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1989
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[1989] ZASCA 89
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Klooval Investments (Pty) Ltd. and Others v Minister of Economic Affairs and Technology and Others (597/87) [1989] ZASCA 89; [1990] 1 All SA 203 (A) (24 August 1989)
Case No 597/87 /MC
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
Between:
KLOOVAL INVESTMENTS (PTY) LIMITED
First Appellant
RIETWINKELS
(PTY) LIMITED
Second Appellant
KLOOFHANDELSREGTE (PTY)
LIMITED
Third Appellant
and
THE MINISTER OF ECONOMIC AFFAIRS
AND TECHNOLOGY
First
Respondent
KLOOF GOLD MINING COMPANY LIMITED
Second Respondent
MANUEL PEREIRA DA SILVA
Third Respondent
Coram:
JOUBERT, BOTHA, VIVIER, KUMLEBEN JJA et F H GROSSKOPF JA.
Heard
: 2nd MAY 1989.
Delivered:
24 AUGUST 1989.
JUDGMENT
VIVIER JA.
2.
VIVIER JA:
The second respondent is the registered holder of a mining lease granted over
a joint area under sec 20
bis
(3) of the Precious and Base Metals Act 35
of 1908 ("the Gold Law") on the farms Elandsfontein No 346, Libanon No 283,
Doornkloof
No 348, Doornkloof No 350, Leeudoorn No 351 and Rietfontein No 349 on
the Far West Rand. The mining lease was originally granted
on 23 August 1967 by
the Government to West Witwatersrand Areas Ltd, the owner of the mineral'rights
of the area in question, who
subsequently ceded the lease to the
second.respóndent. Both the lease and the cession were duly registered.
West Witwatersrand
Areas Ltd thereafter changed its name to Gold Fields of South
Africa Ltd. The second respondent carries on gold mining on the area
in
question, to which I
3/...
3. shall refer as the mining ground. The first appellant is the
registered freehold owner pf a portion of the mining ground viz portion
25 of
the farm Rietfontein No 349, to which portion I shall refer as the Klooval
property.
During the early part of 1967 and in consequence of an application
by first appellant, trading site No 42 on the Klooval property
was set apart in
first appellant's favour under sec 5(5)
ter
of the Trading on Mining
Ground Regulation Act 13 of 1910 (T) ("the 1910 Act"). Sub-sec 5(5) was amended
at various
times, by sec 1 of Act 10 of 1924, by sec 49 of Act
36 of 1934,
by sec 6(2) of Act 20 of 1941 and by sec 4 of Act 18 of 1955. I will deal with
the effect of these amendments more fully
later. First appellant was thereby
authorised to carry on the business of "a general dealer, butcher and keeper of
an eating-house
for Bantu" on the said trading site.
4/...
4
I shall refer to these three businesses as the triad. Between
them the three appellants are the vested holders of the aforesaid trading
rights
which they have exercised for more than twenty years. The third respondent is
the registered owner of another portion of the
mining ground viz portions of the
farms Doornkloof No 350 and Rietfontein No 349. Third respondent's property is
in close proximity
to the Klooval property.
Both the Gold Law and the 1910
Act were repealed by the Mining Rights Act 20 of 1967 ("the 1967 Act") which
came into operation on
1 October 1967. Like its precursors the 1967 Act
contained elaborate provisions (in chapters X to XV, sections 90 to 142) for the
control of trading or the carrying on of business on proclaimed land or land
held under mining title. Sec 139(1) of the 1967 Act
generally prohibited any
trade or business
5/...
5
on proclaimed land or land held under mining title except upon
a recognised stand, trading stand or trading site.
On 12 August 1985 the
third respondent applied to the Minister of Economic Affairs and Technology
("the first respondent") to be exempted,
in terms of sec 158 of the 1967 Act,
from the provisions of chapters X to XIV and sec 139(1) of that Act in respect
of a certain
area of his land situated on the farm Doornkloof No 350. The
purpose of the application was to enable the third respondent to commence
trading on his land. The application for exemption was amplified and widened in
a letter dated 30 June 1986 addressed to first respondent.
The first respondent
granted the application and a notice appeared in the Government Gazette of 19
September 1986 which exempted
the third respondent from the provisions of
chapter X and sec 139(1) of the 1967 Act in respect of the land mentioned in the
application.
