Rand Mines Ltd v President of the Republic of South Africa and Another

• Jurisdiction: South Africa
• Judge: Comrie J
• Judgment Date: 13 April 1995
• Citation: 1996 (3) SA 425 (B)
• Docket Number: M 201/93
• Counsel: G L Grobler SC (with him C J Bekker) for the applicant. C N van Heerden for the respondents.
• Court: Bophuthatswana Supreme Court

B Comrie J:

The applicant applies on notice of motion for an order in the following terms:

'1.

That it be and is hereby declared that the applicant is the holder of the full free and sole right and interest in and to:

1.1

all forms of granite, including gabbro, norite, syenite, diorite, adamellite, monzonite, pyroxenite, dolerite, diabase, gneiss, schist, hornfels, C quartzite, meta-conglomerate, micro-dolerite, micro-syenite, micro-diorite, basalt, felsite, fine-grained gneiss mylonite and serpentinite;

1.2

all forms of marble, including travertine, dolomite, limestone, carbonatite and serpentinite;

suitable for use as dimension stone, on, in and under:

(a)

D the property previously known as Welbekend No 738 situate in the district of Rustenburg and now known as Welbekend 117, registration division JQ, Bophuthatswana; and

(b)

the property previously known as Boschpoort No 16 situated in E the district of Rustenburg and now known as Boschpoort 288, registration Division JQ, Bophuthatswana.

2.

That applicant be ordered to pay the costs of this application on an unopposed basis, alternatively and should the respondent oppose the granting of the relief sought herein, that the costs of this application be paid by the respondent.'

F The proceedings were commenced in 1993 against the then President of Bophuthatswana in his official capacity as trustee for the Bafokeng tribe (property (a) above) and as trustee for certain 200 persons, their heirs, executors or assigns (property (b) above). There is no longer a Republic of Bophuthatswana nor a President thereof. The G applicant consequently applied in terms of s 241(9) of the Constitution of the Republic of South Africa Act 200 of 1993 that these proceedings be continued against the first respondent named above and/or the second respondent named above. The parties were guided by the judgment in this Court of Waddington J in President of the Republic of H Bophuthatswana and Another v Milsell Chrome Mines (Pty) Ltd and Others (M 401/93, as yet unreported). In that case the former President sued in his capacity as trustee of the Bafokeng tribe for a declaratory order in respect of mineral rights relating to tribal land. After a comprehensive review the learned Judge concluded that the person to continue the litigation in the former President's stead was not the Premier of the North I West Province but the President of the Republic of South Africa. The judgment appears to me to be in point and I am accordingly bound by it unless I consider that it was clearly wrong, which I do not.

In seeking to add the second respondent above, counsel for the applicant drew my attention to s 239(1)(a) of the Constitution, which provides that certain assets 'shall vest in J the national government'. They

Comrie J

A suggested that the land at Welbekend and Boschpoort, which is the subject of this application, so vests and, out of caution, they asked that the national government be substituted or joined in addition to the President. There was no opposition to that application and I shall accordingly allow the proceedings to continue against both the B above named respondents. I should not be taken, however, to be ruling on the question of vesting or to be deciding that the substitution of the President as trustee is insufficient.

In the case of Welbekend the mineral rights were severed from the surface rights in 1917 upon the following terms:

'(T)he full, free and sole right and interest in and to all minerals, mineral C substances and metals, precious stones, oil and coal, on in and under the said property, without any exception, together with the sole right to deal with, alienate and dispose of the same at will, subject to the following conditions and entitled to the following rights upon the said property. . . .'

In the case of Boschpoort the mineral rights were severed from the surface rights in 1923 D upon virtually identical terms. It is common cause that in respect of both properties the applicant held the aforegoing mineral rights, whatever their extent, until 1992 when some of the rights, but not to dimension stone, were ceded to Samancor Ltd and Rustenburg Platinum Mines Ltd. At the institution of these proceedings the applicant was still the holder of such rights as were not ceded. What has precipitated this application (and E similar applications to which I shall refer) is set out in the founding affidavit:

'The applicant and Keeley Group Holdings Ltd and its subsidiaries (hereinafter referred to as "Keeley") are, at present, negotiating an agreement in terms of F which the applicant will sell all its rights to dimension stone to Keeley. One of the conditions of the proposed agreement is an undertaking in terms of which the applicant warrants that it is the registered and beneficial owner of the dimension stone rights on the property. In view of the serious financial implications which any breach of this warranty may have for the applicant and in view of the possible uncertainty which may exist regarding the contents of the rights reserved to the G applicant in Certificates of Mineral Rights No 134/1917 S and 186/1923 S (annexures JDB/3.1 and JDB/3.2), it is submitted that the applicant is justified in approaching this honourable Court for the relief set out in the notice of motion.'

It appears that Keeley quarries and exports raw granite blocks and that it is the world's largest producer of dimensional granite.

Dimension stone, according to The Shorter Oxford English Dictionary, is stone which H is cut to specified dimensions. The expression comes, it would seem, from the United States. According to the evidence granite, marble and other stone (for example sandstone) is used for this purpose. The words 'granite and marble' in the notice of motion are not used in their strict geological sense, but loosely according to their meaning in the dimension stone industry. All the substances included in para 1.1 of the notice of motion I are regarded as forms of granite in that industry, and all the substances included in para 1.2 are regarded as forms of marble in the industry. Then comes the qualification: 'suitable for use as dimension stone'. The reason for the qualification is that while granite and marble abound in and on the Earth's crust, such stone suitable for use in the aforesaid J industry (ie to be quarried, cut and sold at a profit) is

Comrie J

A ...