Jeewa v Dönges, NO, and Others

• Jurisdiction: South Africa
• Judge: Centlivres ACJ, Greenberg JA, Schreiner JA, Van Den Heever JA, and Hoexter JA
• Judgment Date: 16 June 1950
• Citation: 1950 (3) SA 414 (A)
• Hearing Date: 12 June 1950
• Court: Appellate Division

Centlivres, A.C.J.:

Appellant, who was born in India in 1910 and came to F the Union with his mother in 1917, his father having come to the Union at an earlier date, was convicted by the Witwatersrand Local Division on October 11, 1948, of buying unwrought gold in contravention of sec. 105 of Act 35 of 1908 (Transvaal) and sentenced to pay a fine of £250 or, in default of payment, one year's imprisonment with hard labour and in G addition thereto to undergo one year's imprisonment with hard labour. While he was in prison he received the following notice which was signed by the Secretary for the Interior on March 7, 1949:

'You are hereby notified that, in terms of sec. 22 of the Immigrants Regulation Act, 22 of 1913, the Minister of the Interior has deemed you to be an undesirable inhabitant of the Union of South Africa on H account of your conviction and sentence to imprisonment on the 11th October, 1948, for the crime of buying unwrought gold in contravention of sec. 105 of Act 35 of 1908.

A warrant for your deportation has been issued, and you will be removed from the Union in due course.'

As soon as the appellant was released from prison he was taken into custody under a deportation warrant. He petitioned the Durban and Coast Local Division for a rule nisi to operate as a

Centlivres ACJ

temporary interdict calling on the respondents to show cause why an order should not be made

'declaring and determining the deeming of the first respondent dated the 7th May of March, 1949, wherein he deems the applicant to be an undesirable inhabitant of the Union to be irregular and improper, and A setting the same aside, and also the deportation warrant founded thereon'.

In his petition the appellant alleged that -

'There are no circumstances attached to the said offence by reason of which it would be possible to deem me an undesirable inhabitant of the Union of South Africa and such circumstances neither exist nor could have been placed before the first respondent. I respectfully submit B and aver that the first respondent has not, in fact, directed his attention to any of the circumstances of the offence, and/or could not have directed his attention thereto as required in terms of sec. 22 of Act 22 of 1913.'

Appellant then submitted in his petition that 'the deeming contained' in the notice from the Secretary for the Interior

'is void and invalid inasmuch as it is founded simply on the C commission of the offence and without regard to any circumstances in respect thereof'.

The Local Division granted a rule nisi operating as a temporary interdict. The first respondent (to whom I shall refer as the Minister) thereupon filed an affidavit in which he stated that the notice signed D by the Secretary for the Interior was not a document whereby he deemed the appellant to be an undesirable inhabitant of the Union. The Minister then proceeded to state that -

'the position is that on the 16th February, 1949, I applied my mind to the question whether or not applicant should be deported in terms of sec. 22 of Act 22 of 1913. After a careful and bona fide consideration of all the circumstances of the offence' (committed by the appellant) E 'and the written representations submitted to me on behalf of the applicant, I came to the conclusion that the applicant is an undesirable inhabitant of the Union of South Africa and ordered his deportation. Subsequently and by virtue of my said decision a document to the effect that by reason of the circumstances of the offence of which the applicant had been convicted I, in my aforesaid capacity, F deem him to be an undesirable inhabitant of the Union, was drawn up and signed on my behalf by a duly authorised signing officer on the 7th March, 1949, as will appear more fully from a copy of the said document annexed marked 'B'.'

The annexure 'B' (which I shall refer to as the 'deeming' document), referred to by the Minister in his affidavit, was as follows:

G 'DEPARTMENT OF THE INTERIOR PRETORIA.

The Minister of the Interior, under the provisions of sec. 22 of the Immigrants Regulation Act, 1913 (Act 22 of 1913), by reason of the circumstances connected with the offence for which Abdul Carim Jeewa was convicted, deems him to be an undesirable inhabitant of the Union.

(Sgd.) J. L. Kirkpatrick.; (Authorising signing officer, vide Government Notice 1473 of 7th July, 1948.)

H Dated at Pretoria this 7th day of March, 1949.'

The Minister also annexed to his affidavit a copy of the deportation warrant which recited the fact that the appellant had been sentenced to imprisonment for buying unwrought gold in contravention of sec. 105 of Act 35 of 1908 (Transvaal) and that by virtue of sec. 22 of Act 22 of 1913 'the Minister deems him to be an undesirable inhabitant of the Union by reason of the circumstances

Centlivres ACJ

in connection with the offence'. The warrant was dated March 7, 1949, and was signed by J. L. Kirkpatrick '(authorised...