Macassar Land Claims Committee v Maccsand CC and Others (LCC 37/2003) [2008] ZALCC 16 (18 April 2008)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

(HELD AT RANDBURG)

Heard: 6 and 7 December 2007

Decided: 18 April 2008

Case no: LCC 37/2003

In the matter between

MACASSAR LAND CLAIMS COMMITTEE.....................................................................................Plaintiff

and

M ACCSAND CC.........................................................................................................................1st Defendant

THE GOVERNMENT OF THE REPUBLIC

OF SOUTH AFRICA...................................................................................................................2nd Defendant

THE MINISTER OF LAND AFFAIRS.......................................................................................3rd Defendant

CITY OF CAPE TOWN................................................................................................................4th Defendant

MINISTER OF LOCAL GOVERNMENT

AND HOUSING............................................................................................................................5th Defendant

THE REGIONAL LAND CLAIMS

COMMISSIONER.........................................................................................................................6th Defendant

THE MUSLIM JUDICAL COUNCIL..........................................................................................7th Defendant

CLIVE AUBREY FIGAJI

GEOFFREYLANE FIGAJI

MARIANNA LORETTA FIGAJI

PHILIP JAMES FIGAJI................................................................................................................8th Defendant

THE REGISTRAR OF DEEDS....................................................................................................9th Defendant

THE SURVEYOR-GENERAL..................................................................................................10th Defendant

JUDGMENT

GILDENHUYS J

BACKGROUND

[1] This is an application by the plaintiff for leave to effect certain amendments to its particulars of claim. The first and second defendants object to some of the amendments.

[2] The plaintiff is an unregistered voluntary association. It claims to represent the community of Sandvlei, Macassar. It claims restitution of rights in land under the Restitution of Land Rights Act, No. 22 of 1994 (“the Restitution Act”) in respect of erven 1195,1196,1197,1198 and 1191, Macassar, Province of the Western Cape. These erven are alleged to have been part of a commonage previously used by the Sandvlei community. The plaintiff avers that the community was dispossessed of its right to use the commonage as a result of past racially discriminatory laws and practices.

[3] The first defendant, a close corporation named Maccsand CC, was granted a mining authorization under the Minerals Act, No. 50 of 1991 to mine sand on Erf 1197. It conducted (and still conducts) sand mining operations on the erf. Some members of Maccsand are alleged to be members of the Sandvlei community. Upon commencement of the Minerals and Petroleum Resources Development Act, No. 28 of 2002 (“the MPRD Act”), its mining authorization became an “old order mining right” which could be converted into a mining right under the MPRD Act (making it a so-called “new order mining right”). It was so converted.

[4] The applicant originally applied by notice of motion in terms of Chapter IIIA of the Restitution Act for a restitution order in respect of the entire commonage which included, but was not restricted to, the abovementioned five erven, and for ancillary relief It soon became apparent that it was not possible to cope with the claim through motion proceedings. The confines of the land claimed were uncertain, as was the identities of many of the interested parties. The plaintiff then reduced its pending claim to include only the five erven.

REFERRAL TO TRIAL

[5] On 28 November 2006 I ordered {inter alia) that-

• the claim for restitution be referred to trial;

• the notice of motion shall stand as the summons;

• particulars of claim must be delivered by the plaintiff; and

• the further conduct of the trial proceedings shall be as set forth in the Land Claims Court Rules.

[7] The plaintiff’s particulars of claim were delivered during December 2006. It contained prayers for (I quote verbatim):

"(a) An order directing the second and third first respondents to acquire, or if necessary to expropriate erven 1195, 11961 1197, 1198, and 1991 Macassar;

(b) Restitution of the lost commonage rights in land on the former farm Zandvliet, Macassar, by transferring erven 1195, 11961 1197, 1198, and 1991 Macassar into the name of a communal property association to be formed to administer the erven on behalf of the community of Sandvlei, Macassar.

(c) Alternatively, restitution of the lost commonage rights in land on the former farm Sandvliet by amending all present title deeds and diagrams that comprise land that previously formed part of the commonage that existed on the former farm Zandvliet Nr 664, Erven 1991, and 1195 to 1198 Macassar, with the following words:

‘Subject to the Zandvliet commonage.’

(d) Alternatively, an order that compensation be paid in an amount to be determined.

(e) Prohibiting the first defendant from developing erf 1197 Macassar, in particular from mining, alternatively interdicted from mining erf 1197 Macassar.

(f) Costs of suit".

THE EXCEPTIONS

[8] On 15 March 2007 the second defendant (acting through the Department of Mineral and Energy Affairs) delivered a notice of exception to the prayer for a final interdict [prayer (e)] in the plaintiffs claim, on the basis that it fails to disclose a cause of action.

[9] On 11 May 2007, the first defendant also noted an exception to the plaintiff’s particulars of claim in that they do not disclose a cause of action, alternatively are vague and embarrassing, in the respects set out in the notice. The first defendant object, firstly, to the prayer for a final interdict prohibiting the first defendant from mining Erf 1197 even after the restitution proceedings have been finalised. Secondly, the first defendant say that since mineral rights are now separated from other rights in land, in particular from surface rights as contemplated in the Restitution Act, it does not know what case it has to meet in relation to the mineral rights. This issue was subsequently addressed by the plaintiff through amendments to its particulars of claim.

[10] This Court does not have jurisdiction to grant a final interdict which will prevent the first respondent from mining Erf 1197 (or any of the other erven) extending beyond the date of restoration of the erven (if an restoration order is granted). The prayer for such an interdict was, probably for this reason, not proceeded with.

[11] There is presently an interim interdict in place which imposes restrictions on the first defendant’s mining activities on Erf 1197. The restrictions remain applicable up to the final determination of the restitution claim, but not thereafter.

