CO885-(15-16) — Page 386

22937

No, 12.

(TRANSVAAL

SWAZILAND.)

L」 །M:「།།

PUBLIC RECORD OFFICE

61

Reference:--

C.O.8

.885

F

LAW OFFICERS to COLONIAL OFFICE.

[Expropriation of concessions in Swaziland: validity of provisions in s. 12 of Swaziland Proclamation No. 3 of 1904.]

SIR,

Royal Courts of Justice,

June 29, 1905.

WE were honoured with your commands, signified to us by Mr. Bertram Cox in his letter of the 13th instant, stating that he was directed by you to request the favour of our report upon a question which had arisen as to the validity of the provisions as to expropriation of concessions in Swaziland, contained in 'section 12 of Swaziland Proclamation No. 3 of 1904.

That under Article X. of the Convention between Great Britain and the South African Republic of the 10th December, 1894, it was laid down that exclusive rights of individuals or Corporations with regard to the imposition. of, or exemption from Customs duties on goods should be liable to expropriation on the payment of due compensation. That in the case of difference the amounts of such compensation was to be assessed by means of arbitration in a manner indicated in the last paragraph of Article X.

That by sections 11 and 12 of Swaziland Proclamation No. 3 of 1904, the opera- tion of certain concessions was suspended and power was given to the Governor to expropriate any such right at an amount not exceeding its value prior to the com- quencement of hostilities between Her late Majesty and the late Governments of The South African Republic and Orange Free State, such value, in the absence of agreement, to be determined by the Commission mentioned in section 11.

That it would be seen from the correspondence that one of the Companies holding concessions in Swaziland, the Mercantile Association of Swaziland, Limited, challenged the validity of the Proclamation in regard to its own case on the ground that the rights of the Government of the Transvaal were limited to the rights formerly possessed by the South African Republic, which were defined in the Convention of 1894, and that the provisions of sections 11 and 12 of the Pro- clamation were ultra vires so far as they conflicted with Article X. of that Convention.

That it was not disputed that the provisions of sections 11 and 12 of the Pro- clamation are not altogether consistent with Article X. of the Convention, but that you are anxious to learn whether, in our opinion, the companies' contention has any foundation in law.

*

That he was to enclose a copy of our opinion of 12th June, 1903, which explained the view taken by His Majesty's Government as to the legal position of Swaziland; that in accordance with that opinion an Order in Council was passed on the 25th June, 1903, providing for the government of Swaziland, under Clause V. of which the Governor of the Transvaal was authorised to provide by Proclamation generally for the peace, order and good government of Swaziland; that Proclama- tion No. 3 of 1904 was duly made under this clause and sanctioned by His Majesty: and that there would seem to be no doubt that the position of the concession holders was governed by it unless it could be held that the Treaty of 1894 could not be overridden by the Proclamation; that he was to request us to take his letter and the papers referred to into consideration and to report :--

(1) Whether sections 11 and 12 of Proclamation No. 3 of 1904 are intra vires of the Governor of the Transvaal?

(2) Whether Article X. of the Convention of 1894 was abrogated by the acquisition by conquest of the Transvaal, or whether it should be regarded as still subsisting?

(3) Whether, in the latter event. Article X. would be binding on the Courts of Swaziland, or whether it would require legislation in Swaziland to give its provisions the effect of municipal law?

No. 190 in Vol. VI.

25 Wc 2846 7/03 D & S

21904

16 PUBLIC RECORD OFFICE, LONDON

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