In the matter between :
THE MINISTER OF LAND AFFAIRS
Appellant
and
RAND MINES LTD
Respondent
Coram : Smalberger, Zulman, Streicher JJA et
Melunsky, Farlam AJJA.
Heard : 9 10 and 11 March 1998 Delivered : 15 May 1998
JUDGEMENT
FARLAM AJA/
2 FARLAM AJA: On 13 April 1995 Comrie J in the Bophuthatswana Provincial Division granted an order in favour of respondent against appellant in
the following terms:. "1. That it be and is hereby declared that - The Applicant is the holder of the full free and sole right and interest in and to:-
1.1all forms of granite, including gabbro, norite, syenite, diorite,
adamellite, monzonite, pyroxenite, dolerite, diabase, gneiss,
schist, homfels, quartzite, meta-conglomerate, micro-dolerite,
micro-syenite, micro-diorite, basalt, felsite, fine-grained gneiss
mylonite and serpentinite;
1.2all forms of marble, including travertine, dolomite, limestone,
carbonatite and serpentinite;
suitable for use as dimension stone, on, in and under:-
(a)
the property previously known as Welbekend No. 738 situate in the district of Rustenburg and now known as Welbekend 117, registration
division JQ, Bophuthatswana; and
(b)
the property previously known as Boschpoort No. 16 situate in the district of Rustenburg and now known as Boschpoort 288, registration
Division JQ, Boputhatswana."
3 He also ordered appellant to pay respondent's costs, including those occasioned by the employment of two counsel.
Appellant now appeals, with leave from the court a quo, against this order. Comrie J's judgment has been reported as Rand Mines Ltd
v President of the Republic of South Africa and Another, 1996 (3) SA 425 (B).
Respondent,which was formerly known as The Transvaal Consolidated Land and Exploration Company Limited, is the holder of certificates
of rights to minerals in respect of the two farms mentioned in the order, namely Welbekend and Boschpoort.
In 1917 respondent, which since 1899 had been the owner of Welbekend, sold the property to Rustenburg Estates Ltd. In the deed of
transfer registered pursuant to the sale the rights to minerals on the property were reserved to the respondent. Simultaneously with
the registration of the deed of transfer on 11 May 1917 a certificate of mineral rights was registered in favour of respondent, which
4 reads, in so far as it is relevant for the purposes of this case, as follows:
"NOW THEREFORE I, the Registrar of Deeds hereby certify that the said TRANSVAAL CONSOLIDATED LAND AND EXPLORATION COMPANY, LIMITED is the registered holder of the full, free and sole right and interest in and to all minerals, mineral substances and metals, precious stones, oil and coal, on
in and under the said property, without any exception, together with the sole right to deal with, alienate and dispose of the same
at will, subject to the following conditions and entitled to the following rights upon the said property:
(1) The Company has the sole and exclusive rights to prospect, exploit and mine for such minerals, mineral substances and metals,
precious stones, oil and coal at any time located on, in and under the land, and to deal with and turn to account, alienate and dispose
of such rights from time to time at pleasure. At the termination of prospecting operations all shafts and other open places made
by the Company shall be properly filled up or fenced in by the Company at its own expense.
(3) The Company has the right to take any of the land it may from time to time require for the erection of buildings, works, machinery
and dwelling houses for depositing sites for ore and/or tailings for the storage of water, and for all other purposes directly or
indirectly connected with prospecting exploiting or mining on the said land; the land so taken shall be re-transferred to the Company
at its expense, and upon re-
5
transfer it shall pay to the Owner in respect of any such area a price to be mutually agreed upon provided that if any dispute shall
arise as to the price to be so paid, the same shall be submitted to arbitration in the usual way. It is however distinctly understood
that in the event of any dispute as above arising the arbitrator or arbitrators shall consider and decide upon only the agricultural
value of any land which the Company may desire to retake, which agricultural value shall be taken to be in no way affected by the
value of the mineral rights of the property.
(4)
As far as possible the Company shall not interfere with the crops standing at the commencement of any prospecting operations on the
property but should such interference be unavoidable, of which the Company shall be the sole judge, the Company shall compensate
the Owner for all damage caused by such operations to the Owner's then standing crops, the amount of such compensation failing mutual
agreement to be fixed by arbitration as herein provided for.
