Unfortunately that Act
is limited to public infrastructure, although mines, oil and gas
pipelines, and refineries are listed in schedule 1 to the Act as
activities, projects in relation to which may be designated as
strategic integrated projects in terms of the Act. The Act espouses
a one-stop-shop philosophy through the Presidential Infrastructure
Co-ordinating Commission.
The one-stop-shop legislation in relation to mineral and
petroleum resource development
With much acclaim including in the State of the Nation Address
by the President of South Africa on 17 April 2014, the
one-stop-shop system has from December 2014 been implemented in
regard to the obtaining of necessary rights, permits and
permissions for mineral and petroleum operations, this in respect
of mining rights, environmental authorisations, waste licences,
atmospheric emission licences, and water use licences. All of this
occurred by way of the Mineral and Petroleum Resources Development
Amendment Act, 2008, the National Environmental Management
Amendment Act, 2008, the National Environmental Management Laws
Amendment Act, 2014, the National Environmental Management: Waste
Amendment Act, 2014, the National Environmental Management: Air
Quality Amendment Act, 2014, the National Water Amendment Act, 2014
and the National Environmental Management: Integrated Coastal
Management Act, 2014. The Bill runs contrary to these one-stop shop
achievements in proposing yet another impediment to mining
operations.
The Inter-Governmental Relations Framework Act, 2005
As more fully discussed in relation to the specific clauses of
the Bill, the Bill confers a veto power on the Department of
Agriculture in relation to mineral development. The Chamber submits
that that is not in the national interest. Should the Bill proceed
in its current form, the Chamber will consider recommending to the
Minister of Mineral Resources that he declare a dispute as
contemplated in the Inter-Governmental Relations Framework Act,
2005 in relation to the drafting and tabling of the Bill.
Non-recognition of State Custodianship of South Africas Mineral
and Petroleum Resources
The Mineral and Petroleum Resources Development Act, 2002
(MPRDA) fundamentally changed the legal dispensation in regard to
mineral and petroleum resources in South Africa by vesting
custodianship of such resources in the State. In Agri South Africa
v Minister for Minerals and Energy 2013 (4) SA 1 (CC), the
Constitutional Court held that this did not constitute
expropriation and that accordingly no compensation was payable.
Unfortunately the age-old perennial and inherent conflict between
landowners and mining right holders continues to endure and should
not and cannot be resolved in favour of the landowners in the
manner suggested in the Bill, without comprising the national
interest.
The legal position of the mining industry in regard to land use,
prior to the Constitution of the Republic of South Africa, 1996
Both statutorily and at common law, mining uses predominated
over other land uses.
Statutorily, the following are examples of provisions which
applied.Sections 90(1) and 91(1) of the Mining Rights Act, 1967
respectively provided as follows:Section 90(1): The right of
disposal over the surface of proclaimed land and land held under
mining title is reserved to the State for the purposes of this Act
or any other law, and save as is specially otherwise provided in
this Act, the surface of land held under such title shall not
without the written permission of the mining commissioner be used
otherwise than for mining.;Section 91(1):
Commissioner may grant permission to any person to use the
surface of any proclaimed land or land held under mining title for
agriculture or afforestation, and the State President may authorise
any department as defined in section 1 of the Public Service Act,
1957 (Act No.54 of 1957), or the railway administration to use for
such purposes the surface of any such land owned by the State and
not held by a Lessee.
Section 5(1) of the Minerals Act, 1991 provided that:
Subject to the provisions of this Act, the holder of the right
to any mineral in respect of land or tailings as the case may be,
or any person who has acquired the consent of such holder ... ,
shall have the right to enter upon such land or the land on which
such tailings are situated, as the case may be, together with such
persons, plant or equipment as may be required for purposes of
prospecting or mining and to prospect and mine for such mineral on
or in such land or tailings as the case may be, and to dispose
thereof.,
and as a corollary s23(1) of that Act provided that:
(1)If any person in any manner uses or causes to be used or
intends to use or to cause to be used the surface of any land or
includes or causes it to be included or intends to include or to
cause it to be included into any town planning scheme which may, in
the opinion of the Minister, detrimentally affect the object of
this Act in relation to the optimal exploitation of any mineral
which occurs or may occur in economically exploitable quantities in
or on such land or in tailings on such land, the Minister may
(a) cause an investigation to be held into the matter; and
(b) after consideration of the comment contemplated in
subsection (2) if any, and the result of the investigation
contemplated in paragraph (a), issue a direction ordering such
person to take such rectifying steps within a period specified in
the direction as may be required by the Minister..
