ANGLO OPERATIONS LTD v SANDHURST ESTATES (PTY) LTD 2006 (1) SA 350 (T) 2006 (1) SA p350 Citation

Case No Court Judge Heard Judgment Counsel 2006 (1) SA 350 (T) 20050/2003 Transvaal Provincial Division De Villiers J August 2, 2004 ; August 3, 2004 ; August 4, 2004 September 23, 2004 C D A Loxton SC (with P Lazarus) for the applicant. S J du Plessis SC (with J L Gildenhuys) for the respondent. Link to Case Annotations

Annotations

F [zFNz] Flynote : Sleutelwoorde Mines and minerals - Mineral rights - Ambit of - Competing rights - Mineral rights holders and surface G owners - Content of competing rights - Determination of - To be determined with reference to common law as amended by agreement between parties and provisions of Minerals Act 50 of 1991 - Common law H principle being that grantor by implication of law considered to have granted all rights necessary for exercise of primary right to prospect and mine for minerals, provided that such rights exercised civiliter modo - Right of surface owner to lateral support not forming part of such ancillary rights - Must be expressly or tacitly waived - Whether waiver took place to be decided in light of facts falling within knowledge of parties at I time of conclusion of grant - Concept of 'optimal' utilisation of minerals notion of Minerals Act, not common law Minerals Act regulatory in nature and not designed to add to or subtract from common-law mineral rights. Mines and minerals - Mineral rights - Ambit of - Competing rights - Mineral J 2006 (1) SA p351 rights holders and surface owners - Doctrine of lateral support - Right to support natural incident of ownership A of land - Surface owner retaining right to lateral support unless expressly or tacitly waived (continued existence of right, not waiver thereof, implied by law) - Whether waiver took place to be decided in light of facts falling within knowledge of parties at time of conclusion of grant - Right to let down support not forming part of ancillary rights acquired ex lege by mineral rights holder - Right to conduct B open-cast mining to be specifically agreed upon (either expressly or tacitly) - This state of affairs not affected by provisions of Minerals Act 50 of 1991. [zHNz] Headnote : Kopnota The applicant approached the Court for an order declaring that it was entitled to conduct open-

cast mining operations on a portion of the C respondent's property. The applicant had obtained, by way of a notarial cession of mineral rights, all rights to 'the coal in, on and under the property'. The applicant claimed, inter alia : that it was entitled, as holder of the mineral rights, to exercise all ancillary rights required to efficiently carry out its mining operations; that in case of conflict use of the surface rights had to be subordinated to mineral exploration; that 'optimal utilisation' of D the coal reserves required strip or open-cast mining of the coal deposits; and that it had a contractually unlimited 'common-law right' to do so. The applicant further relied on s 5(1) of the Minerals Act 50 of 1991, which it argued by necessary implication gave it the right to 'do all such ancillary things as (were) reasonably necessary to give full and proper effect' to its primary right to mine E the coal on the property, ie that it could do anything whatsoever to the property to ensure the optimal utilisation of the primary right, including open-cast mining. The only caveat was that these ancillary rights had to be exercised civiliter modo with regards to the rights of the owner. The applicant interpreted 'optimal utilisation' and 'reasonableness of implementation' to be objective criteria that depended on the facts and circumstances F obtaining at the time of the exercise of the ancillary right, and not on the facts and circumstances existing at conclusion of the contract that constituted the grant. The applicant in addition contended that since the exercise of mineral rights of necessity involved damage to the land and a curtailment of the normal rights of the owner, the law governing the relationship between neighbours (in particular nuisance and the right to lateral G support) had to be modified when dealing with owner/holder conflicts. The applicant argued in this regard that it was entitled to mine by open-cast methods rather than underground methods because the former would result in the 'optimal utilisation', as intended in the Minerals Act, of the coal reserve on the respondent's land. The applicant further argued that the doctrine of 'lateral support' H (which specified that an owner of land had the 'right' to lateral support of that land) was not part of our law and that the mineral rights holder had at common law a preferential right over that of the surface owner subject only to the civiliter modo limitation. Held , that the general principle was that the grantor of mineral rights had to be considered to have granted all things necessary for their exercise. The scope of the common law on the I question of the respective rights of the owner of the surface and the holder of mineral rights could, however, be modified by agreement between the parties, which in the present case was constituted by the terms of the cession. Regard had, however, also to be had to the relevant provisions of the Minerals Act (At 362D - I.) Held , further, as to the duty of a mineral rights holder vis--vis the surface owner, J 2006 (1) SA p352 in regard to lateral support, that the 'doctrine' of lateral support was introduced, as Judge-made A law, in London SA Exploration Co v Rouliot (1891) 8 SC 74, on the ground that it was just and equitable. The applicant's contention that the doctrine was not part of the Roman or RomanDutch law was, however, fallacious: the Roman and Roman-Dutch principles underlying the various remedies available for an injured neighbour would have produced the same result as was accepted in Rouliot . (At 366B, 370H and 372D.) B Held , further, as to the contractual issue relating to the implication of a term that the owner

retained his right to support of the surface unless he expressly or tacitly waived it (which issue was even more pertinent than the property law issue discussed above), that a distinction had to be drawn between terms implied by law ( naturalia ) and tacit terms imported on the basis of the C actual or presumed intention of the parties ( incidentalia ). (At 373H - 374B and 380E - F.) Held , further, that the rights ancillary to a grant of mineral rights had their origin in the contractual grant, and that the 'common-law rights' relied on by the applicant thus consisted in terms our Courts had imported ex lege into the agreement of grant (insofar as it contained no stipulations to the contrary). (At D 374I/J - 375A.) Held , further, that the right of an owner to the use and enjoyment of his land was the most important aspect of his ownership, and that the law did not imply a term into a grant of mineral rights that the owner agreed to part with his right to support. It was, in other words, not one of the naturalia of a grant of mineral rights, but had to be specifically agreed upon, either expressly or E tacitly. (At 375C - D and 375G.) Held , further, that the question of whether the parties to a grant intended that the owner should part with support had to be answered against the background of such facts as were within the knowledge of the parties at the time of conclusion of the contract. This subjective intention was of paramount importance: what was required was an express or tacit term, and not one implied by law. The F 'right to let down support' relied on by the applicant accordingly did not, as was argued, flow ex lege from the exigencies of the circumstances. (At 376I - 377A, 377E - F and 380G.) Held , further, that the Rouliot case was not authority for the proposition that although a grant did not expressly allow the right to conduct open-cast mining, that right would be necessarily implied ex lege when the circumstances required G open-cast mining to effectively exercise the right to the mineral. (At 380C - D.) Held , further, as to the nature of the 'right' to support, that it was not a right in itself, but a right pertaining to the legal relationship between the owner and third parties. It was in the nature of a capacity or competence that was incapable of transfer, but only of renunciation. What was required, therefore, was an intention on the H part of the owner to abandon or waive his competence to claim a prohibitory interdict or damages for breaches of the obligation to respect his use and enjoyment of his property. (At 381A - B and 382D - F.) Held , further, that the cession had not granted the applicant the right to conduct open-cast mining operations, either in express terms or by necessary implication. The parties had clearly I intended that mining would take place underground. There was no necessary implication (in the sense of a tacit term) that the owner had relinquished his 'right of subjacent support' on any part of the property. (At 391E, 392G and 394D.) Held , further, it was apparent from the above that the applicant could not succeed in its claim for an order that it was entitled to conduct open-cast mining: it J 2006 (1) SA p353

had relied on a non-existent 'common-law right' (the legally implied term relied on was not A implied in our law); the cession did not expressly or tacitly provide for open-cast mining; and the facts relied on by the applicant did not reflect the knowledge of the parties at the time of conclusion of the cession. (At 382H - 383B.) Held , further, as to whether the applicant was in any event entitled to 'optimally' utilise the minerals in question, that 'optimal utilisation' was not a common-law concept, but a notion of B the Minerals Act, which was a regulatory Act promulgated to control the exercise of mineral rights obtained under the common law. It thus reaffirmed the common law while subjecting it to the provisions of the Act. (At 388A - D.) Held , further, that 'optimal utilisation' as intended in the Minerals Act could therefore have no bearing on the applicant's rights in terms of the cession. The Act simply restated the entitlement C of a mineral rights holder in accordance with the primary entitlements of the common law, and did not imply a term that the applicant was entitled to utilise 'optimally' its mineral rights. (At 389A - B and 394E.) Held , further, that the law was thus that the mineral rights holder was only entitled to 'ordinary and reasonable enjoyment', not 'optimal' enjoyment, of his mineral rights, and that this was in D accordance with the civiliter modo principle of the law relating to servitudes. (At 389E - E/F.) Held , further, as to whether the parties had tacitly agreed that the applicant would be entitled to do what was necessary to the respondent's property to 'optimally' exploit the minerals, that the applicant had not made a case that it would be acting reasonably in conducting open-cast mining operations on the property. (At 390E.) E Held , accordingly, that the applicant had failed to prove that it was not able optimally to utilise its mineral rights by underground mining; that it would act reasonably with respect to the respondent's surface; or that it was entitled to use the method that would ensure optimal utilisation, namely open-cast mining. The application accordingly fell to be dismissed with costs. (At F 390I - 391D.) [zCAz] Cases Considered Annotations Reported cases A Becker & Co (Pty) Ltd v Becker and Others 1981 (3) SA 406 (A) : dictum at 419F - 420A applied G Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) : considered Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A) : dictum at 531D - 533C applied Borstlap v Spangenberg en Andere 1974 (3) SA 695 (A) : dictum at 704G applied

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) H (2001 (10) BCLR 995): considered Coopers & Lybrand and Others v Bryant 1995 (3) SA 761 (A) : dictum at 767E - 768E applied Coronation Collieries v Malan 1911 TPD 577: discussed De Villiers and Another v McIntyre NO 1921 AD 425: dictum at 432 applied I East London Municipality v South African Railways and Harbours 1951 (4) SA 466 (E) : dictum at 480F applied Elektrisiteitsvoorsieningskommissie v Fourie en Andere 1988 (2) SA 627 (T) : discussed Ex parte Sapan Trading (Pty) Ltd 1995 (1) SA 218 (W) : dictum at 226I - 227G applied J 2006 (1) SA p354 Galp v Tansley NO and Another 1966 (4) SA 555 (C) : dictum at 558G - 560A applied A Goodwood Municipality v Rabie 1954 (2) SA 404 (C) : dictum at 406B - E applied Hart v Pinetown Drive-In Cinema (Pty) Ltd 1972 (1) SA 464 (D) : dictum at 469C - E applied Holland v Scott (1881 - 1882) 2 EDC 307: referred to B Hudson v Mann and Another 1950 (4) SA 485 (T) : distinguished Johannesburg Board of Executors and Trust Co Ltd v Victoria Building Co Ltd (1894) 1 Off Rep 43: discussed and applied Kakamas Bestuursraad v Louw 1960 (2) SA 202 (A) : discussed and dictum at 216F - G applied London SA Exploration Co v Rouliot (1891) 8 SC 74: discussed and applied C Pan American World Airways Incorporated v SA Fire and Accident Insurance Co Ltd 1965 (3) SA 150 (A) : dictum at 175C applied Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) : dictum at 634H - I applied Radebe and Others v Eastern Transvaal Development Board 1988 (2) SA 785 (A) : dictum at 793D applied D Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) : discussed and distinguished

Shephard v Tuckers Land and Development Corporation (Pty) Ltd (1) 1978 (1) SA 173 (W) : dictum at 177G - H applied Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others 1999 (2) SA 279 (T) : dicta at 323G and 324E applied E Trojan Exploration Co (Pty) Ltd and Another v Rustenburg Platinum Mines Ltd and Others 1996 (4) SA 499 (A) : dicta at 515J - 516A and 520D - E applied Union Government (Minister of Railways and Harbours) v Faux Ltd 1916 AD 105: dictum at 112 applied F Van den Berg v Tenner 1975 (2) SA 268 (A) : dicta at 274A - B and 276H - 277C applied West Witwatersrand Areas Ltd v Roos 1936 AD 62: dictum at 72 applied Willcox and Others v Commissioner for Inland Revenue 1960 (4) SA 599 (A) : referred to. Unreported cases G Clifton v Alpha Anthracite (Pty) Ltd and Another (NPD, case No N494/79, 19 October 1979): criticised and not followed. Foreign cases Butterknowle Colliery Co Ltd v Bishop Auckland Industrial Co-operative Co Ltd [1906] AC 305: compared. H [zSTz] Statutes Considered Statutes The Minerals Act 50 of 1991, s 5(1) and (2): see Juta's Statutes of South Africa 2002 vol 6 at 3154. [zCIz] Case Information Application for a declaratory order. The facts appear from the reasons for judgment. I C D A Loxton SC (with P Lazarus ) for the applicant. S J du Plessis SC (with J L Gildenhuys ) for the respondent. Cur adv vult. Postea (September 23). J 2006 (1) SA p355

[zJDz] Judgment De Villiers J: A Introduction This is an application for an order that the applicant is entitled to utilise a certain portion of the respondent's property for open-cast mining purposes (prayer 1.2) and that it is entitled to construct a certain stream diversion on such property (prayer 1.1). B Applicant's application in respect of a conveyor route and access road across the property (prayer 1.3) has fallen away. Messrs Loxton and Lazarus appeared for the applicant and Mr Du Plessis and Ms J L Gildenhuys for the respondent. Argument in the matter lasted three days. At my request counsel kindly furnished the Court with supplementary heads of argument, for which they are thanked. C It is common cause that the respondent is the registered owner of the property and that farming is conducted on the property. The property is 848,5891 hectares in extent, ie about 990 morgen in the old terminology. D It is also common cause that applicant holds all rights to coal in, on and under the property in terms of a Notarial Cession of Mineral Rights dated 8 May 2001, in terms of which African and European Investment Co Ltd (AEIC) ceded its rights in the property to the applicant. AEIC obtained such rights by means of a notarial cession of coal rights, dated 18 July 1968, in terms of which one Arthur Sulski ceded certain rights to AEIC, as well as a notarial cession of E coal rights, dated 2 August 1968, and an amendment thereto, dated 20 February 1970, in terms of which one Morris Sulski ceded certain rights to AEIC. According to the cessions Arthur and Morris Sulski were born on 17 October 1915 and 19 May 1914 respectively. F The terms of the cessions The terms of the cessions by the Sulski's have been incorporated in the cession by AEIC to the applicant. For the sake of convenience I shall refer to the terms of the cessions by the Sulskis to AEIC. Because of the importance of the cessions in the matter I shall quote G the terms thereof in full. Arthur Sulski ceded to AEIC (referred to in the cession as 'the company') a five-sixth share 'in all rights to coal in, on and under' the property on the following terms and conditions: '1. The company shall have all such rights as may be needed for proper mining and exploiting the coal in, on and under all of the H said property. 2. For prospecting purposes the company or its contractors shall have the rights of access and temporary residence on the said property for itself and all servants and employees under suitable supervision and the company and its contractors and/or servants shall have the right to use any water on the said property excepting water required by I the cedent for his domestic or agricultural purposes and water which the cedent obtains from boreholes.

