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[1985] ZASCA 100
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Wiseman v De Pinna and Others (126/85) [1985] ZASCA 100; [1986] 1 All SA 341 (A) (25 September 1985)
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION
)
In the matter between:
EDWIN WISEMAN
appellant
and
MICHAEL DE PINNA
1st respondent
WILLIAM DOUGLAS PORTEOUS
2nd respondent
ELDORADO COLU MINES ( PTY) LIMITIED)
3rd respondent
Coram
: Corbett, Joubert, Helen
et Grosskopf, JJA, et Nicholas, AJA.
Date of hearing
: 12 September 1985
Date of judgment
:
J U D G M E N T
CORBETT JA:
At the time of
his death on 10 February 1978 the late Mr A W Carl in (" the deceased") was the
holder of certain claim licences in
respect of some 200 base mineral.
/ claims
2
claims on the farm Louieville, situated in the
mining district of Barberton, Transvaal. The licences had been issued in terms
of the
Mining Mights Act 20 of 1967 ("the Mining Rights Act"). In his will the
deceased appointed his surviving spouse, Mrs Doreen Carl
in, his sole heiress
and executrix in his estate. As sole heiress Mrs Carlin became entitled to the
aforementioned base mineral,
claims and when the estate was wound up she was
awarded these claim licences in the distribution account. During his lifetime
the
deceased had entered into an agreement with Edwin Wiseman (the appellant) in
terms whereof appellant became entitled to a half share
in the claim
licences.
On 3 November 1980 Mrs Carlin and appellant entered into a written agreement
with Michael de Pinna (first respondent) and William
D Porteus (second
respondent). The preamble to the agreement describes Mrs Carlin and appellant as
the beneficial owners/holders
of the aforesaid mineral
/ claims
3
claims and indicates that first and second respondents contract in their own
capacities or as "nominees for a company". The agreement
records that in return
for certain periodic payments (called in the agreement "option monies") Mrs.
Carlin and appellant (called
"the GRANTOR") grant certain rights to the other
contracting parties (called "the COMPANY"), which rights are to commence on 10
November
1980 and terminate on 10 December 1985 (this being termed "the OPTION
PERIOD"). The principal rights so granted are contained in
clauses 4 and 5 of
the agreement, which read as follows:
"4. The GRANTOR hereby grants to the COMPANY
which hereby accepts the sole and exclusive rights to carry out prospecting
and mining either by itself or through its authorised
representatives and/or
nominees at its absolute discretion upon the aforesaid CLAIMS during the OPTION
PERIOD and shall in the performance
of such prospecting and mining comply with
all laws and regulations governing prospecting and mining.
5. The GRANTOR grants to the COMPANY which hereby accepts, the sole and
exclusive option
/ exercisable....
4
exercisable during the OPTION PERIOD to take transfer of the LICENCES in its
own name or that of its nominee and the GRANTOR undertakes
to sign ail documents
necessary to give effect thereto."
This agreement was not notarially executed.
On 24 November 1980 appellant and first and second respondents entered into a
further agreement, referred to in the papers as "the
Shareholders Agreement", in
terms whereof it was agreed to set up a company in which the parties would
subscribe for shares, with
the object of exploiting the claims. This was done. A
company named Eldorado Gold Mines (Pty) Ltd (third respondent) was incorporated
and appellant and first and second respondents subscribed for shares in the
company. The company ratified and adopted the agreement
of 3 November 1980.
Appellant was appointed manager of the company and was put in charge of its
mining operations on the claims.
/ It
5
It appears that at some stage a block of 50 of the base mineral claims had
been converted to precious metal claims; and that the object
of first and second
respondents in acquiring rights to the claims was to search Cor and mine gold,
using third respondent as their
instrument. In due course the third respondent
took possession of the claims and commenced operations. Not long thereafter
appellant
left the employ of the company and in July 1982 his shares were taken
over by first and second respendents.
I
n August 1982 Mrs Carl in (as first applicant) and appellant (as
second applicant) made application on notice of motion, citing the
respondents
and claiming an order declaring the agreement entered into between them and
first and second respondents on 3 November
1980 to be invalid, an order that the
respondents vacate the claims in question, and certain ancillary relief.
