17
Lebowa's witness Knock further states:
"It is not economically feasible or practicable to work under only one farm in order to obviate the inevitable intermixing of the ores from the various stopes. . . . [And later]. The precious metal ores are inevitably intermixed indistinguishably in the silo and it is not economically possible to load the silo at any one time and thereafter to empty the silo so that only precious metal ores from Umkoanesstad 419 KS are contained therein or processed thereafter."
The parties are agreed on one thing, that the ores in the Merensky and UG-2 reefs contain a mixture of precious metals and base metals and minerals in a variety of chemical and metalliferous combinations such that it is impossible to mine the one group without at the same time mining the other. This fact lies at the root of the problems in this case.
Thereafter the process of separating the various end-products is a
18
lengthy and complicated one. Apart from chrome, the separation of the
precious and base metals occurs practically at the end of the process,
which I shall describe briefly. Once finely crushed, the ore is pumped
into flotation cells where it is mixed with reagents and chemicals. A
cloud of bubbles is passed through the resulting slurry. The metals and
minerals cling to these bubbles. The presence of sulphide in the ore is
essential to the process. The bubbles froth over the lips to form an
enriched slurry which is filtered through cloth and dried. The resulting
concentrate is then taken from the mine to Rustenburg's smelter and
refinery at the town of Rustenburg. There it is smelted, leading to the
discarding of slag. After oxidisation of the remaining matte the sulphur
is separated as sulphur dioxide, which is processed into sulphuric acid as
19
a by-product. What remains is allowed to crystallise, and, after fine grinding, a magnetic concentrator removes alloy containing the PGMs, which results in the bulk of the PGMs being extracted. Up to this stage they have remained associated with the base metals. Further processes are then used to extract the rest of the PGMs and also the base metals nickel, copper and cobalt. Ultimately all the metals, precious and base, are separately refined. At Rustenburg the products of the Atok mine become mixed with those from other mines, which means that the identity of the Umkoanesstad base minerals is even further effaced.
Rustenburg then sells on Lebowa's behalf not only the precious metals, but also the copper, nickel, cobalt and sulphuric acid, without any accounting to Pyramid. This is Pyramid's principal complaint - that the
20
base metals and minerals to which it has the rights are simply appropriated by another, who pockets the proceeds. Although the figures have not been revealed, it is clear that the proceeds of these "by-products" of mining for precious metals are considerable.
The amended relief sought by the appellants in the Court a quo was a declaration that their combined rights entailed that, in respect of ore extracted by the two respondents from Umkoanesstad by virtue of their rights to precious metals:
1.
Pyramid was the co-owner of the ore.
2.
Alternatively to 1, Pyramid retained "its rights" in respect of such ore.
3.
Pyramid was entitled to prevent the respondents from
1.
21
performing any act having the effect of preventing Pyramid from exercising its rights as co-owner of the ore, alternatively "its rights" referred to in para 2.
4.
Pyramid was entitled to prevent the respondents from mixing the ore with ore from any other farm, or performing any act having the effect of the Umkoanesstad ore losing its identity, alternatively having the effect of the base metals or minerals from that farm being mixed with any other base metals or minerals.
5.
Pyramid was entitled to prevent the respondents from appropriating the base metals and minerals and selling
4.
22
them for their own account.
It should be noticed what the appellants do not claim: they do not claim that records should be kept for their benefit, nor a statement of account, nor the delivery of refined base metals or sulphuric acid, nor the payment of money.
As will be explained later in this judgment, in 1991 statutory provision was made for the exploitation of competing mineral rights. The statute came into force over the former Lebowa on 1 May 1995. I shall leave over the appellants' application to amend the relief on appeal in respect of the period after that date.
The Court a quo (Eloff JP sitting in the TPD) dismissed the appellants' application. The focus of the judgment was the cession to Rustenburg of the rights to precious metals in 1966. The questions were,
23
said the learned Judge, what was the intention of the parties as to the
content of that cession; what necessary ancillary rights passed with the
rights to precious minerals; and what residual rights remained with the
cedent, North Vaal? Two arguments presented on behalf of the
respondents, main and alternative, were accepted.
The first was based upon the definition of "precious metals" in s
3 of the Gold Law, as amended by the Mineral Law Amendment Act 36
of 1934 ("the 1934 Act"), which read at the time of the 1966 cession:
" 'precious metals' shall mean -
(a) gold, silver, platinum, iridium and all other metals of the platinum group and the ores of all the said metals" (own emphasis).
The learned Judge remarked that parties contracting over the rights
to precious metals "move in a field hedged in by legislation." So much
24
is clearly true. But Eloff JP proceeded, "It is reasonable to suppose that the parties contemplated that the rights granted to Rustenburg in 1966 would be co-extensive with the rights which can be accorded by the State in a mineral lease." I doubt the soundness of this proposition.
However, proceeding from this point the learned Judge held that Lebowa had the right to mine platinum-bearing ore even though it also contained
base minerals. Next, that ore capable of being economically mined for platinum could not at the same time be a base mineral ore, reliance being placed ia on the contrast in the definitions between what was precious and what base, particularly with reference to ores. The argument of the appellants that the ores in the Merensky and UG-2 reefs are polymetallic (both precious and base) was rejected. The upshot was that the appellants lost all their rights to what was contained in ore mined by
25
Lebowa, because it contained precious metals worth mining for. Accordingly, the argument that Pyramid was the co-owner of this ore was rejected, as also the complaint that the respondents' construction of the Gold Law involved confiscation without compensation. It was held as a matter of construction that the effect of the 1966 cession was to curtail substantially North Vaal's residual rights, that is its rights to non-precious minerals. The resulting conclusion was that Lebowa was entitled to treat as its own and sell base by-products separated and refined by it.
In reaching these conclusions the learned Judge found little assistance in the decided cases.
He rejected an argument put forward by the respondents which was based on a suggestion by Franklin and Kaplan The Mining and
26
Mineral Law of SA 142 to provide the answer to the problem, namely that Rustenburg's title was first in time, and qui prior est tempore potior
The alternative argument for the respondents, also accepted, was that even without reference to statutory aids, a proper construction of the 1966 cession led to the same results. The appellants' case (so it was said) started with a claim to co-ownership of the ore. There was no express provision to that effect in the cession. Was it to be implied? Applying the bystander test, the answer was no. In what proportions would the ore be owned? Would the appellants have to contribute to expenses, and if so, how much? Such questions, incapable of immediate and inevitable answer were destructive of any argument based on an implied term that there was to be co-ownership.
27
The Issues
It seems to me that the issues before this Court are those set out below. Depending upon how some of them are answered others may not arise.
1. Was the Court a quo correct in holding that:
1.1
The Gold Law allowed the holder of rights to
precious metals on proclaimed land to
1.1.1
Mine payable platiniferous ore notwithstanding that it contained base metals and minerals, the rights to which were held by another?
