1

HARRIS AND OTHERS v MINISTER OF THE INTERIOR AND ANOTHER 1952 (2) SA 428

(A)

1952 (2) SA p428

Citatio

n

1952 (2) SA 428 (A)

Court Appellate Division

Judge Centlivres CJ , Greenberg JA , Schreiner JA , Van den Heever JA , and Hoexter JA

Heard February 20, 1952 ; February 21, 1952 ; February 22, 1952 ; February 23, 1952 ;

February 25, 1952 ; February 26, 1952

Judgm

ent

March 20, 1952

A

Flynote : Sleutelwoorde

B Parliament - Meaning of - Means Parliament functioning in accordance with SA Act -

Entrenched clauses of SA Act left intact by Statute of Westminster - Act passed bicamerally

which SA Act required to be passed unicamerally - Jurisdiction of Court to declare such Act

invalid - Power C of Parliament to amend Constitution - Election law - Registration of voters -

Separate Representation of Voters Act, 46 of 1951 - Such Act 'disqualifies' voters on ground of

race or colour within meaning of sec. 35 of SA Act - Such Act not passed in conformity with

secs. 35(1) and 152 of SA Act - Such Act null and void - International law - Union of D SA now

an autonomous (sovereign) State - Statute - Interpretation - Court having regard to events leading

up to passing of Statute as throwing light on meaning of such Statute - Validity - Not possible to

separate good from bad - Whole Act invalid - Court - Appellate Division - Court departing from

previous decision.

Headnote : Kopnota

E The Statute of Westminster has left the entrenched clauses of the South Africa Act intact;

2

accordingly the Courts have the power to declare an Act invalid on the ground that it was not

passed in conformity with the provisions of sections 35 and 152 of the South Africa Act.

F Rex v Ndobe , 1930 AD 484 , applied; Ndlwana v Hofmeyr, N.O. , 1937 AD 289, not

followed.

Act 46 of 1951, which provides for the separate representation of European and non-European

voters in the Province of the Cape of Good Hope, disqualifies both European and non-European

voters and potential voters on the ground of their race or colour within the meaning of G section

35 of the South Africa Act. Accordingly, as it was passed by the House of Assembly and the

Senate sitting separately and not in conformity with the provisions of sections 35(1) and 152 of

the South Africa Act, and as it is not possible to separate the good from the bad, it is invalid, null

and void and of no legal force and effect.

In order to understand the reasons for passing a constitutional Act like H the Statute of

Westminster, it is permissible to refer to the events which led up to such Act being passed, which

events may throw a light on the meaning of the Statute.

Prior to the passing of the Statute of Westminster the Union Parliament had unrestricted power to

amend the South Africa Act (including section 35(2), provided only that on certain subjects it

functioned in accordance with the requirements of sections 35 and 152.

1952 (2) SA p429

'Parliament of a Dominion' in the Statute of Westminster means, in relation to the Union of South

Africa, Parliament sitting either bicamerally or unicamerally in accordance with the provisions of

the South Africa Act.

The Union is (now) an autonomous (sovereign) state in no way subordinate to any other country

in the world.

As to when the Appellate Division will depart from a previous decision discussed. A

3

[zCIz] Case Information

Appeal from a decision of the Cape Provincial Division (DE VILLIERS, J.P., NEWTON

THOMPSON and STEYN, JJ.). The facts appear from the judgment of CENTLIVRES, C.J.

B Graeme Duncan, Q.C . (with him H. Snitcher, Q.C . and D. B. Molteno) , for the appelllants: If

Act 46 of 1951 had been passed immediately prior to the coming into operation of the Statute of

Westminster it would have been invalid and not a law by reason of the injunction in sec. 152 of

the South Africa Act. The Statute of Westminster did not expressly repeal such injunction nor,

upon a true construction, did it impliedly C repeal it. The whole of sec. 152 is therefore still part

of the law of the Union and consequently Act 46 of 1951 is invalid and not a law. Appellants are

persons in the Cape Province who, under the laws existing in the Colony of the Cape of Good

Hope at the establishment of Union, are capable of being registered as voters; see sec. 35 of the

South D Africa Act; Constitution Ordinance (Cape) 1853, sec. 8; Rex v Ndobe , 1930 AD at p.

490. Act 46 of 1951 provides for the disqualification of the appellants from being registered as

voters at the election of members of the House of Assembly by reason of their race or colour

only, within the meaning of sec. 35 of the South Africa Act; see secs. 2, 4(2) E (a) , 4(3) (a) , 5,

6, 9 of Act 46 of 1951; Ndlwana v Hofmeyr, N.O. and Others , 1937 AD at pp. 231 - 2. If a

person referred to in sec. 35 is excluded from any voters' roll in the Cape by reason of his race or

colour only, by virtue of a law, that law 'disqualifies' him from being registered as a voter by

reason of his race or colour. The fact that F other rights are given is irrelevant. The 'members of

the House of Assembly' referred to in sec. 35 are all the members in the Cape, not some of them.

If then a person referred to in sec. 35 is precluded by reason of his race or colour from being

registered as a voter at the election of any member in the Cape by virtue of a law, that law G

disqualifies him by reason of his race or colour only, from being registered as a voter; see Rex v

Ndobe, supra at pp. 490 - 3. Under the Cape laws power or capacity to acquire franchise

qualifications was not in any way conditioned by or dependent on race or colour. It lay in the

power of certain persons, without distinction of race or colour to H acquire the qualifications to

be registered as a voter and to vote at the election of any member of Parliament. It was this

power which was safeguarded by sec. 35(1). Moreover, if the right to vote is regarded, under the

Cape laws, race or colour were not factors in such right. The expressed intention of the

Legislature in enacting

4

1952 (2) SA p430

sec. 35 was to ensure that a qualification based on race or colour should not become part of the

complex title of the right to vote at the election of members of the House of Assembly in the case

of such persons who would have had a right to such vote in the Cape at Union. It follows,

therefore, that if Act 46 of 1951 had been passed prior to the A Statute of Westminster it would

not have been duly passed, could not have been a law and would have afforded no defence to

anyone acting in pursuance of it to the prejudice of the appellants. It has been suggested that the

only reason for this was the existence of the Colonial Laws Validity Act; see Legislative

Competence of the Union B Parliament , 1931 S.A.L.J. at pp. 277, 282 - 3. This is not so,

because just as the Colonial Laws Validity Act was part of the law of the Union so was the South

Africa Act. There is no justification for the contention that secs. 35 and 152 of the South Africa

Act have no legal effect standing alone and that they would cease to be part of the law of C the

Union if the Colonial Laws Validity Act disappeared; see Colonial Laws Validity Act 28 and 29

Vict. 63; Wheare Statute of Westminster (4th ed., p. 304); Rex v Ndobe, supra at pp. 492 - 3, 495

- 7; Rex v McChlery , 1912 AD at pp. 206, 218 - 9; A - G. Ontario v A - G. Canada , 1947 (1)

A.E.R. at p. 141; 1947 A.C. at pp. 145 - 6; Cowen, Parliamentary Sovereignty , pp. 3 - 4; and cf .

1931 S.A.L.J. D at pp. 273, 281 - 2. Indeed, the South Africa Act, as the particular Statute

creating the Parliament of the Union, in empowering Parliament to repeal or amend provisions of

that Act, has resulted in the Colonial Laws Validity Act having a very limited effect, if any, in

relation to E the South Africa Act. For the law of the Union relevant to the present matter,

immediately prior to the passing of the Statute of Westminster, see the Preamble of the South

Africa Act (9 Edw. VII), the law as laid down in Rex v Ndobe, supra , and Rex v McChlery,

supra , which law was primarily to be sought in the South Africa Act but was also to be sought F

in any other Statute of the Imperial Parliament having the force of law in the Union, such as the

Colonial Laws Validity Act, secs. 19, 30, 31, 49, 50 and 59 of the South Africa Act and the rules

expressly enacted in this Act to ascertain the will of the Legislature, such rules being required

whenever the Legislature consists of more than one individual; see Dicey, Law of the

Constitution (9th ed., p. xxxviii, Wade's G Introduction). Also, as legislative power was vested in

Parliament, consisting of the three elements prescribed in sec. 19, it followed that, unless

otherwise provided by law, a Bill could only become law if agreed to by each of such elements.

In general whether the Senate had H agreed would depend upon whether a quorum was present

and whether a majority of the members present had agreed and similarly with the House of

5

Assembly. On such matters the Court would, no doubt, as a matter of evidence, accept the terms

of the certificates of the Speaker and the President of the Senate as being conclusive of what was

done in their

1952 (2) SA p431

respective Houses; see Wigmore, Evidence , secs. 1350 et seq . Moreover, in the case of matters

of a certain kind the mere consent of a majority of members of the Senate and of the House of

Assembly was not sufficient to make a law. The consent of those two constituent elements had to

be expressed in another prescribed manner. This prescribed manner might A result in a Bill

becoming an Act of Parliament even though all the Senators were opposed to the Bill; cf . secs.

35 and 152. Secs. 30, 31, 49, 50, 35 and 152 were not provisions dealing with the competency of

Parliament, i.e. with its powers, but provisions prescribing how the will of the constituent

elements of Parliament should be expressed in B order that their decisions might be an Act of

Parliament and thus a law. There is a clear distinction between what Parliament may do by

legislation and what the constituent elements must do to legislate; see Dixon, Law Quarterly

Review , 1935 (at pp. 603 - 4); Dicey, ibid.; Latham, Law and the Commonwealth (Hancock's

Survey , p. 523); Cowen, C Parliamentary Sovereignty, pp. 5 - 10; Jennings, The Law and the

Constitution (3rd ed., pp. 139 - 145); Salmond, Jurisprudence (9th ed., at p. 685); English

Parliament Act , 1911, 1 and 2 Geo. V Ch. 13; Dicey, supra p. 627. These provisions were not

matters with respect to D the order and conduct of the business and proceedings of the two

Houses within the meaning of sec. 58. They were provisions with which Parliament could deal

and not matters with which each House could deal; see Rex v Ndobe, supra at pp. 496 - 7. The

first four sections referred to supra could be amended by Parliament but an amendment by

Parliament would only be effected if the two constituent elements E referred to in the sections

had functioned in accordance with those sections. If ten Senators only had consented or if only

twenty members of the House of Assembly had consented, no legal amendment would have been

effected. Secs. 35 and 152 could also be amended but again only if the Senate and House of

Assembly had functioned in accordance with these F sections. If the two Houses had sat

separately or if only a majority of members of the two Houses sitting jointly had consented, then

equally no legal amendment would have been effected. The reason for this in each case was that

the decision, even with the concurrence of the Governor-General, would not have been arrived at

by Parliament as G constituted under the South Africa Act. The South Africa Act did not provide

6

that a decision of a majority of members of the Senate and the House of Assembly assented to by

the Governor-General would always be an Act of Parliament but that such an Act would be

beyond the power of Parliament if secs. 35 and 152 had not been observed. In so far as the H

South Africa Act contained any limitation upon the powers of Parliament, Parliament would

have been bound thereby because its powers did not include a power to ignore such limitation;

see Rex v McChlery, ibid . Immediately prior to the passing of the Statute of Westminster, the

South Africa Act may possibly have precluded Parliament from

1952 (2) SA p432

legislating with extra-territorial effect. Moreover, by reason of the Colonial Laws Validity Act it

was precluded from legislating repugnantly to a statute of the Imperial Parliament. Thus, prior to

the Statute of Westminster what purported to be an Act of the Union Parliament might have been

challenged on the grounds (a) that Parliament had not A functioned in that one or more of the

three elements of Parliament had been ignored or in that one or more of the elements had not

acted in accordance with the requirements of the law with reference to the process of law-making

and (b) that the legislation was beyond the powers of Parliament, inasmuch as it was repugnant

to a statute of the Imperial B Parliament or possibly because Parliament could not make a law

having extra-territorial effect. If the existence of ground (a) was proved, then it would have been

shown that Parliament, in whom legislative power was vested, had not acted at all. If ground (b)

only C were proved, then Parliament would have acted, but its action would have been ultra vires

. The Statute of Westminster, liberally interpreted, has altered the legal position only under (b)

above. Despite the passing of that Statute, what purports to be an Act of Parliament may still be

challenged and held to be invalid on ground (a) above; see The Statute of Westminster (printed

in Standing Orders (House D of Assembly), 1938 ed., p. 212). As there is nothing in the Statute

to assist in the essential enquiry as to what is the Union Parliament, and as to the manner in

which its elements must function in order that their decision may be a decision of Parliament and

therefore an Act of Parliament, the answer to such questions must be sought in the South E

Africa Act as before, for there is no other relevant law to be consulted. The Statute liberally

interpreted affected alone the competency or the powers of Parliament (functioning under the

South Africa Act) and in no way affected the method of law-making in the F Union. As to the

distinction between the 'conservative' and the 'liberal' view of the Statute, see Wheare, The

Statute of Westminster (4th ed., pp. 159 et seq.); Cowen, Parliamentary Sovereignty , pp. 21 - 2.

7

The Statute of Westminster added to the powers of the Union Parliament (a) a power to make

laws repugnant to the law of England or to an Imperial Statute, (b) a power to amend or repeal a

Statute of the G Imperial Parliament in so far as it was part of the law of the Dominion, (c) a

power to legislate with extra-territorial effect. The Statute did not in any way deal with or

interfere with the rules governing the exercise of the legislative power by the Union Parliament.

The proposition that 'the Parliament of the Union has power to repeal or H amend any section of

the South Africa Act' was correct prior to the Statute of Westminster and is equally correct to-

day. The Statute did not expressly repeal any provision of the South Africa Act. Thus the

contention of the respondent involves a finding that the proviso to sec. 152 of the Act was

impliedly repealed by the Statute of Westminster but there is nothing inconsistent between that

section and the Statute

1952 (2) SA p433

and a fortiori nothing manifestly inconsistent; see New Modderfontein G.M. Co v Transvaal

Provincial Administration , 1919 AD at p. 400; Krause v C.I.R. , 1929 AD at p. 294; Rex v

Heard , 1937 CPD at p. 415. A bare majority of the House of Assembly and a bare majority of

the Senate and the Governor-General could only have been vested with power A to repeal sec.