At common law, the following prevailed.The mineral right holder
was entitled to use the surface of land for prospecting, mining,
and purposes incidental thereto, it having been put thus in the
leading case of Hudson v Mann & Another 1950(4) SA485(T) (which
was again approved recently in Anglo Operations Ltd v Sandhurst
Estates (Pty) Ltd 2007(2) SA363 SCA)):
... in the course of his operations, he ((the mineral right
holder)) is entitled to exercise all such subsidiary or ancillary
rights without which he will not be able efficiently to carry out
his prospecting and/or mining operations.
As a corollary to the above, the mineral right holder could
obtain an interdict against the landowner from engaging in land
uses which would frustrate the exercise of the mineral right
holders rights of surface use, such as by way of establishment of
townships or agricultural holdings, and building of dams and other
structures. See for example :
Transvaal Property & Investment Co Ltd v SA Townships Mining
& Finance Corporation Ltd 1938 TPD 512 (township
establishment)
Yelland & Others v Group Areas Development Board 1960 (2)
SA151 (T)
Nolte v Johannesburg Consolidated Investment Co Ltd 1943 AD
295
Zuurbekom Ltd v Union Corporation Ltd 1947(1) SA514 (A)
Franklin and Kaplan, The Mining and Mineral Laws of South
Africa, Butterworths, 1982 pages 124127.
Special recognition of mining uses in some statutory land use
provisions
In recognition of the abovementioned special attributes of the
mining industry and of the abovementioned recognition of the
predominance of mining uses over other land uses, amongst others
the following special provisions directly or indirectly applicable
to mining uses appeared in legislation.
In the Townplanning and Townships Ordinance, 1986 (Transvaal),
the following provisions appear:sections 21 and 22:
21Townplanning Scheme in respect of proclaimed land
(1)Subject to the provisions of subsection (3) and section 22, a
local authority shall not prepare a townplanning scheme in respect
of land
(a)which is proclaimed land;
(b)on which prospecting, digging or mining operations are being
carried out,
unless such land is situated within an approved township or
within a township in respect of which a notice as contemplated in
section 111 was published.
...
22Townplanning scheme in respect of proclaimed land
(1)When a notice of intention to de-proclaim land is published
in terms of section 44(3) of the Mining Rights Act, 1967, and the
land defined in the notice is situated within the area of
jurisdiction of a local authority
(a)the local authority may ...
...
prepare a townplanning scheme in respect of that land or any
portion thereof..
Section 43(1) and (5):
(1)Where on the date of the coming into operation of an approved
scheme any land or building is being used or, within one month
immediately prior to that date, was used for a purpose which is not
a purpose for which the land concerned has been reserved or zoned
in terms of the provisions of the scheme, but which is otherwise
lawful and not subject to any prohibition in terms of this
Ordinance, the use for that purpose may, subject to the provisions
of subsection (2), be continued after that date ...
...
(5)The local authority may, on application by the owner of any
land ... extend the period ... for a further period or periods, not
exceeding 15 years in the aggregate ... .
Section 69(5):
(5)Where
(a) the rights to minerals in respect of the land on which the
applicant wishes to establish a township has been severed from the
ownership of the land;
(b) the owner of land contemplated in paragraph (a) has, in
respect of the land, granted a lease of the rights to minerals or
entered into a prospecting contract ...
the applicant shall satisfy the local authority that
(i)the holder, usufructuary or lessee of the rights to minerals
or the holder of the rights in terms of the prospecting contract or
notarial deed
(aa)has consented to the establishment of a township;
or
(ab) cannot be traced and that the applicant has given notice of
the application in such manner as may be prescribed ... .
(a)In similar fashion to s69 of the above Ordinance, regulation
21(6) of the regulations made in terms of the Development
Facilitation Act, 1995 provided for notice to the mineral right
holder, of a land development application and the application form
(annexure B in the regulations) provided for lodgment of the
mineral right holders consent.
(b)Furthermore, the definition of land development in s1 of the
Development Facilitation Act, 1995 expressly excludes prospecting
and mining. It reads as follows (underlining added):
land development means any procedure aimed at changing the use
of land for the purpose of using the land mainly for residential,
industrial, business, smallscale farming, community or similar
purposes, including such a procedure in terms of Chapter V, VI or
VII, but excluding such a procedure in terms of any other law
relating exclusively to prospecting or mining;.
Although s6(1) of the Physical Planning Act, 1967 prohibited use
of land except under authority of a permit, s6(2) provided
that:
(2)Subsection (1) shall not apply in respect of
...
(c)the use of land for prospecting or mining for base minerals
or for any other purpose for which authority, provision or consent
is required in terms of any other law ... .
