Principal Immigration Officer v Purshotam

• Jurisdiction: South Africa
• Judge: De Villiers JA, Curlewis JA, Stratford JA and JER De Villiers AJA
• Judgment Date: 22 June 1928
• Hearing Date: 13 June 1928
• Court: Appellate Division

De Villiers, J.A.:

The following facts appear from the statement of case submitted by the Immigration Appeal Board in terms of sec. 3 (2) of Act 22 of 1913. On the 30th January, 1915, the respondent, an Asiatic, on arrival at Delagoa Bay under the name of Daya Purshotam, made a statement regarding his relatives claiming that his father's name was Purshotam Jiwan. On the 11th February of the same year Parsooth Jivin (Purshotam Jiwan) made a statement at Pretoria in which he claimed to be the father of Daya Purshotam. Thereafter on 17th February, 19: 15, an application for the Registration of Dava Parsooth (Daya Purshotam) was made at Pretoria, and Transvaal Asiatic Registration Certificate No 13849 issued to him in that name. Respondent now admits that Parsooth Jivin (Purshotam Jivan) is not his father, but that his fathers name is Odhav Morar and that his own name is Govind Odhav. On the 20th September, 1927, the respondent was served with a notice of prohibition as a prohibited immigrant. On the 22nd September 1927, notice of appeal was given to the Immigration Appeal Board by the respondent, the grounds being that the respondent "is lawfully domiciled in the Province under a certificate of registration and that he does not fall under the provision of sec. 10 of the Act or the amendment thereof." Sec. 10 of Act 22 of 1913 reads as follows: - "No prohibited immigrant shall be exempt from the provisions of this Act or be allowed to remain in the Union, or in any Province wherein his residence is unlawful, or be deemed to have acquired a domicile therein, by reason only that he had not been informed that he could not enter or remain in the Union or (as the case may be) in that Province, or that he had been allowed to enter or remain

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through oversight, misrepresentation, or owing to the fact having been undiscovered that he was such a prohibited immigrant."

And the amendment referred to is sec. 5 of the Immigration and Indian Relief Act No. 37 of 1927, which is to the following effect: - "Section ten of the principal Act is hereby amended by the addition at the end thereof of the following new sub sec. (2), the existing sub-sec becoming sub sec. (1) - (2) Any such prohibited immigrant shall be dealt with in terms of see nineteen. If he is in possession of a registration certificate or a certificate of domicile, or any other document authorizing him to enter, reside or remain in the Union or any Province, it shall be competent for any board to which he may appeal, if it is proved to the board that such certificate or other document was obtained by fraudulent representations made by him or on hi s behalf to order that such certificate or other document be cancelled and that he be dealt with in terms of this Act: Provided that if he does not appeal to a board, the principal immigration officer concerned shall, subject to the approval of the Minister, cancel such certificate or other document."

The board reserved the following question of law for the determination of the Court: "Whether or not sec. 5 of Act 37 of 1927 is retrospective?" The same question was answered in the negative by the Transvaal Provincial Division, and the same question is now on appeal before us.

In Pardo v Bingham (4 Ch. App. Cas at 740) Lord HATHERLEY, L.C., in considering whether a statute was retrospective, said: "We must look to the general scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former state of the law and what it was that the Legislature contemplated." I therefore proceed to consider the state of the law when the amending statute of 1927 was passed. Act No. 22 of 1913 came into operation on the 1st August, 1913. On the same date a notice was published by the Minister of the Interior under the powers conferred on him by paragraph (a) of sub sec. (1) of sec. 4 of the Act, in which he declared that he deemed all Asiatic persons to be unsuitable on economic grounds to the requirements of the Union and of every province of the Union (a) in which such person is not domiciled; or (b) in which such person is not, under the terms of any statute of such province, entitled to reside. The effect of this

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notice was that from that date all Asiatics, with the two exceptions (a) and (b), became prohibited immigrants under the Act. Then sec. 10 if the Transvaal Asiatic Law Amendment Act No. 2 of 1907 provided that every certificate of registration should be accepted as conclusive evidence in all places that the lawful holder thereof was entitled to enter and reside in the Transvaal. Sec. 11 of the Transvaal Asiatics Registration Amendment Act No. 36 of 1908 repeated this provision and defined "lawful holder" of a certificate of registration to mean the person whose registration is thereby certified. I ought to add that sec. 4 (2) (b) of Act 22 of 1913 safeguards the rights of Asiatics, holding registration certificates,. It reads: "Nothing in sub-sec. 1 (a) contained shall be construed - (b) as abrogating or affecting any right conferred by Act No. 36 of 1908 of the Transvaal upon the lawful holder of a certificate of registration defined in that Act."

In the case of Rex v Purbhoo (1914 T.P.D. 110) the Transvaal Provincial Division had occasion to consider in how far the provisions entrenching the position of the holder of a registration certificate were affected where the certificate was obtained by the fraud of the "lawful holder." MASON, J considered it unnecessary, for the purposes of the care before the Court, to determine whether the registration certificate could be disregarded, but inclined to the view that if the certificate could be annulled on the ground of fraud, the only method was by an express proceeding for that purpose. And GREGOROWSKI, J said: "It seems to me that a certificate of registration once granted can be set aside if there be proof that it has been obtained by impersonation, by fraud or forgery, perjury or the like, but then proceedings would have to be taken for this purpose The personation, fraud or forgery would have to be proved in the proper proceedings." The same question again rose in 1921 in the case of Ismail Moosa v Registrar of Asiatics (1922 T.P.D. 66). The facts as stated in the headnote were as follows: "A registration certificate in terms of sec. 4, sub-sec. 2 (b) of Act 2 of 1907 was granted to an Asiatic minor on the strength of an affidavit by an Asiatic who claimed to be the father of...