Introduction Do South African Constitutional Law

Introduction to South African
Constitutional Law
GRETCHEN CARPENTER
BA (Hons) (SA) LLB(Pret)
Associate Professor in the Faculty of Law University of South Africa

Advocate of the Supreme Court of South Africa
BUTTERWORTHS
DURBAN
1987
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Preface
There has, arguably, never been a worse time to write a textbook on South
African constitutional law: the constitutional and political situation is in a
state of flux, and it would take a brave man indeed to predict what the South
African Constitution will look like in ten (or even five) years’ time. On the
other hand, constitutional issues have, in recent times, attracted the interest
of student and layman alike to an almost unprecedented extent. Moreover,
there has been no full-length textbook written on this topic in English since
the early nineteen-fifties. It is therefore hoped that this book will meet the
long-felt need for an English-language textbook, at least for a while.
In an attempt to reconcile the needs of the present with the presumed needs
of the future, I have concentrated to a major extent on what I regard as
fundamental issues: the historical matrix to which South African
constitutional law owes such a great deal, even today; and those basic
principles of constitutional law which enjoy wide recognition and which, one
can only hope, will remain relevant in any future constitutional dispensation
adopted in South Africa. In writing the historical section I have drawn
extensively on the chapters I wrote for the third edition of VerLoren van
Themaat’s Staatsreg.
I have referred only to Basson and Viljoen’s Studentehandboek virdie Suid-
Afrikaanse Staatsreg and not to the updated version, which appeared in 1986,
because the greater part of my work had by then reached too advanced a
stage for the adaptation to be made. It is for the same reason that there is,
regrettably, no reference to A S Mathews’s recent work Freedom, State
Security and the Rule of Law, which I certainly would have used in the chapter
on the rule of law and fundamental rights.
Since this work is termed an introduction, it is clear that it is aimed
principally at students who have little or no knowledge of constitutional law.
As always, the problem arising in writing a book of this nature, relates, not
to what to put in, but to what to leave out; it is nevertheless hoped that the
more advanced student will also be able to find something of value in it,
and, at the same time, that the layman who is interested in constitutional
issues will find it worth consulting.
I wish to thank all my colleagues in the department of Constitutional and
Public International Law at the University of South Africa for their help
and encouragement. A particular word of thanks must, however, go to
Marinus Wiechers, to Margaret Beukes, who assisted with the compilation
of the index, and to Beryl Mentz, who patiently and efficiently typed the
greater part of the manuscript. My appreciation also goes to everyone at
Butterworths who had anything to do with the publication of this book; I
found them, without exception, most helpful and co-operative. Here, too,
I should like to make special mention of Gerhard Sonnekus, formerly of
Butterworths, who was involved in the preparation of the book almost to
the end.
GRETCHEN CARPENTER
Pretoria
September 1987
Contents
Page
Preface ...................................................................................................................... v
Selected Bibliography of Standard Works ................................................ xvii
PART A: BACKGROUND AND GENERAL PRINCIPLES

Chapter One Introduction ............................................................................. 3
I GENERAL ......................................................................................................... 3
II BASIC CONCEPTS AND DEFINITIONS .............................................. 3
1 ‘State’ ............................................................................................................ 3
2 ‘Government’ ............................................................................................... 5
3 ‘Administration’ ......................................................................................... 6
4 ‘The Republic of South Africa’ ............................................................ 7
5 ‘Constitutional Law’ ................................................................................ 7
6 ‘Constitution’ ............................................................................................. 8
7 ‘Democracy’ ................................................................................................ 12
8 ‘Unitary State’ ............................................................................................ 12
9 ‘Federation’ .................................................................................................. 13
10 ‘Confederation’ .......................................................................................... 13
11 ‘Consociational Democracy’ .................................................................... 14
Chapter Two The Sources of South African Constitutional Law
I GENERAL ......................................................................................................... 17
II STATUTE LAW .............................................................................................. 17
1 The Republic of South Africa Constitution Act 110
of 1983 ............................................................................................................ 17
2 Other South African Statutes ................................................................. 17
3 British Statutes ............................................................................................ 18
III COMMON LAW .............................................................................................. 18
IV CUSTOM ............................................................................................................ 25
V JUDICIAL PRECEDENT ............................................................................ 25
VI RESUME ............................................................................................................ 25
Chapter Three The Historical Development of South African
Constitutional Law up to 1910
A The Germanic Background to the British Parliamentary System 26
I INTRODUCTION ............................................................................................ 26
II THE ALLEGIANCE RELATIONSHIP ................................................... 27
III THE COMMUNITY RELATIONSHIP .................................................... 28
IV REPRESENTATION ....................................................................................... 28
B The Development of the Parliamentary System in England ... 29
I INTRODUCTION ............................................................................................. 29
II THE ANGLO-SAXON PERIOD ................................................................ 29
III THE NORMAN PERIOD ............................................................................. 30
xiii Contents
Page
IV FROM 1215 TO THE BEGINNING OF THE SEVENTEENTH
CENTURY ......................................................................................................... 32
V THE SEVENTEENTH CENTURY - AN ERA OF CONFLICT ... 36
VI THE PARLIAMENTARY SYSTEM AFTER 1700 - THE
DEVELOPMENT OF CABINET GOVERNMENT ............................... 43
VII THE DEVELOPMENT OF THE PARTY SYSTEM 48
VIII THE STRUGGLE BETWEEN THE HOUSE OF COMMONS AND
THE HOUSE OF LORDS ............................................................................. 50
C The role of the British Empire in the development of South
African Constitutional Law............................................................... 52
I THE EARLY PERIOD (1578-1603) ........................................................ 52
II THE STUART ERA (1603-1689) ............................................................ 52
III FROM THE GLORIOUS REVOLUTION TO THE AMERICAN WAR
OF INDEPENDENCE .................................................................................... 53
IV THE PERIOD AFTER 1783 ....................................................................... 54
V LORD DURHAM’S REPORT ................................................................... 55
XT THE DEVELOPMENT OF SELF-GOVERNMENT IN THE BRITISH
COLONIES ....................................................................................................... 56
VII THE COLONIAL LAWS VALIDITY ACT ........................................... 57
VIII CONSTITUTIONAL DEVELOPMENT IN SOUTH AFRICA UP TO
1910 ..................................................................................................................... 59
1 The Cape Colony ............................................................................. . ....... 59
2 The ‘Trekker’ States.................................................................................. 61
3 Natal ............................................................................................................. 62
4 The Orange Free State to 1900 ............................................................... 64
5 The South African Republic (Transvaal) to 1900 ............................. 67
6 The Orange River Colony and the Transvaal after 1900 ................ 72
Chapter Four The Westminster System of Government

I INTRODUCTION .......................................................................................... 74
II THE CHARACTERISTICS OF THE WESTMINSTER SYSTEM ... 75
III THE ADVANTAGES AND DISADVANTAGES OF THE
WESTMINSTER SYSTEM ............................................................................ 78
IV THE SOUTH AFRICAN CONSTITUTIONAL SYSTEM AS A
WESTMINSTER SYSTEM ............................................................................ 80
Chapter Five The Doctrine of the Rule of Law and the Protection of
Fundamental Individual Rights
I INTRODUCTION.......................................................................................... 83
II THE RULE-OF-LAW DOCTRINE AS IT DEVELOPED IN
ENGLAND ....................................................................................................... 84
III SOUTH AFRICAN APPROACHES TO THE RULE OF LAW AND
FUNDAMENTAL RIGHTS .......................................................................... 88
IV THE PROTECTION OF FUNDAMENTAL RIGHTS IN SOUTH
AFRICA ........................................................................................................... 100
1 Introduction ................................................................................................ 100
2 The Protection of Personal Liberty - Habeas Corpus and the
Interdictum de Hominc Libero Exhibendo .......................................... 101
Contents ix
Page
3 Common-law Protection of Other Fundamental Rights in South
Africa ............................................................................................................... 103
4 Curtailment of Fundamental Rights in South African Law ........... 105
(i) In times of martial law ..................................................................... 105
(ii) The Public Safety Act 3 of 1953 ................................................... 110
(iii) The Defence Act 44 of 1957 .......................................................... Ill
(iv) The Police Act 7 of 1958 ................................................................ 112
(v) Security legislation ............................................................................. 112
(a) Historical background ................................................................. 112
(b) The Internal Security Act 74 of 1982 ..................................... 114
V MINORITY OR GROUP RIGHTS ............................................................ 118
1 Introduction ................................................................................................... 118
2 The Development of the Concept of Group Rights........................... 120
3 The Protection of Group Rights in Individual States ...................... 121
4 The Theoretical Basis of the Concept of Group Rights .................. 122
5 Practical Implications of the Recognition of Minority or Group
Rights ............................................................................................................... 123
6 Conclusion ....................................................................................................... 124
VI THE PROTECTION OF FUNDAMENTAL RIGHTS: SYSTEMS AND
MECHANISMS .................................................................................................... 124
1 Introduction ................................................................................................... 124
2 Constitutionally Entrenched Bills of Rights ......................................... 125
3 Unentrenched Bills of Rights .................................................................... 129
4 An Ombudsman or Similar Official........................................................ 131
Chapter Six The Sovereignty of Parliament

I INTRODUCTION ............................................................................................. 133
II THE VARIOUS MEANINGS WHICH MAY BE ASSIGNED TO THE
TERM ‘SOVEREIGNTY’ ................................................................................. 133
III THE ORIGINS OF SOVEREIGNTY......................................................... 134
IV THE DEVELOPMENT OF THE DOCTRINE OF SOVEREIGNTY IN
ENGLISH LAW .................................................................................................. 137
V DEVELOPMENT IN SOUTH AFRICA UP TO 1961 ......................... 139
VI THE DOCTRINE OF PARLIAMENTARY SOVEREIGNTY IN
SOUTH AFRICA FROM 1961 TO 1984 .................................................... 147
VII THE DOCTRINE OF SOVEREIGNTY IN ENGLISH LAW TODAY 149
Chapter Seven The Doctrine of Separation of Powers

I INTRODUCTION .............................................................................................. 156
II THE APPLICATION OF THE DOCTRINE OF SEPARATION OF
POWERS IN PRACTICE ................................................................................ 158
1 Britain ................................................................................................................ 158
2 South Africa .................................................................................................... 159
3 The United States of America ................................................................... 159
III CONTEMPORARY PROBLEMS IN THIS FIELD ............................. 159
Chapter Eight Representation

I INTRODUCTION .............................................................................................. 162
II THE THEORETICAL BASIS OF REPRESENTATION ................... 164
x Contents
Page
III REPRESENTATION IN SOUTH AFRICA .......................................... 165
IV TERRITORIAL REPRESENTATION AND THE PARTY SYSTEM 166
V OTHER SYSTEMS OF REPRESENTATION ...................................... 168
Chapter Nine Prerogatives, Conventions and the Party System

