THE COLOUR BAR.

Press, Volume LIX, Issue 17922, 16 November 1923, Page 9

THE COLOUR BAR.

ABOLISHED IN TRANSVAAL. BOMBSHELL FOR LABOUR. (BT CABL2-PEZ33 ASSOCIATIO.V-COPTBIGHT-) (EXUTEE'B TILIGaAJIS.) CAPE TOWN, November 14. The colour bar in Transvaal mines has been legally abolished as a result of the decision of the Transvaal Appeal Court, which declared yesterday that it was repugnant to the, general law of the land. The decision is a bombshell for Labour. A most important matter concerned with tho mining regulations and the colour bar came before the Supreme Court at Pretoria last month in the ease of Rex v . G. Hildich Smith, in the shape of a review of the Magistrate's judgment under section 10b' of the Magistrates' Court Act. Accused was charged with a contravention of the Mines, "Works, and Machinery Regulations, which provide that machinery shall be in charge of white persons. Jt was alleged that he had allowed coloured persons to manage a certain electric railway underground. The regulation in question provides: "The operation of or attendance on machinery shall be in charge of a competent shiftsnian in the Transvaal and 0.1T.5. Such should be a white man." The Magistrate found that the regulation was ultra vires by reason of it being unreasonable. The review was brought in order to test the position whether the Magistrate was correct or not in his finding. The Magistrate, in the course of his judgment, stated that it did not seem to be reasonable that a person should bo competent in the Cape and as he ciossed the border he should cease to be competent. The regulation did not apply to all classes alike, and he, therefore, agreed with the contention of the defence that the regulation was ultra vires. The Attorney-General, in his address to the Court, stated that the Magistrate appeared to have fallen into several errors. He seemed to hold that the regulation meant that a coloured person in the Transvaal was deemed to be incompetent. That was not so. The regulation said nothing about his being incompetent. It simply meant that in the Transvaal a white person should bo in charge; it did not say a coloured person should be deemed to be incompetent to manage machinery. Then the Magistrate seemed to think there was an onus on tho Crown to prove that a regulation under which it was charging a particular person was reasonable. That was wholly erroneous, and for the Magistrate to suggest that a litigant should 'justify the legislative authority was absurd. The points to be considered were: (1) The nature of the subject matter; (2) the terms in which the Legislature delegated its powers of legislation; and (3) the authorities to whom it delegated. The general rights of the public were not concerned. The Act placed restrictions on the owners and managers of mines with regard to the manner of mining, and the conclusion had been arrived at that in the Transvaal, having regard to the special circumstances, it was desirable that those restrictions should be placed on mining that a white. person should be in charge of machinery. That had been done for the purpose of ensuring safety in mining. The Court would not set aside a regulation unless it fell under one of the specified classes: (a) It was intended to be partial; (b) it was intended to be unequal in its operation as between different classes; (c) it was manifestly unjust; or (d) disclosed bad faith. Unless the regulation could be shown to ba wholly unreasonable, it must stand. Judge Krause, in delivering judgment, in which the other Judges concurred, said that the real point at issue was whether the regulation was not ultra vires in that it discriminated between white and coloured persons at all times. Whenever the Legislature has seen fit to place restrictions on tho rights of coloured persons, it had done so in express and clear words. In the absence of such a clear expression there could be no justification for differentiation, and it would bo dangerous to hold, in the absence of such express statutory provision, that power existed to make such a regulation.