Principal Immigration Officer v Hawabu and Another

• Jurisdiction: South Africa
• Judge: Curlewis ACJ, Stratford JA, Beyers JA, De Villiers JA and De Wet AJA
• Judgment Date: 22 October 1935
• Hearing Date: 11 October 1935
• Court: Appellate Division

De Villiers, J.A.:

This is an appeal from the Natal Provincial Division, and the history of the case is sufficiently set out in the judgment of HATHORN, J., as follows: "In November, 1920, Mahomed Jeewa Desai, an Indian legally domiciled in Natal, introduced into Natal, with the permission of the Principal Immigration Officer, his wife Ayesha. His union with her was recognised as a marriage under the tenets of an Indian religion. In 1922 a daughter, Amina., was born of the union. In 1923 Mahomed Jeewa Desai visited India with Ayesha and Amina. In 1924, in India, there was born to him by Ayesha a son, Goolam Hoosen. In 1930 Mahomed Jeewa Desai re-introduced Ayesha and the two children Amina and Goolam Hoosen into Natal. In 1932 he proceeded with Ayesha to India, leaving the two children, Amina and Goolam Hoosen, in Natal. In 1932 he returned to Natal, but he was not accompanied by Ayesha. She is still living. Between January and August, 1932, while he was in India, be married the appellant, Hawabu, his union with her being recognised as a marriage under the tenets of an Indian religion. The appellant, Ahmad, is a child of that union. In August, 1934, Amina and Goolam Hoosen, the two children of Mahomed Jeewa Desai and Ayesha, assisted by their father made application for and obtained certificates of identity. Thereupon, on 20th August, 1934, they proceeded to India. Their ordinary place of residence is in Natal, their absence being temporary. The appellants Hawabu and Ahmad arrived at Durban on 7th November, 1934, that is at a time when Amina and Goolam Hoosen were absent from Natal. These two latter dates of arrival and departure were not in the stated case, but by consent they were added at the hearing.

"On these facts the Immigrants' Appeal Board came to the conclusion that Mahomed Jeewa Desai had in Natal offspring by another woman who is still living, as contemplated by sec. 3 (2) (b) of Act 22 of 1914.

"At the request of the appellants, the opinion of the Court is asked upon the following questions: -

(1)

Whether the Board was legally correct in finding that Mahomed Jeewa Desai had offspring (viz., Amina and Goolam Hoosen) in Natal within the meaning of sec. 3 (2) (b) of Act 22 of 1914 because it is found that the ordinary residence of the said

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offspring is in Natal and that they are temporarily absent on a visit to India.

"(2)

Whether Mahomed Jeewa Desai has the said offspring in Natal within the meaning of the said section when they are absent on a stay in India, which may be lengthy and when no bad faith or deliberate intent to evade the said section had been found against the said Desai.

"(3)

Is the criterion whether Mahomed Jeewa Desai has Amina and Goolam Hoosen in Natal (a) their physical presence in Natal or (b) their ordinary residence in Natal, including in such residence any really temporary absences or absences deliberately intended to evade the said section, but not including bona fide absences for a considerable period of time, or (e) ordinary residence in Natal, even including bona fide absences for a considerable period of time, or (d) their domicile in Natal."

These questions were answered as follows by the Natal Provincial Division:

"Question 1: No.

"Question 2: No.

"Question 3: Physical presence in Natal is the test. But by this answer the Court does not decide whether temporary absence deliberately intended to evade the section would be in fraudem legis or not, because that question does not arise in the present case. "

The Principal Immigration Officer now appeals to this Court. The sections involved are sec. 5 (g) of Act 22 of 1913 and see. 3 (2) of Act 22 of 1914. Sec. 5 (g) reads as follows (so far as material): "The following persons or classes of persons shall not be prohibited immigrants for the purposes of this Act, namely: (g) Any person who is proved to the satisfaction of the Immigration Officer, or, in the case of an appeal, to the satisfaction of the Board, to be the wife, or the child under the age of 16 years, of any person exempted by paragraph (f) of this section."

Sec. 3 (2) of Act 22 of 1914 provides that in the interpretation of sec. 5 (g): "'the wife' shall include any one woman between whom and the exempted person mentioned therein there exists a union recognised as a marriage under the tenets of an Indian religion, notwithstanding that by those tenets the union of that exempted person with other women at the same time would also

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be recognised as a marriage: Provided that no woman shall be deemed to be the wife of such exempted person - (a) if such union exists between him and any other woman who resides in any province; or

"(b) if such exempted person has in any province offspring by any other woman who is still living; 'the child under the age of sixteen' shall mean a child who is the offspring of the exempted person and the wife as herein defined, or the child of the exempted...