152 of the South Africa Act if that power was conferred upon them by the Statute of

Westminster, there being no other law from which that power could be derived. Sec. 2(2) of the

Statute does not confer such power, dealing expressly and solely, as it does, with the legislative

power of Parliament and in no way with what the constituent B elements of Parliament must do

in order that a law may be enacted. Even if sec. 2(2) is capable of another meaning, viz. that the

three constituent elements of Parliament might henceforth function, in repealing sec. 152 of the

South Africa Act, in a manner other than that prescribed in the South Africa Act, it is extremely

improbable that the C law-giver intended sec. 2(2) to have that meaning for the reasons; (a) the

South Africa Act was the result of an agreement between the four Colonies; see the Preamble

(para. 2); Ndlwana v Hofmeyr, N.O. & Others , 1937 AD at p. 230; Swart, N.O. and Nicol, N.O

v de Kock and Garner , 1951 (3) SA at pp. 600, 611 - 12; and it is improbable that the Imperial

Parliament in 1931 intended to upset the compact between the D former Colonies and to change

fundamentally the basic law of the Union; (b) the Statute of Westminster, according to its

Preamble, was passed as the result of the request of each Dominion; as to the terms upon which

this request was made on behalf of the Union, see Resolution of the E House of Asscmbly of

8

22nd April, 1931, and of the Senate of 6th May, 1931. Under these circumstances it is

improbable that the Imperial Parliament intended to repeal the entrenched provisions of the

South Africa Act. The fact that in the case of Canada, Australia and New Zealand saving sections

were inserted in the Statute is no reason for F construing sec. 2(2) of the Statute as being

intended to repeal the proviso to sec. 152 of the South Africa Act; see sec. 7(1) of the Statute and

cf . Halsbury's Laws of England (2nd ed., Vol. 11, pp. 91 and 70 - 71). If sec. 7(1) had not been

inserted, the Dominion Parliament under the North America Acts, might, in the plenitude of the

G powers conferred upon it by sec. 2(2), have upset the federal arrangement of those Acts by

amending them so as to override or abrogate the powers of the Provincial Legislatures. But this

was not sufficient, as it was desired that the Provincial Legislatures should also enjoy, in regard

to the subjects assigned to them, the powers conferred by sec. 2, and therefore sec. 7(2) conferred

those powers and to avoid the H possibility of a clash between Dominion and Provincial

legislative powers, sec. 7(3) was inserted in the Statute. As to Australia and New Zealand, the

constituent Acts of those Dominions, referred to in sec. 8 of the Statute, indicate that it was not

the case that the necessity for observance of the method of legislation was all that sec. 8 was

1952 (2) SA p434

intended to safeguard, for the constituent Acts did not confer plenary powers of legislation on the

Parliament of each of the Dominions referred to. In the case of Australia in particular, if sec. 8 of

the Statute had not been enacted, sec. 2(2) might have conferred the power of alteration of the

constitution established by the Commonwealth of A Australia Constitution Act, 1900 (63 and 64

Vic. Ch. 12), sec. 9, on the Commonwealth Parliament, thus empowering it to terminate the

federal system, as established by secs. 1 to 8, which sections were not alterable except by the

Imperial Parliament. In addition, if sec. 2(2) of the Statute had applied to Australia without

qualification, it might B have conceded plenary powers to the Commonwealth Parliament at the

expense of the powers conferred on the States by the Constitution. Finally, if sec. 2(2) had

applied without qualification it might also have conceded powers to the Commonwealth

Parliament at the expense of those of the electorate in sec. 128 of the Constitution. But mere C

preservation of the existing Constitution of Australia might well have been insufficient to

safeguard the powers of the State Legislatures; see the Constitution, sec. 107; Halsbury, supra p.

105. It was this constitutional difficulty that sec. 9(1) was designed to prevent by prohibiting the

Commonwealth Parliament from invading the D legislative competence of the States; see

9

Wheare Statute of Westminster (4th ed., pp. 205 - 6). As to New Zealand, unlike Australia and

Canada but like South Africa, New Zealand possesses a unitary constitution, but the difficulty in

this case was that a doubt existed as to whether the New Zealand Parliament possessed any

power at all in certain respects to E change the Constitution of the Dominion; see Halsbury,

supra p. 69. Sec. 2(2), if sec. 8 had not been enacted, might have conferred such powers. The

effect of sec. 8 was to withhold them. But sec. 8 in this context affects the substantive powers of

a Dominion Parliament, not the method by which such Parliament functions and enacts law. The

foregoing F analysis establishes that the 'saving sections' of the Statute of Westminster impose

limitations on the positive powers of the Parliament of a Dominion, in the cases of Canada,

Australia and New Zealand, which might otherwise have been conferred by sec. 2(2). They deal

in no way G with the constitutional method of legislating by a Dominion Parliament. Only if the

'saving sections' could be shown to safeguard the constitutional method of legislation alone,

could it be plausibly suggested that such method was intended to be affected by sec. 2(2) and

hence to require a special and an express safeguard. But even if the 'saving section' had, in truth,

been inserted to safeguard only the H method of legislation prescribed in the constitutions of the

particular Dominions referred to, the conclusion that sec. 2(2) impliedly repealed the proviso to

sec. 152 of the South Africa Act would by no means follow. The argument that the existence of

the 'saving sections' had this result would only be sound if the insertion of the 'saving sections'

led to the necessary inference that the Imperial Parliament inserted the sections because it

considered

1952 (2) SA p435

sec. 2 would have had the effect of enabling the constituent elements of any Dominion

Parliament to ignore their own Constitution in making laws and that as the three Dominions

mentioned did not desire this, the 'saving sections' were inserted. Such an inference would,

however, by no means be a necessary inference, because the insertion of the section A might

equally have been due to a fear held by the three Dominions named that the section might, and

not must, be construed as meaning that their constitutional arrangements fell away and that to

make the position quite clear they requested the insertion of the 'saving sections'. In view of this

possible reason for the insertion of the 'saving sections' B it becomes clear that they are of little

importance in construing sec. 2(2). The fact that nothing was said about the South Africa Act

might have been due to the fact that no doubt was felt in her case that the constituent elements of

10

the Union Parliament would remain obliged to make laws in the manner laid down in the South

Africa Act and, C therefore, no request was made by her for a special saving clause. The Statute

of Westminster was intended to confirm by law certain declarations and resolutions of the

conferences held in 1926 and 1930; see Title and Preamble of the Statute. In construing a

constitutional instrument, such as this Statute, it is proper to take cognisance of the D historical

events that preceded and led up to its passing; see Maxwell, Interpretation of Statutes (9th ed.,

pp. 23 - 5); British Coal Corporation and Others v The King , 1935 A.C. at pp. 518 - 9, 520; 153

L.T. at p. 287; In re: The Regulation and Control of Aeronautics in Canada , 1932 A.C. at p. 70;

Kennedy, Interpreting the Statute of Westminster in Essays in Constitutional Law , pp. 161 - 3,

165 - 8. In E any event, even if the Statute was an ordinary Statute, evidence as to the

surrounding circumstances in which the law was made is admissible; see Maxwell, ibid . pp. 22 -

3; Assam Railways & Trading Co. Ltd v Commissioners of Inland Revenue , 1935 A.C. at pp.

457 - 9; 152 L.T.R. F at pp. 31 - 2. The foregoing analysis in regard to Canada, Australia, New

Zealand and South Africa is borne out by reference to the report of the Conference on the

Operation of Dominion Legislation which was approved of by a Resolution of the Imperial

Conference of 1930; see Command Paper No. 3717 (p. 18); Command Paper No. 3479 (paras. 63

7 and G 71). Thus the position in the Union after the passing of the Statute was that full

legislative power was vested in the Parliament of the Union but that the law of the Union in

regard to the composition of Parliament and as to the manner in which its constituent elements

must function in the exercise of that power, in order that what is done may H be a law, remained

precisely as it was before. Moore and Others v Attorney-General for the Irish Free State and

Others , 1935 A.C. 484 is in no way inconsistent with this submission as in that case limitations

upon legislative competency were involved and it could not be denied that the constituent

elements of the Irish Parliament had complied in every respect with the method of law-making in

1952 (2) SA p436

its Constitution; see also Halpin v Attorney-General , 1936 I.R. 227. The passing by the Union

Parliament of Act 69 of 1934 does not affect the validity of the foregoing submission, as, if

Parliament obtained full legislative power upon the passing of the Statute of Westminster, a

declaration in 1934 that it had such power carries the matter no A further. Ndlwana v Hofmeyr,

N.O., 1937 AD 229 , is not inconsistent with the foregoing submissions. As it was common

cause, in that case, that secs. 35 and 152 of the South Africa Act had been complied with, the

11

validity of Act 12 of 1936 which was in issue could only arise if, on the facts, the subject-matter

of the Bill had not fallen within the B scope of those sections. The decision in Ndlwana's case,

supra , was arrived at by assuming that the Parliament of the Union referred to in both the South

Africa Act and in the Statute of Westminster was the King, the Senate and the House of

Assembly functioning as a Legislature C by the mere assent of each of them, that the injunction

in sec. 152 of the South Africa Act was a limitation upon the powers of such a Legislature, that

the Statute of Westminster was intended to confer upon such a Legislature the supreme law-

making power, i.e. sovereignty, and that the injunction in sec. 152 was no longer law, i.e. that it

had been impliedly repealed by the Statute of Westminster. These assumptions are D erroneous

for the reasons already submitted, although the resulting decision was correct on the facts before

the Court. This Court will, under the circumstances, reconsider the whole matter and if satisfied

that the reasoning based on the incorrect assumption is erroneous, not regard itself as in any way

bound thereby; see Rex v Faithfull and E Gray , 1907 T.S. at pp. 1080 - 1; C.I.R v Estate Crewe

and Another , 1943 AD at pp. 677 - 80.

An enquiry into the question whether the Union Parliament is the sovereign law-making body in

the Union is of no relevance in the present F case. Before that enquiry can be embarked on, the

issues raised in the present case must be determined. Moreover, if that enquiry is embarked on,

the results of the enquiry will depend wholly upon what precisely is meant by the words

'sovereign lawmaking body'. In any event, the fact that the constituent elements of Parliament

are, by the law constituting them, obliged to function in a prescribed manner in order that their G

actions may be those of Parliament, is in no sense in conflict with the position that Parliament is

a 'sovereign' legislative body. It is the Parliament as constituted by the South Africa Act which

has full legislative power and is therefore sovereign and no other Parliament; H cf. Ndlwana's

case, supra at pp. 233 - 4, Dicey, supra pp. 39 - 40, Jennings, supra pp. 140, 143, Cowen, supra

pp. 8 - 11. If it was Dicey's view that a Legislature is only sovereign if there is one manner of

law-making which the constituent elements of that Legislature can always adopt in legislating,

such view is a generalisation drawn from the British Constitution and the working of the

1952 (2) SA p437

British Parliament; see Dicey, supra pp. 87 - 8, 91. This trait possessed by the Imperial

Parliament is not an essential characteristic of a sovereign legislature and there is no reason why

12

it should be regarded as essential in South Africa. If it is, then the only consequence is that

Parliament is not sovereign in this sense, but nevertheless there is no external sovereign since the

trait which is A absent could always be inserted in the Constitution by Parliament functioning

under sec. 152 of the South Africa Act. The fact that, in England, a Bill becomes an Act of

Parliament by the mere assent of the three constituent elements is no reason for saying that the

same position exists in the Union. An assertion that the law relating to the B Parliament of the

Union is the same as that relating to the Parliament of Great Britain is manifestly incorrect since

there is no law in Great Britain like sec. 152. In England there is a customary law that the three

constituent elements of Parliament must assent in order that a law may be made, unless otherwise

provided by law. Moreover, C there is weighty authority for the proposition that there is also a

customary law there binding on the constituent elements of Parliament that the two Houses must

sit separately and that a joint sitting is not competent; see Dicey, supra (Wade's Introduction, p.

xxxviii), Latham, supra p. 523, N. 3. The Supreme Court has the power to enquire into the D

question whether an alleged Act of Parliament has been duly passed in accordance with the rules

prescribing how a law is to be made. The doctrine of Parliamentary Sovereignty precludes a

Court of Law from enquiring into an allegation that what Parliament has done is beyond the

powers of Parliament but it does not preclude enquiry into an allegation E that the constituent

elements have not functioned as Parliament. The reason is that the Courts exist to enforce the

law. Moreover, by virtue of sec. 152 of the South Africa Act, no repeal or alteration of the

provisions contained in that section 'shall be valid' unless certain conditions are complied with. If

such conditions are not complied with, F the purported law is invalid, i.e. it is not a law. It

therefore cannot be relied upon in a Court of Law which exists to enforce the law, or anywhere

else. Thus, if the Court finds that Act 46 of 1951 is not an Act of Parliament then it necessarily

follows that appropriate relief G will be granted. By doing so the Court does not question the

sovereignty of Parliament. It decides the dispute before it by applying the law without regard to

something which is not a law; see Ndlwana's case, supra at pp. 231, 238, Dicey, supra p . 55,

Swart, N.O. and Nicol, N.O v De Kock & Garner , 1951 (3) SA at pp. 601, 611, 617, 621, 623. If

the true view of sec. 152 of the South Africa Act is that, prior to the H Statute of Westminster,

the injunction therein addressed to the elements of Parliament constituted a limitation upon the

powers of Parliament itself, the enquiry would remain as to whether such limitation still existed;

in other words, assuming Act 46 of 1951 to be an Act of Parliament, is it ultra vires on the

1952 (2) SA p438

13

ground that Parliament exceeded its powers. Inasmuch as the Union Parliament, unlike the

Imperial Parliament, derives its powers from Imperial Statutes, it necessarily follows that some

Imperial Statute must be invoked to justify any action by Parliament. Prior to the Statute of

Westminster (upon the assumption now being made) Parliament A had not the power to pass Act

46 of 1951 unless the provisions of sec. 152 of the South Africa Act had been complied with.

The enquiry must then be as to whether it was vested with a power to pass Act 46 of 1951 by the

Statute of Westminster and that turns on the intention of the Imperial Parliament as expressed in

that Statute; see Rex v McChlery, B supra at pp. 206 - 7, 218 - 9; Moore and Others v A. G. Irish

Free State and Others, supra at pp. 497 - 8. The language of sec. 2(2) of that Statute, as applied to

the Union, is 'The powers of the Parliament (of the Union) shall include the power to repeal or

amend any C such Act (i.e. an Act of the Parliament of the United Kingdom)'. These words, read

in the light of the sec. 152 of the South Africa Act mean, 'repeal or amend in the manner laid

down in the South Africa Act'. The fact that the South Africa Act and the Statute of Westminster

are both portions of the statute law of the Union and that the latter Act D did not expressly repeal

sec. 152 of the former Act necessitates an attempt to read the two Statutes together. The later Act

refers to a power to 'repeal' and is silent as to the manner of repeal. For the reasons already

advanced, sec. 2(2) of the later Act does not mean 'repeal in any manner laid down in the South

Africa Act' but it means, E or at least may mean, 'repeal in the manner laid down in the South

Africa Act'. This submission is not inconsistent with the decision in Moore v Attorney-General,

supra , because, in relation to the Irish Free State, the fact that sec. 2(2) meant 'repeal in the

manner laid down in the Constitution of the Irish Free State' carried the matter no further F as the

Irish Parliament had acted in the manner laid down in its Constitution in making the law in

question. Act 69 of 1934 carries the matter no further. Much of the reasoning in Ndlwana's case,

supra , is inconsistent with this submission but underlying those reasons are the erroneous

assumptions set out supra . If, upon a true view, sec. 152 is a G limitation upon the powers of

Parliament (meaning thereby the King, the Senate and the House of Assembly without reference

to the manner in which those elements were to function in legislating) then such a Parliament of

the Union is not 'sovereign'. The legal 'sovereign' may be Parliament as constituted under sec.

152. It would certainly not be the H Imperial Parliament. Further, the questions canvassed in the

reasons for judgment in Ndlwana's case, supra , have no real relevance in the present case.

