Principal Immigration Officer v Bhula

• Jurisdiction: South Africa
• Judge: De Villiers CJ, Wessels JA, Curlewis JA, Stratford JA and Roos JA
• Judgment Date: 05 May 1931
• Citation: 1931 AD 323
• Hearing Date: 07 April 1931
• Court: Appellate Division

Wessels, J.A.:

In this matter the following questions were submitted by the Immigrants' Appeal Board to the Transvaal Provincial Division under Act No. 22 of 1913, sec. 3 (2): -

1. Whether if the appellant when he entered the Transvaal was the stepchild of Bhagwan Mangar (i e., the child by a former marriage of Rattan, the wife of Bhagwan Mangar) the appellant was a child of Bhagwan Mangar within the meaning of sec. 2 (g) of Act 15 of 1907, and so became lawfully resident in the Transvaal and entitled to receive a certificate of registration under sec. 5 (1) of Act 2 of 1907?

2. Whether it was a misrepresentation in the appellant's application for registration to describe the appellant as the child of Bhagwan Mangar when he was in fact the stepchild of Bhagwan Mangar?

3. Whether, assuming this description to have been a misrepresentation, the board was entitled to find, in view of the actual relationship between the parties, that the misrepresentation was fraudulent and that the appellant's registration certificate had been obtained by fraudulent misrepresentation within the meaning of sec. 5 of Act 87 of 1927?

4. Whether sec. 10 of Act 22 of 1913, as amended by sec. 5 of Act 37 of 1927 is retrospective in operation so as to enable the Board to cancel a certificate of registration?

5. Whether the appellant as the lawful holder of a certificate of registration granted to him prior to the Minister's deeming order of the 1st August, 1913, is or can be affected by the said order so as to be a prohibited immigrant under sec. 4 (1) (a) of Act 22 of 1913 (Annexure A)?

Wessels, J.A.

6. Whether, if the present Minister of the Interior (who was in office when the prohibition notice was served) has made no order in terms of sec. 4 (1) (a) of Act 22 of 1913 affecting the appellant or any class of which he is a member, the applicant is a prohibited immigrant under that section?

7. Whether the appellant, in the circumstances of his entry into the Transvaal, was capable of acquiring domicile within the meaning of Act 22 of 1913?

Sec. 3 (2) of the Immigration Act of 1913 contemplates that all the questions of law submitted to the Court by the Board should be answered by the Court. It appears, however, that in the court below both counsel were agreed that if question 4 were answered in favour of the respondent, it was unnecessary to consider the other questions. As the Provincial Division had already decided in the case of Essa Osman v Commissioner for Immigration and Asiatic Affairs that sec. 10 of Act 22 of 1913, as amended by sec. 5 of Act 37 of 1927, is not retrospective in regard to persons who held certificates granted under the Immigration Acts in force in the Transvaal prior to 1913, the Court only dealt with question 4 and left the other questions unanswered. In the case of Essa Osman above referred to, the appellant Essa Osman entered the Transvaal in 1906 by virtue of an application made by Osman Essa in which he stated that Essa Osman was his son. Later, on 19th March, 1908, Essa Osman applied for registration under Act 2 of 1907 (Transvaal), and declared that Osman Essa was his father. Thereupon in April, 1908, a registration certificate was issued to him under the provisions of Act 2 of 1907. The Court held that, inasmuch as the certificate was granted to Essa Osman prior to 1913, it was conclusive evidence that he was not a prohibited immigrant and that the Immigration Board could not go behind this certificate, for although sec. 5 of Act 37 of 1927 permitted the cancellation of a certificate obtained by the fraud of the applicant or of a third party, it did not operate upon certificates granted prior to 1913.

In the present matter the Transvaal Provincial Division followed the decision in Essa Osman's case and held that, assuming that a certificate was granted to the respondent Bawa Bhula by the fraud or misrepresentation of third parties, of which he was innocent, this certificate could not be set aside as Act 37 of 1927, sec.

Wessels, J.A.

5, was not retrospective so as to apply to Asiatics in the Transvaal who had obtained certificates prior to 1913. Act 22 of 1913, sec. 10, provides that no prohibited immigrant is exempt from the provisions of the Act if he had been allowed to enter the Union or a Province through oversight, misrepresentation, or owing to the fact having been undiscovered that he was such a prohibited immigrant.

Act 37 of 1927, sec. 5, added to sec. 10 a sub-sec. (2) to the effect that if a prohibited immigrant is in possession of a registration certificate, an Immigration Board to which he appeals may set aside his certificate if it was obtained by his own fraudulent misrepresentation or by the fraudulent misrepresentation of someone on his behalf. If he does not appeal to a Board the Principal Immigration Officer may cancel the certificate subject to the approval of the Minister.

The question whether sec. 5 of Act 37 of 1927 permitted the cancellation of a certificate issued in 1915 was considered in Purshotam's case (1928 AD 435). It was there held by this Court that sec. 6 of the Act of 1927 must be read together with sec. 10 of the Act of 1913 as if these sections had been promulgated together, and therefore sec. 5 (now sec. 10, sub-sec. (2) of Act 22 of 1913), applied to a case where a certificate of registration was granted in 1915. It was not necessary in Purshotam's case to consider whether sec. 5 of Act 37 of 1927 applied to a case like the present where an Asiatic holds a certificate of registration granted prior to 1913 and where such a certificate was not obtained by the fraud of the applicant. The Court was not called upon to consider what the effect was of sec. 5 of Act 37 of 1927 on the provision 4 (2) (b) of the Act of 1913 whereby holders of certificates of registration granted in the Transvaal prior to 1913 were safeguarded. No doubt the language of sec. 5 is very wide, and were it not for sec. 4 (2) (b) of the Act of 1913, might be said to apply to all certificates, whether granted before or after 1913. The Court came to the conclusion that the Legislature intended sec. 5 to be read as if it had originally formed part of the Immigration Act of 1913, but it did not consider what the position would be of Asiatics who had in the Transvaal obtained registration certificates prior to the Act and whose rights the Act specifically protects. The decision in Purshotam's case, therefore, does not settle the question in the present appeal. The principle adopted in deciding

Wessels, J.A.

Purshotam's case was that laid down by Lord HATHERLEY in Pardo v Bingham (4 Ch. App. Cas at 740) - "We must look to the general scope and purview of the Statute and at the remedy sought to be applied, and consider what was the former state of the law and what it was that the Legislature contemplated." The present CHIEF JUSTICE, in giving the majority judgment, reviewed the history of the legislation and of the decided cases bearing on the Act. There had been several decisions in the Transvaal to the effect that a certificate of registration which was conclusive proof that the holder was not a prohibited immigrant could be set aside by the Court if obtained by the fraud of the holder. Though a certificate obtained by such fraud purported to be a certificate it was in fact no certificate, for a person could not be the lawful holder of a document which he obtained by his own fraud. - (R. v Pumbhoo (1914 T.P.D. 110); Ismail v Moosa (1922 T.P.D. 66). In Registrar of Asiatics v Salajee (192,5 T.P.D. 71) the question arose whether a certificate of registration obtained by the fraud not of the holder, but of a third party not authorised by the holder to commit the fraud on his behalf, and of which he was innocent, could be set aside. The Court decided...