Rex v Nolte

• Jurisdiction: South Africa
• Judge: Solomon CJ, De Villiers JA, Curlewis JA and Stratford JA
• Judgment Date: 12 June 1928
• Citation: 1928 AD 377
• Hearing Date: 01 June 1928
• Court: Appellate Division

Solomon, C.J.:

This is an appeal from a judgment of the Cape Provincial Division confirming a conviction of the appellant by the magistrate of Namaqualand. The charge against him was that he was guilty of contravening sec. 5 of Act 27 of 1907 of the Cape Colony, in that he did wrongfully and unlawfully prospect or mine for precious stones on Crown land at a place excluded from prospecting by the Governor-General's Proclamation No. 50, dated 21st February, 1927. The facts of the case are not in dispute. The evidence shows that the appellant deliberately prospected on Crown land for the purpose of testing the validity of the aforesaid Proclamation; and the appeal to this Court is based simply upon the ground that Proclamation No. 50 is ultra vires.

Sec. 5 of Act 27 of 1907 reads as follows: "Notwithstanding anything to the contrary in sec. o of Act No... 11 of 1899 contained, prospecting and mining shall be prohibited on such places as the Governor may from time to time, by notice in the Gazette, exclude from prospecting or mining, nor shall it be lawful to prospect or mine in any place prohibited by the terms of a prospector's licence, and any person contravening the provisions of this section shall be liable on conviction to pay a fine not exceeding £100, or, in default of payment, to be imprisoned for a period not exceeding six months with or without hard labour."

The Proclamation itself reads: "Under and by virtue of the powers vested in me by sec. 5 of the Precious Stones Act Amendment Act, 1907, of the Cape of Good Hope (Act No. 27 of 1907). I do hereby declare, proclaim and make known that all Crown land situated in the Division of Namaqualand, Province of the Cape of Good Hope, is hereby excluded from prospecting for precious stones."

The contention that the Proclamation is ultra vires is based upon two grounds, viz: (1) That the powers conferred upon the Governor by sec. 5 of Act 27 of 190, are regulatory and not prohibitive. (2) That "all Crown land situated in the Division of Namaqualand" is not a place within the meaning of the said section.

The first contention seems to me to be really unarguable, and may be dismissed in a few words. The section expressly empowers the Governor to exclude certain places from prospecting, and that is all that he has done by Proclamation No. 50. How then can it be suggested that the Proclamation is ultra vires? The argument for the appellant, as I understand it, is that...