1.1.2
Retain base metals and minerals mined in these circumstances as his own and sell them for its own account?
1.2
If 1.1.2 be answered favourably to the respondents, the 1966 cession should be interpreted in conformity with the Gold Law, so that Rustenburg was entitled not only to mine the ore in question, but to retain for itself all base metals or minerals it extracted from or refined out of the ore?
1.3
The 1966 cession should in any event be interpreted to the same effect on another ground? In this Court
1.2
28
two main grounds were relied upon:
1.3.1
That to find that the cedent retained its rights to base metals and minerals would constitute a derogation from the grant of precious metals rights, which grant conceded the right to mine ores containing the former, provided only the latter were also present in payable quantities.
1.3.2
That the power to mine, refine and sell base metals and minerals was a power necessarily ancillary to the mining of precious metals.
2.
Is the qui prior est principle applicable?
3.
Could the authorities grant a mining lease to Rustenburg under the 1967 Act which deprived Pyramid of its rights to base minerals?
4.
If the Court a quo erred in holding in the respondents' favour on the questions raised in para 1.1, 1.2 and 1.3 (which are concerned with the interpretation of the 1966 cession) what is the answer to the following questions?
4.1
In general, how are the two competing real rights to minerals in the same substance to be accommodated?
4.2
Did Pyramid become co-owner of ore severed by Lebowa in the course of its own mining, without it having acted as Pyramid's agent?
4.3
If it did become co-owner what was the effect of mixing that ore or its concentrates with other ore or
4.1
29
its concentrates?
4.4
If Pyramid did not become co-owner, did it have any other rights in or to the ore, its concentrates or its proceeds?
4.5
Could Pyramid prevent Lebowa from mining without its consent?
4.6
Could Pyramid prevent the mixing of Umkoanesstad ores or concentrates with other ores or concentrates?
4.7
Are the respondents entitled to sell the refined base mineral by-products for their own exclusive benefit?
5 To what relief, if any, are the appellants entitled in respect of events subsequent to 1 May 1995?
I turn to a consideration of the questions, not always in the order set out above. Those posed in paras 1.1 and 1.2 were not particularly pressed before us in argument, but as they form the main basis
of the Court a quo's findings, it is nonetheless necessary to deal with them. The Effect Of The Gold Law (para 1.1 above)
As stated previously the Gold Law was still in force at the time of
30
the 1966 cession. The construction placed upon it by the Court a quo was that if a mining lease were to be granted to mine precious metals, then, because of the inclusion of ores in the definition of precious metals in the Gold Law, the lessee would be entitled to extract and keep not only precious metals in that ore, but also base metals and minerals, notwithstanding that the rights to base metals and minerals vested in another. That other, so the Court held, would lose its rights. The effect was to construe the Gold Law as allowing one holder to confiscate the minerals of another.
The appellants' argument is a simple one - that whatever rights to mine the Gold Law gave, it does not at all deal with the definition and scope of competing mineral rights, and that reference to the ores of precious metals in this connection is a red herring. The provisions of the
31
Gold Law are designed to regulate mining, not define mineral rights.
Those rights are treated by the Gold Law as something priorly
established, only the exercise of which is regulated. The process of
regulation, so the argument proceeds, may detract from the worth of
common law rights, but the Gold Law is not an instrument for the
confiscation of the rights of one holder so that they may be bestowed
upon another. The cession must be construed accordingly, supposing that
the Gold Law has any bearing on its interpretation.
The central provision of the Gold Law is s 1, which reads:
"The right of mining for and disposing of all precious metals is vested in the Crown; the ownership of, and the right of mining for and disposing of base metals on Crown or private land is vested in the owner of such land."
Several things are to be noticed about this section. As far as base
32
metals are concerned, it is plainly affirmed that they are owned by the
landowner (who may separate the title to minerals from the land, as we
have already seen.) This is a re-affirmation of the common law, and
whatever further diminution may have been effected by the Base
Minerals Amendment Act 39 of 1942, that position still prevailed in
1966. As far as precious metals were concerned, common law ownership
remains, but there is a subtraction from full dominium because of the
Crown's right to mine and dispose: Odendaalsrus Gold General
Investment and Extensions Ltd v Registrar of Deeds 1953(1) SA 600 (0)
at 604 C-E. As is pointed out by Nathan Golf and Base Metals Laws
6 ed 2 the section does "not mean that the Crown owns all such precious
metals, or that it mines them." Indeed the Crown was not given a free
hand to do as it chose. The Gold Law itself contained an elaborate
33
structure to regulate who could mine, what compensation had to be paid,
and so forth. No point would be served by setting all of this out. It
suffices to say that the holder of the mineral rights would be rewarded
by the grant of a mynpacht. In later legislation provision was made for
an additional leased area, and as mining took place at increasing depths
and required more and more capital, the use of mining leases became
general.
I turn to the narrower question whether the Gold Law had the
particular confiscatory effect for which the respondents contend, and
which the Court a quo accepted. The original (1908) definitions read (s
3):
" 'base metals' shall mean quicksilver, iron, lead, copper, tin, zinc, cobalt, nickel, arsenic, manganese, antimony, bismuth, as well as (the ores of such metals, and sulphur, coal, graphite, or any other
34
mineral substance, for the exploitation of which no special provision is made by law":
" 'precious metals' shall mean
(a)
gold and silver, and their ores and gold or silver found in combination with a base metal, where such gold or silver cannot be worked apart from such base metal, and the value of the gold or silver exceeds the cost of producing both such precious and base metal;
(b)
any other metal (not being a base metal) declared by proclamation ... to be a precious metal. . ."
(own emphasis).
"Ores " were not defined. It will be seen that the definition of "precious metals" provides for two cases, one where gold and silver is not intermixed with a base metal, and the other where they are. The phrase "and their ores" relates only to the first case, which means that that phrase does not relate to the case where precious and base metals are fount in combination. Accordingly,
35
if the original 1908 definition is applied, the reasoning of the Court a quo cannot be correct, as it postulates that the ores do include base metals.
Where the value of the gold and silver exceeded the costs of producing all metals including base metals, the Governor could in terms of s 120 apply the provisions of Part II of the Act (sections 10 to 118) to the land. If that were done the rules relating to the mining of precious metals would apply. If the base metals could be mined separately, the proclamation would not affect the rights of the base metal holder. If they could not be worked separately there was no provision that the miner for precious metals could simply pocket the base minerals also mined by him. The Act was silent on that question.