(5)
The right to minerals held by the Company shall include all such rights as under the Precious and Base Metals Act 1908 (Transvaal)
or any other act, appertain to the holder of mineral rights, but the Owners shall, in the event of proclamation for gold, be entitled
to all such rights as under the said Act appertain to an Owner of the surface rights."
In 1922 Rustenburg Estates Ltd sold the property to the Hon F.S. Malan, "in 6 his capacity as Minister in charge of Native Affairs for the Union of South Africa, in trust for the Bafokeng Tribe under Chief August Moghatle." The second property involved in this appeal, Boschpoort, was acquired by respondent in 1892 and sold by it to "the Minister in charge of Native Affairs, in trust for the Two Hundred Natives whose names are set out in [a] Schedule attached". In the deed of transfer registered pursuant to the sale the rights to minerals on the property were reserved in favour of respondent and, simultaneously with the registration of the deed of transfer on 27 April 1923, a certificate of mineral rights was registered in respondent's favour. This certificate of mineral rights is, as far as is relevant, identically worded to the certificate registered in respect of Welbekend except that it speaks of "the full free and sole right and interest in and to all minerals, mineral substances and metals, oils, precious stones and coal on, in and under ...." Although respondent ceded some of the mineral rights it held under the
7 certificates to Samancor Ltd and Rustenburg Platinum Mines Ltd in 1992 those
relating inter alia to dimension stone (a term whose meaning I shall discuss
presently) are still held by it.
It is common cause that appellant is the present owner of the two farms in his official capacity as trustee, in so far as the case
relates to Welbekend, for the Bafokeng tribe and, in so far as the case relates to Boschpoort, for the two hundred persons listed
in the schedule to the deed of transfer, their heirs, executors or assigns.
Respondent applied for the order granted in the court a quo to confirm that it was the holder of the full, free and sole right and
interest in and to all granite and marble, as fully described in the order quoted above, which are suitable for use as dimension
stone and which may be found on, in or under Welbekend and Boschpoort. In what follows I shall refer to Welbekend and Boschpoort
as "the properties".
8
The extent of respondent's rights to minerals on the properties, including its
rights to granite and marble, depends on a proper interpretation of the terms of the two certificates of mineral rights to which I
have referred. In the founding affidavit filed on its behalf respondent set out what were described as the surrounding circumstances
to aid the interpretation of the certificates of mineral rights in so far as they might be found to be ambiguous. In the result neither
party's counsel contended that the certificates were ambiguous and the surrounding circumstances were not relied on in argument to
elucidate the meaning of the certificates. It is accordingly unnecessary for me to summarise the extensive material set out in the
affidavits dealing with the circumstances surrounding the reservation by respondent in its own favour of the mineral rights set out
in the certificates of title.
Before dealing with the interpretive questions which arise for consideration in this matter, it is necessary to say something about
the meaning of the expression "dimension stone" which is used in the order granted in the court a quo. Dr David
9 Twist, a professional geologist, whose affidavit was filed in support of respondent's application, said the following in paragraph 4.8 of his affidavit:
"4.8 Dimension stone is today considered to be rock (igneous, sedimentary or metamorphic) that can be separated profitably from
the crude natural rock formation (as blocks, slabs or sheets) for use in architecture and monuments. Normal industrial practice and
economic reality dictates that dimension stone quarries that cannot be exploited profitably will be closed down. For that reason,
therefore, I am of the view that there is a clear economic connotation to the term, even though this is not explicitly stated in
many definitions."
