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[2016] ZASCA 167
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Macassar Land Claims Committee v Maccsand CC and Another (201/2016) [2016] ZASCA 167; [2017] 2 All SA 17 (SCA); 2017 (4) SA 1 (SCA) (23 November 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no:
201/2016
In the matter between:
MACASSAR LAND
CLAIMS COMMITTEE
APPELLANT
and
MACCSAND
CC
FIRST RESPONDENT
THE GOVERNMENT OF THE
REPUBLIC
OF SOUTH
AFRICA
SECOND RESPONDENT
Neutral citation:
Macassar Land Claims Committee v
Maccsand CC
(201/2016)
2016 ZASCA 167
(23 November 2016)
Coram:
MAYA AP, WALLIS JA and FOURIE, SCHOEMAN and DLODLO
AJJA
Heard
:
7 November 2016
Delivered
:
23 November 2016
Summary:
Restitution of Land Rights Act 22 of
1994
– Land Claims Court – powers – claim for
restitution of commonage – mining right in terms of
Mineral and
Petroleum Resources Development Act 28 of 2002
– whether Land
Claims Court has power to order the expropriation of right and its
expungement.
ORDER
On
appeal from:
Land Claims Court (Mpshe
AJ sitting as court of first instance):
(a)
The order of the Land Claims Court is
altered to read as follows:
‘
The
special plea is upheld and the following portions of the amended
particulars of claim are struck out, namely: in para
16.1 the
words ‘exploited the mineral and natural resources of the
commonage by inter alia utilizing the mineral wealth of
the sand
dunes by extracting limestone and utilizing and selling sand’;
in para 45 the underlined words; paras 52(2) to 52(11)
and 72; the
underlined words in prayer (a); and, prayer (f).’
(b)
The appeal is otherwise dismissed.
(c)
The Appellant is ordered to pay the
costs of the First Respondent, such costs to include those consequent
upon the employment of
two counsel.
JUDGMENT
Wallis JA (Maya AP
and Fourie, Schoeman and Dlodlo AJJA concurring)
[1]
The appellant, the Macassar Land Claims
Committee (the Committee) is a voluntary association representing
members of the community
of Sandvlei, Macassar. It claims that this
community is descended from a group of freed slaves on the farm
Zandvliet and that,
after they were freed, they enjoyed rights of
commonage over Zandvliet that were reflected in the title deed of the
farm. However,
after the declaration of Macassar as a Coloured Group
Area in terms of the Group Areas Act 41 of 1950, the various erven
that incorporated
parts of the commonage were transferred either to
members of the Coloured group or to the Community Development Board,
a statutory
body. When this was done the references in the title
deeds to the land being or including commonage were deleted. As a
result the
Committee claims that the community of Sandvlei was
dispossessed of their rights in the commonage in terms of a piece of
racially
discriminatory legislation.
[2]
On 23 June 2003 the Committee launched an
application before the Land Claims Court (LCC), in terms of the
provisions of the Restitution
of Land Rights Act 22 of 1994 (the
Act), seeking restitution of a right in land in respect of the
commonage previously forming
part of erven 1195, 1196, 1197, 1198 and
1191 Macassar. The application cited 11 respondents. Of those only
two, Maccsand CC (Maccsand)
and the Government of the Republic of
South Africa, represented by the Department of Mineral and Energy
(the Department), are relevant
to and participated in this appeal as
the first and second respondents respectively.
[3]
Maccsand holds a mining right granted in
terms of the Minerals and Petroleum Resources Development Act 28 of
2002 (the MPRDA), that
entitles it to engage in sand mining
operations on Erf 1197, Macassar, which is one of the erven in
respect of which the Committee
advances its claim. As part of the
relief that it sought in the LCC the Committee claimed the following
orders:
‘
(a)
An order directing the second and third defendants
[1]
to acquire, or if necessary to expropriate erven 1195, 1196, 1197,
1198 and 1991 Macassar
as
well as the entitlement, alternatively the right of the first
defendant to mine erf 1197 Macassar.
…
(b)
Restitution of the lost commonage rights in land on the former farm
Zandvliet, Macassar,
by restoration of erven 1195, 1196, 1197, 1198
and 1991 Macassar . . . into the name of a communal property
association to be formed
to administer same on behalf of the
community of Sandvlei, Macassar.