6/...
6.
The appellants thereupon applied on notice of motion to the
Transvaal Provincial Division for an order declaring invalid the first
respondent's grant of the exemption on a number of grounds. The application was
supported by Doornkloof Winkels (Edms) Bpk and Webco
Winkels (Edms) Bpk, both of
which carry on the triad businesses on the mining ground. Neither the first
respondent nor the second
respondent opposed the application, although an
affidavit deposed to by the first respondent was filed by the third respondent
in
support of his opposition to the application. The matter came before
GOLDSTONE J who dismissed the application with costs but granted
leave to the
appellants to appeal to this Court.
Before considering the provisions of the 1967 Act and those of its precursors
relating to the
7/...
7.
control of trading and the carrying on of business on
proclaimed land and land held under mining title, it is necessary to deal
briefly
with the legal position governing the use of the surface of such land
with particular reference to the respective rights of the holder
of the mining
title and the owners of the surface. In terms of sec 20
bis
(5) read with
sec 19(11) of the Gold Law,the second respondent's mining lease was a mining
title for all purposes, of the Gold Law
or "any other law" and was registrable
as such in the office of the Registrar of Mining Titles. Upon registration the
mining ground
became deemed to be "proclaimed land" in terms of sec 26
bis
of the Gold Law. The mining ground was thus both land held under
mining title and proclaimed land under the Gold Law (of
West Driefontein Gold
Mining Company Ltd v Brink and Others
1963(1)
8/
8.
SA 304 (W) at 307 D-E). It retained its character as such for the purposes of
the 1967 Act, which provides in sec 188 that everything
done and all rights
acquired or conferred under the repealed legislation are, save as otherwise
provided in the 1967 Act, deemed
to have been done, acquired or conferred under
the corresponding provisions of the 1967 Act. Sec 1 of the 1967 Act defines
"proclaimed
land" as land which has been proclaimed as a public digging in terms
of sec 39 or which is proclaimed land by virtue of the provisions
of sec 40. I
shall return to sec 40 later. The expression "mining title" was first used in
the Gold Law which specified the different
rights constituting mining title. The
1967 Act defines mining title in general terms to mean "any right to mine
granted or acquired
under this Act, and any other right to mine granted or
acquired under any prior law
9/...
9.
and existing at the commencement of this Act, but does
not include a right
to mine for precious stones".
The provisions of the 1967 Act relating to the
use
and disposal of the surface of mining land apply equally
to both
proclaimed land and land held under mining
title.
The basic policy of the
Legislature relating to the use and disposal of proclaimed land and land held
under mining title is expressed
in sec 90(1) of the 1967 Act which is
substantially similar to sec 68(1) of the Gold Law. Sec 90(1) provides in clear
terms that
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 the Act or
any other law, and that, save as is specially otherwise provided in the Act, the
surface of proclaimed land
10/...
10.
and land held under mining title shall not, without the written permission of
the Mining Commissioner, be used otherwise than for
mining.
This policy has
remained consistent since the earliest statutes dealing with mining for precious
metals in this country. So, for example,
sec 15 of Act 7 of 1874 provided that
in respect of privately owned land "het geheele bestuur, beide van handel en
delvings belangen"
rested with the Government. And in
Greathead v Transvaal
Government and Randfontein Estate and Gold Mining Co Ltd
1910 TPD 276
INNES
CJ, dealing with the policy and scope of the Gold Law of 1889 and its
successors, said at p 288 :
"So far as the surface was concerned, the exclusive rights of the owner were
recognised to portions of it, such as his werf, his
11/...
11.
garden, his cultivated lands and so on; but, subject to those reservations, the
Government had in effect the control of the surface
for purposes connected with
the industry, and the welfare of the population which it
attracted."
In
West Driefontein Gold Mininq
Company Ltd v Brink and Others
,
supra
, TROLLIP J dealt with the legal
metamorphosis in the ordinary proprietary rights of a surface owner of land
resulting from proclamation
as follows (at pp 307
in fine
- 308 C).
"In the Transvaal, on and during such proclamation, the ordinary proprietary
rights of the freehold owner are suspended, and the
only rights and benefits
that he is entitled to are those conferred by the Gold Law or any other special
law. In so far as the surface
of the land is concerned, those rights under the
Gold Law are limited to the use of his
homestead,
12/...
