FSAL Race Discrim/separate amenities

Question 1

FACTS: Minister of Posts and Telegraphs v Rasool 1934 AD 167

Answer 1

Facts:
Before December 1931, the Pietersburg Post Office was divided into two rooms, one for Europeans and Indians and the other for Natives. In December 1931 the Postmaster-General issued the instruction that Europeans were to be served in one room and all Non-Europeans in the other. Rasool, an Indian man, while receiving equal service at both counters, objected to the new regulation and instituted legal action to have it revoked.

Question 2

Legal Issues Minister of Posts v Rasool

Answer 2

Section 3 of the Post Office Act 10 of 1911 confers power upon a Postmaster-General to: “issue… instructions as he may deem necessary for the conduct and guidance of officers in carrying out the provisions of the Act”. The judges of the Appellate Division court had to decide whether the instructions of the Postmaster-General were ultra vires the provisions set out above.

Question 3

Appellants Minister of Posts v Rasool

Answer 3

Appellant [Min. of Posts and Telegraphs]: The classification or separation of races is not unlawful and is constantly resorted to by other institutions for the sake of convenience. The assumption that this practice treats certain races or classes as inferior is wrong.

Question 4

Respondents Minister of Posts v Rasool

Answer 4

Respondent [Rasool]: Discrimination on grounds of race or colour is prima facie wrong regardless of the quality of service each group receives. Furthermore, the Legislature had not sanctioned the Postmaster-General to discriminate on race or class lines and hence he did not have the authority to pass such by-laws and his action was ultra vires.

Question 5

majority Judgment of Minister of Posts v Rasool

Answer 5

Majority [Stratford ACJ, Beyers JA, De Villiers JA]:

1. They interpreted ‘discrimination’ not as mere division on race lines, but rather as a difference in the way one treats different race groups.
2. The quality of service provided to both groups was of an equal standard
3. Furthermore, the majority found that the division of the post office into “Europeans” and “Non-Europeans” was convenient and allowed the officials to serve the public more efficiently.

Question 6

minority Judgement of Minister of Posts v Rasool

Answer 6

Gardiner AJA: [minority]

1. He states that the Post Office Act does not confer the power upon the Postmaster-General to make racial distinctions.
2. The service would not be more efficient anyways because there is nothing in common between the Bantu languages and the languages of India
3. This type of racial differentiation needs enforced by the Governor-General-in-Council under s147 of the South African Act, and all other race differentiations in the Union at the time had been specifically provided for by the Legislature in statutory form.
4. Hence, the Postmaster acted ultra vires.

Question 7

R v Abdurahman Facts

Answer 7

Abdurahman was a committee member of the Train Apartheid Resistance Committee. He incited non-Europeans to enter the section of a train that was marked: “Europeans only”. Abdurahman’s actions were said to be in contravention of s36 (b) of Act 22 of 1916 – an Act that dealt with general railway regulations. He was fined and found guilty in the court a quo. He appeals to the Appellate Division.

Question 8

R v Abdurahman Legal Issue

Answer 8

Did the provisions set out in reg. 20(c) of the General Railway Regulations that allowed Europeans access to the whole train while limiting non-Europeans access to just the sections that were unreserved amount to a partial or unequal treatment towards the latter?

Question 9

Appellants in R v Abdurahman

Answer 9

Appellant (Abdurahman): The administration does not have the power to make such wide discretionary decisions that will result in unequal treatment between races unless it has been specifically provided for by statute or the permission of the Governor-General.

The provisions under reg. 20(c) amount to an unfair partial and unequal treatment of non-Europeans and fail the “correct test” for the legitimacy of by-laws passed by municipalities as set out in Kruse v Johnson.

Question 10

respondents In R v Abdurahman

Answer 10

Respondent (The Crown): The Railway is permitted to, under s36 (a) of Act 22 of 1916 reserve a train or any portion thereof for the exclusive use of persons of a particular race or class. The respective treatment of the races does not amount to inequality and thus the provision is not unreasonable.

