Zuurbekom Ltd v Union Corporation Ltd

• Jurisdiction: South Africa

Zuurbekom Ltd v Union Corporation Ltd
1947 (1) SA 514 (A)

1947 (1) SA p514

Citation	1947 (1) SA 514 (A)
Court	Appellate Division
Judge	Tindall JA, Greenberg JA and Schreiner JA
Heard	December 10, 1946
Judgment	March 13, 1947

Flynote : Sleutelwoorde

Mines and minerals — Conflict of interests between surface owner and owner of mineral rights — When latter entitled to interdict. Laches — Not portion of Roman-Dutch Law — Interdict — Granting of — Period of limited — When competent.

Headnote : Kopnota

In June, 1923, the respondent transferred to appellant the remaining extent of farm Z., reserving to itself the mineral rights, which rights were embodied in a certificate of mineral rights issued under section 41 of Act 13 of 1918. These rights embraced the sole and exclusive right to prospect and mine for all mineral substances, and all such rights as appertain to the holder of mineral rights under Transvaal Act 35 of 1908. In 1936 appellant laid out a portion of the farm as agricultural holdings; the respondent did not object, because it had not been aware of such establishment, and had been faced with an accomplished fact. In September, 1943, the appellant lodged with the Township Board an application for approval to lay out new holdings in an area known as Extension 1. Discussions followed between appellant and respondent, but these proved abortive. Nevertheless, the appellant proceeded with the sale of such holdings, despite the fact that the Minister of Lands had not issued a certificate. There was, however, nothing to indicate that a sub-division had taken place. In December, 1945, the appellant made a further application in respect of an area known as Extension 2. The respondent

1947 (1) SA p515

learnt of this and notified the Secretary of Lands that it objected on the ground, inter alia, that the establishment would cause serious and irreparable prejudice and damage to it as various gold-bearing reefs underlie the said area. No reply had been received from the appellant to a letter which stated that, should the appellant continue with its application, the respondent would apply for a perpetual interdict restraining the appellant from proceeding with the establishment of the holdings on Extensions 1 and 2. The Court granted an interdict for 8 years, with leave to the appellant, should conditions alter, to apply to have the order set aside, and with leave to the respondent, at or before the expiration of that period, to apply for its extension. On appeal, the appellant contended that the holder of the mineral rights, if he wished to preserve his rights to an interdict restraining the surface user from establishing holdings, must start prospecting when it becomes reasonable to do so from the point of a reasonable mining man, or, alternatively, when he ought to realise that the owner of the land wanted to use the surface for the purpose objected to, and thus ought to have anticipated that a clash of interests was likely to arise. Appellant further contended that as the respondent knew that it had applied for a certificate in 1943, and had taken no steps to restrain it, in the circumstances it would be inequitable to allow the respondent now to interdict the establishment of agricultural holdings on Extension 1. The appellant contended, therefore, that the respondent's claim to an interdict was barred by its laches or by the exceptio doli.

Held, that the doctrine of laches was not part of our law.

Held, further, that before a mineral holder's delay can be a valid obstacle to a claim for an interdict, it must be shown that in the circumstances of the particular case the enforcement of that remedy would cause great inequity and would amount to unconscionable conduct on his part.

Held, further, that in the present application the conduct of the respondent cannot be said to be unconscionable.

Held, further, that as the property was ripe for prospecting, and, according to Nolte v Johannesburg Consolidated Investment Co., Ltd. (1943 AD 295), the interdict had to be limited in time, the order made in the court below was correct.

The passage in Nolte v Johannesburg Consolidated Investment Co., Ltd. (1943 AD at p. 316), explained.

Case Information

Appeal from a decision in the Witwatersrand Local Division (RAMSBOTTOM, J.).

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

W. Pollak, K.C. (with him W. G. Trollip) for the appellant: As soon as there is a severance of the mineral rights from the dominium a conflict of interests arises between the owner of the land and the owner of the mineral rights. Nolte v Johannesburg Consolidated Investment Co., Ltd. (1943 AD 295 at p. 314); the owner of the mineral rights cannot, by refraining from prospecting, hold up indefinitely the development of the surface by the owner of