It should further be noticed that as ores are mentioned in both
36
definitions, an ore of gold or silver is a precious metal and an ore of a
base metal is a base metal. But where the same lump of ore contains
both precious and base metals it could hardly be exclusively a precious
or a base metal, an unacceptable result, because of the different
regulations for the mining of the two classes of metals. Here again the
1908 definitions do not accord with the Court a quo's finding that an ore
containing a combination of precious and base metals is a precious metal.
The 1934 Act, upon which the Court a quo particularly relied,
inserted new definitions. "Base metal" was defined to mean:
"any mineral substance other than precious metals or precious stones as defined in section 116 of the Precious Stones Act, 1927 (Act 44 of 1927) or water."
"Precious metals" were:
"(a) gold, silver, platinum, iridium and all other metals of the
37
platinum group and the ores of all the said metals;
(b) any other metal declared ... by proclamation ... to be a precious metal . . .:
Provided that in the event of such metals being mined in combination with a base metal the provisions of S 120 shall apply." (own emphasis).
Again "ores" were not defined.
"Ores" were no longer mentioned in the definition of "base metal." The reason was no doubt the great width of the definition. It was so wide that it was thought necessary to exclude water expressly:
Finbro
1985(4) SA 773(A) at 805 E. The ore of base metals would fall under that broad definition. But as the definition of "precious metals" was not as extended, it was necessary to make specific
mention of ores containing those metals. However, despite some rewording, the two cases contained
38
in the 1908 definition were retained, precious metal ores not containing an admixture of base metal, and ores in which the same was present. The line of division between those combinations rich enough to be treated as precious metals and those which were not, was no longer contained in the definition, but in the proviso, which referred the determination to s 120. The line itself was changed, in s 120, it now being if "the gross value of the precious metals won or recovered exceeds that of the base metal won or recovered by twenty five per cent over a period of three successive years." But what is important for present purposes is that, as in 1908, the ores of the precious metals did not include those ores in which precious and base metal were found in combination.
Nor again was there any suggestion that where a combination ore
39
was worked the holder of precious metal rights might retain base metals won (where Part II of the Gold Law was made applicable by proclamation) or that the holder of base metal rights might retain * precious metals won (where Part II was not made applicable and he chose to mine): even though in each case the holder was entitled to work ores containing the other holder's metals.
I therefore conclude that the questions posed in para 1.1 earlier in this judgment should be answered as follows. The holder of precious metal rights referred in para 1.1.1 could mine ore containing base metals. However, in answer to para 1.1.2, he was not entitled to retain and sell the base metals won. Accordingly I am of the view that the Court a quo erred in regard to the important para 1.1.2, Interpretation Of The 1966 Cession In Terms Of The Gold Law (para 1.2
40
above)
In the light of what I have just found the substratum of the Court a quo's first basis for interpreting the cession in Rustenburg's favour falls away. Even if the cession were to be interpreted not according to its own terms but so as to conform with the rights which the State could give in a mineral lease (which I very much doubt), the State could not give the rights of the base metal holder to the holder of the
precious metal rights.
Indeed, if the cession is interpreted according to the usual principles, even if against the background of the Gold Law, it seems most unlikely that the construction found by the Court a quo was intended. One has only to take the case where the value of copper and gold in an ore is equal and ask whether either the cedent or the
41
cessionary could have intended that the latter would be entitled not only
to the gold but the copper as well, where the two were found in intimate
association. The answer is to my mind obvious.
A primary rule of construction is that words are to be given their ordinary and natural meaning. The qualification to the rule is that if the ordinary meaning leads to an absurdity, or to something which, from the instrument as a whole it can clearly be gathered that the parties could not have intended, a Court is justified in departing 6om the literal meaning: Gravenor v Dunswart Iron Works 1929 AD 299 at 303. Giving their ordinary meaning to the words "the rights to precious metals," they do not mean that there is to be added "and the rights to such base minerals as are present in the ore containing precious metals," which is really the respondents' case. Nor is there anything else in the cession to indicate
42
that the parties intended to include those words, never mind a clear indication to that effect.
Accordingly I consider that the Court a quo erred in regard to para 1.2 as well.
Interpretation Of The 1966 Cession In The Respondents' Favour Without Resort To The Gold Law (para 1.3 above).
The Court a quo held that in the absence of an express term in their favour the appellants had to rely on an implied term that the holder of the base mineral rights co-owned ore severed by the holder of the precious metal rights, and that they had failed to prove such a term. In this I think the Court erred. The appellants did not need
a term at all. Their rights stem from the rights of the original landowner, and after 1925 from the separated right to minerals, to which Pyramid is the
43
successor, minus only what passed to Rustenburg in 1966. The cession in that year did not even purport to affect the residual mineral rights. It dealt only with the rights to precious metals. Rather it is incumbent on Rustenburg to prove an implied term (if it were conceivable) or establish a construction to the effect that in the course of acquiring
the precious metal rights it succeeded also in confiscating the base metals.
In this Court the respondents placed their emphasis on the two arguments which I have listed as 1.3.1 and 1.3.2. I shall deal with each of them in turn.
Derogation from the precious metals grant (para 1.3.1 above) Although in this Court Mr Shaw, for the respondents, disavowed a reliance upon the principle qui prior est tempore potior est jure (I shall deal with it briefly below), this part of the argument still resonates what
44
has been relinquished. The argument is that because "the rights to precious metals" entitles the respondents to mine platiniferous ore also containing base minerals it would constitute a diminution or reduction of the right if the respondents were to be prevented from extracting and refining for their own benefit the base minerals which they have mined. For some reason the precious metal rights have a superiority over all others. I have difficulty with this argument. The two sets of rights were created simultaneously when the 1925 rights were split, and there is no reason why the substraction should have a paramountcy over the remainder, why one slice of the cake should contain all the cherries.
So much for the argument on principle. That the regime contended for by the respondents cannot be the correct one is indicated by the near-absurd results to which it leads, results which it was accepted
45
in argument would ensue. In the examples following it is postulated that the metals cannot be mined separately. Suppose that only
platinum rights had been ceded in 1966, and gold was also present. The cedent would be prevented from mining the gold, and the cessionary would be entitled to mine it and take it. Or suppose that the copper in the
ore was worth R8m and the platinum worth only R2m, and that there had been a cession of precious metals rights in 1966, as in this case. The cessionary could prevent the cedent from mining the copper and could, indeed, appropriate it for himself. I do not suggest that the latter example is illustrative of the facts in this case, but it may be legitimately considered in testing the principle.
The respondents sought to bolster their argument by reference to Coronation Collieries Ltd v Malan 1911 AD 586 which is authority for
46
the proposition that a grantor may not derogate from his grant (see Innes J at 598-9). But the circumstances were wholly distinguishable. A right to mine coal had been granted to Witbank Colliery, and subsequently
the right to run a tramline over the surface was given to another. The consequence was that the authorities prohibited coal mining in areas beneath the tramline and adjacent strips. The Court held that the later grant was an actionable derogation from the coal mining grant. This is in reality an application of the qui prior est tempore principle, and is of no assistance in this case, which is not concerned with a subsequent attempt to detract from a right conferred, but with the content of rights simultaneously defined upon the splitting into two of a pre-existing right. The question is one of construction of the act of splitting, and no derogation from a grant is involved.