(c)
Alternatively, restitution of the lost commonage rights in land on
the former farm
Zandvliet by amending all present title deeds and
diagrams that comprise land that previously formed part of the
commonage that
existed on the former farm Zandvliet . . . with the
following words:
“
Subject to the Zandvliet
commonage”.
(d)
. . .
(e)
. . .
(f)
An order expunging
the mining rights granted to the first defendant
[Maccsand]
pursuant to the expropriation that had been sought in respect thereof
in prayer (a) prior to the conversion of such.’
(My emphasis.)
[4]
In response to these prayers the Department
delivered a special plea in which it contended that the LCC had no
power to grant the
relief claimed in respect of Maccsand’s
mining rights. Maccsand made common cause with the Department in this
regard and
the issue was dealt with separately before Mpshe AJ on
13 April 2015. He delivered a judgment on 15 September 2015
upholding
the point and granting the following order:
‘
This
court does not have jurisdiction to acquire the erven as stated nor
to expropriate the mining right as exercised by First Defendant.’
This appeal is with
his leave.
The Act
[5]
The LCC was constituted by the Act and its
powers are set out in the Act. Unlike the High Court it has no
general jurisdiction.
The outcome of the case therefore depends upon
a proper construction of the powers vested in it. One of its
functions in terms
of s 22(1)
(a)
of the Act is to determine any right to restitution of any right in
land in accordance with the Act. In terms of s 2(1)
(d)
of the Act a person is entitled to
restitution of a right in land (as defined) if it is a community or
part of a community dispossessed
of a right in land after 19 June
1913 as a result of past racially discriminatory laws or practices.
The Committee claims that
the Group Areas Act dispossessed the
community it represents of its commonage rights. That is the
foundation for its claim.
[6]
In order to see the powers of the LCC in
context it is helpful to start by examining the provisions of the Act
dealing with claims
for restitution. The following definitions appear
in s 1 thereof:
‘“
claim”
means-
(a)
any claim for restitution of a right
in land lodged with the Commission in terms of this Act; or
(b)
any application lodged with the
registrar of the Court in terms of Chapter IIIA for the purpose of
claiming restitution of a right
in land;
“
restitution
of a right in land”
means-
(a)
the restoration of a right in land;
or
(b)
equitable redress.
“
restoration
of a right in land”
means
the return of a right in land or a portion of land dispossessed after
19 June 1913 as a result of past racially discriminatory
laws or
practices;
“
right
in land”
means
any right in land whether registered or unregistered, and may include
the interest of a labour tenant and sharecropper, a
customary law
interest, the interest of a beneficiary under a trust arrangement and
beneficial occupation for a continuous period
of not less than 10
years prior to the dispossession in question.’
[7]
Three important principles emerge from the
definitions. The first is that the definition of ‘right in
land’ encompasses
everything from full ownership of land to
unregistered rights such as the interest of a labour tenant or
sharecropper, or even
continuous residence for a period of not less
than ten years prior to the dispossession. The expression must be
given a broad meaning
in accordance with the remedial purpose of the
Act.
[2]
It is undoubtedly wide enough to encompass the commonage rights that
are in issue in this case.
[8]
The second point is that the ambit of the
entitlement to restitution is to be found within the four corners of
the Act. In
Florence
,
[3]
Zondo J, giving the judgment of the Constitutional Court, said:
‘
The
“restitution of a right in land” as defined is the full
redress cognisable by the Restitution Act for the dispossession
of a
right in land. Where a statute creates a new cause of action and
prescribes a specific remedy for that cause of action, the
prescribed
remedy is the only remedy available for that cause of action.’
In other words, the
LCC is a creature of statute having only the powers conferred by the
Act. It has no inherent jurisdiction to
redress perceived grievances
in regard to the dispossession of a right of land, save in the manner
contemplated by the Act.
[9]
The third point, flowing from
Florence
and the definitions, is that
restitution of a right in land must either take the form of the
restoration of the right in land of
which the claimant was
dispossessed or equitable redress. Where restoration of a right in
land is claimed that requires ‘return’
of the right of
which the claimant was dispossessed. In other words the claimants are
to be restored to the position they would
have been in had they not
been dispossessed of their right.
[10]
There may be instances where, as a result
of intervening events, it is not possible to restore everything that
was taken away or
to restore it in precisely the same form as it was
when the claimants were dispossessed, but the purpose of the Act’s
mechanism
is to achieve restitution. It is not to be used to obtain
more than was taken away by the act of dispossession.
