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

• Jurisdiction: South Africa
• Citation: 1990 (1) SA 257 (A)

Klooval Investments (Pty) Ltd and Others v Minister of Economic Affairs and Technology and Others
1990 (1) SA 257 (A)

1990 (1) SA p257

Citation	1990 (1) SA 257 (A)
Court	Appellate Division
Judge	Joubert JA, Botha JA, Vivier JA, Kumbleben JA, F H Grosskopf JA
Heard	May 2, 1989
Judgment	August 24, 1989

Flynote : Sleutelwoorde B

Mines and minerals — Trading rights in respect of land held under mining title — Minister granting exemption in terms of s 158 of Mining C Rights Act 20 of 1967 from certain provisions of Act governing control of trading or carrying on of business on proclaimed land or land held under mining title — Purpose of applying for exemption under s 158 to avoid having to tender for trading rights in competition with others — Legislature never intending s 158 be used, where there might be business D interests and trading competition, for purpose of creating business and trading rights for one party to exclusion or detriment of rivals — Minister therefore acting ultra vires and decision set aside.

Headnote : Kopnota

Appellants were the vested holders of trading rights on certain mining land. Third respondent was the registered owner of another portion of E that same land situated in close proximity to the portion on which appellants exercised their trading rights. Third respondent had applied for, and been granted, an exemption, in terms of s 158 of the Mining Rights Act 20 of 1967, from certain provisions of that Act relating to the control of trading or carrying on of business on proclaimed land or land held under mining title. The purpose of the third respondent's application had been to enable him to commence trading on his land and the reason for employing the procedure under s 158 instead of obtaining F the right to carry on his proposed business or trade under s 102(1)(b) and s 129(1)(b) of the Act was to avoid opposition from other interested parties and secure an advantage over business rivals. It was expressly stated in the application that its purpose was to avoid having to tender for the trading rights in competition with others whose tenders might be successful. Appellants applied to the Transvaal Provincial Division for an order declaring invalid the grant of the exemption. This application G was dismissed but leave granted to appeal to the Appellate Division.

Held, that the intention of the Legislature in enacting s 158 had been primarily to empower the first respondent to grant exemptions relating to the interests of the holder of the mining title and the use of the land for mining where the only rights that would be affected by such grant would be those of the person in whose favour the exemption was granted.

H Held, further, that it was clear that it had never been the intention of the Legislature that s 158 be used, in a situation where there might be business interests and trading competition, for the purpose of creating business and trading rights for one party to the exclusion or detriment of his rivals or other interested parties.

Held, accordingly, that the first respondent did not have the power he purported to exercise and in so doing he acted ultra vires the provisions of s 158 of Act 20 of 1967.

I The decision in the Transvaal Provincial Division in Klooval Investments (Pty) Ltd and Others v Minister of Economic Affairs and Technology and Others reversed.

Case Information

Appeal from a decision in the Transvaal Provincial Division (Goldstone J). The facts appear from the judgment of Vivier JA.

R S Welsh QC (with him S W Sapire SC ) for the appellants referred to the following authorities: As to the intention and effect of the J exemption,

1990 (1) SA p258

A see Mullins and Meyer v Pearlman 1917 TPD 639 at 664; Valkin and Another v Daggafontein Mines Ltd and Others 1960 (2) SA 507 (W) at 509 - 10. As to the exercise of an administrative power, see Joubert (ed) The Law of South Africa vol I at 52 - 3; Baxter Administrative Law 1st ed at 507ff. As to use of statutory powers for a purpose for which they were not B intended, see Van Eck NO and Van Rensburg NO v Etna Stores 1947 (2) SA 984 (A) at 996 - 1000; Broadway Mansions (Pty) Ltd v Pretoria City Council 1955 (1) SA 517 (A) at 522B - C; Administrator, Cape v Associated Buildings Ltd 1957 (2) SA 317 (A) at 325D; Minister van die Suid-Afrikaanse Polisie en 'n Ander v Krantz en 'n Ander 1973 (3) SA 490 (A) at 507C - 508F; Olifantsvlei Township Ltd v Group Areas Development C Board 1964 (3) SA 611 (T) at 614F - H; The Firs Investments (Pty) Ltd v Johannesburg City Council 1967 (3) SA 549 (W) at 552B; Pick 'n Pay Retailers (Pty) Ltd v Minister of Mineral and Energy Affairs 1987 (2) SA 865 (A) at 875G - H. As to specific powers conferred in respect of grant of trading rights, see Sekretaris van Binnelandse Inkomste v Pantanowitz D 1968 (1) SA 272 (T) . As to the interpretation of the statutory provisions, see Venter v R 1907 TS 910; Steyn Die Uitleg van Wette 5th ed at 190 - 1; R v Gwantshu 1931 EDL 29 at 31; Ex parte NBSA Centre Ltd 1987 (2) SA 783 (T) at 799F - 800D. As to reasons for conferring power to exempt, see West Driefontein Gold Mining Co Ltd v Brink and Others 1963 (1) SA 304 (W) E at 307 - 8; Witwatersrand Gold Mining Co Ltd v Municipality of Germiston 1963 (1) SA 311 (T). As to the policy underlying enactments dealing with rights on mining ground, see Simmer and Jack (Pty) Mines Ltd v Union Government (Minister of Railways and Harbours) 1915 AD 368; Sachs v Dönges NO 1950 (2) SA 265 (A) at 284. As to inference to be drawn from failure to file affidavit, see Judges v F District Registrar of Mining Rights, Krugersdorp 1907 TS 1046; Sigaba v Minister of Defence and Police and Another 1980 (3) SA 535 (Tk). As to new arguments raised, see Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A) at 23 - 4; Cole v Government of the Union of South Africa 1910 AD 263 at 273; Union Government v Hawkins 1944 AD 556 at 560; Nel v G Waterberg Landbouwers Ko-operatieve Vereeniging 1946 AD 597 at 607.

I W B de Villiers SC (with him F H Terblanche ) for the respondents referred to the following authorities: As to the exercise of a discretion in granting exemptions, see Crown Mines Ltd v Commissioner for Inland Revenue 1922 AD 91 at 102; Union Government (Minister of H Mines and Industries) v Union Steel Corporation (SA) Ltd 1928 AD 220 at 236 - 7; African Realty Trust v Johannesburg Municipality 1906 TH 179. As to the principles to be applied in interpreting statutory provisions, see Farrar's Estate v Commissioner for Inland Revenue 1926 TPD 501 at 508; L C Steyn Die Uitleg van Wette 5th ed; Ebrahim v Minister of the Interior 1977 (1) SA 665 (A) at 667A; Bulawayo Municipality v Bulawayo I Waterworks 1916 CPD 443; Greenshields v Willenburg and Others 25 SC 568; De Villiers v Cape Law Society 1937 CPD 431; Venter v R 1907 TS 910 at 914; Shenker v The Master and Another 1936 AD 136 at 143; Cockram Interpretation of Statutes 3rd ed; Stellenbosch Farmers' Winery Ltd v Distillers Corporation and Another (SA) Ltd 1962 (1) SA 458 (A) at 484. As to the ambit of the exemption, see Franklin and Kaplan Mining and J Mineral Laws of South

1990 (1) SA p259

Africa at 39 - 44 and 416 - 18; Greathead v Transvaal Government and Randfontein Estate and Gold Mining Co Ltd 1910 TPD 276 at 288. A

Cur adv vult.

Postea (August 24). B

Judgment

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...