The application was based upon the contention that
/
the
6
the agreement of 3 November 1980 fell within the compass of sec. 3(1) of the
General. Law Amendment Act 50 of 1956 and was invalid
for want of notarial
attestation. Sec. 3 of Act 50 of 1956, as amended hy sec. 33(1) of Act MO of
1964, reads as follows:
"3. (1) No lease of any rights to minerals in land and no cession of such a
lease shall be valid if executed after the commencement
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 gran ted or acquired under any law relating
to prospecting or
mining or to any cession of any such lease."
The matter came before VAN REENEN J in the Transvaal Provincial Division. He
hold that the agreement in question fell within the terms
of sec. 3(1) and was
not exempted by the terms of sec. 3(2). There having been
/ no
7
no notarial attestation, he declared the agreement to be invalid and awarded
the costs of the application to Mrs Carlin and appellant.
In regard to the claim
for vacation of the claims, the learned Judge issued a rule
nisi
, the
terms of which need not he detailed. Respondents appealed to the lull Bench of
the Transvaal Provincial Division, which allowed
the appeal and substituted an
order dismissing the application with costs. The judgment of the lull. Bench has
been reported (see
De Pinna and Others v Carlin and Another
1984 (2) SA
710
(T) ). The Full. Bench agreed with VAN REENEN J that the agreement fell
under sec. 3(1), but held, contrary to the view of VAN REENEN
J, that it was
covered by the exemption conferred by sec. 3(2) and was, therefore, valid. Leave
to appeal to this Court was granted
by the Full bench.
The respondents have acquired the share of the claim licences to which Mrs
Carlin was entitled. She accordingly has fallen out of
the picture and the
appeal to us is prosecuted by appellant alone.
/ The
8
The question was raised with the appellant as to whether the leave of this
Court was not required in terms of sec. 20(4)(a) of the
Supreme Court Act'59 of
1959, as substituted by sec. 7 of Act 105 of 1982 . Counsel for appellant
submitted that, since the judgment
of VAN REENEN J was delivered and the appeal
to the full Bench noted prior to the coming into operation of sec. 7 of Act 105
of 1982,
sec. 20(4)(b), and not sec. 20(4)(a), applied, with the result that the
Full bench was the proper court to grant leave. In this connection
counsel
referred to the decision of the Full Bench of the Transvaal Provincial Division
in the case of
Video Parktown North (Pty) Ltd v Paramount Pictures
Corporation
1984 (2) SA 736
(T), which supports his submission. It seems to
me that appellant's counsel is correct and that the appeal is properly before
this
Court. No order need, therefore, be made on the formal application for
leave to appeal and for condonation, advanced in the event
of the appellant's
submission provining incorrect .
/ I come
9
I come now to the merits of the appeal. It seems to me that the First
question to be considered is whether the agreement of 3 November
1980 falls
within the ambit of sec. 3(1) of Act SO of 1956, as amended. This depends on
whether the agreement constitutes a "lease
of .... rights to minerals in land",
within the meaning of those words in sec. 3(1).
To anyone conversant with the mineral law of this country and its historical
development it is obvious that the words "lease of rights
to minerals", as used
in sec. 3(1), have a technical legal connotation. When the mining of minerals
started in the early days in
the Transvaal and elsewhere there evolved a type of
contract in terms whereof the owner of land in whom the rights to minerals on
the land were vested granted to another for a certain period the right to enter
upon the land for the purpose of prospecting and
mining and removing the mined
minerals from the land for his own benefit. Often there was added an option to
purchase.
/ In
10
In return for these rights the grantee paid to the owner a financial
remuneration, which could take various forms, eg. periodical
payments similar to
rental, a lump sum, a commission based on output, and so on. These contracts
came to be called "mineral leases"
or "leases of mineral rights" or "leases of
rights to minerals". As was pointed out in various early cases, the use of the
term "lease"
to describe this type of contract was inappropriate in that it
could not properly be classified as a lease at common Law (see eg.