Similarly, although s27(1) of the Physical Planning Act, 1991
restricted uses of land and grants of permissions in conflict with
regional or urban structure plans, s27(2) provided that:
(2)The provisions of subsection (1)(b) and (c) shall not apply
in respect of any right of any person to prospect for or to mine
any mineral as defined in section 1 of the Minerals Act, 1991, or
the use of any land for prospecting or mining purposes, or for
purposes connected therewith..
Section 18(a) of the Southern Johannesburg Region Town Planning
Scheme, 1962, which was the subject of Falcon Investments Ltd v CD
of Birnam 1973 (4) SA 384 (A), provided that:
18... nothing in the foregoing provisions of this part of this
Scheme shall be construed as prohibiting or restricting or enabling
the Local Authority to prohibit or restrict
(a)the winning of minerals by underground working, or the
winning of minerals by surface working, or the erection of any
buildings or the carrying out of any works which is incidental
thereto as regards any land not included in established townships
and agricultural holdings;
... .
To address the problem of unreasonable withholding of consent by
mineral right holders to township establishment the Expropriation
of Mineral Rights (Townships) Act, 1969 empowered the expropriation
of mineral rights in those circumstances.The Subdivision of
Agricultural Land Act, 1970, which is proposed to be repealed by
the Bill if enacted, in ss3(e)(i) and (ii) recognises mining as
deserving of special exceptions, in providing that without
Ministerial consent:
(e)(i)no portion of agricultural land, whether surveyed or not,
and whether there is any building thereon or not, shall be sold or
advertised for sale, except for the purposes of a mine as defined
in section 1 of the Mines and Works Act, 1956 (Act No. 27 of 1956);
and
(ii)no right to such portion shall be sold or granted for a
period of more than 10 years or for the natural life of any person
or to the same person for periods aggregating more than 10 years,
or advertised for sale or with a view to any such granting, except
for the purposes of a mine as defined in section 1 of the Mines and
Works Act, 1956; (our underlining),
the reference to s1 of the Mines and Works Act, 1956 now falling
in terms of s12(1) of the Interpretation Act, 1957 to be read as a
reference to s102 of the Mine Health and Safety Act, 1996. Clauses
58 and 59 of the Bill which deal with similar topics however omit
the exception for mines.
The legal position of the mining industry in regard to land use
under the Constitution of the Republic of South Africa, 1996
In terms of the Constitution of the Republic of South Africa,
1996, mining is a national competence since it appears neither in
schedules 4 nor 5. As a result, the Mineral and Petroleum Resources
Development Act, 2002 (MPRDA), which is national legislation,
provides amongst others for the following.
The objects of the MPRDA as disclosed in section 2 are to
recognise the States sovereignty and custodianship over the nations
mineral and petroleum resources, to promote equitable access to
such resources, to expand empowerment in the mineral and petroleum
industries; to promote economic growth and mineral resources
development; to promote employment and advance social and economic
welfare; to provide for security of tenure in respect of
prospecting, exploration, mining and production operations, to
promote orderly and ecologically sustainable mineral development;
and to ensure socioeconomic development of mining areas.Section 3
provides that as custodian of the nations mineral and petroleum
resources, the State, acting through the national Minister of
Mineral Resources may grant prospecting and mining rights and that
the Minister of Finance may, as he has done in the Mineral and
Petroleum Resources Royalty Act, 2008, levy a royalty payable to
the State.Sections 5(2) and (3) provide that the holders of
prospecting and mining rights are entitled to the rights referred
to in section 5 and to such other rights as may be granted under
the MPRDA or any other law, and that:
(3)Subject to this Act, any holder of a prospecting right, a
mining right, exploration right or production right may
(a)enter the land to which such right relates together with his
or her employees, and may bring onto that land any plant, machinery
or equipment and build, construct or lay down any surface,
underground or under sea infrastructure which may be required for
the purposes of prospecting, mining, exploration or production, as
the case may be;
(b)prospect, mine, explore or produce, as the case may be, for
his or her own account on or under that land for the mineral or
petroleum for which such right has been granted;
(c)remove and dispose of any such mineral found during the
course of prospecting, mining, exploration or production, as the
case may be;
(d)subject to the National Water Act, 1998 ... , use water from
any natural spring, lake, river or stream, situated on, or flowing
through, such land or from any excavation previously made and used
for prospecting, mining, exploration or production purposes, or
sink a well or borehole required for use relating to prospecting,
mining, exploration or production on such land; and
(e)carry out any other activity incidental to prospecting,
mining, exploration or production operations, which activity does
not contravene the provisions of this Act..
Section 48 empowers the Minister to grant a prospecting or
mining right even in respect of land comprising a residential area
or land reserved in terms of any other law, if the Minister is
satisfied that:
(a)having regard to the sustainable development of the mineral
resources involved and the national interest, it is desirable to
issue it;
(b)the reconnaissance, prospecting or mining will take place
within the framework of national environmental management policies,
norms and standards; and
(c)the granting of such rights or permits will not detrimentally
affect the interests of any holder of a prospecting right or mining
right..