Question 11

Judgment R v Abdurahman

Answer 11

Centlivres JA:
[Watermeyer CJ, Greenberg JA, Schreiner JA & Murray AJA concurring]
1. In Kruse v Johnson, Lord Russell states that a by-law may be considered unreasonable if it amounts to “partial and unequal in its operation between different classes…”
2. Thus, there is nothing unreasonable about the regulation, there is, however, unreasonableness in the way it was applied. The Railway Administration acted ultra vires. Unlike in Rasool v Minister of Posts and Telegraphs, the races were treated unequally.
3. The result of this is that discrimination on the grounds of race is perfectly legitimate, provided that the races are treated the same after that discrimination.
4. Thus, the partial and unequal treatment between the race groups renders the administrative action void and thus Abdurahman was not inciting people to commit an offence.

Question 12

Point of Interest in Abdurahman

Answer 12

Centlivres [145]: “It is the duty of the courts to hold the scales evenly between the different classes of the community and to declare invalid any practice which, in the absence of the authority of an Act of Parliament, results in unequal treatment to a substantial degree between the different sections of the community…”

Question 13

Min of Int v Lockhart facts

Answer 13

Lockhat was an Indian man who, along with 19 others, appealed against the Group Areas Act 77 of 1957. The Minister had proclaimed under this Act that certain areas in Durban were to be white-only areas. This meant that Lockhat would have to move out of his home to an area which he believed was far inferior to the one in which he then resided.

He challenged the proclamation on a number of grounds, mainly asking for more information and substantiation of the Minister’s actions.

Question 14

Min of Int v Lockhart Legal Issues

Answer 14

Whether the Group Areas Act authorised the Minister to make proclamations that would result in the unequal and partial treatment between races/classes.

Question 15

Min of Int v Lockhart appellant

Answer 15

Appellant (Min. of the Interior): The Minister is entitled to make regulation regarding the implementation of certain Acts, and the move does not result in unequal treatment. The intention was that the races be separate but equal as each will have land.

Question 16

Min of Int v Lockhart respondent

Answer 16

Respondent (Lockhat): The Group Areas Act failed to follow procedure as set out in the Act.

Secondly, the Minister must give due consideration to the effect of the proclamation on different groups.

Finally, there was a striking disparity between the accommodation available to Indians and the accommodation available to whites which results in partial and unequal treatment that was not authorised by the Act.

Question 17

Min of Int v Lockhart Judgement

Answer 17

Holmes JA:
[Steyn CJ, Ogilvie Thompson JA, Botha JA & Van Winsen AJA concurring]
1. There is a disparity between the areas available to Whites and Indians in terms of housing, accommodation and amenities.
2. However, Indians may live in the “mixed areas” where there is suitable accommodation
3. Furthermore, the Act does confer upon the Minister and Governor-General-In-Council the power to discriminate on racial grounds.
4. According to the decision in Rex v Abdurahman the necessary power must be given expressly or implicitly in the relevant Act. Holmes believes that the power was clearly implied.

Question 18

Min of Int v Lockhart interesting points

Answer 18

Interesting Points

1. The case reverses the decisions in Abdurahman and Lusu which diminished the little power that the courts had to decide in favour of individuals in cases of racial discrimination.
2. It became next to impossible to go against this precedent.
3. If Holmes had held the scales evenly between different classes of the community, the case may have been decided differently.

Question 19

R v Lusu

Answer 19

Lusu waited for his train in the white section of the train station and was charged with the same conviction as Abdurahman. The magistrate acquitted him on the precedent in Abdurahman. The state asked the court whether it would ever tolerate unequal treatment. The CPD dismissed the question saying that the state does not have unfettered power to treat races unequally.

The Appellate Division made the same finding. There was no intention on the part of Parliament in the available legislation that implied necessary discrimination of the grounds of race that would result in unequal treatment.