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PUBLIC RECORD OFFICE
Reference :-
TILLLC.O.885
ווויייוווד
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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natives in Matabeleland and by the Matabeleland Cattle Proprietary Regulations, 1895, the said areas were declared to be reserved for the occupation of natives.
In the same year the Land Commission was dissolved in accordance with Article 48 of the said Order. The said Order was revoked by Article 91 of the Southern Rhodesia Order in Council, 1898, the relevant articles of which have already been referred to.
By section 18 of the High Commissioner's Proclamation No. 55 of 1910 it was provided as follows:-
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'(1) No native shall remove from one district to another without the consent of the Native Commissioners of the district concerned.
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(2) Subject to the approval of the Administrator-in-Council a Native Commissioner may assign lands for huts, gardens and grazing grounds for cach kraal on vacant land or reserves in his district, and prohibit the erection of new huts or the cultivation of new gardens where such erection or cultiva- tion
may for good reasons appear to him undesirable.
· (3) Any native removing from one district to another without the above- mentioned consent or wilfully disregarding any order given under sub-section (2) of this section shall be guilty of an offence and liable to the penalties pre- scribed by section fifty of this Proclamation.
(4) Nothing in this section contained shall affect the provisions of sec- tion eighty-two of the Southern Rhodesia Order in Council, 1898, and it shall be the duty of a Native Commissioner to report to the Administrator all cases in which any action has been taken under the provisions of this section." Your attention is also drawn to the definitions comprised in section 2, sub- sections (5), (6) and (7), of the said Proclamation.
Similar provisions had been contained in the Native Regulations of 1902 and 1908, of which copies are annexed. The two areas of land reserved by the Land Com- mission, as stated above, and certain other areas set apart in accordance with section 81 of the Order in Council of 1898 are known and hereinafter referred to as reserves." Natives are now settled on the reserves and are also in occupation of lands held by European grantees under grants from the Company and of lands other- wise unoccupied and not yet granted by the Company to any person.
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The Company do not dispute that natives can only be removed from the reserves in accordance with the procedure laid down in Article 85 (1) of the Order in Council of 1898.
The Company contend, however, that the provisions of Articles 82 and 85 (1) refer only to natives settled on reserves and not to natives settled on lands assigned to them by a Native Commissioner under section 18 (2) of Proclamation No. 55 of 1910, or on or in kraals on any other lands.
Copies of opinions upon this question by Mr. Tredgold, Attorney-General of Southern Rhodesia, and Mr. Feetham, Legal Adviser to the High Commissioner, are enclosed for your consideration.
Against the Company's contention it may be argued that Articles 82 and 85 of the Order in Council of 1898 are general in terms; that, in contrast to Article 81, Article 85 (1) refers to natives generally and not to tribes or portions of tribes, and to lands assigned to natives for occupation, not to lands assigned to them for occupa- tion as tribes or portions of tribes; that Article 85 (2) penalizes any person who with- out the necessary order removes or attempts to remove any native from any kraal or from land, without limitation; and that it would appear from these considerations that all settlements of natives on any lands within Southern Rhodesia occupied by them are within the provisions of Articles 82 and 85.
This view appears to have been accepted at the time when the Native Regula- tions finally issued in November, 1898 (immediately after the issue of the Order in Council of 1898) were under consideration, as appears from the following facts :- In 1897 a draft of the Native Regulations, which in their present form are now contained in Proclamation No. 55 of 1910, was submitted by the Company to the High Commissioner, and contained the following section:-
"Subject to the concurrence of the High Commissioner, the Adminis- *trator-in-Council may, when deemed expedient in the public interests, remove any tribe or tribes or any portion thereof or any natives from any part of the territory to any other part thereof, upon such terms and conditions as he may determine."
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This section was struck out by the High Commissioner on the ground that it was in conflict with Article 52 of the Matabeleland Order in Council, 1894, which was then in force:
Sir W. H. Milton, then acting as the Company's Administrator, in replying to the High Commissioner's despatch in which his reasons for striking out the said section were explained, said:-
"Clause 5. The Administrator fully recognizes that the terms of this clause might be considered to be at variance with the provisions of the Order in Council of 1894, but, as was explained in the Memorandum which origin- ally accompanied the regulations, it was thought that by making the removal subject to the concurrence of the High Commissioner the power to refer to the Judge would lie with your Excellency, and that the Secretary of State might see his way under the Order in Council to leave the discretion in your hands to deal with the matter."
Should you, however, be of the opinion that the reference to land assigned to natives for occupation in Article 85 (1) must be construed as referring only to lands from any "between the assigned under Article 81, the repetition of the words
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words "krual or" and "land" in Article 85 (1) appears to show that the reference to`kraals must be construed without any limitation.
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I am to request you to take into your consideration the circumstances above set forth and the documents enclosed in this letter and to favour Mr. Harcourt with your opinion
(1) Whether in the case of natives not living upon reserves it is competent for the Administration to remove them—
(a) from any kraal;
(b) from any land assigned to them by a Native Commissioner under Section
18 (2) of the High Commissioner's Proclamation No. 55 of 1910; or (c) from any other land in their actual occupation, except in accordance with the procedure laid down in Section 85 (1) of the Southern Rhodesia Order in Council, 1898.
(2) Whether, in the case of natives not living upon reserves, questions relating to their settlement on any kraal, or on any such land as is described under (1) (b) and (c) above, must be governed by the provisions of Section 82 of the Southern Rhodesia Order in Council, 1898.
I'am, &c.,
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REPORT.
H. W. JUST.
1. (a) It is very difficult for us, with our limited knowledge of local conditions, to construe these documents with any confidence, more particularly as we do not know whether the word "kraal," when not explicitly defined, should be understood to be limited to a collection of native huts under a kraal head, or whether-in its natural meaning-it would include a single hut without any other native dwellings near it. We observe that "kraal " is defined in the Proclamations of 1902 and 1910 to include individual dwellings occupied by natives on mission stations or private lands; but no such definition occurs in the Proclamation of 1898 nor in the Order in Council of that year.
It seems fairly clear that when Section 85 (1) of the Order in Council prohibits the removal of natives "from any land assigned to them for occupation the land referred to is land assigned under Section 81; the areas so reserves." On the other hand, there is assigned we understand to be known as
from any kraal” in much force in Mr. Feetham's observation that if removal Section 85 (1) was limited to removal from a kraal in a reserve, there would have "from" before the words "any land." been no occasion to repeat the preposition Further, if all that had been intended was to prohibit removal of natives from a kraal inside a reserve, it would surely have been quite sufficient to have said that no natives should have been removed" from any land assigned," &c. We, therefore, conclude extends to that the prohibition against the removal of natives" from any kraal "kraals" wherever situate.
(b) We agree with Mr. Tredgold's view that the assignment of land by a Native Commissioner, which is provided for in Section 18 (2) of the Proclamation of 1910,