12.
buildings, cemeteries, kraals, certain cultivated lands and water, reserved to
him on proclamation of the land (secs 23 and 24
bis
); and under the Mine
Trading Act, 13 of 1910, as amended by Act 18 of 1955, to the use of a trading
site which was being used when
the mining title was acquired (sec 5(5)
ter
thereof). The rights in the remainder of the surface vest in and are
at the disposal of the State, to be allocated by it or its officials
to the
freehold owner, the holder of the mining title or lease, or other persons by
means of permits, licences or certificates for
such purposes of mining or other
purposes as the Gold Law or any other law allows (see Chaps IX and X of the Gold
Law and the Trading
on Mining Ground Regulation Act, 13 of 1910). That applies,
bf course, too, to trading rights on the surface (see Chap X of the Gold
Law and
Act 13 of 1910)."
See also
Johannesburg City
Council v Crown Mines Ltd
1971(1) SA 709 (A) at 721 C-G.
13/...
13.
As regards trading rights on the surface, sec 82 of the Gold Law contained a
general prohibition against trading upon ground held
under mining title except
upon a stand mentioned in sec 77 or a stand for which a certificate was granted
under the Gold Law. Sec
77 dealt with stands granted under Law 15 of 1898 or
prior laws. Sections 83 to 96 of the Gold Law provided for the grant of trading
stands on which the only business permitted was that of "a general dealer or
keeper of a kaffir eating-house". Sec 96 made it a criminal
offence to carry on
any trade or business pn proclaimed land without the statutory permission,
licence or certificate. Sec 97 prohibited
the person or company mining the
proclaimed land or land held under mining title from being directly or
indirectly interested in
the carrying on of any trade or business
14/...
14.
thereon.
Section 2 of the 1910 Act prohibited the carrying on of any trade
or business upon ground held under mining title except (a) upon
a stand
mentioned in sections 77 or 79 of the Gold Law (i e stands under prior laws or
industrial stands); (b) trading stands (i
e those granted under the Gold Law)
and (c) trading sites (i e those granted under the 1910 Act). Like the Gold Law,
the 1910 Act
confined the type of business allowed on such stands or sites to
the original two of the triad. Act 18 of 1955 completed the triad
by adding a
butchery business. Sec 5(1) of the 1910 Act introduced provisions for the
selection of sites for trading on mining ground
whenever the Minister was of the
opinion that additional trading facilities were required. Sub-sec 5(5) provided
for the sale
15/...
15.
by the Mining Commissioner by public auction of the right to trade upon a
site so selected. Sec 6(2) of Act 20 of 1941 added subsec
5(5)
ter
which
granted the owner of land held under mining title certain rights to obtain a
trading site. A new sub-sec 5(5)
ter
was substituted by sec 4(c) of Act
18 of 1955. It provided that, if requested thereto by the owner of any mining
ground to which
the mining title was acquired after the date of commencement of
the new subsection, the Mining Commissioner was obliged to set apart
in his
favour a trading site on the ground, provided,
inter alia
, that the
request was made within 3 months from the date on which the mining title was
acquired and that the trading site was being
so used when the mining title was
acquired. This was the form of sec 5(5).
ter
of the 1910 Act when the
first appellant obtained
16/...
16.
his rights. In the
West Driefontein Gold Mining Company Limited
case,
supra
, TROLLIP J described the effect of the provisions of the Gold Law
on the freehold owner's ordinary trading rights thus (at p 308
E-H):
"It follows that during proclamation (except for the special dispensation in
regard to a trading site reserved to the freehold owner
under sec 5(5)
ter
of Act 13 of 1910) his ordinary trading rights whether flowing from
his
dominium
or any special grant or reservation in his favour in his
documents of title, are suspended; and any grant by the State or its proper
officials of trading rights on the land according to law to any other person
would not ordinarily require his consent, because such
a grant and the user of
the land in consequence thereof would not be adverse to him or infringe his
rights (
Swanepoel v Crown Mines Ltd
, 1954(4) SA 596 (AD) at p 605 H to p
606 C)."
17/...
17.