3. The cedent holding all trading rights on the said property shall be entitled to a building site for this purpose which shall be established in a position to be mutually agreed upon. J 2006 (1) SA p356 DE VILLIERS J 4. The company shall have the right or option to purchase a maximum of 50 morgen of the surface of the said property for the A erection of buildings, machinery, dams or any other surface installations which it might require to enable it to properly exercise its rights or to exploit the field successfully. Should the company exercise the said rights, the cedent shall receive a sum equal to R200 per morgen. This right or option shall be exercised within five years from the date of the purchase of the rights to coal by the company and B such area/s of the surface shall be situated or sited in the grazing camp at the southern boundary of the said property. If this right or option is not exercised within the aforesaid period of five years the said right or option shall be extended at the option of the company for a further period of five years in which event the purchase price of the said surface area/s shall be the sum of R400 per morgen. C 5. The cedent reserves the right to erect any buildings which he might find necessary within 300 yards of his existing dwelling house on the said property and the company undertakes to carry out its operations in such a manner that such right of the cedent is not infringed. The company shall not have the right to carry out prospecting operations within this area without the prior consent of the cedent. D 6. The company shall have the right to mine and exploit adjoining or other areas from the said property and shall have all rights of user and way for their purpose. Products which are mined or prepared on adjoining or other areas may be transported on to the said property for further treatment and/or disposal. 7. Apart from the abovementioned surface areas which are granted by the cedent for the company's surface works, the company and its E workers shall have the further right to free ingress to and passage in, on and over the said property and the right to build railways roads, pipelines and overhead powerlines against payment of R200 per morgen as compensation for any area/s of the surface utilised for such purpose. 8. The company shall be responsible for all damage to standing crops and improvements on the said property which may be caused by its F prospecting or mining operations. 9. The cedent reserves the right to select a further two building sites of three morgen each and will be obliged to make such selection within three months after having been requested to do so by the company. 10. The cedent shall have the right to drill for water for domestic purposes at any time. G 11. As consideration for the five-sixth share in the coal and for the other rights and privileges herein granted by the cedent to the company, the company shall pay to the cedent or his order the sum of R36 326,65, for the proper payment of which the company has already furnished the necessary guarantees.' H Morris Sulski ceded to the AEIC a one-sixth share 'in and to all the rights to coal, including any mineral, clay and shale, either associated with coal seams or occurring separately within the limits of the coal measures in, on and under' the property on the following terms and conditions (as amended): I " 1 . (a) The cedent, to the extent to which he is entitled to do so, gives and grants to the company the following rights and privileges in perpetuity:

(i) the right to search for, win, dig, mine and remove coal from the property and such coal raised make merchantable and fit for sale and carry away, sell and dispose of the same for the use and benefit of the company; J 2006 (1) SA p357 DE VILLIERS J (ii) all such ancillary or other rights as the cedent may be possessed of, whether expressly or impliedly in terms of his A entitlement to minerals or otherwise. (b) The rights to all minerals other than coal as above defined shall be reserved to the cedent, provided, however, that the cedent shall not, in the enjoyment or exercise of such rights, interfere with the operations of the company in the exercise of its rights to coal, and the rights of the cedent in respect of such other B minerals shall at all times be subservient to those of the company. 2. The consideration payable by the company to the cedent for the rights hereby ceded is the sum of R7 265,33 payable against registration of this notarial cession of coal rights in the Deeds Office in Pretoria, for the proper payment of which the company has already furnished the necessary bankers guarantee.' C In Arthur Sulski's cession he is described as the registered owner of the property under two named deeds of transfer, one of which is no 18283/1962, dated 6 August 1962, subject to the reservation of one- sixth share of all minerals in favour of Morris Sulski. In Morris Sulski's cession he is described as 'the registered holder of D one-sixth (1/6th) share in and to all rights to minerals in and to' the property, as held by him 'under and by virtue of certificate of mineral rights no 404/1962 RM registered on 29 August, 1962'. It appears, therefore, that at the time of the Sulski cessions, Arthur Sulski was the registered owner of the property, subject to a E reservation of one-sixth share of all rights to minerals in favour of Morris Sulski. In terms of the cessions Arthur Sulski ceded his five-sixth share 'in all rights to coal in, on and under the property', while Morris Sulski ceded his one-sixth share 'in and to all the rights to coal . . . on and under' the property. F The fact that Arthur Sulski was, at the time of the cessions, the registered owner of the property, while Morris Sulski was only the holder of a one-sixth share in the mineral rights, probably accounts for the difference in wording between the two cessions. Arthur Sulski would remain the surface owner after his cession to AEIC, while Morris Sulski retained no interest in the property at all after his cession to G AEIC. As appears from the terms of Arthur Sulski's cession, the parties to the cession obviously wished to regulate the relationship between Arthur Sulski, as surface owner, and AEIC, as holder of the mineral rights, whereas no such regulation was, of course, required in the case of Morris Sulski who would have no further interest in the property. H The background to the application The applicant is presently negotiating an agreement with Sasol Mining (Pty) Ltd (Sasol) in terms of which applicant is to make certain coal reserves available to Sasol in return for access to the coal market I constituted by Sasol's synfuel plants.

For this purpose applicant intends to establish strip mining operations on the south-western portion of the Kriel South Coal Field to the east of its existing Kriel strip mine and north east of the existing Syferfontein strip mine, owned and managed by Sasol. J 2006 (1) SA p358 DE VILLIERS J The Kriel South Coal Field forms part of the Witbank/Highveld Coal A Field, a recognised geological entity, which has been subject to mining activities for over a hundred years. During the 1960s various mining houses engaged in prospecting activities and an effort was made to consolidate mineral rights into various major resource areas. The Kriel Coal Field was established as a result of such consolidation. During the 1970s the northern portion of the Kriel Coal Field was tendered to B Eskom and now exists as Kriel Colliery which supplies coal to the Kriel power station. The remaining portion of the Kriel Coal Field became known as the Kriel South Coal Field, the south-western portion of which is the subject of the aforementioned agreement between applicant and Sasol. C Respondent's property lies on a portion of the Kriel South Coal Field. The establishment of the Kriel South strip mine, insofar as respondent's property is concerned, will involve: (1) the construction of a stream diversion on the property; (2) the utilisation of 60 2925 hectares on the northern portion of the property for open-cast mining purposes. D Applicant contends that it is entitled to undertake the aforesaid activities by virtue of: (1) its common law and statutory rights as the holder of the rights to coal in, on and under the property; and/or E (2) the rights, and more particularly the ancillary rights, conferred in terms of the cession. Respondent disputes applicant's entitlement to undertake the activities on its property. Applicant's averred common-law rights F Under the heading 'applicant's common-law rights' the deponent to applicant's founding affidavit avers the following: '6.1 I am advised that as the holder of the mineral rights over the property, applicant is entitled to go upon the property and search for minerals and if it finds any to sever them and carry them away G subject to the relevant statutory provisions. In the course of its operations, applicant is entitled to exercise all such subsidiary or ancillary rights without which he will not be able efficiently to carry out his prospecting and/or mining operations. 6.2 Applicant is entitled to resist interference with the reasonable exercise of its rights and in the case of irreconcilable conflict, the use of the surface rights must be subordinated to mineral H exploration. Although applicant must exercise its rights reasonably and with due regard for the interests of the surface right owner, it is not obliged to forego ordinary and reasonable enjoyment merely because its operations or activities are detrimental to the interests of the surface owner.

6.3 As will appear more fully below, applicant has and will act with due respect for respondent's rights as surface owner and the I activities which it intends undertaking on the property constitute reasonable user.' Under the heading 'applicant's common-law right to conduct open cast mining operations on the property' the following is averred in the founding affidavit: J 2006 (1) SA p359 DE VILLIERS J '6.4.1 The number of open cast mines in the Kriel South Coal Field, as seen on the map contained in annexure "JW 3", A demonstrates that open cast mining is an established method of mining in this area. 6.4.2 Applicant contends that optimal utilisation of the coal reserves in a significant portion of the Kriel South Coal Field, including that on respondent's property, may only be achieved by open cast mining methods, which methods are reasonably necessary in all the circumstances. This is so for the following reasons: B (a) Shallow depth of the coal reserves: such shallow coal reserves, in this instance occurring between 30 and 50 metres below the surface, cannot always be safely extracted using underground mining methods. (b) Extraction ratios : approximately 95% of the coal reserve can be recovered by open cast methods C in comparison to 55% by underground bord and pillar methods. Underground mining will thus not achieve optimal utilisation of the resource. (c) Strip ratios : Strip ratio is defined as the amount of overburden to be removed (in cubic metres) to uncover one ton of coal. Due to the shallow depth of the coal reserves below the surface applicant's proposed operation has an average strip D ratio of 5:1, which is recognised as being within the optimal range for open cast operations. (d) Geotechnical considerations: a geotechnical analysis, conducted by consultants Steffan Robertson and Kirsten, confirms the suitability of this reserve for open cast mining methods. Due to the voluminous nature of this report, it is not annexed to this E affidavit but will be made available to respondent upon request. (e) Sasol's "coarse coal" requirements: Sasol's fuel from coal gasification process is dependent on the size distribution of the coal feed being greater that ( sic ) 6mm in diameter. Open-cast coal mining methods by their nature, produce a coarser product. Since the motivation for applicant's proposed F mining operation in this area as set out in para 3.3 above, is to provide coal to Sasol's synfuel plant, it is incumbent upon applicant to continue to supply the coarse product for the Sasol process. 6.4.3 The land on which open cast mining is proposed is currently being utilised by respondent for cattle grazing and cultivation. No farmworkers reside on the property and there are no dwelling houses G located on the property. 6.4.4 So as to minimise the impact of its operations, it is applicant's intention to plan its open cast mining operations such that stripping operations will commence in the shallower areas on the eastern boundary of the Kriel South Coal Field and progress in a westerly direction to the deeper areas. This is high-lighted in the H Kriel South Mining Plan, annexed hereto marked "JW 10". 6.4.5 It is accordingly applicant's submission that it is entitled to conduct open cast mining operations on the property.'

In para 6.5 of the founding affidavit under the heading 'applicant's common-law right to construct a stream diversion on the property' the following is said: I '6.5.1 Applicant proposes to divert an unnamed tributary of the Steenkoolspruit which currently flows through the proposed mining area on the property. This stream presently sterilises approximately 52 million tons, or 52% of the coal reserves in the Kriel South Coal Field. J 2006 (1) SA p360 DE VILLIERS J 6.5.2 If the stream is not diverted so as to flow around the proposed mining area, the mine will have to be divided into two A separate sections. This would make the development of suitable highwall lengths for the dragline extremely problematic and may render dragline mining of the coal reserves unviable. This in turn could make the proposed mine unviable and thus sterilise the coal reserves. 6.5.3 There is thus no alternative to altering this stream other than by not proceeding with the mine at all. B 6.5.4 Applicant is accordingly entitled to construct a stream diversion on the property.' Applicant's averred rights in terms of the cession Under the heading 'applicant's right to conduct open-cast mining C operations in terms of the cession' applicant's deponent avers (in para 7.2 of the founding affidavit) that he is advised that as holder of all the rights to coal in, on and under the property, applicant is entitled to rely on the greater of the rights conferred respectively by clauses 24 and 25 of the cession (of AEIC to the applicant) and that applicant accordingly intends to rely on clause 24 of the cession to D exercise its rights. In clause 24 the terms and conditions as set out in the cession between Arthur Sulski and AEIC are set out, save that references to 'the company' and to 'morgen' have been substituted by references to 'the cessionary' and 'hectares'. In clause 25 the terms and conditions of the cession between Morris Sulski and AEIC are repeated with similar amendments. E Applicant's deponent furthermore states the following in his founding affidavit: '7.2.3 I am further informed that the provisions of this clause of the cession impose no contractual restriction on applicant's common law right, as set out above, to conduct open cast mining operations on the property. F 7.2.4 On the contrary, I am advised that condition (a) of clause 24 of the cession in fact enhances applicant's rights to mine by open cast methods in that it provides that applicant "shall have all such rights as may be needed for proper mining and exploiting the coal in, on and under all of the said property". . . .' Under the heading 'applicant's right to construct a stream diversion on the property in terms of the cession', the applicant's G deponent avers the following in the founding affidavit: '7.3.1 I am further advised that the provisions of the cession similarly impose no contractual restriction on applicant's common law right to divert the unnamed tributary of the Steenkoolspruit to the extent that such diversion is necessary to conduct mining operations on H the property.

7.3.2 Applicant similarly contends that condition (a) of clause 24 of the cession enhances applicant's right to divert the stream as proposed. . . .' Statutory provisions relied upon by applicant Under the heading 'statutory provisions' the following is stated in the founding affidavit: I '8.1 In terms of s 5(1) of the Minerals Act 50 of 1991, applicant has the right to enter onto the property, together with such persons, plant or equipment as may be required for purposes of mining and to mine coal on the property and to dispose of it. It is also entitled, by necessary implication, J 2006 (1) SA p361 DE VILLIERS J to do all such other and ancillary things as are reasonably necessary to give full and proper effect to A that right. 8.2 The aforesaid section enhances applicant's common law rights and the rights conferred on applicant by virtue of the cession.' In para 8.5 of the founding affidavit it is stated that applicant is in possession of authorisations to conduct open-cast mining operations on the property. It possesses a mining licence issued in terms of s 9(1) read with s 9(3) (e) of the Minerals Act 50 B of 1991 in respect of, inter alia , respondent's property. An Environmental Management Programme Report (EMPR) compiled and submitted on behalf of applicant in support of its application for a mining licence has been approved by the Director: Mineral Development, Mpumalanga Region. C In para 8.6.1 of the founding affidavit the following is averred: 'Applicant has made application for a water use licence in respect of its proposed alteration of the course of the unnamed tributary of the Steenkoolspruit referred to above, as required by s 22 of the National Water Act 36 of 1998. Applicant is presently awaiting the issue of the aforesaid licence.' In answer to a point raised by Mr Du Plessis , Mr Loxton applied for an amendment of applicant's notice of D motion to refer to its mining authorisation 13/2003 granted in terms of s 9(1) read with s 9(3) (e) of the Minerals Act 50 of 1991 as read with the definition of 'old order rights' in item 1 of Schedule II of the Mineral and Petroleum Resources Development Act 28 of 2002. The amendment was granted. E Applicant's case Any person who qualifies, by means of a mineral title, as a holder of mineral rights has, besides the primary right to the mineral involved, the ancillary right to do anything whatsoever to the property of the owner of the land that is required for optimal utilisation of the F primary right, including open-cast mining, provided this ancillary right is exercised civiliter modo with regard to the rights of the owner. The result of this view of the law is that the ancillary rights including open-cast mining are, in

principle, presumed to be unlimited as far as their objects are concerned: the only requirements are 'optimal utilisation' of the primary right and reasonableness of G implementation. It is also clear that the optimal utilisation and the reasonableness of implementation are interpreted by the applicant to be objective criteria that depend on the facts and circumstances at the time of exercise of the ancillary right and not on the facts and circumstances existing at the conclusion of the contract that constitutes the grant. H In para 7.2 of the founding affidavit the applicant deals with its 'right to conduct open-cast mining operations on the property in terms of the cession' and avers merely that clause 24 (on which it chooses to rely, as opposed to clause 25) imposes no restriction on 'applicant's commonlaw right as set out above to conduct open-cast I mining operations on the property'. It also states in para 7.2.4 that clause 24 'enhances' applicant's rights to mine by open-cast methods in that it provides that applicant 'shall have all such rights as may be needed for proper mining and exploiting the coal in, on and under all of the said property'. In para 8 of the founding affidavit the applicant relies on s 5(1) of the J 2006 (1) SA p362 DE VILLIERS J Minerals Act 1991 which, so it avers, also 'enhances' the applicant's common-law rights and the rights conferred on applicant by A virtue of the cession. Submissions on behalf of the applicant in regard to open-cast mining At common law the holder of the mineral rights over land is entitled to go upon the property and search for minerals and, if he finds any, B to sever them from the land and carry them away ( Hudson v Mann and Another 1950 (4) SA 485 (T) at 488B - C per Malan J). The exercise by the mineral right holder of his rights must of necessity involve damage to the land and a deprivation or curtailment of the rights of use normally enjoyed by the owner of the surface. For C this reason the law governing the relationship between neighbours (in particular nuisance and the right to lateral support) must be modified when dealing with conflicts between the owner of the surface and the holder of the mineral rights in respect of a particular piece of land. D The general principles governing such conflicts have been succinctly stated in Hudson v Mann ( supra ) at 488E - G in a passage which has since been cited with approval by our Courts in numerous decisions. In the same case it was stated (at 488C) that in the course of his operations the holder of the mineral rights 'is entitled to exercise all such subsidiary or ancillary rights, without which he will not be able effectively to carry on his prospecting and/or mining E operations'. The general principle is that the grantor of mineral rights must be considered to have granted all

things necessary for its exercise. ( West Witwatersrand Areas Ltd v Roos 1936 AD 62 at 72. See also the judgment of Didcott J in Clifton v Alpha Anthracite (Pty) Ltd and Another , an unreported decision in the NPD delivered F on 19 October 1979 under case No N494/79 at pp 4 5.) The scope of the common law on the question of the respective rights of the owner of the surface and the holder of the mineral rights may be modified by agreement between the parties. In this case such agreement is constituted by the terms of the cession. G The cession must be interpreted in terms of the principles summarised in Coopers & Lybrand and Others v Bryant 1995 (3) SA 761 (A) at 767E - 768E. In addition regard must be had to the relevant provisions of the Minerals Act, 1991. The content of the parties' competing rights must, H accordingly, be determined by having regard to the common law, as amended by the terms of the cession and the provisions of the Minerals Act. Applicant contends that it is entitled to mine by open-cast methods rather than underground methods upon respondent's land because the I former method will result in optimal utilisation of the coal reserve to be mined, as required by the Minerals Act. The duty of a mineral right holder vis--vis the surface owner in regard to lateral support differs in material respects from the duty of lateral support owed between neighbouring landowners: J 2006 (1) SA p363 DE VILLIERS J first, the surface and mineral right owners hold rights in the same land, not in neighbouring lands; A secondly, in cases of conflict the right of the mineral right holder to exploit the relevant minerals takes precedence over the right of the surface owner to enjoy undisturbed possession; thirdly, the process of mining for minerals lying under the surface B necessarily involves letting down the surface. The difference between underground mining and open-cast mining lies in the degree of such disturbance, not in whether there will or will not be a disturbance. In London SA Exploration Co v Rouliot (1891) 8 SC 74 at 92 and 94, despite recognition that there was a 'dearth of authority in the Dutch law-books upon this question of lateral C support', De Villiers CJ held that the English law right to lateral support was also part of the RomanDutch law. The doctrine was also adopted, albeit on different grounds, in Johannesburg Board of Executors and Trust Co Ltd v Victoria Building Co Ltd (1894) 1 Off Rep 43 at 46, 48. D Since then the proposition laid down in these cases has been followed in a number of South African cases. It would appear from Kadirgamar's comprehensive analysis ('Lateral support for land and buildings - an aspect of strict liability' 1965 (82) SALJ 210), that the doctrine of lateral support did not form part of Roman law and was unlikely to have formed part of the Roman-Dutch law. E

