MINISTER OF THE INTERIOR AND ANOTHER v HARRIS AND OTHERS 1952 (4) SA 769 (A) 1952 (4) SA p769 Citation Court Judge 1952 (4) SA 769 (A) Appellate Division Centlivres CJ, Greenberg JA, Schreiner JA, Van Den Heever JA, and Hoexter JA Heard October 27, 1952 ; October 28, 1952 ; October 29, 1952 Judgment November 13, 1952 A Flynote : Sleutelwoorde Parliament - High Court of Parliament Act, 35 of 1952 - Invalidity of - Act passed bicamerally altering sec. 152 of the South Africa Act - High Court of Parliament not a court of law such as was envisaged by sec. 152. B Headnote : Kopnota Act 35 of 1952, which established a High Court of Parliament, consisting of all Senators and Members of the House of Assembly, with power to review decisions of the Appellate Division of the Supreme Court of South Africa, alters section 152 of the South Africa Act; accordingly, as it was passed bicamerally and not in the manner C prescribed by the second proviso to section 152, it is invalid. The High Court of Parliament is not a Court of Law such as was envisaged by section 152 of the South Africa Act; nor, in substance, is it a Court of Law. The decision in the Cape Provincial Division in Harris and Others v Minister of the Interior and Another, confirmed. D [zciz] Case Information 1
Appeal from a decision of the Cape Provincial Division (DE VILLIERS, J.P., NEWTON THOMPSON, J. and STEYN, J.). The facts appear from the judgment of CENTLIVRES, C.J. E A. B. Beyers, Q.C. (with him J. T. van Wyk, Q.C. and D. P. de Villiers), for the appellants: Appellants' argument proceeds upon the basis that the following principles are correctly laid down, viz. that sec. 137 of the South Africa Act confers rights and privileges upon individuals; see Swart, N.O. and Nicol, N.O v de Kock, 1951 (3) SA 589; that sec. 35 similarly confers rights upon individuals; see Rex v. F Ndobe, 1930 AD 484 ; that the rights and privileges so conferred are cognisable in Courts of Law of competent jurisdiction and that it is the duty of Courts of Law to enforce these rights; see Swart, N.O. and Nicol, N.O v de Kock, supra at pp. 600-1, 611-12; and that sec. G 152 protects rights conferred by secs. 35 and 137 in that that section prevents Parliament as ordinarily constituted from passing legislation repealing or altering secs. 35 and 137 and thereby depriving the individuals concerned, of the rights conferred upon them, sec. 152 providing in this sense a constitutional guarantee in that it prevents H Parliament acting bicamerally and with a bare majority, from amending these sections. The powers of Parliament, in the above regard, are to be determined 'by looking to the terms of the instrument by which, affirmatively, the legislative powers were created and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the powers, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with 1952 (4) SA p770 it), it is not for any court of justice to inquire further, or to enlarge constructively those conditions and restrictions.'; see Rex v Burah, 1878 (3) A.C. 899; see also James v Commonwealth of Australia, 1936 (2) A.E.R. at p. 1464. In sec. 59 of the South Africa Act, A Parliament is granted 'full power to make laws for the peace, order and good government of the Union'. Similar language employed in conferring legislative powers upon Colonial Legislatures throughout the British Empire has consistently been interpreted by the Courts as conferring upon those Legislatures original and plenary powers of legislation, B covering 'the entire conceivable area of political action'; see Rex v McChlery, 1912 AD at p. 220. In the result laws made by 2
such Legislatures in the exercise of such powers could never be invalidated on any ground, save only the transgression of specific limitations imposed upon them by superior British legislation, including the C instruments by which those Legislatures were created, i.e. Acts of Parliament, Orders-in-Council or Letters Patent. These limitations are generally referred to as 'limits of subjects and areas'; see Rex v McChlery, supra at pp. 215-6, 219-20; Rex v Burah, supra at p. D 904; Hodge v The Queen, 9 A.C. at p. 132; Powell v Apollo Candle Co., 10 A.C. at p. 289; Webb v Outrim, 1907 A.C. at pp. 88-9; Edwards v Attorney-General for Canada, 1930 A.C. 136; British Coal Corporation v The King, 1935 A.C. 518; James v Commonwealth of Australia, 1936 (2) A.E.R. at p. 1464. In the case of the Union Parliament the only E provisions relied upon as still constituting limitations upon its power to make laws for the peace, order and good government of the Union, are the so-called 'entrenched clauses', secs. 35, 137 and 152 of the South Africa Act. As to the repeal and amendment provisions of sec. 152, only the repeal or amendment of secs. 35, 137 and 152 itself, is entrenched F by the requirement of a special and abnormal legislative process and there is, accordingly, no limitation upon the repeal or amendment by Parliament of any other provision of the South Africa Act in the ordinary exercise of its general power of legislation. Secs. 99 to 116 G dealing with the judicial system of the Union are entirely unentrenched. This is in marked contrast, for example, with the position in Australia; see sec. 7 as read with secs. 71, 72 and 128 of the Australian Constitution. The relevant language was evidently adopted from the American Constitution where also the Judiciary is protected against the H Legislature; see Art. III, sec. 7, Art. I, sec. 8 and Art. V of the American Constitution. The provisions of the South Africa Act regarding the judicial system, referred to supra, have on numerous occasions been amended by the Union Parliament in the ordinary exercise of its legislative powers, e.g. the abrogation of sec. 106 by Act 16 of 1950, the amendment of sec. 96 by Act 37 of 1948. As a matter of abstract law changes of a much more far-reaching character such as the amendment of secs. 100 and 101, could be brought about by the same process. In Australia and the U.S.A. the corresponding provisions are carefully 1952 (4) SA p771 protected by the provisions in the Constitutions of these countries, referred to supra. In India radical changes in the Judiciary were effected in respect of matters which evidently did not enjoy specific protection and the validity of such legislation was upheld by the Privy Council; see King-Emperor v Benoari Lal Sarma and Others, 1945 (1) A A.E.R. 210 at p. 216 and cf. 3
