Rex v Mpanza

• Jurisdiction: South Africa
• Citation: 1946 AD 763

Rex Respondent v Mpanza Appellant
1946 AD 763

1946 AD p763

Citation	1946 AD 763
Court	Appellate Division
Judge	Watermeyer CJ, Tindall JA, Greenberg JA, Schreiner JA and Feetham AJA
Heard	June 4, 1946; June 10, 1946
Judgment	September 19, 1946

Flynote : Sleutelwoorde

Native — Letter of exemption issued under Law 28 of 1865 (Natal) — Exemption from operation of "Native Law" — Holder not subject to provisions of section 5 (1) (b) of Act 38 of 1927

Headnote : Kopnota

A native, who is the holder of a registered letter of exemption from the operation of native law issued to him under the provisions of law 28 of 1865 (Natal) and by virtue of section 31 (3) of Act 38 of 1927 deemed to have been issued under Act 38 of 1927, is not subject to the provisions of section 5 (1) (b) of Act 38 of 1927 which, inter alia, confers upon the Governor-General a power to order the removal of a native from any place to any other place.

The decision of the Transvaal Provincial Division in Rex v Mpanza reversed.

Case Information

Appeal from a decision of the Transvaal Provincial Division (BARRY, J.P., and NESER, J.) dismissing an appeal from a conviction in the Magistrate's Court, Johannesburg. The facts appear from the judgment of WATERMEYER, C.J.

L. Lawrence, for appellant: The provisions of sec. 5 (1) (b), Act 38 of 1927 are not applicable to appellant in that he is an exempted Native under Natal Law 28 of 1865; see sec. 31 (3), Act 38 of 1927; appellant by reason of his said exemption was at all material times not subject to Native tribal law or custom, nor was he subject to tribal organisation and control, nor subject to the provisions of the Natal Native Code, Natal Law 28 of 1864 and Law 19 of 1891. The words "any Native" in sec. 5 (l) (b), Act 38 of 1927, mean any Native of a tribe, that is any Native subject to tribal organisation and control, and that the Legislature intended the said words to have this limited; scope; the Court will have regard to the previous history of the law on the subject which clearly only applied to tribal Natives or Natives subject to Native law and custom and tribal control Mokhatle and Other v Union Government (1926 AD 71 at 80); sec. 37, Law 19 of 1891 (Natal); sec. 13, Law 4 of 1885 (Transvaal); sec. 7, Law 44 of 1887 (Natal); Budgett Cooper v Adams (1894, 2 Ch. D. 557 at 561-2); Mayor and Councillors of Portsmouth v Smith (10 A.C. 364 at 371); Rex v Detody (1926 AD 198). Sec. 5 (l) (b), Act 38 of 1927 is similar to sec. 37, Natal Law 19 of 1891, and should be read in the sense of sec. 37, and it is legitimate to refer to all the rest of Law 19 of 1891 in order to ascertain what is meant by the words "any Native" in sec.

1946 AD p764

5 (1)(b); the meaning of sec. 37 has received judicial interpretation and clearly only applies to tribal Natives subject to Native law and custom, Mokhatle's case (supra), Smith's case (supra), Ex parte Minister of Justice in re Rex v Bolon (1941 AD 345); Barras v Aberdeen Steam Trawling & Fishing Co., Ltd. (1933, A.C. 402); Morake v Dubedube (1928 T.P.D. 625); sec. 37, Natal Law, 19 of 1891 is not expressly repealed by Act 38 of 1927, and if possible sec. 5 (l) (b) of the latter Act should be read with sec. 37 of the former Act; The Queen v Bishop of Oxford (4 Q.B.D. 525 at 535); the Legislature must have been aware of the decision in Mdkhatle and Others v Union Government (supra) and it is inconceivable therefore that when enacting sec. 5 (l) (b), Act 38 of 1927, it intended to amend the law as set out in said decision; the words it any "Native" in sec. 5 (l) (b) should be interpreted in the light of the heading of Chapter 2, Act 38 of 1927, which refers to "Tribal Organisation and Control"; Arrow Shipping Co. v Tyne Improvement Commissioners (1894, A.C. at 529, 530); Inglis v Robertson and Baxter (1898, A.C. 616 at 624, 630); Martins v Fowler (1926, A.C. 746 at 750, 751); Turffontein Estates Ltd. v Mining Commissioners of Johannesburg (1917 AD 419 at 431); the heading of sec. 5 of the Act may be regarded as a preamble to the sections following; Fletcher v Birkenhead Corporation. (1907, 1 K.B. 205 at 218); Martin's case (supra); in determining the meaning of the words any "Native" in sec. 5 (l) (b), the ejusdem generis rule should be applied; Rex v Nolte (1928 AD 377 at 382); Sacks v City Council of Johannesburg (1931 T.P.D. 443 at 447); Tillmans & Co. v S. S. Knutsford Ltd. (1908, 2 K.B. 3851; Director of Education, Transvaal v McCagie and Others (1918 AD 616 at 623); Alli v Pretoria Municipal Council (1908 T.S. 1120 at 1123, 1124); Maxwell, Interpretation of Statutes (4th ed., at p. 499); the words "any Native" in sec. 5 (1) (b) cannot mean any Native whatsoever as Natives of the Cape Province are impliedly excluded; sec. 1, Act 38 of 1927; the context and subject matter shows that the words defined were intended to have a meaning different from that set forth in the interpretation clause of the Act which is much wider, see Town Council of Springs v Moosa and Another (1929 AD 401); there is a similar definition of "Native" in Law 19 of 1891 (Natal), and Law 4 of 1885 (Transvaal); in order to arrive at the meaning of sec. 5, Act 38 of 1927, regard should be had to the scope and object of the section, Mokhatle's case (supra); Rex v Detody (1926 AD 198). If the

1946 AD p765

words "any Native" have only one meaning, the Court should depart from the literal meaning as it would tend to a glaring absurdity or results contrary to the intention of the legislature, Shenker v The Master (1936 AD 136 at 142); Storm & Co. v Durban Municipality (1925 AD 49); Venter v Rex (1907 T.S. 919); Rex v Jaspan and Another (1940 AD 9); Rex v Detody (supra); Mokhatle's case (supra); in case of doubt, sec. (1) (b), as It contains harsh provisions, should be interpreted restrictively, Maxwell Interpretation of Statutes (8th ed., pp. 177-180), Mpanza v Minister of Native Affairs and Others (1946 W.L.D. 11th March, unreported); Borcherds N.O. v Rhodesia Chrome & Asbestos Co., Ltd. (1930 AD 112); Simms v Registrar of Probates (1900, A.C. 323 at 335). The exemption of a Native effects a change of status and such Native becomes subject to the ordinary laws of the land, Mahludi v Rex (26 N.L.R. 298 (minority judgment)); Radebe v Rex (1905, N.L.R. 260); Lutayi v Tsheli (1895, N.L.R. 26).

The removal order was invalid in that appellant was not given a lair opportunity of answering the allegations made against him, Shidiack v Union Government (1912 AD 646); Rex v Mabi and Others (1935 T.P.D. 408); de Verteuil v Knaggs (1918, A.C. 557); Sachs v Minister of Justice (1934 AD 11); Kadalie v Hemsworth N.O. (1928 T.P.D. 495); Nanabhay v Potchefstroom Municipality (1926 T.P.D. 483). The Governor-General is given a discretion as to the terms and conditions of removal, and even if appellant was not entitled to a hearing on the merits, he was at least entitled to have been heard on the terms and...