In English law no distinction is drawn between the right to lateral support and the right to subjacent support. This is apparently due to the fact that in England it is possible for different horizontal strata of land to be owned by different persons. F In South Africa, since the owner of the land is the dominus of the whole of the land, it is not possible for different horizontal strata of land to be owned by different persons ( Coronation Collieries v Malan 1911 TPD 577 at 591). Smith J's statement in Malan's case that 'the same principles apply to the right of vertical as to the right of lateral G support' is incorrect. Commencing with Malan's case, all South African cases have simply assumed that the doctrine of lateral and subjacent support, which forms part of English law, is similarly part of our law. In England the doctrine of nuisance was used to protect the right to lateral support, but in Regal v African Superslate (Pty) Ltd H 1963 (1) SA 102 (A) the Appellate Division held that nuisance does not form part of our law. Accordingly, there is also no basis for the contention that the doctrine of lateral support is part of our law by virtue of its importation as part of the English law of nuisance. I It is, therefore, open to this Court to apply the general principles developed in Roman and Roman-Dutch law for the resolution of conflicts between neighbours. But the law governing such relationship must be modified when dealing with conflicts between the owner of the surface and the holder of the mineral rights in respect of a particular J 2006 (1) SA p364 DE VILLIERS J piece of land. That is because, whereas neighbouring landowners may generally A exercise their rights in their respective properties without interfering with one another, the exercise by a mineral right holder of his right to mine the mineral in question inevitably interferes with the rights of the surface owner. The general principles governing this type of conflict were stated in Hudson v Mann ( supra ). The only limitation upon a mineral right holder's B preferential right at common law to find and extract minerals from the land is that he must exercise it civiliter modo and in a manner least injurious to the property of the surface owner. (Franklin and Kaplan The Mining and Mineral Laws of South Africa (1982) at 132.) It is not necessary to set out the submissions of the respondent's counsel since the nature of their submissions will C appear from what is said below. The Rouliot case ( supra ) It is necessary to deal with this case in some detail. The case concerned a claim for damages for alleged 'trespass'. The trespass D consisted of the defendant's having removed soil from the

plaintiff's property. The defendant attempted to justify its actions by contending that it was necessary to remove the soil to prevent it from falling into its claim when it removed a buttress in its claim which supported the plaintiff's land abutting the E defendant's claim. An essential part of the defence was the contention that the defendant was entitled to remove the buttress and thus the support. This raised the question of support. It was the 'second question' with which De Villiers CJ dealt and he formulated it thus: '(I)s the defendant entitled to remove ground from within his own claims without regard to the effect which such removal may have upon the adjoining land belonging to the plaintiff company?' F (At 89.) This part of the judgment therefore concerned (a) an analogous situation to neighbouring owners, (b) lateral support, and (c) a removal of support which would have, but had not yet, resulted in damage to the plaintiff's land. An essential part of this defence was therefore the G defendant's contention that he was entitled to remove the support and damage the land of the plaintiff. The defendant relied on his lease of the claim coupled with necessity (at 76). In deciding the 'second question' De Villiers CJ, in effect, decided two issues, the first founded in the law of property and the second in the law of contract. On the first issue the learned Judge H decided that a neighbour was not entitled to remove support and thereby damage adjoining property. The learned Judge's ratio was that in his view the owner of the surface had a right to support from subjacent and adjacent land (at 93). Smith J accepted the 'right of lateral support from his neighbour's land' (at 99), but based this on the principle that everyone should so use his own property as not to I interfere with the rights of another (at 98). What is also important is that Smith J regarded this as 'a maxim adopted in the jurisprudence of every civilised nation' (at 98). The third Judge, Buchanan J, was also prepared to accept that the so-called doctrine of support was part of our law 'in ordinary cases' (at 100) but he doubted J 2006 (1) SA p365 DE VILLIERS J whether it applied in that case (at 103 - 4). A De Villiers CJ decided the second issue by implying, ex lege , a term into the contract of lease that the owner did not waive or abandon his right of support (at 93 in fin to 95, first unnumbered paragraph). The learned Chief Justice accordingly found that 'the right given to the defendant to win diamonds from the claims must be taken to be subject to the plaintiff company's right of support' (at 95). B Smith J also decided the second issue on the basis that there was an implied term in favour of the surface owner (at 98): 'Where the owner of land grants to another the right to dig and search for minerals on a portion of his land, the grantee must exercise his rights so as not to injure the adjoining land of the grantor, provided there is no clause in the agreement which permits him to work C in such a

manner as may necessarily cause injury, or provided the only way in which the work can be done is such that injury will probably arise.' Buchanan J did not decide the second issue because he agreed with counsel for the plaintiff that the right to 'lateral support had nothing to do with the issue' (at 103). He regarded the defence as D purely one of necessity and the defendant, according to Buchanan J, failed to establish the necessity with sufficient evidence. The issue founded in the law of property was therefore decided by two of the three Judges on the basis that the surface owner had the right of enjoyment of the surface which he could protect against outsiders. De Villiers CJ based it on a duty of support, Smith J, on the broader E principle of ' sic utere tuo . . .'. The same two Judges decided the second issue, the implied term, in favour of the surface owner. The sources of law considered by De Villiers CJ show that he regarded himself as being in the position where our common law, ie Roman-Dutch law, had no clear applicable binding rule and that he was F at liberty to adopt a rule most in keeping with reason, equity and modern notions of justice. At 92 the Chief Justice says: 'In the absence of direct authority, this court may well be guided by well established principles of the Roman law and of modern systems of law, provided they do not lead us to conclusions G inconsistent with the Dutch law.' At 91 of the judgment De Villiers CJ referred to a text of Gaius D .10.1.13. A few lines further the Chief Justice said '. . . but, the principle as to the right of support being once admitted, the removal of such support followed by damage must have been a wrong for which the action in factum lay'. H (At 92.) The judgment of De Villiers CJ was severely criticised by Kadirgamar 'Lateral Support for Land and Buildings' (1965) 82 SALJ at 21, 357, 495 at 213 - 30.) It must firstly be borne in mind that Kadirgamar's focus is whether Roman law introduced strict liability or not in cases of withdrawal of support and his criticism is to the effect that De Villiers C J implied that I the liability was strict. Nowhere in the judgment is there any indication that De Villiers CJ concerned himself with this question. Secondly, it is wrong to suggest that De Villiers CJ inferred from D .10.1.13, alone, or at all, that there was a right to support in the Roman law. It is more likely that the passage quoted above J 2006 (1) SA p366 DE VILLIERS J intended to convey that the principles underlying the Roman texts and 'modern systems of law' were not in conflict, and that it was not A intended to say anything more. De Villiers CJ and Smith J simply introduced, as Judge-made law, a rule which they regarded as common to all civilised systems of law because, as they perceived it, a lacuna existed. The Judges did not concern themselves with the exact pedigree of the rule, nor B with the question of

whether the duty of support was absolute or not. The rule was introduced because it was regarded as just and equitable. The same considerations apply to Johannesburg Board of Executors v Victoria Building Company (1894) Off Rep 43. There Morice J also found that he was at large to be guided by C 'well-established principles of Roman law and of modern systems of law, provided they do not lead us to conclusions inconsistent with the Roman-Dutch law' (at 45). Morice J referred to D 39.11.12 (for which he has also been criticised by Kadirgamar ( supra) ). Whether D 39.11.12 actually supported him is of no more than historical interest. The learned Judge also D found support in the English law and modern French and Dutch law for his conclusion that 'the plaintiff in this action is in law entitled to lateral support for the building' (at 46). Kotz CJ agreed. He found support in Voet 39.1.1. More importantly, in the present context is his dictum that 'moreover it is fair and just that such should be the law'. De Korte J concurred with both E Morice J and Kotz CJ. In Coronation Collieries v Malan 1911 TPD 577 the Full Bench accepted that the law with regard to lateral support, as laid down in Rouliot , also applied to subjacent support. Both Judges also accepted the implied term that F 'a lease or conveyance of the minerals, even though accompanied by the widest powers of working, carries with it no power to let down the surface, unless such a power is granted either expressly or by necessary implication'. (At 591 per Bristowe J and at 586 per Smith J.) In Coronation it was, moreover, said that as far G as the right of support was concerned Rouliot showed that there was no difference between English law and Roman-Dutch law (at 591). This could only have been a reference to the remark by De Villiers CJ in connection with the underlying principles of Roman law referred to above. The above outline clearly shows what is generally accepted by modern H writers, namely that the concept of a 'right' or 'duty' of support was inspired by the English law. (See C G van der Merwe Sakereg 2nd ed at 198.) What is, however, of more importance in the present context is that the principle has not only been accepted in later judgments but has experienced growth and development in South African law by the South African courts. (See C G van der I Merwe ( loc cit ).) The aforesaid analysis also shows that the so-called right of support was not imported because it was English law, or Roman law, or Roman-Dutch law. The exact pedigree did not matter to the Judges. J 2006 (1) SA p367 DE VILLIERS J Roman law A In their supplementary heads of argument, applicant's counsel submit that the doctrine of lateral support did not form part of the Roman law and is unlikely to have formed part of the RomanDutch law. In this regard I rely mainly on Prof Derek van der Merwe's doctoral thesis Oorlas in die Suid-

Afrikaanse reg (University of Pretoria, 1982), hereinafter referred to as ' Van der Merwe's B thesis' . The subject-matter is the law relating to nuisance in the context of neighbours. He researched inter alia Roman law, Roman-Dutch law, English law and modern South African law. Included in the topics for research are situations in which support of neighbouring land presented a problem. Other sources were also C considered. In the period from about the XII Tables to Emperor Justinian's legislation (a period of approximately one thousand years) a large number of remedies were developed for the adjudication of a variety of neighbour conflict situations, for example the actio aquae pluviae arcendae, interdictum quod vi aut clam; cautio damni infecti and the actio negatoria . Van der D Merwe found that although some situations were hardly dealt with in the texts (such as support cases), the available remedies were wide enough to cover all possible situations. ( Van der Merwe thesis at 97.) However, the Roman jurists never developed the concept of a right or E duty to support. ( Van der Merwe thesis at 519.) Van der Merwe concludes that the fact that no right to lateral or vertical support was acknowledged did not mean that there was no remedy in those cases which in English law would have been regarded as an infringement of the right to support. ( Van der Merwe ( loc cit ).) The fact that the Roman jurists did not develop and recognise a F surface owner's right to support does not mean that the Roman owner would have been without a remedy in a situation such as that which existed in Rouliot . For example, the plaintiff in Rouliot could, after commencement of the removal of the buttress and before the reef on the plaintiff's property had begun to collapse into the claim, possibly have used the procedure known as G interdictum quod vi aut clam , a procedure with which the owner could claim a removal of the works which caused the collapse, or, alternatively, damages in lieu of restoration. ( Van der Merwe thesis at 22 - 31.) If the removal of the buttress had not yet begun but was imminent the H owner in the plaintiff's position in Rouliot could have used the procedure known as cautio damni infecti with which he could demand from the neighbour a guarantee for compensation for potential damage caused by the excavation. ( Van der Merwe's thesis at 35 - 9.) This remedy was specifically not limited to owners of the adjoining property but could be invoked against someone with a real right on the neighbouring property such as a modern-day I South African holder of mineral rights. ( Van der Merwe's thesis at 44.) The details of the operation of the remedy are not relevant here. Suffice it to mention that if damage against which the cautio was furnished in fact occurred, the holder of the guarantee could claim damages with the actio damni infecti . ( Van der Merwe's thesis at 48.) J 2006 (1) SA p368 DE VILLIERS J Apart from the two aforementioned remedies the owner had the actio legis Aquiliae with which he could claim damages if he A could prove dolus or culpa . ( Van der Merwe's thesis at 82 - 92.)

If one has regard to the casuistic way in which the Roman jurists operated it is not surprising that they did not see any necessity to develop concepts such as a 'right' to support. (See in this regard Max Kaser 'Oor die Metode van die Romeinse Juriste' (1963) 26 B THRHR at 247 - 358.) What is important in the present context is that in the field of neighbour nuisance in general and lateral support in particular, the Roman jurists adjudicated in each particular case the applicability of a wide range of remedies by deciding in each particular case whether the transgressor acted unlawfully. (Fault was not a requirement except for a claim for damages with the actio legis Aquiliae .) C Determinant factors were, inter alia , the magnitude and immediacy of the damage; whether the offending use was normal or ordinary use; the motive of the offender; the relative advantage for the offender and the prejudice of the injured. These determinant facts were, however, never elevated to general applicable principles. D ( Van der Merwe's thesis at 106.) In classical law (40BC to 240AD) and pre-classical periods the Roman law had a very individualistic concept of ownership which implied that in principle the owner was free to exercise his rights of ownership at will and was not required to accept any infringement of his rights. ( Van der Merwe thesis at 102.) In post-classical law the concept of ownership was directed at society. In principle the owner E could exercise his rights of ownership only if he did not prejudice the interests of his co-citizen, in particular his neighbour. ( Van der Merwe's thesis at 103.) However, even with the shift of focus in the concept of ownership the Roman jurisprudence never developed the concept of a right or duty to support. ( Van der Merwe's thesis at 519.) F That no cases with facts such as those in Rouliot and Coronation Collieries ( supra ) are mentioned in the texts of the Digest come as no surprise. At the beginning of our era mines were mostly state property. (De Boer De Winning van Delftstoffen in het Romeinse Recht, de Middel Eeuwse Juridische Literatuur en het Franse Recht tot 1810 , Leiden, G 1978 at 260.) The texts of the classical Roman jurists compiled by Justinian in 530 do not yield much. Extraction of ore is rarely the principle topic as Italy then and now was not rich in minerals. There was a controversy as to whether minerals were fruits. ( De Boer ( supra ) at 261, 264.) H It has not been shown in the literature that the concept of a mineral right was ever known to the Roman jurists. (Viljoen Rights and Duties of the Holder of Mineral Rights at 9.) A separation of ownership of the surface and subsoil is also not to be found in Roman law. ( De Boer ( supra ) at 268; Viljoen ( supra ) at 5.) According to De Boer ( supra ) at 264 D 7.19.23 reveals that a tenant for life who enjoyed a I usufruct was allowed to take stone, gold and silver so long as the agricultural character of the land (ie the surface) remained unaffected.

