Madeleine case. Humphrey vs. Mining Commissioner. Ergo: Brown can never receive more than licences, but no claims.

this.

Proclamation and setting open are one action.

Government has right to suspend, law does not forbid

Law gives instructions for setting open, thus also for postponement.

If bona fide error has been made, is not Government compelled to withdraw?

The argument that when once authority has been exercised then no new exercise is allowed is nonsense.

Government has right to order Mining Commissioner not to issue licences It is administrative discretion. See art. 28. Note Government acts in fiduciary position.

Court adjourns to 3.30 o'clock.

19th November, 1895.

Coram Chief Justice, Ameshoff & Morice J.J.

Brown versus Leyds N.O. (Continued.)

Esselen (Continuation of argument) :

Notice of altered intention of Government can take place in any manner, need not occur in the same formal

manner.

The argument of 30 days notice of withdrawal is

nonsense.

Resolution was taken on 18th, thus before operation. On 19th notification is given, we must presume that everything was done in order unless the contrary is proved.

True notice was only given at half past eight but this makes no difference because licences were only applied for after that hour. Gold law gives great power to Government because Government is in fiduciary position. Enquiry whether this fiduciary power has been justly exercised rests with Volksraad. Application of Brown was not properly made, is not to be considered as tender. Delivery was made on the veldt not in the office. It is open question whether licences must be issued at 8.30. This is tacitly accepted, but why? Court is estopped from comcomplying with Brown's claim as it is prevented by Volksraad Resolution. No argument is necessary re retrospec

tive power and dictum. Chief Justice lays down rule correctly.

Maxwell on Interpretation of Statutes 2nd ed:

B.E. page 262.

Does Volkraad's Resolution bear on this case? Yes, how otherwise can be stated

The argument re owners' etc. claims cannot stand, for the very reason that these claims must be pegged before setting open, the period of 30 days is laid down. Acts of indemnification are authorised. Note act for actions during Secocoeni's war, law 3, 1880. The jus positivum of the S.A.R. consists of law and resolutions.

The people has been satisfied therewith for more than 30 years. By conscription therefore, Art. 32 Law 42,1890 deprives the Court of testing right.

What can Brown demand? Licences, nothing more. Government need not guarantee ground. It has not been clearly proved that he was the first.

Cur: ad: vult:

Notes of Marice, J.

R. E. Brown v. W. J. Leyds N.O. and A.A.J.C. Dieperink:

Wessels and Curlewis for Plaintiff.

State Attorney

Defendants.

Cloete and Hummel for

This was an action for a declaration that Plaintiff was entitled to peg 1200 prospecting claims on the farm Witfontein and for an order for the issue of such licences. There was an alternative claim for £324,000 damages.

It appears that the eastern portion of the farm Witfontein was proclaimed as a public digging on 19 June, 1895; that before the day whereon the proclamation was to have operated the proclamation was withdrawn ;* that on the day when the proclamation should have come into operation Plaintiff applied for licenses and these having been refused pegged claims.

The Defendants contended that the withdrawal of the proclamation and other actions were confirmed by Volksraad resolution.

Wessels calls:

Robert Edward Brown; sworn:

I am Plaintiff. I know that the farm Witfontein would be opened on 19 July 1895. On that morning there were a great many people at the door of the Mining Commissioner at Doornkop. At 8.30 the Responsible Clerk, Dieperink, arrived and said according to my interpreter, Melville, that no licences would be issued before 10 o'clock. I thereupon went to my office and wrote a demand to the Responsible Clerk, the contents of which were that he had unlawfully postponed the setting open, and wherein I made application for licences (Demand handed in AI) I went to Dieperink, gave him the document. He took the letter. This was at 8.52. I had the money in hand. There upon my I tendered him the money. About 9.15 Dieperink appeared again before the crowd with a couple of telegrams. He read them. They were to the effect that the proclamation was postponed. I then went into his office and said that I considered the telegrams were of no force and I demanded that he should give me a written acknowledgment of his refusal to issue licences. He said he would not do this. But when I insisted he said that he would endorse my tender on the writing which I had given him before. I presented my receipt for personal taxes. This is it (B1) I had an arrangement to signal from Doornkop to Witfontein by means of heliograph. I went a mile from Doornkop and then signalled to Witfontein that all was in order and that pegging should take place. Doornkop is about 20 miles from Witfontein. Then I rode to Witfontein. I arrived there about noon. All the ground was pegged. J. R. Stevens was in charge of the pegging. I am Mining Engineer, well acquainted with the Rand and have wide experience in America. I was engaged at the Primrose, consolidated Gold Fields. In this matter I acted wholely for myself. I know Witfontein well. I value the claims on an average of £400 per claim. Two series of reefs pass through my claims and they are deep levels of the Main Reef series. I had studied Witfontein 2 or 3 months before.