Section 35(1)(
a
)
of the Act
[11]
Against that background, I turn to the
provision of the Act on which the Committee relies in claiming that
the LCC has the power
to order the expropriation of Maccsand’s
mining right. It is s 35(1)
(a)
,
which provides that:
‘
(1)
The Court may order-
(a)
the restoration of
land, a portion of land or any right in land in respect of which the
claim or any other claim is made to the
claimant or award any land, a
portion of or a right in land to the claimant in full or in partial
settlement of the claim and,
where necessary, the prior acquisition
or expropriation of the land, portion of land or right in land . . .’
[12]
Counsel for the Committee, Mr Rosenberg SC,
submitted that what was being sought in this case was restitution of
land, specifically
the properties mentioned in the order, including
Erf 1197. As these were not in the ownership of the State they could
only be restored
if they were first acquired. Their acquisition or
expropriation was therefore necessary in order to give effect to the
order for
restitution. There was no difference between counsel over
this approach to the construction of s 35(1)
(a)
.
It accords with several carefully drawn distinctions in the Act.
First, the Act provides for the restitution of a right in land,
not
the restitution of land
simpliciter
.
When a claim for restitution of a right in land is upheld, the LCC
can order its restoration, and restoration means the return
of the
right of which the claimant was dispossessed. Frequently the right
that was dispossessed will have been ownership and that
is why
s 35(1)
(a)
empowers the LCC to order the ‘restoration of land, a portion
of land or any right in land’. The latter expression
must refer
to any ‘other’ right in land, that is, any right other
than a right to land or a portion of land. To hold
otherwise would
mean that s 35(1)
(a)
introduced a concept of a ‘right in land’ different from
the one in the definition in s 1. When the LCC is asked
to order
the restoration of land or a portion of land that is because the
right in land asserted by the claimant is ownership of
the land
concerned or that portion of land.
[13]
An order for the acquisition or
expropriation of land in terms of s 35(1)
(a)
may only be made by the LCC where that is necessary in order to
implement an order for the restitution of land. The language of
the
section is clear. It refers to the power of the LCC to make an order
for the restitution of land, the restitution of a portion
of land and
the restitution of a right in land, and then says that
where
necessary
an order can be made for the
acquisition or expropriation of
the
land, portion of land or right in land.
Acquisition or expropriation is only necessary when there is to be
restitution of a particular
piece of land or portion of land or other
right in land. The use of the definite article means that what may be
expropriated refers
back to the land, portion of land or right in
land that is the subject of the restoration order.
[14]
On behalf of Maccsand it was submitted that
this was fatal to the claim for an order compelling the acquisition
or expropriation
of Maccsand’s mining right. The community had
never held or exercised a mining right in respect of Erf 1197 and was
not asking
to have a mining right, as a right in land, restored to
them. As the power to order expropriation may only be exercised when
necessary
in order to restore the right in land that is the subject
of the claim for restitution of that right, it is simply unavailable
in this situation. Even more is it unavailable for the purpose of
expunging a mining right. For the Department, Mr Warner made the
point that it is only rights in land of which people were
dispossessed by racially discriminatory legislation and measures that
can be the subject of a claim for restitution. He submitted that the
mining right possessed by Maccsand was not in existence prior
to the
enactment and coming into force of the MPRDA and therefore it could
not be the subject of a claim for restitution. As such
it could not
be the subject of an order for its acquisition or expropriation.
[15]
These arguments are undoubtedly correct if
the Committee’s claim for restitution was a claim in respect of
the right in land
constituted by the commonage rights that the
community had previously enjoyed over various erven of the farm
Zandvliet. In my view
it was. The Constitutional Court held in
Goedgelegen
[4]
that it is vital to characterise the claim for restitution
accurately. In this case the restitution being sought by the
Committee
was not restitution of ownership of land. That was made
clear in its particulars of claim and in the relief that it sought.
As
to the former it was alleged that ‘the community were
deprived of the usage of the commonage’. As to the latter both
prayers (b) and (c) embodied claims for ‘restitution of the
lost commonage rights’. It was alleged that the community
exercised both registered and unregistered commonage rights in land
and were dispossessed of that right in land. The manner of
their
dispossession was by erecting fences and removing references to the
commonage from diagrams of the affected erven. In regard
to erf 1197,
which is the erf on which Maccsand has mining rights, the Community
Development Board acquired this in 1975 and the
Surveyor General
issued a new diagram omitting the commonage in 1974. Had this not
occurred the rights of the community to the
commonage would have
remained in force. Instead there was a refusal to recognise those
rights.