With regard to post-classical (vulgar) law the codex of Theodosianus incorporated in Justinian's code as C .11.7.13 reflects the view that J 2006 (1) SA p369 DE VILLIERS J private persons were allowed to mine under another's land against his will provided that no A damage was occasioned to buildings and that a tenth each was given to the treasury and the landowner. ( De Boer ( supra ) at 265; Levy West Roman Vulgar Law at 114.) According to De Boer ( supra ) at 116, C 11.7.13, which contains C Th 10.19.10, is restricted to the mining of marble. With such sparse information concerning mining in Roman law as is B evident from the writings referred to above it is not surprising that cases of support do not figure more prominently. Van der Merwe's thesis at 519 concludes: 'Die feit dat die gemenereg nie 'n reg op sydelingse steun vir grond, en gevolglik ook nie vir geboue en ook nie 'n reg op onderliggende steun geken het nie, beteken egter nie dat daar C gemeenregtelik geen remedie was vir die gevalle wat in die Engelse reg as inbreukmaking op 'n reg op sydelingse en onderliggende steun vir geboue behandel sou word nie. Die Romeine het die onregmatigheid van optrede deur 'n persoon op sy grond wat nadeel vir 'n ander ingehou het, beoordeel aan die hand van die erns en onmiddellikheid van die nadeel wat sy optrede vir die buurman ingehou het. Hieruit kan afgelei word dat uitgrawings deur 'n persoon teen aan die grens met D aangrensende grond, wat tot gevolg het dat die aangrensende grond, of bouwerk of aangrensende grond, instort of dat ondergrondse water onttrek word sodat die aangrensende grond sak, vanwe die erns en onmiddellikheid van die nadeel as onregmatige optrede beskou sou word. Aanspreeklikheid vir onttrekking van sydelingse of onderliggende steun is absoluut.' E Roman-Dutch law In Roman-Dutch practice the various actions of the Roman law were no longer known by their names. What was received were the underlying principles for the application of each remedy. ( Van der Merwe's thesis at 159; Regal v African Superslate (Pty) Ltd F 1963 (1) SA 102 (A) at 106H.) As is stressed by the Appellate Division in the passage referred to above: 'Van meer belang is die substantiewe reg insake doen en late van die een waarteen die ander beskerm word.' G For present purposes Van der Merwe's summary can be accepted namely: 'Dit is duidelik uit hierdie kort bespreking van die aanspreeklikheidsmaatstawwe vir bureregtelike oorlas situasies, dat die Nederlandse juriste nie afgewyk het van die beginsels wat in die Romeinse reg ontstaan het en deur die skrywers oor die Europese ius commune uitgebou en ontwikkel is nie.' H ( Van der Merwe's thesis at 209.)

He also concluded that in Roman-Dutch law all types of nuisance situations conceivable were covered. ( Van der Merwe's thesis at 213.) 'Hoewel daar geen gemeenregtelike gesag vir die erkenning van 'n reg op sydelingse of onderliggende steun is nie, sal optrede wat as die onttrekking van steun ingeklee word, wel volgens gemeenregtelike beginsels tot aanspreeklikheid aanleiding gee, selfs waar die optrede I tot instorting van geboue aanleiding gee, met die verskil dat aanspreeklikheid gekoppel word aan bewys van skuld of van optrede vi aut clam .' ( Van der Merwe's thesis at 521.) In his English summary Van der Merwe puts it as follows: J 2006 (1) SA p370 DE VILLIERS J 'It is beyond doubt that the Roman and Roman-Dutch law on this subject is rich in principle as well as in detail, lacking however, the A systematic treatment thereof which characterises the English law of nuisance. Apart from the rules relating to harmful conduct with a malicious motive, the rules and principles for determining the unlawfulness of conduct harmful to the occupier of neighbouring property are very similar in Roman-Dutch and English law, differing in form rather than substance. For this reason, use of English authorities is not necessarily wrong.' B ( Van der Merwe's thesis at 602.) Modern South African law If the plaintiff in Rouliot were to apply for an urgent interdict in the motion court of this division today to restrain C Rouliot from removing the buttress, it is clear that it would not have to allege and prove fault. (This would apply even if it sought a permanent interdict.) Any controversy about liability for faultless withdrawal of support in Roman and Roman-Dutch law is therefore, today, in respect of an interdict, irrelevant. The applicant D would have to show that his right was being infringed or that such infringement was imminent. The significance of the judgment of Kriegler J in Elektrisiteitsvoorsieningskommissie v Fourie en Andere 1988 (2) SA 627 (T) namely that the so-called right to support is on a proper interpretation not a right stricto sensu , is that the applicant will in its founding affidavit not rely on a right of support but on his ownership and will rely on a wrongful infringement of that E right. The so-called right to support is merely a shorthand description of the owner's entitlement to the use and enjoyment of the surface and to enforce same against third parties. In the result it makes no difference, on this practical level, whether one uses English or Roman law as the starting-point. F Is a reversal of the principles underlying Rouliot and Coronation required ? As indicated, it is contended on behalf of the applicant that the doctrine of lateral support is not part of our law because of what was decided in Regal v African Superslate , that disputes between surface owner and the holder of the mineral rights should be resolved according to

Roman and Roman-Dutch law and that the mineral rights G holder has, according to Hudson v Mann , at common law a preferential right over the surface owner subject to only one limitation, namely civiliter modo . The applicant's contention is fallacious in all its components. As to the statement that the doctrine of lateral support is not part of the Roman and RomanDutch law, I refer to what has been stated H above. Up to 1963 it was generally accepted (for example in Holland v Scott (1881 - 1882) 2 EDC 307) that our law of nuisance was the same as that of English law and decisions of English courts were quoted as persuasive authority. In Regal the Appellate Division ruled that this was not correct. Steyn CJ said the following: I 'Wat ons reg in hierdie verband betref, is in Holland v Scott (1882) 2 EDC 307 op 312, 317 en 331, veronderstel dat dit in alle opsigte met die Engelse reg ooreenstem omdat die Engelse beslissings, net soos ons reg, gegrond sou wees op die stelrels van die Romeinse reg: Prohibetur ne quis faciat in suo quod nocere possit alieno en sic utere tuo ut alienum non laedas . Die veronderstelling skyn gedoen te J 2006 (1) SA p371 DE VILLIERS J gewees het sonder 'n volledige ondersoek van ons gemenereg wat as basis vir 'n vergelyking sou kon A dien, maar dit is desnietemin in 'n reeks ander sake as 'n juiste veronderstelling aanvaar, soos in Graham v Dittman & Son 1917 TPD 288, en Van der Merwe v Carnarvon Municipality 1948 (3) SA 613 (C) . Dit het meegebring dat ons howe hul, by die bepaling van wat ons reg is, meermale vrywel uitsluitend laat lei het deur uitsprake wat uit die aard van die saak gegee is sonder die minste gedagte aan ons reg. Die blote feit dat albei regstelsels sou uitgaan B van hierdie twee algemene en onvoldoend omskrewe stelrel, s weinig. Vir sover sulke uitsprake met ons reg ooreenstem, kan dit nouliks anders as toevallig wees. Vir sover hulle dit nie doen nie, kan ek nie daaruit die gevolgtrekking maak dat ons reg deur die Engelse reg van "nuisance" vervang is en dat die gesag van ons gemeenregtelike bronne om di rede verval het nie. Dit sou trouens in stryd wees met die hele veronderstelling dat die twee regstelsels, wat C hierdie onderwerp betref, dieselfde is, en sou ook nie strook met die benadering van hierdie hof in Cape Town Council v Benning 1917 AD 315, en Malherbe v Ceres Municipality 1951 (4) SA 510 (A) . Dit bly nodig om allereers ons eie bronne te ondersoek, al sou daar weinig uitsluitsel te vind wees.' (At 106D - G.) Van Blerk JA and Rumpff JA agreed with Steyn CJ (at D 115A; 120C - D). The facts of Regal are too well known to bear repetition here. It had nothing to do with support. The Roman remedies quoted above are applicable to nuisance or 'burereg' in general. Regal did not outlaw the reference to English decisions on support. Nor did Regal contain a general prohibition against the use of English decisions. The essence of Regal was that E Roman-Dutch authorities should first be considered because the two systems were not necessarily identical in all respects.

It was mainly the question whether fault was a requirement for nuisance in our law that evoked a controversy in academic circles as to the correct interpretation of Regal . ( Van der Merwe's thesis at 536.) Apart from the fact that Regal did not F expressly deal with this question, it is clearly of no interest to the present issues. As has been shown above, apart from the actio legis Aquiliae the Roman and Roman-Dutch remedies were not dependent on fault. Whether they were or not, fault plays no role in the modern law of interdicts. Van der Merwe's thesis (at 536 - 7) summarises the meaning and effect of Regal as follows: G '(i) Die Applhof het hom by monde van Hoofregter Steyn en Applregters Van Blerk en Rumpff, sterk uitgespreek ten gunste van die gebruik van gemeenregtelike beginsels by die beregting van bureregtelike oorlassituasie en teen die gebruik van Engelse reg as primre gesagsbron. Dit is opmerklik dat geen Regter hom gebind het H tot 'n stelling dat die rels van die Engelsregtelike "tort" nuisance verskil van die gemeenregtelike rels ten aansien van bureregtelike oorlassituasies nie. Of daar wel 'n verskil is, sal hieronder behandel word. (ii) Hoewel daar in die verlede by verskeie geleenthede van rels en beginsels van die gemene reg gebruik gemaak is, was hoofregter Steyn se bespreking van die gemeenregtelike rels en I beginsels die eerste poging om 'n omvattende oorsig van die gemeenregtelike beginsels ten aansien van bureregtelike oorlassituasies in 'n uitspraak weer te gee. Hoewel sy poging onvolledig en fragmentaries was, het hy myns insiens daarin geslaag om enige twyfel oor die bestaan van voldoende rels en beginsels van die gemene reg op hierdie gebied, uit die weg te ruim. J 2006 (1) SA p372 DE VILLIERS J (iii) Hoofregter Steyn en Applregter Hoexter en by implikasie ook applregter Van Blerk het die feit beklemtoon dat bureregtelike A verhoudings aan die hand van die billikheid en regverdigheid beoordeel moet word, wat noodwendig impliseer dat 'n stelsel van starre rels vir hierdie verhoudings nie moontlik is nie, en dat elke geval op eie meriete beoordeel moet word. (iv) In aansluiting by (iii) hierbo is die feit dat die vyf regters se redes vir afwysing van die aansoek nie een en dieselfde was nie, hoewel daar natuurlik raakpunte was, bevestiging vir die B afwesigheid van uitgewerkte objektiewe beoordelingsmaatstawwe vir bureregtelike oorlassituasies, wat die inherente eiesoortigheid van bureregtelike verhoudings beklemtoon.' It is therefore clear that there is nothing in Regal which compels this Court to jettison the principle of support, whether one calls it a 'doctrine' or a 'right' does not matter. C What is manifestly absent from the applicant's exposition in its supplementary heads, is any indication of what the Roman and Roman-Dutch principles with regard to lateral support are. As has been shown above, even if the concept of a 'right' to support was unknown, the Roman and Roman-Dutch principles underlying the various remedies D available for an injured neighbour would have produced the same result as was accepted in Rouliot and Coronation under the 'doctrine' of support. The applicant has not shown that the mineral rights holder has a preferential right under Roman or Roman-Dutch law, or any other system of law. Hudson v Mann is the only authority quoted by

the E applicant. This case does not deal with support. It did not overrule Rouliot or Coronation with regard to support. Apart from the aforementioned there are further sound reasons why Rouliot and Coronation should be followed: F 1. These judgments have been 'in operation' for more than a hundred years. A court should not readily disturb the older judgments. 'No doubt as a Court of Appeal we are not bound by the decisions of inferior courts, but in a manner such as this in which a practice has been laid down, under which doubtless vested rights have grown up, it would be very unfortunate if this Court were to disturb that practice.' G ( De Villiers and Another v McIntyre NO 1921 AD 425 at 432.) 2. The reason for the adoption in Rouliot and Coronation of the principle of support was not the pedigree of the rule. The motivation of the Judges, as illustrated above, makes it clear that they were, in deciding the question relating to the law of property in Rouliot , laying down a rule because H (a) they thought it was just and equitable; and (b) the rule enjoyed universal recognition. It has not been shown that these considerations were wrong. Certainly, the judgment in Regal does not require Rouliot and Coronation to be abandoned as is suggested in the applicant's supplementary heads. I In the chapter on 'Neighbour Law' in Zimmerman and Visser Southern Cross, Civil Law and Common Law in South Africa 759 at 761, Prof Derek van der Merwe, referring to Regal , said the following: 'The purist stance adopted by these Judges did not succeed in effecting a wholesale return to the original sources in subsequent nuisance disputes. The J 2006 (1) SA p373 DE VILLIERS J reasons (as formulated by Hoexter JA in the Regal case) were "that considerations of fairness and A equity . . . are the basis of the law between neighbours"; that Judges, in seeking to define the limits of reasonableness where an occupant exercises the right to the use and enjoyment of his property, are primarily guided by the need to give effect to "(t)he homely phrases 'give and take' and 'live and let live"' and that "between neighbours a measure of tolerance is expected in the exercise of their property rights". When such common-sense considerations are uppermost in the minds of the Judges one would not B expect to encounter much anxious deliberation of the true pedigree of the rules and principles guiding the decision-making process.' The second question, namely the contractual issue relating to the implication of a term, is even more pertinent for present purposes than the first question which related to the law of property. The question is, should a term be implied that the owner retains his support of the C surface unless he expressly or tacitly waives it? The Judges in Rouliot and Coronation clearly regarded it, from a policy point of view, as just and equitable that the surface owner should not be deprived of his support without expressly or tacitly agreeing thereto. In my view this policy

consideration is still D conclusive of this part of the dispute. If the term is implied there is no conflict situation between the right of the mineral rights holder and the surface owner, where, as here, the owner did not expressly or tacitly waive his rights with regard to the support of the surface. The rules developed in the South African law dealing with a conflict situation, inter alia , the rule in Hudson v Mann , are not applicable to the present case. E The legal position of the mineral rights holder vis--vis the owner of the land The contents of the ancillary rights are in general formulated in the F authorities in very wide terms. 'A reservation or grant of mineral rights by implication includes all ancillary rights incidental to the grant, being those that are directly necessary to the enjoyment of the thing granted.' Trojan Exploration Co (Pty) Ltd and Another v Rustenburg Platinum Mines Ltd and Others The Law of South Africa 1 The words 'by implication' should not be overlooked. Schutz JA G probably referred to terms implied by law, also called the residual provisions which the law provides. These provisions normally only apply in the absence of express or implied ('tacit') agreement of the parties to the contract or grant in question. Law of Contract 2 The distinction between the various forms of 'implication' is of vital importance to appreciate the common law with regard to ancillary H rights and open cast mining. A distinction should be drawn between implied terms or residual terms which are imported ex lege into an agreement and tacit terms which are imported on the basis of actual or presumed intention of the parties ( Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A) at 531E - 532F). I 2006 (1) SA p374 DE VILLIERS J Recognition should be given to the different requirements that apply A depending on whether a term is to be implied ex lege or whether a term is to be imported as a tacit term ( Alfred McAlpine case at 532G - 533C). Implied terms are imposed by law from without and do not originate in the consensus of the parties. Such implied terms may derive from common law, precedent, trade usage, custom or statute ( Alfred McAlpine case at 531G). B Although a number of implied terms have evolved in the course of development of our common law and are applied to contracts generally or specific classes of contract, there is no numerus clausus of such terms and the courts have the inherent power to develop new implied terms if the need arises ( A Becker & Co (Pty) Ltd v Becker and Others 1981 (3) SA 406 (A) at 419F - 420A; Ex C parte Sapan Trading (Pty) Ltd 1995 (1) SA 218 (W) at 226I - 227G). Once an implied term has been recognised, it is implied into all contracts if it is of general

