FSAL Race Discrim/separate amenities Flashcards
FACTS: Minister of Posts and Telegraphs v Rasool 1934 AD 167
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.
Legal Issues Minister of Posts v Rasool
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.
Appellants Minister of Posts v Rasool
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.
Respondents Minister of Posts v Rasool
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.
majority Judgment of Minister of Posts v Rasool
Majority [Stratford ACJ, Beyers JA, De Villiers JA]:
- They interpreted ‘discrimination’ not as mere division on race lines, but rather as a difference in the way one treats different race groups.
- The quality of service provided to both groups was of an equal standard
- 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.
minority Judgement of Minister of Posts v Rasool
Gardiner AJA: [minority]
- He states that the Post Office Act does not confer the power upon the Postmaster-General to make racial distinctions.
- The service would not be more efficient anyways because there is nothing in common between the Bantu languages and the languages of India
- 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.
- Hence, the Postmaster acted ultra vires.
R v Abdurahman Facts
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.
R v Abdurahman Legal Issue
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?
Appellants in R v Abdurahman
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.
respondents In R v Abdurahman
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.
Judgment R v Abdurahman
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.
Point of Interest in Abdurahman
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…”
Min of Int v Lockhart facts
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.
Min of Int v Lockhart Legal Issues
Whether the Group Areas Act authorised the Minister to make proclamations that would result in the unequal and partial treatment between races/classes.
Min of Int v Lockhart appellant
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.