West Witwatersrand Areas Ltd v Roos

• Jurisdiction: South Africa
• Judge: Curlewis ACJ, Stratford JA, Beyers JA and De Wet AJA
• Judgment Date: 30 October 1935
• Citation: 1936 AD 62
• Court: Appellate Division

Curlewis, A.C.J.:

This is an appeal against a decision of the Transvaal Provincial Division dismissing an application by appellant praying that respondent be ordered to give his written consent to prospecting by applicant on his portion of the farm Blaauwbank No. 41, district Krugersdorp.

The petition alleges that respondent is the registered owner of portion D, measuring 51 morgen, of the said farm and that applicant company is the successor in title by various deeds of cession

Curlewis, A.C.J.

of the Western Rand Estates Ltd which, on 16th June, 1903, entered into a duly registered notarial contract with the nine registered owners in undivided shares of the said farm. A copy of the contract is attached to the petition. It appears that the area of the whole farm is 5,163 morgen; it is unproclaimed and was formerly known as No. 355 in the district of Potchefstroom. Since the date of that contract the farm has been sub-divided and a schedule is attached to the petition showing about 18 persons, including the respondent, as the present owners of the farm in divided shares. The petition alleges that respondent and the remaining persons mentioned in the schedule are bound by the terms and conditions of that agreement, that applicant is desirous of carrying out prospecting operations on the said farm and has applied to the present owners for their written consent, which is a condition precedent to a prospecting licence being granted by the Mining Commissioner under sec. 11 of the Gold Law, but the owners have wrongfully refused to give such consent, as will appear from certain correspondence attached to the petition. Para. 9 of the petition alleges that it has been agreed between the parties that respondent should be cited for the purpose of obtaining a decision of the Court as to the interpretation and meaning to be attached to the agreement of 16th June, 1903. Respondent states in his replying affidavit that the schedule does not correctly reflect the ownerships and denies that there is any agreement between him and the other owners that they shall be bound by any decision resulting from the application.

Applicant company sets out in the petition its contention that it is entitled to the written consent of the owners by virtue of the provisions of the agreement and more particularly because (1) by clause 1 of the principal agreement applicant is the holder of all the right, title and interest in and to all mynpacht or mynpachten or rights which may be substituted for mynpacht or mynpachten under any laws passed after the date of the principal agreement, it being declared that the intention was that the purchasers (namely applicant) should stand in the place of the owners in respect of such mynpachten or renewals of mynpachten, or such other rights given by such future laws; (2) the law in force at the date of the signing of the principal agreement was Law 15 of 1898; (3) by the said law a mynpacht could come into existence only after the discovery of gold, for which prospecting is necessary.

Curlewis, A.C.J.

The obligation on respondent to permit prospecting for gold is included in the rights granted under clause 3 of the principal agreement and in the undertaking of the owners of the said farm under clause 4 to aid and assist the purchasers (namely applicant) by all ways and means in their power to secure the said mynpacht or mynpachten. This contention is denied by respondent.

It will be desirable to set out fully the material provisions of the agreement. The recital states that whereas the owners declare that the seven first-mentioned of them are the owners of the undivided half of Blaauwbank and whereas certain three mentioned are the owners of the remaining half of the farm, and whereas the owners have agreed with the company that the company shall purchase all the owners' rights whatsoever to mynpacht or mynpachten upon the said farm upon the terms and conditions hereinafter set forth; now therefore the owners and the company agree as follows: -