On behalf of appellant there was filed an affidavit deposed to by Mr Johannes Verkes, a consulting geologist who has practised for
his own account since 1988. He commented as follows on paragraph 4.8 of Twist's affidavit:
"4.8 Ad 4.8
Hierdie is die deponent se definisie. Op geen basis kan maatsteen op winsgewendheid geklassifiseer word. Die term maatsteenbedryf
beskryf slegs die doel waarvoor ooreenkomste van natuurlike gesteentes gebruik gaan word. Die aanvaarding daarvan kan nie die fisiese
eienskappe verander nie asook nie
10
die winsgewendheid van die ontginning daarvan nie. 'n Betrokke stof is 'n mineraal of 'n klip, of organiese stof soos steenkool, uit
hoofde van die fisiese eienskappe daarvan en nie die ekonomiese suksesvolle ontginning daarvan nie. Dit sou beteken dat goudmyne
wat teen 'n verlies werk, 'nie minerale' ontgin nie. Aldus die argument van die deponent beteken dit dat as graniet aanvanklik in
die mark aanvaar word en aanvanklik winsgewend gemyn word en die mark verwerp dit later, dit dan 'n nie-mineraal word. Ek stem gevolglik
nie saam met die definisie van die deponent nie. Maatsteen word in die publikasie bekend as Delfstowwe van Republiek van Suid-Afrika, 5de uitgawe, uitgegee deur die Departement van Mynwese en Geologiese opname op bl. 321, as volg gedefinieer: 'die benaming 'maatsteen'
word bo 'bousteen' verkies omdat laasgenoemde so geinterpreteer kan word dat dit gebreekte klip (aggregaat) of sells bousand insluit.
In 'The Dictionary of Mining, Mineral and Related Terms' van die United States Bureau of Mines, word 'dimension stone' soos volg
beskryf: ('n vertaling). 'Natuurlik voorkomende rotsmateriaal gesny, gevorm of uitgesoek vir gebruik in blokke, plat stukke, plate
of ander konstruksie eenhede met gespesifiseerde vorms of groottes, en gebruik vir buite- of binne dele van geboue, fondamente, beranding,
plaveisel, plaveiklipwerk, bru
, keermure, of vir ander argiteks- of ingenieursdoeleindes. Hierdie term word ook gebruik vir klipblokke waarvan stukke met bepaalde
afmetings gesny kan word. Manner, graniet, kalksteen en sandsteen lewer die
11
meeste maatsteen, hoewel leiklip, dioriet, basalt en diabaas ook daarby ingesluit word.' By hierdie gebruike kan gevoeg word dat sekere
soorte klip, veral die donker stollingsgesteentes, in bale dele van die wereld in gedenktekens, veral grafstene, gebruik word."
Comrie J (at p 427 H of his judgment) referred to the definition of dimension stone appearing in The Shorter Oxford Dictionary, viz
stone "which is cut to specified dimensions".
In my opinion Verkes is correct in contending that it cannot be part of the definition of dimension stone that it be "separated
profitably from the crude natural rock formation". (Indeed Twist conceded this in his replying affidavit.) Whether a profit is made or
not will depend on economic factors which will from the nature of things vary from time to time. A decision as to whether material
is a mineral or a mineral substance cannot depend on the state of the market or the cost of
12 exploiting a particular deposit thereof. In my opinion it must be accepted that the term dimension stone has the meaning given in The Shorter Qxford Dictionary. It is obvious, however, that granite and marble (to limit the discussion to the two substances which form the subject matter of this appeal) are only cut to specified dimensions, for use as blocks, slabs or sheets, in architecture and monuments, for purposes of profit: whether a profit is in fact made in respect of particular blocks, slabs or sheets so cut is neither here nor there. Twist said in his affidavit that the rocks commonly used for dimension stone in South Africa include granite, marble, sandstone, quartzite, freestone and slate but, he added, the names used in the dimension stone industry for the various rocks require further definition, qualification and explanation. He then proceeded to deal more fully with each of these rocks. It is only necessary for me to quote the paragraphs dealing with granite and marble which read as follows:
13
"5.1 Granite:
5.1.1In the field of geology, rock names are used extremely
precisely with careful regard to the grain size, mineral
contents, and chemical composition of the rock. In the strictly geological sense, a granite must satisfy several exacting requirements.
It must, for example, contain:
(a)more than 20% of the mineral quartz
(b)more than 70% silica.