14

A. B. Beyers, Q.C . (with him J. T. van Wyk, Q.C., D. P. de Villiers and G. Wynne) , for the first

respondent: For the purposes of his argument first respondent assumes to be sound appellants'

1952 (2) SA p439

submissions that appellants are persons in the Cape Province who, under the laws existing in the

Colony of the Cape of Good Hope at the establishment of Union, were capable of being

registered as voters and that Act 46 of 1951 provides for the disqualification of appellants from

being registered as voters at the election of members of the House of A Assembly by reason of

their race or colour only, within the meaning of sec. 35 of the South Africa Act and also, for the

purposes of his argument, first respondent accepts, subject to what is stated later, that prior to the

Statute of Westminster, the Union Parliament could not legislate repugnantly to sec. 35 and that

if it did so, the Courts had power to declare such legislation invalid; see Rex v Ndobe , 1930 AD

B at p. 497. Since the Statute of Westminster the Union Parliament can validly legislate

repugnantly to any British Statute and no Court of law has the power to declare an Act of the

Union Parliament invalid. The issues in the present case are issues of constitutional law and must

accordingly be determined against the background of the constitutional C development of the

Union, and of the historical evolution of the institute of Parliament in Great Britain and in the

British Empire and Commonwealth of Nations. As to the general principles applicable in the

consideration of matters of this kind, see Edwards v Attorney-General D for Canada , 1930 A.C.

at pp. 136 - 7; British Coal Corporation and Others v The King , 1935 A.C. at p. 518; Rex v

Offen , 1934 S.W.A. at p. 83. The South Africa Act is an Act of the British Parliament and, as

such, is no different from any other Act of the British Parliament. The fact that the British

Parliament was advised by the National Convention or that the Act contains what is called the

Union Constitution gives to E it no greater sanctity than any other British Act; see McCawley v

The King , 1920 A.C. at pp. 703 - 5; Moore and Others v Attorney-General for the Irish Free

State and Others , 1935 A.C. at pp. 496 - 8. When Great Britain acquired the Cape Colony in

1806 (by conquest and/or F cession), the position, according to British Common Law, was that,

while the established law of the Colony continued to regulate the relationships of individuals

inter se , the constitutional relationship between the Colony and Great Britain was regulated by

the law of Great Britain; see Halsbury's Laws of England (2nd ed., Vol. IX, paras. 455 G - 8).

The Common Law of Great Britain provides that the Imperial Parliament has legislative

15

authority and supremacy over all colonies; see Halsbury, ibid . para. 472; Campbell v Hall , 98

E.R. at p. 1047. It is by virtue of this rule of the British Common Law that Acts of the British

Parliament obtained and continued to have the force of law in the Cape Colony. Parliamentary

Government was introduced into the Colony H by the Constitutional Ordinance of 1853, but this

fact did not derogate from the legislative authority or supremacy of the British Parliament. As

uncertainty as to the extent to which Colonial Legislatures could legislate repugnantly to the Law

of England arose, the Colonial Laws Validity Act was enacted. The history of this

1952 (2) SA p440

Act is set out in paras. 45 - 49 of the Report of the Conference on the Operation of Dominion

Legislation and Merchant Shipping Legislation (1929 Command Paper 3479). The effect of the

Colonial Laws Validity Act was that the Colonial Legislatures could validly enact any law, save

in so far as they were restricted by this Act. More particularly the A effect, therefore, was that

Colonial Legislatures could not legislate repugnantly to British Statute Law but could freely

legislate repugnantly to the English Common Law. Sec. 3, however, contained the qualification

that the Colonial Legislatures could not legislate repugnantly to such principles of English

Common Law as were protected B by a British Statute. Further, the English Common Law

principle, whereby the British Parliament obtained and exercised legislative authority and

supremacy over the Colonies, was maintained by the Colonial Laws Validity Act; see In re Reg v

Marais , 1902 A.C. at p. 54. Thus the Colonial Legislatures could not abolish the legislative C

authority and supremacy of the British Parliament, inasmuch as such legislation would have been

repugnant to the Colonial Laws Validity Act. The South Africa Act as an Act of the British

Parliament obtained and continued to have the force of law in the Union by reason of the

combined effect of (i) the English Common Law principle maintained by D the Colonial Laws

Validity Act whereby the British Parliament could legislate for the Colonies and (ii) its

enactment by the British Parliament as a law extending to a British Colony. At the Imperial

Conference of 1926, the Union of South Africa, supported by Canada, pressed for the

recognition in more tangible form of a convention of E non-interference by the British

Parliament in the internal affairs of the Colonies which had developed with the growth of

political power in the Colonies and which had greatly restricted the political sovereignty of the

British Parliament. As a result the principle was accepted that certain of these erstwhile Colonies,

now to be called Dominions, were F 'autonomous communities within the British Empire, equal

16

in status, in no way subordinate, one to another, in any aspect of their domestic or external

affairs, though united by a common allegiance to the Crown and freely associated as members of

the British Commonwealth of Nations'; see Report of the Conference on the Operation of

Dominion Legislation G and Merchant Shipping Legislation (1929, Command Paper 3479,

paras. 49 - 51). The Statute of Westminster was passed to give legal effect, in so far as it was

necessary, to this principle; see Tydskrif vir Hedendaagse Romeins-Hollandse Reg (1950, pp.

310 et seq. , Art. by Dr. H. VerLoren van Themaat). The Statute should accordingly be

interpreted H so as to give effect to this principle. If sec. 2(1) only of the Statute of Westminster

had been enacted, the effect thereof would have been that both secs. 2 and 3 of the Colonial

Laws Validity Act would not have applied to an Act of a Dominion Parliament. As the intention

was, as far as the Dominions were concerned, to repeal only the restrictive provisions of the

Colonial Laws Validity Act, i.e. to repeal that Act

1952 (2) SA p441

in so far as it declared a Colonial law repugnant to a British Statute invalid and not to repeal

those provisions of the Act which provided that no Colonial law should be void on the ground of

repugnancy to the law of England, the relevant provisions of sec. 3 of the Colonial Laws Validity

Act were re-enacted in sec. 2(2) of the Statute of Westminster and it was further provided in the

section that the same rule would now A apply in regard to Imperial Statutes. The result was that

the rule upon which rested all the Imperial legislation for the Union of South Africa, came to be

at the mercy of the Union Parliament. There is no law which requires the Union Parliament to

function in any manner other than its B customary manner in order to repeal, validly, any part of

the English Common Law. In the result, the Union Parliament can, by ordinary legislative

process repeal, alter or amend the foregoing principles of the English Common Law in so far as

they may still apply. It follows that any Statutes of the Imperial Parliament, containing no matter

what C provisions, were at the mercy of the Union Parliament, as the only basis for their

application was the English Common Law principle referred to supra . It is conceded that, save

in so far as they were expressly or impliedly repealed in the Statute of Westminster, the Statutes

previously enacted for the Union by the British Parliament D continued to be part of the law of

the Union after the enactment of the Statute of Westminster. It may be that the true basis for their

continued existence is a rule of the South African Common Law, as suggested in Rex v Heard ,

1937 CPD at p. 414. The fact that the Union Parliament can abolish or at its will amend the

17

Common Law basis upon which the supremacy of the British Parliament in the Union was E

founded, means that all fetters binding the Union Parliament have fallen away and consequently

the Union Parliament emerges as a Sovereign Legislature, as it was declared to be in Act 69 of

1934. Apart from the Common Law basis, however, the same conclusion is arrived at by simply

F considering the effect of the Statute of Westminster in so far as that Statute now gives to the

Union Parliament the power to legislate repugnantly to any Act of the British Parliament,

including the South Africa Act, 1909. Prior to the passing of the Statute of Westminster, the

Union Parliament was a non-sovereign, subordinate Colonial Legislature. Its subordination

rested solely upon the fact that Courts G of law could declare laws made by the Union

Parliament invalid by reason of their being repugnant to an Act of the British Parliament. Apart

from this, Courts of law had no testing right over any laws of the Union Parliament, just as little

as Courts of law could test the validity of Acts of the Imperial Parliament; see British Coal H

Corporation and Others v The King, ibid.; Edwards v A - G. for Canada , 1930 A.C. 136; Rex v

McChlery , ibid. at pp. 215 - 6; Rex v Ndobe , ibid.; Rex v Offen, ibid . at p. 79; Rex v Burah , 3

A.C. at p. 904; Hodge v The Queen , 9 A.C. at p. 132; Powell v Apollo Candle Co. , 10 A.C. at

p. 289; Dicey, Law of the Constitution (9th

1952 (2) SA p442

ed., p. 112); Wade and Phillips, Constitutional Law , p. 406; Jennings, The Law and the

Constitution (3rd ed., pp. 138 - 41). Prior to the Statute of Westminster, the only fetter upon the

Colonial Legislatures and consequently the only ground upon which a Court could declare their

Acts invalid was determined by the Colonial Laws Validity Act. A Court A could only say a law

of a Colonial Legislature was invalid if it could find that it was repugnant to a British Act

extending to the Colony. This fetter marked the extent of the subservience of the Colonial

Legislatures to the British Parliament, i.e., the extent to which they were not sovereign. In its

practical effect the fetter manifested itself B in various ways, viz. (a) Statutes of the British

Parliament, i.e., Statutes to secure co-operation on various matters of importance, such as

merchant shipping, official secrets, and (b) the Constitutions of various Colonies as contained in

Acts of the British Parliament which C imposed limitations upon the powers of the Parliaments

of those Colonies, e.g. (i) the restriction of the area of legislative competence, e.g., by

prohibitions against extra-territorial legislation, (ii) the restriction of the power of amendment of

Constitutions as in the British North America Act, 1867, the Commonwealth Constitution Act,

18

1900, sec. 128 and the Irish Free State Constitution Act, 1922. The D Union's power to amend its

Constitution was limited in sec. 152 by two provisions stated in the section. The power of repeal

given by the second proviso was entrusted to a special Legislature which is constituted by a joint

session of the members of the two Houses of Parliament and the King. This Legislature is not

Parliament but its E decisions are taken to be decisions of Parliament. Alternatively, even if the

provisos to secs. 35, 137 and 152 do not constitute a special Legislature but are to be regarded

merely as requiring Parliament to adopt, for the purpose of legislation on the subjects therein

referred to, a special and abnormal procedure which is more difficult than the F ordinary process

of law-making, they still imposed limitations on the powers of Parliament and would still be

sufficient to make it a non-sovereign Parliament; see McCawley v The King , 1920 A.C. at p.

712; Barriedale Keith, Imperial Unity and the Dominions , p. 389; Ndlwana v Hofmeyr, N.O. ,

1937 AD at p. 230; Rex v Ndobe, supra at pp. 492 - 3; G Dicey, supra at pp. 88, 122, 125; Bryce,

Studies in History and Jurisprudence , Vol. 1, pp. 205 - 6. The fetter referred to supra , in all its

manifestations owed its efficacy to the supremacy of the British Parliament as maintained in the

Colonial Laws Validity Act. The Statute of Westminster terminated the supremacy of the British

Parliament, H thereby removing the fetter imposed by British Legislation, save in so far as it was

retained for certain of the Dominions in secs. 7, 8 and 9 of the Statute; see Moore v Attorney-

General, ibid.; Ndlwana's case, supra at p. 234; British Coal Corporation case, supra , and

contrast Nadan v The King , 1926 A.C. 482. Applied to the Union Parliament, the only

limitations on its sovereignty having been removed, it became a sovereign Legislature

1952 (2) SA p443

and took the place of the Parliament of the United Kingdom as the sovereign Legislature of the

Union; see Ndlwana's case, supra at p. 234. It follows that the relationship between the Union

Parliament and the Courts came to be the same as the relationship between the United Kingdom

Parliament and British Courts. In the result, no Court can, as A was possible at the time of Rex v

Ndobe, supra at p. 497, declare any Act, or the provisions of any Act, of the Union Parliament

ultra vires on the ground that it offended against sec. 35 of the South Africa Act or on the ground

that it offends against anything whatever. Parliament consists of the King, the Senate and the

House of Assembly; see sec. 19 of the South Africa Act. A Bill passed by Parliament so

constituted must B always be an Act of Parliament that is a 'law' and does not cease to be so

because it is invalid, e.g. where Parliament had no power to legislate on the subject-matter of the

19

particular Bill. And an analysis of secs. 35 and 152 shows that this is the position, even if it

concerns C those matters entrenched by the two sections. A Bill passed by the House of

Assembly and by the Senate and assented to by the King must always be a law within the

meaning of the opening phrase of sec. 35. Similarly the word 'law' in the phrase 'no such law

shall disqualify . . .' in sec. 35 must include a Bill passed by the House of Assembly and by D the

Senate and assented to by the King. This phrase means that a law so disqualifying shall, to the

extent that it disqualifies, not be a valid law. A law so declared invalid can only be a law passed

by the ordinary legislative process. In the premises it is implicit in sec. 35 that there is a

difference between a law passed by Parliament and a valid law E of Parliament. Sec. 35(2) may

have the meaning (i) that persons on the register in any Province could not be removed from the

register at all by reason of a disqualification based on race or colour only, either by Parliament as

ordinarily constituted or by means of the extraordinary machinery of a joint session; see Rex v

Ndobe, supra at p. 492. If this F is the true meaning, the word 'law' in the phrase 'at the passing

of any such law' must necessarily include a law passed by Parliament by ordinary legislative

process, which 'law' would nevertheless be invalid. If 'law' did not include a law passed by

Parliament as ordinarily G constituted, the sub-section would have the extraordinary result that

Parliament, as ordinarily constituted, could remove persons from the register in all the Provinces

of the Union, certainly in the three Northern Provinces, on the grounds of race and colour only,

whereas the Houses in joint session and the King could not do so. And yet, the two Houses

functioning together and the King is the only Legislature that H can amend sec. 35(2) and would

so amend it if it legislated repugnantly thereto. Or sec. 35(2) may have the meaning (ii) that only

Parliament by ordinary legislative process cannot remove a person from the register by reason of

a disqualification based on race or colour only; see Ndlwana's case, supra at p. 233. Upon this

reading, the word 'law' in the phrase 'at the passing

1952 (2) SA p444

of any such law' can only mean a 'law' passed by Parliament as ordinarily constituted. The fact

that it is not a valid law, is thus irrelevant in the determination of the meaning of the word 'law'.