THE APPLICATION TO AMEND

[12] On 15 August 2007, the plaintiff gave notice of its intention to amend its particulars of claim. Pursuant to a pre-trial meeting held on 26 September 2007, the plaintiff substituted this notice by another notice of intention to amend, dated 12 October 2007.

[13] The first and second defendants objected to some (not all) of the amendments asked for in the notice of intention to amend, on the ground that they would render the particulars of claim expiable. it is settled law that an amendment which would render a pleading expiable should not be allowed. See RM van de Ghinste & Co (Pty) Ltd v Van de Ghinste 1980 (1) SA 250 (C) at 256H-257B.

[14] If it is possible to dispose of an issue on exception, a Court would normally do so. The Court may, however, if the issue is so interwoven with the evidence to be led at the trial that its essence will only become apparent at the trial, defer a decision on the issue until the trial. See Minerals and Quarries (Pty) Ltd v Henckert en ‘n Ander 1967(4) SA 77 (SWA) at 84A-C and Versluis v Greenblatt 1973 (2) 271 (NC) at 277H-278D.

[15] Most of the proposed amendments are unopposed. The plaintiff was entitled under rule 22(4) of the Land Claims Court Rules to implement the unopposed amendments.

[16] On 6 and 7 December 2007 I heard argument on the application for the opposed amendments. The opposed amendments relate to prayers (a) and (f), and also to a number of supporting paragraphs in the particulars of claim. I will first consider the opposed amendments to the prayers, and then turn to the opposed amendments of individual paragraphs.

[17] I experienced great difficulty in reaching a decision on some of the proposed amendments because of the incoherent and loquacious manner in which the particulars of claim and the proposed amendments were drafted. In many of the proposed amendments it is well-nigh impossible to separate tenable legal propositions from untenable ones. There are internal contradictions. The proposed amendments of several of the paragraphs concern issues which are also covered in other paragraphs. In the result and somewhat reluctantly, I have decided to allow the amendments in which tenable averments are interwoven with untenable ones. By so doing, I do not intend to convey that everything in an opposed amendment which I will allow, is necessarily good in law, I will, however, identify and pronounce on the legal principles which underly the proposed amendments.

PROPOSED AMENDMENTS TO PRAYERS (a) AND ffl

[18] Prayer (a), with the portion underlined that the plaintiff seeks to add through an amendment, reads as follows:

“Wherefor the plaintiff prays for:

(a) An order directing the second and third First (sic) respondents to acquire, or if necessary to expropriate erven 1195, 1196, 1197, 1198 and 1991, Macassar as well as the entitlement, alternatively the right of the First Defendant to mine Erf 1197 Macassar”.

[19] In the existing prayer (f), the plaintiff asks for “costs of suit”. The plaintiff now applies that this prayer be substituted by the following new prayer (I quote verbatim):

“An order expunging the mineral [changed to “mining” during argument] rights granted to the first defendant pursuant to the expropriation that had been sought in respect thereof in prayer (a) prior to the conversion of such rights under the MPRD Act and now pursuant to an order expropriating such right as converted under the MPRD Act, and declaring or recommending that the Plaintiff is entitled to apply for a declaratory order to the Department of Mineral and Energy Affairs for a mining licence under the MPRD Act, either in its own name through means of a Communal Property Association to be formed or through a suitable joint venture with an appropriate mining company and for the Department of Mineral and Energy Affairs to consider awarding a mining right to Plaintiff.”

The second part of the proposed new prayer (f), wherein a declaratory order or recommendation is sought, was not proceeded with.

[20] Since the two new prayers are interrelated, I will consider them together. I start by examining the law.

Mineral rights under common iaw

[21] Under common iaw the ownership of all minerals not yet severed from the soil vests in the owner of the land, who may freely dispose of them. As a general rule, the owner of land could dispose of his or her mineral rights to any other person, who will then be entitled to exploit the mineral wealth of that land. See Silberberg and Schoeman’s The Law of Property, 4th ed by Badenhorst, Pienaar & Mostert, pp 329 and 313.

[22] Mineral rights have in the past been characterised as quasi-servitudes (Du Preez v Beyers en Andere 1989 (1) SA 320 (T) 324 G-H) and also as real rights sui generis (Ex Parte Pierce and Others 1950 (3) SA 628 (O) 634). Mineral rights were transferable. Once a separate title to minerals had been established, the title could not thereafter be re-united with the title to the land should the holder of the title to the minerals acquire ownership of the land (.Beyers en ‘n Ander v Du Preez en Andere 1989 (1) SA 328 (T) 336D).

Minina rights under the MPRD Act

[23] On 1 May 2004 the MPRD Act commenced. This was after the interim interdict against the first defendant was given for the first time. The legal rights relating to minerals were significantly changed by the MPRD Act. Mineral rights are no longer susceptible of private ownership. This is apparent form sections 3(1), 3(2) and 4(2) of the MPRD Act, which read as follows:

"3(1) Mineral and petroleum resources are the common heritage of all people of South Africa and the State is the custodian thereof for the benefit of all South Africans.

3(2) As the custodian of the nation’s mineral and petroleum resources, the State, acting through the Minister, may-

(a) grant, issue, refuse, control, administer and manage any reconnaissance permission, prospecting right, permission to remove, mining right, mining permit, retention permit, technical co-operation permit, reconnaissance permit, exploration right and production right; and

(b) ...

4(2) In so far as the common law is inconsistent with this Act, this Act prevails.”

[24] Under section 5(1) of the MPRD Act, a mining right is characterised as :ollows:

“A ...mining right ...granted in terms of this Act is a limited real right in respect of the mineral or petroleum and the land to which such rights relates.”

[25] The effect of the new system was summarised in a joint judgment by Lacock J et Olivier J in Meepo v Kotze and Others, 2008(1) SA 104 (NC) as follows (at 110G-J);

“(a) The Legislature has done away with the traditional concept of ‘mineral rights’. The State is now the custodian of the mineral and petroleum resources of the Republic of South Africa (s 3).