5.1.2In the dimension stone industry, however, the geological
names of rocks are used very loosely. Thus, the
following rocks, although they are not granite in the strict
geological sense, are all called 'granites', without regard
to their mineral contents or chemical compositions:
(a)all coarsely crystalline igneous rocks such as
gabbro, norite syenite, diorite, adamellite,
monzomte, pyroxenite, dolerite and diabase;
(b)many coarsely crystalline metamorphic rocks such
as gneiss, schist, hornfels, quartzite and meta-
conglomerate;
(c)many finely crystalline igneous rocks such as
micro-dolerite, micro-syenite, micro diorite,
basalt, and felsite;
(d)many finely crystalline metamorphic rocks such as
fine-grained gneiss, hornfels, quartzite, mylonite
and serpentinite (the latter is also by some
authorities considered to be a variety of marble).
5.1.3If strict geological terms were universally applied, many 14
dozens of different names would be employed. Because the precise geological identification of a rock requires great knowledge and
skill, geologists have long accepted the efficacy of the looser terminology for the non-geologists in the dimension stone industry.
5.1.4 The unifying characteristic of the loosely defined group of granites recognized in the dimension stone industry, is that the
minerals they contain are predominantly hard: that is, most of the minerals would have a hardness of I five or higher on Mohs' scale
of hardness. This is an important concept because the hardness of the rock is proportional to the hardness of its component minerals,
and this hardness has an important bearing on the costs and the equipment required, to quarry and process the rock into usable blocks,
slabs and carved monuments."
(Verkes did not dispute what was said in these paragraphs except for the statement (in 5.1.3) that geologists have long accepted the
efficacy of the looser terminology for the non-geologists in the dimension stone industry.)
In his reply Twist points out that Verkes himself uses the looser terminology in his affidavit, when speaking of "black granite"
deposits near Belfast and
15 Machadodorp. He also gives examples of influential South African geologists who, for example, spoke of "Pretoria Granite" (which is technically norite, as pointed out by Twist in his earlier affidavit in a passage not challenged by Verkes.) Twist then set out what he described as the characteristics of good dimension stone as follows: "6.1 It must be extractable in large blocks:
6.1.1
The economics of cutting and sawing make small blocks undesirable. Small blocks are, therefore, more difficult to sell and these command
lower prices (on a equivalent volume basis) than large blocks.
6.1.2
Many granites and marbles are so cracked and veined that it is impossible to recover large blocks.
6.1.3
The size of the blocks that can be quarried influences the 'recovery' of the deposit. The recovery is the proportion of saleable material
obtained to the proportion of waste that must be discarded. The recovery must be high enough to render exploitation profitable. Acceptable
dimension stone quarries will typically yield recoveries of between 5 and 25% of the total volume extracted. The recovery that is
acceptable is determined by individual operating costs and selling prices. If the recovery is too low, profitable exploitation cannot
16
continue. Poor recovery is one of the biggest factors contributing to the closure of uneconomic quarries.
6.2
The reserves must be substantial to justify the capitalization and marketing costs. A company will hardly bother to go to the time
and trouble of developing a new market if the reserves are only sufficient for a few years. In most cases, companies require reserves
that will last for at least a few decades before developing a new quarry.
6.3
The site must be relatively accessible and the infrastructure must be adequate. Few granites or marbles located in remote or inhospitable
places can be exploited because the operating transport costs are prohibitive. 6.4
It must have an attractive appearance and be free of flaws:
6.4.1
Most granites, marbles and other stones are so bland or unattractive that they cannot be marketed at any price. Even if the rock is
attractive, perfectly natural phenomena (such as white spots or crystals against a dark background) will be regarded (in the dimension
stone industry) as flaws, making it impossible to sell the material.
6.4.2
Dimension stone is, therefore, attractive, or it would not find buyers at any price. Some dimension stones are extraordinarily beautiful,
and could be displayed as pieces of art in their own right. Dimension stone normally appeals to those who love natural things, and
it has a certain timeless or eternal quality - it existed long before man was bom, and it will remain long after man
17
has gone. Compared to other construction materials like
cement and wood, it is remarkably durable. Modem
homes often incorporate polished granite kitchen tops
instead of the more traditional wood with Formica
veneers. Although such kitchen tops are expensive, this
is off-set by the beauty and practicality of granite. It
does not attract dirt and it can be cleaned with the most
aggressive cleaning agents, it does not stain, it does not
scratch, it requires no maintenance, and it lasts forever.