application, or into all contracts of a specific class, unless it is specifically excluded by the parties in their contract ( Alfred McAlpine case at 531D - H). D In a certain sense 'implied term' is a misnomer in this context, in that the origin is a rule of law which simply gives rise to a legal duty, and with that a correlative right imposed by law. However, this terminology is consistently used by the courts. Such terms may be of a dispositive or mandatory nature ( Alfred McAlpine case at 531G). E Christie The Law of Contract 4th ed at 183, referring to the origin of terms implied by law, submits that: 'The origin of many terms now implied by law was no doubt the idea that any, or at least any honest party entering into a particular type of contract would want to include such a term in it, but once the law has settled on a particular term it is fruitless to inquire into F the intention of the parties except to the extent of ascertaining whether they have exercised their privilege of expressly excluding the term that would otherwise be implied, as when a sale is made voetstoots .' It is not entirely clear from the common-law sources or case law under which circumstances a court will develop new implied terms. The process of formulating new implied terms is in essence a process whereby the court is formulating a new rule of law. It is in essence G new law based on policy considerations (Corbett 'The Role of Policy in the Evolution of our Common Law' (1987) 104 SALJ 52 at 66 - 7). A tacit term is an unexpressed provision of the contract which is based on the common or imputed intention of the parties and which is inferred from the express terms of the agreement and the H surrounding circumstances ( Alfred McAlpine case at 531H - 532F). In order to establish whether a tacit term is to be imported, regard must first be had to the express terms of the agreement and then to the surrounding circumstances. A tacit term must be consonant with the rest of the agreement and should not conflict with any express term ( Van den Berg v Tenner 1975 (2) SA 268 (A) at 274A - B, I 276H - 277C). The leading Appellate Division case on the subject of ancillary rights in a grant of mineral rights, West Witwatersrand Areas Ltd v Roos 1936 AD 62 at 72, makes it quite clear that such rights have their origin in a contractual grant and are the result of the proper interpretation of the J 2006 (1) SA p375 DE VILLIERS J grant. These 'common-law rights' as the applicant labels them, are therefore terms that our courts have implied A ex lege into the agreement of grant, insofar as it contains no stipulations to the contrary. The starting point of the enquiry into the ambit of common-law mineral rights in a specific case must therefore be the grant.

TSAR 3 In the present case this is the notarial deed of cession of mineral rights. The applicant's position must therefore be that only insofar as nothing to the contrary appears B from the cession, does it, by implication of law, have all the ancillary rights that are directly necessary to the enjoyment of the thing granted. However, when it comes to open-cast mining the position is fundamentally different. The right of an owner to the use and enjoyment of his land is the most important aspect of his ownership. The exercise C of the right is practically confined to the surface and 'its neighbourhood above and below' London South African Exploration Co v Rouliot 4 (ie the layers of earth and air relatively close to the surface). In Rouliot's case De Villiers CJ stressed the importance of subjacent and adjacent support to enable the owner to use and enjoy the surface of his land. Rouliot 5 D De Villiers CJ construed a right to lateral support 'as a natural right incident to the plaintiff's land'. For this part of the argument this terminology can be accepted without further analysis. Below an attempt will be made to show more accurately what the nature of this 'right' is. What is more important in the present context is what De Villiers CJ E said about the interpretation of the grant, namely 'if the right to lateral support exists as a natural incident to the plaintiff's land - as in my opinion it does - the parties to the contract must be deemed to have contracted with a view to the continued existence of that right. If they had intended that the plaintiff should be deprived of this natural right ought not the defendant to have stipulated to that effect? I F am of the opinion that in the absence of such a stipulation the presumption is in favour of an intention to preserve a well established natural right of property rather than to part with such a right.' Rouliot 6 The law does not, therefore, imply a term that the owner agrees to 'part' with his 'right' of support. It is not one of the naturalia of a grant of mineral rights. It has to be specifically agreed upon either expressly or tacitly. It is not an G ancillary right based on any term implied by law. In Coronation Collieries v Malan 1911 TPD 577 at 591 - 2 Bristowe J referred to English law and Rouliot's case and concluded that '(a)s regards the rights of support for land in its natural state, there is no difference between the English and the Roman-Dutch law'. H According to the learned Judge the English cases make it quite clear that a lease or conveyance of the minerals 'even though accompanied by the widest powers of working, carries with it no power to let down the surface unless such a power is granted either expressly or by necessary implication'. The English case of Butterknowle Colliery Co Ltd v Bishop Auckland I 2006 (1) SA p376 DE VILLIERS J

Industrial Co-operative [1906] AC 305 at 309 per Lord Loreburn LC is instructive as to the English law: A 'Whenever the minerals belong to one person and the surface to another the law presumes that the surface owner has a right to support, unless the language of the instrument regulating their rights, or other evidence, clearly shows the contrary. In order to exclude a right of support, the language used must unequivocally convey that intention, either by express words or by necessary implication. For the same B presumption in favour of a right of support which regulates the rights of parties in the absence of an instrument defining them will apply also in construing the instrument when it is produced. If the introduction of a clause to the effect that the mines must be worked so as not to let down the surface would not create an inconsistency with the actual clauses of the instrument, then it means that the surface cannot be let down.' C The words 'the language used must unequivocally convey that intention, either by express words or by necessary implication' can only mean the subjective intention of the parties expressly or tacitly contained in the agreement. It is clear that 'implication' does not bear the meaning of 'implied by law'. D Halsbury's Laws of England Mines Minerals and Quarries 7 states the rule as follows: 'The right to withdraw support may be conferred upon a mine owner by express words, but very frequently it arises by implication. Thus where the surface is granted excepting the mines underneath, or the mines are granted excepting the surface, it is a question of construction of the instrument of severance in each case whether by E express language of the grant or exception, or by the general effect and intent of the instrument, there is a power to interfere with the support of the surface. The intention is to be gathered from the language of the instrument as a whole in the first instance, but evidence is admissible as to the circumstances in which the instrument was executed, including the facts known to the parties as to the practice of mining at the date of the instrument, in order to ascertain F the sense in which the parties used the words, employed by them to define their respective rights. The burden of proof in all cases is on the party who claims that the common law right of support has been varied.' The position set out in Rouliot's case has also been accepted as the law in subsequent South African cases. Coronation Collieries v Malan Kakamas Bestuursraad v Louw Elektrisiteitsvoorsieningskommissie v Fourie 8 In the Kakamas case it was held that an agreement by the owner to 'part' with support could be entered into either expressly or tacitly: G 'But without express treatment of the matter the language of the agreement might effectively establish the intention of the parties.' Kakamas 9 It is clear that in this passage a true tacit term based upon the intention of the parties, and not an implied term imported by law on policy grounds, was intended. The so-called 'ancillary rights' can by H way of summary, be stated to flow from terms implied by law (which can also be regarded as rules of law), or from consensual terms in a contract, either express or tacit.

It follows that the question whether the parties to a grant intended that I 2006 (1) SA p377 DE VILLIERS J the owner should part with support, has to be answered against the A background of only such facts as fall within the knowledge of the parties at the time of concluding the contract. In the light of the aforegoing the exposition of this part of the applicable law in LAWSA Supra 10 is not entirely accurate. 'The courts have held that the power to let down the surface may be conferred not only by express words but also by necessary B implication. It has been pointed out above that the implied grant of ancillary rights to the holder of mineral rights is confined to rights which are directly necessary to enable the grantee to exercise his primary rights to prospect and mine for minerals.' The first sentence is in order if necessary implication means a tacit term. The second sentence is inaccurate insofar as it suggests C that the 'power to let down the surface' is simply one of the ancillary rights which are implied by law in the absence of a contrary stipulation in the grant exercisable on the basis that it is directly necessary to enable the grantee to exercise his primary right. The same inaccuracy appears in a subsequent paragraph: 11 D 'Whether the power to let down the surface by using the open cast method of mining, which has not been expressly conferred in the grant, is necessarily implied in it, must depend upon all the circumstances of the case, including the nature of the minerals, their depth below the surface, and the manner in which it is possible to work those minerals at that depth.' This passage is misleading in that it does not clarify that the subjective intention of the parties is of paramount importance and that E the 'circumstances' are those known to the parties because what is required is a tacit term and not a term implied by law. The authorities relied upon do not support the author's version. In Rouliot's case De Villiers CJ clearly was not prepared to imply a legal term to the effect that the surface owner abandoned F his 'right of support'. The contrary was implied by law namely the 'continued existence of that right'. This could only be abandoned by a consensual term either express or tacit. The Kakamas case is to the same effect. There are several passages in Franklin & Kaplan's The Mining and Mineral Laws of South Africa 12 section on open- cast or strip G mining which also rely on Rouliot and Kakamas but which require careful analysis. The first is at 138 - 9: 'The court in that case indicated that only if it was absolutely necessary for the mineral rights holder to use the open cast mining method would he be justified in doing so. . . .'

This gloss on Rouliot can be misleading if the context of the passage in the case at 97 - 8 is not borne in mind. H In Rouliot the Court was considering the rights of the holder of a lease to work a block of 210 claims in the Du Toitspan mine at Kimberley. It was common cause that the nature of the leases was to work the claims down ie by open cast mining, and that the I lessee had the right to remove the soil from its claims. At the relevant time the mine had been worked 2006 (1) SA p378 DE VILLIERS J by this method for twenty years and a portion of the lessee's block of claims had reached 260 ft ( A 80 metres) and deeper. 13 The defendants' (lessees') claims extended to the margin of the mine. The margin was formed by a reef which enclosed the diamondiferous ground. In the course of working down his claims the defendant had left a sloping buttress of diamondiferous ground as support against the reef or margin B of the mine. At the relevant time the defendant decided to commence working down this buttress of diamondiferous ground, but before doing so he came to the conclusion it would be necessary in the first place to remove a portion of the reef at the back of the buttress inasmuch as in his opinion the working away of this support would otherwise very soon have caused a fall of reef into his claims. The portion of the reef defendant intended to work away had become unstable due to C cracks. The defendant thought it advisable to anticipate the danger which he apprehended by first removing a ledge or terrace of ground from the margin of the mine. This was on the owner's property outside the margin of the mine. D What the Court had to consider was (a) the legal position of the lessee to the plaintiff-owner; (b) whether the lessee was entitled to remove the buttress ie the ground within its claim which supported the margin, being the unleased portion belonging to the owner; E (c) whether the lessee could go upon the owner's land and remove the part of the reef which had become unstable and would fall if the buttress were removed. Rouliot 14 The passage on which Franklin & Kaplan rely is not clearly highlighted but would appear to be the following: F 'In the present case, it has been contended, on behalf of the defendant, that it is necessary for the due enjoyment of his mining rights that he should be allowed to break down a portion of the reef on the plaintiff's land. The argument is - and this is the most forceable way of stating it - that it would be a mockery to say that he has the right to remove the support if he has not the auxiliary right to do a necessary act on the plaintiff's land as a preliminary to such removal. The answer is two-fold. In the first G place, the defendant has not stipulated, as he might have done, for a right to break down the reef as well as to remove soil from the claims. In the next place, it is clear that by means of underground mining, the soil can be removed from the claims without removing part of the reef. This mode of mining may be more expensive than open workings, but it is admitted to be quite practicable. It is said, however, that above, and not underground mining was contemplated by the H parties. This may be an argument, although not a conclusive one, in

favour of the defendant's right to remove lateral support from the reef, so long as he remains within his own limits, but it affords no excuse for trespassing beyond those limits. Such a trespass, without the consent of the owners, or of some independent public body, was as little contemplated as underground mining.' 15 I The Court was dealing with question (c) above. 2006 (1) SA p379 DE VILLIERS J It is clear that the court was dealing with very special circumstances which required the lessee to trespass on and break down A part of the surface of the unleased land of the owner. The principle that was being applied here was that a holder of mineral rights or a mineral lease, like any other lessee, has the right to do on the leased portion whatever is necessary for the enjoyment of such mining rights. 16 The trespass in casu B happened to be the breaking away, from the top, of the reef on plaintiff's land. The alternative method mooted by the Court to avoid the trespass happened to be the leaving intact of the buttress and the underground mining thereof (as well as the claim as a whole). The Court held that the mining rights holder could not trespass to remove soil on the owner's land but was obliged to use the other practicable system C which consisted of working the buttress underground, although this might be more expensive. 17 The passage of Rouliot paraphrased in Franklin & Kaplan was therefore not an exposition of the principle regulating open cast versus underground mining. This aspect of the case concerned an alleged ancillary right of trespass on an area falling outside the D mining title for which there was a feasible alternative. A further passage in Franklin & Kaplan which is problematic is the following: 'In our courts, however, it has been held that the power to let down the surface may be conferred not only by express words, but also E by necessary implication. . . .' Coronation Collieries Kakamas 18 The passage would have been in order if 'necessary implication' referred to a tacit term. That this is not the intention of the authors becomes clear if regard is had to the context in which the passage appears. In the directly preceding paragraph the point is made that F according to English authority 'the right to win and work mineral by a process which is destructive of or permanently injurious to the surface, such as quarrying or open cast mining, will not be implied; that power will be conferred only if the instrument of severance grants the liberty in clear and unambiguous language'. From the passages quoted above it is clear that the 'unambiguous language' in English G law means an express or tacit term. There is no difference between our law and English law on this point, both allow (and require) a tacit term. The difference between our law and English law can also not be, as is possibly suggested by Franklin & Kaplan , that our law implies a term authorising let down of the surface simply because H circumstances so require.

The cases relied upon by Franklin & Kaplan do not support the proposition that our law is any different from English law. In Coronation Collieries Coronation Collieries v Malan 19 the Court expressly stated that as far as the right of support is concerned 'there is no difference between the English and the Roman-Dutch I 2006 (1) SA p380 DE VILLIERS J law'. Kakamas Kakamas Bestuursraad v Louw 20 also does not support A Franklin & Kaplan's version of the law. The passage relied upon has been quoted above where it was shown that what the Appellate Division had in mind was a tacit agreement to relinquish support. The passage from LAWSA quoted above is probably an echo of the passage at the top of 140 in Franklin & Kaplan . The crux here, as there, is the statement that the right to use open-cast mining B is one of the ancillary rights which can be implied on the basis it is directly necessary to enable the grantee to exercise his primary right. For the same reasons as expressed above, this is misleading. The authorities relied upon are again Rouliot and Kakamas . As has been said above Rouliot cannot be C regarded as authority for the proposition that although a grant does not expressly allow the right to conduct open-cast mining, that right will be necessarily implied (as a legally implied term) when the present circumstances require open-cast mining to effectively exercise the right to the mineral. The passage in Kakamas has also been dealt with above. D Having regard to the above it is evident that the applicant has modelled its case on a view of the law which coincides with that set out in textbooks such as LAWSA and Franklin & Kaplan . The 'common-law rights' on which the applicant relies are terms implied by law according to the textbooks. But this view of the law, on which prayer 1.2 of the notice of motion is based, is E inaccurate in at least two essential respects: it does not clearly differentiate between those ancillary terms that are expressly or tacitly (ie consensually) agreed upon ( incidentalia ) and those which are implied by law ( naturalia ); secondly, it does not clearly recognise that the waiver of the so-called 'right to support' by the owner is never implied by law, but has to be agreed F upon consensually. The 'right to let down support' does not flow ex lege from the exigencies of the circumstances as they exist from time to time. Whilst this is correct insofar as it concerns ancillary rights, the rule does not apply to the right to conduct open-cast mining. G Further support for this interpretation of the law In Fourie's case Elektrisiteitsvoorsieningskommissie v Fourie 21 Escom attempted to expropriate from the surface owner the right to lateral support. Kriegler J held that it was not a separate right capable of being expropriated. The learned Judge expressed serious doubts as to whether H it was indeed a 'right' stricto sensu and he doubted even more, he said, whether it was a right 'in, oor of ten

opsigte van grond' as envisaged in s 43 of the expropriator's empowering stature. The learned Judge stated: 'Dit kom my voor bloot 'n bevoegdheid voortspruitend uit eiendomsreg of te wel 'n hoedanigheid van eiendomsreg te I wees.'; 22 2006 (1) SA p381 DE VILLIERS J He also concluded that the 'right' to support was inseparable from the relationship between the owner and the mining rights A holder. 23 The theoretical construction of the learned Judge does not answer all questions. It seems correct, with respect, not to regard the 'right'; to support as a right in itself. It does not entitle the owner to do anything with his property. It also seems correct to classify it as B pertaining to the legal relationship between the owner and another party as it seems to prescribe what third parties may or may not do. Whether it is correct to limit its operation to the relationship between the owner and the mineral rights holder only, seems, with respect, questionable. Any third party is obliged to respect the owner's entitlement to use and enjoy his property. It seems that for a more accurate understanding of the so-called right to vertical or subjacent support it is necessary to use a C microscope with much greater magnification. This is available in the construction by academic writers of the subjective right and in particular a real right (saaklike reg). An example of such an exposition in the English language is to be found in Cronje and Heaton The South African Law of Persons (at 2). The subjective D right, according to them, consists of (a) A legal relationship between the bearer of the right and other legal subjects who have to respect the right. (This is called the subject-subject relationship.) (b) A legal relationship between the bearer of the right and the object of the right (the subject-object E relationship). Escom LAWSA 24 In a real right the object of the right is a thing such as property. The most comprehensive real right is ownership. LAWSA 25 This topic was dealt with in great detail by Prof Van der Vyver in a note on Fourie's case. SALJ 26 According to him the material contents of the subject-object relationship in the case of ownership are made up of a number of juridical entitlements such as the entitlement to F possess, the entitlement to use and enjoy and to consume and destroy. Van der Vyver (op cit) 27 Fundamental to the exercise of the entitlements included in a right is the claim of a person having a right to what might be called the integrity or inviolateness of the subject of his right.

