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[2015] ZASCA 19
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Van den Heever v Minister of Minerals and Energy and Others (150/2014) [2015] ZASCA 19 (19 March 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case
No: 150/2014
In
the matter between:
GERT
VAN DEN
HEEVER
.......................................................................................
APPELLANT
and
THE
MINISTER OF MINERALS AND ENERGY
.................................
FIRST
RESPONDENT
THE
DIRECTOR GENERAL: DEPARTMENT OF
MINERAL
RESOURCES
....................................................................
SECOND
RESPONDENT
TRANS
HEX MYNBOU
LIMITED
.......................................................
THIRD
RESPONDENT
TRANS
HEX OPERATIONS (PTY) LIMITED
...............................
FOURTH
RESPONDENT
Neutral
citation:
Van
den Heever v Minister of Minerals and Energy
(150/14)
[2015] ZASCA 19
(19 March 2015)
Coram
:
Brand, Lewis, Cachalia and Zondi JJA and Dambuza AJA
Heard:
4 March 2015
Delivered:
19 March 2015
Summary:
Whether content of
a letter, objectively viewed, evinced an intention of the writer to
abandon a mining right. Construed in its
context and in light of
background facts, abandonment not established.
ORDER
On
appeal from:
Northern
Cape High Court, Kimberley (Kgomo JP and Hughes-Madondo AJ sitting as
court of first instance)
‘
The
appeal is dismissed with costs, including the costs of two counsel in
respect of both first and second respondents on the one
hand, and of
the third and fourth respondents on the other.’
JUDGMENT
Cachalia
JA (Brand, Lewis and Zondi JJA and Dambuza AJA concurring)
[1]
This appeal concerns a dispute over a right to mine for diamonds on
two contiguous pieces of land on the farm Richtersveld No
11 (the
property) situated in the Namaqualand district of the Northern Cape.
The dispute has its genesis in the appellant’s
failed attempt
to secure mining permits from the Department of Mineral Resources in
2008. The appellant’s applications for
the right to mine were
refused on the ground that a permit to mine on the same property was
already in existence and held by Trans
Hex Operations (Pty) Ltd, the
fourth respondent, when the application was made. The right was
initially held by a public company,
Trans Hex Mynbou Limited
(Mynbou), the third respondent, under a mining lease and thereafter
ceded to the fourth respondent in
May 2001. Both entities are
subsidiaries of a holding company, Trans Hex Group Limited.
[2]
The appellant disputes the fourth respondent’s claim to hold
the mining right over the property. He says that on 26 January
2001,
before the cession took place, Mynbou wrote to the Department of
Minerals and Energy (the predecessor of the Department of
Mineral
Resources) indicating that it was foregoing its right to mine on the
property, and had thereby abandoned its right. This
means, so the
appellant submits, that Mynbou’s purported cession of the right
to the fourth respondent is invalid as it had
no right to cede. And
the department’s refusal to grant the application on the ground
that the fourth respondent held the
mining right is therefore
unlawful.
[3]
The respondents’ answer to this claim is that properly
construed, and in light of the background facts, the January letter
did not constitute an abandonment of its mining right, but was merely
a request for the department to amend the mining lease in
order to
give effect to Mynbou’s declared intention to make the land
available to the Richtersveld community for agricultural
purposes.
[4]
The dispute gave rise to a review application in the Northern Cape
High Court in which the appellant sought orders: declaring
that
Mynbou had abandoned its right to mine for diamonds on the property;
reviewing and setting aside the decision to convert the
abandoned old
order mining right previously held by Mynbou into a right
contemplated in the second schedule of the Mineral and
Petroleum
Resources Development Act 28 of 2002 (the MPRDA); reviewing and
setting aside the Director General’s decision under
s 96 of the
MPRDA to refuse his appeals against the Regional Manager’s
rejection of his applications for mining permits under
s 27 read with
s 27(3)
(b)
of the MPRDA; and remitting his applications for mining permits for
reconsideration by the relevant official.
[5]
The application failed before the high court in a judgment delivered
by Hughes-Madondo AJ in which Kgomo JP concurred. The appeal
before
us is with leave of this court.
[6]
At the commencement of the hearing, Mr Barnard, who appeared for the
appellant, accepted that the central issue in this appeal
is whether
Mynbou, in its letter relinquished its right to mine for diamonds
over a portion of the property for which the appellant
had applied
for mining permits in terms of s 27 of the Mineral Development Act 28
of 2002. He accepted too that in the event of
this court finding that
Mynbou had not abandoned its right to mine on the property, the
appeal must fail.