Lazarus and
Jackson v Wessels and Others
1903 TS 499
, at p 506;
Neethling v Vesta
Cold Mining Co
1903 TH 404
; E
x parte Lanhams Executors
1908 TS 330
;
B
uys v South Rand Exploration Co. Ltd
1910 TPD 1058
, at p 1062; and see
also the later cases of
Edwards (Waaikraal) (i.M. Co. Ltd v Mamogale NO and
Bakwena Mines Ltd
1927 TPD 288
; D
rymiotis v Du Toit
1969 (1) SA 631
(T); cf. B
ozzone and Others v Secretary for Inland Revenue
1975 (4) SA
579
(A) ). In fact, the courts
/ experienced
11
experienced some difficulty in assigning such a contract to
its
proper juristic niche. The position was summed up by MARAIS
J in
Drymiotes v Du Toit
,
supra
, at pp 632 H to 633 B as follows:
"The 'mineral lessee' has the right to occupy the land for the duration of
the 'lease' and for the purpose of mining and removing
the mineral deposits the
subject-matter of the contract. In that limited respect the contract has
something of a lease of land. As
soon, however, as he has taken possession of
the portions he intends to remove from the land in terms of his contract, the
land-owner
cannot but lose his ownership in those portions. Ownership in the
minerals passes as soon as the 'lessee' takes possession of them.
That seems to
be an essential feature of the performance of a mineral lease.
The other elements in a mineral lease are the right to occupy the
mineral-bearing land for the purpose of extracting the minerals
and the payment
by the 'lessee' to the owner of the agreed remuneration. The latter may take any
commercial
form, such as periodic payments similar to a rental, a fixed or sliding scale
commission on the output of the mining operations, a
lump sum, and the like. It
matters little what the parties call the
quid pro quo
; the statutory
title of 'lease' itself is inappropriate."
(For convenience I shall henceforth refer to this type of
contract as "a
mineral lease".)
/ From
12
From early times legislators prescribed the formalities whereby,
inter
alia
, mineral leases could validly be concluded. There was, for example, a
Besluit of the Volksraad of the South African Republic, dated
12 August 1886,
requiring contracts concerning a cession of rights to minerals or concerning
rights to mine to be notarially executed
and registered at the office of the
Registrar of Deeds; and decreeing that any such contract which did not comply
with these formalities
would be void ab
initio
. (See
Whitford's
Executors v Solomon
1904 TS 773
, where this Besluit is considered.) In 1902
a Proclamation was issued (No. 8 of 1902, regulating the payment of transfer
duty), sec.
29(1) of which prescribed formalities for certain types of contract.
This sub-section read:
"No lease of any mynpacht, claim or right to minerals, and no lease of any land
or any stand for a period not less than ten years
or for the natural life of any
person mentioned therein, or which is renewable from time to time at the will of
the lessee indefinitely,
or for periods which
together
/ with
13
with the first period thereof amount in all to not less than ten years, shall
be of any force or effect if executed after the taking
effect of this
Proclamation unless executed before a Notary Public nor shall it be of any force
or effect against creditors or any
subsequent
bonâ
-
fide
purchaser or lessee of the property leased or any portion thereof unless it be
registered against the title deeds of such property."
In
Lazarus and Jackson v Wessels and Others
,
supra
, the Court
(consisting of INNES CJ and SOLOMON and WESSELS JJ) had to consider whether a
contract whereby the owner of a farm gave
to two individuals, in return for the
payment of an annual rental, the right to prospect on his farm for four years,
the right to
appropriate all minerals found during the course of their
operations and the option to purchase the farm, constituted a "lease of
a right
to minerals" within the terms of sec. 29(1) of the Proclamation. The Court held
that it did. INNES CJ said (at p 506) -
/ "Now
14
"Now, in my opinion this contract is a lease of" a right to minerals within
the terms of the section I have read.
Juristically speaking, it may perhaps be straining language to call such an
agreement an ordinary lease; but 1 am satisfied that the
legislature meant to
include in the term 'lease of a right to minerals' those mineral prospecting
contracts in return for the payment
of a yearly rent, and with or without option
rights which are so common in this country."
(See also
Munnik Myburgh Asbestos (Kaapsche Hoop) Ltd v
The Receiver of" Revenue
1927 WLD 98
;
Estate l)u Toit
v Coronation Syndicate Ltd and Others
1929 AD) 219.)
Act 5U of 1956 repealed sec. 29 of Proclamation 8 of 1902 (Tvl), as also sec.
51 of Ordinance 12 of 1906 (OFS), which contained a
provision similar to sec.
29(1), save that it related only to leases of rights to minerals or precious
stones. It is clear that sec.
29(1) of the Transvaal Proclamation and sec. 51 of
the Orange Free State
/ Ordinance
15
Ordinance were replaced by sec. 3 of Act 50 of 1956, which in
its pristine form consisted only of what is now sec. 3(1), the
amendment in 1964 adding what is contained in sec. 3(2).