I turn to the provisions of the 1967 Act relating tb the carrying on of trade
or business on proclaimed land or land held under mining
title. As has been
mentioned, sec 139(1) prohibits any person from carrying on any trade or
business on such land unless he holds
any of the rights set out in subparagraphs
l(a), (b) or (c) thereof. The relevant portion of sec 139(1) provides :
"139(1) Save as is otherwise provided in
this Act, no person shall on proclaimed land
or land held under mining title (whether
or not that land has been reserved to him
or his predecessor in title in terms of section
47(1) of this Act or a corresponding
provision
18/...
18.
of a prior law) carry on any trade or business elsewhere than -
(a) on a stand granted under section
102 or 103 of this Act or corresponding provisions of a prior law; or
(b) on a trading stand referred to in section 113;
or
(c)
on a trading site reserved or
set
apart under Chapter XIV of this
Act or corresponding provisions
of a prior law,
and in conformity with the
provisions of the stand licence, stand grant, certificate for a trading stand,
certificate of reservation,
lease or surface right permit whereby the right to
carry on business on such stand, trading stand or trading site was acquired
19/...
19.
under this Act or a prior law "
The term
"stand" in subparagraph l(a) of sec 139 is defined in sec 1 to mean "a stand
granted under chapter XII of this Act" and includes
certain stands existing at
the commencement of the Act which had been granted under prior laws. Sections
102 and 103 in chapter XII
provide only for the grant of stands for business or
industrial purposes and sec 102(1)(b) provides that only businesses other than
the triad may be carried on upon a stand granted in terms of that subsection.
Sec 113 of chapter XIII, referred to in sec 139 (l)(b),
provides for the
continued existence of the old trading stands which had been granted under the
Gold Law.
In order to trade in the triad businesses
20/...
20.
the third respondent could, however, have applied for the right referred to
in sec 139 (l)(c) i e for a trading site to be reserved
or set apart under
chapter XIV. This brings me to sec 126, the first section in that chapter, which
reads in part :
"126(1) The right to carry on the business
of a general dealer, butcher or keeper of
an eating house for coloured persons or Blacks
on -
(a) proclaimed land in the province
of the Orange Free State which
is
not owned by the State or (if
so owned) is held by a lessee;
(b) any such land in any other province
which has been proclaimed
under
section 39 or is proclaimed land
by virtue of any provision of section
40(2), (3) or (4), shali, subject to the provisions of this Chapter, vest in
the owner or lessee concerned."
Section 126 reflects a new policy on the part
21/...
21.
of the Legislature i e to vest the right to carry on the triad businesses on
future proclaimed land in the owner or lessee of the
land. Previously, under the
Transvaal Gold Law, trading rights on proclaimed land were vested in the State,
which leased or sold
those rights. Under the 1910 Act the trading sites were
registered in the name of the Mining Commissioner by whom they were leased
to
traders. See Franklin and Kaplan,
Mininq and Mineral Laws of South Africa,
p 436. The amendments introduced to sec 5(5)
ter
of the 1910 Act in
1955 did, however, facilitate the granting of trading sites to the owners of
proclaimed land.
In terms of sec 126 (l)(b) the land in respect of which the
trading rights are vested in the owner or lessee (apart from land proclaimed
under sec 39 which is not applicable) is land which is proclaimed land
22/...
22.
by virtue of sec 40 (2), (3) or (4). Sec 40 (1),
which is not mentioned,
provides that any land which
immediately prior to the commencement of the 1967 Act
was proclaimed land
or land deemed to have been proclaimed
land under the Gold Law shall be proclaimed land for
purposes of the 1967
Act. As has been shown the
land owned by the third respondent was deemed to be
proclaimed land under
the Gold Law. The land is accordingly
governed by sec 40(1) of the 1967 Act
and is thus excluded
from the provisions of sec 126 of this Act. In this
way existing rights in
the Transvaal in respect of
trading on proclaimed land or land held under mining
title have been preserved. As no trading site had
been granted before 1
October 1967 in respect of the
land now owned by the third respondent, he is
accordingly in no different position to any other
member of the public.
Once sec 126 does not apply
23/...
