Blackmore v Moodies GM and Exploration Company Limited

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, CG Maasdorp JA, De Villiers AJA and Juta AJA
• Judgment Date: 04 June 1917
• Citation: 1917 AD 402
• Hearing Date: 26 February 1917
• Court: Appellate Division

De Villiers, A.J.A.:

The respondent (plaintiff in the court below), claimed from the appellant in the Court of the resident magistrate of Barberton the sum of £57 10s. for rent due from 14th July, 1909 to 13th April, 1915. The claim is based upon an agreement of lease entered into on 14th July, 1905, for a period of 943 years between the plaintiff and one Turton, and a cession upon the same day by Turton with the consent of the plaintiff of all his right, title and interest in the lease to the defendant. Under the agreement, 40 acres of the farm Oorschot were let at the rate of 5s. per acre per annum for the purposes of market gardening, agriculture, or tree planting, and as a residence for the lessee. It is common cause that the plaintiff is the owner of the farm Oorschot. And what has given rise to the dispute is the fact that in terms of Law 1 of 1883, sec. 4 the plaintiff as far back as the year 1884 exercised the option it had under the then existing law and obtained a concession from the Government for the exclusive mining and working of gold on the farm under certain regulations approved of by the Government. The case which is now set up by the defendant, who admits that he has had quiet enjoyment of the property during the whole of the period for which the rent is claimed, is that secs. 67 and 68 of the Precious and Base Metals Act No. 35 of 1908, have made the lease null and void from the date when the Act came into operation, i.e., 1st January, 1909. It is pointed out and not disputed that a concession such as the present falls within the definition of "mining title" sec. 3 (g) of the Act: "any other right to mine existing at the commencement of this Act and lawfully granted." And it is urged that as this is so, the surface of the farm Oorschot is vested in the Crown by sec. 67 and according

De Villiers, A.J.A.

to sec. 68 cannot be used except for mining purposes and purposes incidental thereto. This contention was upheld by the magistrate who dismissed the claim with costs, bat on appeal his decision was reversed by the Transvaal Provincial Division, the Court unanimously holding that concession farms do not fall thin the purview of the sections. It is from this decision that the present appeal was brought.

Before dealing with the arguments it may be useful shortly to refer to the subject of concessions with which we are here concerned. Under what regulations the present concession was granted we do not know as we have not a copy of the concession before us. But we know that it was granted in terms of see. 4 of Law 1 of 1883, which enacted that: "Where gold is found in payable quantities on private properties, the owner will have the preference to take out a concession for the exclusive mining and exploiting of gold on such property, under such regulations as the Government may deem fit." The section then proceeded to provide that if the owner failed to take advantage of his preferential right within six months after publication in the Gazette by the Government that gold had been found on his farm in payable quantities, the Government had the right to take over the farm at a valuation. In the next Gold Law (No. 8 of 1885) there was a radical change of policy in this regard, for by sec. 5 the State President was authorised on the advice and with the consent of the Executive Council to proclaim private ground as Public Goldfields. But it was in the year 1884 that the owners of the farm Oorschot exercised the option they had and obtained a concession from the Government in terms of sec. 4 of the Law of 1883 for the exclusive mining and exploitation of the gold on their property. By subsequent legislation under the Republic concessionaries in the position of the plaintiff obtained the right to allow others to mine for gold on the farm under concession provided the latter took out ordinary claim licences (c.f. e.g. sec. 43 of Law No. 8 of 1889, sec. 36 of Law 19 of 1895). This right continued to exist until the annexation of the Transvaal (see. 32 of Law 15 of 1898). And the law distinctly provided that regulations concerning claims were to apply in such...