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[1985] ZASCA 71
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Finbro Furnishers (Pty) Ltd. v Registrar of Deeds, Bloemfontein and Others (129/84) [1985] ZASCA 71; [1985] 4 All SA 388 (AD) (6 September 1985)
FI
NBRO FURNISHERS (PTY) LIMITED
Appellant
and
REGISTRAR OF
DEEDS, BLOEMFONTEIN
1st Respondent
VAALOEWER BOERDERYE (EDMS)
BPK
2nd Respondent
LINDA INVESTMENTS (PTY) LTD
3rd
Respondent
VAALOEWER LANDERYE (EDMS) BP
K 4th Respondent
Case No: 129/84
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE DIVISION)
In the matter between:
FINBRO FURNISHERS (PTY) LIMITED
Appellant
and
REGISTRAR OF DEEDS, BLOEMFONTEIN
First Respondent
VAALOEWER
BOERDERYE (EDMS) BEPERK
Second Respondent
LINDA INVESTMENTS (PTY)
LIMITED
Third Respondent
VAALOEWER LANDERYE (EDMS) BEPERK
Fourth Respondent
CORAM:
KOTZÉ, JOUBERT, TRENGOVE, HOEXTER et BOTHA, JJA
HEARD:
14 May 1985
DELIVERED:
6 September 1985
JUDGMENT
Hoexter, JA
2.
Hoexter, JA,
This appeal involves the
interpretation of a clause in a contract and a sub-section of a statute. The
contract concerned is embodied
in a notarial deed of cession of mineral rights
and the relevant statute is the
Deeds Registries Act, 47 of 1937
. The first
question is whether the "rights to minerals" ceded in terms of the notarial deed
include rights to stone. Should that
question be affirmatively answered the
further question arises whether in terms of
sec 3(1)(m)
of Act 47 of 1937 the
Registrar of Deeds has a legal duty to register such notarial cession.
The background to the appeal may be shortly summarised. The farm "Smaldeel"
No 683 ("the farm") is situate in the Heilbron district
of the Orange Free
State. Relevant to the case is a portion of the farm ("the property") which is
1027,8384 hectares in extent. Before
February
1964
3.
1964, and under deed of transfer 7118/1948, the
ownership both of the property and of the rights to minerals thereon was held by
the
third respondent. The property has since been divided into various
subdivisions which are at present owned severally by the second,
third and
fourth respondents. The second respondent is the owner of subdivisions 2 and
3.
During February 1964, and by notarial deed of cession of mineral rights
22/1964MR, the third respondent ceded to a private company
("Finger Brothers")
all the rights to minerals in respect of the property. On 13 October 1966, and
by notarial deed of cession of
mineral rights 110/1966MR, Finger Brothers in
turn ceded all the rights to minerals in respect of the property to the
appellant.
All subdivisions into which the property has been divided are subject
to the notarial deed of cession of mineral rights 110/1966MR
in favour of the
appellant.
During
4.
During September 1980 the second respondent agreed to grant
the right to prospect for stone on and to' extract stone from subdivisions
2 and
3 of the property to a public company ("Hippo Quarries"), whereafter Hippo
Quarries ceded such rights to a private company
("Constone"). Thereafter
Constone received legal advice to the effect that, inasmuch as the appellant was
the owner of the mineral
rights in respect of the property, the rights to stone
in respect of subdivisions 2 and 3 of the property vested in the appellant.
During January 1982, and as holder of the rights granted in terms of notarial
deed of cession of mineral rights 110/1966MR, the appellant
sold to Constone all
the rights to stone in respect of the property. However, the Registrar of Deeds
for the Orange Free State refused
to register a cession of the said rights to
stone in favour of Constone by the appellant as the holder of the mineral
rights
5.
rights to the property. The view of the Registrar
of Deeds was that the appellant's rights to minerals did not include rights to
stone;
and that the rights to stone vested in the surface owner(s).
Upon notice of motion the appellant and Constone ("the co-applicants") lodged
an application ("the main application") in the Orange
Free State Provincial
Division. The Registrar of Deeds (OFS) was cited as the first respondent; and
the second, third and fourth
respondents were cited as surface owners having an
interest in the matter. In the main application the co-applicants sought
(1) an order declaring them to be the holder of all rights to
stone in
respect of the property under and by virtue of
deed of cession of mineral rights 110/1966MR; and
(2) an order directing the first respondent to register a
notarial deed of
cession of mineral rights in terms whereof
all rights to stone in respect of
the property were ceded
by
6.
by the appellant to Constone. No order for costs was sought
against any of the four respondents. The main applica= tion was not resisted
by
any of the four respondents. The first respondent filed with the Court a report
setting forth certain legal submissions but stating
that the first respondent
abided the decision of the Court.
The co-applicants were companies based in Johannes= burg. For the purposes of
the main application they instructed a firm of Johannesburg
attorneys: Deneys
Reitz and Company ("Deneys Reitz"). In turn Deneys Reitz used the services of
Goodrick and Franklin, a Bloemfontein
firm of attorneys, as their correspondents
and as attorneys of record.
The main application was heard on 7 October 1982. There was no appearance by
or on behalf of any of the four respondents. Having heard
counsel for the
co-applicants the Court (HATTINGH,AJ) reserved judgment until 31 March 1983
when
7.
when a judgment dismissing the main application ("the main judgment") was
handed down. The main judgment is reported' in 1983(3) SA
at 191.
In argument before this Court it was common cause that the period within
which any application for leave to appeal against the main
judgment should have
been made expired on 25 April 1983. Within the said period no such application
was in fact made. However, by
notice of motion dated 6 June 1983 a firm of
Johannesburg attorneys, Raphaely-Weiner, made application on behalf of the
appellant
for condonation of the appellant's failure timeously to apply for
leave to appeal; and, in the event of such condonation being granted,
for leave
to appeal against the main judgment. The application for condonation, which was
not resisted by any of the four respondents,
was heard by HATTINGH,AJ on 11
November 1983, and on the same date refused by the learned Judge. To the latter
judgment I shall refer
as "the condonation judgment".. Following
a
8.
a petition addressed by the appellant to the CHIEF JUSTICE, however, leave to
appeal against the refusal of condonation by the Court
below was granted by this
Court which also, contingently upon the success of such an appeal, granted leave
to the appellant to appeal
against the main judgment.
In the application for condonation the notice of motion was accompanied by a
founding affidavit (jurat 30 May 1983) by one Finger,
a director of the
appellant. To the founding affidavit were annexed (1) an affidavit (
jurat
25 May 1983) by one Dale, an attorney and a partner in Deneys Reitz; (2) an
affidavit (
jurat
30 May 1983) by one Hoffman, a partner in the
Johannesburg firm of accountants acting as the appellant's auditors; and (3) an
affidavit
(jurat 6 June 1983) by one Bortz, an attorney and a partner in
Raphaely-Weiner Of the events between 31 March 1983 (on which date
the main
judgment was delivered) and 10 June 1983 (when the condonation application was
actually filed
in
9.
in the Court below) there is to be found in Finger's founding affidavit
a somewhat meagre account whose essential parts may be summarised
as
follows:-
(a) Finger states that on Friday 22 April 1983 attorney
Dale of Deneys Reitz -
"... received notification from Messrs Goodrick and Franklin of the
outcome
of the judgment, as is
confirmed in his affidavit "
(my underlining).
In fact, however, Dale's affidavit does not provide such
confirmation. All that Dale's affidavit states in this
connection is the following -
"I received the
Judgment
in this matter on Friday the 22nd April 1983 and
immediately despatched a copy thereof to Messrs Fisher Hoffman Stride and
Company,
the first Applicant's auditors." (my
underlining).
(b) Finger states that the appellant
first became aware of
the main judgment on Monday 25 April when Dale
delivered
a copy thereof to the appellant's auditors. (The
correctness of
these averments is confirmed by Hoffman
in
10.
in his affidavit.)
(c) Finger states that for two or three days after 25
April 1983 the
appellant and Constone discussed the
possibility of an application for leave
to appeal against
the main judgment. The upshot of the matter was
that
Constone decided against and the appellant in favour
of making such an application; but that the appellant further decided in this
connection to instruct a firm of attorneys (Raphaely-Weiner)
not previously
involved in the matter.
(d) On 2 May 1983 Finger instructed attorney Bortz to
take the steps
necessary to enable the appellant to
appeal against the main judgment. Bortz
thereupon
instructed his own Bloemfontein correspondents as a
matter of
urgency to obtain a copy of the main judgment
"and all relevant documents" in
regard thereto. Under
cover of a letter from his Bloemfontein
correspondents
dated
11.
dated 10 May 1983 the said documents were received by Bortz
on 16 May 1983. On 18 May 1983 Bortz instructed counsel to consider the
matter
and to settle the condonation application. (The correctness of these averments
is confirmed by Bortz in his affidavit.)
I proceed to examine the reasons given by the Court below in support of its
refusal to grant condonation. Dealing with the fact that
the appellant became
aware only on 25 April 1983 that the main application had been dismissed the
learned Judge remarked:-
"The question arises who caused the delay? On the papers it is suggested that
messrs Goodrick and Franklin caused the delay. If so,
why was the Court left in
the dark about the identity of the attorney responsible for the delay and why
was no affidavit filed by
the attorney concerned, offering an acceptable
explanation for his suggested inordinate delay to notify the applicant of the
judgment?
Counsel for the applicant, however,
contended in this court during argument, that Dale was the
person
12.
person who caused the delay, although Dale in his
supporting affidavit
does not admit such a
fact "
The learned Judge proceeded to consider whether, had Finger sought to fasten
the blame for late notification of the result of the
main application on a
particular attorney, such a direct accusation would have improved the
appellant's chances of gaining condonation.
The answer to this question against
the appellant the learned Judge found in the oft-repeated judicial warning that
there is a limit
beyond which a litigant cannot escape the results of his
attorney's lack of diligence or the insufficiency of the explanation tendered
(see:
Salojee and Another NNO v Minister of Community Development
1965(2)
SA 135 (A) at 141 C/E;
Immelman v Loubser en "n Ander
1974(3) SA 816 (A)
at 823G-824B;
P E Bosman Transport Works Committee and Others v Piet Bosman
Transport (Pty) Ltd
1980(4) SA 794(A) at 799 E/H.) Affecting the delay
between the time that Finger instructed
Bortz
13.