The above rights of entry have been confirmed also by the
Supreme Court of Appeal in its judgments in:
Holcim (South Africa) (Pty) Ltd v Prudent Investors (Pty)
Ltd
[2011] 1 All SA 364 (SCA), and
Sephaku Tin (Pty) Ltd v Kranskoppie Boerdery,
GNP 47561/2010, 7 May 2012
Witwatersrand Estates Ltd & Others v AfriSam (South
Africa)
Properties (Pty) Ltd & Others,
SGJ 29427/2012, 10 December 2013
Coal of Africa Ltd & Another v Akkerland Boerdery (Pty)
Ltd,
NGP 38528/2012, February 2014
Anglo American Inyosi Coal (Pty) Ltd v Claassen &
Another,
GDP 40387/2013, 28 March 2014
Joubert & Others v Maranda Mining Company (Pty) Ltd
2010(1)
SA198 (SCA) and in regard to which subsequently also
[2010] 2 All SA 67 (GNP)
The Chambers submission that mining be excluded from the
Bill
In all the above circumstances, the Chamber submits that it is
in the national interest that the Department of Agriculture not
narrowly focus only on its own portfolio of agriculture, but
instead recognise the over-arching needs of South Africa by
excluding and exempting mining from regulation in terms of the Bill
in the manner set forth in the detailed comments below.
Town-planning issues
One of the Chambers members, Glencore Operations (South Africa)
(Pty) Ltd, has obtained a comment report by Town Planners The
Practice Group (Pty) Ltd, in regard to town-planning aspects of the
Bill, to which the Chamber invites your attention. A copy of this
report is attached.
Comments on the Draft Policy and Bill on Preservation and
Development of Agricultural Land FrameworkGeneral comments
Since ultimately the Act will be the final manifestation of the
underlying policy, the Chamber will limit its comments to the
provisions of the Bill and not also comment on the draft policy
document. However, the principles underlying our comments on the
Bill apply equally to the draft policy document.
The Chamber acknowledges that there are some provisions in the
Bill which are seemingly aimed at ensuring that mining is
considered when demarcation of land for agricultural purposes takes
place. However, the Chamber is of the view that these provisions
are totally inadequate. More importantly, a problem which remains
is that often it may be unknown at the time when demarcation of
land for agricultural purposes is being considered whether or not
land is mineralised and hence whether or not the proposed
demarcation will need to be elevated to the relevant consultative
body. Since in terms of sections 2 and 3 of the MPRDA the State
acting through the Minister of Mineral Resources is custodian of
South Africas mineral and petroleum resources, the Chamber submits
that in fact each and every demarcation of land for any specific
purposes, including agriculture, will necessarily need to be
elevated to the relevant consultative body.
The Chamber is of the view that the root of the problem lies in
clause 3 of the Bill coupled with the definition of agricultural
land. Clause 3 gives the department custodianship over agricultural
land, which is defined as all land in South Africa, minus certain
exceptions. Unless the definition of agricultural land is amended
to exclude current and future prospecting and mining operations,
the custodianship of mineralised land by the department will be in
conflict with the Constitution and the MPRDA. The approach seems to
be that all land in South Africa must be regarded as agricultural
land, except land excluded specifically under the Bill. This
approach is flawed. There are other statutes and the common law
which give persons rights in land (including for other uses) and
which rights cannot merely be taken away without lawful procedures
(possibly expropriation procedures).
The Minister of Mineral Resources by virtue of the MPRDA and the
Minister of Environment Affairs by virtue of National Environmental
Management Act, 1998 and other environmental statutes are mandated
to implement, administer and enforce the provisions of those
statutes and to ensure the protection of the environment and
conservation of natural resources, balanced with sustainable
development and the equitable distribution of the benefits derived
from natural resources, guided by their constitutional mandate, as
contained in section 24 of the Constitution which in s24(b)(iii)
refers expressly to promoting justifiable economic and social
development. The concern is that where the Bill also deals with
mining matters, it would not only constitute an attempt to usurp
the aforesaid ministerial powers and mandates, but would also lead
to duplication, fragmentation and uncertainty.
Detailed commentsChapter 1: Clause 1- Definitions
agricultural land
Paragraph (c) excludes from the definition land which,
immediately prior to the date of commencement of this Act, was
formally zoned for non-agricultural purposes by any sphere of
government or any public entity;
Not all land in the country is currently subject to zoning (as
this term is understood it is not defined in the Bill) and many
mining operations are lawfully conducted on land which has not been
zoned for a specific purpose. It is recommended that the words or
which is the subject of any right, permit or permission in relation
to minerals or petroleum or of any reservation or permission for or
right to use the surface of land, and which is granted, issued, or
which remains in force in terms of the Mineral and Petroleum
Resources Development Act, 2002 be inserted at the end of paragraph
(c).
