Coloured vote constitutional crisis
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The Coloured vote constitutional crisis, also known as the Coloured vote case, was a
Background
Before the
In 1931, the
Separate Representation of Voters Bill
In 1948, the
The bill attracted much opposition both inside and outside Parliament. The United Party leader J. G. N. Strauss was against it both because he saw it as a breach of commitments given by earlier National Party leaders and because he believed it would lead coloured people to form political alliances with black and Indian groups opposed to the white control of South Africa.[9] A group of coloured activists formed the National Convention Co-ordinating Committee to oppose the bill within constitutional limits. The Franchise Action Council, a multi-racial organisation, led a campaign of rallies, strikes and civil disobedience. The Torch Commando was founded by white Second World War veterans in response to the bill but expanded into a more general movement against the government's policies.[10]
The National Party did not have enough seats in Parliament to pass the bill with the two-thirds majority in joint sitting that would be required if the entrenchment of sections 35 and 152 was still valid. Based on the ruling in Ndlwana's case (see above) and the principle of
Judgment of the Appellate Division
G. Harris, E. Franklin, W. D. Collins and E. A. Deane, four voters affected by the Separate Representation of Voters Act, challenged its validity in the
The government's first contention was that the act did not disqualify voters on the basis of race, as all voters previously qualified were still able to vote, albeit in segregated constituencies. The court dismissed this argument as untenable.
The government's claim regarding the Statute of Westminster was based on two principal theories. The first was based on the repeal of the application of the Colonial Laws Validity Act to South Africa. The Colonial Laws Validity Act provided that any act of a colonial parliament would be valid within the colony unless it contradicted a British act applying to the colony. The argument was that an alteration of the Cape franchise without a two-thirds majority would have contradicted the South Africa Act (which was itself an act of the British Parliament) and therefore would be impermissible under the Colonial Laws Validity Act; and that once that act no longer applied the entrenchment was not enforceable. The court disagreed, noting that section 152 of the South Africa Act specifically empowered the South African Parliament to amend the South Africa Act, and that the Colonial Laws Validity Act had no application and therefore its repeal had no effect.[15]
The second theory was that, by expanding the legislative powers of the dominion parliaments, the Statute of Westminster had abolished the requirement for a two-thirds majority in joint session. Section 2 of the Statute of Westminster gave a dominion parliament the power to repeal or amend any act of the British Parliament as it applied in the dominion. This power, so the argument went, had been granted to a Parliament consisting of two separate houses acting with simple majorities, and this power could be exercised to amend the entrenched clauses without regard to the supermajority requirement.[16] Again the court disagreed, ruling that the "Parliament" to which the amendment power had been granted was the Parliament constituted by the South Africa Act, and that this definition of Parliament included the procedural requirement that certain bills be passed by two-thirds majority in joint session. This did not affect the doctrine of parliamentary sovereignty, as Parliament was fully sovereign over South Africa, and merely obliged to follow certain procedures to pass certain laws.[17][18]
The final argument was that the principle of
The resulting order of the Appellate Division was that the Separate Representation of Voters Act was "invalid, null and void and of no legal force and effect". The ruling, authored by Chief Justice Albert van der Sandt Centlivres and handed down on 20 March 1952, was unanimous.
High Court of Parliament
The response of Malan's government was immediate: the Prime Minister immediately declared the decision unacceptable, that he refused to abide by it, and that he would take steps to have it overturned.
Dönges, in introducing the bill, argued that it would restore the power of the "sovereign will of the electorate" to determine which laws were valid, and would relieve the Appellate Division of accusations of political bias. J. G. N. Strauss of the opposition denounced the bill as establishing a "political court [...] a bogus court set up in order to express the will of the Caucus of the National Party".[22][23] The bill was attacked in the English-language press, with the Cape Times calling it "an insult to the intelligence of the judiciary".[24] It even met with opposition from a number of prominent Nationalists.[25]
Despite the opposition, the High Court of Parliament Bill was forced through Parliament. It was passed by the House of Assembly on 15 May 1952 and by the Senate on 27 May. A petition asking the Governor-General to withhold
Meanwhile, the plaintiffs from the first Harris case returned to the ordinary courts to challenge the validity of the High Court of Parliament Act. On 29 August the
The court ruled that the existence of the entrenched clauses in the South Africa Act necessarily implied that those protected by the clauses had the right to have any law affecting them tested for validity by a court ("ubi jus ibi remedium"). Parliament, therefore, could not remove this power from the courts of law, and the High Court of Parliament was not a court of law but rather Parliament functioning under another name. As such, it had only the powers given to it by the South Africa Act, and these did not include the power to amend the entrenched clauses without a two-thirds majority in a joint sitting.[30][31]
This was the height of the constitutional crisis. A general election was due to be held in 1953; if the government refused to accept the rulings of the Appellate Division and conducted the election on the basis of separate representation for white and coloured voters, the system of government could be imperilled. The officials responsible for voter registration would be forced to follow either the government's instructions and risk an interdict from the courts, or to follow the court's ruling and risk sanctions from the administration.[32] There was the possibility that the courts could invalidate the entire election in the Cape Province and therefore the existence of the Parliament elected in 1953.[33]
The government, therefore, while continuing to insist that the court's rulings were wrong, accepted them.[34] The elections were held on 15 April 1953 with coloured voters in the Cape voting alongside white voters. Despite this, the National Party was returned in government with a larger majority: 94 seats out of 156, as opposed to 79 seats out of 153 in 1948.
