Insurance, litigation and the Anglo-Boer War: Part 1
As we mark the 126th anniversary of the Battle of Spion Kop, Donald Dinnie, Director at Norton Rose Fulbright South Africa Inc. examines the insurance disputes that arose during the Anglo-Boer War.
Focusing on the seizure of gold in 1899, this article explores the legal challenges that shaped early 20th-century insurance law, particularly around the timing of war and the status of enemy property.
The 24th of January 2026 marks the 126th anniversary of the Battle of Spion Kop, which took place over the 24th and 25th of January 1900.
The Battle of Spion Kop: a turning point
The battle, ultimately won by the Boer forces, is one of the early reverses suffered by the British forces in the South African War (previously known as the Boer War, the Second Boer War, the Anglo Boer War, or the Second War of Independence), fought from 11 October 1899 to 31 May 1902 between Great Britain and the then two Boer republics, the South African Republic and the Orange Free State.
It was the largest and most costly war in which the British engaged between the Napoleonic Wars and World War I. Because of the very high level of casualties and deaths, the area on The Kop later became known as the “Murderous Acre.”
The fighting and heavy casualties led to the naming of “The Kop” stand at Liverpool’s Anfield Stadium, honouring Merseyside soldiers who died there. Survivors named the new steep embankment behind Anfield’s goal “Spion Kop” to honour fallen comrades.
The Battle of Spion Kop is notable for the presence, of three remarkable statespersons:
Winston Churchill in his dual role as Morning Post correspondent and Lieutenant in the South African Light Horse. He was back at the front after his escape from imprisonment in Pretoria. Ironically, Churchill had been captured by General Louis Botha at the ambush of an armoured train in which Churchill was travelling on 15 November 1899.
General Louis Botha was leading the Boer forces and later became the first Prime Minister of the Union of South Africa, while Mahatma Gandhi led the Indian Ambulance Corps, serving as a stretcher bearer to aid wounded British soldiers (if not on the hill, at least in its vicinity). Gandhi spent 22 years of his life in South Africa.
Also actively engaged in the battle was a very young Deneys Reitz, the founder of what was at one time the eponymous attorneys’ firm, Deneys Reitz Inc., currently Norton Rose Fulbright South Africa Inc., a firm which, in its various iterations, is now over 100 years old.
Wartime leadership: Churchill, Botha, Gandhi, and Reitz
Deneys Reitz recounts his experiences at Spion Kop and the bloody nature of the battle in his book Commando:
“Dead and dying men lay all along the way, and there was proof that the Pretoria men had gone by, for I soon came on the body of John Malherbe, our Corporal’s brother, with a bullet between his eyes. A few paces further lay two more dead men of our commando. Further still I found my tent-mate, poor Robert Reinecke, shot through the head, and not far off lay L de Villiers, of our corporalship, dead. Yet higher up was Krige, another of Isaac’s men, with a bullet through both lungs, still alive, and beyond him Walter de Vos, of my tent, shot through the chest, but smiling cheerfully as we passed. Apart from the Pretoria men, there were many other dead and wounded, mostly Carolina burghers from the eastern Transvaal, who formed the bulk of the assaulting column. Spion Kop, although steep, is not very high on the northern slope where we went up, and it did not take us long to reach the top. Here we found that the advance had got no further than the fringe of loose rocks that runs like a girdle around the upper table-land, for the rest of the flat stretch beyond was still wholly in the hands of the British, who lay in a shallow trench behind a long, low wall of stone about twenty yards away. From here came a vicious rifle-fire that made further progress impossible. It was marvellous that the Boers had got even thus far, for they had swarmed up the bare hillside in the face of a devastating fire, and they had pushed home the attack with such vigour that the narrow belt of rocks was thickly strewn with their dead.”
As with all wars, the South African War resulted in litigation, particularly insurance litigation, some of which is dealt with by JP Van Niekerk in “A brief description of some Anglo-Boer War insurance cases”, 31 de jure 93 (1998). Fittingly, bearing in mind that one of the causes of the war was the British thirst for Transvaal gold, most of those judgments deal with gold bullion and mining.