Bortz on 2 May until the application was filed on 10 June 1983, the learned
Judge observed it was difficult to see why it had been
necessary for Bortz to
procure a copy of the judgment from Bloemfontein when the appellant's auditors
in Johannesburg were already
in possession thereof; and that there seemed to be
no reason why the application for condonation could not have been lodged shortly
after 25 April 1983. Lastly the learned Judge rejected a submission on behalf of
the appellant to the effect that since the prospects
of success on appeal were
good the Court should be disposed to grant condonation. In this connection the
learned Judge remarked -
"In the first place I must say that although I do not necessarily share
counsel's views as to the merits of the appeal, there is for
the reasons already
stated no need to express any opinion on the merits. Once again I would like to
refer to the case of
Immelman v Loubser
and I refer to page 824C where
the learned Judge said:
'Redelike
14.
Redelike vooruitsigte op sukses by appeél is natuurlik ook 'n
belangrike oorweging. Maar hoewel dit 'n belangrike oorweging
is, is dit nie
noodwendig in elke geval 'n deurslaggewende oorweging nie'".
It now falls to be considered whether there are grounds for
finding, as counsel for the appellant urged us to find, that
in refusing
to grant condonation the Court below exercised
its discretion improperly. In regard to the fact that the
outcome of the
main application was conveyed to the appellant
only on 25 April 1983 the
learned Judge correctly pointed out
that on the papers in the application for
condonation the
Court is left in the dark as to the identity of the
attorney
who in this respect was at fault. However, insofar as in
the
condonation judgment the learned Judge remarked that the
papers "suggested
that messrs Goodrick and Franklin caused
the delay" it is only fair to
mention the following: In
response to a question by this Court, during argument, counsel
for the appellant took instructions and thereupon informed us
from
15.
from the bar that Constone had been notified of the result of
the main application already on 7 April 1983. As Deneys Reitz were acting
for
both applicants in the main application it is not unreasonable to infer from
counsel's statement that on 7 April 1983 the result
was already known to Deneys
Reitz. It is not for this Court, however, to indulge in speculation on the
matter. Suffice it to say
that upon this important question it was the duty of
the appellant and its legal advisers to make full and frank disclosure in their
affidavits; and that they failed to do so. The effect of this shortcoming in the
application has to be weighed together with all
the other relevant circumstances
in the case.
Turning to the delay which accompanied the bringing of the application for
condonation, it cannot be said, I think, that Finger did
not act expeditiously
in instructing Bortz; or that Bortz was tardy in giving instructions to his
correspondents in Bloemfontein.
However, as to why it was
necessary
16.
necessary to procure a copy of the judgment from Bloemfontein
when one was available in Johannesburg, one must share the perplexity
of the
learned Judge. It seems also to have taken a long time (almost a fortnight) for
the relevant papers from Bloemfontein to reach
Bortz, although in this
connection it should not be overlooked that for some six days (10 - 16 May)
these documents were in the post.
What does, in my judgment, call for some
further explanation, is the delay between 25 May (when Dale attested his
supporting affidavit)
and 10 June 1983, when the application for condonation was
filed with the registrar of the Court below. Making due allowance for
the fact
that during this period there were two weekends and also (on 31 May) a public
holiday, it seems to me that there is no reason
to disagree with the finding of
the learned Judge that the application for condonation could and should have
been filed well before
10 June 1983. But although it was the duty of the
appellant
17.
appellant to make application for condonation so soon as it
was discovered that the period within which leave to appeal might be sought
had
expired, it seems to me, neverthe= less, that in the present case the delay was
not so inordinate as to manifest a wilful disregard
by the appellant of the
rights of the other parties to the main application; or as to be inexcusable by
ordinary and reasonable standards.
Attention has already been drawn to the fact that in considering the
application for condonation the Court below found it unnecessary
to express any
opinion as to the appellant's prospects of success in an appeal. That portion of
the condonation judgment last quoted
above tends to suggest that the learned
Judge found it unnecessary to assess the prospects of success for the reason
that in applications
of this sort it is not a conclusive factor. It seems to me,
with respect, that,if the learned Judge so approached the matter, he
was in
error. It is true- as
the
18.
the authority relied upon by the learned Judge shows -that
the factor of prospects of success, taken by itself, can never be conclusive.
But unless the cumulative effect of all the other factors relevant to the
application is such as to render the application wholly
and obviously unworthy
of consideration, a Court is bound to assess an applicant's prospects of success
on appeal; and to weigh such
assessment together with all the other relevant
circumstances in the case. (Cf.
Mbutuma v Xhosa Development Corporation
Ltd
1978(1) SA 681 (A) at 687A). Upon a reading of the condonation judgment
as a whole it is by no means clear to me that the learned
Judge regarded the
cumulative effect of the other relevant factors (the prospect of success apart)
as being clearly fatal to the
application. But, in any event, such a view of the
facts would, I consider, be an unduly stringent and insupportable one. In the
present matter the cumulative effect of the relevant factors
other
19. other than the prospects of success cannot be said, in my
opinion, to be so entirely destructive of the application for condonation
as to
render superfluous an assessment of the appellant's prospects of success on
appeal.
From what is said later in this judgment concerning the merits of the main
application it must be taken to follow that had the Court
below investigated the
appellant's prospects of success on appeal it should have concluded, at lowest,
that such prospects were reasonably
good. It further follows that the Court
below should have allowed the positive factor of such fair prospects of success
to go into
the scales in favour of the appellant's application for condonation.
Nor does the matter end there. In my view there were also other
positive factors
propitious to the grant of condonation of which no mention is made in the
condonation judgment and whose significance
may have been overlooked by the
learned Judge. These are the importance
of
20.
of the main application in clarifying the duties of
registrars of deeds registries in terms of sec 3(1)(m) of Act 47 of 1937; the
substantial sum of money at stake in the main application; and the absence of
opposition to the application for condonation by any
of the respondents coupled
with the absence of any obvious prejudice to any of them in the event of the
grant of condonation.
Upon a review of the chief factors relevant to the application for
condonation the following broad picture emerges. (A) The appellant
was made
aware only at a very late stage that the main application had been dismissed.
This fact, on the probabilities, was due to
lack of care on the part of an
attorney acting on behalf of the appellant. (B) The identity of the particular
attorney so at fault
is a matter for mere speculation because there is before
the Court neither a disclosure of his identity nor an explana= tion for
his
lapse. Both these deficiencies in the
affidavits
21.
affidavits in the application for condonation
are deplorable. (C) Although the appellant itself took reasonably prompt steps
to have
launched an application for condonation and for leave to appeal, there
was on the part of the attorneys then acting for the appellant
some
procrastination in the filing of what was in essence a simple application. This
delay, although not unduly protracted, was not
satisfactorily explained. These
are the factors militating against the grant of condonation. Ranged against them
are the following
factors conducing to the grant of condonation:- (D) The
favourable prospects of success on appeal. (E) The importance of the main
application both generally and in regard to the particular litigants. (F) The
absence of prejudice to the respondents should condonation
be granted.
As to the adverse factors mentioned in (A) and (B) above, the conduct of the
unidentified attorney concerned, though lamentable,does
not in my opinion
involve such a
degree
22.
degree of culpability that in consequence thereof his client
should be penalised and denied relief. On the other hand, when the facts
as a
whole are surveyed it seems to me that it is in particular the one factor which
the Court below elected to disregard - the appellant's
prospects of success on
appeal -which tips the scales in favour of the grant of condonation. The
conclusion I reach is that in dismissing
the application for condonation the
Court below exercised its discretion improperly. Having considered all the
relevant circumstances
I am satisfied that the appellant has succeeded in
showing the existence of sufficient cause for the indulgence sought by it; and
that the appellant's failure timeously to apply for leave to appeal should be
condoned.
I turn to a consideration of the merits of the main application. For the sake
of brevity reference will be made to the notarial deed
of cession of mineral
rights between the third respondent as cedent and Finger Brothers as
cessionary
as
23.
as "the 1964 deed", and to the notarial deed of cession of
mineral rights between Finger Brothers as cedent and the appellant as cessionary
as "the 1966 deed". For purposes of construing the words "Mineral Rights" in
both deeds certain portions of clauses 1 and 2 in each
deed require particular
scrutiny. I quote hereunder from clauses 1 and 2 of the 1964 deed:-
"1. THE said Appearer does hereby cede,
assign and transfer unto and in favour of
FINGER BROS. (PROPRIETARY)
LIMITED
its Successors-in-Title or Assigns, all the rights to Minerals of
whatsoever nature, including precious and base metals, precious
stones and
mineral oils, other than the rights to sand and clay, in, on, under and in
respect of"
(here follows a description of the property).
2. THAT the term "Mineral Rights" aforesaid shall include:-
(a) All rights to minerals of whatsoever nature, including precious and base
metals, precious stones and mineral oils other than
the rights to sand and clay
in, on, under and in respect of the said farms, including
all
24. 24.
all rights allowed by any law to the holder of the mineral rights and
including the rights to any mynpacht or mining lease in respect
of mining,
exploitation and removal of the said minerals and metals in, on, or under the
said farms.
(b)
(c)
(d) The right to the said
FINGER BROS
.
(
PROPRIETARY)
LIMITED,
its Successors-in-
Title or Assigns, to remove from the
said
farms any minerals or mineral substances,
or metals or ore and to bring on to the said farms any minerals or mineral
substances or metals or ore, or other substances for treatment
or manipulation
or otherwise.
(e)
(f) That the said Mineral Rights shall not
include the rights to sand and
clay in the
fixed properties, which shall remain the.
property of the said
LINDA INVESTMENTS
(PROPRIETARY) LIMITED.
"
Save that the appellant is therein described as the cessionary
the wording of clause 1 of the 1966 deed is exactly the same
as that of clause 1 of the 1964 deed. Clause 2 of the 1966
deed contains the following preface:-
"2.