1947 (1) SA p516

the land. Nolte's case (supra, at pp. 316 - 7); the owner of the mineral rights must exercise his rights timeously and if he does not do so he loses his right to restrain the development of the surface of the land by the owner. Nolte's case (supra); this view of the mineral rights of an owner is in accord with the doctrine that a servitude must be exercised civiliter modo. Rubidge v McCabe & Sons (1913 AD 433 at p. 441); Texas Co. (S.A.) Ltd v Cape Town Municipality (1926 AD 467 at pp. 474 - 5); Cumming v Brown (1909, E.D.C. 54 at pp. 67 - 8); if, when prospecting has become justified, the owner of the mineral rights refrains from carrying out prospecting, he does so at his peril, for after the lapse of a reasonably sufficient time for prospecting as from the time that prospecting first becomes justified, he cannot restrain the owner of the land from developing the surface. It would be inequitable to allow respondent now to restrain the establishment of Extension No. 1; the claim to an interdict is not by the exceptio doli, Weinerlein v Goch Buildings, Ltd. (1925 AD 282 at pp. 292 - 3). The doctrine of laches is portion of South African law and is comprised within the exceptio doli. Schwarzer v John Roderick's Motors (Pty.), Ltd. (1940 OPD 170 at pp. 180 - 81); Pathescope (Union) of S.A., Ltd., v Mallinick (1927 AD 292 at pp. 305 - 6); Sackville West v Nourse (1925 AD 516 at pp. 525 - 6); Mutual Life Insurance Co. of New York v Ingle (1910, T.S. 540 at p. 551); Estate Havenga v Estate Havenga (1929 CPD 368 at p. 372); Weyer v Weyer's Estate (1938, E.D.L. 242 at p. 269) - affirmed on appeal on different grounds (1939 AD 126); Dunbar v Rossmaur Mansions (Pty.), Ltd. (47 P.H.M. 42). The doctrine of laches is not a technical doctrine and its purpose is to prevent the enforcement of a legal remedy in circumstances in which it would be inequitable for the party seeking such remedy to assert his claim thereto by reason of his previous conduct, Lindsay Petroleum Co v Hurd (1874, L.R. 5 P.C. 221 at pp. 239 - 40); Erlanger v New Sombrero Phosphate Co. (1878, L.R. 3 App.-Cas. 1218 at p. 1279). If the legal remedy sought is an interdict the Court should give special weight to the equitable considerations underlying the exceptio doli and the doctrine of laches, Sayers v Collyer (1884, 28 Ch.D. 103 at pp. 108, 110); Knight v Simmonds (1896, 2, Ch.D. 294 at p. 297); Osborne v Bradley (1903, 2 Ch.D. 446 at p. 451); Ex parte Johannesburg Diocesan Trustees (1936 TPD 21 at p. 26). The fact that Extension No. 1 would seriously interfere with the rights of the respondent and, it was stated, that if appellant proceeded with

1947 (1) SA p517

the application, the respondent would not oppose it, does not preclude laches, Birmingham Coal Co v Lloyd (34 E.R. 413); Roper v Williams (37 E.R. 999 at p. 1001); Great Western Railway Co v Oxford, Worcester and Wolverhampton Railway Co. (43 E.R. 133 at p. 140); Wicks v Hunt (70 E.R. 466); Eastwood v Lever (46 E.R. 859 at p. 864); Clegg v Edmonson (44 E.R. 593); Ernest v Vivian (1863, 33 L.J. (Ch.) 513 at p. 518); Williston, Contracts, para. 695. Notice suffices to prevent an estoppel by acquiescence, but it does not suffice to preclude laches. As to the two senses in which the word acquiescence is used, see Halsbury's Laws of England (Vol. 13, 2nd ed., para. 199); Dunbar v Rossmaur Mansions (Pty.), Ltd. (supra). Acquiescence as an element in laches is failure to take proceedings timeously. The establishment of Extension No. 1 will, in the opinion of respondent, itself interfere with its mineral rights only in a slight degree; therefore an interdict should have been refused in respect of Extension No. 1, Nolte v Johannesburg Consolidated Investment Co., Ltd. (supra, at pp. 316 - 7).

J v Brink, K.C., (with him A. Fischer), for the respondent: The establishment of small holdings will seriously interfere with respondent's rights to prospect the farm, Nolte v Johannesburg Consolidated Investment Co. (supra). Other forms of sub-division may equally interfere with prospecting; cf. secs. 11, 16 (2) and 23 of the Gold Law, sec. 2 (1) of the Mines and Works Regulations, and sec. 2, Act 12 of 1911. Further there will be prejudice to mining; cf. secs. 20, 26, 52, 23, 24 bis, Act 35 of 1908; also, by virtue of sec. 52 (1) (c), Act 35 of 1908, respondent will lose the right to select its mynpacht over any area mentioned in sec. 16 (1); see Transvaal Property, etc., Co., v S.A. Townships (1938 TPD 512 at pp. 518 - 9); respondent therefore might have to compete for a lease of such areas under sec. 52 (2) instead of having a right to select its mynpacht over such areas and would have to pay the consideration under the lease, if obtained. Again, there will be prejudice to surface users; cf. secs. 67, 68, 73, 74, Act 35 of 1908; upon the establishment of a settlement such as that contemplated by appellant practically the whole of the farm would finally be withdrawn from use for mining purposes, for it is submitted that no permit for such uses would be granted over such a settlement; cf. secs...