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refers to the allocation of available sites, and not to the dedication of land for reserves under Section 81 of the Order in Council of 1898. It is clear that " assign in Section 18 (2) cannot refer to the same operation as is indicated by the same word in Section 81 of the Order in Council, for under Section 18 (2) a Native Commissioner may assign lands for huts, &c., on reserves; but reserves consist of lands already assigned under Section 81 of the Order in Council.

What is pointed to in Section 18 (2) of the Proclamation of 1910 is, therefore, subordinate allocation designed to avoid disputes. Consequently we do not think that Section 85 of the Order in Council has any reference to that which has been done by the Native Commisioner under Section 18 (2) of the Proclamation.

(c) The above considerations lead to the conclusion in this case also that Section 85 (1) of the Order in Council does not refer to removal from land (as distinguished from a kraal) which is occupied by natives outside the reserved area.

2. In our opinion Section 82 relates to all "settlements of natives" whether within a reserve or outside it. What amounts to a "settlement of natives" is pre- sumably understood by those who drafted and approved this Order in Council though it is difficult for us to give a definition. We think it would certainly include a settle- ment of natives in any kraal wherever situate; we do not think Section 82 is intended to be available in the case of a dispute as to the right of an individual native on non- reserved land to stay where he is.

JOHN SIMON.

Law Officers' Department,

13th March, 1914.

STANLEY O. BUCKMASTER.

R

42705

No. 171.

(SOUTH AFRICA: RHODESIA.)

COLONIAL OFFICE to LAW OFFICERS.

[Interpretation of Article 33 of the Charter of the British South Africa Company.]

GENTLEMEN,

Downing Street, 27 December, 1913.

I AM directed by Mr. Secretary Harcourt to inform you that he has had under his consideration a question connected with the interpretation of Clause 33 of the Charter of the British South Africa Company of the 29th October, 1889, a copy of which and of a supplementary charter subsequently granted is enclosed herewith, with a copy of an opinion on the subject given by the legal adviser to the High Commissioner for South Africa.

2. Under the clause the Crown reserves the right "at the end of 25 years and at the end of every succeeding period of 10 years to add to, alter

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or repeal any of the provisions of this Our Charter or to enact other provisions in substitution for, or in addition to, any of its existing provisions. Provided that the right and power thus reserved shall be exercised only in relation to so much of this Mr. Harcourt would Our Charter as relates to administrative and public matters."

be glad if you would take the terms of this Clause into your consideration and favour him with your opinion

1. Whether, if no change is made in the administrative and public provisions of the Charter in 1914, the power of the Crown to amend the Charter under this Clause becomes inoperative until the expiration of a further period of ten years:

2. Whether His Majesty has the power, if for any reason so advised, to provide, by an amendment of this Clause or otherwise, for a fresh revision of the administra- tive and public provisions of the Charter at the end of any period shorter than ten years.

I am, &c.,

HENRY LAMBERT.

.

9729

REPORT.

1. Clause 33 of the Charter reserves power to vary the provisions of the Charter, at stated intervals, so far as those provisions relate to administrative and public matters; beyond this there is no power reserved in the Charter to vary its terms at all. Consequently, if no change is made in the administrative and public provisions of the Charter at the end of twenty-five years from its date, no further opportunity for such change can arise until ten more years have passed.

2. No; there is no power in the Charter to shorten or vary the prescribed periods So far, therefore, as the terms of the at the end of which the opportunity arises. Charter are concerned our opinion is to the same effect as that already given by Mr. Feetham. There remains the question whether the Crown, apart from any powers expressly reserved in the Charter, can revoke or vary its terms; but we think it is clear, so long as there is no misuse or abuse of the Charter, that the Crown has no such inherent power.

If the Charter were misused or abused. the Charter would

be voidable, and might be cancelled as the result of appropriate proceedings (see The Eastern Archipelago Company v. The Queen, 2 Ellis and Blackburn, 856, per Baron Martin, at page 869). No such misconduct is here suggested, and therefore the Crown must either vary the administrative and public provisions of the Charter now, or wait for another ten years for its next opportunity.

JOHN SIMON.

STANLEY O. BUCKMASTER.

Law Officers' Department,

14th March, 1914.

(1267x-3) Wt. 124-872, 25, 5/14. D&8, G. 1.

PUBLIC RECORD OFFICE

C.O.8

Reference :-

.885

16 PUBLIC RECORD OFFICE, LONDON

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