Klooval Investments (Pty) Ltd and Others v Minister of Economic Affairs and Technology and Others

• Jurisdiction: South Africa
• Judge: Joubert JA, Botha JA, Vivier JA, Kumbleben JA, F H Grosskopf JA
• Judgment Date: 24 August 1989
• Hearing Date: 02 May 1989
• Court: Appellate Division

Vivier JA:

The second respondent is the registered holder of a mining lease granted over a joint area under s 20bis(3) of the Precious and Base Metals Act 35 of 1908 (T) ('the Gold Law') on the farms Elandsfontein No 346, Libanon No 283, Doornkloof No 348, Doornkloof No 350, Leeudoorn No 351 and Rietfontein No 349 on the Far West Rand. The mining lease was originally granted on 23 August 1967 by the Government C to West Witwatersrand Areas Ltd, the owner of the mineral rights of the area in question, who subsequently ceded the lease to the second respondent. Both the lease and the cession were duly registered. West Witwatersrand Areas Ltd thereafter changed its name to Gold Fields of South Africa Ltd. The second respondent carries on gold mining on the area in question, to which I shall refer as the mining ground. The first D appellant is the registered freehold owner of a portion of the mining ground, viz portion 25 of the farm Rietfontein No 349, to which portion I shall refer as the Klooval property.

E During the early part of 1967 and in consequence of an application by first appellant, trading site No 42 on the Klooval property was set apart in first appellant's favour under s 5(5)ter of the Trading on Mining Ground Regulation Act 13 of 1910 (T) ('the 1910 Act'). Section 5(5) was amended at various times, by s 1 of the Trading on Mining Ground Regulation Act (Transvaal) Amendment Act 10 of 1924, by s 49 of F the Mineral Law Amendment Act 36 of 1934, by s 6(2) of the Mine Trading Amendment Act 20 of 1941 and by s 4 of the Mine Trading Amendment Act 18 of 1955. I will deal with the effect of these amendments more fully later. First appellant was thereby authorised to carry on the business of 'a general dealer, butcher and keeper of an eating-house for Bantu' on the said trading site. I shall refer to these three businesses as the G triad. Between them the three appellants are the vested holders of the aforesaid trading rights which they have exercised for more than 20 years. The third respondent is the registered owner of another portion of the mining ground, viz portions of the farms Doornkloof No 350 and Rietfontein No 349. Third respondent's property is in close proximity to H the Klooval property.

Both the Gold Law and the 1910 Act were repealed by the Mining Rights Act 20 of 1967 ('the 1967 Act') which came into operation on 1 October 1967. Like its precursors the 1967 Act contained elaborate provisions (in chaps X - XV, ss 90 - 142) for the control of trading or the carrying I on of business on proclaimed land or land held under mining title. Section 139(1) of the 1967 Act generally prohibited any trade or business on proclaimed land or land held under mining title except upon a recognised stand, trading stand or trading site.

On 12 August 1985 the third respondent applied to the Minister of Economic Affairs and Technology ('the first respondent') to be exempted, in terms of s 158 of the 1967 Act, from the provisions of chaps X - XIV J and

Vivier JA

A s 139(1) of that Act in respect of a certain area of his land situated on the farm Doornkloof No 350. The purpose of the application was to enable the third respondent to commence trading on his land. The application for exemption was amplified and widened in a letter dated 30 June 1986 addressed to first respondent. The first respondent granted B the application and a notice appeared in the Government Gazette of 19 September 1986 which exempted the third respondent from the provisions of chap X and s 139(1) of the 1967 Act in respect of the land mentioned in the application.

The appellants thereupon applied on notice of motion to the Transvaal Provincial Division for an order declaring invalid the first C respondent's grant of the exemption on a number of grounds. The application was supported by Doornkloof Winkels (Edms) Bpk and Webco Winkels (Edms) Bpk, both of which carry on the triad businesses on the mining ground. Neither the first respondent nor the second respondent opposed the application, although an affidavit deposed to by the first D respondent was filed by the third respondent in support of his opposition to the application. The matter came before Goldstone J who dismissed the application with costs but granted leave to the appellants to appeal to this Court.

