| Act of Parliament | |
 | |
| Long title | An Act to constitute the Union of South Africa. |
|---|---|
| Citation | 9 Edw. 7. c. 9 |
| Territorial extent | Union of South Africa |
| Dates | |
| Royal assent | 20 September 1909 |
| Commencement | 31 May 1910 |
| Repealed | 31 May 1961 (South Africa) 27 May 1976 (United Kingdom) |
| Other legislation | |
| Amended by | Status of the Union Act, 1934 |
| Repealed by | Republic of South Africa Constitution Act, 1961 (South Africa) Statute Law (Repeals) Act 1976 (United Kingdom) |
Status: Repealed | |
TheSouth Africa Act 1909 (9 Edw. 7. c. 9) was anact of theParliament of the United Kingdom that created theUnion of South Africa out of the formerCape,Natal,Orange River, andTransvaal colonies,[1] and served as theconstitution of the Union from 1910 until 1961. The act also allowed for potential admission ofRhodesia into the Union, a proposal rejected by Rhodesian colonists in a1922 referendum.[2] The draft proposal was supported by the four colonial parliaments, but was opposed by Cape Colony premierW. P. Schreiner, who raised concerns that it would strip rights from non-white South Africans.[3]
The act was the third major piece of legislation passed by the British Parliament to unite various British colonies and provide some degree of autonomy. This had been done through theBritish North America Act 1867, which united theProvince of Canada (split intoOntario andQuebec) withNova Scotia andNew Brunswick, and the unification of Australia through theCommonwealth of Australia Constitution Act 1900.
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In the aftermath of theAnglo-Boer War (1899–1902), Britain re-annexed theSouth African Republic and theOrange Free State, two hitherto independentBoer republics. These new territories, renamed the Transvaal Colony and the Orange River Colony respectively, were added to Britain's existing South African territories, the Cape Colony and Colony of Natal. It was British government policy to encourage these four colonies to come together in closer union; after the grant ofresponsible government to the Transvaal Colony and Orange River Colony in 1907, this aspiration was one that was also increasingly held by theAfrikaner population.
These political forces resulted in the 1908 National Convention, which met on 12 October 1908 and completed its work on 11 May 1909. This convention settled on the terms and constitution of a governmental, legislative, and economic Union. These proposals were transmitted to the British government, which duly prepared a bill to give effect to these wishes. The bill was passed by Parliament on 20 September 1909 and on 20 September 1909 KingEdward VII of the United Kingdom proclaimed that the Union of South Africa would be established on 31 May 1910. This Act, which essentially brought into being the South African state as it is known today, served as the South African constitution for over fifty years, during which time theStatute of Westminster greatly increased South Africa's sovereignty from Britain. Although South Africa became a republic in 1961 and left theCommonwealth, the basic structure of the 1909 Act continued to live on in its replacement, theRepublic of South Africa Constitution Act (32 of 1961). However, the last vestiges of the 1909 Act finally disappeared in 1983 when the apartheid-era government enacted a new constitution, theConstitution of the Republic of South Africa Act (110 of 1983).
The structure of the government of theUnion of South Africa was similar to the government of other BritishDominions. AGovernor-General of South Africa was appointed to represent theBritish Monarch, who was also theMonarch of South Africa. Executive power was vested in the Monarch/Governor-General and was exercised on the advice of the Executive Council.[4] Though not explicitly provided for by the South Africa Act, the office ofPrime Minister of South Africa was quickly established as thehead of government and, like other government ministers, the Prime Minister was required to be a Member of either House of Parliament. As in other British Dominions, the Governor-General appointed the leader of the largest political party in thelower house of Parliament as Prime Minister. Prime Ministers were also sworn in as Executive Councilors if they were not already members of the Executive Council.
