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[1991] ZASCA 108
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Ondombo Beleggings (Edms) Bpk. v Minister of Mineral and Energy Affairs (479/89) [1991] ZASCA 108; 1991 (4) SA 718 (AD); [1991] 2 All SA 508 (A) (19 September 1991)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
ONDOMBO BELEGGINGS (EDMS) BEPERK
Appellant
AND
THE
MINISTER OF MINERAL AND
ENERGY AFFAIRS
Respondent
Coram
: BOTHA, VIVIER, MILNE, EKSTEEN JJA et KRIEGLER,
AJA
Heard
: 5 September 1991
Delivered
: 19 September 1991
JUDGMENT
EKSTEEN
, JA :
The appellant was the plaintiff and respondent
the defendant -in the court a.
quo
. In its declaration
appellant
alleges:
"3. In or about 1979, Mr. S.P. Botha, in his then capacity as Minister of
Mineral and Energy Affairs, in terms of Section 4(1)(b)
of the Act, granted to
Plaintiff prospecting leases in respect of precious stones over portions of
State land then described as Sea
Areas 1 and 2 on the West Coast of the Republic
of South Africa, now known as Sea Areas 1A, 1B and 1C and 2A, 2B and 2C on the
West
Coast of the Republic of South Africa.
4. The Defendant disputes that the said pro-
specting leases were granted
to Plaintiff
as set out in paragraph 3 above.
5. In the premises, a dispute exists between
Plaintiff and Defendant as to
whether or not
the said prospecting leases were granted to
Plaintiff as
set out in paragraph 3 above.
..../ 2
2
6. Notwithstanding the grant of the said pro-specting leases to Plaintiff,
Defendant has failed and refused to determine the terms
and conditions of the
said leases in terms of Section 4(2) of the Act."
It
then goes on to claim:
"(a) An order declaring that Plaintiff was, in terms of Section 4(1)(b) of
the Precious Stones Act, No. 73 of 1964, as amended, granted
prospecting leases
in respect of precious stones over portions of State land formerly described as
Sea Areas 1 and 2 on the West
Coast of the Republic of South Africa, and now
known as Sea Areas 1A, 1B and 1C and 2A, 2B and 2C on the West Coast of the
Republic
of South Africa;
(b) An order directing the Defendant to determine
the terms and conditions
of the said
prospecting leases, in terms of Section 4(2)
of the Act;
(c)
Costs of
suit;
(d)
Further or altemative
relief."
..../3
3
In response to a request for further parti-
culars the appellant alleged i.a. that:
"1.1 Prospecting leases were granted to Plain-tiff during July 1979.
1.5
The leases were granted for
a period of 50 years.
1.6
The grants were in
writing. The then Minister of Mines S.P. Botha was in po-ssession of the grants.
Plaintiff is not in possession
of copies
thereof."
After giving appellant an opportunity
of
removing what respondent contended were vague and
embarrassing aspects
of the particulars of claim in
terms of Rule 23(1), respondent excepted to
the decla-
ration in the following terms:
..../4
4
"Defendant hereby excepts to Plaintiff's Particulars of Claim as being bad in
law on the following grounds:
1. Plaintiff's Particulars of Claim, as amplified by the Further Particulars
thereto, lack averments which are necessary to sustain
an action and therefore
it discloses no cause of action,
alternatively
, it is vague and
em-barrassing in that:
1.1
Plaintiff alleges that two
prospecting leases in respect of precious stones over portions of State land
were granted to it by the
Minister of Mineral and Energy Affairs in terms of
section 4(1)(b) of the Precious Stones Act, 1964, Act No. 73 of 1964, ('the
Act');
1.2
Plaintiff further alleges that
these leases were granted for a period of 50 (Fifty)
years;
1.3
Plaintiff further alleges that the
grants were in writing;
1.4
These allegations
of Plaintiff imply:
1.4.1 that the leases provide
for the matters set out in section 4(2) of the Act; and
.... / 5
5
1.4.2 that the leases in fact and in
law, comply
with the provisions of section 4 of the Act; and
1.4.3 that the leases are therefore prospecting leases
within the meaning
of, and as envisaged by, the
provisions of section 4 of the Act;
1.5
Plaintiff further alleges
that notwithstanding the grant of the prospecting leases to it, Defendant has
failed and refused to determine
the terms and conditions of the leases in terms
of section 4(2) of the Act;
1.6
If the terms
and conditions of the prospecting leases have not been determined in terms of
section 4(2) of the Act:
1.6.1
no prospecting lease
could have come into existence; and
1.6.2
no
prospecting lease could have been granted to Plaintiff by the Minister of
Mineral and Energy Affairs in terms of section 4(1)(b)
of the
Act.