A Prerogatives ........................................................................................ 171
I INTRODUCTION .............................................................. .....171
II PREROGATIVES IN ENGLISH LAW .................................................. 171
III THE MOST IMPORTANT PREROGATIVES .................................... 172
IV PREROGATIVES IN SOUTH AFRICAN LAW ................................ 174
1 In terms of the South Africa Act......................................................... 174
2 In terms of the Republic of South Africa Constitution Act 32
of 1961 ...................................................................................................... 174
3 In terms of the Republic of South Africa Constitution Act 110
of 1983 ...................................................................................................... 174
B Conventions ....................................................................................... 175
I THE NATURE AND PURPOSE OF CONVENTIONS ..................... 175
1 What are Conventions? ........................................................................... 175
2 Law and Convention .............................................................................. 175
3 The Purpose served by Conventions .................................................... 177
4 The Scope and Operation of Conventions ......................................... 177
5 How do Conventions become Established? ........................................ 179
II THE MOST IMPORTANT CONVENTIONS ....................................... 179
I Introduction ............................................................................................. 179
2 Conventions Relating to the Exercise of the Prerogative and the
Operation of the Cabinet System .......................................................... 180
3 Conventions Regulating Relations between Great Britain and the
Commonwealth ........................................................................................ 186
4 Conventions Governing Proceedings in Parliament and the Relations
between the Houses of Parliament ....................................................... 186
5 Conventions Governing the Operation of the Party System .......... 188
C The Party System.............................................................................. 188
I INTRODUCTION ....................................................................................... 188
II DEVELOPMENT OF THE PARTY SYSTEM IN BRITAIN .......... 188
III THE CHARACTERISTICS OF THE PARTY SYSTEM IN BRITAIN 189
IV THE PARTY SYSTEM IN SOUTH AFRICA ...................................... 190
PART B: THE HISTORICAL DEVELOPMENT OF SOUTH AFRICAN

CONSTITUTIONAL LAW FROM 1910 TO 1983
Chapter Ten General Constitutional Development in South Africa
from 1910-1983
I THE ACHIEVEMENT OF UNION ....................................................... 197
II FROM 1910 TO THE PASSING OF THE STATUTE OF
WESTMINSTER .......................................................................................... 199
I The General Characteristics of the South Africa Act .................... 199
2 The Constitutional Restrictions applicable to the Union in 1910 . 199
Contents xi
Page
3 Colonial and Imperial Conferences prior to 1914........................... 202
4 The First World War ............................................................................. 203
5 The Development of Autonomy in the Dominions between 1919
and 1926 ........................................................................................................ 204
6 The Imperial Conference of 1926 ........................................................ 205
7 The Conference of Experts, 1929 ........................................................ 207
8 The Imperial Conference of 1930 ........................................................ 209
III FROM 1931 TO 1961 ................................................................................... 210
1 The Statute of Westminster 1931 ......................................................... 210
2 The Effect of the Statute of Westminster......................................... 211
3 The Status Act .......................................................................................... 213
4 Entry into World War II ....................................................................... 214
5 The Appeal to the Privy Council ........................................................ 215
IV THE CREATION OF THE REPUBLIC OF SOUTH AFRICA ..... 216
1 The Referendum ........................................................................................ 216
2 South Africa leaves the Commonwealth ............................................ 217
3 The ‘New’ Commonwealth .................................................................... 217
V THE GENERAL CHARACTERISTICS OF THE REPUBLIC OF
SOUTH AFRICA CONSTITUTION ACT 32 OF 1961 ....................... 218
Chapter Eleven The Executive 1910 to 1983

I THE UNION EXECUTIVE ........................................................................ 220
1 The King ............................................. ....................................................... 220
2 The Governor-General ............................................................................ 221
3 The Executive Council ............................................................................ 222
4 The Cabinet ............................................................................................... 222
5 The State Departments ........................................................................... 223
II THE EXECUTIVE FROM 1961 TO 1983 ............................................... 223
1 Introduction ................................................................................................ 223
2 The State President .................................................................................. 223
3 The Vice State President......................................................................... 232
4 The Executive Council ............................................................................. 233
5 The President’s Council .......................................................................... 238-
Chapter Twelve The Legislature 1910 to 1983

I INTRODUCTION ........................................................................................... 240
II THE HEAD OF STATE .............................................................................. 240
1 The King ..................................................................................................... 240
2 The State President ................................................................................... 240
III THE SENATE ................................................................................................. 241
1 Composition .................................................................................................. 241
2 Qualifications ............................................................................................. 243
3 Procedure in the Senate ........................................................................... 244
4 Dissolution of the Senate ........................................................................ 244
IV THE HOUSE OF ASSEMBLY ................................................................... 245
1 Introduction .................................................................................................. 245
2 Composition ................................................................................................ 245
xii Contents
Page
3 Qualifications for Membership of the House of Assembly ......... 246
4 Tenure of Members............................................................................... 246
5 Officers and Office-bearers.................................................................. 246
6 Procedure in the House of Assembly................................................. 248
7 Powers and Privileges........................................................................... 248
8 Procedure in the Adoption of Legislation........................................ 248
9 Conflict between the Houses............................................................... 252
10 Elections ................................................................................................. 253
Chapter Thirteen The Judiciary 1910 to 1983
I THE ROLE OF THE JUDICIARY IN CONSTITUTIONAL LAW 256
II THE ORGANIZATION OF THE JUDICIARY IN SOUTH AFRICA 256
III THE APPOINTMENT, TENURE AND DISMISSAL OF JUDGES 257
IV PROTECTION OF JUDICIAL INDEPENDENCE ............................ 258
V THE RELATIONSHIP BETWEEN THE JUDICIARY AND THE
LEGISLATURE ............................................................................................ 258
1 Parliamentary Legislation and the Courts ........................................... 258
2 The Judiciary and the Executive........................................................ 269
PART C: SOUTH AFRICAN CONSTITUTIONAL LAW TODAY
Chapter Fourteen General Features of the Republic of South Africa

Constitution Act 110 of 1983
I INTRODUCTION - THE HISTORICAL BACKGROUND ............. 273
II THE DEVELOPMENTS LEADING TO THE ADOPTION OF THE
1983 CONSTITUTION ................................................................................ 274
III GENERAL FEATURES OF THE 1983 CONSTITUTION ............... 280
1 Autochthony............................................................................................. 280
2 Evolutionary Constitutional Law ....................................................... 282
3 The Flexibility of the Constitution..................................................... 283
4 No Higher Law...................................................................................... 283
5 Recognition of Conventions ................................................................. 284
6 Unitary and Federal Characteristics ................................................... 285
7 The Principle of Segmental Autonomy and the Dichotomy
between Own Affairs and General Affairs ......................................... 285
8 The Personality Principle .................................................................... 286
9 The Ethnic Basis of the Constitution................................................ 287
10 The Tricameral Parliament .................................................................. 287
11 Transition from a Parliamentary to a Presidential System? ........ 288
12 The Role of Political Parties............................................................... 289
13 Governmental Pluralism and Territorial Monism ........................... 290
14 Government by Grand Coalition ......................................................... 291
Chapter Fifteen The State President

I INTRODUCTION ......................................................................................... 293
II ELECTION, TERM OF OFFICE AND REMOVAL OF THE
STATE PRESIDENT ................................................................................... 294
1 Election ..................................................................................................... 294
2 Term of Office....................................................................................... 296
3 Removal from Office ........................................................................... 297
III ACTING STATE PRESIDENT............................................................... 299
Contents xiii
Page
IV THE STATE PRESIDENT’S ROLE IN THE LEGISLATIVE SPHERE 300

1 Introduction ................................................................................................ 300
2 Own Affairs and General Affairs ....................................................... 301
3 Assent to Legislation ............................................................................... 304
4 Reference of Legislation to President’s Council ............................. 304
5 The Power to Legislate by Proclamation.......................................... 304
6 Miscellaneous Powers Relating to the Legislature........................... 305
V THE STATE PRESIDENT’S EXECUTIVE ROLE ........................... 308
1 Prerogatives ................................................................................................. 308
2 Statutory Powers Exercised with the Co-operation of the Executive 310
3 Powers which the State President Exercises at his own Discretion 312
VI THE STATE PRESIDENT AND THE PRESIDENT’S COUNCIL 317
VII CONTROL OVER THE STATE PRESIDENT ..................................... 318
1 Introduction ................................................................................................ 318
2 Parliamentary Control ............................................................................ 319
3 Ministerial Control .................................................................................. 319
4 Judicial Control ....................................................................................... 320
VIII CONCLUSION .............................................................................................. 322
Chapter Sixteen The Executive
I INTRODUCTION ............................................................................................ 323
II THE CABINET................................................................................................ 323
III THE MINISTERS’ COUNCILS ............................................................... 326
IV DEPUTY MINISTERS ................................................................................ 327
V TRANSFER OF FUNCTIONS .................................................................. 328
VI CABINET COMMITTEES .......................................................................... 328
Chapter Seventeen The Legislature
I INTRODUCTION ............................................................................................ 330
II COMPOSITION OF PARLIAMENT ........................................................ 330
1 The House of Assembly ............................................................................ 331
2 The House of Representatives .............................................................. 331
3 The House of Delegates .......................................................................... 331
4 The Speaker of Parliament and the Chairmen of the Houses .... 332
III QUORUMS AND PROVISIONS AIMED AT
PREVENTING DEADLOCKS ..................................................................... 334
IV FRANCHISE AND QUALIFICATIONS ................................................. 334
V THE ELECTORAL SYSTEM - DELIMITATION ........................... 335
VI THE ELECTORAL PROCESS ................................................................... 336
1 Registration of Political Parties .............................................................. 336
2 Election Campaigns ................................................................................. 337
3 The Conduct of the Election .................................................................. 337
4 Election Petitions ..................................................................................... 339
VII THE LEGISLATIVE PROCESS ................................................................ 339
1 Introduction .................................................................................................. 339
2 Own-affairs Legislation ............................................................................ 339
xiv Contents
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3 General-affairs Legislation ................................................................... 340
4 Procedure in the Event of Conflict among the Houses ................. 343
VIII THE ROLE OF PARLIAMENTARY COMMITTEES UNDER
THE 1983 CONSTITUTION ...................................................................... 345
1 The Various Committees of the Tricameral Parliament ................. 345
2 The Part played by the Committees of the Tricameral Parliament 346
IX THE LEGAL FORCE OF ACTS OF PARLIAMENT ...................... 347
X AMENDMENT OF THE CONSTITUTION ........................................ 349
1 Introduction ............................................................................................. 349
2 The 1983 Constitution ......................................................................... 349
XI POWERS AND PRIVILEGES OF PARLIAMENT ............................ 353
Chapter Eighteen The Judiciary

I INTRODUCTION ......................................................................................... 356
II THE JUDICIARY UNDER THE 1983 CONSTITUTION ................. 356
1 Judicial Control over the State President............................................ 357
2 Judicial Control over the Legislative Process................................... 359
3 Judicial Control over the Executive................................................... 361
Chapter Nineteen The President’s Council

I INTRODUCTION: COMMISSIONS ........................................................ 363
II THE PRESIDENT’S COUNCIL ................................................................ 363
1 Composition of the Council ................................................................... 363
2 Qualifications and Tenure ................................................................... 364
3 Powers and Functions of the President’s Council.......................... 367
4 Constitutional Role of the President’s Council .............................. 371
Chapter Twenty Citizenship