Before considering the provisions of the 1967 Act and those of its E precursors relating to the control of trading and the carrying on of business on proclaimed land and land held under mining title, it is necessary to deal briefly with the legal position governing the use of the surface of such land with particular reference to the respective rights of the holder of the mining title and the owners of the surface. In terms of s 20bis (5) read with s 19(11) of the Gold Law, the second F respondent's mining lease was a mining title for all purposes of the Gold Law or 'any other law' and was registrable as such in the office of the Registrar of Mining Titles. Upon registration the mining ground became deemed to be 'proclaimed land' in terms of s 26bis of the Gold Law. The mining ground was thus both land held under mining title and proclaimed land under the Gold Law (cf West Driefontein Gold Mining Co G Ltd v Brink and Others 1963 (1) SA 304 (W) at 307D - E). It retained its character as such for the purposes of the 1967 Act, which provides in s 188 that everything done and all rights acquired or conferred under the repealed legislation are, save as otherwise provided in the 1967 Act, deemed to have been done, acquired or conferred under the corresponding provisions of the 1967 Act. Section 1 of the 1967 Act defines H 'proclaimed land' as land which has been proclaimed as a public digging in terms of s 39 or which is proclaimed land by virtue of the provisions of s 40. I shall return to s 40 later. The expression 'mining title' was first used in the Gold Law which specified the different rights constituting mining title. The 1967 Act defines mining title in general terms to mean

I 'any right to mine granted or acquired under this Act, and any other right to mine granted or acquired under any prior law and existing at the commencement of this Act, but does not include a right to mine for precious stones'.

The provisions of the 1967 Act relating to the use and disposal of the surface of mining land apply equally to both proclaimed land and land J held under mining title.

Vivier JA

A The basic policy of the Legislature relating to the use and disposal of proclaimed land and land held under mining title is expressed in s 90(1) of the 1967 Act which is substantially similar to s 68(1) of the Gold Law. Section 90(1) provides in clear terms that the right of disposal over the surface of proclaimed land and land held under mining title is reserved to the State for the purposes of the Act or any other B law, and that, save as is specially otherwise provided in the Act, the surface of proclaimed land held under mining title shall not, without the written permission of the Mining Commissioner, be used otherwise than for mining.

This policy has remained consistent since the earliest statutes dealing with mining for precious metals in this country. So, for example, s 15 of Act 7 of 1874 provided that in respect of privately C owned land 'het geheele bestuur, beide van handel en delvings belangen' rested with the Government. And in Greathead v Transvaal Government and Randfontein Estate and Gold Mining Co Ltd 1910 TPD 276 Innes CJ, dealing with the policy and scope of the Gold Law of 1889 and its successors, said at 288:

D 'So far as the surface was concerned, the exclusive rights of the owner were recognised to portions of it, such as his werf, his garden, his cultivated land and so on; but, subject to those reservations, the Government had in effect the control of the surface for purposes connected with the industry, and the welfare of the population which it attracted.'

E In West Driefontein Gold Mining Co Ltd v Brink and Others (supra ) Trollip J dealt with the legal metamorphosis in the ordinary proprietary rights of a surface owner of land resulting from proclamation as follows (at 307 in fine - 308C):

'In the Transvaal, on and during such proclamation, the ordinary proprietary rights of the freehold owner are suspended, and the only rights and benefits that he is entitled to are those conferred by the F Gold Law or any other special law. In so far as the surface of the land is concerned, those rights under the Gold Law are limited to the use of his homestead, buildings, cemeteries, kraals, certain cultivated lands and water, reserved to him on proclamation of the land (ss 23 and 24bis ); and under the Mine Trading Act 13 of 1910 as amended by Act 18 of 1955, to the use of a trading site which was being used when the mining title was acquired (s 5(5)ter thereof). The rights in the G remainder of the surface vest in and are at the disposal of the State, to be allocated by it or its officials to the freehold owner, the holder of the mining title or lease, or other persons by means of permits, licences or certificates for such purposes of mining or other purposes as the Gold Law or any other law allows (see chaps IX and X of...