23.
to the third respondent, it follows that the provisions of sections 127, 128
and 129 (l)(a) of the Act also have no application to
him. The third respondent
could, however, have obtained the necessary authority to carry on the triad
businesses in terms of sec
129 (l)(b) and under sec 102 (l)(b) he could have
applied for authority to carry on businesses other than the triad.
His
application for exemption originally stated that he intended using the site as a
"trading site for general business" and that
he intended establishing a general
dealer's store on it. It is clear, I think, that the third respondent originally
intended to confine
himself to the triad
business.es
, and it appears from the first.
internal memorandum prepared by officials in the department of the first
respondent in response
24/...
24.
to the application, that they saw it as such. In the memorandum it is pointed
out that trading rights on mining ground have always
been regarded as extremely
valuable and that enormous sums of money have in the past been paid at sales by
public auction held in
terms of the 1910 Act for the right to carry on the triad
businesses on mining ground. It is further pointed out that in respect
of land
proclaimed under the 1967 Act the right to carry on the triad businesses now
vests in the owner of the land in terms of sec
126.
However, because it was
regarded by the Legislature as unfair to create competition in this way for
people who under the previous
statutes had to pay the State for these rights,
the trading rights under sec 126 were not vested in the owners of land
proclaimed
or deemed to have been proclaimed prior to the coming into operation
of the 1967 Act. It is further stated that for the same reason
-
25/...
25.
"die departement nie maklik verdere handelsregte op sulke grond sal toelaat nie
tensy die skepping van sulke handelsregte op die
grond noodsaaklik
word."
The memorandum goes on to point out that as
the third respondent's land was proclaimed prior to 1 October 1967, the only way
in which
he could obtain the right to trade in the triad businesses without
having first to call for tenders, and running the risk that someone
else might
tender successfully, was to apply for an exemption in terms of sec 158. The
memorandum points out that there are seven
similar businesses in the area which
are conducted by owners of land under sec 5(5)
ter
of the 1910 Act and
that it can hardly be said that any need exists for the
26/...
26.
third respondent's proposed business.
The application for exemption was
amplified and widened in the aforesaid letter of 30 June 1986. In the letter it
was stated that
the third respondent, in addition to the triad businesses, now
also intended to carry on a number of other businesses as well as
to provide
recreational facilities in a modern shopping centre which he intended erecting
on his land. In a second internal memorandum
to the first respondent it was
stated that Gold Fields of South Africa Ltd (second respondent's holding
company) had, in the meantime,indicated
that it was desirable to create more
elaborate trading and recreational facilities for its Black mine workers but
that its policy
was not to be involved in the provision of these facilities. In
this memorandum, it was recommended that the exemption be granted
for the
reason,
inter
27/...
27.
alia
, that it would serve no purpose to call for tenders in terms of
sec 129 of the 1967 Act, and that it was not anticipated that the
interests of
the holders of trading rights on the mining ground would be seriously prejudiced
by granting the exemption. The first
respondent accepted the recommendation and
granted the exemption after fully considering, he states, the objections raised
by the
appellants. He decided that it would be in the public interest and in
particular in the interests of the mine workers to grant the
exemption.
The
reason why the third respondent resorted to an
ex parte
application for
exemption instead of obtaining the business and trading rights he was seeking in
the normal way in terms of secs
102 (l)(b) and 129 (l)(b), becomes apparent when
the provisions of these subsections are analysed.
In terms of sec 102 (l)(b)
28/...
28.
any person who desires to erect any place of business, except that of the
triad, on land which is held under mining title, may apply
to the Mining
Commissioner for a stand on the land. A copy of the application has to be posted
up by the Mining Commissioner in a
conspicuous place in his office and by the
applicant on the land to which the application relates (sub-sec (2)(a)). Written
notice
of any objection to the granting of such application and the grounds of
the objection must be served on the Mining Commissioner in
terms of sub-sec (4).
The latter is not required to hold any hearing, but he must notify in writing
the applicant and any objector
of his decision (sub-sec (5)). The applicant or
any person who is dissatisfied with the Mining Commissioner's decision may in
terms
of sub-sec (6) appeal to the Minister.
29/...
29.