I INTRODUCTION ......................................................................................... 372
II THE LEGAL BASIS OF CITIZENSHIP ................................................ 374
III HISTORICAL BACKGROUND .............................................................. 375
IV THE SOUTH AFRICAN CITIZENSHIP ACT 44 OF 1949 ............ 378
1 General ...................................................................................................... 378
2 Acquisition of South African Citizenship ........................................ 378
3 Loss of South African Citizenship ..................................................... 384
4 Resumption of South African Citizenship........................................ 387
5 Special Cases ......................................................................................... 389
V SPECIFIC RULES GOVERNING THE CITIZENSHIP OF
NON-WHITES .............................................................................................. 390
1 'Citizenship’ of Black Territories within South Africa .................... 390
2 The Naturalization of Non-Whilcs ....................................................... 392
VI MISCELLANEOUS TOPICS CONNECTED WITH CITIZENSHIP 393
I Entry to the Republic............................................................................. 393
2 Departure from the Republic ................................................................ 395
VII SUMMARY ................................................................................................. 398
Contents xv
Page
Chapter Twenty One Devolution and Deconcentration of Powers
I INTRODUCTION ........................................................................................... 400
II THE CONSTITUTIONAL DEVELOPMENT OF BLACK
TERRITORIES IN SOUTH AFRICA ....................................................... 402
1 Historical background ............................................................................. 402
2 The Black Authorities Act 68 of 1951 .................................................. 403
3 The Promotion of Black Self-government Act 46 of 1959 ........... 404
4 Self-government for Transkei ............................................................... 405
5 The National States Constitution Act 21 of 1971 ........................... 405
Responsible Government ......................................................................... 405
Self-government ........................................................................................ 406
(i) Territorial Authority Status ......................................................... 409
(ii) Responsible Government Status .................................................. 409
(iii) Self-governing Status ...................................................................... 409
(iv) Independent Status ......................................................................... 409
III FULLY INDEPENDENT BLACK STATES WHICH FORMERLY
FORMED PART OF THE REPUBLIC OF SOUTH AFRICA ......... 410
1 Introduction ................................................................................................ 410
2 Transkei ....................................................................................................... 410
Transkeian Constitution .......................................................................... 411
3 Bophuthatswana ....................................................................................... 412
The Constitution of Bophuthatswana .................................................. 412
4 Venda ......................................................................................................... 415
The Constitution of Venda ..................................................................... 415
5 Ciskei ........................................................................................................... 416
The Constitution of Ciskei ..................................................................... 416
IV THE CONSTITUTIONAL DEVELOPMENT OF SOUTH WEST
AFRICA/NAMIBIA ....................................................................................... 418
1 Introduction ................................................................................................ 418
2 The international Status of South West Africa ................................. 419
3 Constitutional Developments in the Territory after 1946 .............. 420
(a) The 1949 Constitution ..................................................................... 420
(b) The 1968 Constitution ..................................................................... 421
(c) Moves towards Independence ........................................................ 421
V PROVINCIAL GOVERNMENT ................................................................ 426
1 Introduction ................................................................................................ 426
2 Provincial Government prior to 1986 ................................................... 427
(i) The Administrator .......................................................................... 427
(ii) The Executive Committee .............................................................. 427
(iii) The Provincial Council .................................................................. 428
3 Provincial Government under the Provincial Government Act 69 of
1986 ................................................................................................................ 42S
Provincial Executives................................................................................. 430
The Legislative Authority......................................................................... 431
IV LOCAL AND REGIONAL GOVERNMENT........................................ 432
TABLE OF CASES ........................................................................................................ 435
TABLE OF STATUTES ............................................................................................... 442
INDEX ............................................................................................................................... 450
Selected Bibliography of
Standard Works
/ Basson DA and Viljoen HP, Studentehandboek vir die Suid-Afrikaanse
Staatsreg, Pretoria (1985).
Booysen H and Van Wyk DH, Die ’83-Grondwet, Juta, Cape Town (1984).
- De Smith SA, Constitutional and Administrative Law, (4 ed) Harry Street,
Penquin (1981).
Dicey AV, Introduction to the Law of the Constitution, (10 ed) MacMillan,
London (1965).
Jennings WI, The Law and the Constitution, (5 ed) London Press (1959).
Venter F, Die Staatsreg van Afsonderlike Ontwikkeling, Potchefstroom
University for Christian Higher Education (1981).
VerLoren van Themaat JP, Staatsreg, (3 ed by M Wiechers), Butterworths,
Durban (1981).
Wade ECS and Phillips G, Constitutional and Administrative Law (10 ed
by AW Bradley), Longmans, London (1985).
Wiechers M, Administrative Law, Butterworths, Durban (1985).
The following abbreviations are used for the legal journals listed below:
CILSA The Comparative and International Law Journal of Southern
Africa
LQR Law Quarterly Review
SAJHR South African Journal for Human Rights
SALJ South African Law Journal
THRHR Tydskrif vir Hedendaagse Romeins-Hollandse Reg
TRW Tydskrif vir Regswetenskap
TSAR Tydskrif vir die Suid-Afrikaanse Reg
xvii
Part A
Background and
General Principles
CHAPTER ONE
Introduction
I GENERAL
There are a number of concepts encountered in constitutional law which are
in such common use that their meaning is seldom questioned or analysed.
Terms such as ‘state’, ‘government’, ‘constitution’ and so on are bandied
about by constitutional lawyers and laymen alike, and it is therefore neces
sary to examine them more closely in order to arrive at a reasonably precise
definition of each.
In addition, there are certain basic concepts and ideas which are some
what more specialized, but need to be defined and elucidated at the outset,
so that what is said later on will be more readily understood.
II BASIC CONCEPTS AND DEFINITIONS

Words such as ‘state’, ‘government’, ‘public administration’, ‘national’ and
‘constitution’ are used not only by lawyers, politicians and administrators
but by the general public as well. As a result, there is a good deal of confu
sion and overlapping. For example, ‘Government Gazette’ is rendered in
Afrikaans as ‘Staatskoerant’; ‘public servants’ (previously referred to as ‘civil
servants’, terminology which is still in use in Britain) as ‘staatsamptenare’;
we also have national boards, government pensions, national states, public
safety and state security. A detailed study of these concepts and their termi
nology would probably be more appropriate in a work on political science
or jurisprudence, but some attention must be devoted to them for the sake
of clarity.
1 ‘State’
The concept of ‘the state’ as we understand it today, is of relatively recent
origin.1 Although ‘state’ is derived from the Latin word status, the concept
of ‘state’ was in Roman times rendered by civitas.2 Status initially referred
to a certain position in the community — the meaning it bears today. Status,
from which the words state, staat, stato, etat and estate evolved, underwent
a gradual change until it came to be associated with a particular territory
rather than with persons and the administration of their property. The idea
of the state as the seat of government was not established until the time of
Machiavelli,3 and the part played by those being governed only came into
the picture later. However, by the eighteenth century, the word ‘state’ was
being used in Britain in approximately the sense in which we use it today.
1 See L G Baxter ‘The State and other Basic Terms in Public Law’ 1982 THRHR 212
at 213; J P VerLoren van Themaat Staatsreg 3 ed by M Wiechers (1981) at 5.
2 Baxter op cit at 214 and 216.
3 See Baxter op cit at 217; VerLoren van Themaat ibid.
3
4 Introduction to South African Constitutional Law
There are many definitions of ‘state’, each emphasizing different aspects

of the concept. VerLoren van Themaat4 identifies five possible meanings of
‘state’:
(i) It may be used to signify the organized authority of the state; in other
words, the persons or bodies that are vested with authority. This is the sense
in which it is used in criminal prosecutions.
(ii) ‘State’ is sometimes used to refer to a particular geographical area. In
this sense it would, in the South African context, be synonymous with ‘The
Republic’.
(iii) The famous legal philosopher, Kelsen,5 sees the state as the realization
of the entire legal order. Law and state would then be in all material respects
synonymous.
(iv) The American jurist, Roscoe Pound,6 emphasizes the political indepen
dence of the state in his definition: “A state is a permanent political organi
sation, supreme within and independent of legal control without”; and again:
“The state is the whole of the political society in its corporate aspect.”
(v) Finally, American President Woodrow Wilson defined state as follows:
“A state is a people organised for law within a definite territory.”7 The
emphasis therefore falls on a national community living in a specific terri
tory subject to common legal rules applied by a definite authority.
Baxter8 adds two further meanings to the concept of a state:
(i) In South Africa, the collective wealth and liabilities of the sovereign
territory known as ‘The Republic of South Africa’ which are not privately
owned or owed; and
(ii) the conglomeration of organs, instruments and institutions whose com
mon purpose is the ‘management’ of the public affairs, in the public interest,
of the residents of the Republic, and also those of the Republic’s citizens
abroad in their relationship with the South African ‘government’.
The British authority, O Hood Phillips,9 defines ‘state’ as “an indepen
dent political society occupying a defined territory, the members of which
are united together for the purpose of resisting external force and the preser
vation of internal order”.
VerLoren van Themaat’s definition bears a resemblance to that of both
Woodrow Wilson and Hood Phillips: “Staat kan omskryf word as ’n regs-
persoon bestaande uit ’n gemeenskap van mense wat op ’n bepaalde grond-
gebied onder ’n bepaalde gesag en volgens gemeenskaplike reels lewe.”10 (A
state may be defined as a legal persona consisting of a community of people
4 Op cit at 5-6.
5 Famous for his theory about the grundnorm; the grundnorm of South African con
stitutional law will be discussed below at 142.
6 Outlines of Lectures on Jurisprudence 5 ed (1953) at 84-85.
7 Quoted in C F Strong Modern Political Constitutions (revised by M G Clarke) (1972)
at 5.
8 Op cit at 225-226.
9 Constitutional and Administrative Law 6 ed by O Hood Phillips and Paul Jackson
(1978) at 5.
10 Op cit at 7.
Introduction 5
living within a specific area under a definite authority in accordance with

commonly accepted rules.) He does not regard independence as an indispens
able element but nevertheless puts forward an alternative definition which
incorporates the requirement of political independence: “’n Staat is ’n deur
reg geordende gemeenskap wat horn uitstrek oor ’n bepaalde grondgebied
en wat ’n afsonderlike politieke eenheid vorm.”11 (A state is a community
governed by law, which occupies a specific geographical area and forms a
separate political entity.)
It is of interest that none of the other definitions mentions the legal per
sonality of the state. Until fairly recently, the idea that the state could be
a legal person was not considered in English law, because the King was
regarded as representing the state in his position as the holder of the kingly
However, it was held in Die Rege-
office (the so-called ‘corporation sole’).1213
ring van die Republiek van Suid-Afrika v Santam Versekeringsmaatskappy
Bpkxi that, in South Africa, the state does possess legal personality.
To sum up then, the concept of ‘the state’ would entail the following:
(i) A specific geographically defined territory; (ii) a community of people
who live within that territory; (iii) a legal order to which the community is
subject; (iv) an organized system of government which is able to uphold the
legal order; (v) a certain measure, at least, of separate political identity, if
not sovereign political status. In this sense the individual states which form
the United States of America, for example, would not qualify as ‘states’,
but the so-called ‘national states’, previously known as Black homelands,
within South Africa, could conceivably qualify even though they are ‘states
within states’.
2 ‘Government’
Baxter14 points out that the concept of ‘government’ (derived from guber-
naculuni) in fact predated that of ‘state’. However, ‘government’, like ‘state’,
has not always borne the meaning it bears today. Initially, ‘government’ did
not have the political connotation it has today, and was closely linked with
the judicial function of government: “All acts of government were in some
way justified as aspects of the application and interpretation of the law.”15
The political connotation gradually found its way into the idea of govern
ment, until ‘government’ came to be adopted as a general term covering all
the functions and organs of the state. Today we see ‘government’ as relating
primarily to the executive function and having a particular bearing on the
formation and implementation of policy; in other words, the government
is ‘the tangible machinery of the state’.16
11 Ibid.
12 VerLoren van Themaat op cit at 6.
13 1964 1 SA 546 (W).
14 Op cit at 215.
15 M J C Vile Constitutionalism and the Separation of Powers (1967) at 24, quoted by
Baxter loc cit.
16 Baxter op cit at 227.
6 Jiihodmiloii lu Soiiili Ahlvtiii t 'tHihllliilloiBil Law
b ‘gowninieiii' Nvnonvinons willi ‘Mtth’"/ Il Iihk bwn shown that the terms
are often iim<I iik If tlicv rth' Indeed eoleniihioiiH, 'I he problem may be fur
ther illtiMniicd hv l he wav lu whleh I he Nlnle Ik sued in the courts: the in
dividual seeking tediess eltes, nut ‘The Slide’, but the minister of the
government depailinenl eoneeined, Does I his mean, then, that the govern
ment also possesses legal peisonalily? Witchers17 contends that the govern
ment is not a constitutional entity: the stale is the legal persona and the
members of the government and government bodies are the organs of that
legal person. Hut he concedes that, in practice, the government of the Republic
has been recognized by the courts as an identifiable entity which can act in
the name of the stale and on its behalf.1819
In essence the state is the permanent juristic entity; the government is the
temporary bearer of the authority of state, the political representative of the
state at a particular time. The subject owes allegiance to the state, not to
the government; but because the government, as organ of the state, is clothed
with the authority of state, anyone who attempts to overthrow the govern
ment by unlawful means is deemed to be attempting to overthrow the state.
Thus even though ‘state’ and ‘government’ may be synonymous for all prac
tical purposes, in most cases it remains important to distinguish between the
two concepts in principle.
3 ‘Administration’
‘Administration’, according to Baxter,” is a notoriously ambiguous term.
Although, like ‘government’, it relates to the executive branch of the state,
it is not synonymous with government in all respects. One distinction that
may be helpful is to associate government with policy and administration
with the implementation of policy or with management of the affairs of
government. Another is based on the fact that constitutional law is concerned
primarily with government and administrative law with administration. Just
17 Administrative Law (1985) at 66.

