This view obviously implied that an enemy character was impressed upon persons resident in the Transvaal not by nationality but merely by domicile.  England’s proclamation had in fact forbidden trade with the enemy or with those resident upon enemy territory.  In other words, those residing in hostile territory were regarded as enemies when there was a question of trading with the enemy.  The same principle was applied when there was a question of property in goods which were on their way to the enemy’s territory, a view which would seem reasonable since even the de facto Government of a hostile region could possess itself of goods which had been allowed to enter its territory.

With regard to the question of condemning the ship the Chief Justice held that there was not sufficient evidence to warrant confiscation.  He cited the case of the Hook,[17] which was condemned in 1801, but held that the case of the Mashona was not on all fours with the conditions of that decision.  He took the view that the case of the Mashona was more nearly analogous to the cases of the Minna and the Mercurius,[18] and consequently declared for the restoration of the ship.

[Footnote 17:  I.C.  Rob., p. 200; Moore, Digest of Int.  Law, Vol.  VII, p. 534.]

[Footnote 18:  The Minna (Edwards 55, n.; Roscoe, English Prize Cases (1905), p. 17, note) was restored by Sir William Scott in 1807 on the ground that her voyage was contingent not continuous.  The ship had been captured on a voyage from Bordeaux, destined ultimately to Bremen, but with orders to touch at a British port and to resume her voyage if permitted.  The Mercurius (Edwards 53; Roscoe English Prize Cases (1905), p. 15) was restored by the same judge in 1808 on the ground of an “honest intention” to procure a license before trading with the enemy.]

One justice concurred on the main point at issue, namely, that there appeared to be “sufficient proof in the present case of an honest intention to pass a bond at Algoa Bay not to take the goods to Delagoa Bay except with the permission of the proper authorities....  The presumption of an intention of trading with the enemy, arising from the fact that the ship was carrying enemy’s goods consigned to Delagoa Bay and destined for the enemy’s country, is entirely rebutted by the conduct of all the parties interested in the ship.  The claim for the restitution of the ship must consequently be allowed."[19]

[Footnote 19:  Decision at Cape Town, March 13, 1900, Chief Justice, Mr. Justice Buchanan concurring.]