(b) No provision is made for the compulsory compensation of a landowner for the surface use of its property for purposes of protecting or mining for minerals except in cases of expropriation (sch 2 para 12) or by means or arbitration (s 54).

(c) The holder of a prospecting or mining right now has a limited real right in the land which is the subject-matter of the right, and this right must be registered (ss 5 (1) and 19 (2)(a)).

(d) The prevalence of State power of control over the mineral resources of the Republic and the concomitant ousting of the (mineral) rights of the landowner and/or the holder of mineral rights (s 3(2)).”

[26] The MPRD Act abolished the so-calied “old order” mineral rights, thereby effectively removing title to all mineral rights from the previous holders thereof. By so doing, the Act clearly interferes with existing rights. Any other interpretation "would lead to an absurdity or practical injustice”: Lek v Estate Agents Board 1973 (3) SA 160 (C) at 169G.

[27] As was pointed out by Mr Warner, who appeared for the second defendant, the plaintiff is in effect seeking to recover and retain

“mineral rights” of which everyone else has been divested. Mr Spilg relied on the presumption against the retrospective operation of statutes to justify the plaintiff’s claim relating to the mineral rights. In my view, the real issue is not one of retrospectivity in its strict sense. As was said by Buckley LJ in West v Gwynne, 1911(2) Ch 1 at 11:

“The question is as to the ambit and scope of the Act and not as to the date as from which the new law, as enacted by the Act, is taken to have been the iaw.”

See also Van Lear v Van Lear 1979 (3) SA 1162 (W) at 1164 E-F.

[28] A mining right is no longer freely transferable. Section 11(1) and (2) of the MPRD Act restricts its transferability as follows:

“Transferability and encumbrance of ... mining rights.

(1) A...mining right or an interest in any such right, or a controlling interest in a company or close corporation, may not be ceded, transferred, let, sublet, assigned, alienated or otherwise disposed of without the written consent of the Minister, except in the case of change of controlling interest in listed companies.

(2) The consent referred to in subsection (1) must be granted if the cessionary, transferee, lessee, sublessee, assignee or the person whom the right will be alienated or disposed of-

(a) is capable of carrying out and complying with the obligations and the terms and conditions of the right in question; and

(b) satisfies the requirements contemplated in section 17 or 23, as the case may be.

It follows from the above that title to the first defendant’s mining right cannot be transferred to the plaintiff through the mechanism of expropriation.

Are rights to minerals “property”?

[29] In terms of section 25(1) of the Constitution (Act 108 of 1996) no one may be deprived of property except in terms of law of general application. Section 25(2) of the Constitution permits the expropriation of "property’’ under a law of general application. Section 2(1) of the Expropriation Act 63 of 1975 allows the Minister of Public Works to expropriate “property”. “Property” is described In section 1 of the Expropriation Act as both movable and immovable property.

[30] Daniels J considered whether mineral rights are “property” in Lebowa Mineral Trust Beneficiaries Forum v President of the Republic of South Africa, 2002 (1) BCLR 23 (T). He held as follows at 31D:

“What is protected as “property” in section 25 of the Constitution is land and other corporeals. Mineral rights are not

given express protection in the Constitution...”

[31] The view that mineral rights might not be “property” has been sharply criticized by Prof A J van der Walt in his article “Resisting orthodoxy again: Thoughts on the development of post-apartheid South African Law” published in (2002) 17 SA Public Law 258, and again in his book Constitutional Property Law. He said (at 87) that-

“...if property is protected in general, and no mention is made of any specific kind of property, it has to be inferred that any kind of property interest that is not included explicitly or by necessary implication is included, probably as long as it is recognized as property by law. This is particularly the case when the relevant category of interests is recognized as property in private law, as mineral rights are.”

I respectfully agree with Prof Van Der Walt.

Expropriation of mining rights

[32] The 1975 Expropriation Act caters for the expropriation of old order mineral rights. Section 12(1) of the Act contains provisions for the determination of compensation in cases where such mineral rights are expropriated. New order mining rights, like old order mineral rights, are real rights. They are also'property. I see no reason why such rights cannot be expropriated.

[33] The effect of an expropriation of an old order mineral right differs toto caelo from that of a new order mining right. In the first instance, title to the mineral rights will pass to the expropriator in the second instance, the mining right will be extinguished, except perhaps if the Minister has consented in terms of section 11 of the MPRD Act that the title can pass to the expropriator or to the person or community for whose benefit it is expropriated. Expunging the mining right will free the land from its encumbrance. In this respect, the nature of a new order mining right resembles that of a personal servitude.

[34] A personal servitude in respect of land can be extinguished through expropriation. Compare Minister van Waterwese v Mostert and Others 1964(2) SA 656 (A) at 666-667, Beckenstrater v Sand River Irrigation Board 1964 (4) SA 510 (T) at 515 A'E and Wallis and Another v Johannesburg City Council and Another 1981 (3) SA 905 (W) at 909A-E. Badenhorst, in his article “Die Vereistes vir ‘n Geldige Onteieningskennisgewing” 1989 52 TRHR 130, says (at 137) that the expropriation of an existing personal servitude terminates the ius in re aliena established by the servitude, thereby enhancing the extent of the ius in re sua over the land. In my view, the same holds good for the expropriation of a new order mining right.

[35] A mining right over land is a real right which, in the words of Brink J in Ex Parte Pierce and Others 1950 (3) SA 628 (O) at 634, is “a subtraction from the full dominium of the owner of the land concerned”. I conclude that It is legally possible for the Minister of Public Works to expunge by way of expropriation, the mining right held by the first defendant in respect of Erf 1197. By doing so, she will rid the erf of the constraints caused by the mining right. She will, however, have to compensate the first defendant for the loss of its mining right.

