Pienaar v Treasure Trove Diamonds Ltd

• Jurisdiction: South Africa

Pienaar Appellant v Treasure Trove Diamonds Ltd Respondent
1931 AD 354

1931 AD p354

Citation	1931 AD 354
Court	Appellate Division
Judge	De Villiers CJ, Wessels JA, Curlewis JA, Stratford JA and Roos JA
Heard	April 28, 1931
Judgment	May 5, 1931

Flynote : Sleutelwoorde

Mines and minerals — Precious stones — Alluvial diggings — Water rights — Sinking of well by claimholder — Act 44 of 1927, Chapter 10.

Headnote : Kopnota

The provisions of Act 44 of 1927, Chapter 10 give a claimholder on an alluvial digging no right, express or implied to sink a well on his claim for the purpose of finding water there.

The decision of the Transvaal Provincial Division in Treasure Trove Diamonds Ltd. v Pienaar, confirmed.

Case Information

Appeal from a decision of the Transvaal Provincial Division (DE WAAL, J.P., TINDALL, J., and GEY VAN PITTIUS, J.).

The facts appear from the judgment of CURLEWIS, J.A.

P. Millin, K.C. (with him J. M. Murray), for the appellant: It is admitted that the well or shaft appellant was engaged in sinking had for its primary object the finding of water.

Act 44 of 1927 neither permits nor forbids a claimholder to Seek for water on his own claim, but his right to do so is to be inferred by implication from chapter X of the Act or from the definition of the word "dig" in sec. 116. The sinking of a well is incidental to the winning of diamonds as a thing may be reasonably incidental without being the one thing necessary to something else. See Middelburg Municipality v Gertzen (1914,

1931 AD p355

A.D. 544 at p. 669); Johannesburg Consolidated Investment Co. Ltd. v Marshalls Township Syndicate Ltd. (1917 AD 662); Attorney-General v G.E. Railway Co. - (5 A.C. 473) and cases cited by Palmer in Company Precedents (13th ed, vol. I, p. 456).

H. H. Morris, K.C. (with him I. L. Horwitz) for the respondent: Express and unambiguous language is indispensable in statutes for conferring or taking away legal rights whether public or private. See Craies on Statute Law (3rd ed., p. 102, 105, 108, 109 and 2nd ed., p. 268); Oldaker v Hunt (19 Beav at p. 488 and 52 E.R. 439 at p. 440 ad fin.); and The Bournemouth-Swanage Motor Road and Ferry Co. v Harvey and Sons (1929, 1 Ch. 686 at p. 691).

Murray replied.

Cur adv vult.

Postea (May 5th).

Judgment

Curlewis, J.A.:

Respondent company is the owner of the freehold and all surface rights of the farm Uitgevonden No. 99 in the district of Lichtenburg. The farm is part of the proclaimed alluvial diamond diggings at Lichtenburg. Respondent holds various temporary water rights on the farm, which have been granted by the Mining Commissioner in accordance with the provisions of chapter X of Act 44 of 1927 (the Precious Stones Act, 1927). These water rights entitle respondent to take and pump Water from wells and boreholes on the farm, and to supply such water to claim holders, water carriers or residents on the diggings at rates which have been determined by the Mining Commissioner. The appellant, with four other persons, is interested in a large block of claims which they intend to work on a very large scale, and he estimates that he will require a daily supply of about 200,000 gallons for that purpose. Appellant and his partners have two other claims about 125 yards from the main block of claims. Upon one of these claims appellant sank a shaft (as he calls it) or well (as respondent calls it). Appellant has no temporary water right or temporary permit. It is admitted that if water be found in this well or shaft appellant intends to use it for the purpose of working all the claims in which he is interested.

On 22nd October, 1930 a rule nisi was granted by a Judge in Chambers in the Transvaal Provincial Division, on the application

1931 AD p356

Curlewis, J.A.

of respondent, calling upon appellant to show cause why he should not be interdicted from proceeding with the digging of the well or otherwise sinking for water on any portion of respondent's farm Uitgevonden; the rule nisi operated as a temporary interdict. In the application respondent alleged that the well was situated about three hundred yards from a well which is the subject of an existing water right on the farm. On the return day appellant opposed the rule nisi, and alleged in his affidavit that the shaft or well had been sunk to a depth of 83 feet and had reached the dolomite, that no water had as yet been found, and he denied that he was acting unlawfully in sinking the shaft or well or that respondent had the right to restrain him from so doing: while admitting that his main object was to find water so as to use it for the purpose of working all the claims in which he and his partners were interested, he stated that he also hoped to find payable strata of gravel at or below the level at which water might occur. Appellant also alleged that the shaft Or well was not 300 yards but about half a mile from a well which is the subject of an existing water-right. To this respondent replied that at the existing source of water supply at the locality where appellant was sinking the well there is a strong flow of water and there has never been any shortage, that appellant's intention is to tap respondent's existing supply, and that his hopes of finding payable gravel in his well are fanciful.

At the hearing the rule nisi was discharged by SOLOMON, J., who summed up his reasoning thus: "My conclusion is that so far as the digging of a well upon a claim is involved, I think it it an operation incidental to mining, and therefore within the terms of the claim licence; or if this is wrong, that as a claimholder must have water both for mining and domestic use, he has, in the absence of any provision to the contrary, an implied right to supply himself from his own claim for his own purposes."

The matter was then taken on appeal to the Transvaal Provincial Division (coram DE WAAL, J.P., and TINDALL and GEY VAN PITTIUS, JJ.) who reversed the decision of SOLOMON, J., and confirmed the rule nisi. The appeal before us is against this order of the Transvaal Provincial Division.

Before dealing with the provisions of the Act, I might state that counsel for the appellant before us admitted that the well or shaft which appellant was engaged in sinking had for its primary object the finding of water; on the affidavits I see no reason to

1931 AD p357

Curlewis, J.A.

differ from the Transvaal Provincial Division which held that appellant's sole object in sinking the shaft or well was not to dig for precious stones but to obtain a large supply of water for the purpose of working his block of claims.

Act No. 44 of 1927 is entitled "An Act to consolidate and amend the laws in force in the several Provinces of the Union relating to prospecting and mining for precious stones, to amend in certain respect the laws relating to the diamond trade, and to provide for matters incidental thereto." It repealed various Acts and Ordinances dealing with precious stones which previously were in...