Furthermore since zoning is not the only way in which land can
lawfully be used in terms of land use planning legislation, it is
suggested that after the word zoned the words or subject to a land
use departure, consent use, or exemption, be inserted.
land use
The following exclusion should be inserted a the end of this
definition, namely,
excluding any such activities which constitute or are related or
incidental to reconnaissance, prospecting, mining, exploration,
production or processing, as defined in the Mineral and Petroleum
Resources Development Act, 2002.
right
The definition excludes from agricultural land, any right to
minerals or a prospecting or mining right as contemplated in the
MPRDA. These are not the only authorisations under the MPRDA.
Further, as mentioned above, section 5 of the MPRDA gives holders
of a prospecting right, mining right, exploration right and
production right various other rights. The definition should
therefore be amended to refer to any right, permit or permission in
relation to minerals or petroleum or any reservation or permission
for or right to use the surface of land, and which is granted,
issued or which remains in force in terms of the Mineral and
Petroleum Resources Development Act, 2002.
scheduled land use purposes
Paragraph (j) in this definition refers to rezoning of
agricultural land for mining purposes. For the reasons above, the
Chamber submits that rezoning of agricultural land for mining
purposes should not require approval in terms of the Bill, and
therefore requests the deletion of paragraph (j);
Clause 4
As mentioned above, the fundamental submission of the Chamber is
that land held under right, permit or permission granted in terms
of the MPRDA should not be regulated in terms of the Bill if
enacted.
The Chamber therefore requests that the following new clause
4(b)(iii) be inserted into clause 4, namely:
(iii)which is the subject of a right, permit or permission
relating to minerals or petroleum or of a reservation or permission
for or right to use the surface of land, granted, issued or which
remains in force, in terms of the Mineral and Petroleum Resources
Development Act, 2002..
Prohibitions on subdivision and on rezoning: clauses 5 and 6,
and corresponding clauses in subsequent Parts of chapter 2
For the reasons above, the Chamber requests exemptions for land
which are the subject of rights, permits and permissions granted in
terms of the MPRDA.
It is requested that Clause 5 be amended as follows:
5. The subdivision of high potential cropping land is
prohibited, unless
(1) approved by the Minister in accordance with section 12 (4);
or
(2) it is for purposes of exercising a right, permit or
permission relating to minerals or petroleum, or any reservation,
permission or right to use the surface of land, granted, issued, or
which remains in force, in terms of the Mineral and Petroleum
Resources Development Act, 2002.
It is requested that Clause 6 be amended as follows:
6. The rezoning, with associated subdivision if required, of
high potential cropping land is prohibited, unless
(1) approved by the Intergovernmental Committee in accordance
with section 12 (5); or
(2) it is for purposes of exercising a right, permit or
permission relating to minerals or petroleum, or any reservation,
permission or right to use the surface of land, granted, issued, or
which remains in force, in terms of the Mineral and Petroleum
Resources Development Act, 2002.
Locus standi as applicants: clause 7, and corresponding clauses
in subsequent Parts of Chapter 2
In some cases the holder of a right, permit and permission in
terms of the MPRDA will not also be the landowner, but nevertheless
needs to have locus standi to lodge applications in terms of the
Bill if enacted.
The Chamber requests that it be expressly provided that the
holder of any right, permit or permission for minerals or
petroleum, or of any reservation, permission or right to use
surface of land, granted, issued or which remains in force, in
terms of the MPRDA, or a lessee or sub lessee of any of the
aforegoing, be competent to lodge applications in terms of the Bill
if enacted.
Submission of documentation by applicants: clause 8, and
corresponding clauses in subsequent Parts of Chapter 2
Applicants should additionally be required to submit:
a certificate from the Regional Manager, Mineral Regulation, of
the Department of Mineral Resources, giving details of:all rights,
permits and permissions for minerals and petroleum, and all
reservations, permissions or rights to the use of land, granted,
issued or which remain in force in terms of the MPRDA, and any
leases or subleases thereof;all applications for any of the items
which are referred to in paragraph (i) above;the consent in terms
of s53 of the MPRDA of the Minister of Mineral Resources to the
proposed activities which are the subject of the application which
is made in terms of the Bill if enacted;the consent of the holders
and applicants in paragraphs (a)(i) and (ii) above, to the
application made in terms of the Bill if enacted;a certificate by
the Council for Geoscience giving details of the known or inferred
geology and mineralisation of the relevant land.Clause 9
The wording of clause 9(b) should be corrected to read:
an intended future land use change to reconnaissance,
prospecting, mining, exploration, production, or processing, all as
contemplated in the Mineral and Petroleum Resources Development
Act, 2002.