[36] Mr Warner submitted that a mining right is not a “right in land” as envisaged in sections 1 and 35 of the Restitution Act, and can therefore not be restored to the claimant. The expunging of a mining right through expropriation is not a restoration of the right to the plaintiff. It is a removal of a restriction on the full dominium of the land, so that the full dominium can be restored to the plaintiff. Such restoration is in the “public interest” as envisaged in the Constitution. An expropriation which serves the pubiic interest is valid. See section 25(2) read with section 25(4) of the Constitution, Act 108 of 1996.

[37] To restore the full dominium of the erven to the plaintiff, should the Court so order, it might well be necessary to expunge the first defendant’s mining rights. This can be illustrated by the following example, if land from which a claimant was dispossessed became burdened by a servitude of usufruct after the dispossession, the restoration of that land to the claimant would involve not only the return of the nudum dominium, but also the annulment of the usufruct The two goes hand in hand.

[38] In the event of this Court having to decide on the form of restitution (if any) to be awarded to the plaintiff, it might well choose restoration of the five erven. It might also, and I put it no higher than that, order the Minister of Land Affairs to expropriate the mining rights of the first defendant so as to free up the land for the community. Such an order would be part of the restoration process, and as such permissible under section 35(1 )(a) of the Restitution Act. It will pave the way for the community to avail itself of its preference under section 104 of the MPRD Act, should it wish to do so.

[39] Should the Minister of Minerals and Energy, after expropriation of the existing mining right, be inclined to allow further mining on Erf 1197, the first defendant will have to apply anew for such a right. The community will also be entitled to apply for a mining right. It enjoys preference under section 104 of the MPRD Act. Section 104(1) and (2) of the Act reads as follows:-

“(1) Any community who wishes to obtain the preferent right to prospect or mine in respect of any mineral and land which is registered or to be registered in the name of the community concerned, must lodge such application to the Minister.

(2) The Minister must grant such preferent right if the community can prove that-

(a) the right shall be used to contribute towards the development and the social upiiftment of the community concerned;

(b) the community submits a development plan, indicating the manner in which such right is going to be exercised;

(c) the envisaged benefits of the prospecting or mining project will accrue to the community in question; and

(d) the community has access to technical and financial resources to exercise such right.

Is the plaintiff entitled to restitution of a right to exploit minerals?

[40] Mr Spilg, on behalf of the plaintiff, submitted that the rights of which the community were dispossessed included the right to exploit the mineral wealth of the five erven. In today’s parlance, so Mr Spilg argued, that would mean an entitlement to obtain a mining right under the MPRD Act, or if the community so chooses, an entitlement to decide that the land should not be mined.

[41] I cannot accept Mr Spilg's submission. Firstly, for reasons set forth later in this judgment, the plaintiff has no vested right to restoration of any right in land until this Court has ordered restoration of the right as an appropriate form of restitution. Secondly, restoration of mineral rights is no longer permissible. As from the commencement of the MPRD Act, the right to private ownership of all mineral rights in South Africa has come to an end. A landowner no longer has any right to decide whether his land should be mined or not, Í see no reason why a previously dispossessed community should have greater rights to minerals in respect of its land than everybody else had in respect of their land. I also cannot conceive of any legal basis on which this Court is entitled to override the MPRD Act by awarding rights to mine to the community. Such rights can only be granted by or on behalf of the Minister of Minerals and Energy in accordance with the provisions of the Act.

[42] This Court has the power under the Restitution Act to order restoration of land to claimants from whom the land was dispossessed.

If the dominium of the land at the time of restoration is encumbered by a mining right, the Court may either order restoration of the land subject to the encumbrance, or it may order the expunging of the encumbrance through expropriation, so as to award the claimant full ownership (dominium plenum). It may, in addition, order the payment of equitable relief. See Richtersveld Community v Alexcor Ltd and Another, [2004] 3 All SA 244 (LCC). It may not, however, award a dispossessed community greater title to the mineral resources of the restored land than the MPRA Act allows. See in this respect the reasoning of the Privy Council in Midland Railway Company of Western Australia Ltd v State of Western Australia, [1956] 3 ALL ER 272 (PC), particularly at 278B-H.

[43] Mr Spilg submitted that because both the Restitution Act and section 25(7) of the Constitution pre-dates the MPRD Act, the MPRD Act cannot trump the plaintiff’s claim for restoration of the full dominium over the land (including its minerals). He submitted that the Restitution Act is the dominant Act under section 25(7) of the Constitution.

Section 25(7) of the Constitution provides as follows:

“A person or community dispossessed after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.”

The MPRD Act, so Mr Spilg argued, cannot remove rights which have already accrued to the plaintiff under the Restitution Act.

[44] Mr Spilg furthermore relied on section 12 (2)(e) of the Interpretation Act No. 33 of 1957, which provides that a repealing law does not affect any right, privilege, obligation or liability which a person (or community) might have under any law so repealed.

[45] According to the plaintiff, it was dispossessed of its rights to the minerals in or under the five erven. Such private holdings of mineral rights were abolished by the MPRD Act. See Van Der Walt, Constitutional Property Law, 378-394. Neither the Restitution Act nor the Interpretation Act can preserve such holdings. The unexploited mineral wealth of South Africa has become res publica. This is demonstrated by Badenhorst Pienaar Mostert in Silberberg and Schoeman’s The iaw of Property (4th ed) at 34-36. Even if this Court orders that the five erven must be restored to the plaintiff, the restoration cannot include any rights to minerals in or under the erven.

Recommending the grant of a mining right

[46] The plaintiff, in the second part of the proposed new prayer (f), asks for an order (sic) “declaring or recommending that the plaintiff is entitled to apply...for a mining license...under the MPRD Act”.

[47] If the erven are restored to the plaintiff, there is nothing to stop the plaintiff from applying for a mining right. In fact, the plaintiff is entitled to bring such an application even if the erven are not restored. Of course, any mining rights which might be awarded to the plaintiff under the MPRD Act cannot intrude upon or override mining rights already awarded to the first defendant in over Erf 1197. A declaratory order in this respect is unnecessary.