Attorney-General for Ontario v Attorney-General for Canada, 1912 A.C. 571. There can therefore be no doubt that the Union Parliament, in the ordinary exercise of its legislative powers, can establish a new Court with jurisdiction superior to that of the Appellate Division. The framers of the South Africa Act B saw fit to limit the powers of the Union Parliament only as regards the alteration of the matters of substantive law dealt with in the entrenched clauses and to leave completely unfettered its powers to alter the adjective or procedural law relating to the Judicature, save C only for the erstwhile provision in by special leave to the Privey Council. Sec. 152 which is relied upon by by respondents as limiting the powers of Parliment with regard to the enactment of Act 35 of 1952, deals only, as a matter of substantive law, with the restriction on the legislative powers of the South African Act and does not restrict the power of Parliment to cahnge the judicial system. The words of sec. 152 are clear and unambiguous and do not require or admit of the importation of any E words into it. If any case arises in which an Act of the Union Parliament is impugned on the ground that it conflicts with sec. 152, 35 or 137 there nevertheless is a field of legal enquiry which necessarily opens before the Courts, and it is conceded, for the purpose of argument, that under our system of law the field of enquiry belongs F properly to the Courts. It is, however, Parliament's function and right to determine by ordinary legislation what Courts there shall be and which Courts shall have jurisdiction to determine the questions involved in the predicated enquiry. Harris and Others v Minister of the Interior and Another, 1952 (2) SA 428 (AD) in no way conflicts with the G foregoing submissions. In that case this Court posed certain questions lying within the field referred to supra and gave its decision upon them; see case cited, at pp. 449, 452, 454, 456, as to the questions raised. The findings of the Court on these questions were based upon interpretations of legal rules not above doubt and not free from H complexities and it is not inconceivable that another Court might disagree with them. Any suggestion that by such findings, this Court added anything to the effect of sec. 152 or gave to it any meaning not to be derived from the words of that section, would imply that the Court exercised a function which it was never established to perform, namely to alter the law or create new law which is a legislative, as opposed to a judicial, function. The creation by Parliament of a Court of Law and the inclusion in the functions of such Court of the right 1952 (4) SA p772 and duty to reconsider the findings of this Court in Harris and Others v Minister of the Interior 4
and Another, supra, or in any other case, can, therefore, never be an alteration of the substantive law nor can it be said that Parliament has thereby authorised or instructed such a A Court to alter or ignore any part of the law, more particularly sec. 152. It is conceded that the definition of 'Act of Parliament' in Act 35 of 1952 includes any statute passed contrary to sec. 152 of the South Africa Act and that it also includes Act 46 of 1951. It follows therefore from secs. 2 and 8 of Act 35 of 1952 that the High Court of B Parliament is empowered by Parliament as ordinarily constituted to declare an Act to be valid, notwithstanding the fact that the Appellate Division has held it to have been passed contrary to sec. 152 of the South Africa Act if such High Court decides that the judgment of the Appellate Division is wrong in law. For the reasons advanced supra, the C grant of the said powers to the High Court does not alter the substantive law in any way, and in particular does not alter sec. 152. The High Court could only treat Act 46 of 1951 as valid if it came to the conclusion that it did not offend against the entrenched clauses or D that the entrenched clauses were no longer binding upon Parliament as a result of the passing of the Statute of Westminster. In coming to either of these conclusions, the High Court would not be ignoring, repealing or altering the entrenched clauses nor has Act 35 of 1952 such effect nor does it authorise the High Court to give such effect to its decisions. E Act 35 of 1952 merely authorises the High Court to review on legal grounds the findings of the Appellate Division on the issue whether or not a particular measure is rendered invalid by the entrenched clauses clauses and to give effect in its judgment to its own conclusions of law on such issue in preference to that of the Appellate Division. Act 35 of F 1952 does not constitute an alteration of sec. 152 of the South Africa Act in that an aggrieved litigant whose rights under the entrenched sections have been infringed, has no access to the highest Court. The so-called right of access, said to have been altered, depended solely upon two considerations of adjective law, viz. the rules relating to G appeals to such highest Court and the principles of stare decisis which are principles of Common Law enunciated by the Courts themselves. It was by virtue of these principles that the Appellate Division could be asked to depart from a previous decision adverse to the litigant. Such right H of access was, therefore, clearly not derived from the entrenched clauses themselves but from procedural or adjective law. The entrenched clauses could have existed at all times, with exactly the same meaning and effect in law, without the existence of any right or facility of access to the highest Court for the purpose of their enforcement. It follows that an alteration of such right of access in no way brings about an alteration of the entrenched clauses. The Constitution imposes no limitations upon Parliament in relation to the creation of a 5