6.4.3 It must be uniform in colour and grain size. Buyers will
not buy a stone that differs from block to block or from
slab to slab. An architect does not want the colour of his
building to vary from floor to floor. A client wishing to
order a monument wants to know exactly what he is
ordering. Many stones, including many deposits of
granite and marbles, are so heterogeneous that they can
never meet this requirement.
6.5 A dimension stone must occupy its own unique market niche, or
its price and qualities must be so competitive that it can
penetrate the niche of another material. For example, pink
granites are readily available for about $250 per cubic metre in
the Mediterranean. This is not much greater than the transport
costs from South Africa to the Mediterranean. Because of
transport costs, South African pink granites cannot be sold in
Mediterranean countries for $250. Therefore, a South African
pink granite, no matter how attractive, would need a special
feature (a unique niche) in order to convince Italian buyers to
18 pay a premium above the price of the local pink granite."
In so far as the statements related to granite and marble they were not disputed by Verkes although, in reacting to paragraph 6.1.3,
he reiterated his standpoint that the economic exploitability of a rock or granite has nothing to do with the classification as to
whether it is regarded as a dimension stone or not, a point on which I have already expressed my preference for his view.
In paragraph 7 of his affidavit Twist deals with the topic of exploitable
dimension stone as follows:
"7.1 Granite and marble (and all other rock types) are extremely abundant in the earth's crust and are found on all the continental
masses. Nevertheless stone which is suitable for exploitation as dimension stone is uncommon.
7.1.1 The reason why only very few deposits of stone are suitable for use as dimension stone is that dimension stone must exhibit
some specific characteristics, such as those described in paragraph 6 hereof, that are far from abundant in most granites and marbles
(and other rock types). It is the rather infrequent combination of these
19 favourable characteristics that renders an otherwise ordinary rock an economically viable dimension stone.
7.1.2If suitable dimension stone was ubiquitously available, all
(quarries would be located adjacent or close to major
cities. Where adequate transport and infrastructure are
available some quarries can even be located in remote
deserts, and others in freezing climates where it is
impossible to work for more than a few months each
year.
7.1.3
An abundance of stone suitable for dimension stone would also obviate the need for international trade in such stone. It would be
astonishing for Italians to import 'African Red', (which is produced near Potgietersrus), 'African Juparana' (which is produced near
Parys), 'Rustenburg Grey' (which is produced near Rustenburg) or 'Belfast Black' (which is produced near Belfast) from South Africa,
if similar materials were available in Italy, or even in north Africa. However, ... in 1971 granite exports constituted the 11th largest mineral export of South Africa (excluding gold and platinum).
7.1.4
One of the best selling granites in the world, the so-called 'Blue Pearl', is quarried in Southern Norway. No similar granite has
been discovered elsewhere. If similar granite could be exploited elsewhere, it is unlikely that 'Blue Pearl' would be exploited in
Norway where labour costs are among the highest in the world.
7.2 Thus, exploitable dimension stone with the requisite
20
characteristics is not common. For that reason, considerable expenditure is incurred in the exploration for new occurences, and all
the major South African producers employ professional geologists to conduct this exploration. The exploration is not confined to
South Africa. Local companies are known to have done considerable exploration in Namibia, Angola, and Zimbabwe. Some of the local
companies have international links and are involved with the evaluation of dimension stone prospects on other continents."
Verkes does not dispute what is said in this paragraph save for
repeating his standpoint regarding the irrelevancy of the economic exploitability of a rock in its classification as dimension stone. In regard to the statement in paragraph 7.1.3 that "in 1971 granite exports constituted the 11th largest mineral export of South Africa (excluding gold and platinum)" Verkes denies that granite is a mineral, geologically or in ordinary speech and refers to a publication entitled The Global Status of the South African Minerals Economy and Data Summaries of its Key Commodities, by C F Vermaak, published by the Geological Society of South Africa, in which 21 key commodities 21 of the South African minerals economy were discussed and granite and marble were not mentioned.