2
Notwithstanding Plaintiff having been
afforded an
.... / 6
6
opportunity in terms of Rule 23(1) of the Uniform Rules of Court, of removing
the cause of Defendant's complaint, Plaintiff has failed
or refused to do
so.
WHEREFORE Defendant prays that the exception be upheld with costs and that
the particulars of Plaintiff's Claim be set aside with
costs."
The exception was upheld and appellant's particulars of claim were struck out
with costs. (The judgment is reported in
Ondombo Beleggings (Edms.) Bpk
.
v. Minister of Mineral and Energy Affairs
1989 (4) SA 309(T).)
Leave
having been granted by the Court a
quo
, the appellant now comes before us
on appeal against that order.
The exception turned primarily on the
inter-pretation of sections 4(1) and (2) of the Precious Stones Act No. 73 of
1964 ("the Act").
These two
.../ 7
7
sub-sections read as follows:
"4. Prospecting leases in respect of State land. -(1) The Minister may -
(a) by notice in the
Gazette
and in one or
more newspapers
circulating in the
area in which any State land or portion
of State land
in respect of which the
exclusive right of prospecting for
precious stones
has not accrued to any
person is situated, call for tenders
for a
prospecting lease in respect of
precious stones over that land or
that
portion of such land, and grant a pro-
specting lease to any person
who has
submitted a tender and who satisfies the
Minister that the scheme
according to
which he proposes to prospect is satis-
factory and either
that his financial
resources are adequate for proper pro-
specting under
such a lease or that
the arrangements by which he proposes to obtain capital for the said purpose
are satisfactory; or
(b) without calling for such tenders grant a
prospecting lease in respect
of precious
stones over any such land or portion
.../8
8
thereof to any person applying therefor who so satisfies him.
(2) Any such lease shall be subject to such terms and conditions as the
Minister may deem fit, and -(a) shall provide for -
(i) the scale on which and the manner in which prospecting operations shall
be carried on; (ii) the furnishing by the holder of the
lease to the Minister at
such times as may be specified in the lease of full statements describing the
nature of the prospecting
operations carried out and containing such other
in-formation as the Minister may reguire; (iii) the keeping by the holder of the
lease of such records relating to the prospecting operations as the Minister may
require; (iv) the examination of such records and
the inspection of the lease
area by any person authorized thereto by the Minister; (v) the payment by the
holder of the lease to
any person entitled to use the
..../9
9
surface of the land, who suffers any
surface damage or any damage to
crops
or improvements on the land caused by
the exercise by the holder of
the lease
of his rights under the lease or by
any act or omission
incidental there-
to, of compensation for such damage;
and
(vi) the
payment by the holder of the lease
to the mining commissioner of a rent
to
be fixed by the Minister after con-
sultation with the board,
(b) may provide
inter alia
for the payment by
..../ 10
10
the holder of the lease to the mining commi-ssioner of such share of the
proceeds of any precious stones found by him in the course
of prospecting
operations on the land in question, as the Minister may after consultation with
the board determine."
In its judgment the Court a
quo
held (at p 313 B-C)
that:
"One need not speculate upon the meaning of the words 'prospecting lease'
referred to in section 4(1)(a) and (b) as they are defined
in section 1 of the
Act. The definition reads:
"'prospecting lease' means a lease granted under section 4;'
The definition embraces all the provisions of section 4. It is not limited to
section 4(1); it includes also the requirements of section
4(2). A prospecting
lease (as defined) is a grant or privilege which contains and makes provision
for certain terms and conditions.
It is therefore a concession or
privilegium
which the Minister is entitled to bestow upon a grantee
subject to its containing certain peremptory terms and conditions.
..../ 11
11
It is only when a grant, subject to these peremp-tory terms and conditions,
is bestowed upon a grantee that a prospecting lease as
defined by the Act comes
into existence."
And at p 313 E he remarkedthat:
"Such terms and conditions are an integral part of a prospecting lease in the
sense that, without their existence, there is no prospecting
lease as defined in
the Act."
Again at p. 314 B-C the learned Judge a
quo
said:
"In terms of the provisions of section 1, as read with section 4, the
prospecting lease which the Minister may grant, of necessity
and ex
lege
,
can only be a prospecting lease if it contains the necessary terms and
conditions. Should the Minister purport to grant a 'lease'
without the said
terms and conditions he cannot confer a legally enforceable right. If, after
such a purported grant, the Minister
imposes terms and conditions acceptable to
the grantee, then, and then only, will a prospecting lease come into existence
but, prior
to that event occurring, no rights can accrue to the grantee."