Court. The only limitations imposed by the Constitution are contained in the three entrenched clauses, 1952 (4) SA p773 none of which has any connection with the creation or constitution of Court of Law. A Court such as the High Court of Parliament can be created in South Africa to decide all issues of law. Further, there is no provision in the South Africa Act which requires Parliament to act unicamerally and with a two-thirds majority for the purpose of creating A such a Court. Such a provision could only possibly be found by implication. There is no room, however, for importing a provision of that nature into the South Africa Act. J. T. van Wyk, Q.C. (on the same side, had filed joined heads of argument on behalf of the second appellant). The Court is not entitled B to read into an Act a concealed intention on the part of the Legislature. See Dadoo Ltd. and Others v Krugersdorp Municipal Council, 1920 AD 530. As to the effect of a proviso in a section of an Act see Craies Statute Law. Graeme Duncan, Q.C. (with him H. Snitcher, Q.C. and D. B. Molteno), for C the respondents: The respondents' case is that Parliament as ordinarily constituted, which will be referred to simply as Parliament, has exceeded its powers in enacting Act 35 of 1952 in that it has altered sec. 152 of the South Africa Act in the following respects, viz. (a) Parliament has enacted that the High Court of Parliament may treat as D valid any instrument enrolled in terms of sec. 67 of the South Africa Act, irrespective as to how it was passed and irrespective of its subject matter, whereas sec. 152 enacts that every Court and indeed everyone shall treat as invalid a measure passed bicamerally and dealing with certain matters referred to in sec. 152, (b) Parliament has enacted E that the High Court, which is not part of the judicial power in the Union, within the meaning of the South Africa Act, may decide whether or not a measure, alleged to be invalid by reason of sec. 152, is valid, whereas sec. 152 enacts that that function is to be exercised by the F judicial power, and (c) Parliament has enacted that, in the event of the High Court deciding that a measure is valid, everyone, including all Courts of Law, shall treat that measure as valid in the future, thereby depriving the individuals, whose rights are guaranteed by sec. 152, of the right in any dispute to challenge the validity of such measure in a G Court of Law, whereas sec. 152 enacts that such individuals shall always have the right to raise the issue of validity when such 6
measure is relied upon in the course of a dispute. As to ground (a) ( supra) the definition of 'Act of Parliament' in sec. 1 of Act 35 of 1952, in terms includes any statute passed contrary to sec. 152 of the South Africa Act H and more particularly Act 46 of 1951 declared by this Court to be invalid. From secs. 2 and 8 of Act 35 of 1952 it follows that Parliament has enacted that the High Court of Parliament may declare an Act 'as defined' to be valid or treat such Act as valid notwithstanding the fact that the Act has been passed contrary to sec. 152 of the South Africa Act. More particularly. Parliament has enacted that such High Court may declare or treat as valid, Act 46 of 1951 which altered sec. 35 of the South Africa 1952 (4) SA p774 Act and which was not passed in the manner laid down in sec. 152. The validity of Act 35 of 1952 falls to be determined upon the basis that sec. 152 of the South Africa Act is law. This was the law on the 4th June, 1952, when Act 35 of 1952 was enacted and by that law everyone in A the Union, including all Courts of Law and Parliament, was bound; see Harris and Others v Minister of the Interior and Another, 1952 (2) SA 428. Such being the law when Act 35 of 1952 was passed, it was not competent for Parliament to enact that a Bill passed contrary to sec. 152 of the South Africa Act should be treated as valid, for such a B declaration of validity would be to alter sec. 152 which expressly enacts that such a bill shall be invalid. Nor was it competent for Parliament to enact that any person whatever, including any Court of Law, might treat as valid a measure which sec. 152 enacts shall be treated as invalid. Sec. 152 is an imperative injunction upon everyone, C including all Courts of Law, to regard a statute as invalid, if it has not been passed in the manner laid down in sec. 152. To enact even that a Court of Law may treat such a statute as valid is to alter sec. 152. The fact that the High Court is given power to set aside a decision D of the Appellate Division on any legal ground is no answer, because Parliament cannot lawfully empower anyone to treat as valid on any ground whatever a statute not passed in accordance with sec. 152 for so to do is to alter sec. 152. The fact that on the 4th June, 1952, a Court might have interpreted the law as being that, upon a true construction E of the Statute of Westminster, the proviso to sec. 152 had been repealed and that therefore an Act not passed in the manner laid down in sec. 152 would be valid, is irrelevant. For the law on that date was that the proviso to sec. 152 had not been repealed and consequently such an Act would be invalid. That law was binding upon Parliament. Thus, F assuming that Parliament can, by statute, create a Court of Law above the Supreme Court of South Africa, it cannot lawfully include in such 7