[48] I come to the request that this Court recommends the grant of a mining right to the plaintiff. There is no specific authority in the MPRD Act or in the Restitution Act for this Court to do so. The MPRD Act authorises the Minister of Minerals and Energy, as “custodian of the nation’s mineral...resources”,

to grant (inter alia) mining rights. It sets out (in section 23) the circumstances under which the Minister must grant mining rights.

[49] The Land Claims Court is a creature of statute. Its jurisdiction is confined to powers granted by legislation, it has no inherent jurisdiction. No power has been granted to it under any law to make recommendations on how the Minister of Minerals and Energy must exercise her powers under the MPRD Act.

[50] There is a second reason why this Court has no power, in my view, to entertain a prayer for a "recommendation”. Making a “recommendation” is no a judicial act. According to Wiechers, “Administratiefreg” 2nd ed 315 -

“Die regteriike handeling is nl ‘n gesaghebbende, finale oplossing van *n regsdispuut of onsekerheid soos dit op ‘n bepaalde

tydstip tussen bepaalde partye bestaan.”

In Kayamandi Town Committee vMkhwasa and Others 1991 (2) SA 630 (C) 634C-D, Conradie J referred to the Privy Council decision of Saskatchewan Labour Relations Board y John East Ironworks Ltd [1949] AC 134 at 149, where it was remarked that it is-

“...a truism that the conception of the judicial function is inseparably bound up with the idea of a suit between parties, whether between Crown and subject or between subject and subject, and that it is the duty of the Court to decide the issue between those parties.”

[51] A recommendation by the Court does not decide any issue. It has no legal effect. Unless specifically authorised by statute, it should neither be claimed by a party nor included in a Court Order. De Villiers JP said in the case of Steytler NO v Fritzgerald, 1911 AD 295, albeit in a different context:

“Now a Court can only be said to have jurisdiction in a matter if it has the power not only of taking cognisance of the suit, but also of giving effect to its judgment.” (At 346)

[52] I conclude that this Court has no power to entertain a prayer that it makes a recommendation to the Minister of Minerals and Energy to award the plaintiff a mining right in respect of any of the five erven.

PROPOSED AMENDMENTS TO THE PARTICULARS OF CLAIM

[53] Several of the proposed amendments are based on the premise that the plaintiff has an accrued right to the restoration of the five erven. Before dealing with the individual amendments sought by the plaintiff, I will consider the validity of this premise.

Does the plaintiff have a vested right to restoration?

[54] In terms of section 2(1 )(d) of the Restitution Act, a person shall be entitled to restitution of a right in land if-

“it is a community or part of a community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices”

and if a number of other requirements, which are not relevant for purposes of this judgment, have been met.

[55] Section 1 of the Restitution of Land Rights Act contains the following important definitions:

“restitution of a right in land” means-

(a) the restoration of a right in land; or

(b) equitable redress;

“restoration of a right in land” means the return of a right in land or a portion of land dispossessed after 19 June 1913 as a result of a past racially discriminatory laws or practices;

“equitable redress” means any equitable redress, other than the restoration of a right in land, arising from the dispossession of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices, including-

(a) the granting of an appropriate right in alternative state-owned land;

(b) the payment of compensation.”

[56] If the Court concludes that “rights in land” must be restored to a claimant, it is for the Court to decide what form the restitution will take: restoration of the right or equitable redress. This is evident from sections 35(1 )(a), (b) and (c) of the Restitution Act, which reads as follows:

“The Court may order-

(a) the restoration of land, a portion of land or any right in land in respect of which the claim or any other claim is made to the claimant or award any land, a portion of or a right in land to the claimant in full or in partial settlement of the claim and, where necessary, the prior acquisition or expropriation of he land, portion of land or right in land:...

(b) the State to grant the claimant an appropriate right in alternative state-owned land and, where necessary, order the State to designate it;

(c) the State to pay the plaintiff compensation;"

[57] The above interpretation has been confirmed by the Constitutional Court in the case of Concerned Land Claimants’ Organisation of Port Elizabeth v Port Elizabeth Land and Community Restoration Association and Others [2006] ZACC 14; 2007 (2) SA 531 (CC), where it was held [at 542H-I]:

“Neither a claimant nor a community may insist as of right on original land dispossessed. This is not surprising. The affected land dispossession occurred over nearly 80 years, since 1913, to different persons and communities across our land. Over the period, patterns of land ownership, use and development have changed drastically. What is appropriate property restitution or equitable redress in response to historical dispossession is bound vary and be subject to the specific context.”

[58] The restitution claim in respect of the five erven does not confer a vested right on the plaintiff to any particular form of restitution. The Court must decide on the most appropriate form. Only if and when the Court has ordered the restoration of the five erven will the plaintiff have a vested right to restoration of the erven.

Amendment to par 49 ~first defendant exploiting mineral rights for own benefit

[59] The plaintiff seeks to amend paragraph 49 of its particulars of claim by inserting the underlined words:

“The erven are vacant besides, erf 1997, which is being mined by the first defendant, in conflict both with its members obligations to respect the communal rights attaching thereto and not to exploit it for their own benefit and/or unlawfully at present, as will be shown, and the claim is viable and feasible and there are no impediments to restoration.

[60] The first defendant objects to the allegation that members of the first defendant who are also members of the plaintiff community, has an obligation to respect the “communal rights” which the plaintiff claims over Erf 1197 and not, as those members have done, to exploit it for their own benefit. There is no allegation that all the members of the first defendant are indeed members of the plaintiff community. The members of the first defendant who are alleged to be members of the plaintiff community have not been identified as such. The first defendant is a legal entity with legal personality separate from its members. The amendment sought to be effected neither identifies what "communal rights” of the plaintiff community are being infringed, nor the basis on which the first defendant or its members have a legal obligation to respect the rights.

