Principal Immigration Officer v Purshotam

• Jurisdiction: South Africa
• Citation: 1928 AD 435

Principal Immigration Officer Appellant v Purshotam Respondent
1928 AD 435

1928 AD p435

Citation	1928 AD 435
Court	Appellate Division, Bloemfontein
Judge	De Villiers JA, Curlewis JA, Stratford JA and JER De Villiers AJA
Heard	June 13, 1928
Judgment	June 22, 1928

Flynote : Sleutelwoorde

Immigration — Prohibited immigrant — Asiatic — Registration certificate obtained by fraud — Section 5 of Act 37 of 1927 — Whether retrospective.

Headnote : Kopnota

Section 5 of the Immigration and Indian Relief Act 37 of 1927 is retrospective. The decision of the Transvaal Provincial Division in Purshotam v Principal Immigration Officer, reversed.

Case Information

Appeal from a decision of the Transvaal Provincial Division (KRAUSE, J., VAN PITTIUS, J., and BARRY, J.), on a case stated by the Immigration Appeal Board in terms of sec. 3 (2) of Act 22 of 1913.

The facts appear from the judgment of DE VILLIERS, J.A.

1928 AD p436

V. H. Neser, for the appellant: The procedure under sec. 19 of Act 22 of 1913 applies to persons coming within sec. 10 of that Act. By sec. 5 of Act 37 of 1927 the Legislature has made it clear that it is applicable.

The reason for sec. 5 of Act 37 of 1927 is that sec. 10 of Acts 2 of 1907 and sec. 11 of Act 36 of 1908 (Transvaal) made certificates of registration held by immigrants conclusive evidence of their rights to be in the Transvaal. The decided cases on the effect of those sections are not consistent. In R v Purbhoo (1914 T.P.D. 110 at p. 117 & 121) it was held that a magistrate had no jurisdiction to require a prohibited immigrant holding a registration certificate under the Act of 1908 to leave the Transvaal and that the certificate was conclusive evidence of his right to remain. The question whether such a certificate could be attacked under any circumstances was discussed by MASON, J., at p. 117, but what he said was obiter dictum.

In Ishmael Moosa v Registrar of Asiatics (1922 T.P.D. 66 at p.69) MASON, J held that a certificate of registration, if granted as the result of fraud of the holder or of any other person, could be cancelled. The fraud of a third person was in issue in that case but the decision was set aside on the facts. In Registrar of Asiatics v Salajee (1924 T.P.D. 400) DE WAAL, J in chambers held that a registration certificate is conclusive whether obtained by fraud or not. On appeal (1925, J.P.D 71) it was held that a registration certificate cannot be cancelled unless the holder was guilty of fraud as he was not then the lawful holder but that a certificate obtained through the fraud of a third person, of which the holder was innocent, could not be set aside. Sec. 7 of Act 22 of 1914 also deals with the effect of registration certificates. See also In re Sayed Ali (1914 NPD 407).

[STRATFORD, J.A.: Do you contend that Act 37 of 1927 is retrospective before Act 22 of 1913]

It is not necessary for me to go so far.

The wording of sec. 5 of Act 37 of 1927 is retrospective first because the wording of the section shows the intention of the Legislature. I admit that Courts do not favour retrospectivity but where it is clear that the intention was to make a law retrospective it must be held that it is, in spite of hard cases. See Maxwell on Statutes (4th ed., p. 334 and Pardo v Bingham (4 Ch. Ap. Ca. 735). It follows from the conflict of decisions under the Transvaal Acts that sec. 5 of Act 37 of 1927 was intro-

1928 AD p437

duced with the object of enabling certificates previously issued to be attacked.

Whether the Act is retrospective or not sec. 10 of Act 22 of 1913 covers the present case and in effect repeals sec. 10 of the 190, Act and sec. 11 of the 1908 Act as to the conclusive effect of certificates. That section was not quoted in Salajee's case (supra). If this contention is correct, sec. 5 of Act 37 of 1927 was meant merely to provide a form of procedure. This is supported by the use of the words "such prohibited immigrant" referring to what is now the first sub-section of sec. 10 of the 1913 Act.

On the question of retrospectivity. See R v Fine (L.R. 10 Q.B. 195 at p. 199), in which it was held that a power to commit injustice with impunity cannot be a vested right; The Ironsides (167 E.R. 205 at p. 209) and Lane v Lane (1896, P.D. 133).

Act 22 of 1913 was retrospective - otherwise sec. 4 (2) (a) would have been unnecessary. See Mahomed v Immigration Officer (1923 CPD 175) and In re Feeda Hoosen (1915 NPD 381).