According to Van der Vyver 'it is here that the question of lateral, G surface and subterranean support comes in'. Van der Vyver (op cit) 28 Van der Vyver's conclusion on this aspect of the Escom case is the following: 'In the case of Fourie Kriegler J quite rightly decided that the expectation of an owner that the object of his right H should be kept intact is not an independent right but constitutes an integral part of ownership. He suggested that it is an entitlement, and more in particular part and parcel of an owner's entitlement to 2006 (1) SA p382 DE VILLIERS J use and enjoy the object of his right. The only difficulty I have with this construction is that the concept of entitlement is commonly A equated to what a person may do with a legal object; and the inviolate disposition of the object is obviously fundamental to the exercise of all the entitlements included in a particular right. Whereas a competence signifies what a person, by virtue of being a legal subject, in the judicial sense can do (is capable of doing) (without reference to a legal object), an entitlement is said to entail B that which a legal subject, by virtue of having a right, may lawfully do with the object of his right. In view of this circumscription of an entitlement, it would perhaps be more accurate to classify the claim of an owner and of other persons having a right to the integrity of inviolateness of the object of their right as part of the subject-third-parties relationship - rather than trying to construct it as an ingredient of the subject-object relationship (that is, as an C entitlement). The implication of this approach would be, inter alia , that the so-called right to lateral, surface and subterranean support cannot be transferred to another person (and can therefore also not be expropriated); though the owner or other person having a right can renounce that claim, in which event the corresponding obligation of third parties to refrain from impairing the object would lapse. . . .' Van der Vyver (op cit) 29 D In my view the above analysis accurately reflects the nature of the so-called 'right to lateral support'. It is a capacity or competence. It cannot be transferred. It can only be 'renounced'. Synonymous terms are to be found in Rouliot . In the judgment of the Court of first instance Solomon J held that the owner had 'abandoned' the right to lateral support. 30 On appeal De E Villiers CJ referred to 'deprived'. 31 What is required, therefore, is that in the grant of the mineral rights there should be an intention to abandon or waive the owner's competence to claim a prohibitory interdict or damages for breaches of the obligation to respect the owner's use and enjoyment of his property. F It is a trite legal principle that waiver of a right is never presumed, that clear proof thereof is required and that it must be shown that the person in question had full knowledge of his rights. Borstlap v Spangenberg en Andere per 32 There is no reason why this general rule should not apply to an alleged waiver by an owner of his 'right to vertical support'.

This approach, too, leads to the conclusion that an alleged grant of G 'the right' to conduct open cast mining should be interpreted in the light of the knowledge of the parties at the time of its conclusion in order to ascertain the intention of the parties. On this approach the applicant, on its own papers, cannot succeed with its claim for an order that it is entitled to conduct open-cast mining because: H (1) it relies on a common-law right that does not exist; (2) even if it is accepted that the applicant intended to rely on a legally implied term, it fails because no such term is implied in our law; I 2006 (1) SA p383 DE VILLIERS J (3) the cession, which is conclusive, does not expressly or tacitly A provide for open-cast mining; (4) the facts relied upon by the applicant do not reflect the knowledge of the parties at the time of concluding the cession. The facts presented by the applicant with regard to open-cast mining in the light of the common law B As stated above, the applicant contends (a) that for certain factual reasons it cannot utilise its mineral rights over the northernmost portion of the respondent's property optimally by underground mining methods and (b) because it will act reasonably with respect to the respondent's surface, it is entitled to use the method that will ensure optimal utilisation, namely C open-cast mining. An analysis of the affidavits filed in this matter show that the applicant has failed to prove the 'primary' as well as the 'secondary' factual allegations referred to in (a) and (b) in accordance with the established principles of the law of evidence and procedure. D It will be shown below that the applicant failed to make out a case in its founding affidavit. It is trite law that in motion proceedings the affidavits serve as both the pleadings and the evidence in the matter. Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others 33 The learned Judge in Swissborough Supra 34 who summarised the law regarding the content of affidavits generally, referred to, inter alia , the following appropriate dictum in Hart v Pinetown Drive-Inn Cinema (Pty) Ltd : 35 E '. . . (W)here proceedings are brought by way of application, the petition is not the equivalent of the declaration in proceedings by way of action. What might be sufficient in a declaration to foil an exception, would not necessarily, in a petition, be sufficient to resist an objection that a case has not been adequately made out. The petition takes the place not only of the declaration but also of the F essential evidence which would be led at a trial and if there are absent from the petition such facts as would be necessary for determination of the issue in the petitioner's favour, an objection that it does not support the relief claimed is sound.'

As will be shown below, the applicant raised new matter in the G replying affidavit, which it is not allowed to do. The applicant cannot prove its case in reply. Shephard v Tuckers Land and Development Corporation (Pty) Ltd (1) 36 In para 6.4.2 of the founding affidavit the applicant sets out the factual basis for its allegation that optimal utilisation may only be achieved by open-cast mining methods which methods are reasonably necessary. Applicant contends that because of (a) the shallow depth of the coal reserves, (b) the favourable H extraction ratio , (c) the favourable strip ratio , (d) geotechnical considerations, and (e) Sasol's 'coarse' coal requirements in terms of its contract with the applicant, the applicant cannot optimally utilise the coal reserves on the relevant portion of respondent's I 2006 (1) SA p384 DE VILLIERS J property. Each of these averments will be examined in turn. A In para 6.4.2 (a) 37 of the founding affidavit the applicant alleges that (1) the coal reserves in this instance occur between thirty and fifty metres below the surface; and (2) such shallow coal reserves cannot always be safely extracted using underground mining methods. B The respondent denied 38 that the applicant made out a proper case in this regard in the founding affidavit: 1. With regard to the first allegation regarding shallowness of the coal reserves, no evidence at all is presented in the founding affidavit to support the allegation that the reserves occur between 30 and 50 metres below the surface on the respondent's property. The C deponent does not qualify himself as any kind of expert in this regard and is thus not qualified to express any opinion on this matter. The evidence therefore amounts to nothing more than inadmissible opinion or hearsay evidence. It is trite law that our courts have consistently D refused to countenance the admission of hearsay evidence. Galp v Tansley NO and Another 39 2. The second allegation, regarding the safety of extraction of the reserves, is vague and general in the extreme. It is a conclusion, or opinion, for which no supporting facts are stated. In its replying affidavit (para 11.2) the applicant belatedly sought to cure the hearsay evidence by referring to the confirmatory E affidavit of Mr Ritchie, who then stated that '44% of the reserves in the Kriel South Project lie at depths shallower than 40 m'. No attempt was made, even in reply, to prove the depth at which the coal occurs on the respondent's property. F In reply, the applicant admitted (in para 11.1) that it is not impossible to mine coal on the respondent's property by underground methods. However, its (new) case in reply appears to be that, having regard to the shallow depths of the coal reserves 'of the Kriel South Field as a whole'

(para 11.2) and 'optimal utilisation of the reserve in the context of the mining project as a whole' (paras G 11.4 and 11.5), it is entitled to mine by open-cast methods on respondent's property. In my view: (1) the applicant has not made out a case in support of the allegations referred to in the founding affidavit; H (2) it is not admissible to make out a case in reply; (3) in any event, the applicant does not prove, even in reply, that the reserves in the Kriel South Coal Field 'as a whole' are so shallow that it is reasonably necessary to mine by open-cast methods on the respondent's property; (4) even if it were proved that the reserves 'as a whole' are shallow and that only underground mining would constitute optimal I utilisation, 2006 (1) SA p385 DE VILLIERS J this would not entitle the applicant to conduct open-cast mining as a matter of law, as will be shown below. A In para 6.4.2 (b) of the founding affidavit, the applicant alleges that underground mining will not achieve optimal utilisation of the resource as only 55% of the reserve can be recovered by underground bord and pillar methods as opposed to 95% by open-cast methods. B In para 6.4.2 (c) the applicant further alleges that applicant's proposed operation has an average strip ratio of 5:1, which is recognised as being within the optimal range for open-cast mining operations. Again, (1) neither of these allegations is attested to under oath by an expert witness or substantiated by other admissible evidence in the C founding affidavit; and (2) the applicant makes general and vague statements without relation to the respondent's property. In its replying affidavit (para 12.2) the applicant seeks to prove the abovementioned allegations by referring to a quotation from D the EMPR. However, besides the fact that this constitutes inadmissible new matter, even the reference to the EMPR is hearsay evidence as the document is not properly annexed or attested to under oath by its author. The applicant admits in its reply (in para 12.1) that it is not impossible to mine coal on the respondent's property by E underground methods but contends that the open-cast method is the only method of achieving 'optimal utilisation' of the reserves in question having regard to the extraction and strip ratios. To my mind (1) the applicant has not made out a case in support of the allegations referred to in the founding affidavit; F (2) it is not admissible to make out a case in reply;

(3) in any event, the applicant does not prove, even in reply, the nature of the extraction and strip ratios nor that they are such as to render open-cast mining the only method of achieving optimal utilisation of the reserves; G (4) even if the allegations with regard to the extraction and strip ratios were proved, it would not entitle the applicant to mine by open-cast methods on the basis that they would achieve 'optimal utilisation', for the reasons stated below. H The applicant contends in para 6.4.2 (d) that a geotechnical analysis confirms the suitability of the reserve for open-cast mining. The analysis is not, however, annexed to the papers nor attested to under oath by its authors. There are no references to relevant parts, nor are those parts attached. It is trite that evidence is placed before a Court in motion proceedings by way of affidavit. I That is, a solemn assurance of fact known to the person who states it and sworn to as a statement before some person in authority. Goodwood Municipality v Rabie 40 2006 (1) SA p386 DE VILLIERS J Again, the factual allegations contained in this paragraph are not A proved by the applicant. The fact that the document was furnished to respondent's attorneys cannot render it admissible: a document not attested to under oath remains a document not attested to under oath despite it being made available to the other party. B The respondent furthermore points out 41 that the applicant failed to specify any particular part of the voluminous document and that the respondent would be severely prejudiced if it were to deal with the whole of the report. In this regard, Joffe J in the Swissborough 42 matter pointed out that: C 'Regard being had to the function of affidavits, it is not open to an applicant or a respondent to merely annexe to its affidavit documentation and to request the court to have regard to it. What is required is the identification of the portions thereof on which reliance is placed and an indication of the case which is sought to be made out on the strength thereof. If this were not so the essence of our established practice would be destroyed. A party would not know what case must be met.' D Again, the defect cannot be cured and a case made out in the replying affidavit as the applicant seeks to do in para 13.3 of the replying affidavit, 43 which attempt is, in any event, flawed. Mr Terbrugge, who confirms the truth of the contents of the report under oath, does not qualify himself as the author but only E as a 'contributing editor' thereof. 44 He can thus not give a solemn assurance of the facts therein contained as they are evidently not within his personal knowledge. In any event, the allegation that the reserve is suitable for open-cast mining methods (d) 45 does not prove that it is necessary or reasonable to mine by using this method or that it is necessary or reasonable to do so on the respondent's property. F

The applicant lastly alleges in para 6.4.2 (e) of the founding affidavit 46 that (1) the specific coarse coal requirements for Sasol's fuel from coal gasification process is dependent on the size distribution of the coal feed being greater than 6 mm in diameter; and G (2) open-cast methods by their nature 'produce a coarser product'. Again, no reference is made to expert or any other substantiating evidence to support these contentions. The mere say so of the applicant is wholly insufficient to prove these statements. In fact, even the statement that open-cast methods produces 'a coarser H product' without furnishing any particulars in this regard, is so vague as to render the statement meaningless. 2006 (1) SA p387 DE VILLIERS J In its replying affidavit 47 the applicant attempts to supplement its case by indirectly relating Sasol's A contractual requirements to optimal utilisation of the reserve by contending that: 'Since the optimal utilisation of the reserve is dependent on the viability of the project as a whole, it is applicant's ability to satisfy Sasol's particular coal requirements, which makes the proposed mine viable, which in turn facilitates the optimal utilisation of the reserve.' B For the reasons stated in the paragraph below, neither the viability of the project 'as a whole' nor 'optimal utilisation' as such has a bearing on the applicant's rights in casu . The applicant refers in paras 6.4.2 (a) - (e) to the shallowness of the reserves 'as a whole', to the 'average' strip ratio, to the suitability of the (whole) reserve for C open-cast mining methods and the economic viability of the project 'as a whole'. As stated above, the applicant has not proved these facts either in respect of the respondent's property or in respect of the reserve as a whole, as it inadmissibly attempted to do in its replying affidavit. However, even if it were proved that the reserves 'as a whole' are so shallow as to necessitate open-cast mining, this D fact would not entitle the applicant to mine by open-cast methods on respondent's property because: (1) this was not agreed either expressly or tacitly when the agreement was entered into, as set out in more detail below when the cession is dealt with; and E (2) such a term is not implied by law. The 'primary' rights to coal relate only to the coal in, on or under 'the property', ie the respondent's property. 'Ancillary' rights implied by law, as set out above, would by their very nature as 'ancillary rights' necessarily also be limited to those that are directly necessary to enjoy the minerals in, on or under the respondent's F property. As the factual allegations set out in para 6.4.2 (a) - (e) have not been proved for the reasons set out above, the applicant has also failed to prove the conclusions based on these facts, namely that 'optimal utilisation of the coal reserves . . . may only be achieved by open cast mining G methods' and that open cast methods are therefore 'reasonably necessary in all the circumstances'. 48 In the Swissborough case (( supra ) at 324E) the learned Judge formulated this rule with reference to the authorities as follows: 'A distinction is drawn between primary facts and secondary facts.