Sec 129 (l)(b) provides, in so far as is relevant to this case, that whenever
the Minister is of the opinion that additional trading
facilities are necessary
on any land held under mining title he may instruct the Mining Commissioner to
select and to reserve one
or more trading sites on such land. A notice is then
published in the Gazette and in one or more newspapers circulating in the mining
district inviting tenders for the lease of the site or sites so reserved for the
purpose of carrying on the triad businesses. After
the period stated in the
notice for the submission of tenders has elapsed, the Minister may let any site
so reserved for such period
and upon such conditions as he may determine to any
person who has tendered for the purpose mentioned in the notice.
It is apparent that the main reason why
the
30/...
30.
third respondent applied for an exemption under sec 158 instead of obtaining
the right to carry on his proposed business or trade
under sec 102 (l)(b) and
129 (l)(b) was to avoid opposition from other interested parties and to secure
an advantage over business
rivals. Had he applied under sec 102 (l)(b) he faced
possible objections to his application by interested parties and under sec 129
(l)(b) he would have had to tender in competition with others. In fact, in the
first memorandum submitted to the first respondent
to which I have referred
above, it was expressly stated that the whole purpose of the application for
exemption was to avoid having
to tender for the trading rights in competition
with others whose tenders might be successful. It now becomes necessary to
examine
the provisions of sec 158. That section reads as follows:
31/...
31.
"158(1) The Minister may after one month's written notice served upon the
holder of any mining title on the land in question by notice
in the
Gazette
exempt any proclaimed land or land held under mining title or any
portion of such land from any of the provisions of Chapters X to
XV, inclusive,
of this Act for such period as he may deem fit, provided such exemption is not
in the opinion of the Government Mining
Engineer likely to interfere with
mining.
(2) Any such notice shall specify the
date from which such exemption shall
take
effect and the provisions from which the
land shall be exempt.
(3) (a) The Minister may by notice in
the
Gazette
withdraw any
exemption under
subsection (1).
(b) Any such withdrawal may be in
32/...
32.
respect of the whole or of a portion of the land exempted or in respect of
any or all of the provisions from which such land has been
exempted.
(4) The powers conferred by subsection
(3) shall be exercised only upon
application
made to the Minister by a person who requires
the land in
question for mining purposes
or purposes incidental to mining and has
furnished security to the satisfaction of the Minister for the payment of
compensation as
provided in subsection (5).
(5) Any person who has suffered any
loss as a direct result of the
exercise of
the powers conferred by subsection (3) shall
be entitled to be
paid such compensation
for that loss by the person at whose instance
those powers were exercised as may in the
absence of agreement be determined by arbitration.
(6) The provisions of section 44(4)
relating to land deproclaimed under
section
33/...
33.
44 shall
mutatis mutandis
apply in respect of land exempted in terms of
this section."
The provisions of chapters X to XV in
respect of which the first respondent may grant an exemption all relate to the
use of the surface
of proclaimed land or land held under mining title. Under the
corresponding sec 30
bis
of the Gold Law it was only possible to grant an
exemption from the provisions of chapter IX of that Act, which corresponds to
chapter
X of the 1967 Act. Apart from the fact that the procedure has now been
simplified the provisions of sec 158 are substantially similar
to, though more
extensive than, those of sec 30
bis
of the Gold Law.
There is no
provision in sec 158 for any application for an exemption. It is left entirely
to the first respondent to act on his own
initiative.
34/...
34.
He need give notice to no one of his intention to grant an exemption except
to the holder of the mining title on the land. There is
no provision in sec 158
requiring notice to the holders of trading or business rights or to the owner or
lessee of the land or neighbouring
land who have vested trading rights under sec
126.
It seems that sec 158 is mainly concerned with the interests of the
holder of the mining rights on the land and the use of the land
for mining
purposes. That is why the only notice required is that to the holder of the
mining title. Furthermore, in terms of the
proviso to sub-sec (1), the first
respondent may only grant an exemption if the Government Mining Engineer is of
the opinion that
the exemption is not likely to interfere with mining. So also,
in terms of sub-sec (4), the power to withdraw any exemption
35/...
35.
conferred by sub-sec (3) will only be exercised upon application made to the
first respondent by a person who requires the land for
mining purposes or
purposes incidental to mining. The only person entitled to apply for the
withdrawal of an exemption would seem
to be the holder of the mining
title.