As in the case of sec. 29(1), the words "lease of rights
to minerals" in sec. 3(1) have been held to relate to mineral
leases (see
Fuls v Leslie Chrome (Pty) Ltd and Another
1962 (4) SA 784
(W);
Nortje en 'n Ander v Pool, NO
1966
(3) SA 96 (A), at p 126 H;
Drymiotis v Du Toit
,
supra
;
Van Coller en Andere v Ocean Bentonite Co (Edms) Bpk
1979
(1) SA 1071 (1) en
1981 (3) SA 1167
(A) ).
It is not disputed by appellant that the term "lease of ... rights to
minerals" contained in sec. 3(1) relates to what I have called
mineral leases.
He contends, however, that the term is not confined in its application to such
contracts, but that it also covers
"leases" of claim rights by the holder of the
claim license. ELOFF J, delivering the judgment of the Court a
quo
stated
(see judgment at p 718 G) -
/ "In
16
"In the light of all these considerations I conclude that the phrase 'lease
of any rights to minerals in land' includes not only common
law mineral leases,
but also grants by claim licensees which include all the components of mineral
leases."
Appellant's counsel support this conclusion.
The claims which form the subject-matter of the agreement of 3 November 1980
were evidently pegged under the authority of claim licences
issued in terms of
sec. 48 of the Mining Rights Act. It is to be inferred (though this is not
expressly stated in the papers) that
the portion of the farm Louieville where
the claims are located has been proclaimed to be a public digging and to be open
to the
pegging of claims (see sec. 39). Now, the claims and claim licences
specifically provided for in 1967 by the Mining Rights Act are
legal entities
which manifestly did not exist in 1956 when Act 50 of 1956 was passed or indeed
when the amending Act 80 of 1964 was
enacted. The Mining Rights Act, however,
repealed and replaced the considerable body of mining legislation, much of it
pre-Union
statutes of the various provinces, which had
/ developed
17
developed by accretion over the years. In the main the policy and principles
of the mining laws in force in the Transvaal and the
Orange Free State were
retained and perpetuated in the Mining Mights Act. (See generally Franklin and
Kaplan,
The Mining and Mineral Laws of South Africa
, pp. 333-5.) Prior to
1967 and at the time when Acts 50 of 1956 and 80 of 1964 were passed the mining
of base minerals and precious
metals was regulated in the Transvaal by the
Precious and Base Metals Act 35 of 1908 (Tvl), as amended from time to time,
usually
called "the Gold Law". The Gold Law similarly made provision for the
proclamation of Land as a public digging, for a declaration
that the whole or
any portion of a public digging was open for the pegging of claims and for the
issue of "licenses" (called "prospecting
licenses") entitling the holders to peg
claims and to prospect and mine thereon. The Gold Law provided for claims in
respect of both
precious metals and base metals. The Gold Law, in
/ its
18
its turn, replaced statutes, mainly of the South African
Republic, including the Base Metals Law 14 of 1897 and the
Gold Law 15 of 1898, which made similar provisions for the
proclamation of public diggings, claims and prospecting
licences. The respective legal positions of the owner of
the land, the State and the holder of a claims licence under the
Gold Law
of 1898 were considered by the Transvaal Supreme Court
in the case of
Neebe v Registrar of Deeds
,
1902 TS 65.
WESSELS J
stated the position thus (at pp 85-6):
"By the Roman-Dutch law the ownership in the minerals lies in the
dominus
of the soil. The Gold Law has not entirely abrogated the common
law, but it has modified it to the extent of giving to the State
the right of
disposing of the precious metals. The Gold Law provides the machinery by which
the State disposes of these metals. The
farm is proclaimed and the owner's full
rights of ownership are, during the proclamation, suspended. The State allows a
person who
takes out a licence to go upon a certain area and take out minerals
within that area, so long as he pays his licence-moneys. The
usual licence is a
monthly one, and if the licence is not renewed when the period has expired the
claim lapses
/ to
19
to the Government. The Skate therefore confers the
privilegium
of
extracting minerals from a certain area upon the person who takes out a licence.
The amount he pays for the licence varies though
it never exceeds 20s. per
month, and is therefore in no way proportionate to the value of the claim.
The privilegium extends only to the extraction of minerals, for by art. 90
the disposal of the surface of a claim belongs to the Government,
and the
claim-owner can only use the surface for the purpose of working his claim."
