Ex parte Marchini

• Jurisdiction: South Africa
• Judge: Cillié J
• Judgment Date: 08 October 1963
• Court: Transvaal Provincial Division
• Hearing Date: 21 August 1963
• Citation: 1964 (1) SA 147 (T)

Cillié, J.:

On the 3rd December, 1953, the applicant became the registered owner of certain remaining extent of a portion of the farm Waterval 125 in the district of Pretoria. According to the deed of transfer and in terms of a registered notarial cession, the mineral rights in respect of the property were ceded to Rogerston Collieries A Ltd. on the 22nd December, 1896. By a special resolution passed at a meeting of shareholders on the 8th September, 1924, Rogerston Collieries Ltd. went into voluntary liquidation and its name was removed from the register of companies. During 1926 authority was given for the destruction of all its books and documents, and the company no longer exists.

B From the liquidator's statement of account it appears that the mineral rights were not indicated as an asset of the company and were not disposed of. The applicant claims that these rights, probably because they were regarded as worthless, were abandoned and that he now owns them because he is the owner of the land to which they relate.

C As the matter stands the applicant is hampered in the exercise of his rights to the land by the fact that the title deeds still indicate Rogerston Collieries Ltd. as the owner of the mineral rights. He has been approached to grant a servitude of a pipeline and an electric power line across the land, but before such a servitude can be granted or D registered, the consent of the owner of the mineral rights, as an interested party, is necessary. In his report the Master correctly states that

'as the books and records have been destroyed and as the minerals appear to be valueless, no good purpose can be served by re-instating the company now'.

Consequently a rule nisi was issued calling on all persons concerned to E show cause why the Registrar of Deeds shall not be ordered to delete from the applicant's title deeds the condition reserving the mineral rights to Rogerston Collieries Ltd. The rule was served on the State Attorney and on the return day the Minister of Lands opposed the confirmation of the rule.

F It was contended on behalf of the applicant that the cession of the rights to the minerals constituted a right of a personal nature which, on abandonment, reverted to the owner of the land. On behalf of the Minister of Lands it was argued that in these circumstances the rights were bona vacantia and belonged to the State. It is, therefore, necessary to find what the exact nature of these rights is.

G The reservation of mineral rights are commonly referred to as a quasi-servitude. In the case of Lazarus and Jackson v Wessels and Others, 1903 T.S. 499, INNES, C.J., says at p. 510:

'Rights of that nature are peculiar to the circumstances of the country, and do not readily fall under any of the classes of real rights discussed by the commentators. They seem at first sight to be very much of the nature of personal servitudes; but then they are freely H assignable...