Lebowa Mineral Trust v Lebowa Granite (Pty) Ltd

• Judge: van Dijkhorst J, Van der Merwe J and Coetzee J
• Judgment Date: 07 June 2000
• Citation: 2002 (3) SA 30 (T)
• Docket Number: A841/99
• Hearing Date: 07 June 2000
• Counsel: B W Burman SC (with him C N van Heerden) for the appellant. P R Jammy for the respondent.
• Court: Transvaal Provincial Division

Van Dijkhorst J:

The appellant, Lebowa Mineral Trust (LMT), appeals against an order granted against it in A favour of the respondent, Lebowa Granite (Pty) Ltd (Lebowa Granite), under s 23 of the interim Constitution, the Constitution of the Republic of South Africa Act 200 of 1993, in terms of which it was directed to grant to Lebowa Granite access to all documents in its possession or under its control being: B

(a)

documents relating to any application for mineral leases or other mineral rights in respect of portions of the farm Eysselsdrift 788 LR and the farm Klipplaatdrift 787 LR district Mokarong; and

(b)

documents generated by or commissioned by it from the Lebowa Minerals Trust board (the board) in relation to any such application; and C

(c)

documents containing or concerning any submissions made to the trustee of LMT arising from meetings or deliberations of the board or LMT in connection with such applications, and

(d)

any other documents which LMT considered in relation to any such application made. [*] D

Prior to 1985 Lebowa Granite had prospected for granite on, inter alia, the farms set out in para (a) of the order abovementioned (the properties), and in 1989 it applied for a mineral lease over the entire farms Klipplaatdrift, Skoonoord and Haakdoringdraai. In 1990 it amended its application to retain only portions of the said three farms and the rest was handed back to the E then mineral rights holder, the former Lebowa Government. By notarial mineral lease entered into between it and the self-governing territory of Lebowa, LMT's predecessor in title, on 15 February 1990 and amended on 10 December 1991 Lebowa Granite at all relevant times was the holder of the right to mine granite on some 1 220 hectares of F the three farms aforementioned.

On 22 April 1992 a Mr P F Haarhoff applied to LMT to be granted prospecting rights over the properties covering approximately 1 386 hectares. On 26 May 1992 Lebowa Granite applied to LMT for an amendment of its notarial mineral lease to include some areas surrounding its existing areas including the properties. LMT addressed G a letter to Lebowa Granite on 24 July 1992 informing it that its application had been tabled by the board on 22 July 1992 and that a final decision was being held in abeyance pending receipt of further information. Lebowa Granite allegedly never received this letter. H

On 7 July 1993 LMT informed Lebowa Granite that its application of 26 May 1992 for the inclusion of additional areas to its notarial mineral lease had been successful with the exception of the properties of approximately 1 386 hectares for which Haarhoff had applied. Haarhoff's application for prospecting rights had been treated as a competing application and granted on 3 March 1993. According to Lebowa Granite it learned only in March 1994 to whom I prospecting rights had been granted in respect of the property.

Van Dijkhorst J

In a letter dated 7 March 1994 Lebowa Granite stated that it intended to review the decision awarding the prospecting rights to the A property to Haarhoff.

The information required in the letter of 24 July 1992 by LMT was important information pertaining to the question whether Lebowa Granite intended developing a second quarry in the area and, if not, whether the area would be used for reserves or whether it would constitute a lock-up of the minerals for an indefinite period and what B reservation fee Lebowa Granite would be prepared to offer should this in fact be the case.

Mr Betts, an employee of Lebowa Granite, telephonically informed Mrs De Villiers, an employee of LMT, that Lebowa Granite did not intend to C quarry on the additional areas sought and that it did not intend to pay a reservation fee of R12 per hectare per annum. LMT, states that it is an unfortunate practice for mineral rights to be locked up. This eliminates or reduces competition and is anathema to LMT whose aim it is to exploit mineral rights for the benefit of the people of Lebowa. D

Lebowa Granite has rights to granite on approximately 8 700 hectares but has exploited only approximately 15 hectares on Klipplaatdrift according to LMT. Lebowa Granite says that it is 160 hectares. According to LMT Lebowa Granite holds reserves adequate for more than 600 years.

During a conversation confirmed in writing on 1 March 1994 Lebowa Granite informed LMT that it did not intend to commence any E review action relative to the property granted to Haarhoff. It changed its mind, however, and...