Patel v Minister of the Interior and Another

• Jurisdiction: South Africa
• Judge: Greenberg JA, Schreiner JA, Van Den Heever JA, Hoexter JA and Fagan JA
• Judgment Date: 30 March 1955
• Citation: 1955 (2) SA 485 (A)
• Hearing Date: 04 March 1955
• Court: Appellate Division

Greenberg, J.A.:

The appellant instituted action in the Transvaal Provincial Division against the respondents for an order declaring that he is not debarred, under the laws relating to the tenure of land by E Asiatics in force from time to time in the Transvaal subsequent to the promulgation of Act 12 of 1924 and prior to the promulgation of Act 41 of 1950, from lawfully holding fixed property in such Province, In his declaration, after setting out in the first three paragraphs who are the parties to the action, he alleged:

'4. The plaintiff was born at Johannesburg in what is now the Transvaal Province of the Union of South Africa on the 25th day of September, 1896, to certain Fatima Abdurrahman, a female member of the race or F class known as Cape Malays.

5. The father of the plaintiff was one Ismail Amod Patel an Asiatic Indian, but the union between the plaintiff's father and mother (which was solemnized according to Islamic (Mohammedan) rites at a time when a previous union between the said Ismail Amod Patel and an Indian woman according to such Islamic rites still existed and was thus a polygamous union) was at all material times not recognised as a valid marriage in the South African Republic or thereafter in the Transvaal Colony or G thereafter in the Union of South Africa, and is still not so recognised.

6. The plaintiff -

(a)

Was brought up and educated as a Cape Malay.

(b)

Has always -

(i)

Regarded himself and held himself out as a member of the race or class known as Cape Malays.

(ii)

Lived as a Cape Malay among members of the race or class known as Cape Malays.

(iii)

Followed Cape Malay customs and the Cape Malay manner of living.

(iv)

H Adhered to and professed Cape Malay religion.

(c)

Has brought up and educated his children as members of the race or class known as Cape Malays and in the Cape Malay religion.

(d)

Has been generally regarded and accepted as a member of the race or class known as Cape Malays and is still so regarded and accepted.

(e)

Was at all times and still is in fact and in law a member of the race or class known as Cape Malays.

Greenberg JA

(f)

Is for the purposes of Law 3 of 1885 of the Transvaal as amended deemed, under the provisions of Act 12 of 1924, not to be a member of one of the native races of Asia.'

In para. 7 the appellant gives a list of fixed properties in the Transvaal of which he is the registered owner, and of the deeds of transfer into his name of these properties; it is not necessary to give this list.

'8. In all the aforementioned title deeds, the plaintiff is described as A Mahomed Ismail Patel (Cape Malay) born on the 25th September, 1896.

9. The first defendant, however, now contends that the plaintiff was as at the date of coming into force of the Group Areas Act 41 of 1950, i.e. as at the 30th March, 1951, subject to the provisions of Law 3 of 1885 of the Transvaal and was at that date debarred from holding fixed property in the Transvaal and the first defendant has called upon the plaintiff to sell the fixed properties more fully set out in para. 7 B hereof to a person who may lawfully hold such property and has threatened upon failure to comply with such demand to take proceedings in respect of such properties under the provisions of sec. 20 of the Group Areas Act, 41 of 1950 aforesaid.

10. The plaintiff refers to the facts set out in paras. 5 and 6 hereof and contends that he is not debarred under the laws relating to the Tenure of Land by Asiatics in force from time to time in the Transvaal subsequent to the promulgation of Act 12 of 1924 and prior to the C promulgation of Act 41 of 1950 from lawfully holding fixed property in such Province.

11. The plaintiff is desirous that this Honourable Court shall at his instance inquire into and determine the plaintiff's right to hold fixed property in the Transvaal.'

The respondents excepted to this declaration on the ground that it is vague, embarrassing and bad in law and discloses no cause of action; the D exception was upheld on the ground that in order to make out a case for the relief claimed the appellant would have to show that he belonged to the race known as Cape Malays and that the allegations in the declaration, even if admitted, do not show this.

At the commencement of his argument in this Court appellant's counsel asked that para. (a) of the summons and of the prayer to the declaration E be amended by striking out the words 'and prior to the promulgation of Act 41 of 1950'. By consent this was done.

