PUBLIC RECORD OFFICE
Reference :-
TPIEC.O.
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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15 PUBLIC RECORD OFFICE, LONDON
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would have been in if the annexation of the Transvaal had not taken place, it is obvious that in the interests of the bondholders no opportunity should be lost of making the funds referred to in my letter of the 20th October, 1902, available to meet their claims.
I am further directed to inform you that if there be difficulties in the way of the bondholders themselves instituting proceedings with this object, it might be possible to obtain the consent of the Lords Commissioners of His Majesty's Treasury to such proceedings being instituted in the name and on behalf of the bondholders at the cost of His Majesty's Government. In that case the proceedings would have to be instituted either through the Treasury Solicitor or under his control and supervision. If this suggestion meets with the approval of your Committee, you will please communicate with the Treasury Solicitor on the subject.
I am, &c.,
The Secretary to the Committee of Bondholders,
Northern Railway of the South African Republic.
18th February, 1903.
I have settled and approved the above draft
R. J. PARKER.
Selati Railway—Opinion.
With regard to Mr. Oyens' letter of the 3rd February, 1903, we understand that it is desirable that his offer to continue as trustee in the interest of His Majesty's Government should be accepted, and we see no objection to this course. It will be unnecessary to deal at present with the claim to costs and honorarium put forward in case his services are dispensed with, but the acceptance of his offer will involve the tacit recognition of his claim.
18th February, 1903.
SIR,
Draft Proposed Letter.
R. B. FINLAY. EDWARD CARSON.
R. J. PARKER.
In reference to your letter of the 3rd February, 1903, I am directed by to thank you for your letter and to inform you that His Majesty's Government will avail themselves of your services as their trustee of the funds now representing the monies subscribed by the bondholders of the Northern Railway of the Transvaal (called the Selati Railway).
A. D. de Marez Oyens, Esq.
I am, &c.,
I have settled and approved the above draft.
R. J. PARKER.
18th February, 1903.
7303
SIR,
No. 180.
(CENTRAL SOUTH AFRICAN Railways.). LAW OFFICERS to COLONIAL OFFICE. [Pretoria-Pietersburg Railway: Liabilities of His Majesty's Government.]
Royal Courts of Justice, February 24, 1903. We were honoured with your commands signified to us by Mr. Bertram Cox in his letter of the 26th January last stating that, with reference to our Report of the 6th of June last and to previous Reports, he was directed to transmit to us a copy of a despatch from Lord Milner, dated the 29th of December last, enclosing an opinion of the acting Attorney-General upon the question whether the present Govern- ment of the Transvaal was liable to refund to the Pretoria-Pietersburg Railway Com pany the sum awarded to the Contractor, Mr. Wright, in an arbitration between that gentleman and the Company.
That he was to transmit to us the notes of the evidence taken at that arbitration and to request us to consider whether under the circumstances the present Govern- ment of the Transvaal would have a good defence in any proceedings taken against it by the Company for the payment to them of the sum awarded to the Contractor, and also what course that Government should adopt having regard to all the cir cumstances of the case.
That it would be observed that the Attorney-General was clearly of opinion that the acts of the Transvaal officials, assuming it to be proved that they maliciously misused their powers under the Concession, amounted to torts and not breaches of Contract, and that the late Transvaal Government was not, nor was the present Government, under any liability in respect to them. That it was doubted, however. whether a perusal of the evidence taken before the arbitrators was sufficient to show whether the Resident Engineer appointed by the Company assisted the Transvaa Government officials in their designs to injure the Contractor, but that it must be borne in mind that your Department had not been furnished with the evidence taken by the Commission of the Volksraad which according to the statement of Mr. Secretan, the Chairman of the Company, was appointed to enquire into the delays of which the Contractor complained. That it was possible that this evidence might furnish better proof of collusion between the Company's officials and the Transvaal officials. than that contained in the evidence which was now possessed by your Department.
That in our Report of the 6th of June last* we expressed the opinion that the question raised as to the indemnity was not within the terms of Article 49 of the Concession, and that it therefore became necessary to consider if the Transvaal Government had a good defence to the claim put forward' by the Company whether that claim should be arbitrated or whether any proceedings by the Company to enforce arbitration should be resisted on the ground of their claim not being a matter for arbitration under Article 49 of the Concession. That His Majesty's Government had consistently refused to recognise claims of this nature made against them as successors of the late Transvaal Government and that it would perhaps be preferable should the Company succeed in any proceedings that these proceedings should have been taken before an Arbitrator rather than before the High Court of the Transvaal. inasmuch as a decision of a Court of Justice that the Government were bound t indemnify the Company in respect of the Contractor's claim might prove a very unfortunate precedent, while that of an Arbitrator could not be cited as having such high authority.
That he was to request us to take these matters into our consideration and report:-
(1.) Whether having regard to the further information now put before us we are able to say whether the claim put forward by the Company is in respect of a contract or of a tort?
(2.) Whether the Transvaal Government would have a good defence to any proceedings taken by the Company?
and
(3.) What should be the nature of the defence put forward by the Government,
(4.) In particular whether the Government should resist arbitration or waive the point that the claim does not come within the terms of Article 49 of the Concession?
(5.) Generally what course should be adopted by the Transvaal Government. We have taken the matter into our consideration, and, in obedience to your commands, have the honour to
• No. 154.
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