Consolidated Diamond Mines of South West Africa Ltd v Administrator, SWA and Another

• Jurisdiction: South Africa
• Judgment Date: 16 September 1958
• Citation: 1958 (4) SA 572 (A)

Consolidated Diamond Mines of South West Africa Ltd v Administrator, SWA and Another
1958 (4) SA 572 (A)

1958 (4) SA p572

Citation	1958 (4) SA 572 (A)
Court	Appellate Division
Judge	Fagan CJ, Schreiner JA, Steyn JA, Malan JA and Hall AJA
Heard	May 19-20, 22-23, 26-29, 1958; May 30, 1958
Judgment	September 16, 1958

Flynote : Sleutelwoorde F

Mines and minerals — Mineral contracts — Halbscheid Agreement — Area covered by — Foreshore included — Contract — Interpretation of — Description of boundaries in Proc. 11 of 1920 (S.W.A.) incorporated in Agreement — Admissibility of evidence to interpret — Ownership — Rei G publicae — Foreshore — When capable of private ownership — Words and phrases — Judicial interpretation of — Scope and effect of.

Headnote : Kopnota

The Sperrgebiet referred to in clause 2 (b) of the Halbscheid Agreement, i.e. the Agreement arrived at between the South-West Africa Administration and the appellant Company, signed on 16th November, 1922, and 15th January, 1923, in respect of the exclusive prospecting and H mining rights in the area, includes the area between high water and low water mark.

The description of the boundaries of the Sperrgebiet in Proclamation 11 of 1920 (S.W.A.) was by reference incorporated in the Agreement and has to be construed, for the purpose of determining the rights between the parties, as part of the Agreement. The rules relating to the admissibility of evidence to interpret a contract accordingly apply.

Semble: In terms of our common law under special circumstances and subject to special safeguards rei publicae which form portion of the regalia, e.g. the foreshore, may become the subject of private ownership.

1958 (4) SA p573

The public have certain simple rights to the foreshore. Any substantial interference with those rights would be a wrongful act. But the State may make a grant of special rights to corporations or private individuals to do more than these simple acts, to the extent even of alienation, subject to the proviso that it is not to prejudice the public welfare.

As the foreshore is not mentioned in section 11 of the Imperial Mining Ordinance for German South West Africa of 8th August, 1905, by application of the maxim inclusio unius est exclusio alterius, there can A under the Ordinance be prospecting on the foreshore with the consequent conversion into mining if the prospecting is successful. For there is not in law such a prohibition against an activity of this nature on the foreshore that the Court should imply the prohibition in a statute which not only does not impose it, but omits it from the list of enumerated prohibitions. Nor is there any logical or practical reason for implying such a prohibition.

Legal systems do not 'define' words in the sense of laying down a rule of law that wherever a particular word occurs it must be given a B particular meaning. The word 'coast' or the phrase 'coast line' are not peculiar to legal terminology. They are in ordinary use and carry in themselves no specialised legal meaning. The question how the matter should be approached in the case of words that are peculiar to legal terminology or are statutorily defined raised.

The phrase 'coast line' is as appropriate to the low water as to the high water line.

The decision in the High Court, South-West Africa in Consolidated C Diamond Mines of S.W.A. Ltd v Administrator, S.W.A. and Another reversed.

Case Information

Appeal from a decision in the High Court, South-West Africa (CLAASSEN, J. P., and DIEMONT, J.). The facts appear from the judgment of FAGAN, C. J.

I. A. Maisels, Q.C. (with him B. L. S. Franklin and H. J. Berker), for the appellant: At all relevant times appellant or its predecessors in title have been entitled to mining rights on the foreshore of the Sperrgebiet. Prior to the date of the passing of Proc. 11 of 1920 on 5th March 1920 it took cession from the Deutsche Diamanten Gesellschaft (hereinafter referred to as the D.D.G.) of all the latter's rights E specified in the contract of 7th May, 1910 between the D.D.G. and the German Fiskus, more particularly the right to participate on a half-share basis in a proposed new company which was to acquire mining rights, inter alia in the foreshore of the Sperrgebiet. The proposed new company, the Halbscheid company never functioned and appellant, which was formed on 9th February 1920, became fully vested, prior to the F passing of the 1920 Proclamation, with all the rights to which the D.D.G. was meant to succeed under the 1910 contract. The benefits of the 1920 cession were acknowledged by the S.W.A. Administration and were implemented in the Halbscheid Agreement of 1922/1923. There is nothing G in that Agreement which derogates from the enjoyment by appellant of rights in the foreshore. On the contrary, the Halbscheid Agreement envisaged that appellant was vested with the full benefit of the D.D.G.'s rights specified in the contract of 7th May 1910 and that such extended to the low water mark. There is nothing in the 1920 Proclamation which derogates from the enjoyment by appellant of rights H in the foreshore of the Sperrgebiet. On a true construction of the Proclamation it had no effect whatsoever on the western boundary of the Sperrgebiet, which remained the low water mark. Under the 1910 contract and the eventual Halbscheid Agreement, the two essential features are the same, viz., the exclusive mineral rights in the Sperrgebiet vested in the Fiskus and then in the S.W.A. Administration and the D