18 D!e.SP°orb°ndj v Sou,h African Railways 1946 AD 999 and Die Regering van die
. epubhek van Suid-Afrika v SANTAM Versekeringsmaatskappy Bpk supra. That there
is a certain measure of confusion in this sphere is apparent from decisions such as
those in South African Railways v Kemp 1916 TPD 174 in which it was held that a
detendant could not raise against the South African Railways a counterclaim he had
against the Department of Defence, and Government of the Republic of South Africa
v overnment of KwaZulu 1983 1 SA 164 (A) in which the locus standi of the govern-
o a natl0na*state t0 act against the government of the Republic was recognized
e appellants contention that one organ of the state cannot sue the state (or the
government, another organ of the state) was rejected. However, in Natal Provincial
Administration v South African Railways and Harbours 1936 NPD 643, it was held,
mca y correctly perhaps, that one state department (the provincial administra-
on; cannot sue another (the railways administration). Criticism of the approach which
,S [ecognitlon to the corporate personality of the government (as opposed to
kh,^ J P VcrLorcn van Themaat ‘Die Wet op Staatsaanspreek-
S TtHuRdHuRd M Wiechcrs ‘Dic Regering van die Republiek ’n Regsper-
' , .' . . JHRHR 161; P J van R Henning ‘Oor die Begrip Diskresie in die
Adnumstratiefreg unpublished doctoral thesis UNISA 1967 at 99-101; J A van S d’Oliv
eira State Liability for the Wrongful Exercise of Discretionary Powers unpublished
doctoral thesis UNISA 1976 at 24-25.
19 Op cit at 234.
Introduction 7
as constitutional law in the broader sense includes administrative law, so too

government in the wider sense includes administration.20
4 ‘The Republic of South Africa’

‘The Republic’ is not identical to ‘the state’ in every respect but the terms
are often used inconsistently. Technically, ‘The Republic of South Africa’
is the name of the state and demarcates a certain territory, while ‘the state’
refers to the governmental aspect, the management of the Republic, or, on
occasion, to its property.21
5 ‘Constitutional Law’
‘Constitutional law’, which is rendered in Afrikaans by ‘staatsreg’, is de
fined by Hood Phillips as “the law relating to the constitution of that state”.22
‘Constitution’ will be discussed in greater detail at a later stage, but may
be defined, in the interim, as the body of fundamental principles according
to which a state is governed.23 VerLoren van Themaat,24 in turn, defines con
stitutional law as “die geheel van bindende reels wat betrekking het op die
verdeling of uitoefening van staatsgesag” (the aggregate of binding rules
which relate to the distribution or exercise of state authority).
These definitions say little about the scope of constitutional law, about
what it really ‘does’. Hood Phillips states, in this regard, that constitutional
law deals with the distribution and exercise of the functions of government
and the relations of the governmental authorities to one another and to the
individual citizen.25 To this VerLoren van Themaat adds that the relation
ship between the authorities and the subject (or the state and the subject)
rests, in this context, on a basis of inequality;26 in other words, the state is
in a position of authority vis-a-vis the individual. When the relationship be
tween state and subject is on a basis of equality it is governed, not by con
stitutional law, but by private law. More specifically, constitutional law
includes the rules governing the constitution of the legislature, the executive
and the judiciary; the powers, appointment and removal of the head of state;
the election, powers and privileges of the members of the legislature; the
position of ministers (executive) and judges (judiciary); citizenship; civil liber
ties and the protection of individual rights; in South Africa, the constitu
tional position of non-Whites; the relationship of the central government
to the provinces, local authorities and the governments of the national states.
Administrative law falls within the ambit of constitutional law in the wider
sense of the term; the two fields cannot be distinguished in character and
content, but the distinction is maintained largely for reasons of convenience.
Administrative law is not simply the law governing the executive function
of the state, leaving constitutional law to deal with the legislature and the
20 See Wiechers op cit at 6.

21 See Baxter op cit at 224-225.
22 Op cit at 3.
23 Concise Oxford Dictionary.
24 Op cit at 4.
25 Op cit at 10.
26 Loc cit.
8 Introduction to South Africa n Constitutional Law
judiciary; the distinction is drawn on traditional lines between, on the one

hand, the rules governing the organization, powers and actions of the supreme
executive organs (the State President and the Cabinet), the rules governing
relations between these organs and the supreme legislative and judicial organs
(Parliament and the judiciary) and relations at the highest level with foreign
governments and their representatives, and citizenship (all falling within the
scope of constitutional law) and, on the other hand, the rules governing the
organization, powers and actions of the administration, in so far as these
do not fall within the scope of the kind of executive action mentioned above
(administrative law).27
Another discipline which has close links with constitutional law, is that
of political science. The link is clearly illustrated by the Afrikaans termi
nology: ‘staatsreg’ and ‘staatsleer’. Both are concerned with the state; but
constitutional law relates to the law governing the way in which the state
is run, while political science is concerned with topics such as governmental
structures and the influences of social, psychological and economic factors
on government; in other words, the dynamic and static aspects of state,
government and politics.
6 'Constitution
*
‘Constitution
* was defined briefly above as ‘a body of fundamental prin
ciples according to which a state is governed
.
* Although virtually every state
in the world today has a written constitution, a document embodying the
fundamental constitutional principles by which the state is governed, there
are a few exceptions, Great Britain being the most notable. A reference to
the 'British Constitution’, therefore, does not mean a reference to one all-
embracing statute or even a single statutory instrument which is the major
source of that country’s constitutional law. The Afrikaans term ‘grondwet’
in fact relates to a written constitution and not to an unwritten body of rules.
Although ‘grondwet’ and ‘constitution’ are often treated as synonymous,
‘constitution’ bears a much wider meaning, and terms such as ‘unconstitu
tional’ and ‘constitutionalism’ derive from this wider meaning of ‘constitu
tion’. Government action may, for example, be unconstitutional without
being in conflict with the constitution (in the statutory sense) as such. This
distinction is of importance to South African constitutional law because, on
the one hand, we do have a written constitution which is the primary source
of our constitutional law (even though it is not the sole source) and, on the
other, the English constitutional tradition is firmly entrenched.
Written constitutions may assume a variety of forms and there are a num
ber of views about the character, role and functions of a constitution.28
The constitution as an expression of the will of the people

This idea is linked with the American and French Revolutions and main
tains the distinction between the constituent authority (the people) and the
27 See Wiechers op cit at 1-8.

28 The material for the rest of the discussion under this head has been taken largely from
M P Vorster’s contribution ‘Konstitusies’ in Politieke Alternatiewe vir Suider-Afrika:
Grondslae en Perspektiewe (cd Van Vuurcn & Krick) (1982) at 109-141.
Introduction 9
constituted authority (the government). Modern democratic theory has

developed various procedures and institutions from which the national con
sciousness or will of the people may be legitimately determined; for example,
a national convention which draws up a draft constitution or a referendum
(whether binding or not) whereby a draft constitution (no matter who is
responsible for the draft) is subject to the approval of the electorate.
The question of legitimacy is linked with this concept of a constitution,
and relates to the acceptance of the constitution by the people. Legitimacy
is a prominent issue in South Africa, owing to South Africa’s unique con
stitutional system, whereby, until recently, the white electorate has had the
final say in all constitutional issues. To a certain degree, legitimacy is inevit
ably an ideological question, but practical considerations are not altogether
excluded. Obviously a constitution which is rejected to such an extent that
it is rendered inoperative will lack legitimacy; but what about a constitution
that ‘works’ in practice even though it does not enjoy the general support
of the people?
The constitution as a consequence of the idea of constitutionalism

Like legitimacy, constitutionalism is a somewhat vague term with a
philosophical rather than a practical connotation. McIlwain29 sees constitu
tionalism as a method rather than a principle, a method of law as contrasted
with force or with will. It has also been described as ‘government by law’
or as ‘limited government’. It could also be said to embody fundamental
democratic principles, manifested in a constitution containing checks and
balances to prevent a concentration of power in one person. Limited govern
ment, which ensures the distribution of power, is seen as an effective guaran
tee of rights and liberties, a guarantee formally incorporated in a structured
form — the constitution.
The constitution in terms of constitutional reality

According to this view the true constitution is to be found in the power struc
tures and relationships within the state. Reality is given absolute status and
the normative aspect is relegated to the background. To a certain extent this
approach is recognized by British writers such as Griffith, who adopts a prag
matic rather than a philosophical approach: “The Constitution is no more
and no less than what happens.”30
The constitution as an all-embracing organizational embodiment of the sys

tem of government
Here the emphasis is on the organizational aspect — a rather narrow, for
mal approach.
The constitution as a continuous dialectical process

According to this approach the interpretation of the constitution is not merely
a mechanical action, but a creative process. It ties in to a certain extent with
the British (and South African) idea of evolutionary constitutional law. The
29 Constitutionalism and the Changing World (1939) at 290.