[16]
The Committee argued that its claim was a
claim for the restitution of land founded on the dispossession of its
commonage rights.
If that was incorrect, as in my view it was, then
for that reason alone there could never be a right to an order that
the Minister
acquire or expropriate Maccsand’s mining right and
no basis for the further prayer that this mining right be expunged.
[17]
Finally, under this head, recognition that
the only purpose for which the power of expropriation in s 35(1)
(a)
may be used is in order to restore that which is to be expropriated
to the person claiming restitution, creates a further obstacle
in the
path of the Committee’s argument. The purpose of the claimed
acquisition or expropriation of Maccsand’s mining
right is that
it be expunged, not that it be transferred to the Committee or the
suggested communal property association. The question
of any exercise
of mining rights thereafter is a matter for determination in
accordance with the prescripts of the MPRDA. The Committee
and the
community it represents have made no decision on whether any
application will be made to secure those rights. Accordingly,
the
acquisition or expropriation of Maccsand’s mining rights is not
an acquisition or expropriation contemplated by s 35(1)
(a)
,
because it is not an acquisition or expropriation directed at vesting
the acquired rights in the applicant for restitution.
[5]
Section 35 (4) of the
Act
[18]
Counsel for the Committee sought to
meet the point that its claim was one for restitution of the right in
land constituted by the
community’s rights of commonage, by
drawing attention to the provisions of s 35(4) of the Act, which
empowers the LCC,
when ordering the restitution of a right in land,
to ‘adjust the nature of the right previously held by the
claimant’.
He submitted that even if the right of which the
community had been dispossessed was a right of commonage it was open
to the LCC,
in granting restitution, to adjust that right by
directing the acquisition of the land over which the commonage right
existed.
[19]
In my view section 35(4) does not support
the argument. No doubt such adjustment may be necessary in some
cases, to deal with events
that have occurred since the dispossession
and to effect as full and proper a restitution as is feasible. But
adjusting a right
means that the right remains the same, but in some
matter of detail is altered. It does not mean that the nature of the
right is
so altered that a wholly different right comes into
existence. For example, the right of a labour tenant – a person
who,
in exchange for their labour, enjoys rights of use of grazing or
cropping land
[6]
– will on restitution have to be adjusted to take account of
the provisions of the Land Reform (Labour Tenants) Act 3 of
1966.
Something that would call for adjustment arises from s 3 of that
Act, which permits a labour tenant to nominate someone
other than
themself to perform service to the owner of the farm in their stead.
That may well not have been the basis upon which
they, or their
ancestors, became labour tenants. But in granting restoration of the
labour tenancy account must be taken of changes
in the law or
circumstances that require some adjustment of the right being
restored.
[20]
It does not follow that s 35(4)
empowers the LCC, when restitution is sought of a particular right in
land, to adjust the right
so as to alter its essential nature and
restore something different from that which was taken away. Thus a
tenant deprived of possession
may recover possession, and a
usufructuary deprived of use may recover use, but neither of them can
be given ownership in place
of their tenancy or usufruct. That would
not be restitution, but something else entirely.
[21]
Counsel for the appellant sought to pray in
aid of this argument the decision in
Goedgelelgen
.
He submitted that the claimants in that case were labour tenants who
had been evicted as a result of past discriminatory practices
and
that the relief they obtained was ownership of the farm on which they
had previously been labour tenants. However, that was
incorrect. It
appears from the judgment that the individual claimants sought
restitution of their rights as labour tenants and
claimed to exercise
the ‘tenancy’ where their homesteads had formerly been.
In addition they claimed the land immediately
round their homesteads
to be used jointly for ploughing and grazing.
[7]
They were not awarded ownership of that land. The court held that
they had been dispossessed of occupation, ploughing and grazing
rights in that land,
[8]
and in the result they did not press for relief beyond a declaratory
order as to their rights, leaving it to the relevant government
department to facilitate the resolution of the nature and extent of
restitution or equitable redress.
[9]
While therefore the claimants had sought a right greater than the
rights of which they had been dispossessed, that was not persisted
in
and was not granted by the court. The judgment was not authority for
the submission that, in adjusting the right to be restored
under
s 35(4), an entirely different right may be given to the
claimant.
