THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable

Case No: 150/2014

In the matter between:

GERT VAN DEN HEEVER                                                                      APPELLANT
and
THE MINISTER OF MINERALS AND ENERGY                      FIRST RESPONDENT
THE DIRECTOR GENERAL: DEPARTMENT OF               SECOND RESPONDENT
MINERAL RESOURCES
TRANS HEX MYNBOU LIMITED                                            THIRD RESPONDENT
TRANS HEX OPERATIONS (PTY) LIMITED                      FOURTH RESPONDENT

Neutral citation:
Van den Heever v Minister of Minerals and Energy (150/14)
[2015] ZASCA 19 (19 March 2015)
Coram:
Brand, Lewis, Cachalia and Zondi JJA and Dambuza AJA
Heard:
4 March 2015
Delivered:
19 March 2015

Summary:
Whether content of a letter, objectively viewed, evinced an intention of
the writer to abandon a mining right. Construed in its context and in
light of background facts, abandonment not established.

__________________________________________________________________
ORDER
___________________________________________________________________

On appeal from: Northern Cape High Court, Kimberley (Kgomo JP and Hughes-
Madondo AJ sitting as court of first instance)

‘The appeal is dismissed with costs, including the costs of two counsel in respect of
both first and second respondents on the one hand, and of the third and fourth
respondents on the other.’

___________________________________________________________________
JUDGMENT
___________________________________________________________________

Cachalia JA (Brand, Lewis and Zondi JJA and Dambuza AJA concurring)

[1] This appeal concerns a dispute over a right to mine for diamonds on two
contiguous pieces of land on the farm Richtersveld No 11 (the property) situated in
the Namaqualand district of the Northern Cape. The dispute has its genesis in the
appellant’s failed attempt to secure mining permits from the Department of Mineral
Resources in 2008. The appellant’s applications for the right to mine were refused on
the ground that a permit to mine on the same property was already in existence and
held by Trans Hex Operations (Pty) Ltd, the fourth respondent, when the application
was made. The right was initially held by a public company, Trans Hex Mynbou
Limited (Mynbou), the third respondent, under a mining lease and thereafter ceded
to the fourth respondent in May 2001. Both entities are subsidiaries of a holding
company, Trans Hex Group Limited.

[2] The appellant disputes the fourth respondent’s claim to hold the mining right
over the property. He says that on 26 January 2001, before the cession took place,

Mynbou wrote to the Department of Minerals and Energy (the predecessor of the
Department of Mineral Resources) indicating that it was foregoing its right to mine on
the property, and had thereby abandoned its right. This means, so the appellant
submits, that Mynbou’s purported cession of the right to the fourth respondent is
invalid as it had no right to cede. And the department’s refusal to grant the
application on the ground that the fourth respondent held the mining right is therefore
unlawful.

[3] The respondents’ answer to this claim is that properly construed, and in light
of the background facts, the January letter did not constitute an abandonment of its
mining right, but was merely a request for the department to amend the mining lease
in order to give effect to Mynbou’s declared intention to make the land available to
the Richtersveld community for agricultural purposes.

[4] The dispute gave rise to a review application in the Northern Cape High Court
in which the appellant sought orders: declaring that Mynbou had abandoned its right
to mine for diamonds on the property; reviewing and setting aside the decision to
convert the abandoned old order mining right previously held by Mynbou into a right
contemplated in the second schedule of the Mineral and Petroleum Resources
Development Act 28 of 2002 (the MPRDA); reviewing and setting aside the Director
General’s decision under s 96 of the MPRDA to refuse his appeals against the
Regional Manager’s rejection of his applications for mining permits under s 27 read
with s 27(3)(b) of the MPRDA; and remitting his applications for mining permits for
reconsideration by the relevant official.

[5] The application failed before the high court in a judgment delivered by
Hughes-Madondo AJ in which Kgomo JP concurred. The appeal before us is with
leave of this court.

[6] At the commencement of the hearing, Mr Barnard, who appeared for the
appellant, accepted that the central issue in this appeal is whether Mynbou, in its
letter relinquished its right to mine for diamonds over a portion of the property for
which the appellant had applied for mining permits in terms of s 27 of the Mineral
Development Act 28 of 2002. He accepted too that in the event of this court finding
that Mynbou had not abandoned its right to mine on the property, the appeal must
fail.