The issue in this appeal is whether, on the true construction of sec. 1 of Act 12 of 1924, exemption from the restrictive provisions in sec. 1 of Law 3 of 1885 (Transvaal) has been granted, as the respondents F contend, only to persons who by descent are Cape Malays, or whether, in accordance with appellant's contention, while descent may be a factor in the decision, the circumstances set out in para. 6 of his declaration must also be taken into account in deciding whether a person is a Cape Malay in terms of sec. 1 (2) of the 1924 Act. If the respondents' contention is correct, then it is clear from the decision in this Court G in Rex v Radebe and Others, 1945 AD 590, and the facts as to the appellant's parentage appearing in paras. 4 and 5 of his declaration, that he is not entitled to the benefits granted by the 1924 Act.

Sec. 1 of Law 3 of 1885 reads:

'Deze wet is van toepassing op de personen behoorende tot een der inboorlingrassen van Azië, waaronder begrepen zoogenaamde Koelies, Arabieren, Maleijers en Mohamedaansche onderdanen van het Turksche rijk,'

and sec. 2 (b) provides:

H 'Omtrent de personen bedoeld in Art. 1 zullen de volgende bepalingen van kracht zijn: . . . (b) Zij kunnen geen eigenaars zijn van vast goed in de Republiek.'

Secs. 1 and 2 of Act 12 of 1924 are in these terms:

'1 (1) From and after the commencement of this Act no Cape Malay shall, for the purposes of Law 3 of 1885, of the Transvaal, and of sec. 2 of the Asiatics

Greenberg JA

(Land and Trading) Amendment Act (Transvaal) 1919 (Act 37 of 1919), or any other law relating to Asiatics, be deemed to be a member of one of the native races of Asia.

(2) For the purposes of this Act a Cape Malay means a member of the race known as the Cape Malays who was born and is ordinarily resident in a part of South Africa now forming part of the Union.

2. Whenever in any suit or other civil proceedings to which he is a party or in any criminal proceedings in which he is accused, any person A claims or sets up the defence that he is a Cape Malay, the burden of proving the assertion shall be upon such person.'

Sec. 1 of the 1885 Law was considered by this Court, in a question relevant to the point now in issue, in Transvaal Arcade Ltd v Rand Townships Registrar, 1923 AD 442. In that case the Court had before it B information by way of affidavits in regard to facts throwing light on the meaning of the terms in sec. 1 'zoogenaamde Koelies, Arabieren, Maleijers' (so-called Coolies, Arabs and Malays); such information we have not got in this case, but INNES, C.J., in giving the judgment of the Court, said (at p. 446) that the affidavits embody what is common C knowledge to those acquainted with the circumstances and conditions of the country, and on this basis the judgment is applicable to the case now before us. The learned CHIEF JUSTICE drew attention to the word 'zoogenaamde' in the section, which he said qualified Coolies, Arabs and Malays; it was not contended before us that we should not accept this interpretation. He held that the term 'Malays' was intended to denote a D class of persons in South Africa, a distinct and distinctive section of the population here. He did not construe the term as meaning the same as 'the Malay race.'

It is I think clear that Act 12 of 1924 was passed in order to remedy what the learned CHIEF JUSTICE described as the harshness of subjecting E members of this class to the provisions of the restriction imposed in regard to the ownership of land by the 1885 Act and this consideration renders it likely that the exemption from the restriction contained in Act 12 would be an exemption in regard to such class. Moreover in sec. 1 (2) of this Act, the exemption is granted in favour of members of the race 'known as the Cape Malays'. If this were an exemption based solely F on ethnological grounds, on grounds in which the sole factor is one of descent, then the words 'known as' would not have been used; the exemption would have been granted in favour of the members of that race. The primary meaning of 'race', according to the Shorter Oxford English Dictionary, is 'a group of persons . . . connected by common descent and origin' and this common descent and origin would constitute the race. G But the word is often used in a sense less clearly connected with the idea of descent, as when reference is made to the 'two white races of South Africa'. Moreover, the use of the words 'known as' indicates that what constitutes the group in question is the general view as to what are the factors constituting the class, which is a far more indefinite H concept than the narrow conception of race and cannot be decided without evidence as to what the general view is. In Mall v Registrar of Companies, 1946 AD 727, the Court at p. 741, on the authority of the Transvaal Arcade Company case, supra, said:

'. . . the application of any rigid test as to racial purity for the purpose of ascertaining who is and who is not a Cape Malay would clearly be out of place.'

This is in harmony with the view I have already expressed as to the

Greenberg JA

meaning of Act 12 of 1924. But there are passages at p. 740 of Mall's case which emphasise the difference between the words 'a member of the race known as the Cape Malays' in sec. 1 (2) of this Act and the definition inserted into Act 37 of...