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

Transcription

1 HARRIS AND OTHERS v MINISTER OF THE INTERIOR AND ANOTHER 1952 (2) SA 428 (A) 1952 (2) SA p428 Citatio n Court 1952 (2) SA 428 (A) 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 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; 1

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 (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 2

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 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 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 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 3

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, 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 , 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 ; Cowen, Parliamentary Sovereignty, pp. 3-4; and cf S.A.L.J. D at pp. 273, 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 4

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 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 ); 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 ); Salmond, Jurisprudence (9th ed., at p. 685); English Parliament Act, 1911, 1 and 2 Geo. V Ch. 13; Dicey, supra p 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 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 5

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

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 today. 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 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, ; 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 7

8 22nd April, 1931, and of the Senate of 6th May, 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 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 8

9 Wheare Statute of Westminster (4th ed., pp ). 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 9

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 , 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 , 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 ; 152 L.T.R. F at pp 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 (p. 18); Command Paper No (paras 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 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 10

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 lawmaking 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 ; C.I.R v Estate Crewe and Another, 1943 AD at pp 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 , Dicey, supra pp , Jennings, supra pp. 140, 143, Cowen, supra pp 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 11

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 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 12

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 , 218-9; Moore and Others v A. G. Irish Free State and Others, supra at pp 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 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. 13

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 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 ; 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 ; Moore and Others v Attorney-General for the Irish Free State and Others, 1935 A.C. at pp 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 14

15 authority and supremacy over all colonies; see Halsbury, ibid. para. 472; Campbell v Hall, 98 E.R. at p 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 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 15

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 ). 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 The fact that the Union Parliament can abolish or at its will amend the 16

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 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, 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 ; 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 ). 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, 17

18 1900, sec. 128 and the Irish Free State Constitution Act, 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 ; G Dicey, supra at pp. 88, 122, 125; Bryce, Studies in History and Jurisprudence, Vol. 1, pp 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 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 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 18

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 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 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 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 19