The Act is declaratory of sec. 10 of Act 22 of 1913 and should therefore have a retrospective effect. See Maxwell on Statutes (p. 333); Jones v Bennett (63 L.T. 705 at p. 708); Attorney-General v Marquis of Hertford (154 E.R. 1014 at p. 1021).

The Act relates only to procedure; sec. 5 of Act 37 of 1927 makes no change in the substantive law, as sec. 10 of Act 2 of 1907 and sec. 11 of Act 36 of 1908 were impliedly repealed by sec. 10 of Act 22 of 1913. The section provides that it is no longer necessary to bring a special action to have a certificate set aside.

As the Cape laws made no provision like that in the Transvaal Act a as to registration certificates being conclusive evidence and as the Act of 1927 applies to the whole of the Union it must have been intended that the Act should have retrospective effect.

P.Millin, K.C. (with him O. Rathhouse), for the respondent: There is need for sec. 5 of Act 37 of 1927 if it is not retrospective, as it will operate in the case of minors who apply for registration under sec. 5 (2) without qualification.

The registration certificate conferred an absolute right to reside in the Transvaal unless obtained by the fraud of the holder. The Act does not only deal with matters of procedure. It gives effect to the decision in Salajee's case (supra). The maxim Nova constitutio futuris formam imponere debet, non praeteritis applies.

1928 AD p438

See Maxwell on Statutes (6th ed., pp. 381 & 383). Where there is the slightest ambiguity, Courts lean strongly against retrospectivity. See R v Sigeau (12 C.S.C. 266) and Curtis v Johannesburg Municipality (1906, TS. 308).

Sec. 10 of Act 22 of 1913 merely means that a person who has entered by means of misrepresentation cannot be heard to advance the reason that he had entered by that mans as a ground on which he may remain. The section was not referred to in Salajee's case because immigration was not in question. It was an application under the common law based on fraud.

The effect of sec. 5 of Act 37 of 1927 is to add to sec. 10 of Act 22 of 1913 another class of person who shall not be deemed to have acquired domicile namely individuals who have registration certificates which had been fraudulently obtained.

The Act of 1927 shows no intention to take away existing rights; there is a presumption against such an intention. The Legislature made a change of policy taking the matter out of the hands of the Courts and dealing with it as one of administration.

It is possible to hold that a portion of the statute is retrospective.

Even if the change is only procedural, it is not retrospective, as existing rights are taken away.

As to R v Vine (supra, at p. 202) see Craies on Statute Law (3rd ed p. 337). The statute was repealed very shortly after the decision in that case. See Halsbury's Laws of England (vol. XXVII, p. 160, note m). The reason given in the leading judgment in Vine's case, namely public interest, does not apply. Salajee's case (supra) overruled MASON J's decision based on public interest. The Ironsides (supra) deals purely with procedure; the statute provided an additional remedy for what was always wrong. As to Curtis's case (supra) see (pp. 311, 315, 316); and Maxwell on Statutes (p. 398). A court will not give retrospective effect unless the language is clear and unambiguous. See Gardner v Lucas (3 A.C. 582 at p. 603 and 601 top); Young v Adams (1898, A.C. 469 at p. 476); Moon v Durden (154 E.R. 389) and Knight v Lee (1893, 1 Q.B. 41).

If the law was as laid down in Salajee's case (supra) the Act is not declaratory; moreover it is called an amending Act and not an Act to declare the law.

The fact that vested rights are involved in the Transvaal may be a reason for not construing the Act retrospectively anywhere in the Union.

1928 AD p439

Act 22 of 1913 had not a retrospective effect. The words "is found" in sec. 4 mean that one who has escaped detection at a port anal gets into the country is also a prohibited immigrant.

Neser, in reply: As to costs if the Court holds that the section partly retrospective see Regulation 19 (6) Government Notice 1079 of 1913 which shows that the respondent was responsible for the form of the question reserved.

Cur adv vult.

Postea (June 22nd).

Judgment

De Villiers, J.A.:

The following facts appear from the statement of case submitted by the Immigration Appeal Board in terms of sec. 3 (2) of Act 22 of 1913. On the 30th January, 1915, the respondent, an Asiatic, on arrival at Delagoa Bay under the name of Daya Purshotam, made a statement regarding his relatives claiming that his father's name was Purshotam Jiwan. On the 11th February of the same year Parsooth Jivin (Purshotam Jiwan) made a statement at Pretoria in which he claimed to be the father of Daya Purshotam. Thereafter on 17th February, 19: 15, an application for the Registration of Dava Parsooth (Daya...