30 The Political Constitution 1979 MLR at 19, quoted by Vorster at 122.
constitution is not like a contract in private law which must be rigidly inter
preted and applied within a narrow framework — it can ‘grow’ to accom
modate the changing needs of the community it serves.
As mentioned above, constitutions may be classified in various ways,
material classifications having rather more to say than purely formal classi
fications. The following are some of the more important classifications of
constitutions:
Written and unwritten constitutions
Very few countries do not have written constitutions, whether contained in
a single document or in a series of statutes. Even Great Britain has a number
of highly important statutory constitutional sources.
Constitutions with superior status and constitutions having the same stand
ing as other statutes.
The South African Constitution is, just like any other law, subject to the
will of Parliament. There is no provision that the Constitution is supreme,
or that legislation which is in conflict with the Constitution is invalid. Con
stitutions embodying entrenched Bills of Rights usually do contain such pro
visions (for example, the Constitution of Bophuthatswana).
Flexible and inflexible constitutions
This classification is linked to some extent with the previous one. Flexible
constitutions do not, as a rule, enjoy superior status and if they contain a
Bill of Rights the Bill of Rights is not entrenched and its provisions may be
amended or repealed in the normal manner. Inflexible constitutions, on the
other hand, have to be amended or repealed by a special procedure, and enjoy
elevated status.
Federal and unitary constitutions
There are relatively few true federations in the world today, but there are
a number of states whose constitutions display federal characteristics. In a
nutshell, a federal constitution confers greater autonomy on the component
parts of the state, while a unitary constitution ensures that the central govern
ment retains the final say.
Parliamentary and presidential constitutions
Britain is said to have a parliamentary system of government and the United
States of America, for example, a presidential system. In a presidential sys
tem the head of the government is also the head of state, who is not a mem
ber of the legislature or responsible to it. In a parliamentary system the chief
executive or head of government is a member of the legislature and is respon
sible to it. Again there may be constitutions which do not fall entirely within
one or the other category.
Autochthonous and allochthonous constitutions
Autochthonous constitutions are said to be indigenous rather than ‘borrowed’
constitutions. The question is whether the autochthony relates to the con
tent of the constitution, its origin, the way in which it was adopted, or all
three.
Introduction 11
The British writer KC Wheare31 is responsible for the idea of autochthonous

constitutions in new and emergent states, of which there have been a great
many in the post-war era of decolonization. Whether autochthonous consti
tutions are ‘better’ than constitutions borrowed from countries in which they
have been shown to work satisfactorily is an interesting point, and the de
bate has arisen largely because the wholesale transplantation of Westmin
ster or quasi-Westminster constitutions into former British colonies obtaining
independence has given rise to a number of problems. The issue is of interest
not only to the Republic of South Africa, which is at present experiencing
a period of constitutional change, but also to the newly independent black
states which previously formed part of South Africa.
Wheare is concerned with the origin rather than the content of the consti
tutions or the means whereby the constitutions are brought into being. To
the British way of thinking a revolution or break in the ‘validity chain’ sig
nifies the absence of legitimacy, but it may well be asked if some such break
(albeit not necessarily accompanied by violence) is not essential, if a consti
tution is to be termed autochthonous at all.
Another writer, Robinson,32 likewise requires no break in the validity chain,
but merely a ‘national restatement’ - thus signifying a positive act of adop
tion which would presumably confer the required legitimacy on the consti
tution. Again the emphasis is on the source rather than the content of the
constitution.
The Nigerian authority B O Nwabueze33 requires a much stricter test. For
him the constitution must be truly indigenous, in regard to content as well.
The concept of the one-party state, so much in vogue in Africa at present,
would probably qualify as an autochthonous feature. On the other hand,
it would appear to be somewhat unwise to reject accepted and established
democratic principles simply because they are not indigenous.
Vorster holds the view that it is somewhat unrealistic to expect constitu
tions to result from a process akin to spontaneous combustion. Autochthony,
as far as he is concerned, does not require any specific break in the chain,
or formal indigenous content, or ‘new’ concepts: his main requirement is
that the constitution must enjoy material acceptance in the country concerned.
Perhaps the autochthony debate signifies little more than the idea that a
constitution should not be taken over lock, stock and barrel from another
country simply because it has proved satisfactory in that state but should
be tailor-made to suit the needs of the country concerned. Concepts which
are compatible with the constitutional consciousness and ideology of the
country may then be grafted onto its constitutional law to ensure a satisfac
tory end result.
31 The Constitutional Structure of the Commonwealth (1960), referred to by Vorster at

126 et seq.
32 K Robinson ‘Autochthony and the Transfer of Power’ in K Robinson & F Maddon
Essays in Imperial Government (1983), referred to by Vorster at 129.
33 Presidentialism in Commonwealth Africa C Hurst (1974), referred to by Vorster at
129. Perhaps the only truly autochthonous feature that can be said to have emerged
on the constitutional scene in recent years, if such a strict standard is applied, is the
phenomenon of the one-party state. Virtually every other constituent element of new
constitutions can be traced back to a common heritage.
7 ‘Democracy’
‘Democracy’ is yet another term which is bandied about at will, usually in
a political or ideological context.34 It is not an easy concept to define be
cause it has many faces, and people are inclined to define democracy to accord
with their own views and ideologies rather than to measure their ideologies
against some fixed criterion.
According to the Concise Oxford Dictionary democracy is “government
by all the people, direct or representative; a form of society ignoring heredi
tary class distinctions and tolerating minority views”. By this standard, South
Africa would fall short because not all citizens enjoy direct representation
in the government; the House of Lords would be contrary to democratic prin
ciples, as would one-party states, since a one-party state does not imply toler
ance of minorities.
But there are other concepts of democracy as well. A du P Louw,35 for
example, regards as the essence of a democratic system the fact that man
is at the centre of political activity while non-democratic systems have an
abstraction at the centre (such as the church, the state or the party).
Whatever formulation one uses, the crux of the matter is that democracy
implies that the people (the electorate) should have the final say in regard
to how they are to be governed. Concepts such as the rule of law, separation
of powers and limited government, are all factors contributing to the achieve
ment of this end result. The inimitable Dicey36 argued that parliamentary
sovereignty was not in conflict with the rule of law, for the very reason that
Parliament, as the direct representative of the people, is the protector of the
people’s interests; the fact that there are formal procedures which have to
be obeyed in the parliamentary process ensures that a balance is maintained
between the interests of the individual and the interests of the community
at large.
8 ‘Unitary State’37
The most important characteristic of a unitary state is the fact that the cen
tral government is supreme. The tendency is therefore clearly in favour of
centralization rather than decentralization, and where there is a measure of
decentralization the provinces or regions concerned will enjoy only a limited
degree of autonomy: they remain subordinate to the central government. The
degree of decentralization may vary considerably from one unitary state to
another.
A concept which has come to the fore strongly in recent years is that of
devolution. Devolution may be defined as a process whereby a centralized
government surrenders considerable legislative and executive powers to a
regional entity but without surrendering its ultimate sovereignty and without
converting to a federal rather than a unitary system of government.
34 See VerLoren van Themaat op cit at 38.

35 ‘Demokrasie’ in Politieke Alternatiewe vir Suider-Afrika at 95-101.
36 A V Dicey Introduction to the Study of the Law of the Constitution 10 ed (1973).
37 See VerLoren van Themaat op cit at 42; D J van Vuuren ‘Die Uniale Staatsvorm’ in
Politieke Alternatiewe vir Suider-Afrika at 142-166.
Introduction 13
9 ‘Federation’38
A federation is one of several kinds of composite states. There are relatively
few true federal systems in the world, but these are of major constitutional
importance: for example, the United States of America, Canada, the Federal
Republic of Germany, Switzerland, the Soviet Union and Australia.
Federation is a sophisticated form of government, mainly because it implies
the existence of two legal orders (the central and the federal) existing under
the same constitution and acting upon the same citizens. It further implies
a formal distribution of legislative and executive authority and of sources
of revenue between the two orders of government. For this a written consti
tution defining minutely the spheres of competence of the two orders of
government is essential, as is the institution of an arbiter to settle disputes B
between the central and the federal government in regard to their respective
powers and to interpret the constitution. Processes and institutions are also
necessary to facilitate communication and interaction between the central
and the federal government. J
t
The division of power in a federation may be achieved either by enume- |
rating the powers of the central government in the constitution and leaving ś
all residual powers in the hands of the regional or federal governments, or [
by defining the state governments’ powers specifically and leaving the rest ■
to the central government. .1
For the purposes of public international law, federations may be classi
fied into those which invariably act as a unit in the international sphere, and
those whose constituent parts retain some measure of autonomy, so that they
may enter into certain international treaties on their own.
10 ‘Confederation’39
A confederation is not the same thing as a federation. A confederation of
states implies an association of states which are fully sovereign in all respects,
joined together by a treaty or even a constitution, for the purposes of co
operation in matters of common concern, such as foreign affairs, defence
and trade. The central agency cannot be equated to the central government
in a federation, since it has no direct authority over the citizens of member
states.
States may be members of more than one confederation; for example, the
European Economic Community is geared to economic co-operation, the
North Atlantic Treaty Organization to defence and the Commonwealth of
Nations to the promotion, in general terms, of the welfare of states which
formerly formed part of the British Empire. Confederalism provides a form
of co-operation for sovereign independent states, and although a confedera
tion may present a united front in matters which form the subject of mem
ber nations’ agreement, the confederation is not a ‘state’ as such.
38 See VerLoren van Themaat op cit at 45-47 and the authorities cited by him in fn 63
and 64; D J Kriek ‘Federate Staatsvorme’ in Politieke Alternatiewe vir Suider-Afrika
at 167-189.
39 See VerLoren van Themaat op cit at 43-45 and at 47; D J Kriek ‘Konfederale samewer-
king’ in Politieke Alternatiewe vir Suider-Afrika at 190-208.
M Inrrudurr.ioi] to South African Constitutional Law
11 ‘Consociational Democracy’
i he concept of consociational democracy is based on the theory’ of Arend
Lijphart4'-1 and has attracted considerable attention in South Africa in recent
years because h is seen as a potential solution to the constitutional problems
of deeply divided ‘plural’ societies such as that in South Africa. According
to Lijphart, the consociation idea may be employed in both federal and uni
tary systems of government. The concept has had considerable influence on
South African constitutional thought, as is evidenced by the proposals put
forward by the constitutional council of the President’s Council prior to the
drafting of the Republic of South Africa Constitution Act 110 of 1983.
Lijphart enumerates four key characteristics of consociative democracy’:
(i) Government by a grand coalition of al! significant political leaders in the

community
Tms, the most important feature of a consociation, conflicts with the idea
held until now in South Africa, in imitation of the British or ‘Westminster’
system of government, that there should be a distinct dividing line between
government and opposition, and that the phenomenon of a coalition in fact
ccrsuuues an exception to the general rule. Lijphart contends that, in a deeply
divided heterogeneous community consisting of a number of minorities, as
many of the representative views of the different sectors as possible must
be drawn into government in order to achieve a broadly based consensus
among the members of the community. By affording all groups the oppor
tunity to participate in government and to accept responsibility for political
decisions and actions, there is, in his view, a better chance that conflicting
interests may be reconciled.
fii) The existence of a right of veto