In a separate judgment INNES CJ emphasized that there was
no contractual
consensus between the State and the claim-
holder and that the latter's
tenure was "one
sui generis
specially created by statute" (see pp 81
and 83; and
see also
Whitford's Executors v Solomon
1904 TS 773
,
at
p 776). These analyses applied with equal validity to
the Gold Law of
1908 (see
Princess Estate and Gold Mining Co Ltd v The Registrar of Mining
Titles
1911 TPD 1066
;
West Driefontein Gold Mining Co Ltd v brink and
Others
1963 (1) SA 304
(W) ). The last-mentioned case dealt especially
/ with
20
with the limited rights and benefits retained by the owner of the proclaimed
land, including the right to receive portion of the licence
moneys accruing to
the State from the licence-holders (see also
Johannesburg City Council v
'
Crown Mines Ltd
1971 (l) SA 709 (A), at p 721); but, as was pointed out
in
Waterval Estate and Gold Mining Co Ltd v New Bullion Gold Mining Co
Ltd
1905 TS 717
, at p 726, this right did not establish any
vinculum
juris
between the owner of the land and the licence-holder. (See also
judgment of SMITH J in
Neebe
's case,
supra
, at pp 90-1.)
Under the Gold Law a claim or the licence relating thereto could be
transferred: see secs. 35(2) and 43; and the same position obtains
under the
Mining Rights Act: see sec. 61(1). (See also
Neebe v Registrar of Mining
Rights
,
supra
.) It appears, too, that the holders of claims under the
Gold Law often granted "leases" of their claims for specified periods, the
"lessee" acquiring the
/ right
21
right to exercise for the period of the "lease" the claim-holder's rights, or
some of them in regard to the claim (see eg.
Cassell and Theron v Bedford
1923 WLD 27
;
cf
.
Graham v Local and Overseas Investments (Pty) Ltd
1942 AD 95
, at pp 107-8, dealing with the so-called "tribute agreement"). The
provisions of sec. 29(1) of Proclamation 8 of 1902.(Tvl), which
are quoted above
and deal,
inter alia
, with leases of claims, indicate that by then this
must have become a common practice. And, of course, in terms of sec. 29(1) such
leases of claims were subject to the same formal requirements as leases of
rights to minerals.
Sec. 29(1) provided that for the contracts therein referred to, which
included a lease of a claim and a lease of a right to minerals,
to be of any
force or effect against "creditors or any subsequent
bonâ
-
fide
purchaser or lessee of the property leased or any
portion thereof" it had to be registered against the title deeds of "such
property".
/ The
22
The general system of deeds registry, recording the ownership and
transfer of land and the creation of servitudes and other burdens
on Land, in
vogue in the Cape Colony was imported into the South African Republic
(H
outpoort Mining and Estate Syndicate Ltd v.Jacobs
1904 TS 105
, at p
109) and in 1866 a deeds registry under a Registrar of Deeds was established
(see Ordonnantie 3 of 1866). In terms of the early
Gold Law, however, title to
mining claims was registered by Gold Commissioners and later by the Mining
Commissioner or the Magistrate.
In 1902 there was established for the Transvaal
a Mining Rights Office, which was to be located in Johannesburg and was to be
supervised
by an official styled the Registrar of Mining Rights, for the
registration of titles to mining rights and leases thereof (see Proclomation
35
of 1902 (Tvl)). The law regulating the Deeds Office and the Mining Titles
Registration Office was consolidated by Act 25 of 1909
(Tvl); the former being
designated as the office for the registration of all deeds, such as deeds of
/ title .
23
title to immovable property, deeds of transfer, mortgage and other bonds,
antenuptial contracts, etc, and the latter as the office
for the registration of
all mining titles and Cities to stands on mining property and transfers and
cessions thereof. The Deeds Registries
Act 13 of 1918 consolidated the law in
force in Che Union for the registration of deeds. It repealed Act 25 of 1909
(Tvl), save in
so far as that Act related to mining titles and the Mining Titles
Office. Act 13 of 1918 was in turn repealed and replaced in 1937
by the
Deeds
Registries Act 47 of 1937
. This Act followed the general scheme of Act 13 of
1918 and it did not affect the work of the Registrar of Mining Titles in terms
of Act 25 of 1909 (Tvl). Thus at the time when Act 50 of 1956 was passed there
was, as regards the Transvaal, a clear general distinction
to be drawn between
the various Deeds Registries in the country in which broadly speaking title to
land and to real rights over land
were recorded in terms of Act 47 of 1937 and
the Mining Titles Registration Office in which title to mining
/ rights
24
rights was registered under the provisions of Act 25 of 1909 (Tvl).