Cross-examined by Esselen :

The main reef series has not yet been discovered on Witfontein. The nearest point is probably Randfontein, 8 miles to the east of Witfontein. The theoretical outcrop

of the Main Reef is 500 feet to the north of my claims. It is a question whether the Main Reef has been discovered on Randfontein. The Kimberley series and the Bird series according to my opinion run through the claims. The Kimberley series is exposed, not the Bird or Main Reef series. The value of the claims is mainly by reason that they are deep levels of the Main Reef. I doubt whether the Kimberley or Bird reef series have ever paid. There are vergunning claims on the farm. I know that persons claim some of my claims under vergunning rights. I believe 300 or 400 of my claims are claimed by others. 150 persons were at the office that morning. I looked at my watch when I handed Dieperink the document and when I spoke to him in the office. I had the money and receipts in my hand when I gave the letter to Dieperink. Dieperink turned and went away.

About

Re-examined: I took legal advice before I pegged. I contend that the vergunning holders can hold only 60 claims. I have no demand from vergunning holders. I do not know whether all my claims have been issued under lottery. I believe that the beacons of my claims are still in existence. The claims have been surveyed.

Edward Harker Vincent Melville, sworn: What Brown has stated referred to what was said at the office of Doornkop is correct. I am acquainted with Witfontein and the Rand. I consider £400 is no extravagant valuation for the claims. I consider that the claims are worth £200. The claims are not proved. I have no interest in the case. I saw vergunning claims on the land on which plaintiff pegged.

Wessels objects to evidence that persons were entitled to his claims under vergunning licences.

The State Attorney asks leave to amend the pleadings; but is satisfied if the Court indicates that he may produce evidence with reference to the vergunnings in abatement of damages.

Melville continued

I was not on the claims on the morning of the 19th July. My assistant Atherstone was on the claims. I was ten yards away when Brown gave the document to Dieperink and cannot say whether he then tendered money. I went to the claims at 11 o'clock. Some of the claims had been pegged twice; others four or five times. This way by

Re-examined: I think Brown had 140 people. There were about 1000 people on Witfontein.

By the Court: The day before I was on the land. There were no claims pegged by Brown; the vergunning claims were pegged as vergunnings. Everything was quiet at Witfontein and Doornkop. The Mining Commissioner remarked that everything was quiet at Doornkop; he had expected trouble.

Jacob Henry Hildebrand, sworn:

I am hotel-keeper at Johannesburg. I was at Doornkop on that day. I was with Brown and Melville. What they have stated is correct.

Ernest Abraham Wolsey, sworn:

I am mining Engineer and Geological Surveyor. I am superintending Engineer for the Consolidated Gold Fields. I am acquainted with Hatch's geological survey of the Rand. I know Witfontein and the surrounding land. I know Brown's land. The value of claims where the reef is not proved must be a commercial or speculative value. I think that the commercial value of the claims would be about £200 per claim on the average. Various lines of reef are exposed by light upheavals. According to my opinion the Main Reef series must lie through the land somewhere. The Hospital Hill shales are a sign of the Main Reef. Hospital Hill shales are found about two miles from the north of Brown's claims. I think that the claims would easily bring £200 in a good market. Witfontein claims are sold daily. I have seen claims with less prospects sold for more money than £200.

Cross-examined by Esselen: I judge that the Main Reef series passes through the land because the Hospital Hill shales are to the north and from the appearance of the reefs. I think that the reef is north of Brown's claims.

Brown recalled.

Many other persons have an interest in this case. We have not tried to dispose of our land.

Re-examined: We have expended about 2,000l. on the claims by hiring men, etc.

John Redinghouse Stevens, sworn:

I am Mining Engineer and Sub-manager of Simmer and Jack. I was at Witfontein in the morning of the 19th July. I pegged for Brown. I made a report of what happened.