statute any provision empowering such Court to declare or treat as valid an Act not passed in the manner laid down in sec. 152. Act 35 of 1952 as G containing such provisions, is, on this ground alone, ultra vires and any decision by the High Court of Parliament set up under that Act is a nullity. As to the ground ( b) supra, upon which the validity of Act 35 of 1952 is challenged, sec. 152 of the South Africa Act is a limitation upon the powers of Parliament and is a constitutional guarantee in H favour of individuals. The section therefore confers a right upon any person affected by an infringement of that guarantee to raise that issue before, and have that issue determined by, the judicial power in the Union; see Harris and Others v Minister of the Interior and Another, 1952 (2) SA at pp. 456, 470; Swart, N.O. and Nicol, N.O v de Kock and Garner, 1951 (3) SA at pp. 601-2, 611, 623. By 'judicial power' is meant the power vested in Courts of Law established from time to time in order to settle disputes, because it is in the course of such disputes that it becomes necessary to determine whether an enactment relied 1952 (4) SA p775 upon as having the force of law is valid or invalid. In the case of any constitution, whether unitary or federal, which contains any constitutional guarantee to any individual, it necessarily follows that the established Courts of Justice must have the power and the duty to decide whether or not the guarantee has been infringed by the members of A a legislative body, for when an infringement is alleged by an individual or some organ in the State, the members of that legislative body cannot themselves resolve the dispute, because if they can, then the constitution contains no guarantee. The established Courts of Justice, in the course of adjudicating upon a dispute, when a question B arises whether the prescribed limits of a constitution have been exceeded, must of necessity determine that question; see James v Commonwealth of Australia, 1936 (2) A.E.R. at p. 1464. Thus Parliament could not lawfully enact that a person or body of persons not part of the judicial power in the Union, might decide whether or not a measure C held to be invalid by reason of sec. 152, was valid. That this was appreciated by Parliament is shown by the express provision in sec. 2 of Act 35 of 1952 that the High Court 'shall be a Court of Law'. The High Court of Parliament is, in no sense, part of the judicial power in the D Union within the meaning of sec. 152 of the South Africa Act because (a) the members of the so-called Court may be the legislators themselves who, in law, may have acted contrary to the South Africa Act in defiance of the rights of an individual safeguarded by that Act; see sec. 3 of Act 35 of 1952; (b) the substance of the Act of 1952 is that the members E of both Houses of Parliament 8
sitting together may, by a resolution of the majority of members present, decide that what may have been invalidly done by such members, in defiance of the South Africa Act, is nevertheless valid; (c) a Statute which is ultra vires is not the Act of the Legislature, but of the individuals who purported to enact the F Statute; see Gore-Brown, Companies (39th ed., p. 429); Bryce, The American Commonwealth (3rd ed., Vol. 1, p. 245); (d) it can never have been the intention of the Legislature in enacting the South Africa Act that the individuals who may have acted illegally and beyond their G powers should themselves decide whether or not their action was illegal for such an interpretation of sec. 152 would be manifestly absurd and moreover would result in sec. 152 containing no constitutional guarantee at all; (e) the so-called Court is not a body which settles disputes between litigants but is obliged or at least empowered to decide upon H the correctness of a decision given by the established Courts of Justice, even though no one, other than the members of the Legislature whom a Court has found to have acted illegally, is dissatisfied with such decision and even though neither of the litigants asks for relief; see secs. 2 and 5 of Act 35 of 1952. The judicial power, i.e. the power which Courts possess to decide disputes as to a litigant's rights, only exists where a dispute between parties is before a Court. It is only in the course of settling such disputes that the power to decide upon the validity of a purported 1952 (4) SA p776 CENTLIVRES CJ Statute arises. A body set up to give decisions upon a matter which has ceased to be in dispute between litigants does not exercise the judicial power implicit in the constitutional guarantee contained in sec. 152; see Shell Company of Australia v Federal Commissioner, 144 L.T.R. at p. A 427; Willoughby, Constitution of the United States (pp. 20, 24); Brown v Leyds, 4 O.R. at p. 27. Stripped of features giving the High Court of Parliament the appearance of an established Court of Justice within the meaning of the South Africa Act, the so-called Court is merely a body of B persons authorised to resolve a conflict between the Court, acting pursuant to the powers conferred upon it by sec. 152, and the members of Parliament, such conflict having arisen only by reason of the refusal of one organ in the State to accept the decision of another organ, to whom the power of decision is entrusted under the Constitution of the Union. C Such a body is no part of the judicial power in the Union in whom the South Africa Act vests the power to 9
decide whether or not the members of the Legislature have exceeded their powers under that Act. Upon this ground also Act 35 of 1952 is ultra vires. As to ground ( c) supra, upon which the validity of Act 35 of 1952 is attacked, in view of D the fact that the Act establishes a body to which a Minister of State alone has access, it follows that once that body has decided that a certain statute is valid, that decision will be final and binding in the future, not only on the particular litigants involved in the dispute E before the Appellate Division but upon all Courts and all persons whatever; see secs. 2, 5 and 8 of Act 35 of 1952; de Waal, N.O v North Bay Canning Co., Ltd., 1921 AD at p. 533; Collett v Priest, 1931 AD at 297; Harris and Others v Minister of the Interior and Another, supra at p. 452. The declaration of invalidity in sec. 152, conferring a right F upon any individual affected by the purported Statute to challenge its validity on the grounds set out in sec. 152, cannot be destroyed by Parliament, for to do so would be to take away such right, thereby altering sec. 152. Beyers, Q.C., in reply. G Cur. adv. vult. Postea (November 13th). [zjdz] Judgment H CENTLIVRES, C.J.: In March of this year this Court held in the case of Harris and Others v Minister of the Interior and Another, 1952 (2) SA 428 (AD) (to which case I shall refer as the former case) that the Statute of Westminster 1931 left sec. 152 of the South Africa Act (to which I shall refer as the Constitution) intact and that Act 46 of 1951 was of no force or effect because it had not been passed in conformity with that section. On June 4th this year there was promulgated in the Gazette the High Court of Parliament Act, 35 of 1952. It is common cause that this Act was passed 1952 (4) SA p777 CENTLIVRES CJ 10