In sec. 70, read with secs. 71, 72 and 73, of the
Deeds Registries Act of
1937
, as it was in 1956, it was provided that rights to minerals may be
separated from the ownership of land in four ways: (1) by an owner
transferring
land subject to a reservation in his favour of rights to minerals thereon or by
an owner establishing a township on
his land subject to such a reservation; (2)
by a reservation of rights to minerals in favour of the State (then termed "the
Crown")
included in grants of land by the State; (3) by the exclusion of the
rights to minerals in the land in any partition agreement relating.
to land held
in joint ownership; and (4) by the cession of the rights to minerals by the
owner of the land to another person. Such
separation may take place in
respect
/of
25
of a portion of the land or a share of the land and may be in respect of all
the minerals or of a particular mineral or minerals
(sec. 70(2)
). Where there
is such a separation of the rights to minerals, the party in whose favour the
reservation has been made is required
to take out a certificate of rights to
minerals, which is signed by the Registrar and registered against the title
deeds of the property
concerned and which, when so signed and registered,
constitutes the title to the rights to minerals
(sec. 71).
The general legal
effect of these provisions was considered in
Webb v Beaver Investments (Pty)
Ltd and Another
1954 (1) SA 13
(T), at pp 30-l. The severance of the rights
to minerals in respect of land from the title to the land is a procedure which
had long
been recognized in the law of the Transvaal and in earlier Legislation
(see
Nolte v Johannesburg Consolidated Investment Co Ltd
1943 AD 295
, at
p 315).
/ I revert
26
1 revert to the meaning of the words "lease of any rights to minerals in
land" appearing in
sec. 3(1)
of Act 50 of 1956. In my opinion, there is no
reason to believe that the Legislature intended these words to bear anything
other
than the
technical
Legal meaning which
they had acquired over the years (cf. Ui
tenhage Divisional Council v Port
Elizabeth Municipality
1944 EDL 1
, at pp. 6, 10;
Chequers Outfitters
(Bloemfontein) (Pty) Ltd v Sussman
1959 (3) SA 55
(O) at p 57 A-B;
Willis, NO v Registrateur van Aktes, Bloemfontein
1979 (1) SA 718
(0),.
at p 725 H). As I have indicated, it is not disputed that they refer to what 1
have termed a mineral lease. The essential question
is whether or not the
Legislature intended them also to cover a "lease" of his rights by the holder of
a claim licence. In my opinion,
for the reasons which follow, this question must
be answered negatively.
/ In
27
In the first place, there are, in my opinion, fundamental differences between
a lease of mineral rights held at common law by the
owner of the land or, where
the rights have been separated from the ownership of the land, by the holder of
such rights, on the one
hand, and a lease of his rights by the holder of claim
licences, which are held as a
privilegium
under the statutory laws
relating to the mining of minerals. The rights in respect of which the lease is
granted in each case are
different and they are separately recorded and
registered. This basic distinction was drawn in two early Transvaal cases:
Louw v Joffe
1903 TH 44
, and
Whitford's Executors v Solomon
1904
TS 773.
In
Louw
's case,
supra
, a donation of a certain mining
claim was held not to fall within the ambit of the Volksraad's Besluit of 12
August 1886, referred
to above. MASON J stated (at p 45):-
/ "Claims
28
"Claims are dealt with by special laws, and in my opinion the provisions of
the Resolution were not intended to refer to the claims
of" a gold field, which
are called into existence by special legislation, but to rights over property
granted otherwise than by the
issue of licences."
In the case of
Whitford's Executors
,
supra
, the
Supreme
Court of the Transvaal (consisting of INNES CJ and WESSELS
and
BRISTOWE JJ) came to a similar conclusion with regard
to an agreement whereby the holder of certain claims gave
an interest in
these claims to another. INNES CJ held
that a cession of claim rights could
not be construed as
a cession of "rechten op mineralen" within the meaning
of
the Besluit. He said that this was rendered clear by the
provisions of the Gold Law. He said (at p 776):
"From the Lime of the first Gold Law in this country every succeeding statute
has made provsion for the registration of claim licences,
and transfer of the
rights to those licences, by entry in the books of the mining commissioner. And
as the Volksraad always made
special provision in
/ that
29
that way for the transfer and cession of claims, 1 think they could not have
intended the words of the Besluit to cover contracts
with regard to cession of
claims. In my opinion, therefore, this agreement is not covered hy the terms of
the Volksraadsbesluit."