Clauses 12 and 13, and corresponding clauses in subsequent Parts
of Chapter 2The following comments and requests in respect of
clauses 12 and 13 will only find application should the requested
amendments of clauses 4 and 5 not be given effect to.Although a
rezoning application is decided by the Intergovernmental Committee,
the following problems arise insofar as mining is concerned.In
terms of clause 12(5), the application may only be granted if
exceptional circumstances as defined in clause 13(3) exist, but
these do not encompass mining uses. Although in terms of clause 86
the composition of the Intergovernmental Committee includes the
Minister of Mineral Resources, he is only one of 10 members, and
can be outvoted. In terms of clause 12(6)(c)(i), the
Intergovernmental Committee must take into account whether the
applicant is able to prove that the rezoning will not negatively
affect food security.In clause 12(9), rationality should not be the
sole criterion for review: see the numerous grounds of review in s6
of the Promotion of Administrative Justice Act, 2000 (PAJA) and
which are not limited to rationality. Again in clause 13(2), the
Intergovernmental Committee may only approve the application if
exceptional circumstances exist.The definition of exceptional
circumstances in clause 13(3) (which definition should perhaps be
in clause 1), would not encompass mining in that the requirements
of clauses 13(a) to (d) are cumulative and would not be satisfied
in the case of mining.
(vii) In clause 13 (4) (e) provision should be made for the
recommendation by the Minister of Mineral Resources also to be
taken into account.
It is requested that:at the end of clause 12 (5) (b) the word or
is inserted, and the following clause 12 (5) (c) is inserted:
the application relates to an intended future land use change to
reconnaissance, prospecting, mining, exploration, production, or
processing, all as contemplated in the Mineral and Petroleum
Resources Development Act, 2002
Clauses 13(5) to (8) deal expressly with prospecting, mining and
hydraulic fracturing, but again effectively constitute a veto
against these activities in that clause 13(7) provides that a
negative Agro-ecosystem Report results in the non-utilisation of
any relevant right (for example a permit, permission or right
granted in terms of the MPRDA). Effectively therefore, this
provision trumps the powers and functions of the Minister of
Mineral Resources. For the reasons earlier above, this is not in
the national interest, neither is it constitutional and the
aforesaid clauses must be amended with the removal of references to
mining and prospecting.The Bill assumes that all mining operations
are anathema to farming. That is not so in that the mining
operations may be underground and have no surface effect
whatsoever. The same has been held to be true of mining on township
land, i.e. that mining operations and township establishment are
not necessarily mutually exclusive: see Johannesburg City Council v
Crown Mines Ltd 1971 (1) SA 709 (A) at 722-723 cited by Franklin
& Kaplan, op cit, page 458.Deviations in terms of clause 15,
and corresponding clauses in subsequent Parts of Chapter 2
Again, the requirements for deviation are cumulative and will
not encompass mining. This is exacerbated by the proviso to clause
15(1)(d).
Clause 17, and corresponding clauses in subsequent Parts of
Chapter 2
Mining also requires water use. Once an application for
subdivision or rezoning has been granted, there is no reason why
existing water use licences should be retained only for
agricultural purposes. Clause 17(1) should be deleted. See the
reference above to the new one-shop-stop system for mining and
which includes water use licences in terms of the National Water
Act, 1998.
Clause 19, and corresponding clauses in subsequent Parts of
Chapter 2
Some mining operations (such as underground gold mining
operations under the Johannesburg Central Business District and
diamond mining operations in the Kimberley Central Business
District) and quarrying operations occur within, bisected by, or in
close proximity to, urban areas. Clause 19 is therefore not in the
national interest and should be deleted.
Clauses 5 to 28 generally
Mining is a national competence in terms of the Constitution of
the Republic of South Africa, 1996, and which ranks at least
equally to agriculture which is a concurrent national and
provincial competence. The attempted encroachment by the Minister
of Agriculture on the functional competence on the Minister of
Mineral Resources is unconstitutional.
Clauses 29 to 52These clauses which relate to medium potential
agricultural land are similar to the corresponding clauses in
Chapter 2, part I, relating to high potential cropping land, so
that the above comments apply equally to the clauses in Chapter 2,
Part II.Additionally however, the position in regard to mining uses
is exacerbated by the fact that the decision-maker is the MEC,
whereas mining is a national competence in terms of the
Constitution of the Republic of South Africa, 1996 and falls solely
within the competence of the National Minister of Mineral
Resources.It is requested that Clause 29 be amended as follows:
29. The subdivision of medium potential agricultural land is
prohibited, unless
(a) approved by the MEC in accordance with section 26 (8);
or
(b) it is for purposes of exercising a right, permit or
permission relating to minerals or petroleum, or any reservation,
permission or right to use the surface of land, granted, issued, or
which remains in force, in terms of the Mineral and Petroleum
Resources Development Act, 2002.