A similar conclusion is arrived at upon an analysis of sec. 152. In the first proviso, the words

'repealed or altered' mean 'repealed or altered A by a law of Parliament'. The fact that Parliament

could not validly legislate on the matters excepted in this proviso, has no bearing on the question

whether Parliament has passed a law on those matters. Similarly in the second proviso the words

20

'no repeal or alteration' mean 'no law repealing or altering', and any Bill passed by the House of

Assembly and B the Senate and assented to by the King must be such a law. The basic fallacy

underlying appellant's argument on the point is the proposition that if a person can do a thing in a

lawful or unlawful manner and he does it in an unlawful manner, he has not done it at all. C The

word 'law' as used in secs. 35 and 152 means nothing else than an Act of a Colonial Legislature

and is used in contradistinction to the words 'Act of Parliament' meaning an Act of the Imperial

Parliament. Similar phraseology is found in the Colonial Laws Validity Act and the Statute of

Westminster. It is quite clear that the word 'law' as used in D those Acts and in the South Africa

Act cannot be restrictively read, as suggested by appellants, so as to mean a law which is

necessarily valid. Before the Statute of Westminster a 'law' passed by the Parliament of the

Union could be invalid, because a British Act declared it to be invalid. Since the passing of the

Statute of Westminster, no 'law' passed by the Union Parliament can be invalid by reason of the

E provisions of any Act. The word 'law' in the opening phrase of sec. 2(2) of the Statute

obviously again means an Act passed by a Dominion Parliament. It does not mean a 'law' which

would, prior to the Statute, have been a valid law but means an Act of a Dominion Parliament

which F would have been valid but for the fact that it is repugnant to the provisions of a British

Act. Applied to the Union Parliament and its powers under the South Africa Act, sec. 2(2) means

simply that no law passed by the Union Parliament, i.e. an Act passed by the House of Assembly

and the Senate and assented to by the King can be invalid by G reason of the fact that it is

repugnant to the South Africa Act. Therefore those provisions of secs. 35 and 152 of the South

Africa Act that declare that an Act of Union Parliament shall, under certain circumstances, be

void, inoperative or invalid, are irreconcilable with sec. 2 of the Statute of Westminster and

thereby repealed. The foregoing H interpretation of sec. 2(2) of the Statute of Westminster is

borne out by the insertion in the Statute of 'saving clauses' in so far as the Dominions of Canada,

Australia and New Zealand are concerned. On the interpretation of sec. 2(2) set out supra , the

Commonwealth Parliament could ignore the more cumbersome method prescribed for altering its

Constitution, and if it passed a law amending its Constitution by the ordinary method of

Legislation,

1952 (2) SA p445

such a law could not have been declared invalid by reason of the fact that it was repugnant to a

British Act, viz. The Commonwealth Constitution Act, 1900, and more particularly sec. 128 of

21

the Constitution. It was solely to avoid this result that sec. 8 of the Statute, in so far as it dealt

with repeal or amendment of the Constitution (as opposed to the Constitution Act) was inserted

in the A Statute of Westminster. As regards the Union of South Africa, it is significant that the

British Parliament deliberately refrained from inserting a similar 'saving clause' in the Statute. If

appellants' submission is sound, viz. that an Act of Parliament which has not been duly passed in

accordance with the rules prescribing how a law is to be B made, is not a 'law' within the

meaning of the expression 'no law of a Dominion Parliament' in sec. 2(2), then, as far as the

Australian Constitution is concerned, there was no reason for the enactment of sec. 8. In this

regard, it must be borne in mind that sec. 5 of the Colonial C Laws Validity Act, which in terms

protected the manner and form in which Legislation amending the Constitution of Colonial

Legislatures was to be enacted, was in the Statute of Westminster declared not to apply to a law

made by the Parliament of a Dominion. If secs. 35 and 152 do not, as appellants contend, contain

limitations on the powers of Parliament, but deal solely with the manner in which the constituent

D elements of Parliament must function in order to legislate, then appellants are in effect asking

a Court of Law to pronounce a judgment on a procedural issue already decided upon by the

Assembly, the Senate and the King. This the Court cannot do; see Act 19 of 1911, sec. 36; Lee

and Another v Bude & Torrington Junction Rlwy. Co. , 24 L.T. 829; E Edinburgh & Dalkeith

Rlwy. Co v Wauchope, 8 E.R. at p. 285; Bradlaugh v Gossett , 12 Q.B.D. at pp. 285 - 7; Rex v

Irwin , E. & E. Dig. Vol. 42, p. 601; Erskine May, Parliamentary Practice (15th ed., pp. 59 - 66);

Wade & Phillips, Constitutional Law (4th ed., pp. 119 et seq.); F Jennings, The Law and the

Constitution (3rd ed., pp. 220 - 1, 111); Craies, Statute Law (4th ed., pp. 69 - 70). As a matter of

evidence, an Act of Parliament is proved by a copy printed by proper authority. If the accuracy

of the copy is in doubt, the provisions of the Act are ascertained by reference to the enrolled

copy, in England the Parliamentary Roll, in South Africa the copy enrolled in the office of G the

Registrar of the Appellate Division under sec. 67 of the South Africa Act; see Craies, supra , pp.

442, 36 - 7; Powell, Evidence (9th ed., p. 252); Taylor, Evidence (11th ed., Vol. 2, p. 1042);

Phipson, Evidence (7th ed., pp. 527 - 8); Roscoe, Evidence in Civil Cases (20th ed., Vol. 1, p.

106). If, from the document, it appears that the H measure was passed by both Houses and

received the Royal assent as an Act of Parliament, the Courts are bound to accept that it is an Act

of Parliament, i.e. that Parliament has legislated. This proposition is not a mere matter of

evidence, either in England or in South Africa, but is based upon the broader principle that

Courts of Law have no jurisdiction or power to adjudicate

1952 (2) SA p446

22

upon the procedural steps preceding and resulting in the publication and enrolment of the

measure an as Act of Parliament. On this principle it is clear that the question whether there was

a quorum or a majority in either House has to be determined in accordance with the lex et A

consuetudo Parliamenti which is a branch of the law cognizable only in Parliament and not in a

Court of Law. From the fact of publication and enrolment the Court must accept that, in the

judgment of the three constituent elements of Parliament itself, the provisions in question have

been duly complied with. The Court would therefore have no jurisdiction to sit in appeal on the

question whether the measure fell B within the class requiring a joint session or not or even to

enquire into the question whether the Houses in fact sat separately or jointly. The foregoing

principles dealing with the question whether this Court can sit as a Court of Appeal on the

constituent elements of Parliament in relation to a matter of Parliamentary procedure, applied C

both before and after the passing of the Statute of Westminster; see Rex v Ndobe, supra at pp.

496 - 7. Moore v Attorney-General for the Irish Free State, supra, Rex v Ndobe, supra, and

Ndlwana v Hofmeyr, N.O., supra , are entirely in accord with all the foregoing submissions.

Moreover, leading writers on Constitutional Law concur that the entrenched clauses in sec. 152

lost their efficacy on the passing of D the Statute of Westminster; see W. Pollak, K.C., The

Legislative Competence of the Union Parliament (Art. in 1931 S.A.L.J. , Vol. 48, pp. 282 - 4);

Wheare, The Statute of Westminster , 1931 (p. 101); The Statute of Westminster and Dominion

Status (pp. 241, 247); Barriedale Keith, The Governments of the British Empire (pp. 46 - 8);

Framework E of Imperial Constitutions (p. 47); The Dominions as Sovereign States (p. 177,

footnote); Schlosberg, The Law and Custom of the SA Constitution (pp. 100 - 103); Latham, The

Law and the Commonwealth (Hancock's Survey (1937), p. 529, footnote); Jennings and Young,

F Constitutional Law of the British Empire (pp. 264 - 266); Welsh, The Legislative Competence

of the Union Parliament (Commercial Law Reporter , Nov. 1948, pp. 671 - 2); Annual Survey of

South African Law , 1948 (p. 9, s.v. Constitutional Law); May, The South African Constitution

(2nd ed., pp. 5 - 6, 26, 32); Butterworth's Annotated Union Statutes (1950, Vol. 3, note on sec.

59 of the South Africa Act); VerLoren van Themaat G (Art. in Tydskrif vir Hedendaagse

Romeins-Hollandse Reg , Nov. 1950).

As to appellants' contention that, if necessary, Ndlwana v Hofmeyr, N.O., supra , should be

overruled, the principle of stare decisis should be more rigidly applied in this, the highest Court

in the land, than in H all others, and the Court has no right to depart from its own previous

23

decisions unless arrived at on some manifest oversight or misunderstanding, i.e. unless arrived at

through something in the nature of a palpable mistake; see Bloemfontein Town Council v

Richter , 1938 AD at p. 232, affirmed in Rex v du Preez , 1943 AD at p. 583, and in Rex v

Leibbrandt and Others , 1944 AD at p. 280; see also Habib Motan v Transvaal Government,

1952 (2) SA p447

1904 T.S. at pp. 413, 421. As to the rigidity with which this principle is applied by the highest

Court in England, i.e. the House of Lords, see London Street Tramways Co v London County

Council , 1898 A.C. at pp. 379, 381; Great Western Railway Co v Owners of S.S. 'Mostyn' ,

1928 A.C. at p. 82. Where a decision has been relied upon in practice, so A that vested interests

have grown up or the position of the public has been materially affected, an additional reason for

the application of the maxim stare decisis is provided which is so potent that a Court of Appeal

will under such circumstances confirm rather than upset even a decision of an inferior court,

though it might not have given the same decision had the matter come before it originally; see

Bourne v Keane, B 1919 A.C. at p. 874; Habib Motan's case, supra , at pp. 413, 421; De Villiers

and Another v McIntyre, N.O. , 1921 AD at p. 432; Kergeulen Sealing & Whaling Co., Ltd v

C.I.R. , 1939 AD at p. 505; Estate Phillips v C.I.R. , 1942 AD at p. 50. Ndlwana's case, supra ,

has been C relied upon, even in Parliament. If the principle of stare decisis is not strictly

observed in fundamental constitutional matters of the present kind, grave uncertainty would

result in matters of far-reaching public importance, e.g. the validity of Act 12 of 1936. The whole

of the reasoning in Ndlwana's case, supra , from pp. 236 to 238 was directed D towards the

rejection of alternative contentions raised by counsel for the appellant, each of which would have

resulted in a contrary decision if upheld. The whole of the said reasoning therefore constitutes

the rationes decidendi; see Pretoria City Council v Levinson , 1949 (3) SA at pp. 316 - 17. The

decision in Ndlwana's case, supra , was an authoritative pronouncement of the highest Court in

the land, on a E principle of fundamental constitutional importance from which this Court would

be loath to depart even if it thought it was wrong. Nothing could be less conducive to the welfare

of the State than conflicting decisions on a matter of this kind. The question of stare decisis does

F not arise in the present case because both the decision and the reasoning in Ndlwana's case,

supra , are palpably correct.

J. T. van Wyk, Q.C . (with him D. P. de Villiers) for the second respondent (the electoral officer

24

for the Cape Province): Second respondent adopts the argument of first respondent on the

question G whether the 'entrenched' sections of the South Africa Act and particularly the proviso

to sec. 35, still have legal efficacy and whether the Court has any power to enquire into and

adjudicate upon their due observance or otherwise. For the purposes of second respondent's

argument it is assumed, save as to what is stated infra H concerning the total prohibition in sec.

35(2) against the enactment of a law repugnant to its terms, that the said provisions of the South

Africa Act are of force and effect and that the Court has the power to declare invalid an Act of

Parliament offending against the said provisions. On the above basis, Act 46 of 1951

1952 (2) SA p448

is not repugnant to sec. 35 of the South Africa Act in that it does not disqualify appellants from

being registered as voters at the election of members of the House of Assembly. The

'disqualification' referred to in sec. 31(1) means, in its context, disqualification from being

registered A as a voter in the Province of the Cape of Good Hope, a 'voter' being a person

entitled to vote at the election of members of the House of Assembly. The qualifications for the

registration of voters, Coloured and European, in the Cape Province, remain the same as they

were before the passing of Act 46 of 1951; see sec. 3, Act 46 of 1951; secs. 2(3) and 4 of Act 46

of 1946. Act 46 of 1951 merely brought about an B alteration of the basis for the formation of

constituencies in which the votes were to be exercised. It in no way affects the capacity or right

of any person to be registered as a 'voter' in the Cape Province. Therefore it in no way brought

about a 'disqualification' as contemplated in sec. 35(1). A removal from the register does not C

necessarily offend against sec. 35(2). It could only so offend if based on a 'disqualification'. Act

46 of 1951 does not provide for such removal by reason of any 'disqualification'. The reason for

the removal is the change referred to supra whereby constituencies are created in D which the

votes are to be exercised. For this purpose the existing registers are terminated and provision is

made for the preparation of new voters' lists upon which every person previously registered

would be entitled to be registered. Again, therefore, Act 46 of 1951, inasmuch as it does not

contain any disqualification, does not offend against sec. 35(2). As regards secs. 35(1) and (2),

there is a difference between the E qualifications required for registration as voters at the election

of members of the House of Assembly and the manner in which the House of Assembly is

constituted as a result of the delimitation system or otherwise. The former is dealt with by sec.

35, the latter by secs. 32 to 34, of the South Africa Act. Even if the provisions of sec. 35 are F

25

still effective, it is clear that the provisions of secs. 32 - 34 were not entrenched (except for the

first ten years after Union) and they can accordingly be amended by Parliament, i.e. the House of

Assembly, the Senate and the King, by ordinary legislative process. Thus Parliament could

substitute in the place of the present system of electoral G divisions based on geographical

delimitation, a system of representation based on occupational qualifications. In such a case, the

voters registered would be registered as voters at the election of members of the House of

Assembly. It could not then be contended that an attorney was disqualified from being registered

as a 'voter' on the H ground of his profession because he could not be registered on the medical

list. The manner in which the House of Assembly is constituted, has been amended by Act 46 of

1951. The foregoing argument was not dealt with in the decision of the Cape Provincial Division

in Ndlwana v Hofmeyr, N.O . (reported in 1937 AD 229 ). As to the two grounds for the Cape

Court's

1952 (2) SA p449

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decision that Act 12 of 1936 contained a disqualification of Natives in the sense contemplated in

sec. 35 of the South Africa Act, it is submitted that neither of the grounds is sound. In any event,

they cannot apply in the present case as (a) no 'ordinary register' continues in existence, the

previous register having been terminated and new A registers substituted for it, and (b) the

manner in which the franchise is exercised has not been affected. Sec. 35(2) contains a total

prohibition against the enactment of a law repugnant to its terms; see Rex v Ndobe , 1930 AD at

pp. 492 - 3. This limitation on the powers of the Union Parliament has been terminated by the

Statute of Westminster, even on the basis of appellants' main argument as to the B effect of that

Statute. Appellants are not capable of being registered, under sec. 35(1), as voters in the Cape

Province, as the relevant laws existing in the Cape of Good Hope at the establishment of the

Union are no longer in force and appellants are not British subjects. The laws of the Cape of

Good Hope prescribing the C qualifications of voters, in force at the commencement of Union,

were the Constitution Ordinance of 1853 as to which see particularly secs. 8, 9 and 10, Act 14 of

1887 as to which see particularly sec. 17, and Act 48 of 1899 as to which see particularly sec. 31.

Portions of these laws were repealed from time to time by the Union Parliament, until sec. 187 D

of Act 46 of 1946 repealed those portions that were still unrepealed. Only British subjects were

26

capable of being registered under the foregoing Cape laws; see sec. 10 of the Constitution

Ordinance 1853 and sec. 31 of Act 48 of 1899. And as appellants are not British subjects they do

not hold the qualifications which these laws required when still in force.

Duncan, Q.C. , in reply.

E Cur. adv. vult .

Postea (March 20th).

[zJDz] Judgment

F CENTLIVRES, C.J.: These appeals raise a constitutional question of the very greatest

importance, viz. whether what are known as the entrenched clauses of the South Africa Act are,

in view of the passing of the Statute of Westminster, still entrenched or whether Parliament

sitting G bicamerally is free by a bare majority in each House to amend any section of the

Constitution even although such a section may originally have been entrenched.