Early insurance disputes amidst the war
The Driefontein Consolidated cases (Driefontein Consolidated Gold Mines Limited v Janson [1900] 2 QB 339, Driefontein Consolidated Gold Mines Limited v Janson [1901] 2 KB 419 (CA), and Janson v Driefontein Consolidated Mines Limited [1902] AC 484 (HL)) dealt with an insurance dispute regarding the loss of insured gold seized by the Transvaal Government on 2 October 1899, before the war commenced.
The key issue was the validity of the insurance, with the insurers arguing that the rule of public policy recognised in English law, that insurance by English underwriters of an alien enemy’s property against British capture, was illegal and invalid.
The rule is a corollary of the principle that trade and contracts concluded with an enemy alien in time of war were void, and the property involved was subject to confiscation.
These and the other insurance cases discussed below arose in the context where, on 2 October 1899, the weekly mail train from Johannesburg to Cape Town, carrying exceptionally large quantities of gold bullion belonging to various mining companies, was detained by Transvaal Government officials when it arrived at Vereeniging and the gold was seized and removed from the train.
The gold was taken into custody on the instructions of the Transvaal State Attorney, Jan Smuts, the Transvaal Volksraad that day having resolved that the weekly gold shipment should be commandeered.
The seized gold was sent to Pretoria and subsequently totally lost to the owners despite demands by the British Government for its release. There was a similar seizure on 9 October 1899.
On 2 October 1899 war had not yet commenced, although it was imminent. On 9 October 1899 the Transvaal Government issued an ultimatum to the British Government to comply with certain demands, failing which the British Government’s conduct would be treated as a declaration of war at 5 p.m. on 11 October 1899.
There were certain measures that had been passed and were in place as emergency or standing measures by the Transvaal Volksraad regarding gold mined on the Rand, to the effect that gold mined in the Transvaal would, in the event of and for the duration of any war, be regarded as State property.
There was no doubt that the Driefontein Consolidated loss was covered by the express terms of the policy in respect of arrests, restraints, and detainments of all Kings, Princes, and people.
The primary defence was that, because the insured was a Transvaal company and therefore an alien subject, any British insurance of its property was against public policy and illegal after the outbreak of war.
The House of Lords judgment summarised the legal principles considered:
“My Lords, there are three rules which are established in our common law. The first is that the King’s subjects cannot trade with an alien enemy, i.e., a person owing allegiance to a government at war with the King, without the King’s licence. Every contract made in violation of this principle is void, and goods which are the subject of such a contract are liable to confiscation. The second principle is a corollary from the first but is also rested on distinct grounds of public policy. It is that no action can be maintained against an insurer of an enemy’s goods or ships against capture by the British Government. One of the most effectual instruments of war is the crippling of the enemy’s commerce, and to permit such an insurance would be to relieve enemies from the loss they incur by the action of British arms, and would, therefore, be detrimental to the interests of the insurer’s own country. The principle equally applies where the insurance is made previously to the commencement of hostilities, and was, therefore, legal in its inception, and whether the person claiming on the policy be a neutral or even a British subject if the insurance be affected on behalf of an alien enemy. The third rule is that, if a loss has taken place before the commencement of hostilities, the right of action on a policy of insurance by which the goods lost were insured is suspended during the continuance of war and revives on the restoration of peace.”
Public policy and enemy property
The dispute passed through the Trial Court, the Court of Appeal, and the House of Lords. All of the judgments held the insurance valid and not against public policy.
The Court of Appeal held, for example, that the policy in question clearly covered the seizure as it occurred and did not come within the implied exclusion derived from the principle that insurance of enemy property was illegal. It was clear that at the time of the loss the insured was not “a real enemy de facto”. War had not yet broken out, and the insured was at most a potential enemy subject. The Court of Appeal also said that it could not see how it could be said that the insurance contract in the case in any way assisted a foreign State, as opposed to one of its subjects, in making war against Britain. The insured was not an enemy subject, and the court could not see how “one single penny of [the money secured by the policy in question] would ever go towards relieving an enemy of this country against the calamities of the South African War.”