The omission from sec 158 of any provision requiring notice to
interested parties other than the holder of the mining title on the
land is, in
my view, a clear indication of what the main authorised purpose is for which the
administrative power conferred in sec
158 may be used, particularly if regard is
had to the other provisions of the 1967 Act. As I have shown above the
consistent policy
of the successive statutes with which we are concerned has
been to recognise and protect trading and business
36/...
36.
rights granted under previous statutes. In
Johannesburq City Council v
Crown Mines Ltd, supra
, WESSELS JA said at p 721 H that, upon the grant of
permission to the freehold owner of proclaimed land held under a mining title
to
occupy a portion of the surface of that land for non-mining purposes, such
permission
"becomes a right in the ordinary sense of that term, adding value to the
dominium of the owner".
Such rights conferred under
previous statutes are protected generally under sec 188 of the 1967 Act, as we
have seen. In particular,
sec 126 (l)(b), read with sec 40(1), protects the
rights of owners of land proclaimed or deemed to have been proclaimed prior to
the commencement of the 1967 Act who had
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37.
obtained trading rights under sec 5(5)
ter
of the Gold Law prior to 1
October 1967. Those provisions, as well as the provisions of sec 126(1)(b)
conferring vested trading rights
on owners of certain land, would be rendered
nugatory by an exemption granted without prior notice to the holders of those
rights,
and such grant would be in clear conflict with the policy of recognisihg
and protecting rights previously granted.
It seems to me, therefore, that the
intention of the Legislature in enacting sec 158 was primarily to empower the
first respondent
to grant exemptions relating to the interests of the holder of
the mining title and the use of the land for mining. It would also
seem that sec
158 was intended to empower the first respondent to grant exemptions where the
only rights affected would be those
of the person in whose favour the exemption
was granted, although it is not necessary, for present purposes,
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38.
to define the exact ambit of the authorised purpose in this regard. What is
clear, though, is that it was never the intention of the
Legislature that sec
158 could be used in a situation where there may be business ' and trading
competition, for the purpose of creating
business and trading rights for one
party to the exclusion or detriment of his rivals or other interested parties.
Franklin and Kaplan,
op cit
p 447, support this inter= pretation in the
following words :
"Exemption from the restrictive provisions on the use of the surface will be
considered if it is clear that the relevant provisions
applicable to the control
of the use of the surface are unnecessary, as, for example, where the holder of
the mining title is also
the owner of the land; or where the owner of the land
has agreed to provide trading facilities on his land and it is clear that other
people trading on mining ground will not be adversely affected, the restriction
against trading on mining ground may be
removed."
39/...
39.
The first respondent, accordingly, did not have the power which he purported
to exercise, and in doing so he acted
ultra vires
sec 158. In
Broadway
Mansions Ltd v Pretoria City Council
1955(1) SA 517 (A) VAN DEN HEEVER JA
said at p 522 B :-
"The question is simply, did the respondent have the power purported to be
exercised? Where a power is granted for a specific purpose
it canot be used for
a purpose other than that for which it was intended .... In relation to such
other purpose the power does not
exist."
This disposes of the appeal, but for certain new submissions made by counsel
for the third respondent in additional heads of argument
which he was granted
leave at the hearing of the appeal to file later. It was contended, for the
first time in this case, that the
mining ground, including the third
respondent's land with which
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40.
this appeal is concerned, had previously been proclaimed a public digging in
terms of sec 26 of the Gold Law. The submission was that
the third respondent's
land was therefore deemed to have been proclaimed under sec 39 of the Act by
virtue of sec 188(2) of the Act,
and was thus proclaimed under sec 39 within the
meaning of sec 126(1) (b). It followed, so the argument proceeded, that the
right
to trade in the triad businesses vested in the third respondent in terms
of sec 126(1)(b) even before he applied to the Minister
for an exemption under
sec 158 of the Act. There is no direct evidence to show that the third
respondent's land with which this appeal
is concerned, was eyer proclaimed a
public digging in terms of sec 26 of the Gold Law. It was, however, contended on
behalf of the
third respondent, that the terms of the mining lease justify the
inference that the mining ground had previously been proclaimed
under sec 26 of
the Gold
41/...
41 .