The actual question in issue in this case is whether the Separate Representation of Voters Act,

1951 (Act 46 of 1951), is in whole, or in H part, enforceable in a Court of law. That Act, in brief,

provides for the separate representation of European and non-European voters in the Province of

the Cape of Good Hope. By 'non-European' is meant

'a person who is not a white person and who is not a Native for the purposes of the

Representation of Natives Act, 1936 (Act 12 of 1936).'

By 'white person' is meant

1952 (2) SA p450

CENTLIVRES CJ

27

'a person who in appearance obviously is, or who is generally accepted as a white person, but

does not include a person who, although in appearance obviously a white person, is generally

accepted as a non-European.'

It is common cause that Act 46 of 1951 was passed by the House of Assembly and the Senate

sitting separately and assented to by the A Governor-General and that it was not passed in

conformity with the provisions of sec. 35(1) and sec. 152 of the South Africa Act. If Act 46 of

1951 is enforceable in a Court of law it follows that a non-European who was immediately prior

to the passing of that Act entitled to vote in the same constituency as a white person will thereby

be debarred from B doing so: he will be able to vote only in the separate non-European

constituency in respect of which he, in common with other non-European voters, is registered.

Appellants, who are non-Europeans in the sense defined above, and who prior to the passing of

Act 46 of 1951 were entitled to vote in the same C constituencies as white voters, applied in

separate applications to the Cape Provincial Division inter alia for:

' (a) an order declaring that the measure known as Act 46 of 1951 is invalid, null and void and of

no legal force and effect in terms and by virtue of secs. 35 and 152 of the South Africa Act,

1909, as amended.'

That Division dismissed the applications with costs. Hence the present appeals.

D Sec. 35 of the South Africa Act as amended by sec. 44 of Act 12 of 1936 is 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 (other than a Native, as defined in sec. 1 E of the Representation of

Natives Act, 1936) 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 a voter from being so registered in the Province of the Cape of Good Hope

by reason of his race or colour only or disqualify any Native, as so defined, who under the said

Act would be or might become capable F of being registered in the Cape Native voters' roll

instituted under that Act from being so registered, or alter the number of the members of the

28

House of Assembly who in terms of the said Act may be elected by the persons registered in the

said roll, 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 G 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 (other than a Native as so defined) 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.'

Sec. 152 of the South Africa Act is as follows:

H '152. Parliament may by law repeal or alter any of the provisions of this Act: Provided that no

provision thereof, for the operation of which a definite period of time is prescribed, shall during

such period be repealed or altered: And provided further that no repeal or alteration of the

provisions contained in this section, or in secs. 33 and 34 (until the number of members of the

House of Assembly has reached the limit therein prescribed, or until a period of ten years has

elapsed after the establishment of the Union, whichever is the longer period), or in secs. 35 and

137, shall be valid unless the Bill embodying such repeal or alteration shall be passed by both

1952 (2) SA p451

CENTLIVRES CJ

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.'

The provisions of the Franchise laws in the Cape Colony prior to the coming into force of the

South Africa Act are conveniently summarised by A DE VILLIERS, C.J., in Rex v Ndobe , 1930

AD 484 at pp. 490 - 491 as follows:

'The laws existing in the Colony of the Cape of Good Hope at the date of Union, to which sec. 35

refers, were inter alia , the Constitution Ordinance (1853), Act 14 of 1887, Act 9 of 1892 and Act

48 of 1899. The effect of these laws, in so far as they deal with the qualifications of voters, may

for present purposes be broadly stated B in the following terms: Every male British subject of 21

29

years of age and over, who is not subject to any legal incapacity, and is able to sign his name and

write his address and occupation, is entitled to be registered as a voter provided he possesses one

or other of the following two qualifications:

C (1) He should have occupied, within the Colony for the space of twelve months next before the

day on which any registration of voters commences, and for the last three months within the

Electoral Division for which he claims to be registered, a house, warehouse, shop or other

building being either separately or jointly with any land occupied therewith, of the value of £75

sterling; or

D (2) he should for the space of twelve months aforesaid have really and bona fide earned in the

Colony a salary or wages at the rate of not less than £50 per annum, provided such salary or

wages for the last three months were earned within the Electoral Division for which he claims to

be registered. To this must be added that under sec. 17 of Act 14 of 1887 communal or tribal

occupation of land does not qualify a person for registration.'

E It will thus be seen that prior to the establishment of Union there was only one voters' roll and

that the qualification for becoming registered as a voter was the same for all British subjects

irrespective of race or colour. Act 18 of 1930 added to that common roll women who were

wholly of European parentage, extraction or descent. Act 41 of 1931 F defined 'woman' as

meaning 'a white woman' and enfranchised all white male persons of 21 or over. The Act also

limited the franchise to Union nationals, a term which is defined in sec. 1 of Act 40 of 1927.

Every Union national was a British subject. The common roll in the Cape Province remained but,

as will be seen from what I have stated, the G qualification for being registered as a voter now

differs on the ground of race or colour: the qualification required of non-white persons being

those set forth in the pre-Union Cape franchise law - qualifications which do not now apply to

white persons. Moreover white women have the H vote but non-white women are not entitled to

the franchise. There was thus a common roll but not a common franchise. The common roll

continued in full force until Act 12 of 1936 was passed. That Act, which was enacted, as its

enacting clause shows, 'in accordance with the requirements of secs. 35 and 152 of the South

Africa Act, 1909', removed natives from the common roll of voters in the Cape Province and

gave them separate representation, but other non-Europeans remained on the common roll.

1952 (2) SA p452

30

CENTLIVRES CJ

The Electoral Consolidation Act, 1946 (Act 46 of 1946), consolidated the franchise laws of the

Union and in sec. 4 reproduced the qualifications required of male non-Europeans in the Cape

Province. The reference to a Union national in sec. 4 of Act 46 of 1946 must now be deemed to

be a reference to a South African citizen. See sec. 38 of the South African Citizenship Act, 1949

(Act 44 of 1949).

A In dismissing the applications made by the appellants the Cape Provincial Division correctly

held that it was bound by the decision in Ndlwana v Hofmeyr, N.O. , 1937 AD 229 , in which it

was decided that, inasmuch as the Union Parliament is now, since the passing of the B Statute of

Westminster, the supreme and sovereign law-making body in the Union, the Supreme Court has

no power to pronounce upon the validity of an Act of Parliament duly promulgated and printed

and published by proper authority. The learned JUDGE-PRESIDENT in giving judgment in the

Provincial Division expressed his doubts, as he was C fully entitled to do, as to the correctness of

the decision in Ndlwana's case and indicated that it is only the Appellate Division that can

reconsider that decision. This raises the question whether this Court is entitled to depart from a

previous decision of its own. It has never been laid down by this Court that in no circumstances

can it D depart from a previous decision of its own. In Ferreira and Others v Sapiero , 1913 AD

318, counsel in applying for leave to appeal from a decision of the Supreme Court on an appeal

from a water court drew the Court's attention to a statutory provision that 'the Supreme Court

may make such final order upon the appeal as it deems proper'. The Court, E however, in

granting leave to appeal appears to have overlooked the fact that under this provision the

decision of the Supreme Court was final. In Rohrs v Newmarch , 1915 AD 108, a similar

statutory provision had to be construed and the Court declined to follow Ferreira's case. See the

judgment of SOLOMON, J.A., at p. 114.

F In Collett v Priest , 1931 AD 290 , DE VILLIERS, C.J., said at p. 301 that ' stare decisis is a

sound principle and one which has been adopted in South African practice' but indicated on the

same page and on p. 297 that this Court may depart from a previous decision of its own when it

is clear that that decision is wrong.

31

G In Bloemfontein Town Council v Richter , 1938 AD 195 at p. 232, STRATFORD, J.A., said:

'The ordinary rule is that this Court is bound by its own decisions and unless a decision has been

arrived at on some manifest oversight or misunderstanding, that is, there has been something in

the nature of a palpable mistake, a subsequently constituted Court has no right H to prefer its

own reasoning to that of its predecessors - such preference, if allowed, would produce endless

uncertainty and confusion. The maxim ' stare decisis' should, therefore, be more rigidly applied

in this the highest Court in the land, than in all others.'

In Rex v Nxumalo , 1939 AD 580 at p. 586, WATERMEYER, J.A., said:

'It is true that as a general rule this Court is bound to follow its own decisions. But to that rule

there are certain recognised exceptions.'

1952 (2) SA p453

CENTLIVRES CJ

In Commissioner for Inland Revenue v Estate Crewe and Another , 1943 AD 656 at p. 680,

WATERMEYER, C.J., said that though he recognised the importance of the maxim stare decisis

, he thought that the remarks in Richter's case and Collett v Priest were applicable to that portion

of the reasoning in a previous case which he was then considering 'and consequently we are not

bound to follow its line of reasoning'.

A A striking case in which a Court departed from its own previous decision is Rex v Faithfull &

Gray , 1907 T.S. 1077, where the full Bench consisting of SOLOMON, WESSELS and SMITH,

JJ., overruled the case of Dexter v Rex , 1904 T.S. 243, which was also a full Bench decision, B

the Judges being INNES, C.J., and SOLOMON and CURLEWIS, JJ. In giving judgment in the

later case SOLOMON, J., said on pp. 1080 - 81:

'It seems to have been assumed (in Dexter v Rex) on all hands both by counsel for the Crown and

by the Court, that the evidence given by one C prisoner could not be used against his fellow-

prisoner. As far as I remember, the Proclamation was not examined, nor were any authorities

quoted. That being so, I think it is open to us now to reconsider that decision, and it is quite

32

competent for this Court to overrule its previous decision. Of course, in ordinary circumstances

the Court will abide by its decisions; stare decisis is a good rule to follow. But where a court is

satisfied that its previous decision was wrong, and D more particularly where the point was not

argued, then I think it is not only competent for the court, but it is its duty in such a case not to

abide by its previous decision, but to overrule it.'

It is pertinent to point out that the Full Bench of the Transvaal Supreme Court in 1907 was in a

position similar to that of the Appellate E Division before Act 16 of 1950 in that it was the

highest Court in the Transvaal.

The late Sir John Kotze's learned article on Judicial Precedent (34 SA Law Journal 280) deals

exhaustively with the maxim stare decisis . On p. 287 the learned author pointed out that the

practice of F Roman-Dutch Law is far removed from the doctrine recently affirmed by the House

of Lords, viz. that it is absolutely bound in a subsequent case by its previous decisions on a

question of law. The learned author pointed out that it was only in 1898 that the doctrine of the

House of Lords was definitely laid down and that before that date Law Lords differed among

themselves as to the practice which they should follow.

G It is well known that the Judicial Committee of the Privy Council, which until recently was the

final court of appeal for all the Dominions, is not bound by its own decisions. In Ridsdale v

Clifton and Others , 2 P.D. 276 at p. 307, LORD CAIRNS in delivering judgment H indicated

that where no rights to the possession of property can be supposed to have arisen by the course of

previous decisions and in proceedings which may come to assume a penal form, a tribunal, even

of last resort, ought to be slow to exclude any fresh light which may be brought to bear upon the

subject. Quite recently the Privy Council in Bereng Griffith Lerotholi and Others v The King ,

1950 A.C. 11, and Gideon Nkambule and Others v The King , 1950 A.C. 379, departed from its

decision in Tumahole

1952 (2) SA p454

CENTLIVRES CJ

33

Bereng and Others v The King , 1949 A.C. 253, on the ground that its attention had been drawn

to several authorities not placed before it in the earlier cases.

I do not consider it necessary or desirable to formulate exhaustive A rules as to the circumstances

in which this Court should decline, on its being shown that a previous decision of its own was

wrong, to follow that decision. This Court is naturally very reluctant to depart from one of its

own decisions, especially in cases where that decision has been acted on for a number of years in

such a manner that rights have grown up under it.

B My conclusion is that this Court is bound to consider any reasons that may be advanced to

show that its previous decision in Ndlwana's case was wrong. I propose to consider later in this

judgment the contentions advanced on behalf of the appellants for putting a different

construction on the Statute of Westminster from that which was put on it C in Ndlwana's case

and to consider whether those contentions are sound and whether, if they are sound, this Court

ought to decline to follow that case. But before doing so I shall consider Mr. van Wyk's

contention that Act 46 of 1951 does not disqualify any voters on the ground of race or colour

within the meaning of sec. 35 of the South Africa Act.

D Mr. van Wyk contended that the qualifications required for registration under Act 46 of 1951

are the same as they were before the enactment of that measure, which merely altered the manner

in which the House of Assembly is constituted and constituencies are to be demarcated; it

deprived no voter or potential voter of his right to be registered as a E voter entitled to vote at the

election of members of the House of Assembly. Consequently the provisions of the Act do not

provide for a 'disqualification' as contemplated by sec. 35 of the South Africa Act. Mr. van Wyk

admitted that if a law were to provide that voters or potential voters be registered on a separate

voters' roll by reason of F their race or colour only and be given representation in the House of

Assembly on a less generous basis than voters of another class, that would - assuming the

provisions of sec. 35 still to be in force - be repugnant to the provisions of sec. 35. But the onus

of proving such prejudice would lie upon the person averring it, and no such illiberal

representation has been alleged or proved in this case.

34

G However plausible, this argument is unsound. Sub-sec. (1) of sec. 35 contemplated a class of

persons, in being or still to be born, who under the laws existing in the Colony of the Cape of

Good Hope at the establishment of the Union were or could become capable of being H

registered as voters in the Cape of Good Hope. The sub-section proceeds to enact that no such

amending law shall disqualify any person belonging to that class from being so registered by

reason of his race or colour. To suggest that sec. 35 (1) was intended merely to protect the rights

to physical registration without its consequences would be absurd. What it obviously intended

was this: Parliament could lay down any qualifications

1952 (2) SA p455

CENTLIVRES CJ

it saw fit for registration as a voter. Within the limits of the South Africa Act it could make any

provision it desired in regard to delimitation of constituencies and the constitution of the House

of Assembly. It could provide for a number of separate voters' rolls and for overlapping

constituencies; but one thing it could not do in a A bicameral session: it could not provide that a

European who has all the qualifications which would have entitled him, had he been Coloured, to

be registered as a voter on any particular roll in the Cape Province from being so registered,

merely because he is not a Coloured person; or a Coloured man, who would have qualified as a

voter at Union, and is otherwise qualified - for example, by reason of residence - from B being

registered on any voters' roll in the Cape Province merely because he is Coloured.

Mr. van Wyk suggested that Act 46 of 1951 does not prejudice Coloured voters in that it gave

them more generous representation than they were strictly entitled to. That argument is illusory.

Sec. 35 contains a C guarantee of defined rights, not of their equivalents. The argument suggests

that a spoliator may deprive me of my property with impunity if he is prepared to give something

of equal or greater value in return.

Mr. van Wyk's contention also ignores sub-sec. (2) of sec. 35. The two D sub-sections must be

read together as is clear from the words 'any such law' in sub-sec. (2). Those words refer to a law

prescribing the qualifications of voters. The words 'the register' which are used in sub-sec. (2)

35

clearly refer to what I have described as the common roll earlier in this judgment. Immediately

prior to the establishment of the Union this common roll existed in the Cape Colony, and there

was also a E common roll in Natal on which appeared the names of a few non-European voters.