Gr<mg aZ minorities a right of veto is, according to Venter, nothing but nega-
dve uuncrity government. This is one of the thorniest issues raised by the
promem o: heterogeneous societies: if the vote of the majority carries the
d^y, the minorities may be left out in the cold, but if all minority groups
have a veto, even the smallest, most insignificant group can hold all the rest
ramcm indefinitely. However, Lijphart feels that this difficulty is apparent
ramer man real since, largely for psychological reasons, the possession of
a ngm c: veto will encourage minorities to be co-operative rather than
ccstrumn-e because they feel secure.
-te a number of works on this topic. These and other writings on the sub-
in some detail by A J Venter in ‘Konsosiatiewe Demokrasie’ in
vir Suider-Afrika at 275-292. The most recent contribution in
vnm of L J Boulle South Africa and the Consociational Option (1984).
w crk (’The Consociational Alternative’) Boulle deals in some detail
a- of Li;;nart and other members of the ‘Consociational school’, and with
•—cn consociationalism has been implemented in various countries, some-
utu_y, sometimes less so. He also discusses consociationalism pertinently
: African context (ch 5) and analyses the 1983 Constitution (ch 8). In his
chapter, Boulle puts forw ard the view that “consociational democracy is
z ion for South Africa” (at 223) since South Africa lacks many of the favour-
oas for consociationalism.
Introduction 15
(iii) The principle of proportionality in representation, appointments, finan

cial matters and so on
The principle of proportionality is, like that of grand coalition, foreign to
the Westminster system of government with its winner-take-all formula based
on regional representation.
Proportionality is based essentially on the principle of a fair distribution
of power, representation or finance, in accordance with the numerical strength
of each group. However, this does not mean that problems cannot arise in
decision-making bodies; in all political situations there usually has to be a
winner and a loser, although the possibilities raised by compromises, ‘pack
age deals’ and the like could serve to minimize this.
(iv) A high degree of segmental autonomy for each segment or group in the
community where the management of its own affairs is concerned
The introduction of the concepts of ‘general affairs’ and ‘own affairs’ into
the South African Constitution owes its origin to this idea of segmental
autonomy. According to Lijphart the recognition of the right of each group
to manage those affairs which affect it and no other group, affords a powerful
stimulus to minority groups to participate constructively in the process of
democratic government. As will be shown later, the most important difficulty
that arises here is that it often proves well-nigh impossible to isolate a sig
nificant number of topics which can truly be said to concern one group and
one group only.
Lijphart has also identified a number of conditions which should be met
if a consociative democracy is to operate successfully:
(i) The leaders of the various groups should all have outstanding qualities
of leadership but at the same time be geared to co-operation rather than con
frontation; they should share broadly common aims and ideals, including
the retention of the existing political system, and they should be capable of
communicating effectively with the leaders of the other groups despite cul
tural and racial barriers.
(ii) Ideally, the various groups should be numerically of fairly equal strength;
if one group greatly outweighs another, problems are more likely to arise.
(iii) A multi-party system is the one best suited to consociative democracy.
(iv) Most successful consociations seem to occur in countries with small popu
lations and limited territory — perhaps because this facilitates communi
cation.
(v) The nature of the differences between the groups is important, particu
larly where the divisions are based on more than one factor (for example,
language, race and religion). The problem will be more acute where the groups
are divided by more than one factor — where differences of language and
religion, for example, doubly divide the nation.
(vi) There should be a common loyalty which transcends segmental barriers.
Unfortunately, however, segmental or group loyalties tend to take precedence
in divided societies.
(vii) A tradition of elite accommodation, in Lijphart’s view, is helpful but
not necessarily essential.
(viii) The presence of an external threat often serves to unite disparate fac
tions and to encourage groups to minimize differences.
Whether consociational democracy as postulated by Lijphart can provide
the answer to South Africa’s constitutional problems is a moot point. A num
ber of his ideas have been incorporated in the new Constitution, and only
time will tell whether they will prove successful. A number of European
political scientists have expressed reservations about and exposed weaknesses
in Lijphart’s reasoning. In essence they amount to this, that practical
experience has not proved him correct. For example, group leaders in divided
societies often try to reinforce their own position, resulting in wider schisms
rather than greater rapprochement. The difficulties which are foreseen in
regard to South Africa’s new Constitution, including those connected with
the consociational aspect of the Constitution, will be dealt with in the rele
vant chapters below.
CHAPTER TWO
The Sources of South African

Constitutional Law
I GENERAL
Many works on constitutional law either fail to deal with the question of
sources at all, or else dismiss it rather summarily. Virtually all spheres of
South African law have both Roman-Dutch and English-law origins and it
is therefore of importance both dogmatically and for practical reasons to
establish whether any particular aspect is governed by Roman-Dutch or by
English law.
II STATUTE LAW
1 The Republic of South Africa Constitution Act 110 of 1983

Although, as explained in Chapter 14,1 the Constitution Act is not an all-
embracing document containing all the rules governing the constitutional sys
tem in South Africa, it is nevertheless the most important single source of
our constitutional law, since it sets out the office of State President, the con
stitution and powers of Parliament, the executive and the judiciary. It is there
fore the primary source of information about South African constitutional
law.
2 Other South African Statutes

There are a vast number of statutes which are direct or indirect sources of
constitutional law. Among the most important of these are the Republic of
South Africa Constitution Act of 19612 which was not repealed in toto by
Act 110 of 1983; the South African Citizenship Act;3 the National States
Constitution Act;4 the various Status Acts recognizing the constitutional
independence of states which formerly formed part of South Africa;5 the
Black (Urban Areas) Consolidation Act;6 the Group Areas Act;7 the Popu
lation Registration Act;8 the Electoral Act;9 the Status Act;10 and so on. Even
this list is by no means exhaustive.
1 At 280-281.
2 Act 32 of 1961.
3 Act 44 of 1949.
4 Act 21 of 1971.
5 Status of Transkei Act 100 of 1976; Status of Bophuthatswana Act 89 of 1977; Status
of Venda Act 107 of 1979; Status of Ciskei Act 110 of 1981.
6 Act 25 of 1945.
7 Act 36 of 1966.
8 Act 30 of 1950.
9 Act 45 of 1979.
10 Act 69 of 1934.
17
3 British Statutes
There are a number of British statutes which have become part of South
African constitutional law and which have played a vital role in the constitu
tional development of South Africa. These are the Magna Carta (1215), the
Petition of Right (1628), the Bill of Rights (1688), the Act of Settlement
(1701), the Colonial Laws Validity Act (1865), the South Africa Act (1909)
and the Statute of Westminster (1931). The influence of these laws will be
discussed fully at a later stage.
Ill COMMON LAW

Even though there is a welter of statutory material governing South African
constitutional law, a considerable body of common law remains. Both
Roman-Dutch and English common law are of importance; the problem is
largely one of demarcation.
Until the Cape was first occupied by the British in 1795, the common law
was Roman-Dutch law, the law of the province of Holland.11 In constitu
tional law, as in other spheres of the law, therefore, Roman-Dutch law is
the applicable system of common law except in so far as it has been sup
planted by English law, either expressly or indirectly.
According to English law, English common law is the applicable law in
a settlement,12 but in a conquered territory the existing law remains intact
until it is altered by the conqueror.1314
This principle was expounded further
in Campbell v Hall,™ in which Mansfield J explained that if the King accepts
the capitulation of the conquered inhabitants, he receives the population
under his protection subject to such terms and conditions as he thinks proper.
More specifically:15
(i) a country conquered by British arms becomes a dominion of the King
and, as such, is subject to the British Parliament;
(ii) the inhabitants do not remain aliens, but become British subjects;
(iii) the law of the conquered territory applies to British citizens and con
quered subjects alike;
(iv) “the articles of capitulation upon which the country is surrendered . . .
are sacred and inviolable according to their true intent and meaning”;16
(v) the laws of the conquered country remain in force until they are altered
by the conqueror;
11 J C de Wet ‘Die Resepsie van die Romeins-Hollandse Reg in Suid-Afrika’ 1958 THRHR
84; W J Hosten, A B Edwards, C Nathan and F J Bosman Introduction to South African
Law and Legal Theory (1977) at 186.
12 J P VerLoren van Themaat Staatsreg 3 ed by M Wiechers (1981) at 56 fn 11.
13 Calvin’s Case (1608) 7 Coke’s Reports 1; 2 St Tr 559: “If a King comes to a kingdom by
conquest, he may at his pleasure alter and change the laws of that kingdom, but until
he doth make an alternation of those laws, the ancient laws of that kingdom remain.”
14 1774 1 Cowper 204.
15 See VerLoren van Themaat op cit at 54-55.
16 The Articles of Capitulation will be discussed in greater detail below.
The Sources of South African Constitutional Law 19
(vi) the King himself may alter the laws of a conquered country and introduce
new laws, but not in such a way as to detract from the authority of
Parliament.
As VerLoren van Themaat points out,17 a number of points emerge:
(a) The King himself could alter the law of the conquered country, whether
the latter recognized this or not.
(b) The King lost this power as soon as a legislative assembly was granted
to the conquered country.
(c) English law superseded the existing law wherever the latter contained rules
which were, by English standards, contra bones mores.
(d) The existing law fell away when it was clearly irreconcilable with the cur
rent situation.
(e) The inhabitants of the conquered country became subjects, and not aliens,
and were therefore entitled - ‘once under the King’s protection’ — to the
same privileges as British subjects. Precisely what this means in constitutional
law terms is not altogether clear, but it would appear that these ‘privileges’
include the protection conferred by the Magna Carta, Bill of Rights, Habeas
Corpus Acts and so on, which guaranteed personal liberty and rights of
physical integrity, life and property.
Once a colony had been granted a legislative assembly, it would seem to
follow a fortiori that the constitutional privileges mentioned above should
form part of the law of the conquered country.18 In this respect it may be
said that as far as such constitutional privileges are concerned, English con
stitutional law is grafted onto the law of the colony.
The interpretation to be given to the capitulation conditions is also rele
vant here. Article 8 of the Cape Articles of Capitulation of 18 January 1806
reads as follows: “The burghers and inhabitants shall preserve all their rights
and privileges which they have enjoyed hitherto.”19 The question is whether
these ‘privileges’ can be construed as a reference to the existing legal system.
It was in fact held in R v Harrison and Dryburgh-.20 “Among these privileges
the retention of their existing system of laws was undoubtedly included.”
A moment’s reflection makes it clear that this cannot be correct. It is hardly
likely that the British would have undertaken in such a roundabout way to
guarantee that the existing legal system in a colony would be retained per
manently. Since it has been established that the local inhabitants acquired
the same rights and privileges as British subjects (that is, privileges conferred
specifically by English law), the ‘existing privileges’ must be taken to refer
17 Op cit at 55-57.
18 Keir and Lawson Cases in Constitutional Law 3 ed (1948) go so far as to state, at
408: “Constitutionally it [such a colony] is in the same position as an English Settle
ment” — in other words, English common law supersedes the law of the conquered
country. This would conflict with a basic principle of English law, viz that the law
of the conquered country remains in force. However, there should be no reason why
special constitutional guarantees and privileges should not be incorporated into the
existing law of such a colony.
19 See Eybers Select Constitutional Documents at 16.
20 1922 AD 320 at 330 per Innes CJ.
to rights and privileges which the colonists enjoyed, not by virtue of English
law, but by virtue of the existing law of the colony. The legal system could
be altered without encroaching upon existing rights and privileges, and,
furthermore, the British Parliament could, by virtue of its legislative
supremacy or sovereignty,21 impinge upon such rights or even take them away
altogether without acting illegally (unconstitutionally, perhaps, because of
the notion that the rule of law will be adhered to).
It may well be asked, then, whether the Articles of Capitulation meant
anything at all. Though they were held, in Campbell v Hall, to be sacred
and inviolable, it was said in Cook v Sir James Gordon Sprigge22 that articles
of capitulation are nothing more than “a bargain which can be enforced by
sovereign against sovereign in the ordinary course of diplomatic pressure”.
The legal status of the Articles of Capitulation has never arisen directly before
our courts, (VerLoren van Themaat23 suggests that the decision in Binda v
Colonial Government2* was arguably in conflict with the articles in so far
as the colonists had, in Roman-Dutch law, the right to sue the government
ex delictu. It was held in the latter case that no such liability existed in our
law.)
(f) The conqueror did not succeed to any of the obligations incurred by
the conquered, although it could take them over for policy reasons.25
The conclusion is therefore that Roman-Dutch law was not automatically
superseded by English law, but could be supplanted either directly (by means
of legislation) or indirectly (by the gradual introduction of English-law
principles and customs by the courts, in particular).
However, this still leaves the main question unanswered: just how much
of our constitutional law is English law and how much Roman-Dutch law?
Because the Cape (and in time, Natal, the Orange Free State and Transvaal
as well) came under the authority of the British monarch and the British
Parliament, it followed logically that the English legal rules relating to the
process of government would be transplanted almost in their entirety. This
is precisely what did happen: the South African parliamentary system, the
concept of ministerial responsibility, the conventions of the constitution and
the party system were all taken over from Britain, and doctrines such as the
1 rule of law and separation of powers have also found their way into our law.
I In a word, the Westminster system of government was introduced into South
I Africa.26
However, there are certain ‘grey’ areas, in which both English and Roman-
Dutch law may be said to have retained footholds. These relate mainly to
the relationship between the state and the subject, and the sphere of applica
tion of the so-called royal prerogatives.
21 See the discussion of sovereignty in ch 6.

