The Constitutional Crisis in South Africa

By P. KODANDA RAO, M.A.
(Servants of India Society)

The present Government of South Africa under Prime Minister Dr. D. F. Malan and his Nationalist Party is facing a highly complex problem on several fronts; it has created many conflicts by its policies. It provoked a most bitter controversy with the opposition Party, the Unionist Party, leading to threats of violence; it has provoked an equally bitter controversy with all the non-White Parties, leading to a movement of non-violent resistance to its policies and laws; it has provoked a controversy with the United Nations by ignoring its recommendations, leading to a situation which may well break up the United Nations; and finally, it has provoked a somewhat unexpected and unprecedented controversy with the judiciary in South Africa, leading to a most intriguing constitutional deadlock. The conflict between the two White Parties, the Nationalist and the Unionist, is largely political, that between the Whites and the non-Whites is largely racial, that with the United Nations is jurisdictional, and that between the legislature and the judiciary constitutional. The conflicts criss-cross as it were, to some extent. The Government and the opposition are more or less at one in their conflict with the non-Whites; the non-Whites and the Opposition are moreor less on common ground with regard to the political and constitutional issues against the Government.

Perhaps the most unusual and unexpected conflict, since resolved, was the constitutional one, which centred on the status of Sec. 152 of the South Africa Act of 1909 concerning the amendment of the Act since the passing of the Statute of Westminster in 1931. The relevant portion of the Section runs as follows:

Parliament may by law repeal or alter any of the provisions of this Act:

And provided further that no repeal or alteration of the provisions contained in this section or * * * in Sections 35 and 137 shall be valid unless the bill embodying such repeal or alteration shall be passed by both Houses of Parliament sitting together, and at the third reading be agreed to by not less than two-thirds of the total number of members of both Houses. A bill as passed at such joint meeting shall be taken to have been duly passed by both Houses of Parliament.

It will be noticed that Sec. 152 of the Act prescribed a special procedure for its own amendment and for the amendment of Sections 35 and 137.

The relevant part of Section 35 of the Act, as enacted in 1909, ran as follows:

35(1.) Parliament may by law prescribe the qualifications which shall be necessary to entitle persons to vote at the election of members of the House of Assembly, but no such law shall disqualify any person in the province of the Cape of Good Hope, who under the laws existing in the Colony of the Cape of Good Hope at the establishment of the Union, is or may become capable of being registered as voter from being so registered in the province of the Cape of Good Hopeby reason of his race or colour only, * * * unless the bill embodying such disqualification or alteration be passed by both Houses of Parliament sitting together, and at the third reading be agreed to by not less than two-thirds of the total number of members of both Houses.

A bill so passed at such joint sitting shall be taken to have been duly passed by both Houses of Parliament.

(2) No person who at the passing of any such law is registered as a voter in any province shall be removed from the register by reason only of any disqualification based on race or colour.

It is noteworthy that the special procedure of a two-thirds majority in a joint sitting for amendment was applicable only to Part (I) of the Section and not to Part (II), but Sec. 152, already quoted, prescribed it for both the Parts of Sec. 35. Part I of the Section was amended by Act No. 12 of 1936, the Representation of Natives Act, to disqualify the Native for the common roll reason of his race and colour, by the adoption of the special procedure.

It is significant that the special procedure was adopted by the Nationalist Party under Prime Minister Gen. J. B. M. Hertzog in 1936 after the enactment of the Statute of Westminster. The present Malan Government of the same Party secured the passage of Act. 46 of 1951, namely, the Separate Representation of Voters Act, by the ordinary procedure, namely, by simple majorities in each of the two Houses of Parliament sitting separately. The purpose of the Act was to substitute two separate electoral rolls for the Whites and for the Coloureds; or people of mixed race, in the Cape Province in the place of the common roll.

The question was raised whether the Separate Representation of Voters Act of 1951 amended Sec. 35 of the South Africa Act of 1909, and if so, whether the special procedure prescribed by Sec. 152 was necessary in view of the Statute of Westminster of 1931. The Government’s case was that the Statute of Westminster, coupled with the Status of the Union Act, Act 69 of 1934, in effect abrogated the special procedure of Sec. 152 of the South Africa Act and that the substitution of two electoral rolls for the Whites and the Coloureds in the Cape Province in the place of the common roll did not infringe Sec. 35 of the South Africa Act. The Appellate Division of the Supreme Court, the highest court in South Africa, in a unanimous judgment dated the 20th March, 1952, held that the Separate Representation of Voters Act amended Sec. 35 of the South Africa Act, and, as it was enacted without adopting the special procedure, it was null and void.