..../12
12
With respect it seems to me that the per-sistent reference to the definition
of a prospecting lease contained in section 1 of the
Act as elucidating the
provisions of sections 4(1) and (2) is inapposite. Sections 4(1) and (2) are
specifically designed to circumscribe
the origin and the nature of a
prospect-ing lease. The definition of such a lease contained in section 1 of the
Act - which simply
refers one to section 4 - could never, in my view, have been
intend-ed to serve as an aid to the interpretation of section 4 itself.
It can
only be intended to apply to refer-ences to a prospecting lease contained in
other sections of the Act. It cannot therefore
be used to assist in the
interpretation of section 4 itself.
.../13
13
The gist of Mr.
Cohen
's argument on behalf of the
appellant before us was, as in the Court a
quo
(cf p 312 E-F), that
section 4 postulated two acts viz
(1)
the grant of a prospecting
lease in terms of section 4(1); and
(2)
the
determination by the Minister of the terms and conditions of the lease in terms
of section 4(2) of the Act.
Having exercised his
discretion to grant the prospecting
lease, the Minister, he submitted was now
in duty bound
to fix the conditions of the lease. Both the act of
granting
the prospecting léase and the act of determining
the terms and
conditions are, he submitted unilateral act
by the Minister which, unlike a
contractual lease, do
not require consensus between the applicant and the
.... /14
14
Minister. It followed therefore that it was not
necessary that the terms
and conditions be determined
before the prospecting lease was granted.
The submission that
viz
. that the grant-
ing of a prospecting lease is a unilateral act on the
part of the Minister
which does not require
consensus
between him and the appellant found
favour with the
learned Judge a
quo
. Relying on
Neebe v. Registrar
of
Mining Rights
1902 T.S. 65
Kirk-Cohen J. held at
p 312 G that:
"The grant of a prospecting lease is in the nature of a concession or
privilegium
",
and
"Such a grant is to be distinguished from a con-tract as
consensus
on
the terms thereof is not
.../ 15
15
a prerequisite to the creation of legal rights."
Again I must respectfully disagree with
this view. The legislative
provisions with which
the court was called to deal in
Neebe
's case
differ
toto caelo
from those with which we are dealing.
In the course of his judgment Innes C.J. at pp 81-82
described the
legislative provisions he was dealing
with (the Transvaal Gold Law No. 15 of
1898) as follows:
"There is no consensus between the Government
and the claim-holder. The
right of mining for
and disposing of all precious metals has by
statute
been given to the State. A person
duly and legally pegging a prospecting
claim
has a right to demand a licence for it; the
Government has no option
to refuse, and the terms
under which the claim is held, the rights
and
obligations reciprocally of the holder and the
Government are
absolutely fixed by law
..../16
16
The claim-holder may at any moment discontinue payment, and the only remedy
open to the State is to dispose of the claim under section
85 of the Gold Law,
and recover any arrears out of the
proceeds of the sale."
In the light of these provisions, i.a.,
Innes C.J. was driven to the conclusion that:
"the tenure under which he holds can in no way be regarded as a lease."
He described the tenure as one "
sui generis
", whereas
Wessels J.
called it a "
privilegium
of extracting
minerals from a certain
area."
The provisions of the Act we are considering
are essentially different. Here the Minister may
call for tenders for a
prospecting lease (section
4(1)(a)) or, as in the present case, grant a prospect-
ing lease without calling for tenders (section 4(1)(b))
..../ 17
17
as long as the applicant satisfies him "that the scheme according to
which he proposes to prospect is satis-factory" and that he has
or has access
to, the nece-ssary financial resources for the "proper prospecting under such a
lease." (Section 4(l)(a).) The lease
must then contain such terms and conditions
as shall provide for "the scale on which and the manner in which prospecting
operations
shall be carried on" (section 4(2)(a)(i)), and it seems to me to be
reason-able to infer that such conditions will bear some reference
to the
information which the applicant has conveyed to the Minister as to the scheme
according to which he proposes to prospect,
and to his financial resources. The
lease must also provide for the
..../ 18
18
payment of a rent to be fixed by the Minister
(section
4(2)(a)(vi)) and for it to continue "for such period
as may be
prescribed in the lease or until the lease
is determined in accordance with
the terms and con-
ditions thereof" (section 4(4)). (In this regard
it is
perhaps instructive to note that the Afrikaans
version of this sub-section
reads as follows:
"4(4) So 'n huur bly van krag vir die tydperk wat in die
huurkontrak
voorgeskryf word of tot-dat die huur ooreenkomstig die
bedinge
en
voorwaardes daarvan beëindig word." (My italics.)
