Simmer and Jack Proprietary Mines Ltd v Union Government (Minister of Railways and Harbours) Respondent; Union Government (Minister of Railways and Harbours) v Simmer and Jack Proprietary Mines Ltd

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA and De Villiers AJA
• Judgment Date: 11 May 1915
• Citation: 1915 AD 368
• Hearing Date: 25 February 1915
• Court: Appellate Division

Innes, C.J.:

This purports to be, though it really is not, a special case under Rule 14. The parties have strangely misconceived the rule in question which was intended for the preliminary decision of a point of law, considered to be decisive of a pending appeal. Instead of the special case which the rule contemplates, formal notice has been given to the Registrar that the parties, who are both dissatisfied with the judgment, intend to attack it by way of impugning certain of the reasons on which it is based. The matter was not argued on the footing of a special case; and it may be conveniently dealt with now, as what is, namely, in appeal and

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a cross-appeal, supported on grounds, reciprocally notified before hand. But in order to appreciate the points relied upon, and their bearing upon the case as a whole, it is advisable to make some reference to the origin of the litigation.

The farm Elandsfontein was proclaimed in 1886, as a gold field, under the then existing gold law No. 8 of 1885. It still retains that character, and since the year referred to, the defendant company or its predecessor has at all relevant times been, and still is, the registered owner both of the freehold and of the mining rights over the portion of it affected by the present dispute. So far as the land is concerned, it possesses clear title; and it is the holder of a mynpachtbrief, and of three claim licences, all of which originated soon after the farm was proclaimed, and all of which have been periodically renewed thereafter, the mynpachtbrief at intervals of ten years, and the licences annually as required by law. The areas covered by these documents respectively adjoin one another and constitute a block of ground, the freehold and mining rights of which stand registered in the defendant's name. In 1888 a contract was entered into between the Netherlands Railway Company and the Government of the Transvaal Republic, having for its object the furtherance of railway construction over the Witwatersrand and the consequent development of the Boksburg coalfields. Among other things the Government undertook to place at the disposal of the company the ground required for the railway line (called for political reasons a tramway line) and its appurtenances, subject to the repayment by the letter of any compensation paid by the Government in cases where purchase or expropriation had to be resorted to. In order to carry out this undertaking, the Executive Council, in the exercise of an authority previously conferred, adopted a resolution which was thereafter confirmed by the Volksraad and duly promulgated, thereby obtaining the force of law. To the terms of this resolution, dated January, 8, 1889, it will be necessary hereafter to refer in more detail: it is sufficient now to say that it provided for the expropriation by the Government, and the transfer into its name of the ground required for the proposed "tramline" as shown by plans deposited at the company's office, and beacons erected in situ. Acting under these powers, the Government placed the company in possession of the land referred to, fences were put up and rails were laid. The

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course of the railway thus constructed, intersected the area covered by the company's mynpacht and claim licences. In 1904, after the wax and after the undertaking of the Netherlands Railway Company had passed to the Central South African Railways, the latter Corporation, by agreement with the defendant, acquired the right to use certain additional pieces of ground adjoining the then existing track, and referred to by the learned Judge in his reasons as the "outlying strips." In respect of these no transfer was effected to the Administration, and no expropriation was proved to have been carried out. In the course of its working operations on its mynpacht and claim ground, the defendant company has undermine to the railway and certain portions of the adjoining area to an extent which is alleged to endanger the safety and stability of the surface. The Inspector of Mines, purporting to act in terms of the regulations, has, under date July 29, 1911, called upon the Company to supply adequate support and the Government mining engineer has prepared a scheme for packing and filling certain part of the excavation, and thus obviating any danger of subsidence. As the company denied its obligation to carry out the scheme in its entirely, it was arranged that it should carry out the Work according to the requirements of the mining engineer, that the plaintiff should defray the cost in the meanwhile, and that the liability of the parties for such cost should be determined by proceedings at law. The object of the present action is so to determine it. The order prayed for is one declaring that the defendant is liable to pay the full costs of the scheme, which involves a decision as to the legal position in respect of the undermining operations. The plaintiff claims to be entitled to both vertical and lateral not only for the ground acquired under the besluit, but also tot the outlying strips less one defined patch for which no claim;., made. The extent of lateral support required is calculated on a formula applicable to the mine and the area to be packed and filled is marked in pink and green upon a plan attached to the record. The right of support is claimed first under the common law, and alternatively by reason of the requisition and order of the Inspector of Mines. The defendant admits liability for duly securing the ground and railway within the limits of expropriation ander the besluit, save as to the area within the 15th and 19th levels of the mine, and it tenders accordingly. But the plaintiff's

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claim is, in other respects, disputed. With regard to the whole space (coloured pink upon the plan) between the levels above mentioned, the company relies upon a letter, dated July 18, 1905, from the Government Mining Engineer, granting permission to stope the reef vertically under such area between the 15th and 26th levels. This permission, it is contended, justifies the subsequent undermining at the depths indicated: Upon these contentions, the matter went to trial before the Witwatersrand Local Division. BRISTOWE, J., dealing first with the claim under the common law, held that the plaintiff was not entitled to claim support for the "outlying strips," the only title which he had established in them being contained in an agreement by which the right of support was expressly excluded. With regard to the claim for lateral support in respect of the expropriated area, he also found against the plaintiff on the ground that there was no sufficient proof of danger of subsidence. But he considered that the admitted liability in respect of expropriated railway ground undermined was. not subject to the exception contended for between the 15th and 19th levels. Because, in his opinion, the permission of the Government Mining Engineer was ultra vires; the company had by the expropriation been deprived of all mineral rights in the area taken over, and the letter of July 18, 1905, could not justify what was in law a trespass. He, therefore, gave judgment on the common law count for the plaintiff, declaring the defendant liable for the costs of filling in the pink areas on the plan between the green lines on the 16th and 19th levels. The alternative count founds on the requisition and order of the Inspector of Mines was dismissed. With regard to that ground of action, it was held that the order had been given under the authority of a regulation which had no retrospective operation, and could have no effect upon a state of things which had been created before the date of the regulation.

Against this judgment there is now before us an appeal and a cross-appeal. The defendant maintains that there should have risen no order against, it for more than its admitted liability the plaintiff contends that be should have obtained, on his alternative. count, all the relief he claimed. The main appeal, therefore attacks the finding as to the letter of July 18, 1905. The cross-appeal

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attacks the finding as to the requisition of July 29, 1911. It will be convenient to consider these in their order.

The reasons of the learned Judge for holding that the permission of the Government Mining Engineer was of no effect have already been referred to. He considered that as the ground affected was owned by the Railway Administration, defendant was a trespasser, and no official sanction could validate action in itself illegal. But the whole point is whether the company was a trespasser. If it had the mining right, and if the Government engineer could authorise the exercise of that right., then it was protected. Now the defendant, as the holder of the mynpachtbrief and the claim licences, is prima facie the owner of the mining rights. But it is urged that that right has been taken away by the operation of the besluit; and it is upon that point, and upon the question whether the engineer was authorised to give the permission which he did that the main appeal turns. The besluit was passed, no doubt, to enable the Government to carry out its contract with the railway company by obtaining and placing at its disposal the strip of ground necessary for its operations. It enacted that such area was "hereby" withdrawn from the control of the owners and other persons interested, and was forthwith at the disposal of the railway company for the purposes of its contract; also that it should be transferred into the name of the Government. The registration thus ordered was never effected. But in spite of the fact, I think that the language used was intended to operate, and did operate as a statutory transfer of dom...