[7]
It is trite that abandonment or relinquishment of a right is never
presumed: clear proof is required and it must be shown that
the
person intended this result with full knowledge of the right in
question. The test is objective: the intention of the person
is to be
determined by the outward manifestation of his or her conduct.
[8]
It is appropriate to quote the letter, which was addressed to the
department, in full:
‘
Geagte
Mnr Nieuwoudt
VERKLEINING VAN RICHTERSVELD
MYNHUURGEBIED: TRANS HEX MYNBOU
Trans Hex Mynbou onderhandel
reeds geruime tyd met die Richtersveld Oorgangsraad (nou die
Richtersveld Munisipaliteit) vir die beskikbaarstelling
van verskeie
stukke grond vir besproeiingsdoeleindes langs die Oranjerivier.
Ooreenkoms is nou bereik dat 13 afsonderlike [stukke
grond], wat
gesamentlik 363,14 hektaar beslaan, aan die Oorgansraad oorhandig sal
word vir landbougebruik, en uit die mynhuurgebied
uitgesluit sal
word. Die stukke grond maak tans deel uit van die Richtersveld
mynhuurgebied wat in terme van mynhuur 2/91 aan Trans
Hex toegeken is
(sien meegaande plan met koördinate).
Die stukke grond wat uitgesluit
moet word beslaan vier afsonderlike stukke in die
Swartwater/Koeskopgebied (gesamentlik ongeveer
122,57 hektaar groot),
drie aaneenlopende stukke in die Sanddrifgebied (gesamentlik ongeveer
24,67 hektaar groot), vier alleenstaande
stukke in die
Bloeddrifgebied (gesamentlik ongeveer 100,94 hektaar groot), en een
stuk in die Jakkalsberggebied, die sogenaamde
Reuning besproeiingserf
(ongeveer 11,59 hektaar groot).
U
word dus versoek om die 13 stukke grond, waarvan die omvang in detail
deur middel van koördinate op meegaande plan gedefinieer
word,
uit die bestaande mynhuurgebied uit te sluit, en die wysiging so by
die Mynbriewekantoor in Pretoria te laat registreer.
(Emphasis added)
‘
n
Kopié van die oorspronklike notariële mynhuurdokument
2/91 gaan hiermee saam vir die nodige endossement. Die besluit
om die
mynhuurgebied te verklein word bekragtig deur meegaande
direksiebesluit gedateer 24 Januarie 2001.’
[9]
The appellant relies on the passage I have highlighted – in
particular the phrase: ‘uit die bestaande mynhuurgebied
uit te
sluit’ – to support his contention that Mynbou
relinquished its right to mine over the 13 portions of land to
which
reference is made in the letter. However, Mr Barnard properly
accepted that we are entitled to have regard to the background
facts
in giving meaning to the letter.
[10]
The farm Richtersveld 11, where the mining lease area is situated,
was owned by the State. In terms of s 7 read with s 11 of
the Rural
Areas (House of Representatives) Act 9 of 1987, Farm 11, vested in
the Minister of Land Affairs to be held in trust for
the Richtersveld
Community. This is reflected in the farm’s title deed. Mining
in this area could therefore only be undertaken
with the consent of
the Minister.
[11]
In 1991 Mynbou became the holder of Notarial Mining Lease 2/91, which
gave it the right to mine for diamonds on the farm. This
lease
encumbered the land in favour of Mynbou, as did the deemed mineral
right and mining licence in its favour. Mynbou had no
rights to the
land other than those embodied in, and flowing from, the lease.
[12]
Clause 4 of the lease restricted the surface use within the mining
lease area for mining purposes. This meant that Mynbou could
not use
the land or sublet it for any other purpose without breaching this
clause.
[13]
In terms of s 3(1)
(a)
read with
s 1
of the
Transformation of Certain Rural Areas Act 94 of
1998
, Farm 11, being trust land, could be transferred to a
municipality or communal property association registered under the
Communal Property Associations Act 28 of 1996
within a transitional
period that the Minister of Agriculture and Land Affairs would
determine.