In the Transvaal and Orange Free State the franchise was confined to Europeans. But even in the

case of those two provinces sub-sec. (2) operates, for under that sub-section it would be

incompetent to remove from the register of voters any voter on the F ground that he is a member

of the Jewish race. To remove any person from 'the register' on the ground of race or colour

would clearly amount to a disqualification in relation to that register and that is what subsec. (2)

in my opinion means. Act 46 of 1951 seeks to remove from 'the register' both Europeans and

non-Europeans (as defined above): in G fact it seeks to destroy 'the register' and to create two

new registers, one for Europeans and another for non-Europeans. There is no doubt in my mind

that in seeking to do this, the Act disqualifies both Europeans and non-Europeans from

remaining on the register on the ground of their race or colour. It also seeks to disqualify, in

violation of H the provisions of sub-sec. (1), potential voters from becoming registered in the

manner in which they could have been registered prior to the passing of the Act. This view is

amply borne out by the remarks of DE VILLIERS, C.J., in Rex v Ndobe , 1930 AD 484 at pp.

491 - 2. See, too, the opinion expressed by the Cape Provincial Division in Ndlwana's

1952 (2) SA p456

CENTLIVRES CJ

case at pp. 231 - 2. There is in my opinion no substance in Mr. van Wyk's contention.

Mr. van Wyk further contended that as the appellants also rely on sec. 35(1) of the South Africa

Act they must show that they are capable of A being registered as voters in the Cape Province

and that they are not so capable as (1) the laws existing in the Cape Colony at the establishment

of Union are no longer in force, such laws having been repealed by Act 46 of 1946, and (2) they

are no longer British subjects as required by the old Cape laws, they now being, in view of the

provisions of Act 44 of 1949, not British subjects but South African B citizens. There is no

substance in those arguments. Act 46 of 1946 is in fact merely a consolidating Act, repeating and

re-enacting among other Statutes the old Cape franchise laws. But, however that may be, the

entrenchment in secs. 35 and 152 could obviously not be nullified before the Statute of

36

Westminster by the repeal by ordinary bicameral C legislation of the provisions of the old Cape

laws. The fact that appellants are now labelled South African citizens and not British subjects

can have no effect on their franchise rights nor can the fact that potential non-European voters

are so labelled have any effect on their rights to become registered.

D I shall deal later with Mr. van Wyk's further contention, based on a dictum in Rex v Ndobe,

supra at pp. 492 and 493, that prior to the Statute of Westminster there was no Legislature in the

Union which could amend or repeal sub-sec. (2) of sec. 35 of the South Africa Act and that the

Union Parliament functioning bicamerally can now by virtue of that Statute repeal or amend that

sub-section.

E If Act 46 of 1951 had been passed before the Statute of Westminster, it is clear from the

reasons given in the decision of this Court in Rex v Ndobe, supra , that that Act would not have

been a valid Act, as it was not passed in accordance with the procedure prescribed by secs. F

35(1) and 152 of the South Africa Act. That decision was not questioned on behalf of the

respondents and there is no reason to doubt its soundness. The Court in declaring that such a

Statute is invalid is exercising a duty which it owes to persons whose rights are entrenched by

Statute; its duty is simply to declare and apply the law and it would be inaccurate to say that the

Court in discharging that duty is G controlling the Legislature. See Bryce's American

Constitution (3rd ed., Vol. I p. 582). It is hardly necessary to add that Courts of law are not

concerned with the question whether an Act of Parliament is reasonable or unreasonable, politic

or impolitic. See Swart N.O. and H Nicol N.O v de Kock and Garner and Others , 1951 (3) SA

589 at p. 606 (A.D.).

The next question is whether the Statute of Westminster has had the effect of repealing or

modifying the provisions of secs. 35 and 152 of the South Africa Act.

The events which led up to the passing of the Statute of Westminster were freely referred to by

counsel on both sides. The

1952 (2) SA p457

37

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preamble of the Statute refers to the Imperial Conference held at Westminster in 1926 and 1930

and to the fact that the delegates from the various Dominions 'did concur in making the

declarations and resolutions set forth in the reports of the said Conferences'. The Command

Papers Nos. 3717 and 3718 dealing with the proceedings of the Imperial Conference of 1930

were handed in from the Bar, as well as Command Paper A No. 3479 on the Report of the

Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, 1929

- a report which is referred to in Command Paper 3717. In order to understand the reasons for

passing a constitutional Act like the Statute of Westminster it is B permissible to refer to the

events which led up to such Act being passed. These events may throw a light on the meaning of

the Statute of Westminster. See Maxwell on Statutes , 8th ed., pp. 20 - 23; In re The Regulation

and Control of Aeronautics in Canada , 1932 A.C. 54 at p. 70; and British Coal Corporation and

Others v The King , 1935 A.C. 500 at p. 520.

C The report of the Imperial Conference of 1926 declared (according to the Command Paper No.

3479 of 1930), in relation to the United Kingdom and the Dominions, that:

'they are autonomous communities within the British Empire, equal in status, in no way

subordinate one to another in any aspect of their D domestic or external affairs, though united by

a common allegiance to the Crown, and freely associated as members of the British

Commonwealth of Nations.'

The report recognised, however, that existing administrative, legislative and judicial forms were

admittedly not wholly in accord with the position as described above, a condition of things

following E inevitably from the fact that most of these forms dated back to a time well

antecedent to the then stage of constitutional development. In 1929 a conference on the operation

of Dominion Legislation and Merchant Shipping Legislation was held in London and attended

by representatives of the Imperial Government and the Dominions. This conference drafted a Bill

which subsequently became the Statute of Westminster. According to F the report of that

conference certain safeguarding provisions were inserted in the Bill at the request of Canada,

38

Australia and New Zealand in relation to their own constitutions. After setting forth the reasons

for these provisions the report goes on to state in para. 67:

'Similar considerations do not arise in connection with the G constitutions of the Union of South

Africa and the Irish Free State. The constitutions of both countries are framed on the unitary

principle. Both include complete legal powers of constitutional amendment. In the case of the

Union of South Africa the exercise of these powers is conditioned only by the provisions of sec.

152 of the South Africa Act, 1909. In the case of the Irish Free State they are H exercised in

accordance with the obligations undertaken by the Articles of Agreement for a Treaty signed at

London on the 6th day of December, 1921.'

The draft Bill was considered by the Imperial Conference of 1930 and that Conference

recommended that Resolutions passed by both Houses of the Dominion Parliaments should be

forwarded to the United Kingdom with a view to the enactment of legislation

1952 (2) SA p458

CENTLIVRES CJ

on the lines of the draft Bill and that the Bill should contain such further provisions as to its

application to any particular Dominion as should be requested by that Dominion.

In conformity with the above recommendation the following resolution was passed by both

Houses of the Parliament of the Union:

'That on the understanding that the proposed legislation will in no A way derogate from the

entrenched provisions of the South Africa Act, Parliament, having taken cognisance of the draft

clauses and recitals which it was proposed by the Imperial Conference of 1930 should be

embodied in legislation to be introduced in the Parliament at Westminster, approves thereof and

authorises the Government to take such steps as may be necessary with a view to the enactment

by the B Parliament of the United Kingdom of legislation on the lines set out in the Schedule

annexed.'

39

The schedule which was annexed to the above resolution contains a copy of the draft Bill, clause

2 of which is identical with sec. 2 of the Statute of Westminster.

C After the above resolution was passed by the Union Houses of Parliament the Statute of

Westminster was enacted. The main provisions of that Statute, which came into operation on

December 11, 1931, are as follows:

'2. (1) The Colonial Laws Validity Act, 1865, shall not apply to any law made after the

commencement of this Act by the Parliament of a Dominion.

D (2) No law and no provision of any law made after the commencement of this Act by the

Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the

law of England, or to the provisions of any existing or future Act of Parliament of the United

Kingdom, or to any order, rule or regulation made under any such Act, E and the powers of the

Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or

regulation in so far as the same is part of the law of the Dominion.

3. It is hereby declared and enacted that the Parliament of a Dominion has full power to make

laws having extra-territorial operation.

F 4. No Act of a Parliament of the United Kingdom passed after the commencement of this Act

shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it

is expressly declared in that Act that that Dominion has requested, and consented to, the

enactment thereof.'

The relevant provisions of the Colonial Laws Validity Act 1865 were as follows:

'2. Any colonial law which is or shall be in any respect repugnant to the provisions of any G Act

of Parliament extending to the colony to which such law may relate, or repugnant to any order or

regulation made under authority of such Act of Parliament, or having in the colony the force and

effect of such Act, shall be read subject to such Act, order, H or regulation, and shall to the

extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.

3. No colonial law shall be or be deemed to have been void or inoperative on the ground of

repugnancy to the law of England, unless the same shall be repugnant to the provisions of some

such Act of Parliament, order, or regulation as aforesaid.

40

5 . . . . every representative (colonial) legislature shall, in respect to the colony under its

jurisdiction, have, and be deemed at all time to have had, full power to make laws respecting the

constitution, powers, and procedure of such legislature; provided that such laws shall have been

passed in such manner and form as may from time to time be required by any Act of

1952 (2) SA p459

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Parliament, letters patent, order in Council, or colonial law for the time being in force in the said

colony.'

The ground has now been cleared for considering what effect, if any, the Statute of Westminster

had upon the provisions of secs. 35 and 152 of the South Africa Act. At the outset it is necessary

to point out that the Statute of Westminster contains no express repeal of those sections. A The

most that could possibly be contended for is that that Statute impliedly repeals those sections. As

to the circumstances in which a provision of a statute may be said to have been impliedly

repealed I cannot do better than quote what KOTZE, A.A.J.A., said in New Modderfontein Gold

Mining Co v Transvaal Provincial Administration , 1919 AD 367 at p. 400. He said:

'The books tell us that a repeal by implication of an earlier statute by a later one is neither B

presumed nor favoured. It is only when the language used in the subsequent measure is so

manifestly inconsistent with that employed in the former legislation that there is a repugnance

and contradiction, so C that the one conflicts with the other, that we are justified in coming to the

conclusion that the earlier Act has been repealed by the later one. There are many cases dealing

with the principles applicable in the matter of implied repeal. I will refer to one or two of them.

LORD BLACKBURN in the House of Lords in dealing with this question made the following

apt observations ( The River Wear Commissioners v Adamson & Others , 2 A.C. 743 at p. 763):

'In all cases the object is to see what D is the intention expressed by the words used. But, from

the imperfection of language, it is impossible to know what the intention is without inquiring

further, and seeing what the circumstances were with reference to which the words were used,

and what was the object, appearing from those circumstances, which the person using them had

in view, for the meaning of words varies according to the circumstances with respect to E which

they were used.''

41

LORD BLACKBURN on p. 764 in the case of River Wear Commissioners v Adamson and

Others referred with approval, to the Heydon case, 3 Co. Rep. 7b - a case which has been

followed by this Court cf. Rex v. F Detody, 1926 AD 198 at p. 202; Olley v Maasdorp and

Another , 1948 (4) SA 657 at p. 666 (A.D.), and Hleka v Johannesburg City Council , 1949 (1)

SA 842 at p. 852 (A.D.). In Heydon's case, supra , LORD COKE said that it was resolved:

'That for the sure and true interpretation of all statutes in general (be they penal or beneficial,

restrictive or enlarging of the Common Law) four things are to be discerned and considered; 1st.

What was the G Common Law before the Act? 2nd. What was the mischief and effect for which

the Common Law did not provide? 3rd. What remedy the Parliament hath resolved and

appointed to cure the disease of the Commonwealth? And 4th. The true reason of the remedy;

and then the office of all the judges is always to make such construction as shall suppress the

mischief and advance the remedy.'

H Prior to the Statute of Westminster the 'mischief', as is clearly shown by the reports of the

Imperial Conferences of 1926 and 1930, was that the Dominions were not in the eye of the law

'autonomous communities within the British Empire, equal in status, in no way subordinate to

one another in any aspect of their domestic or external affairs.'

In law the Parliament of the United Kingdom was still supreme. The suppression of the 'mischief'

of the supremacy of that Parliament

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was the prime object of the Statute of Westminster; another 'mischief' was that it was not

considered that a Dominion Parliament had any power to make laws having extra-territorial

operation. Both these 'mischiefs' were removed by the Statute of Westminster. The fact that these

'mischiefs' were removed does not result, as I shall show, in any A modification of secs. 35 and

152 of the South Africa Act.

42

To understand what effect, if any, the repeal of the Colonial Laws Validity Act has as regards the

South Africa Act one must find out what the legal position in relation to the two Acts was

immediately prior to B the Statute of Westminster. Under sec. 152 of the South Africa Act

'Parliament may by law repeal or alter any provision of this Act'. Then the proviso follows

prescribing how Parliament must function for the purpose of amending specified sections. The

prohibition against repealing or altering any provision for the operation of which a C definite

period of time is prescribed so long as that period of time has not elapsed need not detain us,

because when the Statute of Westminster was passed those periods of time had long elapsed. At

that time, therefore, there was no section of the South Africa Act which could not be repealed or

amended by the Union Parliament sitting either D bicamerally or unicamerally in accordance

with the requirements of the Act. But Mr. van Wyk relied on two passages in the judgment of DE

VILLIERS, C.J., in Rex v Ndobe for the proposition that prior to the Statute of Westminster sec.

35(2) could not be amended by any Legislature in the Union. Those passages are at pp. 492 and

493 and are as follows:

E 1.'Sub-sec. (2) goes even further (than sub-sec. (1) and safeguards the rights of persons who at

the passing of the new law are registered as voters in any province. The names of such persons

cannot be removed from the register at all, on the ground of race or colour, neither by Parliament

as usually constituted nor as constituted under sub-sec. (1).'

2.'In the case of persons on the roll in any province under sub-sec. F (2) their names, as was

pointed out above, cannot be removed from the roll even by a two-thirds majority. Under sec. 59

of the South Africa Act, Parliament has full power to make laws for the peace, order and good

government of the Union but that section cannot be invoked to enlarge its powers under sec. 35.'

G With great respect it seems to me that DE VILLIERS, C.J., in making these statements

overlooked the significance of the wide language used in sec. 152, just as this Court overlooked

in Ferreira and Others v Sapiero, supra , the significance of the words 'final order' in a statute.

That section specifically empowered Parliament acting by way of H a joint sitting with a two-

thirds majority at the third reading of a Bill to repeal or alter sec. 35 and not merely sub-sec. (1)

of that section. It is significant that there is as I have already pointed out an express prohibition

in sec. 152 against a repeal or an alteration of a provision for the operation of which a definite

43

period of time is prescribed, but there is no prohibition in that section against the repeal or

alteration of any part of sec. 35. It does not appear from the report of counsel's

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arguments in Rex v Ndobe that any argument was directed to the question whether sub-sec. (2)

of sec. 35 could be amended in terms of the proviso to sec. 152. I agree with the decision of the

Cape Provincial Division in Ndlwana's case, supra at p. 233, that the remarks of DE VILLIERS,

C.J., were obiter and not necessary for the decision of the case. I also A agree with the reasons

given by VAN ZYL, J.P., in the Cape Provincial Division on pp. 233 and 234 for holding that

prior to the Statute of Westminster the Union Parliament had under sec. 152 authority to repeal

or amend sec. 35(2) provided it functioned in accordance with the requirements of sec. 152. It

follows therefore that the statement made in para. 67 of the Report of the Conference on the

Operation of Dominion B Legislation 1929 which I have quoted above is correct, viz. that the

Union Constitution includes complete legal powers of constitutional amendment, the exercise of

those powers being conditioned only by the provisions of sec. 152 of the South Africa Act.