Of course, sec. 29 (1) of the Proclamation grouped together leases of claims
and leases of rights to minerals when enacting the requirements
for formal
validity and effectiveness against third parties, but what is significant is the
fact that these two types of lease were
separately named in the sub-section. In
other words, in conformity with the above-mentioned decisions, a lease of a
claim was regarded
by the law-giver as being something different from a lease of
a right to minerals. As regards the requirement of registration, the
section
speaks of the lease being registered against the title deeds "of such property".
This is a reference back to the words "property
leased". In the case of the
lease of a claim,
/ the
30
Che property leased is the claim and ' so it would seem that the registration
contemplated by the sub-section is against the claim
title as registered in the
office of the Registrar of Mining Rights _ or his predecessor or successor in
terms of earlier and later
Legislation. And this is in fact what was decided and
ordered in
Cassell and Theron v Bedford
,
supra
.
Although more tersely worded than sec. 29(1), sec. 3(1) of Act 50 of 1956
also provides for notarial attestation as a basic requisite
for validity and for
registration for validity against third parties. Sec. 3(1) also uses the same
term "lease of any right to minerals"
to denote its subject-matter, but
significantly the sub-section omits all reference to a lease of "any claim".
This omission leads
to the inference that, in enacting sec. 3(1), the
Legislature intended to deal only with what I have termed
/ mineral
31
mineral leases and not with leases of claims. This inference is greatly
strengthened by the registration provisions in sec. 3(1).
In contrast to sec.
29(1) which provided for registration against the title deeds of "such
property", ie the property leased, and
which would cover both registration in
the Deeds Office against the title deeds of the land concerned in the case of a
right to minerals
or a long lease, and registration against. the title deeds of
the claims in the office of the Registrar of Mining Rights (or his
successor
under later Legislation), sec. 3(1.) provides for registration against the title
deeds of the land concerned or the certificate
of rights to minerals concerned,
such registration clearly to be effected in the Deeds Office. This fits in with
the notion that
sec. 3(1) was concerned only with mineral leases and catered for
(a) the case where the lease was granted hy the owner of the land,
and (b) the
case where the rights to minerals had been separated from
/ the
32
the ownership of the Land and someone other than the owner, holding a
certificate of rights to minerals, (in terms of secs. 70-73
of the
Deeds
Registries Act 47 of 1937
, referred to above) granted the lease.
In this connection it is important to note that Act 47 of 1937 contains (in
sec. 3(m) ) a specific provision charging the Registrar
of Deeds with the duty
of registering,
inter alia
, leases or sub-leases of rights to minerals
(see also sec. 77). Having regard to the provisions of secs. 70-73, a lease of
rights
to minerals would seem to mean a mineral lease. Since sec. 3(1)
contemplates registration by the Registrar of Deeds, there is a close
connection
between sec. 3(1) and the provisions in Act 47 of 1937 to which I have alluded.
This is further support for the view that
sec. 3(1) has reference only to
mineral leases.
/ Obviously
33
Obviously the provisions in sec. 3(1) regarding registration in the Deeds
Office are a significant pointer to what was intended Co
be included in the term
"lease of any rights to minerals". It was submitted by appellant's counsel that
registration in the Deeds
Office of a lease of claim licences issued under the
Mining Rights Act, or previously under the Gold Law, is (or was) "notionally
possible" and in this regard relied on the reasoning of the Court a
quo
at pp 715 A to 717 H of the reported judg-ment. Appellant has, of course, placed
no evidence before the Court as to what the general
practice in these matters is
or has been in the past, but, knowing the legal background of case-law and
legislation, I would be surprised
to learn that the Registrar of Deeds would
accept, or could be obliged to accept, for registration against the title deeds
of the
land concerned or the certificate of rights to minerals a lease of claim
licences. However, I do not think it is
/ necessary
34
necessary to decide whether such registration is notionally possible. What
seems to me Co he more relevant as a pointer to what the
Legislature meant by
the words "lease of any rights to minerals" are the kinds of leases relating to
mineral rights which were ordinarily
and in accordance with accepted practice
regarded as being registrable in the Deeds Office. In my view, that would not
include leases
of claim licences.