[61] I have already stated that at the present time, the plaintiff community has no vested right to the restoration of Erf 1197. Although, as Mr Spilg has pointed out, a community might be awarded a preferent mining right under section 104 of the MPRD Act, no such right has been applied for.

Furthermore, under section 104(4) of the Act, such a preferment right cannot be granted in respect of an area where a mining right has already been granted.

[62] I conclude that the proposed amendment to paragraph 49 of the particulars of claim is so vague that it cannot be granted.

New suboaras to par 52 - reasons why mining right should be expunged

[63] The plaintiff furthermore applies to amend paragraph 52 of the particulars of claim by renumbering the existing paragraph as 52.1 and by adding new subparagraphs 52.2 to 52.11.

[64] The first defendant objects to the preamble of the proposed new paragraph 52.2, which reads as follows:

“Plaintiff furthermore seeks an order directing the second and third defendants to expropriate and expunge any validly held right to mine erf 1197 Macassar by the first defendant and/or transferring or recommending the restoration of the mineral rights to Erf 1197 subject to the exercise of the discretionary powers conferred on the Minister of Mineral and Energy fairs under the provisions of the Minerals & Petroleum Resources Development Act No. 28 of 2000 (“the MPRD Act”) or other relevant legislation.”

The basis of the objection is the same as against the proposed amendments to prayers (a) and (f).

[65] The first defendant furthermore objects to an attack on the validity of both the 2000 mining licence and the present mining right of the first defendant, as set forth in the new subparagraphs 52.8, 52.9, 52.10 and 52.11 sought to be added to the particulars of claim. The proposed new subparagraphs read as follows:

“52.8 Prior to the Supreme Court of Appeal decision, the first defendant, unbeknown to the plaintiff community or to the Regional Land Claims Commissioner (RLCC) and without written notice as required under Section 11 of the Restitution Act, sought to convert its mineral rights into a new order mining right under the MPRD Act;

5.9 Accordingly, both at the time it sought to acquire the original 2000

mining license and when it sought to convert that mining license into a new order mining right under the MPRD Act, the first defendant:

52.9.1 was aware of the plaintiff’s community’s land claim under the Restitution Act, of at least the commonage area which includes Erf 1197 being rights in land held by a community in a manner contemplated by the Restitution Act;

52.9.2 was aware that such community had a right under that Act to obtain restoration of what had belonged to it before dispossession, which rights included the right to the minerals and the other natural resources on the commonage;

52.9.3 was aware since the publication of the Section 11(1) gazette notice under the Restitution Act that the plaintiff community’s rights could not be adversely affected by any development or other action taken by it pursuant to the mineral rights held by it;

52.9.4 was aware that the Section 11(1) notice as aforesaid and the interim interdicts granted by both the Land Claims Court and its variation by the Supreme Court of Appeal amounted to a caveat to its mineral rights and precluded it from seeking to convert such rights under the MPRD Act either at all or without notice being given to the claimant community and the RLCC and affording them an opportunity to make representations to the relevant authorities before such mining right could be converted under the MPRD Act.

52.10 In the premises, the first defendant, with full knowledge, wrongfully and/or unlawfully usurped the claimant community’s right to utilize the commonage to the exclusion of the first defendant, including the rights of which the community had been dispossessed of the minerals and other natural resources on the commonage and how such resources were to be utilized or preserved and protected.

52.11 the plaintiff contends that the purported right to mine Erf 1197 Macassar by the First Defendant either was not validly obtained for the reasons set out in paragraphs 53 to 69 hereof alternatively could not be validly obtained by reason of the community’s right to exploit the commonage, further alternatively if validly obtained, the community is entitled to have the First Defendant’s right to mine expropriated and reference is further

had to the contents of paragraph 72.”

The basis of the objection is that this Court has no jurisdiction to pronounce upon the validity of either the mining licence or the mining right. There is, significantly, no prayer for a declaratory order that the mining licence or the mining right is invalid.

[66] Mr Spilg explained that the proposed new subparagraphs contain the reasons why the purported right to mine Erf 1197 was not validly obtained, alternatively could not be validly obtained, further alternatively if validly obtained, should be expunged by means of expropriation.

[67] The Restitution Act does not bestow any power on this Court to pronounce upon the validity of the mining right held by the first defendant. Being a creature of statute, it has no inherent jurisdiction. It cannot, by its own ruling or decision, confer a jurisdiction upon itself which it does not in law possess. See Minister of Public Works v Haffejee NO [1996] ZASCA 17; 1996 (3) SA 745 (A) at 751E. Until the first defendant’s mining right lapses, is withdrawn or is declared invalid by a competent court, its factual existence must be recognised, even though the right might have been unlawfully awarded. See Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA), paras [31], [37] and [40].

[68] I have already concluded that this Court has the power to order the Minister of Land Affairs to expunge the first defendant’s mining right by means of expropriation. According to Mr Spilg, the proposed new sub-sections contain the reasons why the right to mine Erf 1197 should so be expunged.

Some of the reasons may be valid, others are untenable in law. However, the reasons given are so interwoven with each other that it would be well-nigh impossible to separate the good from the bad and allow only those portions of the proposed amendments which are tenable in law,

[69] It might well be that if the mining right or previous mining licence held by the first defendant was obtained under questionable

circumstances, it could impact on the Court’s decision whether or not it will order the Minister of Land Affairs to expunge the mining right by expropriation. The Court is enjoined by section 33 of the Restitution Act to have regard to inter alia the following factors:

(a) The desirability of providing for restitution of rights in land to any person or community dispossessed as a result of past racially discriminatory laws or practices;

(c) the requirements of equity and justice;

(cA) if restoration of a right in land is claimed, the feasibility of such restoration;

(e) any provision which already exists, in respect of the land in question in any matter, for that land to be dealt with in a manner which is designed to protect and advance persons, or categories of persons, disadvantaged by unfair discrimination in order to promote the achievement of equality and redress the results of past racial discrimination;

(eB) the history of the dispossession, the hardship caused, the current use of the land and the history of the acquisition and use of the land;”

[70] Taking the above into account, I will allow the proposed amendments to paragraph 52. By so doing, I do not accept that the plaintiff has a vested right to the restoration of the five erven, nor of a right to mine for minerals on Erf 1197. I also do not accept that this Court has jurisdiction to declare that the mining right granted to the first defendant under the MPRD Act is invalid.