SUBJECT
to the following terms and conditions as set out in the
said Notarial Deed of Mineral Rights No. 22/1964 M.R. -
A. That
25.
A. That the term 'Mineral Rights' aforesaid
shall
include:- "
Hereupon follow six sub-clauses (likewise lettered (a) to (f)) whose terms,
save for minor and immaterial variations in language,
correspond with those of
the sub-clauses set forth in clause 2 of the 1964 deed.
These being the facts of the case I turn to the legal principles applicable
to them. The word "mineral" is one of fluid content. The
particular meaning to
be assigned to it in any given case has been a matter much debated in our
Courts. The same problem of definition
has often arisen in English Courts, and a
convenient summary of the position in English law is the following passage in
Halsbury,
Laws of England, 4th ed. vol 31, p.11, par 8:-
"'Minerals' admits of a variety of meanings, and has no general definition.
Whether in a particu= lar case a substance is a mineral
or not is primarily a
question of fact. The test is what 'minerals' meant at the date of the
instrument concerned in the vernacular
of the mining world, the commercial world
and among landowners, and
in ..........
26.
in case of conflict this meaning must prevail over the purely scientific
meaning. Nevertheless 'minerals' is capable of limitation
or expansion according
to the intention with which it is used, and this intention may be inferred from
the document itself or from
consideration of the circumstances in which it was
made."
A reference to the corresponding passage in
the third edition of Halsbury, (
supra
), was made in the judgment of this
Court in
Falcon Investments Ltd v C D Birnam (Suburban) (Pty) Ltd and
Others
1973(4) SA 384 (A) at 400C-401A. The decision in that case (to which
reference will be made as "the
Falcon
case") will require full discussion
later in this judgment. As a prelude to the consideration of the problems of
inter= pretation
which arise in the present case it is necessary to examine a
number of decided cases in our Courts over the past ninety years in
which, in a
diversity of contexts, the meaning of the word "mineral" in scientific, popular
and legal language has been discussed.
A convenient starting point is
Donovan v Turf
fon=
tein Estate
Co
(1895) 2 O.R. 298
("the
Donovan
case"). This
involved
27.
involved the interpretation of a lease which gave the lessee
the right to "alle mineralen, edelgesteenten, metalen, of ander delfstoffen".
The Transvaal High Court found that the main object of the contract was the use
of the leased property by the lessee for purposes
of "landbouw en woning" and
held that the lessee was not entitled to dig thereon for clay. In regard to the
intention of the contracting
parties KOTZé, CJ observed (at P304):-
"Die intentie moet worden afgeleid door het contract in zijn geheel te lezen, en
wij moeten niet eene wetenschappelijke of buitengewone
beteekenis aan het woord
'delfstof' geven, en zoo op die wijze klei er onder insluiten, wanneer het
oogmerk van het contract en de
gebruiken van ons volk, dit niet toelaten, wat
dan ook de wet, of het costuum van de verschil= lende landen van Europa mag
zijn."
Whether a particular lease included any right
to minerals was considered by the Transvaal Surpreme Court (INNES, CJ, WESSELS
&
SMITH, JJ) in an appeal from a decision of BRISTOWE, J in the case of
Brick & Potteries Co v Registrar
of
...
28.
of Deeds
1903 TS 473
("the
Brick and Potteries
case
"). In terms of sec 16 of Law 20 of 1895 (Tvl) all grants of rights to
minerals had to be drawn up in a notarial deed and registered
by the Registrar
of Deeds and transfer duty was payable on such grants. The lease in question
gave the lessees the right to dig and
remove all earths, clay, sand and other
materials used in the manufacture of pottery, earthenware, bricks, etc. The
Court decided
that registration of the lease did not attract payment of transfer
duty. In the course of his judgment INNES, CJ said (at p 480):-
"Now are earths, clay and sand included within
the term 'minerals'? In the widest sense of
the word there is almost nothing mined or taken
from
under the ground which is not a mineral.
But after all the meanings of mining terms vary
in different countries; and it seems to me
more important to ascertain the sense in
which the word is ordinarily used in this
country
than to define its exact
etymological significance.
That was the view taken by the late High
Court
in the case of
Donovan v
Turffontein Estates
, where
the Court attached great importance to the sense
in which the word 'mineral' was habitually used
in this country."
One
29.
One reason which impelled the Court to conclude that clay was not a
mineral within the meaning of Law 20 of 1895 was its reluctance
to disturb the
judicial construction put upon the word "mineral" in the
Donovan
case
decided seven years earlier and which, so the Court considered, had "doubtless
been frequently acted upon". But with an eye
to the inter= pretation of sec
3(1)(m) of Act 47 of 1937 later in this judgment it is as well to notice here a
further reason upon
which INNE5, CJ based his finding in the
Brick and
Pott
eries case. At pp 480-1 the learned Chief Justice remarked:-
"The learned judge in the court below held that the object of the Law was to
impose transfer duty
on the disposal of land and of all substances in the land the working of
which is regulated by law, and he pointed out that clay was
one of those
substances. No doubt there is force in that view, but it does not seem to me at
all conclusive. The object of sec 16
of Law No 20 of 1895 was not only to impose
a tax upon all grants of minerals, but
also to ensure the registration of such grants -
a matter of the utmost
importance in this country where such grants deal with mineral substances of
great value, but of no importance
in regard to clay or sand
."
(My underlining.)
The
30.
The next decision to be mentioned is
New Blue Sky Gold
Mining
Co Ltd v Marsh
all
1905 TS 363
("the
New Blue Sky
case").
There the Court (INNES, CJ, SMITH & CURLEWIS, JJ) had
to
consider whether fire-clay was a "mineral" within the
meaning of the
Base Metals and Minerals Law, 14 of 1897
(Tvl). At p367 INNES, CJ said the following:-
"As to the scientific definition of the word 'mineral', after hearing a great
deal of evidence from experts it appears to me that
the word may be used in at
least two senses. First, in a very wide sense it my be taken to mean any portion
of the earth's crust,
not being animal or vegetable. But in its more specific
sense it means an inorganic substance having a definite chemical composition
and
possessing characteristics not easy to define. Speaking generally, it has a
crystallisation of its own and a certain degree of
hardness and specific
gravity."
Sec 2 of Act 14 of 1897 provided that the law applied to various substances
(as, for example, iron, lead, copper, manganese and sulphur)
each of which was a
mineral in the narrow sense -
" as
31.
"as well as coal, graphite
and other mineral substances for the
exploit
a
tion of which no other lawful provisions exist.
" (My
underlining).
In 1892 the Volksraad had ratified a
Government Resolution regulating the exploitation of ordinary stone and clay,
but not fireclay.
Having concluded that the words of sec 2 which are underlined
in the quotation above referred to the existence of the 1892 regulations,
INNES,
CJ commented at p369:-
"If they considered it necessary to insert those words in order to prevent
ordinary clay and stone falling within the definition
of mineral substances in
the statute, it is quite clear that the Volksraad used the word 'mineral' in a
much wider sense than the
narrow one to which I have
referred."
Dealing with the ambit of Act 14 of 1897
INNES, CJ further said (at pp369/70):-
"It does not follow that every portion of the earth's crust would come under
the provisions
of
32.
of that Law. In considering the point we must have regard to the scope of the
statute. It is a mining law, intended to deal with substances
of considerable
value, because one of its provisions imposes a duty in favour of the State of 1
per cent. That is a fairly high duty,
and could only be properly borne by
valuable substances. If one looks at the Gold Law one finds that, in respect of
gold mined on
a mynpacht, the duty contemplated is 2 2%; the duty under the Base
Metals Law is two-fifths of that. Such a high duty could only
have been imposed
in regard to articles of considerable value. Fire-clay undoubtedly is a valuable
substance. It is worth ten times
as much as ordinary clay. Considering this
question, therefore, in the light of all the evidence, of the language of Law 14
of 1897,
and of the regulations of 1892, it seems to me that fire-clay is a
mineral substance such as was intended to be exploited under the
Base Metals
Law."
The judgment of INNES, CJ in the
New Blue Sky
case was concurred in by
the remaining members of the Court. In a separate judgment SMITH, J said the
following (at p372) in regard
to the Legislature's intention when it passed Law
14 of 1897 in respect of the exploitation of mineral substances:-
"The
33.
"The legislature considered it necessary to exclude from the operation of
this Base Metals Law substances such as stone, limestone
and ordinary clay, and
it seems to me that they considered that such substances as these would be
comprised in the terms 'mineral
substances' if they were not expressly excluded.
It seems to me, therefore, that they meant to give a very wide significance to
the
term 'mineral substances'. If we look at the scope of the Law it seems to me
that this view is strengthened. They were making provision
for exploiting the
resources of the country, not only in regard to metals, but also to the mineral
substances known at the time and
those which might be discovered in the future.
They did not, therefore, attempt any definition of the (term 'mineral
substances'.
It is natural to suppose that they would intend a wide meaning to
be given to the term."
Half a century after the
Donovan
case had been decided in 1895 the
decision in that case was relied upon by a full Court of the Transvaal
Provincial Division in construing
a sub-section in a rating ordinance. In
Brick & Potteries Co Ltd v City Council of Johannesburg
1945 TPD 194
(the
1945 B & P
case") a case was stated under the provisions of sec
15 of the Local Authorities Rating Ordinance, 20 of 1933.
The
34.
The appellant's property had been valued as a
brickfield with ordinary clay. Sec 9(2) of the Ordinance provided
that :-
"....in valuing any rateable property under this section the valuer or
valuers shall not take into account any value accruing to such
property by
reason of the presence of precious stones, precious metals or base metals or
minerals therein or thereon."
The argument turned on the question whether ordinary clay was a mineral
within the meaning of sec 9(2). This question was answered
in the negative by a
Court consisting of MARITZ and RAMSBOTTOM, JJ, each of whom wrote his own
judgment. In the course of his judgment
RAMSBOTTOM, J (at 210) quoted the
following words of LORD LOREBURN, I,C in
North British Railway v Budhill Coal
an
d Sand
stone Co
1910 AC 116
at p127:-
"When an Act of Parliament uses a word which has received judicial
construction it presumably uses it in the same sense."