It created a political crisis for the Government, which sought to get over it by creating a constitutional crisis! It enacted by the ordinary procedure the High Court of Parliament Act in June 1952, constituting Parliament as the highest court of law to review the judgments of the Supreme Court. The High Court of Parliament decided on the 27th August 1952 that the Separate Representation Act was valid and lawful. About the same time, in fact on the 29th August, the Cape Division of the Supreme Court declared High Court of Parliament Act null and void on the ground that in enacting it Parliament had altered Sec. 152 of the South Africa Act without the special procedure prescribed therein. The Act said the Cape Court, deprived individuals of the right to invoke the Courts whenever they thought that their rights had been infringed, for the decision of the High Court of Parliament would be final and binding on both Courts and individuals, and aggrieved individuals would have no redress in any Court and no access to High Court of Parliament. Whereupon the Government of South Africa preferred an appeal to the Appellate Division of the Supreme Court, which dismissed it on 13th Nov. 1952.

Much has been said and more will perhaps be said by constitutional experts on both sides. Without attempting an exhaustive review, however inviting, it may be observed that by appearing and pleading before the Cape Division of the Supreme Court on the validity of the Separate Representation of Voters Act after the High Court of Parliament had validated it, the Government had already given up their stand that the High Court of Parliament was the final and supreme court, and in appealing against the judgment, it only confirmed its surrender. If, as the Government contended, the High Court of Parliament were the final court of appeal and was duly constituted, it was not open to the Cape Division of the Supreme Court to entertain the case questioning it, much less to declare it invalid. In presuming to sit in judgment over a superior court, the High Court of Parliament, the Cape Court, the inferior court, would be guilty of “contempt of court”, and the judges would render themselves liable to impeachment at the bar of the High Court of Parliament!

In a separate but concurring judgment; Justice Newton-Thompson of the Appellate Division of the Cape Supreme Court said that the founders of the South African Constitution had followed the American example in “entrenching” Sections 35 and I52 of the South Africa Act. He wished that they had not done so, but had rather followed the British precedent where the Mother of Parliaments, as ordinarily constituted, could do as it liked. He added that until Sec. 152 was amended in accordance with the special procedure laid down in that very section, he had to declare the High Court of Parliament Act as invalid.

It cannot be said that the Malan Government had no strong case. It had taken the view that the Statute of Westminster had given the South African Parliament the same and equal status with the British Parliament and that, like the latter, it could amend the South Africa Act by the ordinary process even as the British Parliament could amend any of its Acts, including the South Africa Act, which is an Act of the British Parliament; and that, therefore, the limitations in Sec. 152 of the South Africa Act had dropped out with the passing of the Statute of Westminster.

This view was shared by several competent constitutional authorities, as stated in the Journal of Comparative Legislation and International Law (Vol. 33, p. 90). Not the least competent among them was the late Rt. Hon. J. C. Smuts. He shared the view that Section 2 of the Statute of Westminster would destroy the special procedure provided in Sec. 152 of the South Africa Act, and had desired that some limitation against such destruction should be provided in the Statute itself. In fact, when the South African Parliament debated the resolution in 1931 to request the British Parliament to pass the Statute of Westminster, General Smuts, as leader of the opposition, suggested that the “entrenched clauses” should continue to be entrenched statutorily. But the Government of Gen. J. B. M. Hertzog was unwilling to accept the suggestion on the ground that it would take away from the independence of South Africa and her equality with Great Britain. Gen. Smuts, thereupon, moved an amendment that the resolution be passed “on the understanding that the proposed legislation will in no way derogate from the entrenched provisions of the South Africa Act.” And this was agreed to. But it was a moral understanding and had no legal force.

The Malan Government received legal sanction for its view in the judgment of the Supreme Court in Nolwana v. Hofmeyr (1937 A. D. 229) which held that the Representation of Natives Act (Act 12 of 1936) was valid on the ground that, in view of the Statute of Westminster and the Status of the Union Act (Act 69 of 1934) defining the status of the Union as a “sovereign independent state”, it was not competent for the South African Courts to question the legality and validity of any Act of the South African Parliament. It said:

An Act of Parliament, in the case of a sovereign law-making body, proves itself by the mere production of the printed form published by proper authority.***
Parliament’s will, therefore, as expressed in an Act of Parliament, cannot now in this country, as it cannot in England, be questioned by a Court of law.***
It is obviously senseless to speak of an Act of a sovereign law-making body as ultra vires.

With reference to the question whether any specific procedure was obligatory, the judgment said:

The answer is that Parliament, composed of its three constituent elements, can adopt any procedure it thinks fit; the procedure expressed or implied in the South Africa Act is, so far as the courts of law are concerned, at the mercy of Parliament, like everything else.

