TheColoured vote constitutional crisis, also known as theColoured vote case, was aconstitutional crisis that occurred in theUnion of South Africa during the 1950s as the result of an attempt by theNationalist government to removecoloured voters in the Union'sCape Province from the commonvoters' rolls. It developed into a dispute between the judiciary (in particular theAppellate Division of theSupreme Court) and the other branches of government (Parliament and the executive) over the power of Parliament to amend anentrenched clause in theSouth Africa Act 1909 (theconstitution) and the power of the Appellate Division to overturn the amendment as unconstitutional. The crisis ended when the government enlarged theSenate and altered its method of election, allowing the amendment to be successfully enacted.[1]
Before thecreation of theUnion of South Africa, elections in theCape Colony were conducted on the basis of thequalified franchise. This meant that the right to vote was limited to men meeting property and literacy qualifications, but not restricted on the basis of race. This differed from the other South African colonies: inNatal the franchise was limited to white men in practice though not in law, while in theTransvaal and theOrange River Colony the franchise was limited by law to white men. TheSouth Africa Act 1909, which was anact of theParliament of the United Kingdom, unified these four colonies to form the Union but preserved their franchise arrangements unchanged. Section 35 of the South Africa Act 1909 provided that no law could disenfranchise voters in theCape Province on the basis of race, unless that law was passed by anabsolutesupermajority of two-thirds of the members of both Houses ofParliament sitting together in ajoint session. Section 35 wasentrenched by section 152, which provided that neither section 35 nor section 152 itself could be amended without a similar supermajority in joint session.[2]
In 1931, theStatute of Westminster ended the power of the British Parliament to legislate fordominions such as South Africa and gave those dominions the power to repeal or amend British laws in force within their territories.[3] In 1936, the South African Parliament enacted theRepresentation of Natives Act, 1936, removing "native" (black) voters from the common voters' rolls and allowing them to elect, separately, three members of theHouse of Assembly (thelower house) instead.[4] Although this act was passed by the requiredjoint-session supermajority, its validity was challenged by an affected voter in the case ofNdlwana v Hofmeyr. The challenge was rejected for a number of reasons, of which the most significant was the Appellate Division's ruling that because Parliament was asovereign legislative body, courts could not invalidate one of its acts on the basis of the procedure used to pass it.[5][6]
In 1948, theNational Party, campaigning on a platform ofapartheid, wonthat year's general election. The following year,Prime MinisterD. F. Malan addressed the question ofcoloured voting rights in a speech to Parliament, claiming that coloured voters were corrupt and immature and that they posed a threat to white control in South Africa.[7] The government then sought to echo the 1936 Representation of Natives Act by introducing, in 1951, theSeparate Representation of Voters Bill, whereby coloured voters would also lose the right to vote for ordinary constituency members of the House of Assembly and instead elect four members at separate elections.[8] Besides the Nationalists' ideological belief inwhite supremacy, the bill was also motivated by the electoral power of coloured voters to swing a number of Cape constituencies from the National Party to theUnited Party.[7]
The bill attracted much opposition both inside and outside Parliament. The United Party leaderJ. 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 andcivil disobedience. TheTorch 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 ofparliamentary sovereignty, Malan's government decided to enact it by following the normal parliamentary procedure of a simple majority in each house separately.[11] TheGovernor-General gave hisassent on 15 June 1951 and the act waspromulgated on 18 June.
G. Harris,E. Franklin,W. D. Collins andE. A. Deane, four voters affected by the Separate Representation of Voters Act, challenged its validity in theSupreme Court in a case that became known asHarris v Dönges orHarris v Minister of the Interior, asT. E. Dönges was at the timeMinister of the Interior. Initially the case was dismissed by theCape Provincial Division in a ruling by Judge Presidentde Villiers, with whom Newton Thompson and Gawie Steyn concurred. The court followed the precedent ofNdlwana v Hofmeyr to rule that it had no authority to question the validity of an act of Parliament promulgated and published by the proper authority.[12] This decision was immediately taken on appeal to the Appellate Division.[13]
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.[14] The government then argued that the entrenched clauses in the South Africa Act had beenrepealed by implication by theStatute of Westminster, and that the precedent of theNdlwana case precluded the courts from questioning the validity of an act of Parliament.[3]
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 theColonial 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 ofparliamentary 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 ofstare decisis bound the Appellate Division to follow the precedent of theNdlwana case, in which it had ruled that Parliament can adopt any procedure it sees fit and the courts have no power to question the validity of its acts. The court ruled that it was entitled to overrule its own previous decisions if they were clearly wrong. InNdlwana there had been no discussion of the Statute of Westminster nor any argument for or against the conclusion drawn by the court, and the court therefore felt free to overrule it.[19]
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 byChief JusticeAlbert van der Sandt Centlivres and handed down on 20 March 1952, was unanimous.