This view seems also to accord with practical common sense. The contrary
view, in my opinion, would not. In the first place, the registration
of a lease
of claim licences against the relevant title deeds or certificate of rights to
minerals would presumably require the consent
of the owner of the land or the
holder of the certificate, as the case may be. In all but the most exceptional
type of case, the
owner/holder would not be party to the lease.
/ Moreover,
35
Moreover, by reason of the proclamation of a public digging the owner would
have been deprived of his beneficial ownership of the
land: while the land
remains proclaimed his ordinary proprietary rights are suspended. Why in the
circumstances should the owner,
or holder, give his consent to the lease of
claim licences? And if he did not, on what basis, if any, could he be compelled
to do
so? Another practical consideration is: what would be achieved by
registration against the title deeds or certificate, bearing in
mind that the
title to the claims themselves would be registered in the Mining Titles Office
and, as appellant's counsel conceded,
could not be registered in the Deeds
Office? Would such a registration in practical terms constitute effective notice
of the lease
to creditors of the claim licence holder and other interested third
parties? Furthermore, would not such registration merely duplicate
a
registration of the lease in the Mining Titles Office?
/ It
36
It is not necessary to answer these questions. Most of them are, in any
event, rhetorical. They demonstrate, in my view, the impracticality
of the
interpretation of sec. 3(1) advanced by the appellant.
Appellant's counsel argued that sec. 3(2) which
excludes from the provisions of sec. 3(1) -
"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"
supported his interpretation of sec. 3(1): see also the
judgment a
quo
at p 716 A-C, where the argument is set
forth.
Sec. 3(2) attracts its own problems of interpretation: witness the difference
of opinion as to its meaning between the Court of first
instance and the Court a
quo
, as also the opposing arguments in this regard presented to this
Court. In the circumstances and since I regard the
/ meaning
37
meaning of sec. 3(1) as being reasonably clear, I would not be inclined Co
place much reliance on sec. 3(2) as an aid to the interpretation
of sec. 3(1).
Accepting, however, that sec. 3(2), as a subsequent amendment, can in law be
used to throw Light on the meaning of
sec. 3(1) (see in this regard
New Mines
Limited v Commissioner for Inland Revenue
1938 AD 455
, at p 463; R
v
Correia
1958 (1) SA 533
(A), at p 540;
Davies v Gordonia Liquor Licensing
Board and Others
1958 (3) SA 449
(A), at p 453 H - 454 A) and assuming that
the amendment was not inserted ex
abundante cautela
simply in order to
allay a fear that the language of sec. 3(1) might be misconstrued (as to which
sec
Rex v Abel
1948 (1) SA 654
(A), at p 662), I am nevertheless of the
view that sec. 3(2), properly construed, has a field of operation which would
not detract
from the meaning that has been assigned to the words "lease of any
rights to minerals in land" in sec. 3(1); and in this connection
I would refer
to what is stated by Franklin and Kaplan
(op.
cit
. , at pp
/ 295-6):
38
295-6):
"The plain grammatical meaning of the words 'granted or acquired under any
law relating to prospecting or mining' in subsection (2)
indicates clearly that
what the legislature had in mind were prospecting and mining leases granted by
or acquired from the State
under the statutory provisions of the laws relating
to prospecting and mining, such as the Transvaal Gold Law then in force, the
Precious Stones Act 1927, the Reserved Minerals Development Act 1926, the Base
Minerals Amendment Act 1942 or similar legislation."
For these reasons I conclude that the agreement of 3 November 1980 was not a
"lease of... rights to minerals in land" within the ambit
of sec. 3(1) of Act SO
of 1956 and was consequently not invalidated by reason of the fact that it had
not been notarially attested.
I might add that in coming to this conclusion I
have not found it necessary or appropriate to refer to certain provisions of the
Mining Rights Act or the Mining Titles Registration Act 16 of 1967, which were
relied upon in argument hy counsel.
/ The
39
In view of this conclusion the question of the applicability of the exemption
provided for by sec. 3(2) does not arise.
The appeal is dismissed with costs, including the costs of two counsel.
M M CORBETT
JOUBERT, JA) NICHOLAS, AJA)