47
Accordingly I do not think that there is substance in the first argument, referred to in para 1.3.1.
Ancillary right necessarily implied (para 1.3.2 above)
A reservation or grant of mineral rights by implication includes all ancillary rights incident to the grant, being those that are directly necessary to the enjoyment of the thing granted: West Witwatesrand Araes Ltd v Roos 1936 AD 62 at 72: Hudson v Mann and Another, supra, at 488 C-D. What the respondents' argument amounts to is that to give full effect to their right to precious metals it is necessarily ancillary that they be allowed the confiscation of the base minerals. That is not how the argument was put forward, but that is what it amounts to. It is a novel proposition not supported by any authority of which I am aware. Such authority as there is is to contrary effect.
48
What is necessarily ancillary must depend on the facts of
each case. An interesting example is provided by Borya v Canadian
Pacific Railway Co and Another [1953 [1953] AC 217 (PC). The right to "ail
coal, petroleum and valuable stone" had been severed. Overlying a
petroleum deposit was a pocket of natural gas which had remained in the
ownership of the landowner. He claimed an injunction restraining the
working of the petroleum deposit in such a way as to waste or interfere
with his natural gas. Although no express power to mine the petroleum
had been given Lord Porter held (at 232).
"A reservation by a landowner of the mines and minerals or, indeed, in specific terms, of petroleum, is meaningless unless it is accompanied by the right to work and to recover the substance reserved. . . . Under these conditions, ... the reservation must imply a right to work."
Further (at 230) his lordship held that even if the position were
49
that the landowner was entitled to work for and recover the gas, and the
petroleum rights holder separately the petroleum (I do not propose going
into why there was said to be a doubt about this): "it does not follow that
neither can act without the consent of the other and that only by mutual
agreement can they work at all." The injunction was refused. It should
be noticed that the petroleum rights holder allowed the gas to escape to
waste and made no claim to appropriate or sell it, so that this case is
authority for the proposition that one is entitled to mine one's own even
if that may adversely affect the position of a another rights-holder. This
entails, in my view, that if mining reasonably conducted leads to the loss
or destruction of minerals to which another has a claim, that other may
have to accept the position. But the case is not authority for the
proposition that a person entitled to one set of minerals may appropriate,
50
in the course of his mining, minerals to which another has a claim.
An instructive South African case, which was not referred to below or in the heads in this Court, is Geduld Proprietary Mines Ltd v New Springs Collieries Ltd 1934 TPD 104, a decision by Tindall AJP and Greenberg J. The plaintiff owned land which was leased to the defendant for coal mining. Underground water which seeped into the workings had remained the property of the plaintiff. In terms of the mining lease the defendant was entitled, "to pump out the water that may be found in the coal mines and to let it flow away."
The Court held that it was a necessary implication of the lease that the defendant was entitled to use so much of the water as it needed for mining purposes. But in addition the defendant was pumping more water than was necessary
for its mining, and leading it off the property, after which it was sold for the
51
defendant's benefit. The Court further held that the lease was not to be construed so that the plaintiff had abandoned ownership of
this water to the defendant. This case is a clear illustration of the principle that a mineral rights holder is not entitled to remove from the ground more than is granted to him. I do not think that the fact the lease made express mention of letting the water flow away affects the position, nor the fact that the decision to some extent turned upon the meaning of the relevant clause. As it happened the further stuff that the defendant removed was water, which is not ordinarily classified as a mineral, but in my opinion that makes no difference. If he may not remove water because that is not a necessary incident to his coal mining rights, he also cannot remove other minerals which are not the subject of that right.
The only case of which I know (long since delved up by my then
52
leader Rex Welsh QC) which deals expressly with the extraction of a
mineral not falling within the terms of a mining right is the old English
case of Rogers v Breaton (1847) 10 QB 26 at 56: 116 ER 10 at 22: 17
LJQB 34 at 42. It has to us an exotic tone, being concerned with the
laws and customs in Cornwall, where mining has been carried on since
ancient times. Nevertheless it can be rendered comprehensible, and is in
my opinion relevant to our problem. For some background I refer to
Halsbury 4 ed vol 31 para 821, which reads in part:
"In Cornwall, as elsewhere in England, prima facie, the ownership of a mine is vested in the owner of the freehold. This right of ownership is, however, modified by the custom of tin-bounding. Under this custom, if a tin mine lies within waste land or inclosed land in which the custom was exercised before inclosure and either is the property of an individual or forms part of one of the seventeen ancient assessionable manors, and is not worked by the the owner of the surface, a tinner may give three
53
months' notice to the lord of his intention to cut tin-bounds. During the three months the owner may himself cut the bounds for his own use. If he does not do so, the tinner may, at three successive Stannaries Courts, cause proclamation to be made of the limits of the bounds . . ., and, if no objection is successfully made, the court awards a writ to the bailiff of the court to deliver possession of the tin-bounds to the tin-bounder, who thereupon has the exclusive right to search for and work all tin and tin ore within the bounds on paying to the owner of the soil one-fifteenth of the mineral worked, except in places where by special custom a different share is payable."
Contrary to the popular usage a "bounder" is "one who occupies
a bound of tin-ore ground" (Shorter OED). According to the same
dictionary "stannary" means "the districts comprising the tin mines and
smelting works of Cornwall and Devon formerly under the jurisdiction
of the Stannary courts; also, the customs and privileges attached to the
mines." The Latin for tin is stannum.
54
Lord Denman CJ, in the course of considering the reasonableness
of a stannary custom in Rogers case, remarked (at 49-50 of the
original report) that according to the law of England the landowner
owned a tin or copper mine in England, but that the custom of bounding
had been engrafted on this ownership (the nature of the custom appearing
from the passage quoted from Halsbury). Later, while still dealing with
the same issue his lordship remarked (at 56-7):
"This [a writ of possession issued by a Stannary Court], therefore, throws no light on the legal character of the bounds, nor proves that any possession of the land passes. One test perhaps may usefully be applied. It is well known that the stannary customs, as the name imports, were confined to tin only; copper mining is of comparatively modem introduction into Cornwall; it is now discovered that the two metals are frequently found within the limits of the same work: but we apprehend that it never has been contended that the bounder merely as such, working a tin mine and extracting copper from it with the tin , has any
55
right to the copper. If not to the copper, how can it be argued that he has any right except to the tin which he does extract, and to that which he may extract so long as he remains bound-owner, ..." (own emphasis).