Thereafter RAMSBOTTOM, J proceeded to say (at 210/111):-
"This
35.
"This is the principle which must be applied. In the year 1903, in the
Brick and Potteries
case, this Court, affirming the decision in
Donovan's
case (2 Off. Rep. 298) authoritatively decided that in the
Transvaal the word 'minerals' in its ordinary sense does not include ordinary
brickmaking clay. And when, in 1906, the Legislature directed the valuer to
deduct any value accruing to land by reason of the presence
of 'minerals'
therein, presumably it used the word in the same sense. The valuer was not
required to deduct a value accruing by reason
of the presence of clay. As I have
said, the word 'minerals' must be given the same meaning in the Ordinance of
1933 which it bore
in 1906, and the word 'minerals' in sec 9(2) must be
interpreted as excluding ordinary brickmaking clay."
In
R,v Day and Others
1952(4) SA 105 (N) the Court had to
consider whether the excavation of sand for profit fell
within the
definition of a mine as defined in the Mines &
Works Act, 12 of 1911,
which inquiry in turn hinged on the
question whether, for purposes of the
Act, sand was a mineral.
In sec 2 of Act 12 of 1911:-
"'mineral'
36.
"..'mineral' shall mean and include all
substances (including mineral oils) which can be obtained from the earth by
mining, digging,
dredging, hydraulicing, quarrying, or other operations for
purposes of profit;"
DE WET, J (in whose judgment SHAW, J concurred) held (at pl08G) that as
defined in the Act the word "mineral" was a word "of much
wider import than the
normal meaning of the word "mineral"; and that (at p 109A):-
"It is any substance obtained from the crust of the earth at any depth so
long as it is obtained from the earth for purposes of profit."
The meaning of the word "mineral" in scientific, legal and popular language
was further discussed by DOWLING, J in
Glencairn Lime Co (Pty) Ltd v Minister
of Labour & Minister of Justice
1948(3) SA 894 (T), a case in which it
was decided that limestone and lime are "minerals" as this word is used in the
definition
of "mine" in War Measure 39 of 1943. At p898 of his judgment the
following
dicta
by
FLETCHER-MOULTON
37.
FLETCHER-MOULTON, J in Gr
eat Western Railway v Carpalla
United China Clay
,
Ltd
(1909) 1 Ch. 218
(at p231) were described by
DOWLING, J as propounding "a useful test of what is a mineral in the ordinary
and popular sense of the
word":-
"If I were rash enough to venture a definition of 'mineral' I should say that
it is any substance that can be got from within the
surface of the earth which
possesses a value in use, apart from its mere possession of the bulk and weight
which makes it occupy
so much of the earth's crust. I should not think that what
in engineering cases is usually known as 'contractor's muck' is a mineral.
To
dig out ballast and crush stone and earth, a mere mixture of heterogeneous
portions of the earth's crust, for the purpose of making
embankments, where the
material goes from one position in the earth's crust to another without
modification or being submitted to
any process of manufacture, does not seem to
me to be making use of minerals, although no doubt the things that you are
handling
were originally within the earth's crust. Such materials have not a
value in use apart from their bulk and weight, and they are only
used as being
capable of forming a portion of the earth's crust in a new position. On the
other hand, everything that has an indivi=
dual value in use appears to me to be
fairly called a mineral."
In
38.
In S v Funchall
1961(4) SA 52 (T) the appellant was
charged with a contravention of a regulation under the Factories, Machinery and
Building Work
Act, 1941, in that he had failed to keep properly guarded
machinery for the crushing of stone. The question was whether or not the
machinery in question fell under the said Act. On appeal the Court held that
stone was a mineral and that therefore the activity
concerned fell within the
Mines and Works Act, 27 of 1956. The issue in the case was described as follows
by JANSEN, J (at p54 A/B):-
"Die sleutelvraag is dus of klip 'n delfstof
is soos deur Wet 27 van 1956 (soos gewysig deur
Wet 31 van 1960) omskryf:
'n scof, het sy in soliede of vloeibare
vorm of gasvorm wat op natuurlike
wyse in
of op die aarde aangetref word en gevorm
is deur of onderhewig was
aan 'n geologiese
proses, maar sluit nie water en grond in
nie, tensy dit
uit die aarde geneem word
vir die produsering of ekstrahering daarvan
van
h produk van kommersiele waarde.'
(art l(iii))."
In
39.
In regard to the ambit of the above definition the learned Judge remarked (at
54 E/G):-
"Wat 'n mens dadelik tref van die definisie van 'delfstof' is hoe wyd dit
is:
'n stof ... wat op natuurlike wyse in
of op
die aarde aangetref word en gevorm
is deur of onderhewig was aan 'n
geologiese
proses '
Word hierdie woorde in hul gewone betekenis opgevat, dan is hulle wyd genoeg om
water, grond en klip in te sluit. Dit is veelseggend
dat die Wetgewer dit nodig
geag net om water en grond uit te sonder - dit beklemtoon dat die definisie
bedoel is om andersins wyd
genoeg te wees om dit in te sluit. Die feit dat klip
nie uitgesonder is nie, kan slegs aandui dat die bedoeling was dat dit binne
die
bestek van die omskrywende woorde moet bly. Daar skyn geen dwingende rede te
bestaan om van die gewone betekenis van die woorde
af te wyk
nie.
Steun vir hierdie standpunt kan gevind word in
R v Day and Others, supra
."
The next case to be examined deals directly with one of the problems of
interpretation arising in the present appeal. In 1968 the
compass to be assigned
to the words
"rights
40.
"rights to minerals" in sec 3(1)(m) of Act 47 of 1937 arose in the Transvaal
in
Ex Parte Erasmus
1968(4) 788 (T)
("the
Erasmus
case"). It
concerned a lease granting the lessee the sole right to quarry, crush and remove
stone and sand from certain land. The
Registrar of Deeds had refused to register
the lease in terms of sec 3(1)(m) of the Act, and the applicant duly applied to
Court
for an appropriate . order. In terms of sec 3 (1) (m) of Act 47 of 1937
the Registrar of Deeds shall -
".... register notarial cessions, leases or sub-leases of rights to minerals
and notarial .
variations of such cessions, leases or
sub-leases, notarial cessions of such leases
or sub-leases, certificates of registration of such rights, and reservations
of such rights made in grants or transfers of land, and
notarial variations of such reservations."
The application was heard by RABIE, J who pointed out that
in its widest sense the words "mineral" appeared to include
any portion of the earth's crust not belonging to the
animal
41.
animal or vegetable kingdom; and (at 790 E/F) that such wide
meaning was definitely not the usual meaning of the word. The learned
Judge
expressed the opinion (at 790 D/E) that in Act 47 of 1937 the word "mineral" did
not bear such wide meaning:-
"... en wel omdat dié betekenis nie die gewone betekenis van die woord
is nie en daar nie goeie rede bestaan om te dink dat
die Wetgewer bedoel het dat
die woord in 'n ongewone betekenis opgevat moet word nie, en omdat aanvaarding
van hierdie wye betekenis
tot heeltemal onwaarskynlike en onaanneemlike
resultate sou lei."
In connection with the ordinary connotation of the word
"mineral" the learned Judge considered the decisions in the
Brick &
Potteries
case (supra);
Donovan's
case (
supra)
; and
R v Day
and Others
(supra). Thereafter RABIE, J observed (at 791 D/H):-
"Soos hierbo gesê, is dit na my mening uiters onwaarskynlik dat die
Wetgewer in die bepalings betreffende huurkontrakte van
regte op minerals in art
3(1)(m) die wye betekenis van minerale
in
42.
in gedagte kon gehad het. By so 'n huurkontrak het die huurder die reg om die
minerals wat by vind weg te neem en vir homself toe
te eien. Kyk bv
Neethling
v Vesta Gold Mining
Co.,
1903 T H 404
op bl 411,
Van Vuuren v
Registrar
of Deeds,
1907 TS 289
op bl 294, en
Edward
s (W
aaikraal)
Gold Mining Co. Ltd v Mamogale, N
0
and Bakwena Mines Ltd,
1927 T P D
288
op bl 296-299, en dit volg dus dat as aan die woord mineraal sy wydste
betekenis gegee moet word, die huurder van die minerale regte
op die grond, bv.
al die bo-grond, sou kon verwyder en aldus die eiendomsreg van die eienaar van
die grond waardeloos sou kon maak.
Dit kan nie gesugge= reer word dat die
huurder van minerale regte se regte so ver strek nie: in ons reg word juis
gepoog om so ver
moontlik 'n ewewig te bewaar tussen die kompeterende belange
van die oppervlakte-eienaar en die huurder van die minerale regte (kyk,
bv.,
Hudson v Mann and Another,
1950(4) SA 485 (T)), maar as die huurder nou
so 'n wye aanspraak moet hê as wat die wye betekenis van die woord
mineraal aan
horn sou gee, sal daar nie juis sprake van die beskerming van die
regte van die oppervlakte-eienaar kan wees nie. Dieselfde oorwegings
geld by the
uithou= ding van minerale regte by the toekenning of transport van grond wat ook
in art 3(1)(m) van die Wet vermeld word:
ook hier word getrag om die
kompeterende belange van die oppervlakte-eienaar en die houer van die minerale
regte so ver moontlik
met mekaar te versoen (kyk, bv
Douglas Colliery, Ltd. v
Bothma and Another
, 1947(3) SA 602 (T) op bl 610-612), maar as
die
43.
die regte van die houer van die minerale regte so wyd moet
wees as wat die wye betekenis van die woord mineraal dit sou maak, sou
die
oppervlakte-eienaar se eiendomsreg heeltemal waardeloos
gemaak kon word."
Counsel for the applicant in the
Erasmus
case did not contend that the
word "mineral" should be construed in the technical sense mentioned by INNES, CJ
in the
New Blue Sky
case (
supra
, at p 367), that is to say, as "an
inorganic substance having a definite chemical composition and possessing
certain characteristics
not easy to define"; and in this connection RABIE, J
expressed the opinion (at 792A) that there were no indications in Act 47 of
1937
that the word "mineral" should be interpreted in a technical rather than in its
colloquial sense. Counsel's submission was that
the widest meaning of the word
should be assigned to "mineral" in Act 47 of 1937, and that stone and sand fell
within such extended
meaning. Rejecting counsel's submission the learned Judge
concluded (at 792 C/D):-
"Na
44.
