Shidiack v Union Government (Minister of the Interior)

• Jurisdiction: South Africa
• Judge: Coram Innes ACJ, Solomon J and CG Maasdorp JP
• Judgment Date: 02 November 1912
• Citation: 1912 AD 642
• Court: Appellate Division

Innes, A.C.J.:

The facts of this controversy have been fully set out in the reasons of the Judge of first instance; the point in dispute being whether the applicant's two sons are "prohibited immigrants," and as such liable to exclusion from the Union by virtue of the provisions of the Cape Immigration Act, 1906. The applicant himself is a Syrian who has resided for some years in the district of East London, who has property there, and who has been a locally naturalised British subject since 1905. His wife has never left their old home, but his two minor sons are desirous of joining their father. They arrived by steamer in May last, but were refused permission to land, and would have been sent back but for the institution of legal proceedings, the final result of which they are now, under Departmental supervision, awaiting. The case made by the respondent is that they are unable to satisfy; the educational test required by the third section of the Act, and are on that ground "prohibited

Innes, A.C.J.

immigrants," to whom none of the statutory exemptions apply. The appellant contends on the other hand that his sons are not hit by the provisions of the said section properly interpreted and applied; and that even if they are, protection is afforded them not only by the terms of the fourth section, but by certain common law considerations outside the Act. The main point to be determined is whether they fall (unless specially exempted) within the meaning of prohibited immigrants "as used in the statute. And that depends entirely upon the correct interpretation of section 3 (a). The measure is by no means a model of draftmanship, and the clause in question is not very happily expressed. It directs that the term prohibited immigrant" shall include inter alios "any person who when asked to do so by any duly authorised officer shall be unable, through deficient education, to himself write out and sign in the characters of any European language, an application to the satisfaction of the Minister." It was not considered necessary to define the nature of the application; but we may take it that what the Legislature had in mind was an application for permission to enter the country. And the words "to himself write out and sign" clearly indicate that the immigrant is to be entitled to no assistance in the performance of his task. The application thus written is to be "to the satisfaction of the Minister," and the question at once arises whether the Minister can rightly depute an Immigration Officer or any other official to exercise the discretion thus conferred. No doubt a public officer may for ordinary Ministerial purposes act through a deputy (see Walsh v Southworth, 6 Exch., p. 156, and Forsyth, p. 83). But where the Legislature places upon any official the responsibility of exercising a discretion which the nature of the subject matter and the language of the section show can only be properly exercised in a judicial spirit, then that responsibility cannot be vicariously discharged. The persons concerned have a right to demand the judgment of the specially selected officer. The exclusion of intending immigrants on the ground of defective education is a matter needing careful discrimination and is of vital moment to the ap-

Innes, A.C.J.

plicants. Hence the Legislature has prescribed a test which is to be discharged "to the satisfaction of the Minister," and that cannot mean to the satisfaction of anybody else. The exercise of the personal discretion and judgment of the Minister is required by other subheads of the same section. Thus any person convicted of any of certain specified crimes "who by reason of the circumstances connected with such offence is deemed by the Minister to be an undesirable." is a prohibited immigrant. Also every person who from information officially received from any Secretary of State or through diplomatic channels "is deemed by the Minister to be an undesirable." It could surely not be contended that the Minister could submit his diplomatic and official correspondence, or the dossier of a convicted criminal, to a subordinate official for decision as to the discretionary exclusion of the person concerned. And the exercise of judgment is in our opinion intended to be as exclusively personal in the first instance in which the section requires it as in the second or third, It is true that regulations have been promulgated under the eighth section of the Act which purport to empower an immigration officer to exercise the discretion entrusted by the statute to the Minister alone. But those regulations cannot validly go beyond or run counter to the provisions of the measure under which they originate; and to the extent to which they do that they are of no effect. If the Act requires the satisfaction of the Minister himself it is not competent for the Governor-in-Council to declare by regulation that the satisfaction of a subordinate official will suffice. There is nothing in the statute which either expressly or impliedly forbids the Court to test the validity of these regulations, and we cannot think that, in so far as they purport to confer upon an Immigration Officer a special discretion which the Act under which they were framed gives solely to the Minister they can be of any binding force. We were referred to several Cape decisions - of which Gerber v Union Government (1911 CPD 815) may be taken as a type - to the effect that, the duty in question being merely, administrative, it was within the power of the Minister to delegate his authority

Innes, A.C.J.

to any person authorised under the regulations. But for the reasons already given we feel bound to differ on this point from those cases. Nor have we lost sight, in arriving at this conclusion, of the considerations pressed upon Us by Mr. Russell in the course of his very able argument. The principles which regulate the right of delegation by one agent to another can not assist us here. For the Minister is not an agent; he is the person selected by Parliament to exercise a personal discretion and judgment in regard to a matter of great public importance, and the doctrine of agency cannot regulate his power or his responsibility. Had it been intended that he should be at liberty to depute some person to be "satisfied" in his stead, we would have expected a direct provision to that effect. Such provisions find a place in numbers of statutes...