The Malan Government was, therefore, on very strong ground when it presumed that the South African Parliament was as sovereign as the British Parliament, that, with the passing of the Statute of Westminster and the status of the Union Act, the limitation contained in Sec. 152 of the South Africa Act had lapsed, and that the South African Parliament was free to adopt any procedure it liked to enact any law, and that it was not open to the Courts to question the validity of any law passed by it.

The judgment of the Supreme Appeal Court, delivered on the 20th March 1952, upheld some of the arguments and invalidated others, and in the result invalidated the Separate Representation of Voters Act of 1951 and made certain observations of a far-reaching character. The Court held:

I. That the Statute of Westminster did not have the effect, expressly or inferentially, of repealing or modifying the “entrenched clauses” in the South Africa Act;

2. That the Status of the Union Act, enacted by the ordinary procedure, did not affect them either;

3. that South Africa was sovereign inasmuch as the legislature of the Union, and no other, was competent to enact laws which were endorsable by the South African Courts;

4. that it was not less sovereign because its own Constitution laid down a special procedure to amend certain sections of the Constitution, and

5. that the South African Courts had the right and the duty to protect the rights which were specifically protected in the Constitution.

Both in the Parliamentary Debates and in the law courts the question of the sovereignty of South Africa and its Parliament was raised and evoked a great deal of both forensic and emotional expression. And India was quoted in this connection. The Malan Government held that adherence to Sec. 152 of the Constitution derogated from the sovereignty of South Africa, because the South Africa Act was an Act of the British Parliament. The Supreme Court disagreed and suggested that the United States of America was not less sovereign, simply because its own Constitution limited the powers of the American Congress. It must, however, be remembered that the American Constitution, unlike the South African Constitution, was not an Act of the British Parliament, even pro forma. South Africa has today as much of political freedom as America and England, but not the same Constitutional sovereignty, notwithstanding the Statute of Westminster and the Status of the Union Act. The latter was enacted by the South African Parliament, which was itself created under the South Africa Act, which is an Act of the British Parliament and which it can repeal. The Statute of Westminster is also an Act of the British Parliament, by which Britain, by a self-denying ordinance, chose to refrain from exercising her constitutional sovereignty and conceded fullest political freedom to the Dominions. The relation between constitutional sovereignty and political freedom since the passing of the Statute of Westminster was thus expounded by Lord Chancellor Sankey:

It is doubtless true that the power of the Imperial Parliament to pass on its own initiative any legislation that it thought fit extending to Canada remains unimpaired; indeed, the Imperial Parliament could, as a matter of abstract law, repeal or disregard section 4 of the Statute. But that is theory and has no relation to realities. (The Statute of Westminster and Dominion Status, by K. C. Wheare, 4th edition, 1949, p. 152)

The constitutional and political status of India is more or less on a par with that of South Africa; and not of America, notwithstanding that the Preamble of the Indian Constitution resembles that of America and not of South Africa. The Founding Fathers of America were not called into office by an Act of the British Parliament as were the Founding Fathers in India and South Africa. The Indian Independence Act, a British Act, corresponds to the Statute of Westminster, also a British Act, and it gave the same political freedom to India as the Statute did to South Africa. The South African Constitution, framed locally, preceded the Statute of Westminster, and had to be passed constitutionally by the British Parliament, while the Indian Constitution, also framed locally, followed the Indian Independence Act, which gave previous constitutional sanction, as it were, to the Indian Constitution. The indestructible sovereignty of the British Parliament cannot be destroyed by the British or any other Parliament.

Wheare took the view that the Courts might destroy it. He said that the United Kingdom’s “sovereignty is indestructible by Parliament but not by the Courts”; but only for political reasons, as distinguished from constitutional ones. (ibid, pp, 155-56). Politically, the Courts in India and in South Africa are on a par, inasmuch as both decline to recognise the laws made by the British Parliament. The Supreme Court of South Africa has, in invalidating the Separate Representation of Voters Act, declared that only the Union Parliament, and no other, was competent to pass laws binding in the Union. And the Supreme Court in India, by taking the oath of allegiance to the Indian Constitution, has also declared that the Indian Parliament, and no other, was competent to pass laws binding in the Indian Union, While, therefore, both India and South Africa have proclaimed Political in independence, the constitutional sovereignty of the British Parliament over both, as over England, remains indestructible in constitutional theory.

There was much discussion regarding the sovereign democratic character of the South African Constitution in view of the limitations imposed on the South African Parliament by Sec. 152, which empowered the Courts to review the laws enacted by the Parliament in some few respects. In rejecting the view that Sec. 152 of the South Africa Act had derogated from the sovereign independence of South Africa, the South African Supreme Court observed:

It would be surprising to a constitutional lawyer to be told that that great and powerful country, the United States of America, is not a sovereign independent country simply because its Congress cannot pass any legislation which it pleases.