bicamerally and not in the manner prescribed by the second proviso to sec. 152 of the Constitution. Sec. 1 of the High Court of Parliament Act defines 'Act of Parliament' as meaning 'any instrument which has at any time since the eleventh day of December, 1931' A (i.e. the date on which the Statute of Westminster came into operation) 'been enrolled of record in the office of the Registrar of the Appellate Division of the Supreme Court of South Africa in terms of sec. 67 of the South Africa Act, 1909, or which may at any time hereafter be so enrolled, by virtue of the fact that it purports to be B an Act of Parliament, and which purports to be enacted by the King, the Senate and the House of Assembly, whether it purports to have been passed by a joint sitting of the Senate and the House of Assembly or by the Senate and the House of Assembly in separate sittings, and irrespective of the subject matter thereof.' Sec. 2 of the Act is as follows: 'Notwithstanding anything to the contrary in any law contained, any C judgment or order of the Appellate Division of the Supreme Court of South Africa, whether given or made before or after the commencement of this Act, whereby the said Appellate Division declared or declares invalid any provision of any Act of Parliament referred to in sec. 1 or whereby it declared or declares that any such Act is not an Act of D the Parliament of the Union, or whereby it refused or refuses to give effect to any provision of such an Act or prohibited or prohibits any person from giving effect to any such provision or in any other manner rendered or renders such a provision inoperative or denied or denies that it has the force of law, shall, subject to the provisions of this Act, be subject to review by the High Court of Parliament (hereinafter E referred to as the Court) which shall be a Court of Law constituted as hereinafter provided.' The material provisions of sec. 3 are as follows: '(1) Every senator and every member of the House of Assembly shall be a member of the Court and shall, notwithstanding the dissolution of the Senate or the House of Assembly, as the case 11
may be, continue to be a member of the Court until a new Senate has been constituted F or, as the case may be, a general election of members of the House of Assembly has been held, or until any matter under review by the Court has been disposed of by it, whichever may be the later: Provided that a member of the Court shall vacate his office as a member of the Court if he ceases to be a senator or a member of the House of Assembly otherwise than in consequence of the dissolution of the Senate or the House of Assembly. G (2) The Governor-General may appoint one of the members of the Court as the President thereof. (6) A person who becomes a member of the Court after the date upon which a sitting of the Court in pursuance of a notice published under sec. 7 has commenced, shall not be competent to take his seat as a member of the Court in connection with the consideration of H the application for review of the judgment or order in respect of which that sitting has been convened. (7) (a) No member of the Court shall vote or take part in the discussion of any matter before the Court or a Judicial Committee - (i) in which he has a direct pecuniary interest; or (ii) which relates to an application for the review of a judgment or order given or made in proceedings to which he was a party otherwise than nomine officii. (b) No member of the Court shall be disqualified from sitting as a member of the Court or a judicial committee by reason of the fact that he participated in the proceedings of Parliament in his capacity as a senator or a member of 1952 (4) SA p778 CENTLIVRES CJ the House of Assembly during the passing of the Act of Parliament which forms the subject matter of the judgment or order under review.' Sec. 5 (1) provides that: 'One or other Minister of State shall - (a) in the case of a judgment or order referred to in sec. 2 given or made prior to the date of commencement of this Act, within six A months of the said date; or 12
(b) in the case of a judgment or order referred to in sec. 2 given or made after the date of commencement of this Act, within six months of the date of the judgment or order, lodge with the President of the Court an application for the review by the Court of the said judgment or order...' B The material provisions of sec. 6 are as follows: '(1) Within thirty days after an application for review has been lodged with him in terms of sec. 5, the President of the Court shall refer it to a committee of the Court (hereinafter referred to as the judicial committee) constituted as hereinafter provided. C (2) The judicial committee shall consist of ten members of the Court appointed by the President by notice in the Gazette one of whom shall be designated by the President as the chairman thereof. (3) Four of the members of the judicial committee shall form a quorum. (5) A decision of the majority of the members present shall be the decision of the judicial committee. (7) (a) A person who was a party to the proceedings in which the D judgment or order under review was given or made, may lodge with the Secretary of the judicial committee, in the manner prescribed by the rules made under sec. 9, written representations relative to the application for review for the consideration of the committee and the Court. (b) A party who has in terms of para. (a) lodged written representations with the secretary of the judicial committee, shall E be entitled to appear before the committee either in person or by counsel and may, subject to the rules made under sec. 9, address the committee on any matter relevant to the application for review. (8) After the judicial committee has considered the relevant record of the proceedings and the reasons given by the judges of the Appellate Division of the Supreme Court and the representations (if F any) of the persons who were the parties to the proceedings in which the judgment or order under review, was given or made, the judicial committee shall make a report to the Court and may make such recommendations on the application for review as it may deem fit.' Sec. 8 is as follows: 13
