Whittaker vs Durban Corporation.

Viscount Haldane, J.

This is a dispute about South African Acts relating to the power of the Lieutenant-Governor to define boundaries, and to alter them from time to time. It may be that there is a real constitutional question of the type which should come here, but it is primarily very much a local question. The effect of the Confederation was to say that South Africa is to dispose of its own appeals One cannot read Section 106 of the South Africa Act, 1909 (9 Edw. 7. c. 9), without seeing that the intention was to get rid of appeals to the King in Council, except such as, in the strict exercise of the prerogative, His Majesty should say that he would allow on some important ground. Even then Parliament has power to limit these appeals from South Africa. No doubt the prerogative is not wholly swept away, but it is obviously intended that it should be exercised in a very much restricted sense. As His Majesty has assented to this Imperial Act, we must bear that in view. In the case of Canada it has been held that the words of the Act did not touch the discretion, but in the South Africa Act of 1909, there is express power given to Parliament to limit the prerogative. That shows an intention that the matter should be looked at from a South African point of view. I am only looking at Section 106. Their Lordships have taken into consideration the character of the question which is raised here under this Act, and however important it may be, it is essentially a local South African question. They have also taken into consideration the provision in Section 106 of the Imperial South Africa Act, 1909, and their view is that it is not a question in which the discretion which remains ought to be exercised consistently with the intention which the section shows. They will therefore advise His Majesty that the petition for leave to appeal should be dismissed with costs.

Petition for leave to appeal dismissed.