C I am now in a position to ascertain what effect, if any, the Colonial Laws Validity Act had in

respect of the South Africa Act prior to the Statute of Westminster. A repeal or alteration of the

South Africa Act enacted by an Act of the Union Parliament in accordance with the provisions of

sec. 152 would be repugnant to the provisions so repealed D or altered. Those provisions are, it is

true, contained in a British Act of Parliament, viz. the South Africa Act, but that repugnancy is

specifically authorised by that very British Act which is a later Act than the Colonial Laws

Validity Act and must therefore in case of conflict override the earlier Act. Sec. 2 of the Colonial

Laws Validity Act could therefore have no application to a repeal or an amendment of E the

South Africa Act.

Sec. 2 of the Colonial Laws Validity Act did, however, apply to the Union in other respects

before the passing of the Statute of Westminster. Its effect was that the Union Parliament could

not pass any F law repugnant to a British Act which extended to the Union, e.g. the Merchant

Shipping Act. The only part of sec. 5 of the Colonial Laws Validity Act which was of any

44

importance as far as the Union was concerned was the power given to the Union Parliament to

bind a subsequent Union Parliament to follow a prescribed procedure in amending G specified

provisions of the Union Constitution. See Attorney-General for New South Wales and Others v

Trethowan and Others , 1932 A.C. 526. That power was never, however, exercised by the Union

Parliament before the Statute of Westminster, as far as I am aware. The rest of sec. 5 of the

Colonial Laws Validity Act was unnecessary as far as the Union was H concerned, as the South

Africa Act makes full provision for the matters mentioned in that section.

I now return to the Statute of Westminster. The effect of subsec. (1) of sec. 2 is that the Colonial

Laws Validity Act no longer applies to any law made after December 11, 1931, by the Union

1952 (2) SA p462

CENTLIVRES CJ

Parliament. Consequently the Union Parliament can now make a law repugnant to a British Act

of Parliament in so far as that Act extends to the Union, e.g. the Union Parliament can, as it has

actually done, repeal the British Merchant Shipping Act in so far as it extends to the Union.

What I have said is emphasised by the opening words of sub-sec. A (2). A law of the Union

Parliament may be made by Parliament sitting bicamerally or, where there is a conflict between

the two Houses, unicamerally in terms of sec. 63 of the South Africa Act. So far as I have now

considered the Statute of Westminster, it is clear that when it refers to a law made by a

Dominion, such law means in relation to South B Africa a law made by the Union Parliament

functioning either bicamerally or unicamerally in accordance with the requirements of the South

Africa Act. The reference clearly was not only to Parliament sitting bicamerally, for it would be

absurd to suggest that a law made C by Parliament in terms of sec. 63 of the South Africa Act

would still be subject to the provisions of the Colonial Laws Validity Act.

The provision that no law of a Dominion Parliament shall be void on the ground that it is

repugnant to the law of England was inserted ex abundanti cautela because it was feared that

with the disappearance of D sec. 3 of the Colonial Laws Validity Act it might be held that laws

of a Dominion would be void if repugnant to the common law of England.

45

Mr. Beyers contended that that portion of sub-sec. (2) of sec. 2 of the Statute of Westminster

which says in effect that no law made after E December 11, 1931, by the Parliament of the Union

shall be void or inoperative on the ground that it is repugnant to the provisions of any existing

Act of Parliament of the United Kingdom had the effect of conferring on the Union Parliament

the power to amend any section of the South Africa Act (including the entrenched clauses) in

accordance with F any procedure it might choose to adopt. The South Africa Act, he contended,

was an 'existing Act of Parliament' within the meaning of that expression as used in sec. 2(2) of

the Statute of Westminster. Elaborating his contention, counsel in answer to the Court argued

that this provision of the Statute of Westminster gave the Union Parliament G the option of

acting bicamerally or unicamerally, whether the subject-matter of the legislation falls within or

without the entrenched provisions of the South Africa Act.

I have difficulties in connection with Mr. Beyers' contention. That portion of sub-sec. (2) of sec.

2 of the Statute of Westminster to which H I have referred confers, by necessary implication, a

power on the Union Parliament which it did not possess prior to the passing of the Statute, viz.

the power to pass a law which will be a valid law although it is repugnant to an existing or future

enactment of the United Kingdom. The object was, in other words, to give the Union Parliament

a power which it did not possess prior to the Statute of Westminster. But prior to that Statute the

Union

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Parliament had full powers to amend the South Africa Act. It is true that the Union Parliament

sitting bicamerally did not have full power to do so in that the entrenched clauses could be

amended only by Parliament sitting unicamerally and by a two-thirds majority. But there is

nothing in that part of sub-sec. (2) of sec. 2 of the Statute of Westminster which I am now

considering to justify the inference that there was any A intention to repeal or modify the

provisions of sec. 152 of the South Africa Act. There is nothing to prevent the two provisions

standing together. The words 'Parliament of a Dominion' in the Statute of Westminster must, in

my opinion, be read, in relation to the Union, in the light of the South Africa Act. It is implicit in

46

that Act that the B Parliament of the Union must function bicamerally, save in the cases excepted

by secs. 35, 63 and 152. There is, of course, another element in Parliament, viz. the King ( vide

sec. 19 of the South Africa Act), but when I speak of Parliament functioning bicamerally I mean

that C the two Houses sit separately. In my opinion one is doing no violence to language when

one regards the word 'Parliament' as meaning Parliament sitting either bicamerally or

unicamerally in accordance with the requirements of the South Africa Act. In Rex v Ndobe,

supra at p. 492, D DE VILLIERS, C.J., for instance, quite naturally refers to Parliament as

'usually constituted', in contradistinction to Parliament 'as constituted under sub-sec. (1)' of sec.

35. There is, in my opinion, no justification for reading the words 'Parliament of a Dominion' in

the Statute as meaning, in relation to the Union, Parliament functioning only bicamerally. When

this was put to Mr. Beyers during the course of E the argument he saw the difficulty of so

reading those words and contended that the Statute of Westminster gives the Union Parliament

the option of sitting either bicamerally or unicamerally, whether the subject-matter of the

Legislature falls within the entrenched clauses of the South Africa Act or not. If this contention

were sound, it would F follow that the Statute of Westminster has, by mere implication, effected

a radical alteration of our Constitution. It would mean that not only could Parliament ignore the

constitutional safeguards solemnly enacted in the South Africa Act, but that it could also ignore

the provisions of sec. 63, which provides for a joint sitting of the two G Houses where there is a

disagreement between the two Houses. Except in the case of bills dealing with the appropriation

of moneys for the public service, such a joint sitting cannot be convened during the first session

in which the Senate rejects the bill, but if Mr. Beyers' contention were correct, Parliament could

take a short cut by means of a H joint session convened for that purpose, without the Senate ever

being asked to consider the bill. There is, in my opinion, no substance in this contention.

Mr. Beyers then contended that no country which, like the Union, emerged from a Colony into a

Dominion within the framework of the British Constitution can be a sovereign state unless it has

a

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sovereign Parliament functioning bicamerally in the same manner as the British Parliament and

47

that if this is not so in the case of the Union, it cannot be a sovereign state unless it breaks

completely with its past and abolishes the monarchy. I cannot agree with this contention. It

seems to me to be based on the fallacy that a Dominion Parliament must A necessarily be a

replica of the British Parliament despite the fact that all Dominion Parliaments have constitutions

which define the manner in which they must function as legislative bodies. There is nothing in

the Statute of Westminster which in any way suggests that a Dominion Parliament should be

regarded as if it were in the same position as the B British Parliament. Indeed it would be

surprising if the British Parliament in enacting the Statute of Westminster, which was agreed to

by all Dominions, had gone out of its way to change the Constitution of a Dominion without a

request from that Dominion to do so. I have looked C in vain at the official reports of the

Imperial Conferences which led up to the passing of the Statute for any request by the Union to

the British Parliament for an alteration of its Constitution. On the contrary the authoritative voice

of the Union, as embodied in the joint resolution of the two Houses of Parliament, made it

abundantly clear that the Union did not desire any amendment of its Constitution and D

emphasised that the proposed Statute of Westminster should in no way derogate from the

entrenched provisions of the South Africa Act.

A State can be unquestionably sovereign although it has no legislature which is completely

sovereign. As Bryce points out in his Studies in E History and Jurisprudence (1901 ed., Vol. II,

p. 53) legal sovereignty may be divided between two authorities. In the case of the Union, legal

sovereignty is or may be divided between Parliament as ordinarily constituted and Parliament as

constituted under sec. 63 and the proviso to sec. 152. Such a division of legislative powers is no

derogation from F the sovereignty of the Union and the mere fact that that division was enacted

in a British Statute (viz. the South Africa Act) which is still in force in the Union cannot affect

the question in issue.

I find it impossible to uphold the implications of Mr. Beyers' contention, viz. that after the

passing of the Statute of Westminster G the Union found itself with a Constitution which had

been radically altered - a Constitution which enabled Parliament to sit either bicamerally or

unicamerally, no matter what the subject-matter of the legislation might be. The South Africa

Act, the terms and conditions of which were, as its preamble shows, agreed to by the respective

H Parliaments of the four original Colonies, created the Parliament of the Union. It is that Act

48

and not the Statute of Westminster which prescribes the manner in which the constituent

elements of Parliament must function for the purpose of passing legislation. While the Statute of

Westminster confers further powers on the Parliament of the Union, it in no way prescribes how

that Parliament must function in exercising those powers. Mr. Beyers took up the

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standpoint that the earlier part of sub-sec. (2) of sec. 2 of the Statute of Westminster was

sufficient for his purposes but that the same result as he contended for would be reached on the

concluding words, viz.:

'the powers of the Parliament of a Dominion shall include the power to repeal or amend any such

Act (i.e. any Act of the Parliament of the United Kingdom) . . . in so far as the same is part of the

law of the Dominions.'

A I need not repeat my views on the earlier part of the sub-section. What I have said on that part

is sufficient to dispose of the contention that the concluding words of the sub-section have

destroyed the efficacy of the entrenched clauses of the South Africa Act; for once it is clear B

that Parliament means Parliament functioning in accordance with the South Africa Act, the

concluding words of the sub-section carry the matter no further.

Great reliance was placed by respondents' counsel on the case of Moore and Others v The

Attorney-General for the Irish Free State and Others , 1935 A.C. 484. The decision in that case

may be summarised as follows ( cf . p. 498):

C 1. The Anglo-Irish Treaty of 1921 and the Constituent Act of the Irish Parliament,

respectively, form parts of the Statute law of the United Kingdom, each of them being parts of

the following Imperial Acts: the Irish Free State (Agreement) Act, 1922, and the Irish Free State

Constitution Act, 1922.

D 2. Before the passing of the Statute of Westminster it was not competent for the Irish Free

State Parliament to pass an Act abrogating the Treaty because the Colonial Laws Validity Act

forbade a Dominion Legislature to pass a law repugnant to an Imperial Act.

49

3. The effect of the Statute of Westminster was to remove the fetter which lay upon the Irish Free

State Legislature by reason of the E Colonial Laws Validity Act. That legislature can now pass

Acts repugnant to the two Imperial Acts of 1922.

Para. 1 applies to the South Africa Act but paras. 2 and 3 do not, for, as I have already pointed

out, the Colonial Laws Validity Act at no time prevented the Union Parliament from amending

or repealing any provision F of the South Africa Act or in other words from passing an Act

repugnant to the South Africa Act which is an Act of the Imperial Parliament, such repugnancy

having been specifically authorised by the South Africa Act.

Before the passing of the Statute of Westminster the Union Parliament G had unrestricted power

to amend the South Africa Act, provided only that on certain subjects it functioned in accordance

with the requirements of secs. 35 and 152. The Irish Parliament was not limited in respect of the

method of passing Acts on particular subjects; once it had, in May, 1929, extended the period of

its sole amending powers from H 8 to 16 years from 1922, those powers were not limited by the

referendum requirements of art. 50. Unlike the Union Parliament, however, its powers of

amendment of the constitution, though internally unlimited, were limited by the terms of the

Treaty, which had the force of law in terms of the two United Kingdom Acts of 1922. Once the

Statute of Westminster removed the Colonial Laws Validity Act and empowered the Irish

Parliament to pass acts repugnant to the United Kingdom Acts extending to Ireland the provision

in art. 50 that amendments

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to the constitution had to be in terms of the Treaty fell away. That provision was an external

limitation resting only upon the inviolability of United Kingdom statutes at the hands of Colonial

Legislatures and it disappeared when that inviolability was removed in the case of Dominions.

That was, as I see it, the basis of the decision in Moore's A case. That case is for all these reasons

not an authority in favour of the respondents.

50

Mr. Beyers further relied on secs. 7 and 8 of the Statute of Westminster in support of his

contention that it was competent in terms of that Statute for Parliament sitting bicamerally to

pass Act 46 of 1951. Those sections are as follows:

'7. (1) Nothing in this Act shall be deemed to apply to the repeal, amendment or B alteration of

the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder.

(2) The provisions of sec. 2 of this Act shall extend to laws made by any of the Provinces of

Canada and to the powers of the legislatures of such Provinces.

C (3) The powers conferred by this Act upon the Parliament of Canada or upon the legislatures

of the Provinces shall be restricted to the enactment of laws in relation to matters within the

competence of the Parliament of Canada or of any of the legislatures of the Provinces,

respectively.

8. Nothing in this Act shall be deemed to confer any power to repeal D or alter the Constitution

or the Constitution Act of the Commonwealth of Australia or the Constitution Act of the

Dominion of New Zealand otherwise than in accordance with the law existing before the

commencement of this Act.'

Mr. Beyers contended that as there is no saving clause in the Statute in E relation to the Union, it

follows that the Union Parliament can now disregard the provisions of secs. 35(1) and 152 of the

South Africa Act. The answer to this contention is that on the interpretation of the Statute of

Westminster which I have given above, there was, in the case of the Union, no need to insert a

saving clause in the Statute, however F great the need may have been in the case of Canada,

Australia and New Zealand. I do not consider it necessary to express any opinion as to the need

of a saving clause in respect of those three countries, for saving clauses are sometimes inserted

ex majori cautela in order to quiet any G fear there might be that the language used by the

Legislature might be misconstrued. See Rex v Abel , 1948 (1) SA 654 at p. 662 (A.D.).

Mr. Beyers in his heads of argument also relied on the Status of the Union Act 1934 (Act 69 of

1934), sec. 2 of which is as follows:

'The Parliament of the Union shall be the sovereign legislative power in and over the Union, and

notwithstanding anything in any law contained, no Act of the Parliament of the United Kingdom

51

and Northern H Ireland passed after the eleventh day of December, 1931, shall extend, or be

deemed to extend, to the Union as part of the law of the Union, unless extended thereto by an

Act of the Parliament of the Union.'

