Free State Gold Areas Ltd v Merriespruit (Orange Free State) Gold Mining Co Ltd and Another

• Jurisdiction: South Africa
• Judge: Williamson J
• Judgment Date: 24 February 1961
• Citation: 1961 (2) SA 505 (W)
• Court: Witwatersrand Local Division

Free State Gold Areas Ltd v Merriespruit (Orange Free State) Gold Mining Co Ltd and Another
1961 (2) SA 505 (W)

1961 (2) SA p505

Citation	1961 (2) SA 505 (W)
Court	Witwatersrand Local Division
Judge	Williamson J
Heard	March 28, 1960; April 28, 1960
Judgment	February 24, 1961

Flynote : Sleutelwoorde

Interdict — Absolute interdict — Granting of — Proof E necessary by applicant.

Headnote : Kopnota

The Court granted an absolute interdict restraining the respondents from pumping water from their mines on to the surface of certain farms in respect of which the applicant held the mineral rights where the applicant proved on a balance of probabilities a clear right, a F reasonable apprehension of injury, i.e. an injury which a reasonable man might entertain on being faced with certain facts and the absence of any other adequate remedy.

Case Information

Application for an interdict. The facts appear from the reasons for judgment.

O. Rathouse, Q.C., (with him A. Fischer, Q.C., and George Colman, Q.C.), for the applicant. G

N. E. Rosenberg, Q.C., (with him A. I. Maisels, Q.C., R. S. Welsh, Q.C., and W. H. R. Schreiner), for the respondents.

Cur. adv. vult.

Postea (February 24th). H

Judgment

Williamson, J.:

This is an application for an order of this Court interdicting the two respondents from pumping water onto any area of the surface of certain farms near Virginia in the Orange Free State in

1961 (2) SA p506

Williamson J

respect of which the applicant holds the mineral rights. Alternatively to the prayer for an outright interdict, the applicant asks for a temporary interdict so restraining the respondents pending the institution of an action for the grant of a perpetual interdict. An order for the costs of these proceedings to be paid by the respondents A was also prayed for. The proceedings were instituted by way of a petition supported by the affidavits of certain experts. In reply voluminous affidavits were filed on behalf of the respondents; following on these affidavits numbers of further lengthy affidavits were filed on behalf of both the applicant and the respondents. Eventually the petition, the affidavits and the annexed maps, drawings, graphs etc. B placed before the Court were contained in several volumes of over 2,000 pages.

The applicant, Free State Gold Areas Limited, is a Company with its registered office in Johannesburg. The first respondent, Merriespruit (Orange Free State) Gold Mining Company Limited also has its registered C office in Johannesburg and so has the second respondent, Virginia Orange Free State Gold Mining Company Limited; the two respondents will be referred to hereinafter as Merriespruit and Virginia respectively.

Both Merriespruit and Virginia are alleged in the petition to carry on mining operations for the recovery of gold and uranium in the vicinity D of the Town of Virginia on the Orange Free State goldfields. In fact at the time of the hearing of this matter Merriespruit appeared to have ceased carrying on such mining operations owing to a serious flooding of its mine. Virginia is still carrying on such operations at a mine immediately adjacent to the Merriespruit flooded mine. These two mining E companies are associated companies in the sense that they both fall into what is known as the Anglo-Vaal Group, Anglo-Transvaal Consolidated Investment Company Limited being the technical managers and administrators of both companies.

On June 30th, 1951, the applicant acquired by cession all the rights to minerals and precious stones, other than lime or clay, in the remaining F extent of a portion known as Erfdeel No. 188 of the farm Doornpan No. 426. The applicant is also the registered owner of the mineral rights in certain six other farms adjoining the farm Erfdeel; the whole area in respect of which the applicant thus owns the mineral rights is known as the 'Erfdeel Block'.

G To the north and west of the farm Erfdeel lie certain farms known as the remaining extent of sub-division 1 of the farm Dankbaarheid No. 187, sub-division 2 of the same farm Dankbaarheid 187, sub-division 3 of the same farm, sub-division 1 of the farm Helderwater No. 494 and the remaining extent known as Homestead No. 668 of a portion of the farm Kaalvalley No. 661. The mineral rights in all these farms are owned H jointly by Union Free State Mining and Finance Corporation Limited, hereinafter referred to as U.F.S.M., and African and European Investment Company Limited, referred to as African and European. This area in which the mineral rights are held in equal shares by these two companies is referred to as the 'Dankbaarheid Block'.