G '(1) The Court may at any sitting convened in terms of sec. 7 and after consideration of the report and the recommendations of the judicial committee on any legal ground by resolution confirm, vary or set aside any judgment or order referred to in sec. 2 or make such other order or such order as to costs as the Court may deem fit. (2) A decision of the majority of the members present shall be the H decision of the Court. (3) A decision of the Court shall be final and binding, and shall be executed in every respect as if it were a decision of the Provincial or Local Division of the Supreme Court in which the matter was originally heard. (4) Any order of costs made by the Court shall be taxed by the Registrar of the Provincial or Local Division of the Supreme Court in which the matter was originally heard as if it were an order of costs made by that Division and shall for all purposes of the taxation thereof be deemed to be an order of that Division.' A week after the High Court of Parliament Act was promulgated the successful appellants in the former case applied, on notices of 1952 (4) SA p779 CENTLIVRES CJ motion addressed to the respondents in that case, to the Cape Provincial Division for, inter alia, ' an order declaring that Act 35 of 1952 is invalid, null and void and of no legal force and effect'. Each notice of motion was supported by an affidavit in which it was contended A 'that on a true and proper construction of sec. 152 of the South Africa Act and of 'Act 35 of 1952', the latter measure constitutes an alteration of sec. 152 of the South Africa Act'. There can be no doubt that the successful appellants in the former case, had, in view of the provisions of secs. 2 and 5 (1) (a) of Act 35 of B 1952, good reason for thinking that the manifest intention of that Act was to provide for a reconsideration by the High Court of Parliament of the issue raised in the former case and, if that Court so decided, for a reversal of the decision in that case. The Provincial Division granted an order in the terms set forth above and the matter now comes before this Court on appeal. 14
C Sec. 152 of the Constitution enacts that 'Parliament may by law repeal or alter any of the provisions of this Act'. There are two provisos, the first of which is irrelevant. The second proviso, in so far as it is material to this case, enacts that: 'no repeal or alteration of the provisions contained in this section. D.. or in secs. 35 and 137 shall be valid unless the Bill embodying such repeal or alteration shall 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 total number of members of both Houses.' E It is clear from secs. 35, 137 and 152 of the Constitution that certain rights are conferred on individuals and that these rights cannot be abolished or restricted unless the procedure prescribed by sec. 152 is followed. In construing these sections it is important to bear in mind that these sections give the individual the right to call on the judicial power to help him resist any legislative or executive action F which offends against these sections or, to put it in another way, these sections contain constitutional guarantees creating rights in individuals, the duty of the Courts, where the question arises in litigation, being to ensure that the protection of the guarantee is made G effective, unless and until it is modified by legislation in such a form as under the Constitution can validly effect such modification. See Swart, N.O. and Nicol, N.O v Garner and Others, 1951 (3) SA 589 at pp. 602 and 611 (A.D.). See also James v Commonwealth of Australia, 1936 A.C. 578 at p. 613, where LORD WRIGHT in delivering the judgment of H the Privy Council quoted with approval the following passage from the judgment of LORD SELBORNE in The Queen v Burah, 3 A.C. 889 at p. 904: 'The established Courts of Justice when a question arises (in regard to a Constitution) whether the prescribed limits have been exceeded, must of necessity determine that question.' The method employed by sec. 152 to entrench the rights conferred by secs. 35 and 137 is the sanction of invalidity. This can only mean invalidity in law as determined by Courts of Law which consider 1952 (4) SA p780 CENTLIVRES CJ 15
issues raised by parties who bring their disputes before such courts. A constitution might provide for an entrenchment which cannot be enforced by Courts of Law (e.g. the Swiss Constitution, see Bryce's American Commonwealth, 3rd ed., p. 260) but this is not what our Constitution A prescribes. In our Constitution the entrenchment is effected by applying the sanction of legal invalidity - a sanction which can only be applied by Courts of Law. Those Courts cannot, therefore, shirk the duty imposed on them of coming to the aid of individuals whose rights conferred by the sections referred to have been infringed or who have B reasonable grounds for thinking that their rights will be interfered with. It does not, of course, follow from what I have said that Parliament sitting bicamerally is not entitled to amend those sections of the Constitution which deal with the Judiciary, but it cannot in my opinion bicamerally pass any Act, the effect of which would C be to render nugatory the rights entrenched in the Constitution. It will be noticed how carefully sec. 152 is worded. It was realised that it was necessary to entrench sec. 152 itself in order to make it clear beyond any doubt that Parliament sitting bicamerally should not D have the power to repeal the provisos to sec. 152 and thus to enable itself, sitting bicamerally, to repeal or amend secs. 35 and 137. This in itself emphasises the intention to protect to the utmost the rights entrenched by sec. 152. Mr. Beyers, who appeared on behalf of the Minister, laid great stress on E the distinction between substantive and adjective or procedural law. He contended that the framers of