"Na my mening is klip en sand nie in 1937, toe die Akteswet aangeneem is, as
minerale in die gewone betekenis van die woord beskou
nie, en word dit vandag
ook nie so beskou nie."
Accordingly the Court declined to make an order authorising the Registrar of
Deeds to register the notarial deed of lease.
So far there have been considered in this judgment various decisions of the
Transvaal and Natal Courts dealing with the meaning of
the word "mineral" in
relation to substances such as clay, fire-clay, sand and stone. This Court was
called upon to pronounce upon
the ambit of the ; word "mineral" for the first
time in the
Falcon
case to
which decision brief reference has already been made earlier in this
judgment. The substance involved in the Fa
lcon
case
was a type of rock called andesite which is particularly suitable for use in
concrete and in roadbuilding. The appellant was a public
company and the owner
of land in the district of Johannesburg on which an associated company
extracted
45.
extracted andesite from a quarry. The andesite was then
conveyed to a crusher plant to render it suitable for sale. The use of the
land
concerned was governed by the Southern Johannesburg Region Town-Planning Scheme,
1962. Sec 18
of the Scheme provided that:-
" nothing in the foregoing provisions of
this part of this Scheme shall be construed as prohibiting or restricting or
enabling the Local Authority to prohibit or restrict
-
(a) the winning of minerals by underground
working, or the winning of minerals by surface working, or the erection of
any buildings or the carrying out of any work which is
incidental thereto as
regards any land not included in established townships and agricultural
holdings;
One of the main issues in the case was whether or not the
quarrying operations on the appellant's land fell within
the exemption conferred by sec 18(a) of the Scheme. The
Witwatersrand Local Division (whose decision is reported
in 1973(3) SA 838 (w)) held that andesite was not a "mineral"
and
46.
and that the operations in question did not amount to the "winning of
minerals" within the meaning of the Scheme. In an appeal to
this Court it was
contended on behalf of the appellant that "mineral" was a word encompassing a
broad range of meaning; and that
between its broadest and narrowest it was
capable of bearing an intermediate signifi= cation wide enough to include stone,
a substance
which, apart from its mere bulk, has commercial value because of its
special properties. The appeal succeeded. This Court disagreed
with the finding
of the Witwatersrand Local
Division that for the purposes of sec 18(a) of the Scheme
andesite was not a mineral. The judgment of this Court
was delivered by RUMPFF, JA who expressed his conclusion in the following
words (at 405H/406A):-
"In the result, I am of the opinion, that the
word 'minerals' in sec 18(a) was intended to
be used in a wide sense. It is not necessary
to determine its precise ambit; it suffices
merely to say that the meaning is wide enough
to include andesite as described in the evidence."
A
47.
A noteworthy feature of the judgment in the Falcon case is
that as part of the background against which to view the Scheme the Court
found
it necessary to examine a series of laws dealing with mines and minerals, such
as the Precious and Base Metals Act, 35 of 1908
(T); the Mines and Works Act, 12
of 1911, the Base Minerals Act, 39 of 1942, the Mines and Works Act, 27 of 1956
and the Mining Rights
Act, 20 of 1967. In regard to such legislative enactments
the learned Judge pointed out (at 402 C/D):-
"As far as control over the exploitation itself of minerals is concerned, the
State has consistently regarded the word 'mineral' in
its widest sense."
Concerning the definition of "mineral" to be found in the various laws
aforementioned the learned Judge further observed (at 402 G):-
"It
48.
"It is not necessary to delimit the precise ambit of those
definitions. It suffices merely to say that, according to the evidence
in the
present case, the substance andesite obviously falls within all those
definitions."
Turning to the Town-Planning Scheme itself RUMPFF, JA discerned (at 403B) in
its provisions affecting mining activities the general
intention that in certain
specified areas the Scheme should not operate to prohibit or restrict mining;
whereafter the learned Judge
remarked as follows (at 403 D/E):-
"'Minerals' is not defined in the Scheme. It is desirable, I think, that the
word should, if possible, be interpreted in such a way
that the Scheme blends
harmoniously with such other legislation. In the absence of clear indications to
the contrary, it can be inferred,
I think, that that must have been the
intention of the local authority. Indeed, the local authority could hardly have
intended 'mineral'
to bear a narrower meaning than the same or similar
expressions bore in the statutes just mentioned, especially in the Gold Law and
Base Minerals Act, since that might have jeopardised the validity of the Scheme
in certain respects."
Having
49.
Having found other indications in the Scheme (at 404 A/H) suggesting that in
framing it the local authority had used the word "minerals"
in its wide sense,
RUMPFF, JA arrived at the following conclusions in the Falcon case (at 405
B/D):-
"Having regard to the Scheme as a whole ......
and to the context of the Scheme within the framework of existing State
legislation and to
the duty imposed on a local authority to
pay compensation, I am inclined to the view that the object of sec 18(a) was
to ensure that the Scheme did not interfere with the
exploitation of minerals of
any kind on land not included in an established township or an agricultural
holding. It is difficult
to envisage why the local authority would have wanted
to confine 'minerals' to its narrow meaning and to exclude the humbler and
more
commonplace substances like clay, stone, etc. After all, an economically
exploitable deposit of the latter can often be most
valuable and its
exploitation can serve the public interest too and be thus equally worth
preserving from interference by the Scheme."
It will be recalled that in the 1945
B & P case,
(
supra
)
RAMSBOTTOM, J invoked as an aid to the interpretation of sec 9(2) of Ordinance
20 of 1933 (T) the principle that
earlier
50.
earlier judicial construction of a word raises a
presumption that when the same word occurs in a later statute it is used in the
same
sense. In the
Falcon
case, and having quoted in this connection (at
399 A/B) from the relevant part of the judgment of RAMSB0TTOM, J, RUMPFF, JA
sounded
the following cautionary note (at 399 B/C) in regard to the
ratio
of the
1945 B & P
case:-
"Without considering the correctness itself of
this decision, it may be expedient to refer to what was said by PAGAN, CJ.,
and SCHREINER, JA in
Consolidated Diamond Mines of South West Africa Ltd v
Administrator, S W A and Another
, 1958(4) SA 572 (A D)."
In the last mentioned decision of this Court FAGAN, CJ (at 599) remarked as
follows:-
"When we find in a judgment statements which attach meanings to particular
words or phrases, we must remember that the Judge is dealing
with those words or
phrases in the context in which they occur and with reference to the
subject-matter to which they relate. Beyond
that, a statement as to the meaning
of a word or phrase would be merely
obiter dictum
."
In
51.
In the same case SCHREINER, JA stated at p 637:-
"It is sometimes said, and for certain purposes no doubt correctly, that the
proper interpretation of a document is a question of
law. But par= ticularly in
cases where the effect of the context bulks largely the approach must
necessarily be rather that of the
approach to questions of fact, to this extent
at least that previous decisions on the meaning of the same words in different
contexts
can hardly be more than suggestive, and possibly only faintly
suggestive, of the meaning that may be proper in the case under
consideration."
This brings me to a decision on which the respondents in the present appeal
sought heavily to rely. in
Loubser v Suid-Afrikaanse Spoorwee en Hawens
1976(4) SA 589 (T) -to which I shall refer as "the
Loubser
case" - the
defendant expropriated in terms of the Railway Expropriation Act, 37 of 1955,
portion of a farm ("the land") belonging
to a deceased estate. On the land was a
deposit of clay suitable for brickmaking. The executors claimed compensation for
the value
of the land and included in the claim the value of the
clay
52.
clay deposit. Against the title deed of the farm there was
registered a reservation of
"..the full and free and sole rights and interest in and to all the minerals,
mineral substances and metals, oils, precious stones
and coal at any time on, in
an under the said farm without any exception, together with the sole right to
deal with, alienate and
dispose of the same at will."
The defendant contended that the said reservation of mineral rights included
the right to exploit the clay deposit on the land and
that no compensation in
respect of the latter was claimable by the plaintiffs. In a comprehensive
judgment involving a close examination
of many of the decisions already
discussed in the present case the Court (BOTHA, J) rejected the defendant's
contention. Referring
to authorities such as
Donovan's
case,
(
supra)
, the Brick
and Potteries
case, (
supra)
, the
New
Blu
e Sky case, (
supra)
, the
1945 B & P
case,
(supra
), and the
Erasmus
case, (
supra
), BOTHA, J said (at
598 G/H):-
"Die
53.
"Die vernaamste oorweging wat uit die genoemde Transvaalse beslissings blyk, vir
die doeleindes van die huidige saak, is dat die
gewone of populere betekenis van
die woord 'minerale' nie stowwe omvat soos gewone baksteenklei, sand of klip
nie."
Dealing with the particular problem of
interpretation posed by the facts of the case before him the learned Judge made
the following
comments (at 599 C/D):-
"Ek aanvaar as klaarblyklik korrek die gedagte
dat die blote feit dat daar in
vorige sake in
bepaalde samehange beslis is dat 'minerals' nie
klei omvat
nie, nie
per se
daarop dui, nie
eers
prima facie
daarop dui, dat daardie woorde in die onderhawige
serwituut ook nie klei omvat nie. Die belang van die vorige beslissings is egter
nie dat daar beslis is dat 'minerals' nie klei omvat nie; die tersaaklike
perspektief waarin die vorige beslissings van belang is,
is dat daar beslis is
dat die
gewone betekenis
van die woord 'minerals' nie klei omvat
nie."
In the course of his judgment in the
Loubser
case the learned Judge proceeded to consider in how far what was
said in the F
alcon
case had whittled down the authority of the
Donovan
54.