Mutatis mutandis I think that this case provides clear authority that
a right to mine one mineral does not authorize the taking of another with
which it is found in association. It is also of interest to read that the
problem facing this Court was already well known in England a century
and a half ago, as is evidenced by the editorial note to the case, prepared
with the assistance of Mr Edward Smirke (one of the counsel) at 67-8 of
the original report:
"The custom nowhere provides for the occurrence of veins of mixed metals, but is evidently adapted only to the superficial tinworks, formerly [68] very productive, called stream works. Mines are now worked indiscriminately for tin, copper, and such other metals as may be, and often are,
56
combined in the same lode. The separation of them is a process of some nicety; and one mineral is sometimes sacrificed for the sake of the other. The adventurer avoids any question by taking a lease or licence from all parties interested in the different minerals: but the bounder, who relies upon the custom alone, must either claim, under that custom, a right to deal with, and, if need be, destroy the property of another, or must work at the peril of becoming an involuntary wrongdoer by detaching from the vein a metal which does not belong to him, and which was not the object of his search."
I do not think that the suggestion that another's mineral may not
be touched is in all cases consonant with our law, but the apparently
established rule against appropriating the same is.
The relevant aspect of the English law regarding the implication
of ancillary powers is summed up by Halsbury (op cit) para 183 as
follows:
"To an express right of working is probably incidental
57
the right to deposit minerals and spoil on the surface, or, in the case of a quarry, to deposit spoil upon the grantor's adjoining land; and an express right to work implies a power, so far as it necessary for winning and getting the minerals, to remove overlying strata and intermixed minerals (footnote 7 - Robinson v Milne(1884) 53 LJ Ch 1070 at 1074 per North J), but not to appropriate intermixed minerals or minerals in overlying strata (footnote 8 - Rogers v Brenton (1847) 10 QB 26 at 56, per Lord Denman CJ (intermixed minerals); Goold v Greaf Westerm Deep Coal Co 1865) 2 De GJ & Sm 600 at 608, per Lord Westbury (overlying strata) unless they are of the nature of spoil."
This passage offers sound guidance. Unlike the Netherlands,
England has been engaged in mining from a time before the Roman
occupation. Much experience of mining problems and their solution has
been gained, and it is not surprising, therefore, that we have copied
copiously from English mining law in the past. Not that we would not
reach similar conclusions on our own, in time. But timely borrowing
58
may shorten the process.
I conclude that on a true construction of the 1966 cession, its expressed and ancillary powers, the respondents are entitled in the course of their mining of precious metals in a reasonable manner, to extract ore also containing base metals and minerals: but that they are not entitled to appropriate base minerals and metals later separated or refined for themselves.
That deals with para 1.3 above.
Insofar as anything I have said may conflict with what is stated in the Borys case, supra, at 229-230, I disagree with the decision.
It remains to add that on the evidence it is necessary, at least to a large extent, for the respondents to extract minerals to which the appellants are entitled in the course of legitimate mining of ores that are
59
polymetallic to their core.
Qui Prior Est Tempore Potior Est Jure (para 2 above).
As stated above, Franklin and Kaplan (op cit) 142 suggest that the problem can be solved by the application of this principle. Because Rustenburg acquired its rights before the appellants acquired theirs, Rustenburg is supposed to have priority. This argument did not find favour with the Court a quo, does not find favour with me and was not overtly persisted in in this Court.
The appellants' rights were not created when they acquired them in 1989 and 1992 respectively. They were created when mineral rights were reserved in 1925 and split in 1966. In this respect the case differs from that of double sales where the rights are created by the very sales which are in competition, and which succeed the one the other: or
60
mortgage bonds registered against the same property at different times. What happened in 1966 was not the creation of a right, merely the division of an existing right, as I have already sought to explain. Could The Grant Of The Mining Lease To Rustenburg Deprive The Appellants Of Their Rights? (para 3 above).
This point was at best faintly argued in this Court. As the lease was granted in 1991 we are concerned no longer with the Gold Law but with the 1967 Act. Much has changed, but in my opinion no fundamental affecting this case. The argument based on the phrase "and the ores of any such metals" in the definition of "precious metals" in s 1 is revived to obtain the same goal by a different path, but with no more success. Particularly given the history of the definition I do not for a moment think that it contains, while concealing, an implied
confiscation
61
of base metal and mineral rights. The Act nowhere else provides for the confiscation of those rights in favour of the precious metals grantee. Expropriation is provided for in s 183, but that section has nothing to do with this case.
The argument of the respondents is again that they are entitled not only to mine but also to retain base metals and minerals, this time by virtue of a lease to that effect granted by the Minister. The simple answer to the argument is that the Minister is not entitled to take from one holder to give to another. For instance, if one holder is entitled to gold and another to silver, the Minister is not entitled
to confer on the former the right to mine and retain both metals. The respondents argue that under the Act the appellants may not even use the surface
without the necessary permission, may not prospect without satisfying the
62
prerequisites therefor, and may not mine without a permit or lease. All that may be, but I fail to see what is has to do with the matter.
In one respect I consider that the appellants' argument goes too far - that the Minister was not entitled to grant the lease at all,
as the ore which was its subject included base ore. For reasons already given and which I am about to give I do not think that the appellants are entitled to insist on the sterilisation of the ore.
I would answer the question in para 3 adversely to the respondents. If The 1966 Cession Means That There Are Competing Rights, How Are The Problems Arising Out Of Such Competition To Be Resolved? (para 4 above)
After a lengthy discursus we have now arrived at the real problems in the case. They are novel and they are not easy. In 1966 Rustenburg
63
became the holder of "all rights to precious metals". Pyramid is the holder of all other mineral rights. From these simple facts have to be derived the answers to the various practical and theoretical questions that do arise. Not that I propose giving definite answers to questions, either practical or theoretical, which do not arise. It is in no punning sense that I observe that one here moves in a minefield. For that reason it would be particularly undesirable to attempt to resolve matters which have not been squarely raised, and which have not been fully argued.
We are concerned with two real rights in the same land, neither of which, as I have sought to demonstrate, is in its nature prior or superior to the other. Whatever difference of formulation there may be in English law, that is also the unstated premise in Rogers' case, supra, more narrowly exemplified by the proposition that the person entitled to the
64
copper retains his rights, despite what may be a legitimate disturbance of the intermixed ore by the bounder.
The problems start when the ore is separated from the earth so that it becomes susceptible for the first time of separate ownership as a corporeal movable. Such separation may be effected by one or
both of the mineral rights holders acting in concert (which creates no problems), or by either without the consent of the other, or by the landowner or a stranger acting without their consent, or even by natural forces of tempest, earthquake and the like. Conceivably the legal consequences of separation may depend upon how it takes place and by whom. In this case we are concerned with one mineral rights holder effecting
the removal without the consent of the other. When this happens it seems to me that any separate new rights that arise are to be stamped with their
65
common origin. That is the full ownership of the land that once vested in one person , and the subsequent separation of the rights to minerals by one and the same act, nascent within which was the prospect that there might yet be severance of ore and competition as to its utilization.
