The British South Africa Company v the Bechuanaland Exploration Company Ltd

• Jurisdiction: South Africa

The British South Africa Company Appellant v the Bechuanaland Exploration Company Ltd Respondent
1913 AD 37

1913 AD p37

Citation	1913 AD 37
Court	Appellate Division, Bloemfontein
Judge	Innes ACJ, Solomon J and CG Maasdorp JP
Heard	November 26, 1912; November 27, 1912
Judgment	January 9, 1913

Flynote : Sleutelwoorde

Rhodesian Land Grants — Matabeleland Volunteer Farms — Land open and available for pegging — Land reserved for public purposes — Survey Regulations (Rhod.) 1894 and 1897.

Headnote : Kopnota

The plaintiff company, having acquired certain "Letters of Registration" issued by the British South Africa Co., which gave it the right "to a grant of 3,000 morgen of land and the right to peg off 20 gold claims," which right was endorsed as being "perpetual for purposes of pegging on the gold belt or elsewhere in the territory of the B.S.A. Co.", in 1910 pegged off an area of 3,000 morgen adjoining the Lonely Mine in the Bubi District, without first obtaining the approval of the Administrator. In 1894 certain Survey Regulations had been published, which provided that any person who should be entitled to receive a grant of land might obtain a provisional title deed upon making application to the B.S.A. Co., describing the situation of such land "selected by him with the approval of the Administrator." In 1897 further Survey Regulations empowered the Administrator to declare any area to be under his instructions exclusively entrusted to one Surveyor for the purpose of the provisional decision of all land questions, including the demarcation of land grants, and for the survey of all unsurveyed lands claimed in satisfaction of Certificates of Right or of Land Grants or other authorisations to obtain or hold land which may have been issued by or under the authority of the B.S.A. Co. The regulations also provided that upon any area being so dealt with the Survey Regulations of 1894 should be in abeyance until

1913 AD p38

again declared in force, and that in the meantime all attempts to appropriate land in such area by pegging or otherwise should be prohibited, and all unalienated land therein should be considered to be for the time being reserved from alienation. In 1899 these Regulations of 1897 were applied to the Bubi district, and were never withdrawn. The plaintiff Company contended, however, that they ceased to apply in 1902, when final title deeds in satisfaction of land claims allocated and demarcated were issued. In 1907 an area comprised within a certain radius of the Lonely Mine had been reserved by the Administration in accordance with invariable practice in order to protect the mine and the surrounding timber and to provide sites for Government offices. It was within this area that the plaintiff Company had pegged its 3,000 morgen. Held, that even apart from the Survey Regulations of 1894 and 1897 the area in question, having been reserved for public purposes, was not open and available for pegging in 1910, and that the pegging therefore conferred no rights upon the plaintiff Company. Held farther, that if the contention of the plaintiff Company was correct, that the regulations of 1897 had ceased to apply to the Bubi district in 1902, the regulations of 1894 would be no longer in abeyance and, the approval of the Administrator being necessary under those regulations and not having been obtained, the pegging could confer no rights upon the plaintiff Company. The decision of the High Court of Southern Rhodesia in The Bechuanaland Exploration Co., Ltd v The British South Africa Co. (1912 Rhod. Rep., 128) reversed.

Case Information

Appeal from a decision of the High Court of Southern Rhodesia (VINTCENT, J.), in an action wherein the respondent company was plaintiff and the appellant company defendant.

On the 21st December, 1893, the British South Africa Company issued to Edward Burnett "Letters of Registration," which were as follows:

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

On the 16th August, 1894, this document was ceded to Charles Stevens and endorsed on behalf of the B.S.A. Co, as follows:-

"This right is perpetual for purposes of pegging on the gold belt or elsewhere in the territory of the B.S.A. Company."

The plaintiff company's declaration, after setting out these facts in paragraphs 1 to 3, proceeded as follows:

4. On or about the 15th March, 1910, the said Letters of Registration with the said condition endorsed thereon were acquired by the plaintiff company by deed of

1913 AD p39

transfer duly registered, and 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 said territory.