The policy was concluded and the loss incurred when, although relationships were strained, war had not been declared. It sought to indemnify an alien subject which was not at the time also an enemy alien, and the loss in question was caused by the foreign State of which the insured was a subject and not by Britain itself.
There were six separate judgments in the House of Lords, the majority of which determined that it did not matter that the enemy seizure causing the loss was made in immediate contemplation of war with Britain and in order to use the gold in question in support of the war. The seizure took place at a time of peace between the Transvaal and Britain, at a time when the insured was not the subject of a public enemy but at most a potential future enemy subject. In the circumstances, the contract was not illegal. It did not assist the King’s enemies.
The key point in the judgments was that, even if war ultimately occurred, a state of imminent or threatened war should be considered as peace and not war, and therefore the rules applicable in the event of war to contracts generally and insurance contracts were not applicable.
Gold mining and the strict enforcement of war clauses
The Robinson Gold Mining cases dealt with similar facts (Robinson Gold Mining Company and Others v Alliance Insurance Company [1901] 2 KB 919 and Robinson Gold Mining Company and Others v Alliance Insurance Company H.L. (E) 1904 359).
There, gold, the property of a company registered under the laws of the South African Republic, was insured against “arrests, restraints and detainments of all Kings, Princes and people” during transit from the mines to the United Kingdom, subject to a warranty (effectively an exclusion) “free of capture, seizure, and detention, whether before or after declaration of war.” The policy also contained a warranty excluding the insurer’s liability in the event of “capture, seizure and detention, and the consequences thereof and also from all consequences of riots, civil commotion, hostilities or warlike operations, whether before or after declaration of war”.
Contrary to the Driefontein Consolidated cases, the courts held that there was a “seizure” of the gold within the meaning of the warranty and the insurers were not liable under the policy.
The court determined that the gold was not given up voluntarily by the insured, and so its seizure, taking away, and ultimate use by the Transvaal Government was a “seizure” within the meaning of the warranty.
The Nigel gold mining case and its impact
In the Nigel Gold Mining case (Nigel Gold Mining Company Limited v Hoade [1901] 2 KB 849), a few days after war had been declared, the Transvaal Government seized and carried away gold products of the insured. The insured had shut down their mine when war was declared, and there was no evidence to show that they intended to continue business or mining operations in the Transvaal afterwards.
The insurer argued that the insured had been carrying on business and had acquired a commercial domicile in the Transvaal, and that its products were not British but Transvaal property, so that post declaration of war the insurance covered enemy property and became void and ineffective by reason of public policy.
The court rejected that argument, accepting the evidence that the Natal insured had no intention of continuing its business in the Transvaal after the declaration of war, and therefore the gold was not to be regarded at the time of the seizures as enemy property merely by reason of the commercial domicile of the company when war was declared. Because the insured was in any event not a Transvaal company, its property was not Transvaal property, and accordingly the insurance was not against public policy. The insured company was a British (Natal) company and the gold British goods seized by a hostile enemy force.
Legal precedents in war losses
In Stearns v Village Main Reef Gold Mining Company Limited (1905) TLR 237 (CA), there had been a claim for seizure of gold on 2 October 1899, and the insured had been indemnified in full for the total loss of gold seized under the policy in excess of £21,000.
In around December 1899 the Transvaal Government paid the insured £7,000. The insurer sought to recover that amount from the insured as money received by the insured for the use of the insurer in diminution of the insured’s loss.
The insured argued that the payment was in consideration of a promise made to the Transvaal Government that the insured would continue working the mine and pay the Government 50% of the proceeds.