I should make it clear that I am addressing only the case where the minerals cannot be mined apart, the impossibility of doing which creates the problems in this case. Where the separate ores of different minerals are extracted by a miner who is entitled to only one or some of them, I take it to be clear that he must set aside those to which he is not entitled.
When one casts about for a figure of our law which solves the problems of who is entitled to what, several possibilities present themselves, but none is an immediate and inevitable choice. They are,
66
some sort of co-ownership, a jus in re aliena, a right supra genenris, a personal right fortified by Aquilian liability, unjust enrichment and exclusive ownership on the part of the mineral rights holder who severs. The Court a quo opted for the last alternative. Before trying to force the facts into any of these boxes it may be apposite to seek to derive some guidance from the nature of the subject under investigation.
First, with regard to the right to mine and refine. I agree with the statements in the Borys case, supra, that a right to a mineral is rendered worthless if it does not carry with it the right to extract, and that where the exercise of that right leads to the loss of a mineral to which another is entitled, this is to be countenanced if it is necessary (and, I would add, reasonable in the circumstances). Nor do I think that our law has particular sympathy for the dog in the manger. So that in a case such as
67
is before us, where one set of minerals can be profitably extracted, and the other not (at least not on its own), I think the answer is plain: Lebowa is entitled to mine and refine. (That answers the question in para 4.5 above). What should happen when both sets of ores are economically exploitable and both holders wish to mine does not arise in this case.
Secondly, it seems to me to flow inevitably from the circumstances in which the competing rights originated that each must be exercised civiliter modo, broadly in the sense that the phrase is understood in the law of servitudes. Each party should exercise his rights in a civil fashion. His object should be to use his own rights so as to obtain a profit, but in manner least likely to harm his "neighbour." This does not mean, however, that he must always choose the least injurious course.
68
That course may be impractical or too costly, so costly even as to render exploitation unprofitable. He should never act so as simply to harm or spite his neighbour. He, on his part, should be prepared to suffer those disruptions of his rights, even damage to or the destruction of them, which it is reasonable that the other party should impose.
The particular physical and geological conditions in any case, grades and depths of ores, the nature and degree of mixing of minerals, available extraction and refinement technology, the state of markets from time to time and the discovery of new ore-bearing deposits may be relevant to what behaviour is civil and what is not. For instances where the other man's ore can be set aside, that should be done, as I have indicated already. Where separation can be achieved only at a later stage, as is largely so in this case, then separation must await that later
69
stage. If mixing of ores from different sources is necessary, as on the evidence it is in this case, then there may be mixing. (That answers the first part of the question in para 4.6 above, in relation to ores. As regards the second, the appellants have not established that the mixing of concentrates at Rustenburg is unreasonable, so that that part of the question must also be answered favourably to the respondents).
Thirdly, the very fact of the opposed parties having rights to different minerals means that the crucial question in para 4.7 above must be answered adversely to the respondents. They may not, without more, sell the refined base mineral by-products for their own exclusive benefit. Rogers,case and the Geduld case, both support that conclusion. To what, if anything, the appellants may be entitled is not a matter raised in this case, which Mr Grobler, for the appellants, says is intended to be
70
used as a springboard for a claim for money or metals, if success should attend the appeal.
At this stage already it becomes apparent that what I regard as the practical questions in the appeal have been answered without elevated jurisprudence or compressive classification. What remains of para 4 is sub-paras 4.1, 4.2, 4.3 and 4.4. One of them, 4.3 can be disposed of without ado. If the Umkoanesstad ores are mixed with other ores, any co-ownership with the respondents which the appellants may have had was lost by commixtio, which loss was exacerbated, if that were possible, by the later mixing of the concentrates at Rustenburg. A new co-ownership may arise out of the commixtio ( see Lee and Honore Family, Things and Succession 2ed para 325) but that subject was not explored in the appeal. Question 4.4 was never given content or definition,
71
despite invitations in argument to do so. Insofar as it begs an answer I
think I have already provided one in describing the content of the parties'
competing rights. In so doing I have also answered question 4.1. What
I have not done, so far, is to give anything a name. There remains only
question 4.2, whether Pyramid became co-owner of the ore severed by
Lebowa before it was mixed. As things stand now it seems to me to be
suspect as an academic question. Not that it was intended to be
academic. The main thrust of the appellants' case appears to have been
that if they could establish co-ownership in the classic sense they could
as a consequence halt mixing of ores, their subsequent treatment and the
subsequent sale of their proceeds: a true thrust at the jugular. I have
demonstrated, I believe, that the appellants cannot stop mixing. As far
as sale is concerned I have further demonstrated, I believe, that there
72
cannot be sale without accounting. Non constat that there cannot be sale with accounting in some form or another. I shall return to this subject. All of this leads me to the conclusion that even if co-ownership of a kind be established, one should beware of the error against which Van den Heever J warned intermittently, for instance in Van der Westhuizen
v Engelbrecht and Souse . Engelbrech v Engelbrecht 1942 OPD 191, where he said (at 200), "(to) deduce the legal results of a juristic act from a notion used as a label roughly to express its
degree or direction of effectiveness, is a logical perversion."
Whilst continuing to bear this warning in mind I address categorisation in order to answer the question in para 4.2. Earlier in this judgment I have listed what seem to be the theoretical possibilities. As regards the last, exclusive ownership by Lebowa, it was adopted by the
73
Court a quo because of the construction it placed on the 1966 cession, not because of any common law right. Approaching the matter as one of common law, it seems to me that there is no basis for such exclusive ownership. It would involve that merely because the one rights-holder moved first in severing ore he could extinguish the other holder's rights and acquire them for himself. This smacks of the acquisition of ownership by seizure, a mode of acquisition not previously recognised. In this respect I differ from my Brother Plewman, who regards this as a by-products case. The respondents cannot simply ignore the appellants' rights.
Nor do I think that the solution is to be found in unjust enrichment, a basis of liability not advanced at all by the appellants. Unjust enrichment must be about the last arrow in the quiver of
74
remedies, and I do not think that it provides the answer here. There is a better and more specific answer.
A personal right against Lebowa to prevent certain actions and obtain some part of the proceeds would go some part of the way towards attaining equity, but it would exclude remedies against a third party, for instance one without permission removing ore already mined.