"Facts are conveniently called primary when they are used as the basis for inference as to the existence or non-existence of further H facts, which may be called, in relation to primary facts, inferred or secondary facts."' See Willcox and Others v Commissioner for Inland Revenue 1960 (4) SA 599 (A) at 602A. In the absence of the primary fact, the alleged secondary fact is merely a conclusion of law. Radebe and Others v Eastern Transvaal Development Board 1988 (2) SA 785 (A) I at 793D. The question arises whether the applicant is in any event in law 2006 (1) SA p388 DE VILLIERS J entitled to 'optimally' utilise the minerals in question. In my view A the answer is in the negative for the reasons set out below. 'Optimal utilisation' of minerals is not a common-law concept, but a notion of the Minerals Act 50 of 1991. In the long title to the Minerals Act 50 of 1991 the object of the Act is stated to be inter alia 'to regulate the prospecting for and the optimal exploitation, processing and utilisation of minerals' (my emphasis). In B s 9(3) (c) of the Act, it is provided that no mining authorisation shall be issued in terms of ss 9(1), unless the Director: Mineral Development is satisfied, inter alia , that the applicant has the ability and can make the necessary provision to mine the relevant mineral optimally and to rehabilitate the relevant disturbances of the surface. Chapter IV of the Act deals with 'Optimal C Exploitation and Utilisation of Minerals' and provides administrative law powers to achieve the purpose. The Minerals Act is, however, a regulatory Act. With this Act, the State regulates, inter alia , the exercise of mineral rights, which are obtained by agreement or otherwise under the common law. Section 5(1) re-affirms the common law, but subjects it to the D provisions of the Minerals Act by providing that: '(1) Subject to the provisions of this Act , the holder of the right to any mineral in respect of land . . . or any person who has acquired the consent of such holder in accordance with s 6(1) (b) or 9(1) (b) , shall have the right to enter upon such land . . . together with such persons, plant or equipment as may be required for purposes of prospecting or mining and E to prospect and mine for such mineral on or in such land . . . and to dispose thereof.' (Emphasis added.) Section 5(2) provides that: 'No person shall prospect or mine for any mineral without the necessary authorisation granted to him in accordance with this Act. . . .' F The Act seeks, inter alia , to regulate mining by the owner or mineral rights holder or person who is acting in terms of a written consent of either, through a system of permits and authorisations. Kaplan and Dale

A Guide to the Minerals Act 1991 49 refer to the revival of the common-law rights of the mineral rights holder by s 5 of the Act 'subject to the provisions of this Act' and continue as follows: G 'This qualification refers to s 5(2), which institutes a system of authorisations which are necessary to enable the holder of common law rights to exercise them, much in the same way as does a driver's license, namely the relevant person obtains his rights of ownership or use of the vehicle at common law, but then in order to exercise such common-law rights must obtain a licence or authorisation entitling him H to do so. The imposition of this system of licensing or authorisations is necessary as a regulatory measure in the implementation of the threefold principles of the Minerals Act, whereby the mineral resources of South Africa are to be utilised optimally, with due regard to safety and health and subject to the requirement that rehabilitation of the surface occurs.' It is thus clear that the provisions of the Minerals Act 50 of 1991 are designed to regulate mining, not to add to or subtract from I common-law mineral rights. Those rights are treated by the Minerals Act as something 2006 (1) SA p389 DE VILLIERS J previously established, only the exercise of which is regulated. Trojan supra 50 'Optimal utilisation' as used in A the Minerals Act can therefore have no bearing on the applicant's rights in terms of the cession. Or, put differently, the Act does not imply a term in the cession that the applicant is entitled to 'optimally' utilise its mineral rights. If the applicant seeks additional rights to achieve 'optimal utilisation' it can invoke the administrative procedures of ch IV of the Act. B Would the applicant, at common law, be entitled to 'optimally' utilise the minerals? Or, put differently, does the law imply a term in the cession that the applicant is entitled to mine optimally? Again, the answer is no. It would suffice to refer to the following dicta in this regard. In the Trojan matter ( supra ) 51 Schutz JA stated that a reservation or grant of mineral rights by implication includes all C ancillary rights incident to the grant, being those 'that are directly necessary to the enjoyment of the thing granted'. No reference is made to 'optimal' enjoyment. In Hudson v Mann 52 it was stated that the mineral rights holder 'is entitled to exercise all such D subsidiary or ancillary rights, without which he will not be able effectively to carry on his prospecting and/or mining operations'. Again, no reference is made to any entitlement to 'optimally' carry on mining operations. The reference to 'effectively' should be read with the statements in the following two paragraphs of the judgment. It then becomes clear that the law is that the mineral rights holder is only entitled to 'ordinary and reasonable enjoyment', not 'optimal' E enjoyment of his mineral rights. This is in accordance with the civiliter modo principle of the law relating to servitudes. The question which remains is whether the parties tacitly agreed that the applicant would be

entitled to do whatever is necessary to the F respondent's property to 'optimally' exploit the minerals. This will be dealt with in more detail below. The applicant contends in para 6.3 of the founding affidavit 53 that: 'As will appear more fully below, applicant has and will act with due respect for respondent's rights as surface owner and the activities which it intends undertaking on the property constitute reasonable user.' G However, this does not appear from the remainder of the applicant's founding affidavit. In para 6.4.3 54 the applicant simply states that the respondent utilises the land on which the open-cast mine is proposed for cattle grazing and cultivation. Save for the statement in para 6.4.4 (which is dealt with below), the applicant does not H furnish any further details as to what impacts the applicant's proposed open-cast mining operations would have on the existing surface uses or how these will be managed so as to constitute the least onerous or least injurious exercise of its rights in I 2006 (1) SA p390 DE VILLIERS J respect of the respondent's property. It does not even refer to the EMPR in this A context. The applicant refers to the EMPR only in the context of showing that it has complied with its statutory obligations in terms of s 39 of the Minerals Act. 55 It almost appears as if the applicant simply assumes that, once it has obtained the statutory authorisation contemplated in s 9 read with s 39 of the Minerals Act, it may exploit the minerals on the respondent's B property in any manner which may be necessary for optimal utilisation of the minerals, subject only to the limitations imposed by its mining licence and the EMPR. As pointed out above, the provisions of the Minerals Act regulate the exercise of rights previously obtained at common law; it does not re-define the applicant's rights. C In para 6.4.4 of the founding affidavit 56 the applicant contends that, so as to minimise the impact of its operations, its intention is to plan its operation so as to commence on the eastern boundary of the Kriel South Coal Field and progress in a westerly direction. Save for the fact that this allegation is extremely vague as to the intended plan with regard to the respondent's D property, it is clear that the deferment of the impact on the respondent's property can have no influence on the reasonableness thereof when it occurs. It is clear that the applicant simply has not made a case in its founding affidavit that it would be acting reasonably in conducting open-cast mining operations on the property. E In answer to paras 6.4.3 and 6.4.4 of the founding affidavit, the respondent in paras 18 and 19 of the answering affidavit

57 explained the detrimental effect that open-cast mining operations would have on the use of the property. On the basis of these facts in any event, on the basis of the rule stated in Plascon Evans Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 58 the Court must accept the respondent's version set out in these F paragraphs. The applicant in paras 15 - 19 of the replying affidavit 59 sought to make out its case that it would be acting reasonably in this regard. This is a new matter and should not be taken into account, alternatively regard should also be had to the contents of paras 14 - 21 of respondent's rejoinder. 60 G Respondent's rejoinder elicited a substantive application by applicant, on notice of motion, in terms of which it calls on respondent to oppose a new application to insert in the founding affidavit what should have been there in the first place. It is not merely a repetition of matter set out in the replying affidavit. It is supplemented with supporting affidavits. H Mr Du Plessis submitted that the Court should decide the matter on the founding affidavit and dismiss the new application, which he submits is totally irregular. In my view, the Court should indeed dismiss the new application with 2006 (1) SA p391 DE VILLIERS J costs. I agree that the new application is indeed totally irregular. The respondent would be seriously prejudiced if the new application A were to be upheld. The shallowness of the coal deposits has not been proved. It seems that it is the shallowness of 44% of the reserves of the adjoining coal field to the north of the property which is really the motivation for open-cast mining in the triangle on respondent's farm. The ancillary right, if it exists, to conduct open-cast mining, B is related to the respondent's property. The circumstances on that property should accordingly be taken into account. For the reasons set out above the applicant has failed to prove that: (1) it cannot utilise its mineral rights over the northernmost portion of the respondent's property optimally by underground C mining methods; (2) it will act reasonably with respect to the respondent's surface; or (3) it is entitled to use the method that will ensure optimal utilisation, namely open-cast mining. D The correct approach: Interpretation of the grant It is clear that the right to conduct open-cast mining operations is not granted in express terms in the above cession or, put differently, the cession contains no express waiver of the surface owner's right to E support of the surface.

As pointed out above, the question then arises whether the right to conduct open-cast mining has been granted by 'necessary implication' in the agreement. As pointed out above, that 'necessary implication' in this context, refers to a true tacit term. In order to decide whether a tacit term is to be imported into the F contract one must first examine the express terms of the contract. Pan American World Airways Inc v SA Fire and Accident Insurance Co Ltd 61 In this regard Solomon JA held in Union Government (Minister of Railways and Harbours) v Faux Ltd 1916 AD 105 at 112 that: 'Now it is needless to say that a court should be very slow to imply a term in a contract which is not to be found there, more particularly in a case like the present, where in the printed G conditions the whole subject is dealt with in the greatest detail; and where the condition which we are asked to imply is one of the very greatest importance on a matter which could not have been absent from the minds of the parties at the time when the agreement was made.' When Arthur Sulski, the then owner of the land, ceded mineral rights to AEIC, the parties expressly agreed on a number of issues relating H specifically to surface uses of the property by the mineral rights holder and the owner respectively. The use of the surface by the mineral rights holder is set out in clauses 4 and 7 of the cession. The reason for the provision in clause 4 that the area purchased by the mineral rights holder was to be sited in the grazing camp at the I southern boundary of the property, is probably because the northernmost part of 2006 (1) SA p392 DE VILLIERS J the property where the applicant now seeks to conduct open-cast A mining, contains the most productive soils. That such soils are situated on the northern part of the property is admitted by applicant in para 16.1 of the replying affidavit. On the probabilities this was also the position at the time of the cession. Clauses 3, 5, 8, 9 and 10 of the cession set out the specific surface rights of the owner. B An analysis of the clauses of the grant establishes that the parties had in mind, and made provision for, certain categories of activity on and under the surface. The main categories are mining, on the one hand, and domestic and agriculture, on the other. Mining is the activity of the cessionary and domestic and agriculture the activities of the cedent. For mining two activities are clearly distinguished. The C reference to 'surface installations' in clause 4 and to 'surface works' in clause 7 indicates that the parties anticipated activities on the surface as well as activities underground. However, the underground activities are, save in some minor respects, not further regulated. D For the surface activities of the cessionary two areas were envisaged. Those that had to be paid

for, namely in clause 4 (various surface installations) and clause 7 (various ingress, railway roads, pipelines and powerlines were envisaged). The other category of surface area was to be used free of charge. The domestic and agricultural use envisaged to be conducted by the cedent are regulated in clause 3 (trading), clause 5 (construction of buildings), clause 9 (selection of E further building sites) and clause 10 (the right to drill for water for domestic purposes at any time). The parties also provided for a conflict of rights, as follows: clause 8 provides: F 'The cessionary shall be responsible for all damages to standing crops and improvements on the said property which may be caused by its prospecting or mining operations.' In the result the intention of the parties was clear: mining would take place underground. The cedent specifically reserved the right to live and farm on the surface. G As the use of the surface by the mineral rights holder was considered and agreed upon in detail against payment of specified compensation, it appears unlikely that the parties contemplated open-cast mining but failed to expressly record their agreement on this very important aspect. In view of the importance of surface support for a surface H owner, this aspect was highly unlikely to have been absent from the minds of the parties at the time when the agreement was made. It furthermore appears that the express agreement on the abovementioned surface uses proceeded on the assumption that there would be a surface to use for these purposes and that the parties did not contemplate that the surface would be let down all together. In I fact, use of the surface for trading, buildings, crops and water by the owner exclude the possibility of the parties having contemplated the possibility of open-cast mining without expressly stating it. There is no provision for the cessionary to compensate the cedent for J 2006 (1) SA p393 DE VILLIERS J the surface utilised for open cast mining. A As stated above, evidence is admissible as to the circumstances in which the agreement was executed, including the facts known to the parties as to the practice of mining at the date of the instrument, in order to ascertain the sense in which the parties used the words employed by them to define their respective rights. In this regard it was held in East London Municipality v South African Railways and Harbours 1951 (4) SA 466 (E) B 62 that: 'No doubt where both parties knew at the time of a contract that the contract simply could not be fulfilled without a subsidence occurring, then the right of support might, or would be lost ( Butterley Ltd v New Bucknall Colliery Co Ltd 1910 AC 381; Locker-Sampson v Staveley Coal and Iron Co 25 TLR 136).' C

Norton The Conflict between the landowner, mineral right holder and the mining title holder in South African Mining Law 63 describes the test applicable in the present context as follows: 'Furthermore, if it is accepted . . . that it is a necessary incident of our law, that the land owner is entitled to lateral and subjacent support, then the right to let down the surface in any form can only derive from the fact that the parties to the contract must have contemplated . . . that the right to mine and win minerals would inevitably lead to removal of the surface .' D (My emphasis.) The applicant adduces no evidence whatsoever on the surrounding circumstances at the time of entering into the contract. The applicant bears the burden of proof in this regard. Clause 1 of the cession provides that: 'The cessionary shall have all such rights as may be needed for proper mining and exploiting the coal in, on and under all of the said E property.' The particular formulation of clause 1 does not detract from what has been stated above for the reasons set out below: 1. As set out above, the law will not imply a term that the support of surface is waived. Such loss of surface support has to be F expressly or tacitly agreed upon by the parties. 2. The phrase 'proper mining' should be read in the context of the agreement as a whole. In clause 4 of the cession reference is again made to 'proper' mining. It is clearly used in clause 4 in the context of use of the surface and not destruction of the surface. It is provided in clause 4 that the mineral right holder may purchase a G maximum of 50 morgen of the surface 'for the erection of buildings, machinery, dams or any other surface installations which it might require to enable it to properly exercise its rights or exploit the field successfully' which morgen must be situated in the southernmost grazing camp. Clause 4 shows that the parties clearly intended H 'proper' mining to mean proper underground mining in terms of the agreement and specifically with preservation of the northern parts of the property for the agricultural purposes of the owner. 3. The grant of 'all such rights as may be needed for proper mining and exploiting the coal in, on and under all of the said property' is simply a description, in more or less traditional terms, I of the common law 2006 (1) SA p394 DE VILLIERS J with regard to the primary right as well as the principle governing ancillary rights. Much is mere tautology. The words A 'in' and 'under' clearly refer to coal deposits contained in the land making up the property. The word 'on' clearly does not bear its ordinary meaning as 'on top of'. It bears therefore the same meaning as 'in' and 'under'. Applying the test laid down in the Butterknowle case ( supra ) at 309 it is clear that the wording of the B instrument is not such that it unequivocally conveys the intention that open-cast mining was intended. If a clause to the effect that the mine must be worked so as not to let down the surface were introduced into the cession, it would be perfectly consistent with the other clauses, whilst the converse would not be the case. The mere fact that it might presently be known that

the coal is of such a shallow depth that it can C only be mined optimally by open-cast methods is irrelevant. By virtue of the aforegoing the conclusion must be that there is no necessary implication (in the sense of a tacit term) that the cedent relinquished its 'right of subjacent support' on any part of the property. D The Minerals Act takes applicant's case no further Section 5(1) of the Minerals Act, on which the applicant relies for the further 'enhancement' of its rights, takes its case no further. That section re-states entitlements of a mineral rights holder that accord substantially with the primary entitlements of the common law E and, in addition, lays down one of the main principles of the Act, namely that those entitlements should be exercised in terms of the regulatory provisions of the Act. The section, by implication, recognises a registered grant as (a) one of the possible sources of a (severed) mineral right and (b) the memorial of F the holder's ancillary rights as supplemented by the residual provisions of the common law. The section does not add to or subtract from the said ancillary rights. Clifton v Alpha Anthracite (Pty) Ltd and Another ( supra ) Applicant relies heavily on the unreported judgment of Didcott J. The G applicant was the owner of a farm over which mineral rights were held by the second respondent under a notarial lease concluded in 1951. The first respondent conducted the mining operations on the farm in the exercise of the second respondent's rights. The applicant sought an order declaring that the respondents were not entitled to carry on open-cast mining anywhere on the farm, alternatively that they H were not entitled to do so outside the area of 100 acres referred to in clause 5 (d) of the lease. The interpretation of the lease was the sole question in the case. The court said that the problem was entirely a linguistic one. The important clause of the lease was clause 5. Clause 5 (a) entitled the lessee 'to enter upon the said farm and to open up and work the coal mines, seams, veins or beds of coal'. It I was common cause that the word 'mines' in this context was synonymous with the word 'deposits'. The language of clause 5 (a) was extremely wide. No limitation whatsoever could be found in it. In particular, no special method of working was prescribed or prohibited. J 2006 (1) SA p395 DE VILLIERS J Clause 5 (c) gave the lessee the right 'to search for, dig for, sell and remove the coal on and from the farm, and to make and A erect all such mine shafts and adits as he shall consider necessary'. Again, said the Court, one sees language which was wide and wholly unlimited. The learned Judge stated (at 5:9 - 12) that '(s)o far one would, without any hesitation, come to the conclusion that the language of the lease literally authorised this familiar and well recognised method of B coal mining, namely open-cast mining'.