In his replying affidavit Twist points out that Vermaak's work seems, as appears from its foreword, to be concerned with "commodities
of the greatest strategies importance" and that it is accordingly understandable that no reference was made therein to dimension
stone which is, as Twist puts it, "patently non-strategic". To refute the suggestion that dimension stone and in particular
granite and marble are not regarded by eminent authorities as minerals he referred, inter alia, to official government statistics
appearing in the South African Yearbook where the granite production figures for 1947 to 1950 appear under the heading "Mineral
Sales of the Union of South Africa".
In paragraph 8 of his affidavit Twist dealt with the value of dimension stone as follows:
"Because of the rarity of stone which has the characteristics described
22
in paragraph 6 hereof dimension stone has a value far in excess of other stone without those characteristics, but of identical geological
nature and chemical composition.
8.1One of the more expensive and widely used dimension stones
is the 'Belfast Black', which is quarried near Belfast in the
eastern Transvaal. This rock retails for around US $2000 or, | at today's conversion rates, well over R6 000, per cubic metre, Free
On Board, in Durban.
8.2
The Norwegian granite known as 'Blue Pearl', is also widely used and even more expensive than the 'Belfast Black*.
8.3
More common dimension stones produced in southern Africa sell in the price range US $400 to US $1000 per cubic metre, while the very
cheapest dimension stones on the international market are probably available for about US $250 per cubic metre.
8.4
If the prices of dimension stones are compared to the retail prices of crushed aggregates, which may be made from stone with exactly
the same chemical and geological composition but lacking the characteristics referred to in paragraph 6 hereof, and which are quoted
in a few tens of rand per cubic metre, it is readily apparent that the value of dimensional blocks of granite is greatly in excess
of their simple bulk value.
8.5
Moreover, considering that the prices quoted earlier in paragraphs 8.1 and 8.3 are in respect of blocks of granite in their raw form,
those values are only a fraction of the final value that will be ascribed to the material once it has been processed into finished
slabs and monuments."
23 Verkes replied to the introductory part of this paragraph as follows:
"Ek stem nie saam met hierdie bewering nie. Wat die deponent moet s
is dat die een tipe graniet bv. swart graniet wat as maatsteen gebruik word, 'n ho
r markwaarde het as bv. rooi graniet wat vir dieselfde doel aangewend word maar ook net op 'n bepaalde tydstip. Dit mag wees dat die
mark verander en die situasie omgedraai kan word binne 'n paar jaar. Die pryse wat in 1993 behaal word deur bv. swart graniet is
baie laer as die pryse wat in 1990 behaal is deur dieselfde produk. Dit is korrek dat verskillende tipe klip of gesteentes verskillende
markwaardes het."
He agreed with paragraphs 8.1, 8.2, 8.3 and 8.5 and commented as follows on paragraph 8.4:
"Die feit dat graniet vir maatsteen of as aggregaat gebruik word, verander nie die aard daarvan nie nl. dat dit 'n graniet is
en bly. Waar 'n blok graniet bv. nie bemark kan word nie omdat die kleur bv. onaanvaarbaar is, kan dit in aggregaat gemaal word en
dan vir padboudoeleindes aangewend word en 'n waarde verkry deurdat dit dan in kleiner stukkies opgebreek is. Ek stem saam met die
bewerings mits die betrokke materiaal aanvaarbaar is in die mark. Soms word graniet fyn gemaak tot die grootte van growwe sout, hergesementeer
en as panele vir buiteafwerking van geboue gebruik."
24
Twist's response to this comment reads as follows:
"It is obvious that the ultimate application of the stone cannot change the nature thereof. However, if a block of granite lacks
the correct colour, or is otherwise flawed, then it is not dimension stone and cannot be sold as such. The fact remains, and the
Deponent seems to admit this, that granite which can be used as dimension stone has a value far higher than granite which can be
used as aggregate and, therefore, has a value greatly in excess of its simple bulk value."
Twist's affidavit also contains a great deal of information about the historical development of the dimension stone industry both
abroad and in South Africa. It is clear from this evidence that as far back as the beginning of the present century dimension stone
(including granite and marble) was being exploited for profit in South Africa and that it had an intrinsic value apart from its weight
and bulk.