It is requested that Clause 30 be amended as follows:
30. (1) The rezoning, with associated subdivision if required,
of medium potential agricultural land is prohibited, unless
(a) approved by the MEC; or
(b) it is for purposes of exercising a right, permit or
permission relating to minerals or petroleum, or any reservation,
permission or right to use the surface of land, granted, issued or
which remains in force, in terms of the Mineral and Petroleum
Resources Development Act, 2002.
(2) The rezoning of land of capability class IV is prohibited
for an interim period of 5 years from the date of commencement of
the Act, unless
(a) approved by the Minster and MEC; or
(b) it is for purposes of exercising a right, permit or
permission relating to minerals or petroleum, or any reservation,
permission or right to use the surface of land, granted, issued or
which remains in force, in terms of the Mineral and Petroleum
Resources Development Act, 2002.
Clause 53
The above comments apply equally to clause 53.
Clause 54
Mining companies are often as a result of their mining
operations the owners of agricultural land. Since the primary focus
of mining companies is mining, clause 54(3) should not apply to
land which is the subject of a right, permit or permission granted
in terms of the MPRDA. The reference to low price contravenes
s25(3) of the Constitution of the Republic of South Africa,
1996.
Clause 55
Again, there should be an exemption for use of such land for
mining purposes.
Clauses 57 to 59 and 68These clauses seem to be intended to
replace the corresponding provisions in the Subdivision of
Agricultural Land Act, 1970.However, they do not carry forward the
exemptions for purposes of a mine as currently contained in
ss3(e)(i) and (ii) of the Subdivision of Agricultural Land Act,
1970 and as quoted above.It is submitted that all of these
provisions should be subject to exemptions for purposes of a mine.
Sub clauses (6)(b) in clauses 57 to 59 are unconstitutional since
they offend against the rule of law principle in s1(c) of the
Constitution, in that notice of breach and opportunity to remedy
must be given since non-compliance may be due to reasons beyond the
control of the effected person such as for reasons of impossibility
of performance, force majeure, duress, and the like. These sub
clauses should be replaced by normal breach provisions such as
contained in clause 151 of the Bill.Clause 59 should be
subordinated to clause 68 so that where the provisos in clause 68
apply, clause 59 would also not apply. None of the previous
prohibitions in earlier parts of Chapter 2 of the Bill prohibiting
subdivision should apply where the provisos to clause 68 apply.In
regard to the above clauses read with the existing corresponding
provisions in the Sub Division of Agricultural Land Act, 1970, see
the reference below to the judgment in Blue Crane Country Estate
(Pty) Ltd v The National Minister of Agriculture, Forestry and
Fisheries & Others, GDP case3925/2014, 23 March 2015.
(h)The requirement of Ministerial consent to conclude a long
term lease agreement over property that constitutes agricultural
land is extremely onerous and appears to serve no rational purpose
that can be linked to the objectives of the Bill. Perhaps the
intention was to replace the corresponding provisions in the
Subdivision of Agricultural Land Act, 1970 that pertained to the
entering into a long term lease agreement in respect of a portion
of a property that constitutes agricultural land?
(i) Similarly, should clause 59 (1) (d) also not refer to the
registration of a right of habitatio in respect of a portion of
high potential cropping land?
Clause 60 and the definition of citizen in clause 1
Some of the Chambers members are companies the shareholders of
which are not South African Citizens and others are listed
companies with active trading of its shares locally and abroad.
Accordingly, clause 60 should not apply to holders of rights,
permits or permissions granted in terms of the MPRDA.
The problem is exacerbated by the vague reference in paragraph
(c) of the definition of citizen in clause 1, to certain thresholds
of foreign involvement. It is submitted that such vagueness renders
this part of the definition contrary to the rule of law requirement
in s1(c) of the Constitution and hence unconstitutional.
Clause 61
Consolidation of land has not previously been subject to
control. Consolidation is sometimes required for purposes of
consolidation of a mining area as defined in s1 of the MPRDA.
Again, clause 60 should contain an exemption for purposes of a
mine.
In regard to clause 61(6)(b), see the comments on clauses 57 to
59 above.
Clause 65
In regard to the reference to clause 54 in clause 65(1), see the
comments on unconstitutionality in relation to clause 54(3)
above.
Chapter 4
It is suggested that the register also contain details of all
rights, permits and permissions granted in terms of the MPRDA.
