On the 29th of December 1931, the Postmaster- General instructed his subordinates to divide the Pietersburg Post Office into two new portions, the one for the service of ‘Europeans Only’ and the other for the service of ‘Non-Europeans’. Prior to these instructions Mr. Rasool, an Indian, was allowed to use the ‘European’ counter. Consequently, after these instructions Mr. Rasool was obliged to use the ‘Non-European’ counter. Mr Rasool objected and instituted legal proceedings. He succeeded in obtaining an order in chambers in the form of a mandamus from the Transvaal Provincial Division. The mandamus compelled the Postmaster General to retract the above mentioned instructions. Upon appeal to a full bench of the same court this order was confirmed. Appellants have now brought a further to the present Court.
The fundamental issue posed to the Court is whether or not the instructions issued by the Postmaster-General were ultra vires. The Court therefore had to determine the constitutional validity of separate public services based on racial segregation. The crux of the matter was therefore whether or not this racial segregation constituted ‘discrimination’, and whether this was unreasonable. the test used to determine the unreasonableness of a by-law was adopted from Lord Russell in Kruse v Johnson . in determining this critical issue, the Court needs to decide whether they consider themselves bound by the doctrine of ‘separate but equal’. Arguments of the Appellant and respondent
The appellant argued that in terms of our law, there is no such rule as a ‘specific prohibition of discrimination’. He exclaims that the entire matter turns on interpreting the intention of the Legislature, which must be viewed in accordance with the accepted rules of interpretation and policy of Legislature. In order to ascertain the intention of the Legislature he proposes the tests used in Kruse v...