At p 428 C Conine J mentions that he was referred during the course of argument to two recent unreported judgments in cases bearing
a close resemblance to the present matter, viz the judgment of Mynhardt J in Rand Mines Ltd v (1) The
25
a judgment delivered in the Transvaal Provincial Division on 15 September 1994 (the appeal against which was argued before us together
with the appeal in the present matter) and the judgment of Fine A J in Rand Mines Ltd v (1) Martinus Jacobus Potgieter, (2) Petrus
Jacobus Joubert and (3) Hugomond (Pty) Ltd, a judgment delivered in the same division on 14 September 1994. The main affidavits dealing
with geological matters in those two cases were also deposed to by Twist and Verkes and contain substantially the same material as
that contained in their affidavits filed in this matter.
At pp 10-13 of his judgment Fine A J sets out a summary which was handed up to him during the course of argument of the salient points
raised by both experts in relation to the history of the dimension stone industry. It was extracted from the affidavits before him
and was accepted as a fair summary. In my view it can also be accepted as a fair summary of the main points in the affidavits of
Twist and
26 Verkes filed in this matter dealing with the history of the dimension stone industry in this country. It reads as follows:
"1. In 1932, in a memoire, one A L HALL, an expert geologist dealing with extensive quarrying activities in the area immediately
north of Pretoria, observed that Pretoria granite, today known as Rustenburg granite (which is technically norite), was present and
was being quarried 'for more than 30 years'. [The] book was published in 1932, so that it seems that prior to 1902 dimensional blocks
of granite of local origin had already been exploited and used in local building.
2.
In an earlier publication on the geology of the Barberton district in 1918 Hall had described quarrying of a very attractive ornamental
green granite, and there was a fair variety of rock suitable for ornamental purposes as regards appearance, consistency and good
polish but, apart from granite, few occurrences were sufficiently large or uniform in quality to furnish a reliable industrial basis.
3.
By 1919 it was already understood and accepted that good granite deposits needed to be consistent and uniform in quality, capable
of taking a good polish, and attractive in appearance so as to be able to furnish a reliable industrial base.
4.
In a 1920 memoire of Hall, he described a black granite being quarried for tombstones, and emanating from the Northern Transvaal.
27
5.
In 1919 a geological survey by T G Trevor, a mining inspector, was published, dealing with marble deposits on the farms Marble Hall
and Scherp Arabic, in the Transvaal. The report concludes with the observation that the deposits at Marble Hall were a great national
asset and a future source of wealth for the government.
6.
[In] 1919 dimension stone was recognised as an expensive material; it was sought after to decorate both monumental and construction
applications, its value being not its bulk or availability but its strength and beauty, and the dimension stone industry was already
an international import/export business.
7.
In 1924 dimensional blocks of dark grey Pretoria granite were being quarried in the area north of Pretoria, and further quarries of
red granite were being developed to the north-east of Pretoria.
8.
By 1924 the value and beauty of dimension stone was already thoroughly appreciated. The Pretoria granite was being railed to much
wider markets throughout the 'Union', and overseas markets were being sought.
9.
By 1924 dimensional blocks of a different granite 'Pietersburg granite' were being exploited and mined in the Northern Transvaal.
At the same time, [from] a report filed by one Wagner, reviewing the Geological Review of the Granite Dimension Stone in South Africa,
it appears that technical aspects of the dimension stone business were well understood, both from the perspective of quarrying methodology
28
and with regard to both the specific characteristics and aesthetic and other qualities of the rock itself."
At p 13 of his judgment Fine A J expressed the view, with which I agree:
"The fair inference from all these facts is that dimension stone was, during the period under consideration, recognised as an
expensive material and was sought after to decorate both monumental and construction applications, its value lying in its strength
and beauty, not in its bulk, size or availability."
In his replying affidavit Twist drew attention to the final chapter in Hall's 1932 Memoir on the Bushveld Complex (referred to in
paragraph 1 of the summary as quoted above). In this chapter, which is headed "Summary Account of the Mineral Resources of the
Bushveld", are described gold, silver, platinum, tin, soda and various other substances which are clearly minerals on any definition,
as well as "igneous building and ornamental stones" (granite, norite, etc), which, as Twist points out, would be classed
as dimension stone in modem terminology.