the Constitution saw fit to limit the powers of Parliament only as regards the alteration of matters of substantive law and to leave completely unfettered its powers to alter the adjective law relating to the judicature in the Union, the F judicature being in no way entrenched. On this foundation he contended that either before or after the Statute of Westminster Parliament sitting bicamerally could validly have passed an Act providing that no Court of Law in the Union should have jurisdiction to adjudicate upon the question whether any Act had been passed in conformity with the G provisions of sec. 152 of the Constitution. Such an Act would, he contended, have been valid, provided that it did not repeal the provisos to sec. 152. This is a startling proposition. As I understand Mr. Beyers' argument the substantive right would, in the event of such an H Act having been passed, remain intact but there would be no adjective or procedural law whereby it could be enforced: in other words the individual concerned whose right was guaranteed by the 16
Constitution would be left in the position of possessing a right which would be of no value whatsoever. To call the rights entrenched in the Constitution constitutional guarantees and at the same time to deny to the holders of those rights any remedy in law would be to reduce the safeguards enshrined in sec. 152 to nothing. There can to my mind be no doubt that the authors of the Constitution intended that those rights should be enforceable by the Courts of 1952 (4) SA p781 CENTLIVRES CJ Law. They could never have intended to confer a right without a remedy. The remedy is, indeed, part and parcel of the right. Ubi jus, ibi remedium. If authority is needed for what I have said, I refer to the following cases. In Ashby v White, 92 E.R. 126 at p. 136, HOLT, C.J., said: A 'If a plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy, if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.' In Dixon v Harrison, 124 E.R. 958 at p. 964, it was stated that the greatest absurdity imaginable in law is: B 'that a man hath a right to a thing for which the law gives him no remedy; which is in truth as great an absurdity, as to say, the having of right, in law, and having no right, are in effect the same.' There is, in my opinion, no warrant for the use sought to be made by Mr. C Beyers of the distinction between substantive law and adjective or procedural law. That distinction or basis of classification is indeed not a very clear one. Salmond in his Jurisprudence (3rd ed. at pp. 443 and 445) says: 'It is no easy task to state with precision the exact nature of the distinction between substantive law and the law of procedure... So D far as the administration of justice is concerned with the application of remedies to violated rights, we may say that the substantive law defines the 17
remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other.' A writer in the Harvard Law Review (Vol. 45 at p. 643) says much the same as Salmond: E 'no one has ever been able to formulate any test which will distinguish between procedural and substantive law in any particular case. Substantive law remains the 'law' which we enforce, procedure the practical rules by which we enforce it.' The case of The Colonial Sugar Refining Company Ltd v Irving, 1905 F A.C. 369 at p. 372, provides an interesting instance of what the Privy Council regarded as substantive law. In that case it appeared that, during the pendency of an action, an Act of Parliament was passed abolishing the right of appeal to the Privy Council and substituting a right of appeal to the High Court of Australia. The Privy Council held G that this was not a mere matter of procedure and that the appellant, who had issued his summons before the Act came into operation, retained his right to appeal to the Privy Council. But, whether any useful distinction can or cannot really be drawn H between substantive law and adjective or procedural law, the contention that whatever is describable as adjective law in this connection can be freely altered by Parliament sitting bicamerally, regardless of its effects on the rights guaranteed by sec. 152 of the Constitution, is, in my view, insupportable. The ground has now been cleared for a consideration of the question whether the High Court of Parliament Act infringes the provisions of sec. 152 of the Constitution; if it does, then it cannot stand. If the High Court of Parliament can properly be described 1952 (4) SA p782 CENTLIVRES CJ as a Court of Law, then it is a Court which differs in material respects from such Courts of Law as were envisaged by sec. 152 of the Constitution. I do not consider it necessary for the purposes of this judgment to point out all the differences: it will be sufficient to A point out some of them. 18
Members of the kind of Courts of Law envisaged by sec. 152 do not pass legislation relating to the substantive rights of individuals and they are, therefore, never called upon in their capacity as judges to discharge the invidious task of deciding whether they erred in thinking that they had the power to pass legislation, the B validity of which is questioned. The High Court of Parliament is composed of members of Parliament who in their capacity as legislators may have passed what purports to be an Act of Parliament and in their capacity as judges they are called upon to decide whether the instrument which they passed is or is not a valid Act of Parliament. It is C therefore an entirely different type of Court from what was envisaged by sec. 152 of the Constitution when it entrusted to the Courts of Law the duty of enforcing the rights safeguarded by that section. Furthermore, individuals, who complain that an Act of Parliament, passed D bicamerally, which deprives them of their rights entrenched by sec. 152 of the Constitution, is invalid, have access to all Courts of Law, including the highest Court. Under Act 35 of 1952 they have no right to bring under review to the High Court of Parliament any decision of the Appellate Division. They only person who has that right is a Minister of E State, and under sec. 5 (1) (a) he is compelled to