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.[20] In April 1952T. E. Dönges introduced theHigh Court of Parliament Bill, which would constitute the members of Parliament into a High Court with the power to review and overturn any ruling of the Appellate Division declaring an act of Parliament to be invalid. This court was described as a "court of law"; it would have a "Judicial Committee" of ten members which could make recommendations, but the decision of the "court" would be determined by a majority vote of members present.[21]
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 theCape 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 withholdassent was rejected and the bill was assented to on 3 June.[26] The Speaker of the House of Assembly was nominated as President of the High Court of Parliament, and he appointed a Judicial Committee of six government members and four opposition members, withC. R. Swart, theMinister of Justice, as chairman. The opposition members resigned before the first meeting of the committee on 21 July 1952. After three days of hearings the committee recommended the reversal of the Appellate Division's ruling and the validation of the Separate Representation of Voters Act. The High Court of Parliament, which consisted only of Nationalist members of Parliament due to an opposition boycott, approved this recommendation on 27 August.[27]
Meanwhile, the plaintiffs from the firstHarris case returned to the ordinary courts to challenge the validity of the High Court of Parliament Act. On 29 August theCape Provincial Division ruled that the act had the effect of altering the entrenched clauses, and that as it had not been passed by a two-thirds majority in joint session it was invalid.[28] The government's appeal, under the title ofMinister of the Interior v Harris, was heard in the Appellate Division on 27–29 October, and on 13 November the court handed down a unanimous decision upholding the ruling of the Cape court.[29]
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 aninterdict 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 electionswere 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.
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.[35] In 1955 the new Prime MinisterJ. G. Strijdom adopted a new plan: theSenate (the upper house of Parliament) would be packed with National Party members to ensure the government would have the necessary two-thirds majority in a joint sitting.
As originally constituted by the South Africa Act, the Senate consisted of forty senators. Eight were nominated by theGovernor-General, and thus effectively by the government of the day. For each province eight senators were elected by an electoral college consisting of the members of theHouse of Assembly representing that province and the members of theprovincial council. These elections were conducted by thesingle transferable vote (STV) system ofproportional representation.[36] In 1936 theRepresentation of Natives Act added four senators indirectly elected to represent black people. In 1949 another four were added to represent the territory ofSouth West Africa.[37] In 1955, then, there were 26 senators supporting the government and 21 supporting the opposition (and one vacant seat).
TheSenate Act, 1955 reconstituted the Senate along new lines and expanded it to eighty-nine members. The number of nominated senators was doubled to sixteen. The number of elected senators was increased to be, for each province, one-fifth of the size of that province's electoral college, with a minimum of eight senators per province; so theCape Province had twenty-two Senators, theTransvaal twenty-seven, and the other two provinces eight each. The four Senators elected under the Representation of Natives Act and four representing South-West Africa remained. The Senate Act also changed the system for electing provincial senators from STV to simple majority voting, meaning that the majority party in each electoral college could choose all the senators for that province. The result was that the National Party was able to control seventy-seven Senatorial seats: the sixteen nominated by the Governor-General, the fifty-seven elected for the Cape, Transvaal and theOrange Free State, and the four representing South-West Africa.[38]
With the new Senate, the National Party commanded a two-thirds majority in a joint sitting, and thus was able to pass theSouth Africa Act Amendment Act, 1956. This act declared the original Separate Representation of Voters Act to be valid, and repealed the parts of section 35 of the South Africa Act entrenching the Cape franchise as well as the parts of section 152 entrenching section 35.[39] (There remained one unrelated entrenched clause guaranteeing the equality of the English and Afrikaans languages.)
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 ofCollins 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 theAppellate Division Quorum Act, 1955, expanding the Appellate Division to eleven judges, thus allowing the appointment of six new judges presumed to support the Nationalist position. This proved to have been unnecessary, as only one judge, the notoriously liberalOliver Schreiner, dissented from the ruling.
Separate representatives for coloured voters were first elected in thegeneral election of 1958. Even this limited representation did not last, being ended from 1970 by theSeparate Representation of Voters Amendment Act, 1968. Instead, all coloured adults were given the right to vote for theColoured Persons Representative Council, which had limited legislative powers. The council was in turn dissolved in 1980. In 1984 a new constitution introduced theTricameral Parliament in which coloured voters elected theHouse of Representatives.
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 undera 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 withmany other rights, is entrenched in the constitution. TheConstitutional Court has the explicit power to invalidate acts of Parliament that are unconstitutional.
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