Donovan
case, (
supra)
, and the
Erasmus
case,
(
supra
). In this connection he remarked (at 6Q1F/602A):-
"Nou is dit so dat in die
Falcon Investments
-saak su
pra
, die
huidige HOOFREGTER aangedui net dat die woord 'mineral' 'n verskeidenheid van
betekenisse kan dra en dat die betekenis daarvan
in enige bepaalde verband
afhang van die bedoeling waarmee
die woorde gebruik is
Daar is egter geen aanduiding hoegenaamd in die uitspraak van die Appelhof, soos
ek dit verstaan, dat die gesaghebbendheid van
Donovan
en
Erasmus
se sake in twyfel getrek is met betrekking tot die gewone betekenis van die
woord 'minerals' in 'n samehang soos wat ter sprake is
in die huidige saak nie.
Inteendeel is daar uitdruklik daarop gewys (op bl 403 B) dat die Hof daar nie te
doen gehad net met 'n kontrak
tussen partye oor minerale regte of met wetgewing
oor die registrasie van so 'n kontrak nie, wat dit duidelik maak dat die
Appèlhof
se uitspraak nie bedoel was om op sulke gevalle betrekking te
hê nie. As 'h Regter van die eerste instansie is ek dus gebonde
om die
presedente van
Donovan
en
Erasmus
se sake te
volg."
Upon consideration of all the arguments
advanced to him BOTHA, J concluded in the
Loubser
case (at 607 E):-
"dat
55.
", dat daar geen rede is om te dink dat die
woorde 'minerals' en 'mineral' in die serwituut nie hulle gewone betekenis dra
nie, en dat die baksteenklei op die eiendom dus nie
binne die trefwydte van die
serwituut val nie."
In this review of the main
earlier authorities upon the subject the last but by no means the least signi=
ficant decision deserving
mention is
Belville-Inry (Edms) Bpk v Continental
China (Pty) Ltd
1976(3) SA 583 (C) - the
Belville-Inry case
". (Certain typographical errors in the report of
the judgment should be noticed. On p585, between marginal letters E and F, the
sub-paragraph
preceded by the letter "(a)" is in fact the second sub-section of
sec 3; and instead of the letter "(a)" there should be the numeral
"(2)". On
p588, opposite marginal letter B, the words "as used in the two sub-sections of
sec 2" should read "as used in the two
sub-sections of sec 3").
Sec 3 of the General Law Amendment Act, 50 of 1956 (as amended) reads as
follows:-
3. .
56.
"3.
Formalities in respect of
le
ases
of rights
to minerals
-
(1) No lease of any rights to minerals in
land and no cession of such a
lease shall
be valid if executed after the commence^
ment of this
Act,unless attested by a
notary public, nor shall such a lease
or cession thereof be valid as against third parties unless registered
against the title deeds of the land concerned or the certificate
of rights to
minerals concerned, as the case may be."
(2) The provisions of sub-section (1) shall
not apply to a lease of any
rights to
minerals granted or acquired under any
law relating to
prospecting or mining or
to any cession of any such lease."
It should be pointed out that sub-sec 2 of the provisions quoted above was
added by sec 33(1) of Act 80 of 1964. The B
elville-Inry
case concerned a
notarially executed and registered mining lease in respect of a property in the
district of Stellenbosch granting
the lessee the right "to prospect and search
for and to win, mine and recover all kaolin" on the property. In an application
for
a declaratory order heard by VAN WINSEN, J the first issue
which ........
57.
which fell to be determined was whether the lease in question was a lease of
rights to "minerals in land" within the meaning of sec
3 of Act 50 of 1956.
Addressing himself to this problem the learned Judge observed (at 585 G/H):-
"It is to be noted that the parties to the lease described it as a mineral
lease, thereby indicating that they considered kaolin to
be a mineral, and the
lease was so registered in the transfer deed under which the applicant holds the
property. If, however, kaolin
is in fact not a mineral the treatment by the
parties of it as such would not render it a mineral. Act 50 of 1956 does not
itself
define a 'mineral' and aid to interpret the meaning of that word in the
Act must be sought elsewhere. While assistance can be sought
from the meaning
ascribed to the word in
dictionaries, in the decisions of the Courts, and in the definition attached
to the word in other statutes, it must be remembered
that the enquiry remains
one as to the sense in which the law-giver used the word in sec 3 of Act 50 of
1956".
After referring to the definitions of the word "mineral"
to be found in a number of pre-Union and post-Union statutes,
and having quoted from a number of earlier decisions on the
meaning
58.
meaning of the word "mineral" in differing contexts, VAN WINSEN, J reached
the conclusion that kaolin was in fact a "mineral"; that
the parties had
correctly described their lease as a lease of mineral rights; and that the lease
in question fell within the ambit
of sec 3 of Act 50 of 1956. The reasoning
which led the learned Judge to the above conclusion is stated thus (at
587H/588F)of the
judgment in the
Belville-Inry
case:-
"Although sub-sec (2) of sec 3 of Act 50 of 1956 was only introduced by sec
33(1) of Act 80 of 1964 the section must now be read as
amended. It becomes
apparent, therefore, that when reference is made in sub-sec (1) to 'rights to
minerals in land' the Legislature
had in mind that these rights included such
rights as those acquired under laws relating to prospecting and mining. At the
time that
the amendment was introduced the law relating to prospecting and
mining contracts had not yet been consolidated by the terms of Act
20 of 1967,
but the pre-Union legislation in the four colonies made provision for the
acquisition under their terms of a right to
prospect for minerals and to acquire
rights to minerals. The rights so acquired were in relation to minerals as
widely defined in
such enactments.
Clearly
59.
Clearly it is appropriate to harmonise the meaning of 'rights to minerals' as
used in the two subsections of sec 2. If the word 'minerals'
is to have a wide
meaning when the rights in relation thereto are acquired under a law relating to
pro= specting or mining (e g,
under the now repealed provisions of sec 3 of Act
39 of 1942) then the word should have the same meaning where the rights are
acquired
other than via such laws, that is, where the rights are acquired under
contract with the owner of the ground on which the minerals
are situate. With
respect to aspects of the reasoning in certain of the.above-quoted cases, I find
it difficult to conceive why a
statute should be so interpreted as to attach a
meaning to a word like 'minerals' narrower than that assigned to it by
definition
in a number of statutes especially concerned with minerals and the
rights associated therewith. More especially is this so when the
dictionary
meaning of the word in its more restricted sense generally accords with the
definition contained in the relevant statutes
(I use the phrase 'more restricted
sense' to distinguish this meaning from the more general one, viz. that
'mineral' is anything
not animal or vegetable). According to the evidence kaolin
is the main raw material in the manufacture of china. It therefore has
not
inconsiderable commercial value as a constituent element of a manufactured
article. To achieve its recovery from the ground it
is necessary to mine for it
in the sense that . the overburden (sand) under which it lies has to be removed.
To this extent kaolin
would seem to differ from clay found lying on the surface
of the ground."
The
60.
The review of the decided cases undertaken above clears the
way for a consideration of the matters in issue in this appeal. Accordingly
I
turn to an examination of the reasons which prompted HATTINGH, AJ to dismiss the
main application. In what had been said by RUMPFF,
JA in the Fal
con
case,
(
supra
), the learned Judge in the Court below found (at 197A/B) no
statement in derogation of the authority of either
Donovan
's case,
(
supra)
, or the
Erasmus
case, (
supra
). As to the meaning of
the word "minerals" in its popular sense HATTINGH, AJ indicated (at 197 B/C) his
agreement with the conclusion
reached in the Loubser case, (supra), that in this
regard the
Donovan
and E
rasmus
cases represented binding
authority.
Dealing next with the definition of the term "Rights to Minerals" in the
notarial deeds in the instant case, the learned Judge reached
the following
conclusion:-
"It
61.
"It was contended that the fact that the right to sand and clay are expressly
excluded from the definition of minerals, is of great
importance to indicate
that the parties were not using the word 'minerals' in its popular sense. It is,
I think, clear that the ordinary
meaning of the word 'mineral' in South Africa
does not include stone, ground, sand and other like substances. Accordingly I am
left
unpersuaded by the submission on behalf of the applicant and find that the
meaning ascribed to the word 'mineral' in its extended
sense in the relevant
clause, as intended by the parties concerned, is as used in its normal sense,
and thus, excluding stone."
For the sake of
convenience I here repeat the opening words of the relevant clause in which,
both in the 1964 deed and in the 1966
deed, the term "Mineral Rights"
is
defined:-
"THAT the term 'Mineral Rights' shall include:-
All rights to minerals of whatsoever nature,
including precious and base
metals, precious
stones and mineral oils
other than the
rights
to sand and clay
in, on, under "
It seems to me, with respect, that in construing the relevant
clause
62.
clause to exclude stone the learned Judge failed to
appreciate the true significance of the exclusionary words "other than the
rights
to sand and clay" in the particular context in which they occur. I am not
sure that I grasp the process of inference which led the
learned Judge to his
conclusion that the term "mineral rights" in clause 2 did not include rights to
stone. It seems to me, however,
that the reasoning of the Court below might have
been somewhat as follows: (1) Certain substances which belong to neither the
vegetable
nor the animal kingdom are nevertheless, in colloquial speech, not
regarded as "minerals". (2) Within the class mentioned in (1)
are substances
like sand, clay and stone. (3) Clause 2 defines "minerals" so as to exclude sand
and clay. (4) Since sand and clay
fall within the class mentioned in (1) it must
have been the intention of the parties also to exclude stone. If indeed the
Court
below so reasoned, such reasoning was, with respect, logically unsound.
The fact that common parlance assigns a restricted
meaning
63.
meaning to the word "mineral" does not give the Court a
licence to go behind the clear language of a particular contract. The
construction
put upon Clause 2 by the Court below seems to me to involve a
departure from its ordinary and grammatical meaning; and a narrowing
of the
scope of the phrase "rights to minerals" by reading into the clause words which
are not in it. A more natural exposition of
the clause is, I consider, the
following: The specific exclusion of sand and clay indicates that on the wide
meaning which the parties
themselves assigned to the phrase "minerals of
whatsoever nature" the parties appreciated that sand and clay, unless
specifically
excluded there from, would be included thereunder. On that
interpretation stone clearly falls within the clause. In argument counsel
for
the second and fourth respondents sought to explain away the words"other than
the rights to sand and stone" by suggesting that
the parties had intended to use
"minerals" in a colloquial sense not
including
64.
including stone; and that the exclusionary words had been inserted in clause
2 simply, as counsel put it, to make assurance doubly
sure. To my mind this
suggestion lacks cogency. Had the parties in fact been at pains to exclude stone
they would have manifested
such intention by appropriate language. The words in
fact employed by them point the other way. (See further in this regard: M 0
DALE
in 1983
Annual Survey
of S A Law p251; J C LAMBBRECHT (1984). 9
TRW
pp 98-99; (1984)
De Rebus
p 484).
