Transvaal Provincial Administration v Letanka

• Jurisdiction: South Africa
• Citation: 1923 AD 102

Transvaal Provincial Administration Appellant v Letanka Respondent
1923 AD 102

1923 AD p102

Citation	1923 AD 102
Court	Appellate Division, Bloemfontein
Judge	Innes CJ, Solomon JA, De Villiers JA, Juta JA and Kotzé JA
Heard	October 25, 1922
Judgment	November 13, 1922

Flynote : Sleutelwoorde

Provincial Council — Powers — ultra vires — Native poll tax — Act 5 of 1921, sec. (3) 2 — Ordinance 7 of 1921 (T.).

Headnote : Kopnota

The Transvaal Provincial Ordinance No. 7 of 1921, in so far as it imposes a poll tax, upon natives is ultra vires of the Provincial Council in that it conflicts with the provisions of sec. 3 (2) of Act 5 of 1921.

The decision of the Transvaal Provincial Division in Transvaal Provincial Administration v Letanka, confirmed.

Case Information

Appeal from a decision of the Transvaal Provincial Division (MASON, Actg. J.P.; CURLEWIS, J and STRATFORD, J.).

1923 AD p103

Plaintiff Administration sued Defendants a native, to recover £2 10s being the amount of poll tax due in terms of Ordinance No. 7 of 1921.

Defendant excepted to the declaration on the ground that the Ordinance in so far as it imposed a tax on natives was under sec. 3 (2) of Act 5 of 1921 ultra vires of the Provincial Council.

The Trial Court following its previous decision in Rex v Letanka allowed the exception with costs.

Plaintiff appealed.

C. W. de Villiers, K.C., A.-G., Tvl. (with him H. Neser), for the appellant: I submit that the requirements of Act 5 of 1921 have been carried out in Ordinance 7 of 1921 (Transvaal).

The object of the legislature in Act 5 of 1921 was merely to protect natives against taxation at a higher rate than non-natives. Consequently there is nothing to prevent natives being taxed at a lower rate than non-natives.

The word "like" in sec. 3, sub-sec. (2) of Act 5 of 1921 is not synonymous with "the same." As applied to rate of taxation it means a rate not lower than non-natives. It is not necessary for me to go so far as this, as I submit the rate is the same for natives as for non-natives. The provision for increased taxation in the event of payment of income tax is, I submit, additional taxation.

As to the meaning of the word "like" in sec. 3, sub-sec. (2) of Act 5 of 1921 as applied to incidence it was practically impossible for the Provincial Council to provide for the same incidence for natives as for non-natives without causing hardship to the natives.

As to appearance being the test of age in sec. 2 of Ordinance T of 1921 I submit that the Provincial Council did not intend appearance to be the exclusive test. A Court would not be bound to apply that test in the face of conclusive evidence, e.g., by way of a birth certificate.

The test of appearance was taken over from (Transvaal) Act 9 of 1908, sec. 2.

As to exemption under sec. 15 (2) of the Ordinance on the ground of indigency, I submit that "indigent" means having no more than sufficient to supply the necessaries of life. The Provincial Council had to take into consideration the respective economic positions of natives and non-natives. See the following passage from the judgment of INNES, C.J. in Middelburg Municipality v Gertzen (1915 AD at p. 551). "No department of human activity is entirely insulated. It ramifies into other departments, affecting

1923 AD p104

and being in turn affected by them. And therefore no general subject matter can be fully regulated without incidentally dealing with matters which, strictly speaking, lie beyond it."

The discrimination between native and non-native was necessary because a non-native cannot always obtain employment, whereas a native always can. The discrimination as to indigency was necessary to obtain equality of treatment. Though there may possibly be hardship in some cases the Legislature was looking at the class and not at the individual. The object was to impose the tax on all persons able to pay it.

I admit that if the...