[22]
It follows that, contrary to the
contentions of counsel for the Committee, a claim for restitution
arising from dispossession of
a right in land other than ownership
cannot give rise to a claim for restitution of land.
The MPRDA
[23]
The final string to appellant’s
counsel’s bow was to submit that it was not open to us to take
this view of the Committee’s
claim. He pointed out that in
prayer (a) there was a claim for an order for the acquisition or
expropriation of the various erven,
including Erf 1197, and submitted
that this made it clear that the claim for restitution was a claim
for the restitution of land
to be met by transferring the land in
question to a communal property association. Although he did not
mention this there are one
or two places in the particulars of claim
where it is alleged that the community used the commonage as if they
were the owners
of it. It is therefore desirable to examine whether
on this basis the prayers that are attacked in these proceedings
could be justified.
[24]
Assuming therefore that the Committee’s
claim is to be treated as a claim for the restitution of ownership of
land, because
that was the relief prayed for, its further argument
took the following course. Restoration of the bare ownership of land
(
dominium
)
will be incomplete where the land is burdened with rights vested in
third parties that detract from the right of ownership. Thus,
if the
land to be restored is now burdened with a registered long lease or a
servitude, it is necessary in order to effect restitution
not only
that the land be acquired, either by agreement or expropriation, but
also that the registered rights of the lessee or
servitude holder be
acquired in the same way. In that way the rights of possession of the
lessee and the rights of the dominant
tenement can be removed and
transferred to the claimant, thereby securing that they will be
extinguished by merger and the claimant
will receive full
restitution. For the purposes of the argument this can be accepted,
without holding that it is necessarily correct.
[25]
In terms of s 5(1) of the MPRDA a
mining right is a limited real right in land capable of being
registered against the title
deeds of the property. Accordingly, so
the argument ran, it was similar to a registered long lease or other
real right in its limitation
on the right of full
dominium
of an owner of property and fell to be dealt with in the same way. In
order to restore the commonage rights to the Committee it
was
therefore necessary that the mining right be removed. Otherwise the
restitution would be incomplete and the community would
not have the
commonage rights of which it had been dispossessed restored to them.
[26]
Mr Budlender SC, on behalf of Maccsand,
first responded to this argument by drawing attention to the
provisions of s 23 of
the MPRDA and argued that it imposed an
obligation on the Minister to grant a mining right over property
whenever the requirements
of s 23(1) were satisfied. As such he
submitted that it was not the particular mining right enjoyed by
Maccsand that burdened
erf 1197, but the provisions of s 23, and that
this section imposed the same burden upon every property in South
Africa.
[27]
Whilst having a superficial attraction, I
do not think this point is correct. It is true that the Minister is
obliged if the requirements
of s 23(1) are satisfied to grant a
mining right. It is also true that once a mining right is granted the
holder of the right
is entitled, subject only to giving notice and
compliance with all other applicable obligations, to enter upon the
land and act
in terms of the mining right, notwithstanding any
objection from the owner. However, the important point is that it is
only once
a mining right has been granted in respect of a particular
property that the right to enter upon the land and engage in mining
activities becomes operative. It is then that the owner’s
rights of ownership are diminished. Until a mining right is granted
in respect of a property there is no diminution of ownership, but
merely the possibility, distant in most cases, that it may become
subject to a mining right in the future.
[28]
There is far more force in Mr Budlender’s
next two points which are based upon the impact of the MPRDA. The
first was that
even if the Committee was entitled to restitution of
the land right of which it was dispossessed, that would not give it
any right
to mine on erf 1197. Nor could it claim a right to prevent
Maccsand from doing so in terms of its permit. The second, closely
related
to the first, was that any diminution in the rights for which
the Committee is seeking restitution arises from a post-democracy
statute and, if and when restitution is ordered, it cannot be
restitution free from burdens imposed under legislation enacted by
a
democratic parliament and intended to remedy past racial
discrimination. In order to address these arguments it is desirable
to start by looking briefly at the history of mining rights in this
country.
[29]
In
Agri
SA
,
[10]
speaking for the majority of this court, I held that the right to
allocate mining rights, such as those arising under the MPRDA,
has
always been vested in the state and that:
‘…
[T]he
MPRDA is merely the latest in along line of legislation and statutory
instruments in South Africa that affirms the principle
that the right
to mine is controlled by the state, and allocated to those who wish
to exercise it. The right to mine remains, as
it always has been,
ever since mining became an important part of the economy of South
Africa, under the control of and vested
in the state, which allocates
it in accordance with current policy.’