The U.F.S.M. is associated with the applicant company and in fact acts as the secretaries and technical advisers to the applicant and other

1961 (2) SA p507

Williamson J

companies forming one group of companies. It was stated in the petition that the U.F.S.M. was aware of the proceedings instituted by the applicant and that its views in connection with the present proceedings coincided with those of the applicant. The U.F.S.M. was not however in any way formally made a party to the proceedings. The African and A European is under the technical management and administration of the Anglo-American Corporation of South Africa Limited and falls into a group of companies referred to as the Anglo-American Group. The African and European were in July, 1957, asked on behalf of the U.F.S.M., whether it would join with U.F.S.M. and the applicant company in taking proceedings for an interdict in the form claimed in this application. In B view of the fact that African and European had in February, 1957, been asked for and had given their consent to the construction of a pipe line to effect the very purpose sought now to be interdicted by the applicant it is not surprising it was decided 'after careful consideration' that it was not necessary for African and European to join in any such proceedings.

C To the north-west of the farm Erfdeel there exists a large natural depression known as the Doringpan or Doornpan. During the rainy season in this area this depression normally became covered with a sheet of water to a maximum depth of some three to four feet. The area so covered by the pan formed by the accumulation of rain water was approximately D 280 morgen. A portion of this pan fell on the farm Erfdeel; the larger portion thereof fell on the farms Dankbaarheid and Helderwater forming portion of the 'Dankbaarheid Block'. During the winter or dry season in every year the water in this pan would evaporate and Doornpan would become completely dry. Figures gathered in the area indicate the E rainfall in the neighbourhood of the Doornpan to be about 22.5 inches a year. Loss by evaporation in the same period amounts to 70 inches a year leaving a nett loss by evaporation of 47.5 inches a year. This would mean that for a material portion of each year the whole of the floor of this pan would normally have been available for prospecting and other purposes.

F The mines of the two respondents are situated some 12 to 14 miles south of the Doornpan. It was stated on affidavit by the consulting engineer of the U.F.S.M., Mr. Hosiosky, and by its geologist, Mr. Louw, that they visited the farm Erfdeel on 17th July, 1957, and on that occasion found that a pipe line and furrow had been constructed leading from the G Virginia mine across inter alia the surface of the farm Erfdeel and parallel to the farm Dankbaarheid, which pipe line and furrow terminated in the Doornpan. Water was being pumped through this pipe line and furrow and was being discharged into the Doornpan. Subsequent investigation established that water was pumped from the Virginia mine H into a dam on the farm Moriyah No. 288, the surface rights of which were held by Merriespruit, the first respondent. From the Moriyah dam the water was pumped back across the Sand River and into the pipe line eventually terminating in the Doornpan 12 or more miles to the north.

This discovery by Messrs. Louw and Hosiosky, according to the applicant's witnesses, for the first time disclosed to the applicant and its advisers that in fact the Doornpan was being and was going to be used

1961 (2) SA p508

Williamson J

further on a very extensive scale by the two respondents for the disposal of the vast quantities of underground water which had to be taken out of the workings of the Merriespruit mine and the Virginia mine to enable the two respondents to carry on mining operations therein for A the recovery of gold and uranium ore. Such operations are still being carried on by Virginia. Merriespruit has presently and for some considerable time past ceased mining operations owing to the aforementioned flooding of the mine in or about November, 1956.

Following on this discovery interviews and correspondence ensued between the parties. On behalf of the applicant a demand was made that the two B respondents should cease entirely the pumping or leading of their underground water into the Doornpan. Such a claim was repudiated on behalf of the respondents and eventually, in June, 1958, these present proceedings were instituted.

There are a number of passages in the affidavits, and particularly in C the affidavit of a Mr. Green, a director of the two respondents, and the annexures to that affidavit which deal with the question whether the applicant or the U.F.S.M. on its behalf knew or ought to have known before July, 1957, that the Doornpan was going to be used for the disposal of underground water on a large scale. There is no real evidence which really raises any doubt as to the accuracy of the statements by Hosiosky and Louw that this was a fact only first known D about July, 1957, after their visit to Erfdeel. Whether the possibility of the Doornpan being converted from a summer pan into a large permanent...