Moller v Keimoes School Committee and Another

• Jurisdiction: South Africa
• Judge: Coram Lord De Villiers CJ, Innes J, Laurence J (Acting Ord Judge of Appeal), J De Villiers JP and Kotze JP (Acting Addit Judge of Appeal)
• Judgment Date: 13 December 1911
• Citation: 1911 AD 635
• Hearing Date: 16 November 1911
• Court: Appellate Division

Lord De Villiers, C.J.:

I entirely agree with the Court below that it was part of the policy of the Cape School Board Act of 1905 to promote the establishment of separate public undenominational schools for children of European parentage or extraction and for children of other than European parentage or extraction. Any doubt on the point is removed by the second sub-section of section 62 which, in School Districts where school attendance has been made compulsory for all children of European parentage or extraction, dispenses with the attendance of such children who live more than three miles from a school for children of European parentage or extraction. It is competent, under the 69th section, for the School Board, after obtaining the approval of the majority of ratepayers in the school district, to make school attendance compulsory for children of other than European parentage or extraction, but only in any school district in which exists an undenominational school for children of other than European parentage or descent. The School Board for the school district of Gordonia having duly resolved to make school attendance compulsory for all children of European parentage or extraction within its district, a proclamation giving effect to such resolution and fixing the rules for the enforcement of school attendance was duly published on the 17th of May, 1910. One of the rules is to the effect that "Attendance at a mission school other than a

Lord De Villiers, C.J.

mission school under the Regulation 13 of Proclamation 388 of 1893 shall not be deemed to be a reasonable excuse for non-attendance on the part of a child of European parentage unless the School Board shall have obtained the consent of the Education Department in cases of children where special exemption appears necessary." Regulation 13 referred to provides for the giving of Government grants on certain conditions to "white mission schools." By this term clearly is meant "mission schools for children of European parentage or extraction." By making attendance at such a school a reasonable excuse for the non-attendance of a child of European parentage at a public undenominational school the Proclamation fully adopted the principle of separation for purposes of education of white from other than white children. No public undenominational school has been established in the school district of Gordonia for children of other than European parentage or extraction, but there are two mission schools in such district, the one being at Keimoes and the other at Upington. These schools are not "white mission schools," but are stated in the affidavit of the Rev. Alexander Stewart to be "for the benefit mainly of coloured and bastard children." The term "bastard" is obviously used by him not in the sense of "illegitimate," but as applying to the mixed offspring of white and native parents. There is, however, a public undenominational school at Keimoes which, not having been established under the 48th section of the Act, must be taken to be a school for children of European parentage or extraction. To that school the applicant took two of his children on the 30th of January, 1911. They were accepted as scholars by the headmaster, and the school fees, amounting to £1 10s., were paid, but on the following day some of the parents of other children threatened to withdraw their children so long as the applicant's children remained pupils in the school, and within a few days afterwards sixteen children out of a total number of thirty-seven children were actually withdrawn. The School Committee, fearing that the result of allowing the applicant's children to remain would be the withdrawal of all the other children, directed that the fees paid by

Lord De Villiers, C.J.

the applicant should be returned to him, and that his children should not be allowed to attend the school any longer. The ground of the objection was that their mother was a coloured woman. The applicant refused to accept the fees, and applied to the Cape Provincial Division for an order compelling the School Committee to receive his children as scholars. The application was refused by the JUDGE PRESIDENT, and an appeal to the full Provincial Division against such refusal was dismissed with costs. Leave to appeal against that judgment having been given by this Court, the present appeal has been brought accordingly.

Before deciding the main question, I wish to refer briefly to two side issues, which have been raised by Mr. Schreiner on behalf of the applicant. It is common cause that the applicant is of pure European descent, and one of the side issues raised is whether he and other European parents, who like him have been married to coloured women, have, any locus standi to apply to the School Board under the 48th section of the Act for the establishment of a public undenominational school for children of other than European parentage or descent. Now, it is quite true that the introductory portion of the section speaks of people of other than European parentage or extraction desiring to have Such a school established, but the petition must be signed by at least fifty parents of children of other than European parentage or descent. Such a petition it would be quite competent for the applicant, although a pure European, to sign if his children are, in terms of that section, of other than European parentage or descent. That there would be no objection to the admission of his children to the mission school at Keimoes is clear from the affidavit of the Rev. A. Stewart, but of course the applicant cannot be expected to send his children to the mission school, if he is legally entitled, and can afford to have them educated in the public undenominational school. Whether he is so entitled must depend upon the question whether his children are of European parentage or extraction.

Another side issue raised was whether, Seeing that the applicant had been called upon to pay school rates to the

Lord De Villiers, C.J.

Divisional Council on the assurance of the secretary to that body that he could send his children to the Keimoes public school as long as he paid the school fees, he could, after paying the school rates and getting his children admitted on the payment of school fees, be prevented from sending the children to the school. It is undoubtedly a case of great hardship on the applicant, but it should not be forgotten that the secretary to the Divisional Council could not bind the School Committee, that owners of rateable property who have no children at all have to pay school rates, and that the school fees paid by the applicant were tendered back to him. If he was not entitled, in the first instance, to claim admission for his children, he cannot now claim that, because they had been once so admitted, the Court shall order the School Committee to take them back. If, on the other hand, he was so entitled, the case seems to me to be one in which the Court below should have issued a mandamus compelling the committee to receive the children. Whatever discretion the committee might have had if the education of children of European parentage had not been made compulsory, it could not, consistently with Part 6 of the Act, have refused, after the issuing of the Proclamation, to admit such children to the only school in the district which could supply the requisite education.

The question, then, for determination is whether the applicant's children are of European parentage or extraction according to the true meaning of the Act. If their legitimate father's racial status is alone to decide the question, then undoubtedly they would be of European parentage, because he is a pure European. But their mother is admitted to be a coloured woman. The applicant in his affidavit says that his wife's father was a pure - bred Englishman, but, as he admits that his wife was a coloured woman, we may fairly take it that her mother was a black or a native woman. Mr. Schreiner contended that, as the Act nowhere mentions colour in connection with parentage or descent, the legislature cannot have intended to draw a colour line, but the Court is unable to ignore the universal meaning attached to the term "European" throughout South Africa. A white citizen

Lord De Villiers, C.J.

of the United States, who has never been in Europe, would be regarded as a European, while a black man born and bred in Europe would be regarded as other than European...