The British South Africa Company v the Bechuanaland Exploration Company Ltd

• Jurisdiction: South Africa
• Judge: Innes ACJ, Solomon J and CG Maasdorp JP
• Judgment Date: 09 January 1913
• Citation: 1913 AD 37
• Court: Appellate Division

Solomon, J.:

The plaintiff company in this case claimed from the defendant company a declaration of rights that they were en titled to a certain piece of land in extent 3,000 morgen, pegged and located by them in the Bubi district of Rhodesia in June, 1910. There were further claims for an account of all rents, royalties and other revenues derived by the defendant company from the said land since June, 1910, and for damages.

The plaintiff company sued as the holders of certain letters of registration issued by the defendant company on the 21st December, 1893, to one Burnett, which were in the following terms:

"These are to certify that Edward Burnett," Staff "Salisbury Horse, having completed his special term of service under the British South Africa Company, is entitled under the conditions of his enrolment to a grant of 3,000 (three thousand) morgen of land and the right to peg off 20 (twenty) gold claims, further that his

Solomon, J.

right to avail himself thereof has been duly registered in the books of the said company."

On the 16th August, 1894, the said letters of registration were ceded by the defendant company to one Charles Stevens for the sum of £150, and on the same date the following endorsements were made by the defendant company on the certificate:

"On behalf of the British South Africa Company I hereby cede this certificate of registration to Charles Stevens, 0. F. State, for the sum of one hundred and fifty pounds sterling." "This right is perpetual for purposes of pegging in the Gold Belt or elsewhere in the territory of the B.S.A. Coy."

On the 15th March, 1910, the said letters of registration endorsed as above were sold and transferred by Stevens to the plaintiff company for the sum of £400. Thereafter, on the 25th June, 1910, the plaintiff company pegged and located a piece of ground, in extent 3,000 morgen, round the Lonely Mine in the Bubi district, and it is in respect of this land that they claim to be entitled to a declaration of rights.

It is unnecessary for the purposes of this case to inquire in what circumstances and by virtue of what right the defendant company purported to cede to Stevens the letters of registration issued to Burnett, for it is common cause between the parties on the pleadings that the plaintiff company have acquired the said letters. Nor is it necessary to determine what, on a strict construction of the document, would be the precise rights conferred by it on the holders, for the plea admits the allegation in paragraph 4 of the declaration that by virtue of the ownership thereof, "the plaintiff company became entitled to the perpetual right to peg and locate the said area on any land open and available for location anywhere within the territory of the defendant company." This admission, however, must be taken to be qualified by paragraph 6 of the plea, which alleges that "all pegging and locating of land belonging to the defendant company is subject to their approval, which approval has not been asked for by or granted to the plaintiffs."

On the pleadings, then, as they stood at the time of trial, two defences were raised to the plaintiff company's claim, namely, (1) that the land was not open and available for location, inasmuch is it had been bona fide reserved by the defendants prior to its alleged selection by the plaintiffs, and (2) that the approval of the defendant, company to the selection had not been obtained.

Solomon, J.

On the hearing of the appeal, however, an amendment was allowed to be made to the plea, which raised the further defence, "that by Government Notices Nos. 194 and 195 of 1899, made pursuant to section 1 of the Survey Regulations of 1897, all pegging or appropriation of land in the said area was prohibited, and that the said prohibition was still of full force and effect"; and in the alternative that "if the said prohibition was no longer applicable, the approval of the Administrator is necessary under the Survey Regulations of 1894 to the selection of any land, and this approval has not been obtained by the plaintiff company."

The learned Judge in the Court below held in effect that under the certificate of registration the plaintiff company "had the right to peg any land belonging to the defendant company not alienated by them to others," and that as the land in question had not been alienated, they were entitled to the relief claimed by them in this action. It is from this decision that the appeal is brought.

Now, the first question to be determined is whether the land in question, apart altogether from the Government Notices of 1899, was open and available for pegging on the 25th June, 1910, for, if it was not, then it follows as of course that the plaintiff company's claim must fail. The case for the defendant...