22 1899 AC 572.
23 Op cit at 66.
24 (1887) 5 SC 284.
25 Postmaster-General v Taute 1905 TS 582 at 586, approved in Shingler v Union Govern
ment (Minister of Mines) 1925 AD 556.
26 What the concept of the Westminster system means will be discussed in the following
chapter. The extent to which the new Constitution Act (110 of 1983) constitutes a depar
ture from our British constitutional heritage will be examined in ch 14.
_________________ The Sources of South African Constitution^
There is some authority for the view that Roman-Dutch ——

relationship between state and subject.2728
The case law on this ^verns the
clear. In Binda v Colonial Government23 the rule of English kînt is not
Crown is not liable in delict to its subjects was applied; in Sachs
* that the
the royal prerogative to issue passports was recognized; in Monges29
English rules of electoral law were applied; but Roman-Dutch pri^ v Sebe30
ting to sedition were applied in S v 7w/a;31 the Roman-Dutch ^lples rela-
interdictum de homine libero exhibendo was accorded recognition emedy of
the habeas corpus of English law in Wood v Ondangwa Tribal Alongside
In Bozzoli v Station Commander John Vorster Square JohannesbUr^r.ity’3233
even said that the habeas corpus action should be more properly te^ 1
interdictum de homine libero exhibendo-, this is not correct, sino« x e
actions are not identical.34
It is not altogether clear which of the royal prerogatives found their way
into South African law. A prerogative may be defined in broad terms as a
discretionary power exercised by someone in a position of authority. The
royal prerogatives in English law were originally discretionary powers
exercised by the King, as their name indicates; but, because of the operation
of convention,35 these powers are now exercised on the advice of the execu
tive. In terms of section 6(3) and (4) of the Constitution Act36 the State Presi
dent, like his predecessor under the 1961 Act, possesses all the prerogatives
possessed by the British monarch prior to 1961. Apart from this general pro
vision, there are a number of prerogatives specifically mentioned in section
6. However, not all the royal prerogatives apply automatically in South
Africa. For example, the Cape colonists had certain rights and privileges
which were excluded by prerogative in Britain; the question would then be
whether the prerogative operated to exclude such privileges in the colony as
well. As explained above,37 the Articles of Capitulation provided that the
colonists were to retain all existing rights and privileges; it may therefore
be argued that such privileges would not be automatically excluded by
prerogative.
Various attempts have been made to distinguish between prerogatives which
apply only in Britain and prerogatives which apply elsewhere as well. The
British author, AB Keith,38 suggested that these royal prerogatives which are
not essentially bound up with sovereignty will not necessarily apply in the
colonies, but this does not provide a cut-and-dried solution. Nor is it clear
27 See VerLoren van Themaat op cit at 52, and cf the authors quoted in fn 1 and 2.
28 Supra.
29 1950 2 SA 265 (A).
30 1975 4 SA 413 (E).
31 1979 3 SA 864 (T).
32 1975 2 SA 294 (A).
33 1972 3 SA 934 (W).
34 The protection afforded by these actions will be discussed below at 101 et sea
35 The development and operation of conventions will be discussed below at 175 et sea
and the exercise of executive power in chs 11, 15 and 16.
36 110 of 1983.
37 At 19.
38 The Constitution, Administration and Laws of the Empire at 9.
whether recourse should be had to English or Roman-Dutch law to decide

which prerogatives apply in our law. In the Canadian case of Donegani v
Donegan?9 it was held that, although it is English law which determines,
in a colony, who is an alien, the question, which royal prerogatives are
applicable to aliens, is a matter to be determined by the law of the colony.
On the other hand, it was held in Sammut v Strickland
* 0 that “the question
as to the extent of the Royal prerogative in the case under consideration is
a pure question of English law”.
This matter has arisen repeatedly before the South African courts and the
approach adopted is by no means consistent. In Municipality of French Hoek
v Hugo
* 1 De Villiers C J, relying on Roman-Dutch law and without even refer
ring to English law, held that the English rule nullum tempus occurrit regi
(that prescription does not run against the Crown) does not apply in South
*
Africa. In Binda v Colonial Government, 2 however, the same judge held,
in regard to whether the colonial government, as the representative of the
Crown, could be liable ex delicto for the negligent act of an official:
I have not, however, found it necessary to enter into a thorough investigation of
the Roman and Dutch laws on the subject, because the legal relations subsisting
between the government and its officials must, to a great extent, depend upon
the law of England.39
4344
42
41
40
De Villiers CJ apparently overlooked the fact that he was dealing with a
prerogative in both cases. In Sachs v **
Donges Centlivres J A held that
the Royal Prerogative is as extensive in the Union as in England, except in so far
as it has in either country been duly modified or abandoned. Consequently in en
quiring into the scope of the Royal Prerogative one must have regard to English
and not Roman-Dutch authorities.
Admittedly his was a minority judgment.
How, then, is one to decide whether to turn to Roman-Dutch law or to
English law when determining the extent of a prerogative? Keith’s distinc
tion between “political rights of the Crown” (which would presumably be
decided by English law) and “minor rights of the Crown which are not essen
tially bound up with sovereignty” (which would be decided by Roman-Dutch
law) does provide a fairly useful guide, since it reflects, to some extent, the
distinction between the relationship head of state — subject, which is based
on the allegiance principle, and is therefore governed by English law, and
the relationship between the state and the subject which is recognized, in some
quarters at any rate, as being governed by Roman-Dutch law.45
The position in regard to the extent of the royal prerogative has, to a large
extent, crystallized in the case law. Most of the powers which stem from the
39 3 Knapp 63; 12 ER 571, an appeal from Lower Canada to the Privy Council in 1834.
40 1938 AC 67 at 69.
41 1883 2 Juta 230.
42 Supra.
43 At 290.
44 At 288.
45 See L I Coertze ‘Watter Regsisteem Beheers die Verhouding tussen Owerheid en
Onderdaan in die Unie, Romeins-Hollandse Reg of Engelse Reg?’ 1937 THRHR 34;
L C Steyn Die Aanspreeklikheid van die Staat vir die Onregmatige Dade van sy Die-
nare unpublished doctoral thesis US 1927; J A van S d’Oliveira State Liability for
the Wrongful Exercise of Discretionary Powers unpublished doctoral thesis UNISA
1976.
allegiance relationship, and entail the exercise of authority, are indeed

governed by English law: these include declarations of war, the signing of
peace treaties, foreign relations, the conferment of honorary titles, the con
vening, proroguing and dissolution of Parliament and the supreme command
of the Defence Force. The State President’s position in these matters is now
governed by section 6 of the Constitution Act, but remains virtually as it
was before the commencement of the 1983 Constitution. In this particular
respect the new Constitution is as much ‘pure Westminster’ as the 1961 Con
stitution and the South Africa Act.
The prerogatives that do not relate directly to the exercise of authority
derived from the allegiance relationship must, according to VerLoren van
Themaat,46 be determined in accordance with Roman-Dutch law. These in
clude private and procedural privileges accruing to the Crown and powers
originally derived from the King’s position as a feudal overlord.
The following prerogatives are, according to our case law, determined with
reference to Roman-Dutch law:
(i) The rule nullum tempus occurrit regi (prescription does not run against
the Crown). As mentioned above4748 this was the view taken in Municipality
of French Hoek v Hugo. However, the rule was correctly seen as relating
to a prerogative for the first time in Union Government (Minister of Lands)
**
v Whittaker by Innes C J, who attempted to distinguish between cases where
“the rights of the State, with regard to the acquisition, alienation and dis
position of property” are involved, and cases relating to “its constitutional
position in regard to matters of government”. VerLoren van Themaat,49
however, is of the opinion that the implication of this view is rather too nar
row, since the nullum tempus rule does not arise only where the head of state
acts in a private-law capacity.
(ii) The question whether the Crown is entitled to bona vacantia has always
been determined with reference to Roman-Dutch law.50
(iii) According to VerLoren van Themaat,51 the Crown has never been
deemed to be entitled to all gold and silver mines.
(iv) In accordance with Roman-Dutch law, the state is regarded as the owner
of the seabed and the bed of navigable water.52 In terms of the Sea-shore
Act53 the State President is the owner of the sea-shore.
46 Op cit at 64.
47 At 22-
48 1916 AD 194. Also see Consolidated Diamond Mines of SPK4 Ltd v Administrator
SWA 1958 4 SA 572 (A) at 630; Stadsraad van Pretoria v Van Wyk 1973 2 SA 779
(A) at 783.
49 Op cit at 61.
50 See Steyn op cit at 14 and the following cases: Ex parte Leeuw 1905 SC 340; Ex parte
Sprawson (in re Hebron Diamond Mining Syndicate Ltd) 1914 TPD 458; Ex parte
The Government 1914 TPD 596; Ex parte Montrose Exploration Co Ltd 1918 TPD
179; Ex parte Auckland Park Racing Club Ltd 1918 TPD 37; Ex parte Pillay and Sons
Ltd 1951 1 SA 229 (T); Re Azoff-Don Commercial Bank (1954) 1 All ER 947 (Ch D).
51 Op cit at 61.
52 See VerLoren van Themaat op cit at 62 fn 35 and the authority cited there.
53 Act 21 of 1935.
(v) The state’s power to expropriate property has repeatedly been dealt with
in accordance with Roman-Dutch law, without reference to English law.54
(vi) The question whether the state automatically enjoys preference to other
creditors has never arisen pertinently before our courts. In all probability
such a prerogative will not be recognized, particularly in view of the fact
that it has been decided in a number of cases that it does not exist in Canada.55
(vii) The rule that the state can neither claim costs nor be obliged to pay
the costs of an action has never been recognized in South Africa,5657 in spite
of the judgment in Binda v Colonial Government,51 which precluded the sub
ject from suing the state ex delicto until the matter was rectified by the legis
lature.58
(viii) In Britain the custody of the person and property of minors is a mat
ter of royal prerogative, but in South Africa it has always been treated in
accordance with Roman-Dutch law.59
(ix) The prerogative of the Crown to dismiss its servants without notice of
dismissal having to be given was not received in South Africa.60
(x) In Britain the monarch is the owner of all treasure trove which is found.
The question has not arisen whether this prerogative exists in South Africa,
but it appears unlikely that it would be recognized if one considers analo
gous issues which are governed by Roman-Dutch law such as bona vacantia.
(xi) Certain crimes such as high treason, sedition, and so on, which involve
matters of prerogative in Britain, are determined with reference to Roman-
despite one Privy Council judgment to the contrary, De Jager
Dutch law,6162
v Attorney-General of Natal.52 (It is an interesting question whether the
54 See Steyn op cit at 19; The Cape Divisional Council v The Colonial Government 1903
SC 87; Van Marseveen v Union Government (Minister of Lands) 1918 AD 200 at 213;
but see A Gildenhuys Onteieningsreg (1976) at 41 and Joyce and McGregor Ltd v Cape
Provincial Administration 1946 AD 658 at 671.
55 In re Henley & Co 1878 9 Ch 409; New South Wales Taxation Commissioners v Palmer
1907 AC 179; In re Webb and Co Ltd 1921 2 Ch 276.
56 See the old cases of In re Insolvent Estate of Buissinne, Van der Byl and Meyer v
Sequestrator and Attorney-General 1828 1 Menz 318 and Central Judicial Commis
sion v Fass & Co 1903 TS 825 at 830; also Steyn op cit 20.
57 Supra.
58 The State Liability Act 1 of 1910, now Act 20 of 1957.
59 For example, venia aetatis and the emancipation of minors are firmly established prin
ciples of Roman-Dutch law. See VerLoren van Themaat op cit at 62; Steyn op cit at
14: In re Cachet 8 CTR 9; Ex parte Moolman 1903 TS 159 at 162 (“Now we are bound
to follow the law of Holland”).
60 Nicol v Lawrie 1950 3 SA 151 (A); Hepner v Roodepoort-Maraisburg Town Council
1962 4 SA 772 (A); Minister van Landbou v Venter 1975 3 SA 59 (A); also see B Beinart
‘The Legal Relationship between the Government and its Employees’ 1955 SA Law
Review 21; J Labuschagne ’n Administratiefregtelike Ondersoek na die Regsaard van
die Openbare Diensverhouding unpublished LLM dissertation UNISA 1975.
61 See Coertze op cit at 34 and 40; P M A Hunt South African Criminal Law and Proce
dure II (1970) at 4; C R Snyman Criminal Law (1983) at 263-266; C R Snyman ‘Sedi
tion Revived’ 1980 SALJ14; and the cases of R v Roux 1936 AD 271, S v Twala 1979
3 SA 864 (T).
62 1907 AC 326. Uncertainty was expressed in R v Botha 1 Searle 149, but in recent times
the authorities have been unanimous.
common-law crime of crimen laesae majestatis will survive under the new
constitutional dispensation in South Africa, since the State President is no
longer a symbolic figure-head only but a political leader as well, and the statu
tory equivalent of crimen laesae majestatis has been removed from the Con
stitution.)63
IV CUSTOM
Custom has been an important source of English constitutional law. The rules
governing royal prerogative, parliamentary privilege and, above all, conven
tions, all have their origin in custom. However, all these (even conventions,
according to some authorities) may now be regarded as part of the common
law. It is doubtful whether there are any customary constitutional laws still
awaiting judicial recognition or legislative endorsement, but the possibility
that new customs may evolve is, of course, not excluded.
V JUDICIAL PRECEDENT
Judicial precedent is a source of all branches of the law, constitutional law
included. Both English and South African cases have made a significant con
tribution to the development of our constitutional law. Among the leading
cases on constitutional law are Calvin’s Case, Campbell v Hall, the two Harris
cases, Ndlwana v Hofmeyr, Sachs v Dbnges and Wood v Ondangwa Tribal
Authority.64
VI RESUME
1 Statute law is the primary source of South African constitutional law, but
there are many areas in which common law still plays an important part.
2 The common-law rules of South African constitutional law are for the most
part of English origin; the new Constitution Act, which was intended to be
a departure from the British or ‘Westminster’ system of government, is still
based largely on the Westminster model.
3 Roman-Dutch common law has not been supplanted by English law
altogether: not all the royal prerogatives have found their way into our law,
and the relationship between state and subject is still governed to a marked
extent by Roman-Dutch law.
63 Section 13 of the 1961 Constitution Act.