The rights and obligations under any such lease may
also, with the
approval of the Minister, be ceded or
transferred either wholly or in part by the holder
of the lease (section 4(3)).
.../ 19
19
The nature of the prospecting lease under
the Act bears a far greater
resemblance to a mining
lease as first introduced in the Transvaal by section
46 of the Precious and Base Metals Act, No. 35 of
1908 than to a prospector's licence under the Gold
Law No. 15 of 1898.
Dealing with the mining leases
introduced by the 1908 act referred to above, Schreiner
J. remarked in
Rand Leases (Vogelstruisfontein) G.M
.
Co. Ltd. v. Registrar of Mining Titles
1938 T.P.D.
383 at p 388:
"Their twofold nature is apparent. As mining title they are comparable with
claims and mijn pachts while as leases they retain thëir
contractual
character. In sec. 46(2) of Act 35 of 1908 it is provided that certain
conditions shall be contained in every lease entered
into under the section. In
Act 30 of 1918 the
.../ 20
20
conditions are dealt with in greater detail but the element of contract
remains."
The right to prospect for minerals on State land continued to be regulated by
licence or permit until section 21 of Act 12 of 1960
extended the con-cept of a
mining lease to prospecting and made pro-vision for a prospecting lease. This
concept has been taken over
and extended in the present Act.
The very wording
of section 4 of the Act underlines the contractual and therefore consensual
nature of the lease. The Minister in
effect binds himself to let the leaseholder
prospect on the land concerned for an agreed period of time, and the
lease-holder in
turn agrees to pay a certain amount as rent,
.../ 21
21
What is let is not corporeal property but an incor-
poreal right, a right to prospect
"but that fact does not change the legal character of the contract because,
subject to specific exceptions, all things in
commercio
whether corporeal
or incorporeal, can be let." -
(per Watermeyer J.A. in
Graham v. Local and Overseas
Investments (Pty.) Ltd
.
1942 A.D. 95
at p 108.)
The fact that the Act expressly requires
certain matters to be dealt with
in the lease, and
in some instances gives the Minister an overriding
say in determining certain terms, does not in my view
detract from the
contractual nature of the lease.
After all much the same circumstances
pertain to
numerous commercial agreements more particularly
..../ 22
22
when an individual contracts with a large corporation and is presented with a
printed form of agreement. The mere fact that the individual
may not readily be
able to procure the alteration of any of the terms does not detract from the
fact that his acceptance of those
terms would lead to a binding contract being
concluded. I am therefore of the view that a pro-specting lease in terms of the
Act
must be seen as a consensual agreement between the Minister and the lease
holder - an agreement, moreover, which, in terms of section
4(2)(a) must provide
for certain pre-scribed matters. A failure to deal with these pre-scribed
matters in the lease would obviously
render such a lease invalid and
unenforceable.
..../ 23
23
Mr.
Cohen
conceded in his argument before us that the
"prospecting leases" alleged in paragraph 3 of the particulars of claim to have
been
granted by the Minister to the appellant, did not, ex
facie
the
pleadings, contain any of the terms and conditions required by section 4(2), and
that he could therefore not contend that appellant
held valid prospecting
leases. But, he contended, since the Minister, acting in terms of section
4(1)(b), had purported to grant
leases, he was now compelled to determine the
conditions necessary to comply with the provisions of section 4(2). He sought
support
for this sub-mission in the decisions in
Commissioner for Inland
Revenue v. City Deep Ltd
.
1924 A.D. 298
at 307 and
..../ 24
24
Stroud Riley &
C
o. Ltd. v. Secretary for
Inland Revenue
1974 (4) SA 534
(E) at 539 D-E.
This submission cannot be
sustained. The two cases referred to both concerned the inter-pretation of
certain provisions of the Income
Tax Act - Act 41 of 1917 in the first case, and
Act 58 of 1962 in the second - authorising the Commissioner (in the first case)
or
the Secretary (in the second) to refund to a taxpayer any tax overpaid where
it has been proved to his satisfaction that the amount
paid was in excess of the
amount properly chargeable under the Act. In both cases it was held that the
Commi-ssioner or the Secretary
was bound to consider the request for a refund,
and, having considered it, to
..../25
25
give effect to his decision either to refund the tax or not. If the
taxpayer was entitled to claim a refund the official concerned
was in duty bound
to authorise such a refund.