[14]
During 1998, a claim was lodged by the Richtersveld Community in
terms of the
Restitution of Land Rights Act 22 of 1994
. A communal
property association called the Richtersveld Sida!Hub Vereniging vir
Gemeenskaplike Eiendom (GEV) was formed to pursue
the claim.
[15]
The Minister determined that 19 January 2001 would be the date on
which a transitional period of 18 months would commence.
During this
period a Transitional Council would advise the Minister of the entity
to which the land had to be transferred. Although
the Transitional
Council (succeeded by the Richtersveld Municipality) initially
represented the community, there was disagreement
over whether the
real representative of the Community was the GEV (which had lodged
the land claim), or the Municipality. The disagreement
has limited
bearing on the dispute before us.
[16]
Mynbou became aware of the land claim and started negotiations with
the Richtersveld Community soon thereafter. It employed
the
University of the Free State to do soil surveys in order to identify
suitable agricultural land on the farm, and to make it
available to
the community for agricultural purposes. Once the land was identified
careful rehabilitation could be done to make
the soil amenable to
irrigation.
[17]
On 8 April 2000, Mynbou entered into a fencing agreement
(‘omheiningsooreenkoms’) with the Richtersveld Community,
which was then represented by the Richtersveld Transitional Council.
In this agreement, which dealt essentially with fencing-off
of part
of the mining area, Mynbou undertook to excise ‘landbou-erwe’
and open areas between the erven next to a river
from the (fenced)
mining lease area in order for the use of those irrigation areas to
be transferred to the Richtersveld Community
for agricultural
purposes.
[18]
Clause 6 of this agreement is important. It provided that any
amendment of the mining lease or of the consent required to implement
these provisions in terms of Act 9 of 1987, would be without
prejudice to the rights of Mynbou under the mining lease. Simply put
the fenced-off area would be made available to the community for
agricultural purposes, but Mynbou would retain its mining rights
over
the entire area.
[19]
This then was the background to Mynbou’s the letter of 26
January 2001 to the department requesting an amendment of the
mining
lease so as to reflect the excision of the 13 portions of land for
irrigation purposes and for the amendment to be registered.
Clause 4
of the mining lease to which I have referred earlier obliged Mynbou
to obtain the Minister’s consent before
any part of the land
was sublet for purposes other than mining. And it was to comply with
this clause that the letter was despatched
to the department.
[20]
So, far from relinquishing its right to mine, the content of the
letter reflects the opposite intention: that Mynbou would
retain its
rights under the mining lease, even though the irrigation areas would
be physically excised from the mining lease area.
And the excision
would occur, if the Minister approved, only for the purpose of
allowing surface use of these portions for irrigation
purposes, and
not with respect to the right to mine.
[21]
That this was what Mynbou intended, and also what the representatives
of the Richtersveld community agreed to was confirmed
in a later
agreement entered into in August 2001 between Mynbou and the GEV,
long before the appellant applied for mining permits
over the excised
portions of the mining area. In this agreement, the parties agreed
that GEV would not allow mining on the properties.
[22]
In any event, for reasons that are not immediately germane to the
present dispute, no amendment to the mining lease was ever
effected
and the mining of diamonds in the area continued under the terms of
the original mining lease. The appellant could hardly
not have been
aware of this.
[23]
I conclude that Mynbou did not abandon its right to mine for diamonds
over the 13 portions of land. Mynbou’s conduct
before it
despatched the letter, and subsequently thereto, reveals that it
never evinced any intention to abandon its mining right.
In this
context the letter, objectively viewed, is not capable of a
construction the appellant seeks to place on it. The appeal
must
fail.
[24]
The following order is made:
‘
The
appeal is dismissed with costs, including the costs of two counsel in
respect of both first and second respondents on the one
hand, and of
the third and fourth respondents on the other.’
_________________
A
CACHALIA
JUDGE
OF APPEAL
APPEARANCES
For
Appellant: T A Barnard
Instructed
by:
Wessels
& Associates c/o Engelsman Magabani Inc,
Kimberley
Symington
& De Kok, Bloemfontein
For
first and second Respondents: P L Nobanda SC (with her T Mamanyuha)
Instructed
by:
The
State Attorney, Kimberley
The
State Attorney, Bloemfontein
For
third and fourth Respondents: G L Grobler SC (with him J L
Gildenhuys)
Instructed
by:
Tabacks
Attorneys c/o Haarhoffs Inc,
Kimberley
Webbers,
Bloemfontein