Herbst v Kuhn, NO

• Jurisdiction: South Africa
• Citation: 1961 (2) SA 555 (N)

Herbst v Kuhn, NO
1961 (2) SA 555 (N)

1961 (2) SA p555

Citation	1961 (2) SA 555 (N)
Court	Durban and Coast Local Division
Judge	Caney J
Heard	February 21, 1961
Judgment	February 21, 1961

Flynote : Sleutelwoorde

Husband and wife — Marriage — Prohibition of Mixed Marriages A Act, 55 of 1949 — Woman of mixed descent in appearance a European wishing to marry a European — Applicant classified under Population Registration Act, 30 of 1950, as a coloured person — Marriage officer refusing to solemnise marriage — Application for an order that marriage not forbidden by sec. 1 (1) of Act 55 of 1949. — B Applicant not obliged first to exhaust her remedies under Act 30 of 1950 — Evidence disclosing that applicant a European — Application granted.

Headnote : Kopnota

In an application by a divorcee for an order declaring that she was a European and consequently that she was not forbidden to marry a European C by section 1 (1) of the Prohibition of Mixed Marriages Act, 55 of 1949, it appeared that the respondent, in his capacity as control magistrate and marriage officer for his district, had refused to solemnise the marriage because applicant was classified under the Population Registration Act, 30 of 1950, as a coloured person. The applicant's testimony satisfied the requirement of establishing that she was 'in appearance obviously a European'. Her testimony further indicated a mixture of coloured blood on the maternal side but did not negative the D conclusion that she habitually consorted with Europeans as a European and was generally accepted as a European or 'white person'. Though her former husband had been content to be classified as a 'coloured person' and appeared at some time during their marriage to have accepted this racial designation, he had also at times regarded himself as a European, as had initially been indicated in the marriage register, the first child having been registered as of European parentage.

Held, that the relevant time for determination of the applicant's racial E characteristic was the present.

Held, further, that the contrary to the applicant being a European had not been proved and that she had been shown by the evidence to be a European.

Held, further, that applicant was not obliged to exhaust her remedies under the Population Registration Act before bringing these proceedings, and that the application should be granted. F

Case Information

Application for an order on respondent to solemnise an intended marriage. The facts appear from the reasons for judgment.

M. L. Mitchell, for the applicant.

S. T. Pretorius, for the respondent.

Judgment

G Caney, J.:

This is an application by a woman who wishes to marry a man who, it is not disputed, is a European. She contends that she is also a European and consequently that their marriage is not forbidden by sec. 1 (1) of the Prohibition of Mixed Marriages Act, 55 of 1949. This reads as follows:

H 'As from the date of commencement of this Act a marriage between a European and a non-European may not be solemnised, and any such marriage solemnised in contravention of the provisions of this section shall be void and of no effect.'

There then follow two provisos, to the first of which I shall refer later; the second proviso is not relevant to these proceedings.

When, on 3rd November last, the applicant, accompanied by her attorney, called on the respondent, who is cited in his capacity as the

1961 (2) SA p556

Caney J

control magistrate and marriage officer for the magisterial district of Durban, for the purpose of arranging the marriage, the respondent refused to solemnise the marriage because, according to a registration certificate which the applicant exhibited to him, she was classified A under the Population Registration Act, 30 of 1950, as a coloured person. This certificate is dated 31st March, 1960, in Pretoria, but, the applicant says, was received by her by registered post on 17th September, 1960. With the certificate the applicant also exhibited to the respondent a copy of her affidavit and two supporting affidavits which she says accompanied her objection under sec. 11 (1) of the 1950 Act, as amended, against the classification of herself as 'coloured'. In B these circumstances and supported by further affidavits the applicant brought this application for an order on the respondent to solemnise the intended marriage within 14 days.

The respondent filed affidavits on the part of himself and Mr. W.C. van C Zyl, the local representative of the Population Registrar, who also obtained certain affidavits which I shall mention later. The respondent said in his affidavit that it was not his intention to be represented by counsel at the hearing of the application. The information in the two affidavits was 'submitted for the assistance of the Court'. When the matter came before WARNER, A.J., on 9th December, he directed the Registrar to appoint counsel to present the argument against the D applicant's case as amicus curiae. Mr. Pretorius appeared before me for the respondent. He emphasised that he had not come to oppose the application; the respondent did not regard himself as a litigant but had put on record all the available information in order to assist the E Court; and Mr. Pretorius proceeded to present an argument in opposition to the applicant's case.

In her replying affidavit the applicant had applied to strike out certain averments in and annexures to Mr. van Zyl's affidavit. The difficulties in relation to these had been resolved by the time the matter came before me, save for the averments in sub-para. (a) of para. 4 of the affidavit, relating to a census form and that form itself, of F which a copy was attached. The respondent conceded their inadmissibility by reason of the provisions of sec. 17 of Act 76 of 1957 and consequently I made an order striking out from the record the offending paragraph and the attached census form.

G The question for decision is whether the applicant is a European or a non-European within the contemplation of the 1949 Statute which I have mentioned. This contains no definitions, but sec. 3 reads as follows:

'Any person who is in appearance obviously a European or a non-European, as the case may be, shall for the purposes of this Act be deemed to be such, unless and until the contrary is proved.'

H The first step must be to examine the evidence to discover whether the applicant 'is in appearance obviously a European'. The word 'obviously' in this context appears to mean 'perfectly evidence, perfectly manifest, palpably true'. Rex v Ormonde and Another, 1952 (1) SA 272 (AD) at p. 275. The first question, consequently, is whether the applicant is in appearance obviously (in the sense to which I have referred) a European; the test so far is one of appearance. The applicant in her affidavit says 'I am a European and I am of European

1961 (2) SA p557

Caney J

descent'. She goes on to give particulars of her parents. I shall refer to these later. In the affidavit which she made in connection with her objection to classification as a coloured person, she said 'I am in appearance obviously a white person'. In this she was supported by the Pastor of her Church, who said 'she is a person who in appearance A obviously is . . . a white person'. Her employer also supported her with an affidavit in which she said 'she is a person who in appearance obviously is a white person'. She has filed in this application an affidavit by her mother who says 'she is obviously white in appearance'. The man she wishes to marry says in his affidavit 'she is in appearance obviously a European (white person)'.

B There is no denial of the averments to which I have referred. Mr. Kuhn, the respondent, who saw the...