[11]
Apart from expressing
a preference for the term ‘exploitation rights’ for ‘the
right to mine’ and ‘ownership
of minerals’ for
‘mineral rights’,
[12]
I do not discern anything in the subsequent judgment of the
Constitutional Court
to suggest that this
was incorrect.
[13]
[30]
The ability to exploit minerals has
always been distinct from the ownership of minerals before they are
mined and extracted. At
most periods in South Africa’s history
the ownership of minerals and precious stones prior to mining and
extraction has vested
in the owner of the land, although sometimes by
statute the state has taken such ownership for itself.
[14]
At times the state took for itself the exclusive right to mine and
the ability to allocate that right; sometimes it vested
ownership of
minerals still in the ground in itself; sometimes it vested the right
to mine in the owner or, where mineral rights
had been separated from
the land in terms of a notarial lease or other arrangement, the
holder of the mineral rights.
[15]
[31]
These fluctuations in the impact of mining
laws are illustrated by the claim in this case that the right of
commonage included the
right to win and remove sand. In 1942 (before
the community’s dispossession of its rights) sand was included
in the definition
of base minerals in the Base Minerals Act 39 of
1942.
[16]
In 1991, the definition of ‘mineral’ in the Minerals Act
50 of 1991 specifically included ‘sand’ and from
that
time the mining of sand was regulated in the same way as other
minerals. The definition of ‘mineral’ in s 1
of the
MPRDA also includes sand as a mineral. Even if the community that the
Committee represents had enjoyed rights to commonage
that included
the right to mine and remove sand,
[17]
and they had not been dispossessed of those rights at an earlier
stage, from 1991 the right to mine sand on Erf 1197 would have
vested
in the owner of the erf and not the community. So also, after the
MPRDA came into operation the right to mine sand would
no longer have
vested in the owner of the erf or the community. If anyone wished to
mine sand on Erf 1197 they could only do so
if they had the necessary
mining right granted in terms of s 23 of the MPRDA.
[32]
It follows that whatever rights the
community might have enjoyed to mine sand on Erf 1197 prior to the
dispossession of their commonage
rights, would in any event have been
removed in 1991, even if that dispossession had not occurred. And in
2004, when the MPRDA
came into operation, the situation under the
1991 legislation would have changed again to take account of altered
priorities in
regard to mining in South Africa. Even if, at any stage
after that date, the community was awarded ownership of Erf 1197 by
way
of restitution, that would not carry with it a right to mine and
exploit the sand on the property. Such a right could only arise
through the grant of a mining right in terms of the MPRDA and, if
that right had been granted to a third party, as was the case
with
Maccsand, the community would not have been able to prevent its
mining activities. So the loss of the right to mine sand would
have
occurred irrespective of the dispossession of the community’s
commonage rights.
[33]
Turning to the second point, whatever
motives and purposes may have underlain the Minerals Act 50 of 1991,
they cannot be carried
forward and attributed to the MPRDA. This
statute is, like the Act, a measure aimed at remedying past
discrimination. It is the
product of a democratic parliament
operating in a constitutional democracy and the legislative response
to gross economic inequality
in relation to the mining sector. As
such it is designed to facilitate equitable access to opportunities
in the mining industry.
[18]
It is impermissible to treat such legislation, passed after the
advent of democracy and directed at remedying past injustices,
as
having the effect of dispossessing the community of its historic
rights. It is also impermissible to treat it in the same way
as the
racially discriminatory legislation of the past. The past
dispossession effected by racially discriminatory legislation
is
entirely different from the impact at the present day of legislative
measures enacted after 1994 by a democratic parliament.
Where a
claimant under the Act seeks restitution of a right in land they
cannot claim that the right be free from the impact of
current
regulatory legislation enacted after the inception of democracy. Nor
can they demand that it be free of the impact of the
MPRDA and free
of rights properly granted under it.
[34]
The Act is intended to provide a means to
remedy past dispossession of land occasioned by racially
discriminatory measures. Once
the wrong of the past is remedied the
successful claimant is restored to the right in land of which they
were dispossessed, but
they must exercise it in the legal environment
that now exists. That environment is one in which ownership of land
carries with
it no right to exploit minerals situated on or under the
land. It is also one in which others may acquire and exercise such
rights
without the consent of the owner of the land and,
a
fortiori
, without the consent of
persons holding rights less than ownership.
