In order to preserve a true perspective the reader should realize that the President defended both these affairs and that the exposures took place while the recommendations of the Industrial Commission were being discussed in the Raad and fiercely combated by the President himself.
The matter of the Selati Railway was again brought into prominence in 1897. It is quite impossible as yet to get at all the facts, but it is very generally believed that a swindle of unusual dimensions and audacity remains to be exposed, and that a real exposure would unpleasantly involve some very prominent people. At any rate the facts which became public in 1898 would warrant that suspicion. The Selati Railway Company alleged that they had been unjustly deprived of their rights, and the Government admitting repudiation of contract took refuge in the plea that in making the contract they had acted ultra vires. It was, in fact, an exemplary case of 'thieves falling out' and when the case got into the law courts a point of real interest to the public came out; for the Company's lawyers filed their pleadings! The following account of the case is taken from the newspapers of the time. The plea of the Selati Railway Company states that—
the Government was very desirous that the railways should be built, and that for the purpose the business should be taken in hand by influential capitalists, and that, having full knowledge of the sums asked for by the original concessionaires they insisted upon the said capitalists coming to an agreement with the concessionaires and paying them the amounts asked; that it was thus understood between the said capitalists and the Government of the South African Republic that the sum named in the concession as the price to be paid to the concessionaires for the formation of the Company was wholly insufficient under the altered conditions, and that further sums had to be expended to cover not only the increased amount demanded by the original concessionaires, but also other sums of money which were asked by and paid to different members of the Executive Council and Volksraad of the South African Republic and their relatives and friends as the price for granting the concession.
The matter came before the High Court, and several of the exceptions put forward on behalf of the Government were sustained. Regarding the accusation mentioned, Mr. Advocate Esselen, who was counsel for the State, excepted that names and particulars should be inserted, and also that the State was not bound by the action of the Government or Executive. He quoted the Volksraad resolution or besluit upon which the concession was granted, showing that £10,000 was mentioned as the sum to be received by the concessionaires, and then proceeded:—
'Now, I say that the Government could not contract with the Company at a higher figure than is above set forth. The measure of authority granted to the Government is set forth in the Volksraad besluit which I have read, and the Government could not exceed its authority. Second, the defendant Company makes allegations which are tantamount to fraudulent dealing on the part of the agents of the State. But it will be said that it is the State which sues, and that it cannot be heard to avail itself of the wrongful acts of its agents. In this matter, however, it is the State Secretary who sues on behalf of the State. The State is not bound in any event by the acts of individual members of the Government. It was the Government which was entrusted with a power of attorney on behalf of the State.'
This doctrine, so fatal to concessionaires and their methods, led to the following interesting colloquy:—
Mr. Justice JORISSEN: Do you persist in this exception, Mr. Esselen?
Mr. ESSELEN: Certainly I do.
Mr. Justice JORISSEN: You have been very fortunate in succeeding on two exceptions. Without pressing you in the least, I am inclined to suggest that you withdraw this exception.
Mr. ESSELEN: I cannot possibly withdraw it, but I am willing to allow it to stand as a special plea and to argue it at a later stage.