5. Under and by virtue of the said Letters of Registration and the said condition endorsed thereon the plaintiff company, on or about the 25th June, 1910, pegged and located a certain piece of ground in extent 3,000 morgen, situate in the Bubi district, in the said territory, in the neighbourhood of the Lonely Mine, which land at that time was, and but for such pegging and locating as aforesaid still is, open and available for location and acquirement under the said Letters of Registration and the said condition endorsed thereon.

6. It is necessary in order that the plaintiff company may obtain full title of ownership to the said piece of land that the defendant company should cause same to be surveyed and issue title deeds thereof to the plaintiff company.

7. The defendant company has refused and still refuses to cause the said piece of land to be surveyed and/or to issue title deeds thereof to the plaintiff company.

8. By reason of the premises the plaintiff company is entitled to the said morgen of land.

9. The plaintiff company further contends that the defendant company is not entitled to refuse to grant title to such land contrary to the rights conferred on the plaintiff company under the contract contained in the said Letters of Registration and the said condition endorsed thereon, and which is binding on the defendant company, and that the plaintiff company is entitled to an order of this Honourable Court compelling the defendant company to allow the plaintiff company to exercise such rights.

10. Alternatively the plaintiff company claims £9,000 as damages for the defendant company's breach of contract as aforesaid in not granting title to the said piece of land.

11. Since the 25th June, 1910, mining timber and firewood have been cut on the said piece of land in respect of which the plaintiff company would have been entitled to royalties amounting to 24,000 if the defendant company had caused the said piece of land to be surveyed and title thereto issued to the plaintiff company as the plaintiff company contends should have been done.

Wherefore the plaintiff company claims: (1) A declaration of right that it is entitled to the said piece of land. (2) An order directing the defendant company to issue to the plaintiff company a title to the said piece of land in due and customary form, and to give the plaintiff company possession of the said land. (3) A fun, true and correct account and payment of all rents, royalty and other revenues derived by the defendant company from the said land since the 25th June, 1910, with interest thereon a tempore morae. (4) In respect of the damages sustained as set forth in paragraph 11 of the declaration payment of the sum of £4,000. (5) Cession to the plaintiff company of all leasehold and other rights granted by the defendant company in respect of the said land. (6) Alternatively payment of the sum of £9,000. (7) General relief; and (8) Costs of suit.

To this declaration the defendant company pleaded as follows: -

1. The defendants admit the allegations contained in paragraphs 1, 2, 3, 4, and 7 of the declaration.

2. They deny the allegations in paragraphs 5, 6, 8, and 11, and the contention and allegations set out in paragraph 9, and that the plaintiffs have suffered any damage.

1913 AD p40

3. The Letters of Registration attached to the declaration and the endorsement thereon do not allow of the selection of land which may prior to selection be reserved by the defendants, and they say that the land now claimed by the plaintiffs is and was not open and available for location under the said Letters of Registration.

4. The said land had been bona fide reserved by the defendants prior to the alleged selection of the said land by the plaintiffs.

5. The terms of such reservation comprise an area within three miles radius of the Lonely Mine, which area includes the land described in the declaration; and leases have been entered into between the defendants and others regarding portions of the said land dating inter alia from 1st October, 1907, and from the month of January, 1909.

6. The defendants further say that all pegging and locating of land belonging to them is subject to their approval, which approval has not been asked for by or granted to the plaintiffs.

Wherefore they pray that the plaintiffs' claim may be dismissed with costs.

The case came to trial on the 3rd July, 1912, and on the 15th July the Court gave judgment for the plaintiff company, ordering the defendant company (1) to issue title to the 3,000 morgen, or otherwise to pay the plaintiff company £2,000 as damages; (2) to pay the plaintiff company £3,000 as damages sustained in connection with royalties to which it would have been entitled for mining timber and firewood cut on the land since 25th June, 1910; (3) to render the...