[35]
The Committee’s argument was based on
the proposition that mining rights stood on the same footing as, for
example, a registered
long lease or usufruct. I agree with counsel’s
submission on behalf of Maccsand that this is a false analogy. A
mining right
under the MPRDA may, by virtue of the statute, enjoy the
status of a limited real right in the minerals to which it relates,
but
in substance it is no more than a licence to conduct the mining
activities identified therein in terms of the right and in accordance
with the MPRDA. As such it bears a close similarity to other licences
such as liquor licences, as to which Innes J said in
Fick
v Woolcott and Ohlsson’s Cape Breweries
:
[19]
‘
Now,
such a licence authorises the sale of liquor by the holder upon
specified premises, for consumption there. It is a privilege
granted
to a particular person to sell liquor at a particular place. And the
law attaches the greatest importance, and provides
for the strictest
supervision, in regard to both these elements. … No person can
own a licence save as the Statute permits
… Nor has the holder
any such vested right in the permission to sell, as to entitle him to
claim that it shall be prolonged
beyond the currency of the licence.
At its expiration, he must apply for a renewal, the grant of which,
though in the absence of
special circumstances generally accorded, is
entirely at the discretion of the Licensing Court. Moreover, the
privilege which he
enjoys is purely personal; it involves the
exercise by the authorities of a
delectus
personœ
, so
that he would have no power to assign his licence, were there no
statutory provision for its transfer. He can only deal with
it in
such a manner as the Ordinance prescribes … And the law
provides that the transfer of a licence can only be effected
by the
authority which sanctioned its issue.’
[36]
Subject to appropriate linguistic
adjustment that seems to me to encapsulate the position in respect of
mining rights under the
MPRDA. They are licences given in terms of
that statute. They must be exercised in accordance with their terms
and the MPRDA itself.
They are subject to strict regulatory oversight
and they attach only to the person to whom the right is issued. They
involve a
delectus personae
and
can only be transferred in accordance with the provisions of the
MPRDA. They do not vest in the holder by virtue of ownership
of land,
but in consequence of a grant by the Minister in accordance with the
requirements of the MPRDA. They cannot be created
by agreement as can
leases and usufructs. Seen in that light the similarity arising from
their being described as limited real
rights in minerals is limited.
[37]
In my judgement therefore even if the
Committee is entitled to receive title to the disputed erven in
satisfaction of its claim
for restitution of the commonage rights of
which the community was dispossessed, that will not, for the reasons
given above, afford
it any right in relation to the mining of sand on
Erf 1197. Nor will it entitle it to interfere with the right that
Maccsand has
to mine Erf 1197 in terms of a mining right under the
MPRDA.
Result
[38]
In the result the appeal must fail.
However, something must be said about the terms of the order granted
by Mpshe AJ. It was in
the form of a declaratory order but it left
the offending prayers in place as well as the allegations in the
particulars of claim
on which those prayers were based. That is
undesirable and an incorrect approach to the case from a procedural
perspective. The
LCC was adjudicating a special plea. In substance it
held that the special plea should succeed. As there are other issues
in the
case the litigation will have to proceed on those issues. But
the issues surrounding the special plea are no longer part of the
case. Accordingly the allegations in relation thereto and the prayers
to which the special plea was directed should be struck out.
It will
to that extent be necessary to amend the order of the LCC.
[39]
One last point relates to costs. The
approach of the Department is that it is dealing with a community
that claims to have been
dispossessed of its rights by racially
discriminatory legislation in the past. It is a poor community and
its claim is in significant
respects opposed by the Department. In
those circumstances we were informed by Mr Budlender SC, and this was
confirmed by Mr Rosenberg
SC for the Committee, that the costs of the
Committee are being borne by the Department and that as a result in
earlier litigation,
of which apparently there has been a considerable
amount, Maccsand has in certain instances had its costs paid by the
Department
on behalf of the Committee. In those circumstances
Maccsand sought an order for costs, including the costs of two
counsel, and
submitted that the
Biowatch
principle should be departed from. I
agree that this is justified and accordingly Maccsand’s success
will carry with it an
order for costs.