Legislative power was vested in aParliament consisting of the Monarch, aSenate, and aHouse of Assembly.[5] For most of the Union's existence, the South Africa Act provided for each Province to have equal representation in the upper house, the Senate, and Senators were chosen by an electoral college made up of the Province's members in the House of Assembly and the members of the provincial legislature. The composition and election of the Senate would later be modified as part of the move towardsapartheid and the establishment of theRepublic of South Africa. In the lower house of Parliament, the House of Assembly, each Province was represented proportionally according to their respective populations and members were elected from individual districts within a Province. The House of Assembly had more power than the Senate, much like the relationship between theHouse of Commons andHouse of Lords. In the case of a disagreement between the Senate and House of Assembly, the Governor-General could convene a joint sitting of the two houses to review the legislation, make amendments, and vote on the bill.[6] Because the House of Assembly was much larger than the Senate, the system was designed to protect the stronger position of the House in any joint sitting. A similar method of resolving disagreements exists in theAustralian Parliament and theIndian Parliament, but theAustralian Senate and theRajya Sabha are each half the size of theAustralian House of Representatives and theLok Sabha, respectively, whereas the South African Senate was only one-third the size of the South African House of Assembly. Unlike the Australian model (but like the Indian one), nodouble dissolution election occurred before a joint sitting, further strengthening the position of the House of Assembly and the Prime Minister over the Senate.
The act also established aSupreme Court of South Africa, which served as a unified court system for the Union and consisted of local, provincial, and appellate divisions. The old supreme courts of the provinces became the provincial divisions of the new Supreme Court of South Africa. The appellate division, which was the highest court in the land, was seated atBloemfontein.[7] There was a further appeal to the Privy Council, particularly in Admiralty cases.[8] The powerjudicial review of Parliamentary legislation and administrative acts was the same as in the United Kingdom. In addition, the Supreme Court could review Parliamentary amendments of the entrenched clauses of the South Africa Act of 1909.
Each province was governed by an Administrator, appointed by the central government, and had a legislature in the form of aunicameralProvincial Council; four members of the Council joined with the Administrator to form a five-member executive committee that acted as the Province's Cabinet.[9] Unlike Canada and Australia, which became dominions through the Federation of British colonies, the South Africa Act created a centralized,unitary state. Each of thefour provinces became subordinate entities and had far fewer powers than theCanadian provinces orAustralian states. As such, the government of South Africa was quite similar—from a constitutional standpoint—to the government of theUnited Kingdom.
TheCape Colony had long adhered to a system of non-racial franchise, whereby qualifications for suffrage were applied equally to all males, regardless of race. During the union negotiations, the last Cape Prime Minister,John X. Merriman, andSir Walter Stanford, representing the Transkei and other African communities, fought unsuccessfully to have this multi-racial franchise system extended to the rest of South Africa. Their attempt failed in the face of opposition from the white governments of the other constituent states, which were determined to entrench white rule.[10][11]
The South Africa Act permitted theCape Province to keep a restricted version of its traditional franchise, whereby qualifications limited the suffrage of all citizens according to education and wealth. This meant that the Cape, and to a far lesser degreeNatal, havingcoloureds (mixed-race people) and Black Africans in the voting rolls. The act also permitted the Parliament of South Africa to prescribe all other voting qualifications.[12][13]
However, according to the act, Parliament was given the power to change the Cape's voting requirements by a two-thirds vote. Over the following years,legislation was passed by Parliament to slowly erode this colour-blind voters roll.
In 1931, the remaining franchise qualifications, except for the age limit of 21, were removed for white voters, but kept in place for Black and "Coloured" voters (including the demand that voters be male).[14] In 1956, theApartheid government removed all remaining suffrage rights for "non-whites"[15] in what became known as theColoured vote constitutional crisis.
Overall the act did little to protect black Africans during the time period in which the South Africa Act was the constitution of South Africa, and ultimately enabled the establishing of fifty years ofapartheid andracial discrimination.
The act established English andDutch as theofficial languages of South Africa, with equal status under the law, and required all government documents and parliamentary proceedings to be published in both languages.[16] In modern times, English remains one of theofficial languages of the Republic of South Africa. Dutch was extended to includeAfrikaans by theOfficial Languages of the Union Act, 1925, and replaced by Afrikaans in theConstitution of 1961.
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