New par 72 - validity of first defendant’s right to mine

[71] The next amendment to which the first defendant objects, is the proposed substitution of the existing paragraph 72 of the particulars of claim by a new paragraph 72, which reads as follows:

“72.1 Any mining rights in respect of the commonage under the Minerals Act 50 of 1991 could only have been accorded to the community’s

consent which was not obtained.

72.2 Prior to the purported grant of a mining license to the first defendant on 6 January 2000, the first defendant through its majority members was aware of the community’s claim to the rights in land in respect of the commonage.

72.3 Such rights in land in respect of the commonage included the right to exploit the mining sand.

72.4 The rights currently claimed by the first defendant in respect of mining the sand on the commonage under the Mineral and Petroleum Resources Development Act 28 of 2002 is derived by reason only of the first defendant purportedly being granted the mining license on 6 January 2000 under the Minerals Act 50 of 1991, which it was not entitled to obtain by reason of it being not validly or lawfully obtained or by reason of the first defendant’s knowledge of the community’s rights to exploit the commonage.

72.5 The right to mine under the MPRD Act was furthermore in disregard of the Section 11(1) Government Gazette Notice in respect of the plaintiff’s claim under the Restitution Act and in disregard of the interim order granted by the Land Claims Court in 2003 and in disregard of the amended interim order granted by the Supreme Court of Appeal in this matter.

72.6 At the time of the lodging of the claim for restitution by the Plaintiff under the Restitution Act and the publication of the Section 11(1) of the Government Gazette Notice, the Plaintiff was entitled to the right to mine the commonage and to exclude the first defendant from mining the commonage.

72.7 Any mining rights granted in respect of the commonage were entitled to be exploited by the Plaintiff as was the right to exclude anyone else from mining the commonage by reason of the adverse environmental impact it would have,

72.8 In the absence of any adverse environmental impact and at the time of the lodging of the claim and/or at the time of the Section 11(1) Gazette Notice as aforesaid, the Plaintiff had an accrued right to determine the land use of the commonage in the best interests of the community, and should there be any exploitation of mineral rights, that such rights accrued to the community and for the benefit of the community, and not to the exclusive benefit of any one person or member of the community to the exclusion of all the other members of the community.

72.9 At all material times the claimant community exercised the right to utilise the mineral wealth of the sand dune for their own benefit;

72.10 Section 35( 1 )(a) of the Restitution Act provides that the court may order:

“the restoration of land or any right in land in respect of which the claim...is made to the claimant...and where necessary, the prior acquisition or expropriation of the land or right in land...”.

72.11 Consequently, the purpose of the provisions of the Restitution Act are that the court would be entitled to restore what was lost, including any rights to use the minerals with a view to restoring the land and lost rights to the community.

72.12 Accordingly, the Plaintiff is entitled to the benefit of the mining rights in respect of the commonage which were part of the rights in land of which the community had been dispossessed or to otherwise determine the beneficial utilization of the commonage by the expungement of such mining rights.”

[72] The objection to the amendment relates, in the main, to the power of this Court to pronounce on the validity of the first defendant’s 2000 mining licence and the conversion thereof to a new order mining right under the MPRD Act. The validity of the mineral licence and the mining right is attacked by the plaintiff on the basis that at the time when the rights were granted to the first defendant, the plaintiff was already entitled to the benefit of the mining rights in respect of the erven. Such mining rights, according to the plaintiff, should have prevented the granting of a mining licence or a mining right to the first defendant.

[73] The plaintiff claims the benefit of the mining rights because the community previously conducted mining activities on the commonage, which includes Erf 1197. It submits that it is entitled to restoration of the requisite rights to enable it to continue mining. I have already concluded that a dispossessed community has no accrued right to have any “rights in land” of which it might have been dispossessed, restored to it. This includes any rights to minerals. The reason is that a right to restitution does not necessarily include a right to restoration. A right to restoration will only arise when it is ordered by the Court.

[74] There is a further reason why the first defendant does not have a right to minerals on the erven. For purposes of the Restitution Act, mineral rights are no longer "rights in land” which a claimant may claim. Such rights vest exclusively in the people of South Africa under the custodianship of the State (sec 3(1) of the MPRD Act).

[75] In an earlier judgment handed down in this matter on 24 May 2007, it was held that-

“in light of the new mineral dispensation, the restoration of Erf 1197 will not restore any mineral rights pertaining to the land to the claimants. Existing new order rights granted by the Minister will continue in accordance with the licence issued, irrespective of the identity of the land owner.”

[76] Lastly, the plaintiff submits that the previous mining licence and the present mining right held by the first defendant are not valid because the plaintiff did not consent to the granting thereof. I have no jurisdiction to declare the present mining right invalid. I might mention, in passing, that because the plaintiff has no right to mine any of the erven, I find it difficult to understand why its consent was required for the issue of a mining licence or of a mining right to the first defendant.

[77] In the proposed new subparagraph 72.13 the plaintiff alleges that it-

“is entitled to expropriate any mining right vaiidly held by the first defendant and expunge same alternatively is entitled to a declaratory order that it is entitled to apply to the Department of Mineral and Energy Affairs for a mining license under the MPRD Act,...”