Counsel for the applicant, Mr Roux , argued, however, that the lease did not permit open cast mining at all. Alternatively, if it was permitted at all, it was permitted within a comparatively small and defined area of the land (viz an area of 100 acres which the lessee could in terms of clause 5 (d) select in the immediate C vicinity of the mine or mines on the farm). Clause 14 gave the lessee the right to prospect for and mine iron ore and fireclay on the farm. It was common cause that the reference in this clause to 75 acres was a mistake and should have been a reference to one hundred acres. Mr Roux used this clause to support D the contention that mining, and especially open-cast mining (which, it was common cause, was the way fireclay was mined) was to be confined to the 100 acres. The learned Judge held that clauses 5 (d) and 14 did not mean, nor were they capable to any reasonable degree of meaning what Mr Roux contended: E 'As I read this lease, there is no prohibition whatsoever against open cast mining, and the language of the lease is wide enough in its ordinary meaning to authorise open cast mining. Nor do I find it possible out of this lease to spell any prohibition whatsoever with regard to the part or parts of the farm where open cast mining may be done.' F (At 11:20 - 26.) The learned Judge continued: 'The rights of the respondents are subject, of course, to the common law. They may not conduct open cast mining willy-nilly anywhere on the farm, with reckless disregard for the rights of the applicant.' There was no issue in that connection before him, and it was not one G which the Court was called upon to decide (at 11:27 - 12:9). The application was dismissed. It is important to note that the Rouliot, Coronation and Butterknowle cases were obviously not brought to the attention of the learned Judge otherwise he would certainly have approached the interpretation of the lease on the basis set out in H those cases. His approach is indeed directly in conflict with what was decided in those cases. In particular the learned Judge did not in interpreting the lease determine whether its wording evinces an intention by the owner to waive his entitlement to the integrity of the surface. The learned Judge held that there is in the lease no prohibition I whatsoever against open-cast mining and that its language is wide enough to authorise open-cast mining. This is in conflict with the above cases where it was stated that even if the powers of working are in the widest imaginable terms, they do not include the power to let down the surface. The approach should not have been whether there is a limitation J 2006 (1) SA p396 DE VILLIERS J on the right to mine, but whether there is an indication of the right to conduct open-cast mining. A

In evaluating the judgment one should, of course, bear in mind that the lease is not quoted verbatim and it is per se difficult to draw inferences from the interpretation of one contract and attempt to apply it to another. B Hudson v Mann and Another As indicated, applicant's counsel rely strongly on certain passages in this judgment of Malan J (as he then was). The case did not concern subjacent or adjacent support. It concerned access to a shaft which had been sunk on a property in 1920 by the previous holder of the mineral C rights for the purposes of exploration and mining. The surface owner refused such access. The holder of the mineral rights applied for an order declaring that it was entitled to have access to the shaft. At 488B - D the learned Judge said the following: D 'I have been referred to a number of decisions from which the rights of the holder of mineral rights appear reasonably well defined. Such a holder (and the holder of a notarial mineral lease stands on the same footing) is entitled to go upon the property, search for minerals and if he finds any to remove them. In the course of his operations he is entitled to exercise all such subsidiary or ancillary rights, without which he will not be able effectively to carry on his prospecting and/or mining operations.' E I respectfully agree with these statements of the law, but they do not justify the argument that open-cast mining is a subsidiary or ancillary right without which the holder of the mineral right is unable effectively to carry on mining operations. In its context the learned Judge obviously intended to refer to the applicant's right of access F to the shaft. The judgment continues as follows (at 488D - G): 'When the owners are able reasonably to enjoy their respective rights without any clashing of interests no dispute is, as a rule, likely to arise. The difficulty arises, as has happened in the present case, when the respective claims enter into competition and there is no G room for the exercise of the rights of both parties simultaneously. The principles underlying the decisions appear to be that the grantee of mineral rights may resist interference with a reasonable exercise of those rights either by the grantor or by those who derive title through him. In case of irreconcilable conflict the use of the surface rights must be subordinated to mineral exploration. The solution of a dispute H in such a case appears to me to resolve itself into a determination of a question of fact, viz, whether or not the holder of the mineral rights acts bona fide and reasonably in the course of exercising his rights. He must exercise his rights in a manner least onerous or injurious to the owner of the surface rights, but he is not obliged to forego ordinary and reasonable enjoyment merely because his operations or activities are detrimental to the interests of the I surface owner. The fact that the use to which the owner of the surface rights puts the property is earlier in point of time cannot derogate from the rights of the holder of the mineral rights.

The expert evidence satisfies me that the applicant in deciding to undertake further development and exploration of the mineral possibilities by means of the existing shaft intends to put it to reasonable and proper use.' J 2006 (1) SA p397 DE VILLIERS J This passage must, once again, also be read against the background of the facts of that case. The surface owner refused access to the A shaft on three main grounds (at 487H - 488B): (a) The surface owner had taken possession of the shaft for the purpose of irrigating 45 acres of the surface. This was done with the acquiescence of the holder of the mineral rights at the time of the acquisition by him of the surface rights. B (b) That further exploration of the shaft would yield no further or better results than those already obtained, and that it was unreasonable and against the public interest to allow operations which would have the effect of destroying the first respondent's waterwork and thus render valueless a valuable irrigation project. C (c) The first respondent's exclusive possession and use of the shaft were prior in point of time and that in the consequent irreconcilable conflict between his rights and interests as surface owner and those of the applicant as owner of the mineral rights, the latter should yield to the former. D The Court, with respect, correctly held the view that the holder of the mineral rights was entitled to resist interference with a reasonable exercise of his rights. That was indeed a case of irreconcilable conflict where the use of the surface rights had to be subordinated to mineral exploration. One cannot, however, rely on this to argue that, whatever the rights of the parties in the instant case E may be in terms of the cession, the use of the surface rights has to be subordinated to mineral exploitation. In any event, the instant case is not a case of irreconcilable conflict between the parties' rights. The applicant has no entitlement to let down the surface and the respondent, on the other hand, is entitled, as owner of the surface, not to have the surface let down. F In passing, I may point out that Malan J referred to 'ordinary and reasonable enjoyment' of the rights of the holder of the mineral rights, and not to 'optimal utilisation', a term which the applicant has borrowed from the Minerals Act, 1991. G The effect of s 25 of the Constitution In an article by Prof Lubbe 'Taking Fundamental Rights Seriously: The Bill of Rights and its Implications for the Development of Contract Law' (2004) (part 2) 121 SALJ at 395 - 423), he draws attention to the judgment of the Supreme Court of Appeal in Afrox H Health Care Bpk v Strydom 2002 (6) SA 21 (SCA) . This judgment makes it clear, according to Prof Lubbe, that judicial intervention is required either when a rule of the common law is in conflict with a constitutional provision or where a court is obliged to adopt a new stance on a matter of public policy. ( Lubbe ( op cit ) at 402.) Also, according to Prof Lubbe, the judgment in I Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938

(CC) (2001 (10) BCLR 995 imposes an obligation on the courts to develop the law where the common law as it stands is deficient in promoting the s 39(2) constitutional objectives. ( Lubbe ( op cit ).) Particularly relevant in the present J 2006 (1) SA p398 DE VILLIERS J context is the requirement of ss 8(1) and 39(2) that a Court should develop the common law to A 'promote the spirit, purport and objects of the Bill of Rights'. The argument for the applicant in the present case amounts to saying that there should be implied into the cession agreement a term to the effect that, unless excluded by agreement, a cession of mineral rights carries with it a preferential right to the surface which can be B exercised by the mineral rights holder when necessary to exploit the mineral rights optimally, provided he does so civiliter modo . The argument for the applicant results in a term being implied by the Court ex lege to the effect that the owner is deprived of the use of the surface. One of the considerations for implying the term is the requirements of the 1991 Minerals Act that the minerals be C exploited optimally. If the argument were upheld it would result in an implied term which has the effect that the owner is deprived, without his agreeing thereto, of the last remaining aspect of his ownership which is of any practical value to him. If it had been the intention of the parties at the conclusion of the cession that the owner should part with his use D and enjoyment of the surface there would have been a straight sale to the mineral rights holder. The deprivation of an aspect of ownership against, or at least, without the consent of the owner falls under 'deprived' as envisaged in s 25(1) of the Constitution. The fact that the state does not E acquire the use of the surface makes no difference. That is what distinguishes expropriation from deprivation. The applicant argues in its supplementary heads that the right to the minerals is acquired 'by contract'. This is correct but is no answer to the views set out above. The aspect of ownership which is crucial, namely the use and control of the surface, is obtained, on applicant's F argument, on the strength of an implied term, ie a term which the law implies into the contract. The applicant's contention amounts to the reading into the agreement of a term which deprives the owner of its support of the surface without agreeing thereto and the implication of such a term by law G would contravene s 25(1). If, in answer to the aforementioned it be said that the implication of the term generally into all contracts of cession of mineral rights will be a 'law of general application' as is envisaged in s 25, the provisions of s 36 need to be considered. The limitation of a right in H terms of a law of general application has to be justified by taking into account the various factors mentioned in s 36(1). Factors (a) to (d) may be debatable. However, the present case does not comply with s 36(1) (e) , namely that there should not be less restrictive means to achieve the purpose.

Under the Minerals Act of 1991, under which the present matter has I to be decided, ch 4 provides a range of administrative law powers to ensure optimal utilisation. Section 24 provides the relevant minister with powers of expropriation when required for optimal utilisation, at the request of the mineral rights holder, with a concomitant obligation on the mineral rights holder to pay the compensation. The right expropriated J 2006 (1) SA p399 DE VILLIERS J vests in the person who requests the expropriation. This mechanism is for many obvious reasons less stringent than a deprivation A by an implied term. There is, therefore, no room for the Court to facilitate optimal exploitation by reading into the cession of mineral rights a term which deprives the owner of the use of the surface because s 25 read with s 36 of the Constitution prohibits it in the light of the less B stringent remedy available. The stream diversion (prayer 1.1) The applicant avers in para 6.5 of the founding affidavit that it has a 'common-law right' to construct a stream diversion on the property C on the basis that: (1) the stream sterilises approximately 52 million tons or 52% of the coal reserves in the Kriel South Field (para 6.5.1); (2) if the stream is not diverted, the open-cast mine will have to be divided into two separate sections which 'may' render dragline D methods of mining unviable and which in turn 'could' make the mine unviable (para 6.5.2); and (3) there is 'thus' no alternative to altering the stream other than by not proceeding with the mine at all. Such averments are not proved by means of expert evidence or other substantiating documentation in the founding affidavit. As E indicated, the applicant attempts to add averments of that nature to its founding affidavit. I shall accept, in favour of the applicant, that it is entitled to do so. In any event, even if these averments have been proved, the applicant F only makes out a case that, in the context of the mining project as a whole, it is reasonably necessary to divert the stream. In order to be entitled at common law to construct the intended stream diversion, as set out below, the applicant will have to prove that it is reasonably necessary to divert the stream on the respondent's property to G enjoy the minerals on the respondent's property. The applicant has not made out a case on the facts that the reserves which it intends mining by open-cast methods on the respondent's property would be sterilised by the stream and that it is therefore reasonably necessary to construct a stream diversion on the respondent's property in order successfully to conduct open-cast mining operations on the H respondent's property. The applicant does not allege that any of the alleged 52 million tons of coal reserves which allegedly occur in the Kriel South Coal Field and which is sterilised by the stream, is situated on

the respondent's property. Similarly, the allegations in para 6.5.2 I are not related to the respondent's property. It is namely alleged that if the stream is not diverted so as to flow around 'the proposed mining area', it may render mining unviable. The applicant does not make these allegations regarding sterilisation of reserves in respect of the respondent's property because, from the perspective of the applicant's proposed open-cast operations on the J 2006 (1) SA p400 DE VILLIERS J respondent's property, the stream indeed does not sterilise any of these reserves. A This will become even clearer when the affidavit of Schoeman is dealt with. It is clear from 'JW4' to the founding affidavit and 'H4' to the answering affidavit that the unnamed tributary of the Steenkoolspruit which is sought to be diverted does not flow through that part of the B respondent's property which is sought to be mined by open-cast methods. This is admitted by the applicant. Schoeman, an expert civil engineer with 30 years' experience in the field of water engineering, further shows in his affidavit filed with the answering affidavit of the respondent that there is no way in which this stream, as it is, endangers the proposed open-cast C mining operations on the respondent's property, not even on the worst case scenario posed by him in para 10 of his affidavit. He conclusively shows in paras 11 and 12 read with figure 'HS8' to his affidavit that it is not reasonably necessary to divert the stream in order to conduct the intended open-cast mining operations on the D respondent's property. It is evident that the stream diversion is, in fact, necessitated by the applicant's plans to mine on properties adjacent to the respondent's property. This is admitted by the applicant's statement in para 23.3 of the replying affidavit that '(r)espondent's arguments do not take cognisance of the fact that optimal utilisation of the reserve must be considered in the context of the mining project E as a whole and not merely that part of the project which occurs on the respondent's property'. As the applicant has failed to establish that it is reasonably necessary to divert the stream in order to conduct open-cast operations on the respondent's property, it does not have the 'common-law right' to divert the unnamed tributary of the Steenkoolspruit on the F respondent's property. The 'primary' rights to the minerals of the applicant relate only to the coal in, on or under the respondent's property. 'Ancillary rights', as set out above, are rights implied by law 'that are directly necessary to the enjoyment of the thing granted' ( Trojan case ( supra ) at 520D), in casu the minerals. They are an incident of the G grant of the mineral rights. This has the following logical implications: 1. If the primary rights relate to coal on the respondent's property, the ancillary rights would by their very nature also be limited to surface rights in respect of the respondent's property. H 2. If the applicant is able effectively to carry on his mining operations on the respondent's property, he will not be entitled to exercise any ancillary rights. 3. If the applicant is not seeking to enjoy the rights to the minerals on the respondent's property, it cannot claim any 'ancillary rights' in respect of the respondent's property. I

The applicant further contends in para 7.3.1 of the founding affidavit that the cession imposes no 'contractual restriction' on applicant's common-law right to divert the stream. It has already been shown above that the applicant has no common-law right to divert the stream. J 2006 (1) SA p401 The applicant then contends in para 7.3.2 that para 24 (a) of the cession 'enhances' the applicant's right to divert the A stream. There is no such cause of action in law. Order 1. The application is dismissed with costs, including the costs of two counsel, including the costs occasioned by the employment of the B expert, Mr Schoeman. 2. The application to supplement applicant's founding affidavit is dismissed with costs, including the costs of two counsel. 3. The costs of 6 and 7 April 2004 are costs in the cause. C Applicant's Attorneys: Deneys Reitz Inc , Johannesburg; Friedland Hart Inc , Pretoria. Respondent's Attorneys: Wim Pretorius c/o Grutter and Lombard. D E