12369.
PUBLIC RECORD OFFICE
C.O. 885
Reference :-
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
SIR,
No. 109.
(SOUTH AFRICA.)
LAW OFFICERS to COLONIAL OFFICE.
Royal Courts of Justice, June 10, 1896. We were honoured with your commands signified to us in Mr. Bramston's letter of the 25th May, stating that you had directed him to invite our consideration of various questions connected with the relative positions of Earl Grey, the Adminis- trator, and of Mr. Rhodes, in the territories administered by the British South Africa Company, under the Matabeleland Order in Council 1894, and that for our assistance there were forwarded copies of the enclosed instruments:-
1. The Company's Charter, 29th October 1889.
2. Power of Attorney to Mr. Rhodes, 14th May 1890.
3. The Company's Deed of Settlement, 3rd February 1891.
4. Agreement with the Company, 23rd May 1894.
5. Matabeleland Order in Council, 18th July 1894.
6. Directors' Report 1895.
South
That by Article 6 of the Charter, the Company's principal representative Africa should always be a natural born British subject. That Mr. Rhodes, who was such a subject, had from the commencement of the Company's business been their principal representative in South Africa under the title of managing director. That he was named in Article 29 of the Charter as one of the first directors, and although it was not known by what form of appointment, if any, he became managing director, he was so styled in the successive reports of the Company, and the Report of 1895 was sent to show this.
That it appeared that no formal appointment of Mr. Rhodes as managing director had since 1891 been made under Article 85 of the Deed of Settlement, nor had he been annually re-elected as a director under Article 82 of the Deed; that this latter however would be unnecessary (Article 85 (2)) provided he were a duly constituted managing director. That you understood that, in fact, neither before nor since 1891 had he been expressly nominated as a managing director, and it was therefore a question whether the fact of Mr. Rhodes being held out by the Board in their annual reports as managing director, and being in other ways dealt with by them as their managing director, was sufficient evidence of appointment without a specific and formal resolution of the Board under Article 85. That the question was one which you thought right to bring to our notice, as well as the further question whether, if he was not legally managing director, he was still an ordinary director of the Company.
That the Power of Attorney to Mr. Rhodes, being of earlier date than the Deed of Settlement, would appear to have been granted for convenience in managing the affairs of the Company, but it might be questioned whether under the general law of Companies it was competent to a board of directors to delegate in that way the whole of its powers (except the use of the corporate seal) to an individual director. That it would be seen from the Deed of Settlement, which Deed, Mr. Bramston was to observe, was approved by the Secretary of State, the Law Officers, and the Privy Council, that such delegation in favour of a managing director was provided for in Article 87, while Article 96 provided for the like delegation, if made by Power of Attorney, in favour of any person not necessarily a director.
That upon this state of facts three questions arose: first, was the Power of Attorney invalid as being in excess of the powers of the Board of Directors? secondly, if the power apart from the Deed of Settlement was invalid, might (a) the continuous use of it by Mr. Rhodes since the date of the Deed, or (b) his continuous acting as managing director, with or without the appearance of his name in the annual reports, be accepted as sufficient evidence of a delegation of powers to him as managing director under Article 87 of the Deed? thirdly, might the Power, which was of earlier date than the Deed, be regarded as having been set up subsequently by user so as to constitute a sufficient delegation of powers under either Article 87 or Article 96 of the Deed?
That by Clausos 2 and 8 of the Agreement between Her Majesty's Government and the Company of May 23rd 1894, it was agreed that the administration of the Government of the territories should be conducted by the Company in accordance with its charter and under an Administrator and a council-and that the Administrator, as representative of the Company, should administer the Government, taking the advice of
0 90336. --20. 25,-6/96.