Law. It appears from the provisions of the mining lease that West
Witwatersrand Areas Ltd had applied not only for a mining lease
over a joint
area under sec 20
bis
(3) of the Gold Law on the said farms, but also
"for a lease of the exclusive right to mine precious metals underneath a certain
area, in extent 1,9879 morgen equal to 2,8625 claims and situate on the
aforementioned farm Rietfontein No 349". The reference to
"claims" would seem to
indicate that this portion of the farm Rietfontein No 349 must already have been
declared a public digging.
A composite lease was in the event granted over both
the joint area and the 1,9879 morgen on Rietfontein No 349. The grantor is
stated
to be "the Government" which, according to clause 1 of the lease, means
both the Acting State President and the Minister. The reason
for this is that
the joint area lease under sec 20
bis
(3) of the Gold Law was required by
that sub-section to be granted by the Minister, whereas
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42.
the lease over the 1,9879 morgen on Rietfontein No 349 had to
be granted by the Acting State President since that area had already
been
proclaimed a public digging. According to paragraph V of the preamble to the
mining lease, it was in respect of the 1,9879 morgen
on the farm Rietfontein No
349 only that the Acting State President had determined, in terms of sections 30
and 52 of the Gold Law
and sec 3 of the Transvaal Mining Leases and Mineral Law
Amendment Act 30 of 1918, to lease the 1,9879 morgen to West Witwatersrand
Areas
Ltd. These sections do not appear to be relevant to the grant of a joint area
lease.
As I have pointed out earlier in this judgment, the third respondent's land
with which this appeal is concerned, is situated on the
farm Doornkloof No 350,
which forms part of the joint area. In my view the terms
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43.
of the mining lease provide no basis for inferring that the
joint area or any part thereof was proclaimed in terms of sec 26 of the
Gold Law
before 1 October 1967. As I have said, the joint area was merely deemed to be
proclaimed land in terms of sec 26
bis
of the Gold Law when the mining
lease was registered. Sections 188(2) and 39 of the Act cannot therefore assist
the third respondent
to bring his land within the ambit of.sec 126 (l)(b) of the
Act, quite apart from the fact that, as I have said, that sub-section
was
intended to apply only to land which may be proclaimed land on or after 1
October 1967.
With regard to costs there remain to be decided the costs of an
application
in limine
, brought on notice of motion by the third
respondent at the commencement
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44.
of the hearing of the appeal. The application
in limine
was brought in
response to a notice, received a few days before, of two new points which Mr
Welsh, for the appellants, intended arguing
on appeal. These were that the
exemption was invalid because the first respondent had added a condition that it
could be withdrawn
after 5 years, and secondly because of non-compliance with
the proviso to sec 158(1), in that it had not been shown on the papers
before
the Court that the Government Mining Engineer had formed the reguisite opinion
that the exemption was not likely to interfere
with mining. In the application
the Court was asked not to allow the appellants to raise the new points on
appeal, alternatively
that the hearing of the appeal be postponed in order to
allow the third respondent an opportunity of preparing further affidavits
dealing
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45.
with the factual aspects raised by the new points. After
hearing argument on the application the Court disallowed the new points to
be
raised and intimated
that its reasons would be furnished later. The hearing
of the appeal then continued and concluded the same day. In view of the
conclusion
to which I have
come that the purported exemption was
ultra
vires
sec
158, it is not necessary to set out the reasons for
not allowing the new
points to be raised on appeal.
Although the main relief sought in the
application
in limine
was granted, it is only the costs of
preparing
the notice of motion in respect of which the need for
a special
order for costs arises, as the hearing of
the application
in limine
formed part of the hearing
of the appeal and no extra costs were occassioned
thereby.
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46.
In the circumstances of this case I am not satisfied that a special order for
the costs of preparing the notice of motion is justified
as the objection to the
new points being argued on appeal could have been raised by counsel for the
third respondent during the course
of argument.
In the result the appeal
succeeds with costs, inclucing the costs of two counsel. The order of the Court
a cruo
is altered to read: An order is granted in terms of prayer 1.1
declaring the exemption granted by the first respondent to be of no
force and
effect. The third respondent is ordered to pay the costs of the application,
including the costs of two counsel.
W. VIVIER JA.
JOUBERT JA )
BOTHA JA ) Concur.
KUMLESEN JA)
F H GROSSXOPF JA)