A just re aliena would cope with this problem. The theoretical basis for it is that upon severance by Lebowa, Pyramid's real right in the landowner's immovable becomes converted into a new real right, now in Lebowa's movable. But it would be a strange form of jus in re
aliena, a real right in another's movable which one does not possess. Apart from statute and some long-discarded hypothecs such a thing is not known to our law. I do not think that this is the solution.
75
That leaves a form of co-ownership, or a right sui generis. It must
be said at once that if the result of severance by one of the rights-holders
is co-ownership of the ore, it is an unusual, even atypical manifestation
of that institution (pace van den Heever J). I say that for the following
apparent reasons (which may not stand up to analysis). First, co-owners
have the same rights in the same thing, even if each is entitled only to
a share: van Warmelo Die Geskiedkundige Ontwikkeling van Mede-
Eiendom in die Romeinse en Romeinse-Hollandse Reg(1950) 13 THR-HR
205 at 208: Silberberg and Schoeman The Law of Property 3 ed 310.
Here, it may be contended, the two parties do not have interests in the
same thing, but in different things, precious metals, and base metals and
minerals. However this distinction does not stand up to analysis. The
parties can as little take delivery of and acquire ownership of their
76
separate entitlements as they could when the ore was still in the ground. It is only when the ore has been reduced to its constituents that delivery can be taken. So that while the ore remains ore co-ownership is compelled. This point of distinction therefore becomes a point of identification. Secondly, whereas the shares of co-owners are ordinarily determined in advance, whether by agreement, contribution, or act of testation, the shares of the parties can be determined only after the constituents of the ore have been refined. This is an apparent point of distinction, but I suppose it can be abated by recognition
that spouses married in community of property may by contract regulate their sharing of profits in a way that can only be determined in the future: so that one must not be too dogmatic about what the law recognizes as co-ownership and what not. Thirdly, a co-owner does not normally have the jus
77
abutendi. Thus he may not sell a forest or the saleable stone on the joint property. But here again such acts would be permissible with consent. The act of separation in 1966 impliedly contained just such a consent -to mine. Fourthly, a co-owner usually has a right of veto when another wishes to alter the nature of the property, whereas I have concluded that the one party cannot stop the other mining if it is reasonable to mine. But here also I do not see why co-owners should not agree to government by the majority or even by an autocrat. The remedy if one does not like it is to sell.
Further examples of atypicality may be given, but as the points are analysed one by one it becomes apparent that none of them, nor all of them together, necessarily contradict the existence of ownership in common, which is the possibility under investigation.
78
The respondents have emphasized another reason why they say co-ownership could not have arisen - that ownership can only be acquired
by that mineral rights-holder who severs ore intending to become its owner. The holder who does not sever, himself or through another, even though he is entitled to do so, acquires no rights, so the argument runs.
As I have indicated before I do not propose to deal with severance effected by third parties or caused by forces of nature. It thus
becomes unnecessary to consider the nice distinctions drawn by Voet 7.1.28 between the usufructuary and the bona fide possessor, concerning entitlement to fruits not gathered by or for him. Nor do I find helpful Voet's statement that the usufructuary who does not himself gather (or through another) has no entitlement to fruits.
In the act of separation in 1966 there was a contemplation by each
79
party that the other might mine or mine first. There is no reason to think
that either intended that upon that event he abandoned his rights in
advance. Rather the intention must have been that upon severance his
rights in the land would be converted into rights in the ore. It has been
argued, and I think that the argument is correct, that in 1966 already,
contingent intentions were formed, by the landowner to transfer
ownership of severed ore to the holders of the mineral rights, and by
each of the latter to receive such ownership. The contingency was
severance. There was no intention thereby to create a res nullius
inviting appropriation by the first comer. In principle the case is little
different to A and B agreeing on the telephone that B will buy a table
yet to be made from A, and will call to collect it in A's absence in a
weeks time, after its manufacturer has placed it in A's house also in his
80
absence. Upon B's collecting the table ownership will pass.
Accordingly I conclude that Pyramid and Lebowa become co-owners upon severance. Even although this is an unusual manifestation of co-ownership, it is co-ownership nonetheless, so that it become unnecessary to consider the last possibility postulated, a right sui generis.
To what relief this leads we have not been asked to decide. Nor in consequence has the subject been properly explored in evidence or argument. For those reasons, as also for the reason that statutory change may render a result in this case academic in the future, I intend giving only the most general (and non-binding) indication of how the problems might be solved so that the matter may be somewhat rounded off.
Where co-owners cannot agree on the manner of partition, a court has a wide discretion in ordering the form of partition (Robson v Theron
81
1978(1) SA 841 (A) at 855- C-D: Lee and Honore Family, Things and Succession 2 ed para 363). As ore that is mined is not replaced, its mining does amount to a distribution of the capital asset which is co-owned. It seems to me that the discretion should be exercised in an unusual manner to meet this unusual circumstance. I have held that Lebowa may mine, mix, concentrate and refine. May it also sell the base products? I think it may. The circumstances of the case are such that Lebowa has assumed the task of exploitation, and as things stand now it is the only one who will do so. It would be unreasonable to allow Pyramid to prevent it: cf Erasmus v Afrikaner Propietary Mines Ltd 1976(1) SA 950 (W) at 958-9. To cut off the last stage of exploitation, sale, would be unrealistic. Moreover, to require all the copper, nickel, sulphuric acid and so forth to be handed to Pyramid after refinement
82
would complicate matters even more; because of one thing I am sure, and that is that Pyramid can as little appropriate the refined base products, refined at the expense of the respondents, as the respondents can appropriate the same without any recognition of the appellants' rights. Pyramid would have to account to the respondents in minerals or money for their beneficiation of the ore.
The practical answer appears to be to allow the respondents to sell, subject to rendering an account to Pyramid. Such an account might include on the debit side at least direct costs, overheads properly apportioned, and capital, prospecting and development costs, the latter suitably amortised. Not that that is necessarily the end. Leonine partnerships constituted by agreement occur more frequently in the old books than in present day practice, and I see no reason why the law
83
should impose a relationship in Pyramid's favour of all profit and no loss. Put in a rather different way, the entrepeneur's way is fraught with uncertainty. He has to take risks. It is not necessarily all profit and no loss. Mining is no exception. In some manner these realities must also be taken into account. The result in this case may be that Pyramid gets little or even nothing. My Brother Plewman may turn out to be correct in his ultimate conclusion, but I do not agree with the route by which he reaches that conclusion.
If there is to be an accounting in this form, then a necessary prior step may be an account of quantities being mixed at various stages, without which it would not be possible for Pyramid to establish its rights. Records reflecting figures have not been demanded, so that there is no need to deal with this question in the relief.