The present case is, however, not such a case. A
prospecting lease, as I have indicated, is a consensual agreement, and its
validity
depends on the inclusion of certain terms and conditions re-ferred to
in section 4(2). The fact that the manner in which such a lease
is granted
appears in section 4(1) and that the terms and conditions which it must contain
appear in the next subsection, is merely
a matter of convenience and cannot be
construed as indicating two separate and distinct steps in the
.../ 26
26
creation of a valid lease. Section 4(2) is merely descriptive of the
lease referred to in section 4(1). The only way in which Mr.
Cohen
's
submission that the section provides for two stages in the creation of a valid
lease can be sustained, it seem to me, is if one
were to read section 4(1)(b) as
providing that "the Minister may without calling for such tenders grant
a
right to
a prospecting lease .... to any per-son ...." The words "a right
to" do not appear in the section, and I can see no justification
for their
inclusion. As the section reads, the requirements of sub-section 2(a) are
peremptory and the grant of a "lease" which does
not conform to the requirements
of that sub-section is no grant at all. It is in
..../ 27
27
fact a nullity, and no duty to act can flow from such a nullity. The
fact that the Minister in such a case acts as a public official
and that in that
sense we have to do with public law, makes no difference. The words of the
statute are plain. In fact it would seem
to me that what the appellant is in
effect asking us to do is to compel the Minister to grant him prospecting leases
on the strength
of some pro-mise or expressed intention to do so. But his
parti-culars of claim do not make out such a cause of action. In my view,
therefore, the exception was well taken and correctly upheld by the Court a
quo.
In argument before us, however, Mr.
Cohen
had another string to
his bow - an argument which
.... / 28
28
was not advanced before the Court a
quo
. He submitted that in view of
the fact that, according to the parti-culars of claim as amplified by the
further particu-lars supplied,
the Minister had in writing at least purported to
grant the appellant prospecting leases over certain specified portions of State
land for a period of 50 years, the appellant had a legitimate expectation that
the Minister would make such purport-ed grant effective
by determining such
terms and conditions as were reguired by the Act. Mr.
Cohen
conceded that
this matter had not been raised in his particulars of claim and that his
pleadings, as they stand, may not contain sufficient
allegations to make out
such a cause of action, and he asked us to grant
...../ 29
29
him leave to consider this aspect and to amend his pleadings so as to plead a
legitimate expectation properly. Mr.
Grobler
who appeared on behalf of
the
respondent indicated that he would not oppose the granting of such a
spatium deliberandi
, but asked that the present appeal be dismissed with
costs. In the case of
Administrator, Transvaal and Others v. Traub and
Others
[1989] ZASCA 90
;
1989 (4) SA 731
(A) this Court recognized the doctrine of a
legitimate expectation as providing a legal remedy in certain cases. The
doctrine as
it has emerged in English law would appear to be close-ly linked to
the
audi alteram partem
principle and is seen as a means whereby the
Courts can ensure that administrative bodies or officials comply with
..../ 30
30
their duty to act fairly. In giving recognition
to the
doctrine of legitimate expectation in our law
the learned Chief Justice
(Corbett, C.J.) who de-
livered the judgment in
Traub
's case remarked
at p
761 F-G :
"Like public policy, unless carefully handled it could become an unruly
horse. And, in working out, incrementally, on the facts of
each case, where the
doctrine of legitimate expectation applies and where it does not, the Courts
will, no doubt, bear in mind the
need from time to time to apply the curb. A
reasonable balance must be maintained between the need to protect the individual
from
decisions unfairly arrived at by public authority (and by certain domestic
tribunals) and the contrary desirability of avoid-ing
undue judicial
interference in their admi-nistration."
In view of Mr.
Cohen
's expressed intention
of amplifying his pleadings and Mr.
Grobler
's
..../ 31
31
attitude of not opposing a
spatium deliberandi
I need
not discuss the matter any further. I must say that I find it difficult to
imagine how the doctrine of legitimate ex-pectation
could find application in
the present case, but then there may conceivably be other facts not presently
pleaded which might place
a different complexion on the matter. I need say no
more than that.
The appellant is granted leave to amend his particulars of
claim as he may be advised within 21 days of this judgment. Otherwise the
appeal
is dismissed with costs, such costs to include the costs of two counsel.
J.P.G. EKSTEEN, JA
BOTHA, JA )
VIVIER, JA )
concur
MILNE, JA )
KRIEGLER, AJA )