Minister of Posts and Telegraphs (Appellant) v Rasool (Respondent)

• Jurisdiction: South Africa
• Judge: Stratford ACJ, Beyers JA, De Villiers JA and Gardiner AJA
• Judgment Date: 03 October 1933
• Citation: 1934 AD 167
• Hearing Date: 20 September 1933
• Court: Appellate Division

Stratford, A.C.J.:

Act No. 10 of 1911, sec. 3, sub-secs. (2) and (4) empowers the Postmaster-General to establish, maintain and abolish post offices and to supervise and control their services; also to "issue such instructions as he may deem necessary for the conduct and guidance of officers in carrying out the provisions of the Act." Acting under these powers the Postmaster-General in December, 1931, issued instructions to his subordinates to divide the post office at Pietersburg into two portions for the service of "Europeans Only" and "Non-Europeans" respectively. The division was effected and notices bearing those words indicated the rooms where each class was henceforth to be served. Prior to this change

Stratford, A.C.J.

Indians were served at the same counter as Europeans and a separate door gave entrance to a room partitioned off, and above the door were the words "Native Post Office." The change merely involved changing the words "Native Post Office" to "Non-Europeans" and placing the words "Europeans Only" over the other. The result of this change is that the respondent, an Indian, who previously was served at the European counter is now excluded therefrom and obliged to go to the Non-European room. On an application by the respondent to a Judge in Chambers, a mandamus was granted compelling the present appellant, the Postmaster-General, to withdraw the instructions. An appeal to the Transvaal Provincial Division was dismissed, and the matter now comes before this Court. A question of fact as to whether the facilities afforded at the Non-European counter were inferior to those at the European section was definitely abandoned, and the admission was made (for the purpose of the litigation) that equal service was rendered. An objection to the procedure, dealt with in the lower courts, was abandoned at the hearing in this Court and the issue is now limited to the one question, whether the above instructions were or were not intra vires of the Postmaster-General.

Purporting to follow a series of decisions in the Transvaal dealing with the validity of bye-laws affecting the coloured section of the community, both Courts pronounced the instructions to be invalid as effecting a "discrimination" based on race or colour. BARRY, J rested his decision on the reasoning of the learned Judges, given in the case of Williams and Adendorff v Johannesburg Municipality (1915 T.P.D. 106). TINDALL, J., who delivered the decision of the Transvaal Provincial Division, arrived at the conclusion, on a review of the decided cases, that the instructions in question were "unreasonable" within the meaning of the rule laid down in Kruse v Johnson ([1898], 2 Q.B. 91) because the discrimination effected by them was "partial or unequal in their operation." The learned Judge conceded that discrimination per se was no test of unreasonableness "but." he said, "the cases in this Court have laid down that a discrimination based purely on race or colour is a discrimination of that kind (i.e. one unequal in its operation between different classes)." Counsel for appellant, in this Court, challenged the correctness of this latter conclusion even though it may be in accord with the Transvaal decisions which are said to support it. In my view, therefore, the sole question for this Court

Stratford, A.C.J.

to decide, and the sole question raised by the parties, is whether the judgment can be supported on the ground stated by TINDALL, J., namely, that the instructions of the Postmaster-General effected a discrimination between classes partial or unequal in its operation. It would surely seem at first sight that the admission in this case as to equality of service destroys at once the idea of partiality or inequality. However, the decided cases cited by the learned Judge deserve consideration.

Counsel on both sides adopted the words of Lord RUSSELL in Kruse v Johnson (supra) as affording the correct test as to whether or not a bye-law was unreasonable. Indeed as early as 1908 (per SOLOMON, J., in Smith v Germiston Municipality, 1908, T.S at p. 250), and in this Court (Feinstein v Baleta, 1930 AD 319), and throughout the decisions on the subject in the Transvaal, that test has been consistently applied. I agree with TINDALL, J., who, in effect, says that an enabling Act must not be construed to confer the power to do unreasonable things unless such latter power is specifically given. When therefore the question of the unreasonableness of a bye-law arises it is the function of this Court to decide the matter on the facts of the case, and it is now accepted that Lord RUSSELL'S test is the one to be applied. Treating the instructions in question, issued under the enabling Act, on the footing of a bye-law we must enquire whether they are "partial or unequal in their operation as between different classes," for that is the only ground, on the facts before us, on which its unreasonableness can possibly be argued.