"1. The company hereby declares to have purchased for the sum of £25,000 sterling and the owners do hereby declare to have sold and made over, and they do accordingly cede, assign and transfer to the company and its assigns, all their right, title and interest whatsoever to all mynpacht or mynpachten or such other rights of mining as by any future law may be substituted for such mynpacht or mynpachten in respect of the whole area of the said farm Blaauwbank No. 355 and to which they as owners are now, or may at any time hereafter become entitled under the existing or any future gold or mining law, with full power and authority to the company and its assigns, from time to time to make all such applications to the Government in the name of the owners (but for the company's sole benefit) as they may think fit, for securing such mynpacht or mynpachten, or other rights of mining as hereinbefore described, with power also to cause such mynpacht or mynpachten or such other rights of mining as hereinbefore described to be made out direct into the name of the company or its assigns, and also from time to time to claim a renewal or renewals of Buch mynpacht or mynpachten or such other rights of mining as hereinbefore described, the intention being that the company or its assigns shall stand in the place of the owners and shall enjoy in respect of such mynpachten and renewals of mynpachten or such rights of mining as hereinbefore described, all and every rights to which an owner of a farm now is or may be entitled under the existing or any future

Curlewis, A.C.J.

gold or mining law." Clause 2 provides that the owners agree, immediately upon the signing of the agreement, to deliver their titles and transfer deeds of the farm to the company for the purpose of having the agreement registered against such titles or transfer deeds, and the payment of the £25,000 shall be made upon such registration being effected.

"3. The sale hereby made shall include the following further rights and privileges to the company or its assigns, which rights and privileges may be exercised on any part or parts of the said farm, viz., the right to take water, to make dams, to dig and sink shafts and pits, to erect buildings, machinery, batteries and other works and conveniences, the right to deposit tailings, to build and maintain tramways and full rights of way; provided always that in exercising the said rights no damage shall be done to any existing buildings or cultivated lands of the owners.

"4. The owners further covenant and agree, whenever required to do so by the company or its assigns, to aid and assist it by all ways and means in their power, to secure the said mynpacht or mynpachten or any renewals thereof or such other rights of mining as hereinbefore described, and they also give and grant to the company the preferent right to purchase all the mineral rights on the said farm as well as the exclusive right to purchase the freehold of the said farm at a price to be fixed at a later date."

GREENBERG, J., who prepared the judgment of the court below, after setting out the contentions of counsel for the two parties, stated that counsel for the applicant in reply to a question from The Court said that he did not rely on an implied term; his contention being that the obligation to permit prospecting arose under clause 4 read with clauses I and 3 of the agreement. The court below held that these clauses of the agreement did not create a prospecting right. In the course of this judgment the learned Judge said: "At the time the agreement was entered into the Gold Law in force was Law 15 of 1898, and it is common cause between counsel that under that law (sec. 25) applicant could not get the mynpacht until the presence of precious metals on the farm had been proved. The position is similar to-day under sec. 20 of the present Gold Law, 35 of 1908. Consequently unless the owners of the farm either prove the presence of payable metals by prospecting themselves or allowing applicant to do so, applicant is unlikely ever to get his mynpacht." The judgment concludes as follows:

Curlewis, A.C.J.

"Applicant claims a serious invasion on the owner's right, viz., the right for all time to prospect on the whole of the farm, and for this claim it relies on language which is certainly not clearly in favour of its construction. In my opinion, in the absence of a specific provision selling the prospecting right, respondent's contention seems to me the more probable, but even if the contentions pro and con were evenly balanced, applicant must fail as it is the stipulator and verba contra stipulatorem interpretanda sunt."

The application was accordingly dismissed.

In order to appreciate the rights which were sold and bought under this agreement it is necessary to consider certain provisions of the Transvaal Gold Law 15 of 1898, the law which was in force at the date of the agreement, and to bear in mind that the farm Blaauwbank was what was known to that law as private unproclaimed ground. The agreement was for the purchase of all the owner's rights whatsoever to mynpacht or mynpachten, evidently contemplating more than one mynpacht. A mynpacht under the Gold Law was granted by means of a mynpachtbrief which gave the right to open and exploit mines. Sec. 22 provided (I am quoting from Barber's translation, 1899) that every landowner was at liberty after giving notice to the proper authority to prospect for precious metals within the boundary of his property without licence, and for that purpose to employ besides coloured persons not more than four white persons drawing wages and under conditions thereinafter prescribed to exploit mines on his ground or cause the same to be exploited; only the State President was allowed to throw open ground as public diggings; the Government had the right to cause investigations to be made concerning the prospecting; on the discovery...