It may be suggested that while the United States is as much a sovereign democratic country as the United Kingdom, its Congress is not as democratic as the United Kingdom Parliament. Sovereignty rests with the electorate. In America the Constitution intervenes between the sovereign electorate and the Congress it created. It is so in South Africa and India. It is not so in the United Kingdom. Consequently, the Parliaments in U. S. A., India and South Africa are not as democratic, as the Parliament in the United Kingdom. In the United Kingdom no law of Parliament can bind its successor; in the other three their Constitutions bind their Parliaments. Democracy of the living present is operative in the Parliament of the United Kingdom; all others have only the Dictatorship of the dead past, the Founding Fathers.

No written Constitution is the whole of the Constitution, for there are constitutional conventions which are almost invariably honoured. With regard to the “entrenched clauses” in the South Africa Act, the proposal of Gen. Smuts that they should be protected by the Statute of Westminster was dropped in favour of a convention or understanding that

the proposed legislation (Statute of Westminster) will in no way derogate from the entrenched provisions of the South Africa Act.

This was agreed to by Gen. Hertzog, speaking for the Nationalist Party. The Government spokesman on the occasion said:

I think that no one in the House, orin the Union, doubts the moral obligation of Parliament and the people to respect the basic principle in our Constitution, and therefore, it appears to me to be unnecessary to include a provision for securing it. (House of Assembly Debates, vol. 17, col. 2739)

In 1934, subsequent to the Statute of Westminster, the Speaker of the House of Assembly in giving advice “for the guidance of the honourable members” said:

If it is desired to amend or repeal any of the entrenched clauses, then the procedure laid down in the South Africa Act must be followed.

The special procedure of Sec. 152 was adopted in enacting the Representation of Natives Act, No. 12 of 1936, by the Government of Gen. Hertzog, of the Nationalist Party, which held the view that such a procedure was not constitutionally necessary.

The convention was ignored when the Nationalist Government of Dr. Malan enacted the separate Representation of Voters Act in 195I, which in effect segregated the coloured voters in the Cape on a separate roll. But on this occasion, the Opposition, the Unionist Party, strenuously opposed the violation of the convention. Thus, while both the political parties shared the view that since the passing of the Statute of Westminster the special procedure of Sec. 152 was not constitutionally obligatory, both respected the moral understanding in 1936. In 1951 the Nationalist majority violated the understanding, while the Unionist minority held the view that the special procedure was binding both morally and constitutionally. The Supreme Court which had held in 1946 that it was not constitutionally binding, held in 1952 that it was so.

The constitutional crisis might have been avoided if the Malan Government had accepted the Supreme Court judgment invalidating the Separate Representation of Voters Act of 195I, or sought to re-enact it subsequently by the special procedure. Instead, it enacted by the ordinary procedure the High Court of Parliament Act. Having enacted it, Government should have declined to recognise the jurisdiction of the Courts to review it, and if the Courts defied, impeached the judges for contempt of the High Court of Parliament, and thereby vindicated its stand that the South African Parliament was both Supreme and democratic like the Parliament of Great Britain.

In the event, the Malan Government bowed to the judgment of the Supreme Appellate Court, abandoned the High Court of Parliament Act, and decided to seek a political solution to its constitutional difficulties. It decided to go to the polls with a view to securing the needed two-thirds majority in a joint session to repeal the “entrenched clauses”. Ifthe Malan Government is returned to power at the elections now in progress, and can muster the necessary majority, it is sure to eliminate all the provisions in the Constitution which need a more than ordinary majority to amend them. It can then pass, by an ordinary majority, all the racial laws that it likes without challenge by the Courts. The distinction between the Constitution and the Statute will be abolished, and Parliament will not be subordinate to the Constitution.

While the desired consummation will eliminate the slight protection now operative to safeguard the political rights of the Coloureds in the Cape Province, it is difficult to cavil at it on constitutional grounds.

Any provision for a more than ordinary majority for the amendment of the Constitution is anti-democratic, inasmuch as it means the dictatorship of the minority. It also opens the door to judicial review of parliamentary legislation, which is an evil inasmuch as it drags the Judiciary into politics, for the executive will irresistibly be tempted to appoint judges not only for their judicial competence but also for their political sympathies, and nothing can be a greater evil than “political judges”. To accept democracy and then fight shy of its implications can only aggravate political disharmony. Enlightened public opinion is the only sanction for political wisdom in a democracy. But it must be a democracy. The trouble with South Africa is that it is not a democracy. It is a White Oligarchy, almost a tyranny, and the concepts appropriate to a Democracy do not apply to South Africa.