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Colonial Cases

Webb v. Giddy, 1878

[diamond mining]

Webb v. Giddy
Giddy v. Webb

Judicial Committee of the Privy Council
20 June 1878
Source: The Times, 21 June, 1878

(Present - Sir James Colville, Sir Barnes Peacock, Sir Montague Smith, and Sir Robert Collier.)
  These were important cross appeals from a judgment of the High Court of Griqualand West, in South Africa, of the 10th of August, 1876.
  Sir Henry James, Q.C., Mr. Benjamin, Q.C., Mr. Arthur Cohen, Q.C., and Mr. Romer were counsel for the appellant, Webb; Sir James Stephen, Q.C., and Mr. J. Beaumont for the other side.
  The suit was brought, on the part of the London and South African Exploration Company (Limited), by Mr. Webb, their agent, against Mr. Giddy, the Civil Commissioner for the district of Kimberley, in the Province of Griqualand West, to recover certain licence moneys, royalties, and rents claimed by them in respect of mining operations worked by diggers for diamonds at the Du Toit's Pan Diggings, of which the company asserted themselves to be the absolute owners. The Commissioner, on behalf of the Government, contested that alleged right. Both parties had appealed from the judgment of the Court below, and the main question was as to the title of the company to the diggings, which include certain diamond fields and diamond-bearing lands, and whether the title was to the absolute property, free from any qualification or reservation affecting the right to the diamonds found, or whether it was not merely  what is called an emphytentical tenure, leaving the soil vested in the Crown, and whether the Crown was not entitled to the diamonds therein. These were the principal questions.
  For the company it was, among other things, contended that they were entitled to the diggings, which, as they urged, were not subject to any reservation of precious stones and minerals; that their right in that respect was recognized by the Legislature of the Orange River Free State and confirmed by the existing law of Griqualand West; and that they were privileged to fix the rate of licence moneys, rents, and royalties in respect of the property. On the other hand, it was argued that the company were not the owners of the digging by a title not subject to any reservation of precious stones and minerals, and that the Civil Commissioner was not liable to account to the company for the moneys collected by him in respect of digging licences.
  At the conclusion of the arguments, which lasted the greater part of three days, their Lordships intimated that they would take time to consider their judgment.

Source: The Times, 13 July, 1878

  Their Lordships, who had reserved judgment, now delivered it, holding that the grant in question was not of such a nature as enabled the Crown to claim the property in the minerals, and that the plaintiff was, therefore, entitled to maintain his action and to recover the licence moneys. Their Lordships did not feel themselves justified in acceding to the contention of the plaintiffs that they were entitled to raise the amount of licence money from 10s. 6d. to 50s. per month. The question was not properly before them, and must remain open for decision. Their Lordships would humbly advise Her Majesty to affirm the judgment appealed from, and both appeals being dismissed, there would be no order as to costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School