1958 (4) SA p574

profits of the company given the right to exploit these exclusive mineral rights of the Fiskus, to be shared equally between, in the first place, the D.D.G. and the Fiskus, and eventually in the Halbscheid Agreement, between appellant and the S.W.A. Administration. In such A circumstances, bearing in mind the history leading up to the conclusion of the Halbscheid Agreement, and the fact that up to that time all diamond mining operations had in fact been conducted in the coastal area, it would be surprising that the parties should have contracted in the Halbscheid Agreement in respect of a coastal area different from that contemplated in the 1910 contract. No reason is suggested by B respondents as to why this should have done so. Under the Halbscheid Agreement read with the 1910 contract, the area of exclusive mining rights dealt with is referred to as 'the Sperrgebiet'. The Sperrgebiet was originally defined in an Ordinance of 22nd September 1908, and again in the contract of 7th May 1910, and in Proc. 11 of C 1920, all of which are referred to in the Halbscheid Agreement. In order to ascertain the true meaning of the definition of the area of exclusive mining rights to which appellant eventually succeeded, it is necessary to determine the facts and circumstances with reference to which the parties were contracting or legislating at all material stages from 1883 to 1923. As a result of transactions between Luderitz and D Joseph Fredericks in May and August 1883, the former became owner of all the land within the territory defined in these transactions, and this included the foreshore. In 1885 Luderitz passed to the Deutsche Koloniale Gesellschaft (the predecessors in title of the D.D.G.) all the mining rights in respect of the entire territory acquired by him from E Fredericks. By the Treaty of Protection and Amity of 28th October 1887, arts. 4 and 5, the German Empire recognised the territorial cession by the contracts of purchase of 1st May and 25th August 1883 to Luderitz of the littoral of Captain Fredericks' country, together with all rights attached to it. The German Empire thereby acknowledged that prior to the assumption of protection by the Empire, Luderitz had acquired ownership F and all rights, including mining rights in the entire territory ceded to him by Fredericks. Luderitz did not lose any rights in the foreshore as a result of the assumption of sovereignty by the German Empire. The concepts of sovereignty and dominium are clearly severable; see U.S v State of California, 332 U.S. Sup.Ct. Reports at pp. 43 - 4. Cf. G Halsbury's Laws of England (3rd ed., vol. 7, sec. 951). Although, as a general rule, according to German law, ownership of the sea shore vests in the State (see Preussisches Allgemeines Landrecht, Bk. 11, tit. 14, para. 21), corporations or private individuals may be owners of portions of the foreshore by virtue of grant or custom; see Decisions by Reichgericht of 5th May 1900, reported in Seuffert's Archiv., vol. 55, H p. 387; by Reichgericht of 6th January 1925, reported in Juristische Wochenschrift 1926, p. 370; by Oberlandesgericht, vol. 6, p. 493; by Kammergericht of 29th December 1902; Jellinek, Verwaltungsrecht (3rd ed., 1951, pp. 506 et seq.); Gierke, Deutsches Privatrecht (vol. 2, p. 30. p. 31, n. 45); Staudinger-Loewenfeld, Kommentar zum Einfübrungsgesetz (vol. 1, 9th ed., 1929, p. 176); Wolff-Raiser, Sachenrecht (10th ed., p. 404); Förster-Eccius, Preussisches Privatrecht (7th ed., vol. 1, p. 113); Stobbe, Handbuch

1958 (4) SA p575

des Preussischen Privatrechts (vol. 2, 1882 ed., p. 593); Windscheid-Kipp, Pandektenrecht (9th ed., 1906, para. 146); Gierke, supra para. 102. The German Emperor, in assuming sovereignty over the territory, recognised the dominium of Luderitz in it, as he was entitled to do. In German law, as in our law, vested rights are not affected by subsequent laws without special provisions to that effect; see art. VIII A of the Publication Patent of the Preussisches Allgemeine Landrecht of 1794; sec. 14 of the Introduction to the Preussisches Allgemeine Landrecht; Allgemeines Landrecht (vol. II, tit. 14, sec. 21); Decision of the Reichsgericht of 5th May 1900 (Seuffert's Archiv. vol. 55, p. 378). The express recognition of Luderitz's rights in the Treaty of B Amity and Protection, supra, is...