The effect of the instructions was to divide or classify the community to be served into sections for the purpose of rendering that service, and I am unable to appreciate how their operation is partial or unequal between these divisions or classes when we have the definite admission that they are not. The Transvaal Provincial Division, however, considered itself bound by previous decisions which were read to decide that a classification with colour or race as the dividing line, was bad as being one partial or unequal in its operation. The first of these cases is Moses v Boksburg Municipality (1912 T.P.D. 659) and the headnote of the report reads: "A Municipal bye-law prohibited any person, without the permission of the Council, establishing or maintaining any compound or other place for the housing of natives or coloured persons not being domestic or household servants. There was no bye-law dealing

Stratford, A.C.J.

with the housing of white persons. Held, that as the enabling statute did not give the Municipality power of discrimination between classes, the bye-law was ultra vires."

Both here and in the judgment of DE VILLIERS, J.P the word "discrimination" is used to connote difference of treatment, and the judgment is quite clearly based upon that difference under the bye-law, and not upon its division of the community into white and coloured. The correctness of this decision has never been questioned and has always been followed, as for example in Swarts v Pretoria Municipality (1920 T.P.D. 187) where again the word "discrimination" is used in the sense of inequality of treatment, and that inequality is found in the bye-law challenged in the case.

As I read the case of Moses v Boksburg Municipality, it seems to me the decision would have been the same, if the division had not been between "White" and "Coloured" but upon any principle whatever, once it was proved or admitted that the different sections get different treatment under the bye-law. What was condemned was not the classification but its intended object to allow of the difference of treatment. The only decision which gives rise to any difficulty is that in Williams v Adendorff (supra). The headnote gives the following summary of the case: "Ord. 2 (priv.), 1906, sec. 31, provided that the Johannesburg Municipality should have sole and exclusive right to establish, maintain and work electric or mechanically worked tramways for public use within the municipality. The municipality established such a tramway and provided in a bye-law that the Council might set apart and license any carriage for the use of European passengers only and others for the use of coloured passengers only, making it an offence for passengers of the one class to enter or travel in a carriage set apart for passengers of the other class. Held, that as the bye-law discriminated between white and coloured persons, it was not authorised by sec. 31 of Ord. 2 (priv.), 1906, and was therefore ultra vires."

This statement of the law is not warranted by the decision in Moses' case nor by Kruse v Johnson, both of which the judgments profess to approve and follow. It is not necessary to say that the case was wrongly decided, for the facts were complicated and the actual decision could quite possibly be supported on grounds other than the bye-law's mere division of the community into White and Coloured. Indeed BRISTOWE. J did not rest his conclusion on

Stratford, A.C.J.

that fact. However that may be, if the case decided that a bye-law is invalid on the sole ground that it divides the community for the purpose of its operation into White and Coloured, I cannot agree with it, for such conclusion runs counter to accepted principle and good sense. A classification by a bye-law, if it presumably is to serve a useful purpose, is not invalid on that ground alone whether the line of division be race, colour, religion or any other. I would add merely the qualification that the division must not be absurd or obviously designed to serve no useful purpose, as for example a classification depending on the colour of one's hair. But a division of the community on differences of race or language for the purpose of postal service seems, prima facie, to be sensible and make for the convenience and comfort of the public as a whole, since appropriate officials conversant with the customs, requirements and language of each section will conceivably serve the respective sections.

We have not, however, to speculate about the purpose of the classification, for the burden of showing that the instructions are unreasonable is upon him who claims that they are. He can approach the question by interpreting their plain meaning and thus show that their operation is unreasonable, or he can adduce evidence to prove them to be so. In the present case, however the question is approached, the respondent, in my judgment, has failed to show that the instructions of the Postmaster-General are...