Bhyat v Commissioner for Immigration

• Jurisdiction: South Africa
• Judge: Wessels JA, Curlewis JA, Stratford JA and Roos JA
• Judgment Date: 08 March 1932
• Citation: 1932 AD 125
• Hearing Date: 04 March 1932
• Court: Appellate Division

Stratford, J.A.:

This matter came before the Transvaal Provincial Division on a ease stated by the Immigration Board under the provision of sec. 3 (2) of Act 22 of 1913. Against the judgment delivered by that Court this appeal is brought before this Court. Briefly stated the facts are the following: The appellant is a minor born in India in 1920 entered the Transvaal in 1931 and was declared a prohibited immigrant under the provisions of sec. 4 (1) (a) and (b) of Act 22 of 1913. He is the son of Moosa Ebrahim Bhyat and a British Indian woman who in 1915 and in India were married according to the tenets of the Indian religion which recognises polygamy. At that time the husband was the holder of an Asiatic Registration Certificate (Transvaal) but in 1930 had this

Stratford, J.A.

cancelled on the admitted ground that he was a Cape Malay and not an Indian. He is domiciled in the Transvaal and the appellant, his son, claims that he is not a prohibited immigrant because of the provisions of sec. 5 (g) of Act 22 of 1913 as amended by sec. 3 of Act 22 of 1914. The present dispute depends solely upon the meaning of the amendment introduced by this Act of 1914 into the provision of the Immigration Act of 1913. It is conceded that if sec. 3 (2) refers to the "exempted person" mentioned in the 1913 Act the appellant is not a prohibited immigrant and must succeed in this appeal, but if, on the other hand, the sub-section is to be confined to an exempted person who is a British Indian he cannot invoke the benefit of its provisions and must fail. The Transvaal Provincial Division held the latter view, arriving at the conclusion that the 1914 Act was concerned solely with British Indians and could not, therefore, be read to apply to the father of the appellant who is a Malay. Whilst all other sections of the 1914 Act deal directly and independently with matters concerning British Indians the purpose of sec. 3 is solely to amend paragraph (g) of sec. 5 of the Immigrants Regulation Act 1913; it has no other operative effect whatsoever. By sub-sec. (i) it deletes the following words from paragraph (g).: "including the wife or child of a lawful and monogamous marriage duly celebrated according to the rites of any religious faith outside the Union." Then sub-sec. (2) reads: "(2) In the interpretation of that paragraph, as hereby amended - 'the wife' shall include any one woman between whom and the exempted person mentioned therein there exists a...