West Driefontein Gold Mining Company Ltd v Brink and Others

• Jurisdiction: South Africa
• Judge: Trollip J
• Judgment Date: 09 October 1962
• Citation: 1963 (1) SA 304 (W)
• Hearing Date: 25 September 1962
• Court: Witwatersrand Local Division

Trollip, J.:

This is an application for a declaratory order in terms of sec. 19 (1) (c) of the Supreme Court Act, 59 of 1959.

B The applicant is the registered holder of a mining lease granted over a joint area under sec. 20 bis (3) of the Precious and Base Metals Act, 35 of 1908(T) as amended (herein called 'the Gold Law'), over the farms Driefontein No. 113 and Blyvooruitzicht No. 116 on the Far West Rand. It acquired the lease by cession from West Witwatersrand Areas Ltd., the C owner of the mineral rights of the area, to whom it was granted by the Government on the 6th August, 1949. Both the lease, and the cession to the applicant, were duly registered. The applicant carries on gold and uranium mining on the said area in the course of which it has established a shaft, called the No. 5 shaft, and a compound in the vicinity of that shaft to house certain of its Bantu employees, called the No. 5 Shaft Native Compound. These installations are located on a D certain portion of the farm Driefontein No. 113, measuring about 1,328 morgen in extent (referred to as 'the said property') which is included in and forms part of the mining lease area. The last respondent holds the usufruct over the said property, and all the other respondents own or represent the owners of the freehold of the said property. I shall E refer to them (and their predecessors in title) collectively as 'the freehold owners'. It has already been mentioned that the mineral rights of the said property are vested in the West Witwatersrand Areas Ltd., but the freehold owners retain, of course, the ordinary trading rights over the said property (subject to the provisions of the Gold Law to be canvassed presently) and when the cession of the mineral rights was F effected, these trading rights were expressly reserved to them. The relevant clause in the deed of cession (annexure E) reads as follows:

'Alle handelsregte op gesegde eiendom word aan die eienaars voorbehou onderworpe aan gesegde vruggebruik.'

G The Liquor Act, 30 of 1928, was amended by sec. 8 of the Liquor Amendment Act, 72 of 1961, by the insertion of a special sec. 100 bis, sub-sec. (1) (e)of which empowers the Minister of Justice to grant written authority to the nominee of,

'any bona fide employer regularly employing and housing native labourers as defined in para. (a) of the definition of 'native labourer''

H contained in sec. 2 (1) of the Native Labour Regulation Act, 15 of 1911, to sell liquor to natives, subject to such conditions or restrictions as he may deem fit to impose. 'Native labourer' is defined in the latter Act, as amended, as

'a native employed upon any mine or works or recruited . . . for labour upon any mine or works',

and a 'mine' as

'any place at which any mineral is searched for, won or treated for profit'.

It is obvious that the applicant is an 'employer' of the kind mentioned

Trollip J

in sec. 100 bis in relation to the No. 5 Shaft Compound and therefore qualifies for the grant of such an authority from the Minister.

Sec. 100 bis was to come into operation on a date to be fixed by the A State President by proclamation in the Gazette (sec. 21 of Act 72 of 1962). That date was duly fixed by Proc. 67 of 1961 as the 25th August, 1961. That point is made specifically because the attorneys for the respondents in a letter dated the 24th September, 1962, which was put before the Court, maintained that the section only came into force on the 15th August, 1962, by virtue of Proc. R.169 of 1962. That is clearly incorrect.

B In response to an application made by the applicant's nominee under sec. 100 bis, he was informed by letter dated the 4th May, 1962, that the Minister was prepared to grant him the necessary authority to sell all kinds of liquor, and 'subject to any other law that may be applicable', C aerated and mineral waters, and kaffir beer, at the No. 5 Shaft Compound, to natives, subject to certain specified conditions. One of those conditions was the providing of suitable premises approved by the appropriate authorities, for conducting such a business. The applicant intends providing such premises which are estimated to cost about R35,750, and to sell the aforementioned commodities to natives on and from such premises.

D On the 11th May, 1962, the attorneys of the freehold owners wrote to the applicant and, referring to the granting by the Minister of that authority, drew the applicant's attention to the fact that all trading rights on the said property were reserved to the freehold owners, and E maintained that the applicant was not, therefore, entitled to proceed to sell liquor in terms of that authority. The letter concluded by saying that the freehold owners would be obliged to proceed against the applicant for an interdict or other relief if the applicant proceeded to sell liquor in terms of that authority.

F The applicant's attorneys replied on the 28th June, 1962, maintaining that the applicant and its nominee were lawfully entitled and intended to sell liquor in terms of the Minister's authority and stating that in view of the attitude of the freehold owners the applicant intended applying for a declaratory order. The attorneys of the freehold owners G replied on the 2nd July, 1962, furnishing the names of the present freehold owners, the respondents, and consenting to the jurisdiction of this Court to determine the dispute, and agreeing to accept service of process.

The applicant thereupon launched the present proceedings by way of petition. No replying affidavits have been filed by the respondents. The H matter was originally set down for the 4th September, 1962, but by consent of the parties was removed from the roll and reinstated for hearing for the 25th September, 1962. When the matter was called on this latter date...