For the reasons aforegoing I respectfully disagree with the construction put
upon the clause by the learned Judge in the Court below.
In my opinion the
ordinary and grammatical meaning of clause 2 of the notarial cession of mineral
rights in the present case is such
that it includes rights to stone.
Consequently it becomes necessary to consider whether in terms of sec 3(1)(m) of
Act 47 of 1937
the first respondent was legally obliged to
register
65.
register the cession.
The ambit of the phrase "rights to minerals" in sec 3(1) (in) of Act 47 of
1937 has not so far been the subject of a decision by this
Court. It is true
that in the F
alcon
case, (
supra
), RUMPFF, JA adverted briefly (at
398 D/F) to the finding in the
Eras
mus case, (
supra
); and that in
so doing the learned Judge neither commented upon nor questioned the correctness
of the decision in that case. However,
inasmuch as RUMPFF, JA was careful to
point out (at 403B) that in the
Falcon
case this Court was -
"....not concerned with a contract between parties concerning mineral rights
or with legislation dealing with the registration of
such contracts."
his passing reference to the
Erasmus
case does not, I
consider, amount to an endorsement either of the finding
in that case or the reasons underlying it.
The
ratio
of the judgment in the
Erasmus
case
is
66. is that no good reason exists for believing
that in sec3(l)(m) of Act 47 of 1937 the Legislature intended to invest the word
"minerals"
with any unusual meaning; and that to construe the word "minerals" in
the sub-section as signifying its widest meaning would involve
incongruous
consequences. The cornerstone of the judgment in the Erasmus case was, I think,
the view of the learned Judge (expressed
at 792 C/D) that neither at the time of
the application (the year 1968) nor in the year 1937 when the
Deeds Registries
Act was
passed were sand,and stone regarded as "minerals" in the usual sense of
the word.
Here a few general observations on the "popular" or "usual" meaning, in
common parlance, of the word "minerals" may not be out of
place. One must guard,
perhaps, against an assumption that in colloquial speech the word "minerals" is
a static or rigid concept
having an
immutable
67.
immutable content. To a particular community at a particular stage of its
history and development the ambit of that word in colloquial
language will be
governed by a number of considerations, not the least significant among which
are likely to be the intrinsic value
and the possibility of commercial
exploitation of the various non-organic substances to be found in the soil of
the country in which
the community lives. In one age a non-organic substance
derived from the earth's crust may be regarded by the man in the street as
insignificant and worthless. In a later era scientific and technological
advances may have led the average citizen to recognise that
the same substance,
formerly despised, is a valuable commodity capable of successful commercial
exploitation. In this way the range
of the popular meaning assigned to the word
"minerals" may with the passage of time undergo evolutionary change; and the
compass
of its usual meaning may be enlarged. Such an evolutionary process is
not only probable but inevitable in a country such as
the
68.
the Republic of South Africa. Although large
tracts of our land are unsuitable for intensive agricultural develops ment our
soil has
been endowed with mineral resources which are at once both vast and
varied. These include a number of base minerals vital to the
industries (I use
the word in its widest sense) of major foreign powers. We live in a country in
which the exploitation of minerals
represents an important part of the economy
and a substantial portion of the national product. According to the latest
(1984) Official
Yearbook of the RSA some 85% of the production of the minerals
industry, involving the exploitation of more than fifty different
minerals, is
exported. There are doubtless today generally accepted as "minerals" in the
ordinary sense of the word many non-organic
substances bearing exotic names
whose very existence - let alone the possibility of their profitable commercial
exploitation - were
undreamt of by the worthy members of the old Transvaal
Volksraad.
Moreover,
69.
Moreover, in a country in whose daily existence the
exploitation of minerals looms so large that its various facets are
comprehensively
regulated by legislation, it is further inevitable that the
ordinary and popular sense of the word "minerals" will be influenced
and moulded
by the various legislative enactments governing "minerals". In South Africa the
exploitation of minerals is governed
by legislation which has, with the passage
of time, proliferated and become increasingly elaborate. In all these
circumstances it
may well be open to doubt whether in 1985 the word "minerals"
in common parlance in South Africa carries the same connotation borne
by it
ninety years ago when the
Donovan
case, (
supra
), was decided.
However, the words of a statute must be construed (unless subsequent
legislation declares otherwise) as they would have been interpreted
on the day
when the statute was passed. In the instant matter we are concerned with a
statute
70.
statute passed in 1937, and it is therefore in the setting
and prevailing circumstances of that time that the mind and purpose of
the
legislature, as expressed in the language of
sec 3(1)(m)
, must be defined.
There being no definition in Act 47 of 1937 of the meaning to be assigned to
the word "mineral" in sec 3(1)(m) of the Act, we have
to look at the ordinary
and natural meaning of the word, unless that meaning is displaced by anything
contained in the Act. But in
so trying to construe the word "mineral" the matter
must not, I think, be approached through the eyes of a reader who is entirely
ignorant of or completely unschooled in the subject-matter of sec 3(1)(m). The
nature of the inquiry to be undertaken in this sort
of situation is neatly
expressed in a dictum of POLLOCK B in the decision of the Exchequer Division in
Grenfell v The Commissioners of Inland Revenue
(1876)
45 LJQB 465.
That
was a case involving the construction of
the
71. the English Stamp Duty Acts. In the course of his judgment (at
472) POLLOCK, B remarked:-
" I think that it was very properly urged
by Mr
Gorst
that this statute is not to be construed merely according
to the strict technical meaning of the language contained in it, but that
it is
to be construed in its popular sense, meaning of course, by the words 'popular
sense', that sense which people conversant with
the subject matter with which
the statute is dealing, would attribute to it."
Now in the year 1937 in South Africa a person conversant with cessions and
leases of rights to minerals would have known that there
already existed a
number of laws dealing with "minerals" in which laws a definition of that word
is to be found; and that in such
enactments "minerals" are often comprehensively
defined. In the
Belville-Inry
case, (
supra
), at 586 F/G, VAN
WINGER, J correctly pointed out that the pre-Union laws dealing with. minerals
contained very wide definitions
of base minerals. So, for example, it was
provided in the Cape Mineral Law
Amendment
72.
Amendment Act, 16 of 1907, that the term "Base
Minerals":-
"... shall be held to mean Asbestos, Building Stone, Cinnabar, Clay, Cobalt,
Copper, Crocidolite, Gypsum, Iron, Lead, Manganese, Magnesite,
Nickel, Natural
Gas, Oil, Salt, Slate, Tin and such other minerals, not being Gold, Silver or
Platinum, as may from time to time
be declared to be base minerals by
Proclamation by the Governor."
And in the Transvaal sec 3 of the Precious and Base Metals Act, 35 of 1908,
(the Transvaal Gold Law), defined "base metals" as meaning:-
"... quicksilver, iron, lead, copper, tin, zinc, cobalt, nickel, arsenic,
manganese, antimony, bismuth, as well as the ore of such
metals, and sulphur,
coal, graphite, or any other mineral substances for the exploitation of which no
special provision is made by
law."
The broad definition of "mineral" in the post-Union Mines & Works Act, 12
of 1911, has already been mentioned in the discussion
of the decision in
R v
Day and Others,
(
supra
).
In
73. In passing it may be noticed how extensively that word was
defined in the Republican precursor to Act 12 of 1911. Paragraph C
of Chapter II
of Act 12 of 1896 (Mijnregulasies), stated:-
"Het woord 'Mineraal' zal insluiten alle stoffen die door mijnbewerkingen,
met het doel om er winst uit te maken, uit die aarde verkregen
kunnen
worden."
Turning to post-Union legislation preceding the passing of
the the
Deeds Registries Act in
1937, one sees that definition
of "base metals" in the Transvaal Gold Law was considerably
expanded by
the Mineral Law Amendment Act, 36 of 1934,
sec 1 whereof .substituted the
following new definition
therefor:-
"..'base metal' shall mean any mineral substance other than precious metals
or stones as defined in section one hundred and sixteen
of the Precious Stones
Act, 1927 (Act No 44 of 1927) or water."
It
74.
It is significant that the scope of the above definition is
so broad that the Legislature deemed it necessary expressly to exclude
water
therefrom. (Cf. the remarks of JANSEN, J in
S v Funchall
, (s
upra
),
at 54 E/G, quoted earlier in this judgment; and the comments of RUMPFF, JA in
Falcon case,
(supra)
, at 402 F, in relation to the definition of "base
metal" in the Base Minerals Act, 39 of 1942.)
The Native Trust and Land Act, 18 of 1936, regulates,
inter alia
,
prospecting or mining on Trust Land. Sec 23(1)(c) of that Act provides that for
the purposes of sec 23 -
" minerals shall be deemed to include all
metals, precious or base, precious stones, and all clays, stones, earths,
coals, oils or other mineral substances of whatever nature
which may be dug or
extracted or separated from the ground."
It is usual to credit the Legislature with a knowledge of the existing law on
the subject dealt with.
In
75.
In order properly to interpret a statute a court
is entitled, and in some cases bound, to look at earlier statutes dealing with
the
same subject-matter. That for purposes of judicial construction of a more
recent statute an examination of . earlier statutes dealing
with like topics
affords a useful aid is an established principle of our law. See, for example,
Eckhard,
Hermeneutica Iuris,
editio nova' Chap.XVIII, p803, axiom IV;
Chap XXI, p806. That principle of interpretation was profitably invoked by
RUMPFF, JA in
the
Falcon
case, (
supra)
, and by VAN WINSEN, J in
the
Belville-Inr
y case, (
sup
ra). It seems to me, with respect,
that in seeking to construe the word "mineral" in sec 3(1)(m) of Act 47 of 1937,
the definitions
of that word to be found in earlier relevant statutes constitute
not merely a permissible but an essential source of guidance. So
approaching the
problem of interpretation in the present appeal I find myself in entire
agreement with the view expressed in the
Belville-Inry
case (at 588 C) in
the following words:-
" ... I
76.