Packing of the Senate
During 1953 and 1954, the National Party tried to re-validate the Separate Representation of Voters Act by convincing enough opposition members to support it to obtain a two-thirds majority; this effort was not successful.
As originally constituted by the South Africa Act, the Senate consisted of forty senators. Eight were nominated by the
The
With the new Senate, the National Party commanded a two-thirds majority in a joint sitting, and thus was able to pass the
The government's opponents returned to the courts to have this new act also declared invalid, arguing that the Senate Act was passed as part of a deliberate scheme to circumvent the entrenched clauses. This time, however, the court disagreed. On 9 November the Appellate Division handed down a decision under the title of Collins v Minister of the Interior in which it ruled that Parliament had the power to alter the composition of the Senate, a power explicitly granted by the South Africa Act, and that its motivation was irrelevant. The Senate Act was therefore valid, and thus a joint sitting of the House of Assembly and the reconstituted Senate had the power to amend the entrenched clauses.[40]
To ensure its success, the government had also passed the
Later developments
Separate representatives for coloured voters were first elected in the
In 1960, a new Senate Act reduced the size of the Senate and restored the single transferable vote system of election of the provincial senators. In 1961 South Africa became a republic under a new constitution; this constitution repealed the now-unnecessary High Court of Parliament Act.
In 1994, with the end of apartheid, a new constitution was introduced which guarantees the right to vote for all adult citizens. This right, along with
Notes
- ^ Sachs 1973, pp. 143–145.
- ^ Griswold 1952, pp. 1362–1363.
- ^ a b Griswold 1952, p. 1364.
- ^ Cowen 1953, p. 247.
- ^ Griswold 1952, pp. 1370–1371.
- ^ Cowen 1953, pp. 250–251.
- ^ a b Loveland 1999, p. 260.
- ^ Cowen 1953, p. 252.
- ^ Loveland 1999, pp. 268–269.
- ^ Loveland 1999, pp. 269–271.
- ^ Loveland 1999, pp. 262–268.
- OCLC 846790131.
- ^ Griswold 1952, pp. 1363–1364.
- ^ Cowen 1953, p. 253.
- ^ Cowen 1953, pp. 255–256.
- ^ Cowen 1953, p. 257.
- ^ Griswold 1952, pp. 1366–1367.
- ^ Cowen 1953, pp. 257–259.
- ^ Cowen 1953, pp. 262–263.
- ^ Scher 1988, pp. 23–24.
- ^ Loveland 1999, pp. 301–302.
- ^ Loveland 1999, p. 302.
- ^ Scher 1988, pp. 25–26.
- ^ Loveland 1999, p. 304.
- ^ Scher 1988, pp. 29–30.
- ^ Scher 1988, p. 29.
- ^ Scher 1988, pp. 30–31.
- ^ Scher 1988, pp. 33–34.
- ^ Griswold 1953, p. 866.
- ^ Griswold 1953, pp. 867–869.
- ^ Scher 1988, pp. 37–38.
- ^ Scher 1988, p. 35.
- ^ Scher 1988, p. 38.
- ^ Scher 1988, p. 39.
- ^ Scher 1988, p. 40.
- ^ Beinart 1957, pp. 550–552.
- ^ Beinart 1957, pp. 558–559.
- ^ Beinart 1957, pp. 559–560.
- ^ Wade 1957, p. 162.
- ^ Wade 1957, pp. 162–163.
References
- Beinart, B. (1957). "The South African Senate". JSTOR 1091091.
- Cowen, Denis V. (1953). "The Entrenched Sections of the South Africa Act". South African Law Journal. 70 (3): 238–265.
- JSTOR 1336655.
- JSTOR 1337174.
- Kirkwood, Kenneth (1952). "The Constitutional Crisis in South Africa". JSTOR 2604173.
- Loveland, Ian (1999). By Due Process of Law?: Racial Discrimination and the Right to Vote in South Africa, 1855–1960. Oxford: Hart Publishing. ISBN 9781841130491.
- ISBN 9780520026247. Retrieved 7 July 2012.
- Scher, D. M. (1988). "'The Court of Errors': A study of the High Court of Parliament crisis of 1952". Kronos. 13. University of the Western Cape: 23–40. JSTOR 41056249.
- Wade, H. W. R. (1957). "The Senate Act case and the entrenched sections of the South Africa Act". South African Law Journal. 74 (2): 160–166.