Badenhorst v Marks [1911] ZATPD 30 (16 March 1911)

Land - Joint Ownership - Partition - Mineral Rights

A co-owner of an undivided farm claimed partition and the other co-owner agreed to have the surface rights divided but not the mineral rights. The farrn was contiguous to a diamond-bearing property, but, though it had been prospectecl for several years, and diamondiferous ground had been found on it, no diamonds had been discovered. There was no evidence to show that either of the parties was in a more favourable position to make a discovery than the other or that the defendant intended to prospect the farm.

Held, that the plaintiff was entitled to a vartition of all the undivided rights and that the chance of a discovery of diamonds did not make it inequitable to partition by dividing both the surface and mineral rights and that no facts existed to justify the Court in ordering the suspension of a division of the mineral rights.