84
It may be that the whole basis that I have outlined is inappropriate,
and that even at common law the matter should be approached on a
market value basis, such as is contemplated in s 5(3) of the Minerals Act
50 of 1991, ("the 1991 Act"), which applies in what was Lebowa from
1 May 1995 by virtue of the Mineral and Energy Law Rationalisation
Act 47 of 1994 and Proclamation R 46 of 1995 (GG 5498 of 28 April
1995). The subsection reads:
"Any person mining any mineral under a mining authorization may, while mining such mineral, also mine and dispose of any other mineral in respect of which he is not the holder of the right thereto, but which must of necessity be mined together with the first-mentioned mineral: Provided that such person shall compensate the holder of the right to such other mineral for his mineral to an amount mutually agreed upon or, if no agreement can be reached, to an amount determined by arbitration in accordance with the Arbitration Act, 1965 (Act No. 42 of 1965), or by any competent court if the last-mentioned person prefers the last-mentioned procedure: Provided further that
85
in determining the last-mentioned amount, section 12 of the Expropriation Act, 1975 (Act No. 63 of 1975), shall mutatis mutandis apply as if an expropriation of property or the taking of a right has taken place in terms of the last-mentioned Act."
Dale and Kaplan A Guide To The Minerals Act 1991 express the view in paras 6.12.3.1 and 2 that if the "secondary mineral" is not worth exploiting on it own it has no market value, even though it has a value to one exploiting the "primary mineral." It is not necessary for me to decide this question (I shall explain why later) but I am not sure that this opinion is correct, because the rights to the secondary mineral may have a value nonetheless, based on a right to an account and payment, in the form that I have suggested above. The Position After 1 May 1995 (Para 5 above)
On appeal before this Court the appellants have sought to amend
86
their notice of motion to include relief based on the 1991 Act from 1 May 1995. It is not competent to grant such relief, by virtue of the rule that a statute passed while a case is pending, does not, whether or not it be retrospective, affect that case, which must be decided
according to the law as it was when the case commenced, all this unless the statute evinces a clear contrary intent: Bell v Voorsitter van die Rasklassifikasieraad en Andere 1968(2) SA 678(A) at 684 E. In this case no such intent is expressed. Accordingly this part of the amendment cannot be granted. The Relief
The application to amend mentioned provides also for a reformulation of the original relief. The effect is to cut it down. There is no opposition to this amendment.
87
In the result:
1.
The application to amend the notice of motion by replacing the existing prayers with paragraphs 1 and 3 of the "Konsep Hofbevel" attached to the appellants' heads of argument is granted. Any wasted costs caused are to be paid by the appellants.
2.
The application to amend by inserting paragraph 2 of the said draft order is refused. The appellants are to pay the wasted costs (if any) of the application on an opposed basis.
3.
The appeal is allowed with costs.
4.
The costs referred to in paras 1, 2 and 3 are to include those consequent upon the employment of two counsel.
5.
The order of the Court a quo is replaced with the following:
"Dit word verklaar dat -
88
1. die mineraalregte vermeld in die notari
le prospekteerkontrak K4439/89PC en die mineraalregte verkry deur die tweede applikant uit hoofde van die notari
le sessie van mineraleregte K557/93RM, aangegaan tussen tweede applikant en eerste respondent (hierinlater na verwys as 'die regte op onedele minerale/metale') ten aansien van erts wat deur die houer van regte op edele metale en/of die derde respondent in, op of onder die plaas Umkoanesstad, 419, registrasie afdeling KS, Transvaal losgemaak en gemyn was omvat het dat:
1.1
Die tweede applikant die mede-eienaar van sodanige erts was maar sonder dat al die gewone gevolge van mede-eienaarskap noodwendig daaruit afgelei moet word;
1.2
Die tweede en/of derde respondente nie geregtig is om vir homself/hulself die onedele minerale/metale afkomstig uit sodanige erts, toe te eien en vir eie voordeel of rekening te verkoop nie, sonder inagneming van die applikante se regte met betrekking tot die erts;
1.1
89
2. Die tweede en derde respondente word gelas gesamentlik en afsonderlik die applikante se koste te betaal, insluitende die koste van twee advokate."
W P SCHUTZ JUDGE OF APPEAL
Case No 609/94
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION) In the matter between: TROJAN EXPLORATION COMPANY
(PTY) LTD
First Appellant
PYRAMID PLATINUM LTD
Second Appellant
and
RUSTENBURG PLATINUM MINES LTD
First Respondent
LEBOWA PLATINUM MINES LTD
Second Respondent
MINISTER OF MINERAL AND ENERGY
AFFAIRS
Third Respondent
Coram: BOTHA, VAN HEERDEN, NESTADT, SCHUTZ JJA et PLEWMAN AJA
Date Heard: 2 and 3 May 1996
Date Delivered: 31 May 1996
JUDGMENT NESTADT. JA:
The basis on which it was held in Bezuidenhout v
Worcester Gold Mining Company 1 OR 249 (referred to by Van
2
Heerden JA) that the defendant had the right to sell the non-gold-bearing stones was the plaintiffs implied consent so to do. It is interesting to note that at 252 the following is said:
"There may be cases in which the claim-holder does something inconsistent with the rights of the owner, so that it can fairly be maintained that the owner must not be considered to have given up his rights where something out of the common, something that cannot reasonably be presumed to have been contemplated, has happened - for instance, where the claim-holder finds petroleum in payable quantities deep down in the earth. But that would be an entirely different case."
Nor do I think that Roodekop Gold Extraction Syndicate Ltd v New
Minerva Syndicate Ltd 1910 WLD 63 is of assistance to the
respondents. The relevant right of the lessee was to "treat, remove
and recover gold and other minerals from the slimes and tailings".
It was held (at 68-69) that the intention of the parties was not to
invest the property in these slimes and tailings in the respondents but
3
to give them the right to extract only the gold from them; but the tailings and slimes themselves could not be removed.
I agree generally with the judgment of Schutz, JA. In particular, I am of the view, for the reasons given by him, that the ores which the respondents mine are not properly to be regarded as exclusively those of precious metals. In any event, and for the reasons given by Botha JA, I do not think that the classification by the witnesses of those ores as precious metal ores is the answer to the problem.
I agree therefore that the appeal succeeds in the terms proposed by Schutz JA.
H H Nestadt
Judge of Appeal
Case number: 609/94
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
TROJAN EXPLORATION COMPANY
(PROPRIETARY) LIMITED
First Appellant
PYRAMID PLATINUM LIMITED Second Appellant
and
RUSTENBURG PLATINUM MINES LTD
First Respondent
LEBOWA PLATINUM MINES LTD
Second Respondent
MINISTER OF MINERAL AND ENERGY
AFFAIRS
Third Respondent
CORAM: Botha, Van Heerden, Nestadt, Schutz JJA et Plewman AJA
HEARD: 2 and 3 May 1996 DELIVERED ON: 31 May 1996
PDF format
RTF format