[7] It is trite that abandonment or relinquishment of a right is never presumed:
clear proof is required and it must be shown that the person intended this result with
full knowledge of the right in question. The test is objective: the intention of the
person is to be determined by the outward manifestation of his or her conduct.

[8] It is appropriate to quote the letter, which was addressed to the department, in
full:
‘Geagte Mnr Nieuwoudt
VERKLEINING VAN RICHTERSVELD MYNHUURGEBIED: TRANS HEX MYNBOU
Trans Hex Mynbou onderhandel reeds geruime tyd met die Richtersveld Oorgangsraad (nou
die Richtersveld Munisipaliteit) vir die beskikbaarstelling van verskeie stukke grond vir
besproeiingsdoeleindes langs die Oranjerivier. Ooreenkoms is nou bereik dat 13
afsonderlike [stukke grond], wat gesamentlik 363,14 hektaar beslaan, aan die Oorgansraad
oorhandig sal word vir landbougebruik, en uit die mynhuurgebied uitgesluit sal word. Die
stukke grond maak tans deel uit van die Richtersveld mynhuurgebied wat in terme van
mynhuur 2/91 aan Trans Hex toegeken is (sien meegaande plan met koördinate).
Die stukke grond wat uitgesluit moet word beslaan vier afsonderlike stukke in die
Swartwater/Koeskopgebied
(gesamentlik
ongeveer
122,57
hektaar
groot),
drie
aaneenlopende stukke in die Sanddrifgebied (gesamentlik ongeveer 24,67 hektaar groot),
vier alleenstaande stukke in die Bloeddrifgebied (gesamentlik ongeveer 100,94 hektaar
groot), en een stuk in die Jakkalsberggebied, die sogenaamde Reuning besproeiingserf
(ongeveer 11,59 hektaar groot).

U word dus versoek om die 13 stukke grond, waarvan die omvang in detail deur
middel van koördinate op meegaande plan gedefinieer word, uit die bestaande
mynhuurgebied uit te sluit, en die wysiging so by die Mynbriewekantoor in Pretoria te
laat registreer. (Emphasis added)
‘n Kopié van die oorspronklike notariële mynhuurdokument 2/91 gaan hiermee saam vir die
nodige endossement. Die besluit om die mynhuurgebied te verklein word bekragtig deur
meegaande direksiebesluit gedateer 24 Januarie 2001.’

[9] The appellant relies on the passage I have highlighted – in particular the
phrase: ‘uit die bestaande mynhuurgebied uit te sluit’ – to support his contention that
Mynbou relinquished its right to mine over the 13 portions of land to which reference
is made in the letter. However, Mr Barnard properly accepted that we are entitled to
have regard to the background facts in giving meaning to the letter.

[10] The farm Richtersveld 11, where the mining lease area is situated, was
owned by the State. In terms of s 7 read with s 11 of the Rural Areas (House of
Representatives) Act 9 of 1987, Farm 11, vested in the Minister of Land Affairs to be
held in trust for the Richtersveld Community. This is reflected in the farm’s title deed.
Mining in this area could therefore only be undertaken with the consent of the
Minister.

[11] In 1991 Mynbou became the holder of Notarial Mining Lease 2/91, which gave
it the right to mine for diamonds on the farm. This lease encumbered the land in
favour of Mynbou, as did the deemed mineral right and mining licence in its favour.
Mynbou had no rights to the land other than those embodied in, and flowing from,
the lease.

[12] Clause 4 of the lease restricted the surface use within the mining lease area
for mining purposes. This meant that Mynbou could not use the land or sublet it for
any other purpose without breaching this clause.

[13] In terms of s 3(1)(a) read with s 1 of the Transformation of Certain Rural
Areas Act 94 of 1998, Farm 11, being trust land, could be transferred to a
municipality or communal property association registered under the Communal
Property Associations Act 28 of 1996 within a transitional period that the Minister of
Agriculture and Land Affairs would determine.

