CO885-(11-13) — Page 320

PUBLIC RECORD OFFICE

CO.

Reference:

885

12 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

Page 301,

a confden-

tial paper, African, No. 88.

That it would be observed that by the 12th section of that Ordinance power is given to the Land Court to reduce claims which embrace extents of land which such Courts may deem immoderate, unreasonable, or illegal, subject to the right of appeal provided by the Act.

That the appeal is to the High Court of the province, with an ultimate appeal to Her Majesty in Council.

That the judge of the aforesaid Land Court, acting under the power of the above- mentioned Ordinance, had been applied to on behalf of the Crown to reduce the claims of certain parties to lands upon the ground that the parties by whom they were pre- ferred, or their assigns, had taken possession of vast tracts of land, extending far beyoud the limits which would correspond with the strict letter of the Orange Free State Government's grants. But the Judge had refused to exercise his power of reducing such claims under the 12th section of the aforesaid Land Court Ordinance upon the ground that he was estopped from reducing such claims by the terms of the proclamation of Sir H. Barkly, Her Majesty's High Commissioner above quoted.

That the words of his judgment on that appear, from a newspaper report, to be, "As all these farms lie within territory over which the Orange Free State Government exercised de facto jurisdiction, and as I do not believe that the Free State Courts "would have interfered with them, in the absence of proof of fraud or error, neither of which has been shown here, I must rule against the contention of the Attorney- General, and give judgment in favour of the claimants."

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That in order to ascertain how far grants of land are deemed indefeasible by the Courts of the Orange Free State it is necessary to explain the system adopted with regard to land in that State. All titles, transfers, mortgages, or alienations of what- ever kind must, according to the Roman Dutch law (which is the law of the Orange Free State), be registered. No grant or alienation has any force or effect without registration. That in order to determine boundaries, with a view to the issue of title. the Orange Free State Government usually appoints a land commission, which consists for the most part of farmers largely interested in securing the greatest extent of land; and that on these commissions there is always an official member, but a surveyor is by no means necessarily attached thereto; that the result is a very rough method of estimating the areas of lands is resorted to. Generally the homestead is taken as a point de depart," whence a man rides slowly on horseback for half an hour each way towards the cardinal points, where he stops. A landmark or "beacon," as it is termed in this country, is set up, and parallel lines are drawn intersecting those beacons. That the thus enclosed is taken to represent 3,000 (three thousand) morgen, or rather

square more than 6,000 acres. An approximate calculation is made, the Land Commission records the extent to be granted to the Boer, and the official documents of title are prepared and registered accordingly. That this system opened the door to extensive frauds on the Government; and it generally happened that the extent of land actually taken exceeded the extent specified in the registered title at least three-fold. That there had, however, been cases in the Courts of the Orange Free State of successfully impugning grants where fraud or error could be shown; and copies of records of two such cases had been filed with the Land Courts of Griqualand West.

That in the Cape Colony, where a landowner takes possession of waste land beyond the true limita defined by his own title deeds, the usual practice is for the Government to order a survey, and give such landowner the right of pre-emption of the surplus land at an upset price. That, in the event of the landowner refusing to purchase, the land found to lie beyond the true boundaries is leased or sold by auction as Crown land, under the provisions of the Acts of the Cape Legislature, No. 19 of 1864 and No. 4 of 1867.

That the Attorney-General of Griqualand West had given notice of an appeal to the provisional High Court against this decision; but your Lordship wished to be advised as to whether he should ultimately direct an appeal to Her Majesty in Council in the event of the first appeal being given against the Crown.

Mr. Malcolm further stated that it was evident from the foregoing statement that great negligence in marking out the boundaries of grants prevailed under the Orange Free State Government, and that a great amount of fraud could easily be perpetrated; but for the purposes of the present case it must be assumed that the following facts could be proved:-

1st. That application was made for the grant of a farm of 3,000 morgen to the President of the Orange Free State, or that application was made to Major Warden for a certificate, which certificate, as it was understood and as it was intended, would give title to 3,000 morgen and no more.

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2. That a commission was duly issued for a survey, which was conducted in the usual negligent manner described above, and as a result not 3,000 morgen but 12,000 or 15,000 morgen are now claimed. That the land in dispute is of very great value.

That having regard to the foregoing circumstances, and especially to what had been pointed out with respect to the certificates of title granted by Major Warden, we were requested to inform your Lordship whether, in our opinion, the Land Court of Griqua- land West has power, under the 12th section of the Land Ordinance, to reduce claims to land the possession of which has been obtained in manner above stated, and whether we would advise an ultimate appeal to Her Majesty in Council in the event of the High Court of the Province upholding the ruling of the Land Court with regard to such appro- priations of the waste lands. Mr. Malcolm further said, that at the same time he was to call our attention to another point arising out of the same judgment. A missionary body called the Berlin Missionary Society purchased certain lands at a place called "Pniel" of the natives, and enregistered the purchase in manner above mentioned in the Orange Free State.

That these lande which they now claim form a very valuable tract of land, exceeding 60,000 English acres in extent along the south bank of the Vaal River, and include certain public" Diamond Diggins, commonly called River Diggins." That this land was originally obtained by the Society for missionary purposes, and especially for the education and advancement of the people resident upon it; but the Society produce a 'presidential grant" of the Orange Free State, which makes no mention of any restric- tions as to the objects for which the said land was granted.

That, in point of fact, there is a considerable location of the Korannas, a native tribe, on the said land.

That in the Cape Colony and in the province of Griqualand West it had been and is the practice in making grants of land to public bodies to annex a condition that the land granted should be used for certain specified objects, failing which it reverted to the Crown.

That under these circumstances a question arose whether it is competent for the Government of Griqualand West to annex conditions to the grant of land to the Berlin Missionary Society so as to secure the natives located on it from ejectment or molesta- tion, and to restrict the grant to purely evangelical objects, or whether the missionary body are to have the right of trafficking with the land so as to secure the large profits which its sale would certainly produce.

That the Attorney-General of Griqualand West had (as your Lordship believed) noted an appeal from the judgment of the Land Court, giving the Society the said land in absolute ownership (subject only to a trifling perpetual quit-rent).

That your Lordship requested our opinion whether an ultimate appeal should be made to Her Majesty in Council in the event of the High Court upholding the decision of the Land Court on that point.

In conclusion, Mr. Malcolm was pleased to request that the papers sent with the case might be returned with our answer.

In obedience to your Lordship's commands we have the honour to

Report

That we have perused the papers laid before us on the subject of two judgments of the Land Court of Griqualand West, regarding the title to a farm called Bultfontein, as also the lands of Pniel.

We are of opinion that, assuming (as seems to be implied in the papers, though not definitely stated) that Major Warden's certificate, on which the title to this farm is grounded, did name the extent as 3,000 morgen, the Judge of the Land Court was wrong in allowing or awarding title to a larger extent; and if his judgment be affirmed by the Recorder of the province, an appeal ought to be carried from such decision to Her Majesty in Council."

As to the lands of Pniel, we are of opinion that if, as seems doubtful, and as we have no express information to guide us, the original grant was a legal and valid grant of property absolutely and inheritable to the first grantee, and the boundaries of it dis- tinctly defined, then the judgment cannot be disputed, but this is a very unlikely case; and if the boundaries are not clearly defined, and no extent be mentioned in the grant, it cannot be made valid by the Land Court for a greater extent than 6,000 morgen, while if the grant be, as is most probable, in an informal shape formerly common in South Africa, "to the first grantee and his successors, missionaries for the time being, &c," we are of opinion that such a grant would not be a valid grant in absolute