The plaintiff holds no power of expropriation. It cannot expropriate any mining right. It is, however, entitled to apply for a mining right under the MPRD Act.

A declaratory order to that effect is not necessary. Whether such an application will be successful is an entirely different question, which is not for this Court to answer.

[78] It follows from the above that the application for an amendment to introduce the proposed new subparagraphs 72.1, 72.6, 72.7, 72,8, 72.12 and 72.13 cannot be granted. The other proposed subparagraphs contain allegations which might or might not be tenable. A break-up will be difficult. I will therefore allow the insertion of the proposed preamble and the proposed subparagraphs 72.2, 72.3, 72.4, 72.5, 72.9, 72.10 and 72.11.

New paras 73.15.2 and 73.15.3 - legality of first defendant’s mining

[79] The last of the disputed amendments are for the addition of new subparagraphs 73.15.2 and 73.15.3 to the particulars of claim. They read as follows:

“In considering the compensation payable, regard should be had to:

73.15.1 .. .{not affected by objection);

73.15.2 For the reasons stated in paragraphs 53 to 69 above, the mining of the commonage has continually been unlawful and the first defendant has had the benefit of making considerable profits amounting to millions of rands out of the unlawful mining of erf 1197 Macassar.

73.15.3 Alternatively and in any event, the fact that Maccsand CC is exploiting what its members know to be a right that devolved on the community in general and that they were not entitled to seek to exploit such right for their exclusive benefit to the exclusion of the community in general.”

The objections against these amendments are that this Court has no jurisdiction to pronounce on the validity of the mining licence (subsequently converted to a mining right), or on the legality of the first defendant exploiting the mining right for its own benefit, to the exclusion of the plaintiff community.

[80] I have already found that this Court is not empowered to declare the first defendant’s mining licence or mining right invalid. This Court can similarly not pronounce on the legal validity of the first defendant’s exploitation of mineral rights for its own benefit, to the exclusion of the plaintiff community,

[81] I have also found that the plaintiff community has no entitlement to restoration of mineral rights. The above does not imply that this Court is precluded from considering the fairness of the exploitation of the minerals by the first defendant when considering the amount of compensation payable, should it decide to award compensation to the plaintiff. Some of the allegations in the proposed new subparagraphs 73.15.2 and 73.15.3 may impact on the fairness of the exploitation, it is, once again, difficult to separate the good from the bad. Under these circumstances I will allow the entire amendment.

CONCLUSION

[82] In summary, my findings are as follows:

this Court has the power, as part of any restoration of rights in land which it may award to the plaintiff, to order that the first defendant’s mining right be expunged by expropriation. when deciding whether or not to make an order that the first defendant’s mining right be expunged by expropriation, the Court may consider all relevant circumstances, including the history of the acquisition and use of the mining right.

this Court has no power declare that the mining rights granted to the first defendant under the MPRD Act, is invalid.

the plaintiff has no right to the restoration of any right in respect of the five erven until the Court has determined that restoration is an appropriate form of restitution of the rights in land of which the plaintiff was dispossessed, and has made such an order. a mining right granted under the MPRD Act cannot, by its very nature, be the subject of a restoration order. this Court has no power to entertain a prayer for a recommendation to the Minister of Minerals and Energy on how and to whom she should award a mining right.

[83] Both the first defendant and the second defendant delivered notices of exception to the plaintiff’s particulars of claim. This was before the application for the amendment. The exceptions have probably been overtaken by the amendments. I was not asked to make any order on the exceptions. I will, however, allow the excipients to enrol the exceptions (should they choose to do so) by delivering a request for a date of hearing by not later than 9 May 2008.

[84] Rule 22(6) of the Rules of this Court reads as follows:

“(6) Any party that has delivered a notice of intention to amend will, unless the Court orders otherwise, be liable for the costs incurred by any other party as a result of that notice and any consequential amendment.”

The plaintiff did not ask me to order otherwise. This may be due to a bona fide oversight. I will give the plaintiff an opportunity to bring an application for an order that it shall not be liable for the costs incurred by the first and second defendants as envisaged in Rule 22(6).

[85] For the reasons given above, I hereby make the following order:

(a) Permission to amend paragraph 49 of the particulars of claim, as sought in paragraph 7 of the notice of intention to amend, is refused.

(b) Permission to amend paragraph 52 of the particulars of claim, as sought in paragraph 10 of the notice of intention to amend, is granted.

(c) Permission to amend paragraph 72 of the particulars of claim, as sought in paragraph 11 of the notice of intention to amend, is granted, save for the insertion of the proposed new sub-paragraphs 72.1, 72.6, 72.7, 72.8, 72.12 and 72.13 which is refused.

(d) Permission to add subparagraphs 73.15.2 and 73.15,3 to paragraph 73 of the particulars of claim, as sought in paragraph 12 of the notice of intention to amend, is granted.

(e) Permission to amend prayer (a) of in the particulars of claim, as sought in paragraph 13 of the notice of intention to amend, is granted.

(f) Permission to delete and substitute prayer (f) of the particulars of claim, as set out in paragraph 15 of the notice of intention to amend, is granted, save for the second part thereof, commencing with “and declaring and recommending that the plaintiff..." up to. .awarding a mining right to the plaintiffwhich is refused.

(g) The plaintiff is granted leave to deliver, by not later than 9 May 2008:

(i) a request for a date of hearing of the exceptions; and

(ii) an application for an order that the plaintiff shall not be liable for the costs incurred by the first and second defendants as result of the notice of intention to amend and the consequential amendments.

A Gildenhuys

Judge orthe Land Claims Court

Appearances:

For the plaintiff:

Mr B S Spilg SC with him Mr L J Krige

instructed by Igsaan Sadien Attorneys

For the first defendant:

Mr I Jamie SC with him Ms N Bawa

instructed by Cliff e Dekker Inc.

For the second defendant Mr K E Warner

instructed by The State Attorney