Chapter 5
It is suggested that Agro-ecosystem Reports also contain
information in regard to:
applications for and holdings of rights, permits and permissions
in terms of the MPRDA;known or inferred geology and
mineralisation;reconnaissance, prospecting, mining, exploration,
production, and processing operations conducted pursuant to the
MPRDA. Chapter 6, part I, Intergovernmental CommitteeAs mentioned
above, the Chamber will suggest to the Minister of Mineral
Resources, and for which purpose a copy of these submissions is
being sent to him, that the draft Bill should be referred already
now to dispute resolution in terms of the Intergovernmental
Relations Framework Act, 2005. Clause 83(1) is not correct in
referring to the Intergovernmental Committee as merely a
consultative forum, in that it has decision-making powers in terms
of Chapter 2, part I. The factors in clause 85 need to be extended
to refer to factors relevant to mining.Although the Minister of
Mineral Resources is a member of the Intergovernmental Committee,
he is only one of 10 members, and can be outvoted in terms of
clause 87. The Minister of Mineral Resources should have overriding
powers insofar as mining matters are concerned.Chapter 6, Parts II,
III, IV and V
The position is even worse in regard to the Commission and
Committees which are referred to in Chapter 6, Parts II, III, IV
and V, on which the Minister and Department of Mineral Resources
should, but do not, have representation.
Chapter 6, Part VI: Review BoardThe reference to a Review Board
seems to be intended to replace judicial review in terms of s6 of
PAJA. Perhaps PAJA should be stated to apply mutates mutandis to
the Review Board as if the Review Board were a tribunal as
contemplated in PAJA.The Chamber notes that clause 132 contemplates
an appeal to the High Court from decisions of the Review Board.
Clause 131 should be subordinated to clause 132.Chapter 7:
Intergovernmental disputesAs mentioned above, the Chamber will
recommend to the Minister of Mineral Resources that he now already
declare a dispute in regard to the drafting and tabling of the Bill
insofar as it attempts to use his competence in mining
matters.Chapter 7 should refer to the Intergovernmental
Relationship Framework Act, 2005.Chapter 8: Provincial and
Municipal responsibilities
All these provisions should require that mining be taken into
account.
Clause 152: TaxationExemptions should be provided in relation to
mining uses.Clause 152 flies in the face of income tax and
royalties generated in terms of the Income Tax Act, 1962 and the
Mineral and Petroleum Resources Royalty Act, 2008, by mining. The
Local Government: Municipal Property Rates Act, 2004 also provides
for a separate rating category for property used for mining
purposes.Clauses 154 and 164Provision should be made that pending
applications made in terms of the Subdivision of Agricultural Land
Act, 1970 and which are pending and not finalised on date of
commencement of the Bill once enacted, will be processed to
finality in terms of that act as if that Act had not been
repealed.It should be made expressly clear that the exemptions in
s3(e)(i) and (ii) of the Subdivision of Agricultural Land Act, 1970
continue to apply in respect of sales and grants which were
concluded prior to the repeal of that Act.
(29) Clause 168 and Schedule I
The Subdivision of Agricultural Land Act 70 of 1970 was repealed
by the Subdivision of Agricultural Land Act Repeal Act 64 of 1998
as assented to on 16 September 1998 and with its date of
commencement still to be proclaimed.
The Blue Crane Judgment
The judgment in Blue Crane Country Estate (Pty) Ltd v The
National Minister of Agriculture, Forestry and Fisheries &
Others, GDP case 3925/2014, 23 March 2015, which related to the
Subdivision of Agricultural Land Act, 1970, is instructive in
regard to the purpose of that act and which should also be the
purpose of the Bill. The judgment itself, and the cases cited in
it, make it clear that the object of the Act was to prevent the
fragmentation of agricultural land into smaller uneconomical units
of agricultural land. For example, this could happen where an owner
of land subdivided his land among his 10 sons, who each then in
turn subdivided their portion of land among each of their 10 sons,
and so on. It was not designed to prevent change of use from
agricultural to other uses, such as now contemplated in the
Bill.
Conclusion
Regrettably, unless the Chambers submissions are headed, the
Chamber does not find itself able to support the Bill. It
nevertheless thanks the Department of Agriculture for having
afforded it the opportunity to comment on the Bill and if it could
be recorded as an interested and affected party in regard to
hearings on or redrafts of the Bill both during the Departmental
process and during the Parliamentary process.
Yours faithfully
Anton van AchterberghLegal Consultant
T: 27 11 498 7378 F: 27 11 4987375 C: 083 2657816
E:[email protected] Policy:
www.chamberofmines.org.za
AvA/CoM/notes/2015/Draft CoM comments on draft Agricultural
Framework documents 29 May
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