approach the Court when the Appellate Division declares an Act invalid. If the High Court of Parliament were to declare valid an Act of Parliament on the ground that the Statute of Westminster has destroyed the entrenchment of rights F effected by sec. 152 of the Constitution, the decision of that Court would, on the ground that it is the highest Court in the land, be binding on all Courts of Law in the Union. The result would be that it would be utterly useless for any individual to challenge in any Court of Law the validity of an Act of Parliament on the ground that it was not G passed in conformity with the procedure prescribed by sec. 152, for those Courts would be bound to follow the decision of the High Court of Parliament and declare the Act valid. He must, therefore, get an adverse decision from the Appellate Division and there the matter must end, for H he cannot bring the matter before the High Court of Parliament. The practical effect of a decision of the High Court of Parliament on the ground I have indicated would be the same as legislation repealing the safeguards contained in sec. 152 of the Constitution. A decision on the same lines by the Appellate Division has not that effect, as it is bound to consider any reasons that may be advanced to show that a previous decision given by it is wrong and, if satisfied that that decision is wrong, it may refuse to follow it. 19
Consequently it seems to me that both in respect of its composition and the effect of its decision to declare an Act of Parliament 1952 (4) SA p783 CENTLIVRES CJ valid the High Court of Parliament differs in material respects from a Court of Law such as was envisaged by sec. 152 of the Constitution. The differences are so material that it may be held that, although Parliament sitting bicamerally may enact that there shall be a Court of Appeal, within the contemplation of that section, to hear appeals from A the Appellate Division in matters in which the validity of an Act of Parliament is in issue, the fact that the High Court of Parliament is not such a Court is sufficient to justify the view that Act 35 of 1952 was passed in contravention of sec. 152 of the Constitution. A better approach, however, to the problem before the Court is to ascertain, by B looking at the substance and not merely the form of the Act, whether the High Court of Parliament is in fact a Court of Law. Were this Court only to look at the form of legislation, constitutional guarantees might be of very little value. C The Courts are bound by a definition in a legislative enactment in so far as that enactment falls within the powers of the Legislature, but when the question is whether or not those powers have been exceeded, the definition itself is in issue along with the whole enactment, and the enactment must be judged by its substance and not by the nomenclature it uses. D In form the High Court of Parliament is a 'court of law'; in form there is a 'judicial committee'; and in form the High Court of Parliament may on 'legal grounds' 'confirm, vary or set aside' the judgment of this Court in the former case. Now let us look at the E substance of the matter. The High Court of Parliament consists of 'every member of the House of Assembly' (sec. 3 (1)), the President of that Court must be either a Senator or member of the House of Assembly (sec. 3 (2)); 'no member of the Court is disqualified from sitting as a member of the Court or a judicial committee by reason of the fact that F he participated in the proceedings of Parliament in his capacity as a Senator or member of the House of Assembly during the passing of the Act of Parliament which forms the subject matter of the judgment or order under review' (sec. 3 (7) ( 20
b)); the 'judicial committee' consists only G of members of the Court who must therefore be members of Parliament (sec. 6 (2)); and the High Court of Parliament 'by resolution' may confirm, vary or set aside the judgment of this Court in the former case. There is no provision in the Act for oral argument before the High Court itself, the only provision being for oral argument before the H 'judicial committee' (sec. 6 (7)). Yet it is the members of the High Court who eventually by resolution give the judgment. The only person who can bring a case on review before the High Court is a Minister of State. No legal qualifications are required for membership of the High Court of Parliament. See secs. 26 and 44 of the Constitution. From this short recital everyone versed in the law will realise the essential differences between the 'High Court of Parliament' and Courts of Law properly so called whose duty it is to enforce and protect the constitutional 1952 (4) SA p784 CENTLIVRES CJ guarantees. Courts of Law do not delegate to a 'judicial committee' (the name which the Act gives to what is in essence a select committee of both Houses of Parliament) the task of ascertaining what the law is and then 'by resolution' give its judgment. This procedure is Parliamentary A and unknown to Courts of Law. The persons, who in their capacity as legislators passed Act 46 of 1951, are empowered to decide in another capacity whether that Act was validly passed - a provision which is, as I have already pointed out, foreign to Courts of Law. Moreover Courts B of Law exist to decide disputes between parties, yet under the High Court of Parliament Act a Minister of State, although he is not a party to the dispute, and although the parties themselves may not wish to carry the matter any further, is compelled to bring on review a judgment of the Appellate Division declaring an Act of Parliament invalid. C Furthermore, as I have also pointed out above, the effect of a decision of the High Court of Parliament may be the same as legislation repealing the safeguards contained in sec. 152 of the Constitution, whereas a decision of a Court of Law has not that effect. D When, therefore, one looks at the substance of the matter, the so-called 'High Court of Parliament' is not a Court of Law but is simply Parliament functioning under another name. The mere fact that Act 35 of 1952 states that the High Court of Parliament may 'on any legal ground' 21