[14] During 1998, a claim was lodged by the Richtersveld Community in terms of
the Restitution of Land Rights Act 22 of 1994. A communal property association
called the Richtersveld Sida!Hub Vereniging vir Gemeenskaplike Eiendom (GEV)
was formed to pursue the claim.

[15] The Minister determined that 19 January 2001 would be the date on which a
transitional period of 18 months would commence. During this period a Transitional
Council would advise the Minister of the entity to which the land had to be
transferred. Although the Transitional Council (succeeded by the Richtersveld
Municipality) initially represented the community, there was disagreement over
whether the real representative of the Community was the GEV (which had lodged
the land claim), or the Municipality. The disagreement has limited bearing on the
dispute before us.

[16] Mynbou became aware of the land claim and started negotiations with the
Richtersveld Community soon thereafter. It employed the University of the Free
State to do soil surveys in order to identify suitable agricultural land on the farm, and
to make it available to the community for agricultural purposes. Once the land was
identified careful rehabilitation could be done to make the soil amenable to irrigation.

[17] On
April
2000,
Mynbou
entered
into
a
fencing
agreement
(‘omheiningsooreenkoms’) with the Richtersveld Community, which was then
represented by the Richtersveld Transitional Council. In this agreement, which dealt
essentially with fencing-off of part of the mining area, Mynbou undertook to excise

‘landbou-erwe’ and open areas between the erven next to a river from the (fenced)
mining lease area in order for the use of those irrigation areas to be transferred to
the Richtersveld Community for agricultural purposes.

[18] Clause 6 of this agreement is important. It provided that any amendment of
the mining lease or of the consent required to implement these provisions in terms of
Act 9 of 1987, would be without prejudice to the rights of Mynbou under the mining
lease. Simply put the fenced-off area would be made available to the community for
agricultural purposes, but Mynbou would retain its mining rights over the entire area.

[19] This then was the background to Mynbou’s the letter of 26 January 2001 to
the department requesting an amendment of the mining lease so as to reflect the
excision of the 13 portions of land for irrigation purposes and for the amendment to
be registered. Clause 4 of the mining lease to which I have referred earlier obliged
Mynbou to obtain the Minister’s consent before any part of the land was sublet for
purposes other than mining. And it was to comply with this clause that the letter was
despatched to the department.

[20] So, far from relinquishing its right to mine, the content of the letter reflects the
opposite intention: that Mynbou would retain its rights under the mining lease, even
though the irrigation areas would be physically excised from the mining lease area.
And the excision would occur, if the Minister approved, only for the purpose of
allowing surface use of these portions for irrigation purposes, and not with respect to
the right to mine.

[21] That this was what Mynbou intended, and also what the representatives of the
Richtersveld community agreed to was confirmed in a later agreement entered into
in August 2001 between Mynbou and the GEV, long before the appellant applied for
mining permits over the excised portions of the mining area. In this agreement, the
parties agreed that GEV would not allow mining on the properties.

[22] In any event, for reasons that are not immediately germane to the present
dispute, no amendment to the mining lease was ever effected and the mining of
diamonds in the area continued under the terms of the original mining lease. The
appellant could hardly not have been aware of this.

[23] I conclude that Mynbou did not abandon its right to mine for diamonds over
the 13 portions of land. Mynbou’s conduct before it despatched the letter, and
subsequently thereto, reveals that it never evinced any intention to abandon its
mining right. In this context the letter, objectively viewed, is not capable of a
construction the appellant seeks to place on it. The appeal must fail.

[24] The following order is made:
‘The appeal is dismissed with costs, including the costs of two counsel in respect of
both first and second respondents on the one hand, and of the third and fourth
respondents on the other.’

_________________
A CACHALIA
JUDGE OF APPEAL

APPEARANCES

For Appellant:
T A Barnard

Instructed by:

Wessels & Associates c/o Engelsman Magabani Inc,

Kimberley

Symington & De Kok, Bloemfontein

For first and second Respondents:
P L Nobanda SC (with her T Mamanyuha)

Instructed by:

The State Attorney, Kimberley

The State Attorney, Bloemfontein

For third and fourth Respondents:
G L Grobler SC (with him J L Gildenhuys)

Instructed by:

Tabacks Attorneys c/o Haarhoffs Inc,

Kimberley

Webbers, Bloemfontein