CO885-(15-16) — Page 584

4280

PUBLIC RECORD OFFICE

C.O.885

Reference :-

No. 129.

(NATAL: SOUTH AFRICA.)

LAW OFFICERS to COLONIAL OFFICE.

[Natal Native Trust. Whether Section 147 of the South Africa Act made sufficient provision for the succession to the Trust of the Governor-General in Council.]

Royal Courts of Justice, MY LORD,

11th February, 1910. WE were honoured with your Lordship's commands, signified to us in Sir Francis Hopwood's letter of the 31st January last, stating that he was directed by your Lordship to transmit to us a copy of a telegram from the Governor of Natal, from which it appeared that Ministers were advised that Section 147 of the South Africa Act (which would come into operation on the 31st May next) failed to make provision for the Governor-General and Ministers of the Union taking the place of the Natal Native Trust.

That that Trust was constituted by Letters Patent of the 27th April, 1864, and was a Board consisting of the Officer Administering the Government of the Colony and the members for the time being of the Executive Council, and such other persons as might be from time to time appointed. That no such appointments had, it was believed, ever been made, and that the Board consisted only of the Officer Adminis- tering the Government and members of the Executive Council. That the purpose of the Board was to hold and dispose of land for the benefit of the natives.

That Ministers suggested the issue of further Letters Patent, but your Lord- . ship apprehended that it would not be possible by Letters Patent to create a new Board and to transfer the property of the old Board to them, as that would be in effect legislating in a Colony where representative institutions had been set up (see Lord Mansfield's judgment in Campbell v. Hall), and that if the view of Ministers that Section 147 was inadequate was really correct, the proper way to proceed would appear to be by an Act of the Natal Parliament.

That Sir Francis Hopwood was to request us to be good enough to advise your Lordship whether, in our opinion,

(1) Section 147 of the Act made sufficient provision for the succession to the

Trust of the Governor-General in Council?

(2) If not, whether the defect could be remedied by-

(a) the issue of fresh Letters Patent?

(b) in what other manner?

We have taken the matter into our consideration and, in obedience to your Lordship's commands, have the honour to

Report

(1) That, in our opinion, Section 147 of the South Africa Act of 1909 does not make sufficient provision for the succession of the Governor-General in Council to the Natal Native Trust.

There is no provision in that section which vests the land now belonging to the Trust in the Governor-General in Council. The only lands under that section which are vested in the Governor-General are lands vested in the Governor and Executive Council of a Colony for the purpose of reserves for native locations. These are not such lands.

(2)-(a) The defect can be remedied by the issue of fresh Letters Patent. The adoption of this course would not be, a legislative act like that referred to in Campbell v. Hall (20 State Trials 239) but an act done under the Royal Prerogative expressly reserved to the Crown by the Letters Patent of 1864.

(b) The defect could also be remedied by an Act of the Imperial Parliament.

We have, &c.,

The Right Honourable

The Earl of Crewe, K.G.,

&C..

&c.,

&c.

(16652-2) Wt. 96-332. 25. 3/10., D & S.

W. S. ROBSON.

S. T. EVANS.

16 PUBLIC RECORD OFFICE, LONDON

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