Page images
PDF
EPUB

to which instructions shall be given by the Government from time to time.

The Court adjourns to 3.45.

Re Witfontein and Luipaardsrlei.

Tuesday, 19 November, 1895.

Esselen proceeds with his argument.

no

He admits that if the land is proclaimed the area must be deproclaimed. The Government had the power to withdraw the proclamation because it is implied in the Government's Proclamation and it is not forbidden by Law. It would be impossible to have the same formalities in the withdrawal as in the proclamation for instance 30 days' notice. Therefore the proclamation can at any time be withdrawn. Notice was given to the public on the morning of 19 July. In each case notice was given before licence moneys were tendered. There was proper application for licences the offer was outside the office and there is no obligation to issue licences exactly at 8.30 provided no one else is preferred. If the Court is against him on all these points he bases his case on the Volksraad Resolution. If it is clear that a past matter is intended in a law such must be accepted. Maxwell on Statutes p. 265. It is clear that the Volksraad He quotes resolution includes this matter. Government from 18 July is approved; all pegging was The action of the declared illegal. Further on 28 August it was resolved that the claims should become the subject of a lottery. In all Governments the People's representatives have the right to pass an act of indemnity. He quotes Law 3 of 1880. Also refers to the case where a Parliament approves expenditure by the Government. The Resolution is an occasional law e.g. Jorissen's judgment in the Doms case. There was no time for delay. cannot test a law as against the Grondwet for the VolksThe Court raad is the highest authority in the land. The Grondwet is merely a collection of laws to organise an unorganised body. For 30 years the People has agreed that the Grondwet should be treated thus. ever had the power to test a law by the Grondwet this Even if the Court power has been withdrawn by Law No. 4 1890 Art 35 and 32 (which was published for three months). In [788-10]

Art 5 laying down the oath for members of the Volksraad the oath has been amended. Art 32 states that the legislative power of a law or resolution cannot be contested saving the rights of the people to present memorials. The last question is if Brown succeeds what can he demand? A licence merely gives the right to peg. Plaintiff cannot prove that he has pegged the claims which he now demands.

Wessels replies:

In terms of Art 10 of the Gold Law only 60 claims can be pegged as vergunning claims. No one alleges that he has a better right than Brown. Art 32 of Law 4, 1890 must be interpreted in accordance with the Grondwet and a resolution in this instance may be considered as a vote on a law. (see beginning of revised Grondwet). It lies in the nature a written Constitution that the Court may judge whether a law is in accordance with the Constitution. He quotes Marberry v. Maddison Story's Americal Jurisprudence section 1576 note.

He contends further that the Volksraad Resolution has no reference to the matter of Brown. There is no special allusion to Brown's matter. The matter is not included by necessary implication. If Esselen's interpretation of Art 28 is accepted the Government can close a whole goldfield (Hare's American Constitution p. 726).

Esselen hands in a list of Authorities.

C.A.V.

ANNEX 25.

Declaration by the Registrar of Mining Titles.

Mining Titles Office, Transvaal, Union of South Africa.

American and British Claims Arbitration: R. E. Brown.

I, HENRY CECIL FLEISCHER, Registrar of Mining Titles of the Transvaal, do hereby declare as follows:

1. That by Section Three of Proclamation No. 35 of 1902 (Transvaal) an Office styled the "Registration of Mining Rights Office" was established and that by Section Four of the said Proclamation the officer in charge of that office was styled the "Registrar of Mining Rights";

2. That it was one of the duties imposed upon the said Registrar of Mining Rights by Section Four (a) of the aforesaid Proclamation to take charge of and preserve all records of title deeds and documents in the said Office or in the offices of the late Mining Commissioners;

3. That by Section Three of Act 29 of 1908 (Transvaal) the title of the said Office and the title of the Officer in charge thereof was changed and they were styled respectively the "Mining Titles Registration Office" and the Registrar of Mining Titles," and Section Four and Four (a) of the said Act read as follows:

"4. The Governor shall appoint an officer (to be styled the Registrar of Mining Titles) who shall be in charge of the said Office and whose duties shall be

"(a.) to take charge of, and preserve all records of title deeds, documents, and diagrams of every kind relating to mining title which were, prior to the coming into operation of this Act, in charge of the Registrar of Mining Rights;"

4. That the said Act No. 29 of 1908 (Transvaal) was partially repealed by Act No. 25 of 1909 (Transvaal) entitled:

"An Act to consolidate and amend the Law regulating the Deeds Office and Mining Titles Registration Office and relating to the Registration of Deeds and Mining Titles";

And that by this latter Act the Title of this Office was amended to read "The Mining Titles Office," but the Title of the Officer in charge remained unchanged;

5. That Section Thirty-five and Thirty-five (a) of the said Act No. 25 of 1909 read:

"35. The Registrar of Mining Titles shall be in charge of the Mining Titles Office and his duties shall, subject to the provisions of this Act and the regulations, be

"(a.) to take charge of, and preserve all records of title deeds, documents and diagrams of every kind relating to mining title or stand title which were, immediately prior to the commencement of this Act, records of the Mining Titles Registration Office;'

6. That as successor in Office of the Registrar of Mining Rights I am in possession of a File of papers originating in the Office of the Registrar of Mining Rights-File No. 1175/1902-containing certain correspondence between one Thomas P. Galt and the Registrar of Mining Rights from which File it appears :

(a.) That on the 28th May, 1902, the said Galt wrote to the Registrar enclosing a Deed of Assignment in his favour of au undivided one-half interest in certain 937 claims on the farm Witfontein and requesting that the said Deed be placed upon record;

(b.) That on the 30th May, 1902, the Registrar replied that he was unable to comply with the request of the said Galt ;

"A"

(c.) That on the 30th May, 1902, a further letter-copy attached marked "A"--was sent by the Registrar to the said Galt presumably in response to a verbal request;

7. That the Blue Print referred to in the letter mentioned in paragraph 6 (c)-copy attached marked "B"is still in my possession and no alterations or changes have been made thereon or thereto at any time since the date it was received;

8. That it is the only record I have or have been able to trace of a diagram or plan illustrating the area of ground claimed to have been pegged by the late R. E. Brown on

the farm Witfontein No. 29 (formerly No. 572) under licences issued to the said Brown by virtue of an Order of the High Court of the South African Republic dated the 29th January, 1897;

And I make this Declaration believing it to be true in every respect.

H. C. FLEISCHER.

Mining Titles Office, Johannesburg,

Transvaal, January 1914.

Declared to before me this 6th day of January, 1914.

F. C. BIGGER,

Justice of the Peace.

"A."

R.M.R. No. 1175/02.

Sir,

Registration of Mining Rights Department.

Office of the Registrar of Mining Rights, Winchester House, Johannesburg 30th May, 1902.

I HAVE the honour to acknowledge the receipt of your letter of the 26th May.

I regret that I am unable to furnish you with information as to who are the present owners of claims covering the ground on the farm Witfontein upon which one R. E. Brown pegged claims as there is no record in this Office of what ground was so pegged by Mr. Brown.

The enclosed list of Claim holders on Witfontein are those who hold claims upon that portion of the farm represented on the "Blue Print" which was handed in to this office by you.

I might add, however, that many claim holders have not filed diagrams of the claims held by them so that the list is therefore subject to amplification.

I have, &c.

DUNCAN STUART,

Registrar of Mining Rights.

T. P. Galt, Esq., Johannesburg.

No copy of the list is attached hereto.

« PreviousContinue »