During the course of the argument, however, Mr. Beyers correctly stated that the Status Act

carried the matter no further. If the Statute of Westminster did not have the effect of repealing or

modifying the entrenched clauses of the South Africa Act, then those provisions remained intact

after the Statute was passed and the

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Union Parliament could not by means of an Act, like the Status Act, passed bicamerally, repeal

or modify those entrenched clauses.

Reference was also made on behalf of the respondents to a large number of writers on

constitutional law who hold that the entrenched clauses of the South Africa Act are, as a result of

the Statute of Westminster, of A no binding force. When the works of those writers are carefully

examined it will be found that they base their views on one or other of the following grounds:

1. The repeal of the Colonial Laws Validity Act. As I have shown the repeal of that Act did not

in any way affect the provisions of the South Africa Act.

2. The concluding portion of sec. 2(2) of the Statute of Westminster. B I have already stated my

opinion that the words 'the Parliament of a Dominion' in that portion of sec. 2(2) must be

construed in the light of the South Africa Act and so construed mean Parliament sitting either

bicamerally or unicamerally in accordance with the requirements of the South Africa Act.

C 3. The fact that in the Statute of Westminster there are saving clauses in respect of Canada,

Australia and New Zealand but not in respect of the Union. I have already dealt with this point

also.

4. The decision of this Court in Ndlwana's case, supra , which I shall examine presently.

D The conclusion at which I have arrived in no way affects the Sovereignty of the Union. As a

52

result of sec. 4 of the Statute of Westminster the British Parliament can no longer pass an Act

extending to the Union

'unless it is expressly declared in that Act that the Dominion (i.e. the Union) has requested and

consented to the enactment thereof.'

E This provision has by necessary implication been amended by sec. 2 of the Status of the Union

Act, 1934, which enacts that no Act of the British Parliament passed after the coming into force

of the Statute of Westminster

'shall extend, or be deemed to extend, to the Union as part of the law F of the Union, unless

extended thereto by an Act of the Parliament of the Union.'

This emphasises that the only Legislature which is competent to pass laws binding in the Union

is the Union Legislature. There is no other legislature in the world that can pass laws which are

enforceable by G courts of law in the Union. Moreover, the Status of the Union Act amended the

South Africa Act in certain important respects, the effect of which was to put on a legal footing

the constitutional practice which had prevailed for some years that the King should in regard to

Union affairs act on the advice of his Union Ministers. The amendments which I H refer to were

those which abolished the requirement that certain bills should be reserved for the King's

pleasure. The only case in which, after the passing of the Status of the Union Act, a Bill had to

be reserved for the King's pleasure was a Bill relating to an appeal to the King-in-Council under

sec. 106 of the South Africa Act. With the repeal of that section by Act 16 of 1950, this one

exception has been

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removed. Consequently the Union is an autonomous state in no way subordinate to any other

country in the world. To say that the Union is not a sovereign state, simply because its

Parliament functioning bicamerally has not the power to amend certain sections of the South

Africa Act, is to state a manifest absurdity. Those sections can be A amended by Parliament

sitting unicamerally. The Union is, therefore, through its Legislature able to pass any laws it

53

pleases and it would be as false to say that the Union is not a sovereign state as it would have

been to say that the Republic of the Orange Free State was not a sovereign state on the ground

that it was provided in sec. 26 of its B Constitution that no amendment could be made to it save

by a three-fourths majority of the Volksraad in two successive annual sessions. To go further

afield, it would be surprising to a constitutional lawyer to be told that that great and powerful

country, the United Sttaes of America, is not a sovereign independent country C simply because

its Congress cannot pass any legislation which it pleases.

It is clear that the conclusion at which I have arrived conflicts with the decision in Ndlwana's

case. That case must therefore be carefully examined. On p. 236 will be found the following

passage:

D 'On the hearing of the Appeal the Court requested Mr. Buchanan to deal with the preliminary

question whether this Court had any power at the present time to pronounce upon the validity of

an Act of Parliament duly promulgated and printed and published by proper authority, in as

much as Parliament is now, since the passing of the Statute of Westminster, the supreme and

sovereign law-making body in the Union.'

E When the rest of the judgment is read I think that it becomes doubtful as to what was meant by

the word 'Parliament' where it occurs for the second time in the above passage, i.e. whether by

'Parliament' was meant Parliament sitting bicamerally or unicamerally. The statement which I

have quoted contains a conclusion of law but no reasons are given for F arriving at that

conclusion. If Parliament was used as meaning Parliament sitting bicamerally then, for the

reasons already given by me, I disagree with that conclusion but as no reasons were given for the

categorical statement in Ndlwana's case, I am not in the invidious position of preferring my own

reasons to that of my predecessors ( vide G the passage quoted above from Bloemfontein Town

Council v Richter).

Immediately after the above passage the Court went on to say: 'Parliament has, moreover, in the

Status Act of 1934 defined its own powers and declared them to be sovereign.' This suggests that

the Status Act is relevant - a suggestion with which I respectfully disagree - but here again no

reasons are given for that suggestion.

54

H On p. 237 of the report we find the following passage:

'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.'

1952 (2) SA p469

CENTLIVRES CJ

I shall assume that no exception can be taken to this statement of the law as regards what purport

to be Acts of the British Parliament, i.e. Acts which purport to have been enacted by the King by

and with the advice and consent of the Lords and Commons. An Act though entered in the

Parliament roll, is no Act, if it

'be penned, that the King with the assent of the Lords or with the A assent of the Commons, for

three ought to assent, scil . the King, the Lords and the Commons, or otherwise it is not an Act of

Parliament; and by the record of the Act which of those gave their assent, and that excludes all

other intendments that any other gave their assent'

( The Prince's case, 77 E.R. 481 at p. 505). Had Act 46 of 1951 stated B that it had been enacted

by the King, the Senate and the House of Assembly in accordance with the requirements of secs.

35 and 152 of the South Africa Act, it may be that courts of law would have been precluded from

enquiring whether that statement was correct, but that Act states that it was enacted by the King,

the Senate and the House of Assembly. C Prima facie therefore each constituent element of

Parliament functioned separately in passing the Act. The original of that Act signed by the

Governor-General and filed with the registrar of this Court bears the certificate of the President

of the Senate and the Speaker of the House of Assembly to the effect that it was passed by the

Senate and the House D of Assembly respectively. This clearly shows that the Act was not

passed by the two Houses of Parliament sitting together. I have already expressed the opinion

that the Statute of Westminster has left the entrenched clauses of the South Africa Act intact,

55

and, that being so, it follows that the principles enunciated in Rex v Ndobe, supra , are E still

sound law, viz. that courts of law have the power to declare Act 46 of 1951 invalid on the ground

that it was not passed in conformity with the provisions of secs. 35 and 152 of the South Africa

Act.

On p. 238 of the report of Ndlwana's case there is the following passage:

F 'Assuming that we are entitled to infer from its reference to the two provisions of sec. 35 that

Act 12 of 1936 was passed by the two Houses sitting together and not bicamerally the question

then is whether a Court of Law can declare that a Sovereign Parliament cannot validly pronounce

its will unless it adopts a certain procedure - in this case a procedure impliedly indicated as usual

in the South Africa Act? G The answer is that Parliament, composed of its three constituent

elements, can adopt any procedure it thinks fit; the procedure express or implied in the South

Africa Act is so far as Courts of Law are concerned at the mercy of Parliament like everything

else.'

Several difficulties occur to me in connection with the above passage. I H do not understand why

it was only assumed that Act 12 of 1936 was passed by the two Houses sitting together, for not

only did the enacting clause state that it was enacted

'in accordance with the requirements of secs. 35 and 152 of the South Africa Act'

but the original which was signed by the Governor-General and filed with the Registrar of this

Court bears the following endorsement by the Speaker:

1952 (2) SA p470

CENTLIVRES CJ

'Certified correct as passed by the joint sitting of both Houses of Parliament convened by

message from His Excellency, the Officer Administering the Government.'

The reasoning seems to suggest that, although it is implicit in the South Africa Act that

Parliament should, save in exceptional cases, sit A bicamerally and that each House should pass

a bill separately, both Houses of Parliament may sit together to pass any kind of legislation,

56

whether there is a deadlock between the two Houses or not. With great respect it seems to me

that this would be a very novel and surprising doctrine to constitutional lawyers. It would indeed

be surprising if a B Government which is in a minority in the House of Commons could, by

advising the Sovereign to convene a joint sitting of the House of Lords and the House of

Commons, swamp the majority in the Commons by the votes of the Lords.

To say, as long as the entrenched clauses still appear in the South Africa Act, that the

'procedure express or implied in the South Africa Act is so far as C Courts of Law are concerned

at the mercy of Parliament like everything else'

seems to me with great respect to be inconsistent with the decision of this Court in Rex v Ndobe,

supra at p. 497. There this Court said that under sec. 58 of the South Africa Act, each House of

Parliament is free D to prescribe its own rules with respect to the order and conduct of its

business and proceedings and that into the due observance of such rules this Court is not

competent to enquire, but that this Court is competent to enquire whether, regard being had to the

provisions of sec. 35, an Act of Parliament has been validly passed. To hold otherwise would

mean E that Courts of law would be powerless to protect the rights of individuals which were

specially protected in the constitution of this country.

On p. 238 there is the further statement: 'This is not a case where one of the constituent elements

of Parliament has not functioned.' Act 12 of 1936 was passed at a joint sitting, and neither the

Senate nor the House F of Assembly functioned at that sitting. Members of both Houses attended

the sitting but the Senate as such and the House of Assembly as such did not function.

I have not been able to find anything in the judgment in Ndlwana's case to suggest that the Court

applied its mind to the question whether the G Statute of Westminster impliedly repealed the

entrenched provisions of secs. 35 and 152. Had it done so and had it come to the conclusion that

there was an implied repeal, it would have had to consider the further question whether Act 12 of

1936, which was indisputably passed at a joint session of the two Houses convened by message

from the Officer H Administering the Government, was validly passed, for, as DE VILLIERS,

C.J., said in Rex v Ndobe, supra at p. 497, to assume that an Act, which dealt with matters other

than the matters dealt with by sec. 35, was passed by the two Houses of Parliament sitting

57

together as prescribed in that section would be to assume that the Act was not validly passed.

Similarly if the entrenched provisions of secs. 35 and 152 had been impliedly repealed it would

have been incompetent

1952 (2) SA p471

CENTLIVRES CJ

for Parliament in 1936 to pass Act 12 of 1936 in any other manner than bicamerally save as is

provided in sec. 63 of the South Africa Act.

The question now arises whether this Court ought to depart from Ndlwana's case. Earlier in this

judgment I have referred to a number of A cases which show that there may be circumstances in

which the Court ought to depart from its previous decision. There is no doubt in my mind that

this is essentially a case where this Court is bound, on its having been shown that its previous

decision was wrong, to depart from that decision. The circumstances which have induced me to

come to this conclusion are the following.

B According to the heads of argument filed for the appellant in Ndlwana's case it was contended

that the 'clog' imposed by secs. 35 and 152 on Parliament as ordinarily constituted was impliedly

repealed by the Statute of Westminster and that Parliament could therefore only function

bicamerally. As it was clear that Act 12 of 1936 was passed by C a joint sitting it was contended

that that Act had not been passed by the Senate and the House of Assembly. When the Court put

its preliminary question to counsel for the appellant and made the assertion that 'Parliament is

now, since the passing of the Statute of Westminster, the supreme and sovereign law-making

body in the Union', it is not likely D that counsel for the appellant would have contested that

assertion, as his main argument rested on the correctness of that assertion. It was not necessary

for counsel for the respondent to contest that assertion, because he could confine himself to the

contention that the Court had no E power to pronounce upon the validity of an Act of a supreme

and sovereign Parliament duly promulgated and printed and published by proper authority. It

seems to me to be a fair inference from those facts that there was no argument upon the point

whether the Statute of Westminster had any effect upon the entrenched clauses of the South

Africa Act. It seems to me with great respect that this Court per F incuriam pronounced a

58

decision on a question of vital constitutional importance without hearing argument lasted a very

short time. The records of this Court show that Even if it did hear any argument on this vital

question, that argument lasted a very short time. The records of this Court show that counsel for

the appellant argued from 10.5 a.m. to G 11 a.m., that counsel for the respondent argued from 11

a.m. to 11.15 a.m. and that counsel for the appellant replied from 11.15 a.m. to 11.25 a.m. (This

short argument contrasts strangely with the argument in this case which lasted six days.) The

Court then adjourned for 35 minutes and on re-assembling at noon announced that the appeal

was dismissed and that reasons would be handed in later.

H I have carefully examined the record which was before this Court when it heard Ndlwana's

case and it is clear that there was not placed before this Court on that occasion the mass of

material which counsel on both sides placed before this Court in the present case.

The decision in Ndlwana's case did not lead to the coming into

1952 (2) SA p472

CENTLIVRES CJ

existence of any rights accruing to, or obligations devolving on, private individuals. That

decision, if correct, enabled Parliament to deprive by a bare majority in each House sitting

separately individuals of rights which were solemnly safeguarded in the Constitution of the

country. This is a potent reason why this Court, on being satisfied that A its previous decision

was wrong, should not hesitate in declaring the error of that decision.

We were referred in argument to sec. 44(3) of Act 28 of 1946 which was passed bicamerally and

enacted that as from a certain date the names of Indians in the Province of Natal who were on the

Indian voters' list B should be removed from every other list of voters. If there could be any

relevancy in this, it may be noted that this provision, which under sec. 57 of the Act could only

come into operation by proclamation, never came into operation as no such proclamation was

ever issued, and it was eventually removed from the Statute book by sec. 2 of Act 47 of 1948.

59

C Bearing in mind all the very special circumstances which I have set out above, I am of opinion

that, regard being had to the authorities which I have referred to earlier in this judgment, this

Court, however reluctant it is to depart from decisions of its own, is bound to refuse to follow

Ndlwana's case.

D The only other point that remains is whether this Court should declare Act 46 of 1951 invalid

in whole or in part. This question was raised by the Court at the conclusion of the argument in

chief for the appellants and counsel for the appellants submitted that on the principles laid down

in Arderne, Scott, Thesen Ltd v Cape Provincial Administration , E 1937 AD 429 , it was

impossible to separate the good from the bad in the Act. Counsel for the respondents did not

contest this contention: indeed he indicated that all the provisions were dependent one on

another. This is so obvious from a perusal of the Act that I do not consider that it is necessary to

go into detail: it is sufficient to say that in my opinion the whole of the Act should be declared

invalid.

F All four appeals are therefore allowed with costs; in each case the order made by the Cape

Provincial Division is set aside and the following order substituted: 'Order granted in terms of

prayer (a) of the applicant's notice of motion; respondents to pay the costs.'

G GREENBERG, J.A., SCHREINER, J.A., VAN DEN HEEVER, J.A., and HOEXTER, J.A.,

concurred.

Attorneys for appellants Harris and Franklin: Rose-Innes & Jordan , Cape H Town; Goodrick &

Franklin , Bloemfontein. Attorneys for appellants Collins and Deane: Bloomberg, Baigel & Co. ,

Cape Town; Goodrick & Franklin , Bloemfontein. Respondents' Attorneys: Assistant

Government Attorney , Cape Town; Naudé & Naudé , Bloemfontein.

APPENDIX I

DIGEST OF CASES ON APPEAL

60