Union Government v Tonkin

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, CG Maasdorp JA, Juta AJA and AFS Maasdorp Acting AJA
• Judgment Date: 02 December 1918
• Citation: 1918 AD 533
• Hearing Date: 21 November 1918
• Court: Appellate Division

Innes, C.J.:

The point at issue in this dispute is whether the claim of the Government is barred by sec. 8 of the Prescription Amendment Act, 1908 (Transvaal). Under a proclamation issued by the authorized representative of the Crown, the general law of the Transvaal is Roman-Dutch law (Proclamation 14 of 1902, sec. 17); and that being so, it is clear that prescription will run against the Crown in respect of property freely alienable, Union Government v Whittaker (1916 AD 194). The right which the Government seeks to enforce is a right of property. It is embodied in a document which upon the face of it is a mere acknowledgment of debt, and as such may be freely ceded; there was no suggestion during the argument that it was anything else. Under these circumstances, having regard to the date and terms of the document, it is clear that the Government is barred if sec. 8 binds the Crown. Whether it does, or not, is the question to be decided. The King's prerogative, save where duly modified, is the same in every part of the Empire; and the position of the Crown under a statute to which the Crown was a party must be

Innes, C.J.

interpreted according to English principles of construction. So that we must have regard to the rule which in English law governs the interpretation of statutory provisions in their relation to the Crown. It is laid down in Bacon's Abr. Prerogative (E) 5 that "where an Act of Parliament is made for the public good, the advancement of religion and justice and to prevent injury and wrong, the King shall be bound by such Act though not named. But where a statute is general, and thereby any prerogative right, title or interest is divested or taken from the King, in such case the King will not be bound, unless the statute is made by express terms to extend to him." The rule thus stated is borne out by the principles laid down in the Magdalen College case (77 Eng. Rep. 1235), the judgment in which shows that where no prerogative right is affected, the Crown may be properly held bound by general words, on grounds based entirely upon a consideration of the subject matter of the statute itself. It was suggested by counsel in Mayor of Weymouth v Nugent (122 Eng. Rep. at 1108), that the maxim that the Crown is not bound by any statute unless expressly named, was adopted when Acts of Parliament were framed in a short form and construed by intendment; and that the rule of construction became unnecessary when there was a redundancy of enactment. However that may be, we find in the later decisions the wider principle recognized that the Crown might be brought within the general words of a statute by implication alone if sufficiently clear. The enlarged rule is stated by different Judges in different ways. It was thus expressed by Lord Watson in Coomber v Justices of Berks (9 A.C. 76):- "The exemption of the Crown from the incidence of rating statutes is a general privilege, and is nowise dependent upon the local or imperial character of the rate. It takes effect in all cases when the Crown is not named in the statute, or I should prefer to say, in all cases where the enactments do not take away the privilege either in express terms, or by plain and necessary implication." A very narrow meaning of it "necessary implication" was suggested by DAY, J., in Gorton Local Board v Prison Commissioners (1904, 2 K.B at 167); he thought it should be confined to cases where otherwise the legislation would be unmeaning. But these narrow limits have not been generally approved. LINDLEY, L.J., took a much more...