" I find it difficult to conceive why a
statute
should be
so interpreted as to attach
a meaning to a word like 'minerals' narrower than that assigned to it in a
number of statutes especially
concerned with minerals and the rights associated
therewith."
Furthermore, freely adapting to the facts of the present appeal
the
language of RUMPFF, JA in the Falcon case, (
supra)
,-at
405 C/D, I likewise find it difficult to envisage why Parliament
would
have wished to confine the ambit of the word "mineral"
in sec 3(1)(m) to a narrow meaning which would exclude a
substance like stone, whose economic exploitation can often be
most
valuable and in the public interest. In the Falcon case
the Court was concerned with a type of rock called andesite.
Some indication of the profitability of that substance may be
afforded by the fact (to which reference is made at 393H) that
at the time of the application to the Witwatersrand Local
Division the total cost of the quarrying project and
stone-crushing plant had been approximately R3,3 million. The
profitability of exploiting the stone with which the present
appeal
77.
appeal is concerned may be gauged from the fact that when the
appellant sold to Constone all the rights to stone in respect of the
property
the former agreed to pay the latter for a period of 5 years from 1 January 1982
the sum of R1OO 000,00 per annum; and as
from 1 January 1987 a royalty
calculated at the rate of 3% per annum of the net bin price of crushed stone
recovered from the property
and sold thereform, subject however to a minimum
royalty of'R2 000,00 per month.
It is obvious, of course, that not every stone and pebble or every deposit of
rock has appreciable value. But since it is no less
clear that certain types of
stone do have considerable value it follows, I think, that in any discussion as
to the possible status
of stone as a mineral the factor of value must of
necessity loom large. This is for the reason that - as is evidenced by a number
of the statutory definitions and some of the judicial pronouncements
considered
78.
considered earlier in this judgment - in the process of
trying to decide what non-organic substances are to be ranked as "minerals"
and
what are not, the value of the substance concerned is almost invariably employed
as one of the criteria. And in my opinion this
criterion assumes parti= cular
significance when one has to construe any statutory provision which is concerned
with the registration
of rights in respect of minerals. Because, as was pointed
out as long ago as in 1903 by INNES, CJ in the
Br
i
ck and Potteries
case, (supra), at pp 480/481, it is with regard to mineral substances of great
value that the registration of grants of rights in
respect thereof is "a matter
of the utmost importance in this country."
While in the
Erasmus
case, (
supra
), reference was made (at 791
A/C and again at 792 F/G) to the definition of "mineral" in Act 12 of 1911, the
tenor of definitions
of the word in statutes preceding Act 47 of 1937 was not
relied upon in construing sec 3(1)(m). Nor, as far as one
is
79.
Is able to judge from the report of the decision in the
Erasmus
case, was the factor of intrinsic value, to which I have alluded,
either relied upon by counsel in support of the application or
weighed by the
learned Judge in dis= missing it. ' It seems to me, with respect, that in its
interpretation of sec 3(1)(m) the Court
in the
Erasmus
case erred in
overlooking the two considerations to which I have called attention.
In my view the Legislature appreciated that the concept of a "mineral" is a
flexible and elastic one which is fully capable of (and,
indeed, in the circum=
stances of this country, inclined to) expansion with the passage of time; and
the Legislature therefore elected,
wisely in my opinion, not to attempt any
definition of the word for the purposes of sec 3(1)(m). I consider that in so
doing Parliament
was deliberately making provision for the important matter of
enabling registration to be effected of valuable rights in respect
not only of
mineral substances
known ........
80.
known and accepted as such in 1937, but in regard also to
those mineral substances then known but as yet not capable
of profitable economic exploitation; and in regard also to mineral substances
as yet quite undiscovered. If this view of the matter
be sound then it is
natural to suppose that the Legislature intended a wide meaning to be assigned
to the word "mineral" in sec 3(1)(m).
And it seems to me that unless this
interpretation involves consequences which are manifestly absurd or unreasonable
such a wide
meaning should be accepted as the true construction.
It does not appear to me that a construction of sec 3(1)(m) which puts a wide
meaning upon "mineral" is attended by incongruous consequences.
In the
Erasmus
case, (
supra
), at 791 D/H, the learned Judge reasoned that
if the word in that sub-section were to bear its widest meaning a lessee of
mineral
rights would be entitled to remove all the top-soil on the property and
so render worthless the rights
of
81. of the owner of the land; and the_learned Judge found any
suggestion that the rights of the lessee were so extensive
to be untenable and irreconcilable with the tendency of
our law to maintain a balance between the competing claims of
the owner and the lessee of the mineral rights. In weighing
the cogency of the abovementioned reasons, however, the
following considerations appear to me to be relevant. The
first point to be noticed, I think, is this. I have already
mentioned that
in the
Erasmus
case the case advanced on behalf
of the applicant was
that there should be assigned to the word
"mineral" in sec 3(1)(m) the
widest
meaning of the word; and
it was on that footing that the Court dealt with the applica=
tion. As
RABIE, J pointed out (at 790B) the widest meaning
would include, for example,
"alle grond, klippe en selfs water.'
It is, however, not necessary to postulate the widest meaning
of the word
in order to reach a conclusion that "mineral"
in sec 3(1)(m) includes stone. The question is rather
whether or not
between its broadest and narrowest significa=
tions the word "mineral" is susceptible of an intermediate
meaning
sufficiently wide to compass stone. Further, an
affirmative
82.
affirmative answer to the last question does not entail, so I
consider, any consequence at odds with the tendency of our law to reconcile,
as
far as possible, the competing claims of the mineral lease holder and the
surface owner. Although our law tries to strike such
a balance a situation may
well arise in which the conflict of rights is insoluble. In such a situation the
rights of the mineral
holder prevail. The matter is put thus by MALAN, J in
H
udson v Mann and Another
, (supra), at 488 D/G:-
"The principles underlying the decisions appear to be that the grantee of
mineral rights may resist interference with a reasonable
exercise of those
rights either by the grantor or by those who derive title through him. In case
of irreconcilable conflict the use
of the surface rights must be subordinated to
mineral exploration. The solution of a dispute in such a case appears to me to
resolve
itself into a determination of a question of fact, viz., whether or not
the holder of the mineral rights acts
bona fide
and reasonably in the
course of exercising his rights. He must exercise his rights in a manner least
onerous or injurious to the
owner of the surface rights, but he is not obliged
to forego ordinary and reasonable enjoyment merely because his operations or
activities
are detrimental to the interests of surface
owner."
Last
83. Last but not least, the
following comments on the reasoning adopted in the
Erasmus
case made by
Franklin and Kaplan,
The Mining and Mineral Laws of South Africa
, at
p589, seem to me to be logically correct:-
"Lack of registration of a contract otherwise binding between the parties can
in no way ' protect the surface owner from or prevent
the destruction of the
surface of the land, if that is what the contract contemplates."
Having due regard to the scope and purpose of sec 3(1)(m) of Act 47 of 1937,
and with all respect to the contrary judicial opinions
expressed in some of the
decisions which have been cited in this judgment, I arrive at the conclusion
that the word "mineral" used
in that sub-section is apposite to express a
meaning wide enough to include such stone as has a value apart from its mere
bulk and
weight, and which is obtained from the crust of the earth for purposes
of profit; and I am satisfied that this is the true construction
to be put upon
it. In my view an
interpretation
84
interpretation of sec 3(1)(m) narrower than the
one
indicated above would render the sub-section inefficacious.
For the
purposes of the present appeal it is neither
necessary nor desirable to
determine more precisely the
ambit of the word "mineral" in sec 3(1)(m), and
I expressly
refrain from any such attempt.
It follows that insofar as the conclusions reached in the
Erasmus
case, (
supra)
, are at variance with the views expressed in the preceding
paragraph of this judgment the
Erasm
us case should be regarded as having
been wrongly decided. Having regard to the peculiar facts of the
Erasmus
case the following observation affecting the function and duties of the
Registrar of Deeds in terms of sec 3(1)(m) may be necessary.
On the facts stated
in the
report
85. report of the
Erasmus
case it
would seem that the parties to the lease did not themselves regard the rights
granted thereunder as "rights to minerals".
The relevant substances (sand and
stone) were not described as minerals in the lease. Whether in terms of sec
3(1)(m) the Registrar
of Deeds has any duty to register a notarial cession or
lease granting rights to a substance which may on a proper interpretation
of
that sub-section be a "mineral" but where the notarial deed itself does not
describe the rights thereunder granted as rights to
minerals, is a matter which
does not arise for decision in the present appeal and one which I prefer to
leave entirely open.
I have already noted my finding that upon a proper construction clause 2 of
the notarial deed of cession of mineral rights in the
instant case includes
rights to stone on the property. The affidavits filed in support of the main
application sufficiently establish,
in
my
86.
my view, that the stone on the property has a value apart
from its mere bulk and weight, and that it can be quarried for the purposes
of
profit. In these circumstances, so I consider, the first respondent is legally
obliged to register the notarial deed of cession
in question. It follows that
the Court below erred in dismissing the main application and that the appeal
should succeed. However,
since the second and fourth respondents were entitled
to resist the appellant's application for condonation, and inasmuch as a
consideration
of that application required the merits of the appeal to be fully
argued, it is appropriate that the appellant should bear the costs
both of the
application for condonation and of the appeal.
In the result the following orders are
made:-
(A)
87.
(A)
Condonation
is granted in respect of the appellant's failure timeously to apply for leave to
appeal.
(B)
The appeal succeeds and the order
of the
Court below is altered to read:
"The application is granted and orders are made in terms of paragraphs (a)
and (b) of the.notice of motion dated 17 August 1982".
(C) The appellant is to pay the costs of the
application for condonation
and the costs
of the appeal.
G G HOEXTER, JA
KOTZé JA ) JOUBERT, JA )
TRENGOVE, JA ) Concur
BOTHA, JA )