In the course of his judgment Comrie J said (at p 431 D) that he would have 29 been prepared to hold, "given the wide language of the 1917 and 1923 grants" (by which I take it he meant the 1917 and 1923 reservations) that because granite and marble suitable for use as dimension stone presently qualify (so he was satisfied) as minerals or mineral substances, and because the evidence adduced did not indicate that in 1917 or 1923 there was a belief among interested parties that marble and granite suitable for use as dimension stone were not minerals, there was no reason to suppose that they intended to exclude granite and marble suitable for use as dimension stone or did not intend to include them. He was accordingly of the view that respondent should succeed on that basis even if it could not be found that in 1917 granite and marble suitable for use as dimension stone were regarded as minerals. The learned judge's reasoning on the point is contained in the following extract from his judgment (at 430 A-E):
"It seems to me, with respect, that in many instances the grant of
30
mineral rights may be in terms which are so clear or so wide that it would be unnecessary, or even misleading, to attempt to fathom,
perhaps many years after the event, what the parties to the grant or the community believed, or by inference probably believed, were
minerals at the time.
I may illustrate this point by repeating two examples which, in simpler form, 1 put to counsel for the respondents in the course of
argument. In the first example A sells his farm to B in 1920 but, thinking that there may be chrome on the property, reserves the
mineral rights upon the same terms as were employed for Welbekend and Boschpoort. Decades later, after the mineral and surface rights
may have changed hands several times, gold is discovered in exploitable quantities on the farm. Counsel had little hesitation in
saying that the gold vests in the holder of the mineral rights for the reason that gold was a known mineral in 1920 and would presumably
have been present to the minds of A and B when they agreed on the reservation of 'all minerals ... without any exception'. In the
second example the facts are the same except that the substance which is discovered decades later is a brand new mineral, highly
valuable in the computer industry, which mineral no one knew existed in 1920. Counsel felt that the answer on the changed facts might
be different. I do not see why that should be so, given the wide language of the grant: 'all minerals ... without any exception'
(my emphasis). To hold otherwise arguably requires one to imply a qualification in every reservation of mineral rights such as: all
minerals presently recognised as such."
31 He accepted (at 430 F-I) that it may be necessary to ascertain whether a substance was regarded as a mineral at the time of the reservation where there is real reason to suppose that the parties to the original reservation of mineral rights intended to exclude certain substances or did not intend to include them, for example, where they contracted on the basis that a certain substance was not a mineral because of a long line of judicial decisions to the effect it was not. Because, however, he was satisfied, as I have said, that the evidence did not indicate that interested parties in 1917 believed that marble and granite suitable for use as dimension stone was not a mineral, he considered that this factor did not play a role in this case. Mr Grobler, who appeared for respondent, did not rely on this part of Comrie J's judgment. He conceded that it was necessary for respondent to establish that, in the case of Welbekend, granite and marble suitable for use as dimension stone were covered by the words "minerals" or "mineral substances" in
32 "the vernacular of the mining world, the commercial world and landowners at the time of the grant" (to use a phrase appearing in the judgment of James L J in Hext v Gill(1872) 7 Ch App 699 at 719 and approved by Lord Halsbury L C in Lord Provost and Magistrates of Glasglow v Farie [1888] 13 AC 657 (HL) at 669 and cited with approval many times since, both in the United Kingdom and South Africa - see, eg, Bazley v Bongwan Gas Springs (Pty)Ltd 1935 NPD 247 at 261). In my view this concession was correctly made. The point was actually considered by the Court of Session in a case decided in 1912, Marquis of Linlithgow and Young Paraffin Light and Mineral Oil Company Ltd v North British Railway Company 1912 SC 1327. The facts were that a canal, which subsequently came to be owned by the railway company, was constructed in the early part of the 19th Century partly through lands belonging to Lord Linlithgow. It traversed the Linlithgow shale field. In 1818, when the original canal undertakers took possession of the land, shale was, as Lord Macmillan, who appeared in the 33 case, put it in a lecture he delivered in 1931, which is printed in his book Law and Other Things, (at p 157), "regarded merely as rubbish and of no value to anyone". The Union Canal Act which was passed in 1817 provided that the land to be taken and used for the canal should vest in the company but that the mines and minerals "within or under" the land should be reserved to the owner of the land who might work them. It gave the company
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