The court held that there was no such bargain to speak of. The insured had no choice but to continue working the mine; otherwise, it would have been seized, and the deal was an extremely bad bargain leaving the mine with no profit. The Court of Appeal said the insurer was entitled to the money because, even if voluntarily paid as a gift, it was paid with the intention of being a return of what had been taken and was therefore paid in reduction of the insured’s losses.
The insurer was entitled to take into account the money received by the insured from the Transvaal Government in diminution of its loss in determining its policy liability to the insured, and so the insurer could recover that amount from the insured where the indemnity had already been paid.
In Curtis & Co v Head (1901) 17 TLR 718 and (1902) 18 TLR 71 (CA), an insurance claim for seizure was also dealt with, this time no gold was involved, rather goods seized in the stores for use by the Transvaal Government troops after the commencement of the war.
The insurers argued that the loss by commandeering, a lawful and constitutional act, was not loss directly caused by war or warlike operations. In any event it argued, the full amount of the insured’s loss was not caused by commandeering but rather by pilfering and theft.
The courts found there to be cover because, despite the lawfulness of the seizure (at least under Transvaal law), the seizure had a hostile character, and the loss came within the terms of the policy where there was cover against “direct loss or damage to the… property by riot, rebellion or war.”
Further legal rulings on wartime seizures
There are a few additional war judgments, not involving insurance (one involved gold) but are referenced here briefly for completeness.
In Alexander v Pfau 1902 TS 155, the court dealt with the loss suffered by a British subject residing in the Transvaal, who, on the outbreak of the war, left the country entrusting his horse to the care of a field cornet acting on behalf of the Transvaal Government. The horse was commandeered for the purposes of war and subsequently handed over to another person who sold it. The judgment held that it was not in conflict with the principles of international law for a State to requisition the property of resident aliens, and even more so of a hostile resident alien, in order to supply the necessities of war. Such a requisition deprived the original owner of ownership in the goods seized, and therefore of the right to vindicate them in the hands of a possessor.
In North Western Hotel, Ltd v Rolfes, Nebel & Co. 1902 TS 324, the plaintiff lessor leased the North Western Hotel (with furniture) to the defendants for four years at £325 per month, and the defendants sublet to Carponsin and Despland on identical terms. On 10 October 1899 the government of the South African Republic withdrew the liquor licence; officials then required the hotel to remain open to feed burghers, and the sublessees continued operating on government orders until March 1900 when the licence was restored. The licence lapsed again on 15 July 1900. On 5 August 1900 the British military occupied the hotel for refugees (and later the Rand Rifles), causing extensive damage that left the premises unfit for hotel use; substantial furniture loss and damage ensued. The sublessees later lodged a compensation claim with the military; the lessor refused to repair or refurnish. The lease contained clauses on quiet possession, maintenance, rent, furniture valuation and “destroyed or missing” goods, and an option to cancel if the licence was lost without the lessees’ fault.
The Court held that the lessees were liable for full rent from 15 October 1899 to 15 March 1900 (they chose to continue trading without cancelling and had beneficial occupation – voluntary assumption of risk), for 15 March to 15 July 1900, and for the short period up to 5 August 1900. They were not liable for rent from 5 August 1900 to 15 July 1901 due to complete deprivation of beneficial occupation by military seizure (vis major), nor from July 1901 until quitting because the hotel was left unfit and the lessor had refused to repair/refurnish. Clauses requiring payment for furniture “destroyed or missing” and to keep/return in good order did not make the lessees insurers against extraordinary events; absent express stipulation, loss from vis major/casus fortuitus falls on the lessor. Judgment was for the lessor for rent up to 5 August 1900 (£9,902), with the furniture and repair claims failing.]
In Van Deventer v Hancke and Mossop 1903 TS 401-427 the defendants, burghers of the former South African Republic in the Vryheid district, had their wool shorn in March 1901; Republican officers later purported to confiscate and sell it at public auction to the plaintiff, who paid the price and claimed title, while the defendants retook possession after hostilities ended. The plaintiff’s case was that the confiscation was lawful under Republican laws/resolutions or, alternatively, as an act under martial law by Boer officers; the defendants challenged the validity of any such confiscation and the authority to effect it without proper legal process.