[40]
I make the following order:
(a)
The order of the Land Claims Court is
altered to read as follows:
‘
The special
plea is upheld and the following portions of the amended particulars
of claim are struck out, namely: in para
16.1 the words
‘exploited the mineral and natural resources of the commonage
by inter alia utilizing the mineral wealth of
the sand dunes by
extracting limestone and utilizing and selling sand’; in para
45 the underlined words; paras 52(2) to 52(11)
and 72; the underlined
words in prayer (a); and prayer (f).’
(b) The appeal is otherwise
dismissed.
(c) The Appellant is
ordered to pay the costs of the First Respondent, such costs to
include those consequent upon the employment
of two counsel.
M J D WALLIS
JUDGE OF APPEAL
Appearances
For appellant:
S P Rosenberg
SC (with him J
Krige)
Instructed by:
Igshaan Sadien
Attorneys, Cape
Town
c/o Matsepes Attorneys, Bloemfontein
For first
respondent: G M Budlender SC (with him N Bawa
SC)
Instructed
by:
Cliffe Dekker
Inc, Cape Town
c/o Phatshoane Henney, Bloemfontein.
For second respondent:
Kevin Warner
Instructed
by:
The State Attorney,
Cape Town and Bloemfontein.
[1]
The Minister and the Minister of Land Affairs
respectively.
[2]
Department of Land Affairs and others v
Goedgelegen Tropical Fruits
[2007]
ZACC 12
;
2007 (6) SA 199
(CC) (
Goedgelegen
)
para 53;
Alexkor Ltd and others v
Richtersveld Community and others
[2003]
ZACC 18
;
2004 (5) SA 460
(CC) para 98.
[3]
Florence v Government of the Republic of South
Africa
[2014] ZACC 22
;
2014 (6) SA 456
(CC) paras 166-170, especially 170.
[4]
Goedgelegen
para 20.
[5]
As the suggestion is that the mining right is to be expropriated in
order to be expunged it may be that this would not be an
expropriation at all, in view of the majority judgment in
Agri SA
v Minister for Minerals and Energy
[2013] ZACC 9
;
2013 (4) SA 1
(CC) (
Agri SA – CC
) paras 58, 59, 67 and 68, which
appears to have held that an expropriation only occurs when the
expropriator acquires the substance
or core content of what was
previously held by the expropriatee. However, see para 63 and the
apparent approval in footnote 94
of what was said in this regard in
the SCA judgment.
[6]
De Jager v Sisana
1930
AD 71
at 81 and 83;
Goedgelegen
para
46.
A labour tenant is defined in these terms in s 1 of
the Land Reform (Labour Tenants) Act 3 of 1996.
[7]
Goedgelegen
para 25.
[8]
Goedgelegen
para 47.
[9]
Goedgelegen
para 82.
[10]
Minister of Minerals and Energy v Agri South Africa
[2012]
ZASCA 93
;
2012 (5) SA 1
(SCA) (
Agri SA – SCA
).
[11]
Agri SA – SCA
para 85.
[12]
Agri SA – CC
para
39.
[13]
Agri SA – CC
para
46 accepts that the exploitation of minerals was subject to the
government’s regulatory power
[14]
Agri SA – SCA
paras 38 and 42.
[15]
Agri SA – SCA
paras 38 to 48, which covered the
situation from the earliest days until 1967 and the enactment of the
Mineral Rights Act 20 of
1967. The impact of the 1967 Act is traced
in paras 53 to 61 and the different arrangement from 1991 in terms
of the Minerals
Act 50 of 1991, which vested rights almost
exclusively in the owner of the land where the mineral rights had
not been separated
from the land and the holder of the mineral
rights when they had.
[16]
Base minerals were there defined as ‘any mineral substance’
with certain exclusions that did not include sand.
[17]
This would be a considerable extension of the conventional right of
commonage. W
e have taken over commonage rights
from English law. They are ordinarily rights of grazing and
pasturage, rights of passage and
recreation, the right to draw water
and perhaps rights to gather firewood or wild plants. Depending on
the nature of the commonage
and the community it served it might
possibly extend to growing crops. Commonage rights do not ordinarily
extend to mining or
quarrying.
Chaplin v Grant
(1882)
3 NLR 78.
[18]
Agri SA – CC
para 1.
Minister of Mineral Resources
and Others v Sishen Iron Ore Co (Pty) Ltd and Another
[2013]
ZACC 45
;
2014 (2) SA 603
(CC) para 47.
[19]
Fick v Woolcott and Ohlsson’s Cape
Breweries Ltd
1911 AD 214
at 229-230.