The Court held that, following annexation by Proclamation No. 15 of 1900, it could not recognise the existence or legislation of the South African Republic after 1 September 1900, so the plaintiff could not rely on post annexation Republican measures to found title. Even assuming Boer commanders could deal with their burghers’ property, the confiscation was invalid: the governing Transvaal military code (Law No. 20 of 1898) did not authorise confiscation of private property without trial, and the Executive Council resolution did not apply to persons who surrendered to superior force and could not rejoin within a fixed time; thus the plaintiff acquired no title and judgment was for the defendants with costs.]
The West Rand gold mining case
In West Rand Central Gold Mining Company, Limited v The King [1905] 2 KB 391 officials of the former South African Republic seized two consignments of the claimant company’s gold in October 1899, issuing receipts; the company alleged the Republic was bound by its own laws to return the gold or its value. Following Britain’s conquest and annexation of the Republic in 1900, the company brought a petition of right claiming the Crown had succeeded to the Republic’s obligation to return or pay for the gold.
The King’s Bench held, on demurrer, that no enforceable right against the Crown was disclosed: international law does not require a conquering state, absent express stipulation, to assume the pre war contractual liabilities of the conquered state, and such matters of state succession/annexation are not justiciable in municipal courts. The demurrer was therefore allowed and judgment entered for the Crown.
Wartime legal precedents and their impact on insurance law
The 126th anniversary of the Battle of Spion Kop uses that backdrop featuring figures like Churchill, Botha, Gandhi, Smuts and Deneys Reitz to survey Anglo?Boer War–era rulings that shaped insurance and public?policy doctrine. Cantered on gold seizures in October 1899, the cases turn on whether losses occurred before or after hostilities, whether insureds were truly “enemy” subjects, and how war/seizure warranties trump broad insuring clauses. In Driefontein Consolidated, courts treated imminent war as peace, upholding cover for pre?war seizure; in Robinson Gold Mining, strict warranties excluding “capture, seizure, detention” barred recovery; Nigel Gold Mining confirmed that post?declaration seizures affecting a British (Natal) company were not void on public?policy grounds; Stearns v Village Main Reef clarified that later state payments diminish indemnity; and Curtis & Co v Head found commandeering a hostile act covered as war loss. Complementary decisions on requisition, vis major in leases, and state succession (including West Rand Central Gold Mining v The King) underscore that extraordinary wartime losses, lawful under local authority, can extinguish title, suspend rent absent occupation, and do not bind a conquering state to the prior regime’s obligations.
Next week, we will continue this exploration with Part 2, where Dinnie delves deeper into how litigation during the guerrilla phase of the Anglo-Boer War helped shape post-war insurance policies and public policy. Stay tuned for more insights!
[Driefontein Consolidated Gold Mines Limited v Janson [1900] 2 QB 339]
[Driefontein Consolidated Gold Mines Limited v Janson [1901] 2 KB 419 (CA)]
[Janson v Driefontein Consolidated Mines Limited [1902] AC 484 (HL)]
[Robinson Gold Mining Company and Others v Alliance Insurance Company [1901] 2 KB 919]
[Robinson Gold Mining Company and Others v Alliance Insurance Company H.L. (E) 1904 AC 359]
[Nigel Gold Mining Company Limited v Hoade [1901] 2 KB 849]
[Stearns v Village Main Reef Gold Mining Company Limited (1905) TLR 237 (CA)]
[Curtis & Co v Head (1901) 17 TLR 718 and (1902) 18 TLR 71 (CA)]
[Alexander v Pfau 1902 TS 155]
[North Western Hotel, Ltd v Rolfes, Nebel & Co. 1902 TS 324]
[Van Deventer v Hancke and Mossop 1903 TS 401]
[West Rand Central Gold Mining Company, Limited v The King [1905] 2 KB 391]