64 All these cases will be specifically dealt with elsewhere in this work.
CHAPTER THREE
The Historical Development of

South African Constitutional
Law up to 1910
A The Germanic Background to the British Parliamentary

System
I INTRODUCTION
The system of government adopted by the Union of South Africa was, with
a few adaptations and variations, the so-called Westminster system.1 The
British system was familiar to the English-speaking colonists in both the Cape
Colony and Natal, and not altogether foreign to the inhabitants of the former
Boer Republics, since there were a number of concepts common both to the
British system and to the systems adopted in the South African Republic and
the Republic of the Orange Free State.2
One of the most important characteristics (if not the most important of
all) of the Westminster system is its evolutionary character. It is a system
which has been developing for well-nigh a thousand years and which achieved
its present character only in the last hundred years or so.
Before the outbreak of the First World War the Germanic origins of the
British parliamentary system were generally recognized by both English and
German constitutional historians.3 After the Second World War, in particu
lar, there was a tendency to disregard the importance of the Germanic in
fluences.4 However, there is no doubt that the English and Continental
systems of government have certain common origins. A brief examination
of the Germanic background is therefore necessary.
1 The characteristics of the Westminster system are dealt with in greater detail in ch 4.
2 See J P VerLoren van Themaat Staatsreg 3 ed (1981) at 70; J P VerLoren van Themaat
‘Die Regstelsel en Staatsregtelike Instellings van die Oranje-Vrystaatse Republiek’ 1954
THRHR 1 en 2; L M Thompson ‘Constitutionalism in the South African Republics’
1954 SA Law Review 50.
3 See VerLoren van Themaat op cit at 71; F Pollock & F W Maitland The Constitution
al History of English Law (1910); W B Stubbs The Constitutional History of England
6 ed; Rudolf van Gneist The History of the English Constitution 189; Julius Hatschek
Englisches Staatsrecht (1913).
4 See T P Taswell-Langmead English Constitutional History 11 ed by T F T Plucknett
(1960); J E A Jolliffe The Constitutional History of Medieval England 4 ed (1961);
W M van der Westhuizen 1957 THRHR 71-74.
26
The Historical Development in South Africa up to 1910 27
The Germans regarded the law as supreme and immutable. They had no
concept of a legislature which was competent to change the law: the law could
only be found — in England this took place in the form of dooms (judg
ments) given by the witenagemot (the council of the King’s wise men) or by
the folk-moot (the assembly of the people.)5 These findings were regarded
as declaratory: they did not create law for the future.
The Germanic concept of state or government authority was somewhat
vague. Although the law was regarded as supreme, the individual was ex
pected to take the law into his own hands in order to redress any wrongs
he may have suffered.6 It cannot be said that there was any legal order as
such, except perhaps within the family group, within which the paterfamilias
exercised wide — virtually unrestricted — powers. Families grouped together
to form clans, which in turn (usually with other families related to them by
blood) grouped together to form the tribe. Tribal organization was loose and
informal, and the autonomy of the family group was not really affected ex
cept in times of war.7
The rule that the individual could take the law into his own hands was
suspended only in respect of the various forms of peace that reigned: the
peace of the household precluded the members of the family from making
war on one another; in time of war the leader’s peace made it unlawful for
members of the same army to attack one another; and those who were on
their way to or from the folk-moot, or attending the moot, were bound by
the peace of that assembly. Anyone who was guilty of a breach of this peace
could be outlawed by a finding of the folk-moot.8
In time certain legal relationships developed from these customs and usages,
notably the allegiance relationship and the community relationship. This led
to the creation of a legal order based on the concept of state authority.
II THE ALLEGIANCE RELATIONSHIP

The allegiance idea developed from the absolute power which the pater
familias wielded within the family. Initially only immediate family members
were involved, but in time outsiders were drawn in: they could join the family
by swearing an oath of allegiance which brought them under the authority
of the paterfamilias. The liegeman, as the subordinate member was called,
undertook to support the paterfamilias or liege lord in time of war and to
perform certain duties in peacetime. In return the liege lord’s duty was to
protect his liegemen and to accept them as members of his family.
Initially the allegiance relationship was not a permanent one; it could be
terminated at any time, except when the liege lord was in danger and was
entitled to rely on the support of his liegemen. In time, however, the rela
tionship did become permanent. The liegeman or vassal now owed the liege
5 Jolliffe op cit at 26, 28; Haskins The Growth of English Representative Government
(1948) at 101.
6 Stubbs op cit I 13, 29; Taswell-Langmead op cit 5, 16.
8 VerLoren van Themaat op cit at 72, fn 13.
allegiance for life. This was the origin of the feudal system, a form of govern
ment based on the relationship between the vassal and the feudal lord, revolv
ing around the holding of a certain area of land by the feudal lord. The feudal
system was to play a far more important role in England than on the Conti
nent of Europe. The relationship of allegiance between liege lord and liege
man formed the basis of the relationship between the King and the people
and, ultimately, the relationship between the State President and the citizens
of South Africa.9
Ill THE COMMUNITY RELATIONSHIP

The community relationship developed alongside of the allegiance relation
ship, despite the fact that the two concepts appear to serve altogether differ
ent ends and to be based on different premisses. Members of the communities
conducted their affairs on a basis of equality, while the allegiance relation
ship was based on inequality.
The communities which gave rise to the community relationship arose as
a result of the need for persons or groups having common interests to form
associations for their own benefit. The medieval guilds formed by crafts
men are examples of such communities.10 Once again the communities played
a more important role in England, where they were not suppressed, than on
the Continent, where they were regarded with disfavour.11
The most important contribution made by the communities was that the
members developed the concept of gekoren recht or chosen law.12 The idea
that members of a community could agree to create new rules for the com
munity to which the members of the community would be bound, was
unknown in the allegiance relationship, where the principle applied that the
law was immutable and could be found, but not changed. Like the allegi
ance relationship, however, the community relationship was able to achieve
peace within the community (by means of a system of fines, determined by
the community, imposed on any member who transgressed). The communi
ties also protected their members against attacks from outsiders.
The community idea was also responsible for the concept of taxation: the
members voluntarily agreed to make certain contributions to be used for the
common good.
The principles of both allegiance and community law survived and con
tinued to exist side by side, but never became fully integrated. Both made
an important contribution to the development of the English parliamentary
system.
IV REPRESENTATION
Regional representation is a cardinal feature of the Westminster system.13
The idea that one man could represent a number of others and even vote
9 The growth of the English monarchy and the part it played in the development of
the parliamentary system will be discussed below at 29 et seq.
10 See Jolliffe op cit at 319.
11 Hatschek op cit at 35.
12 H VerLoren van Themaat ‘Gekoren Reg’ 1941 THRHR 178.
13 See below at 75.
on their behalf was unknown to the ancient Greeks and Romans and deve
loped in England only by the purest chance. Because the local population
was continually at war with invading tribes, it was too risky for all adult
males to be absent from home to attend meetings of the folk-moot. Some
one had to stay behind to protect their families, land and possessions. In
time, too, the population growth made it impractical for everyone to attend
the meetings. The logical development was that one representative (dooms-
man) should be delegated to act on behalf of everyone who lived on one par
ticular piece of land.
B The Development of the Parliamentary System in

England
I INTRODUCTION
The word ‘Parliament’ is derived from the Frenchparler (to speak). Initially
it referred to any kind of discussion, but later became confined to a discus
sion of a serious nature and later still to the deliberations of the supreme
council of the King.14
II THE ANGLO-SAXON PERIOD

The Anglo-Saxon kings, from Ecgberht (800-836) to Aethelstan (924-941)
were still typical Germanic overlords who had little direct contact with their
subjects.15 During the reign of King Aethelstan the conquered Danes of East
Anglia swore an oath of allegiance to the King, which meant that the con
quered enemy occupied a closer relationship with the King than did his own
subjects.16 This anomaly was removed in 941 when Eadmund acceded to the
throne and all his subjects swore an oath of allegiance to him.17
The oath was still a typical oath of allegiance,18 but now all subjects entered
into a relationship of allegiance with the King, not individually, but by proxy,
since the members of the witenagemot swore allegiance on behalf of the en
tire nation.19
The rights and duties created by the swearing of the oath of allegiance
to the King were essentially the same as those previously existing between
feudal lord and vassal. The King led the nation in time of war, and was
entitled to the support of his subjects.20 The King’s duty towards his sub
jects was to protect them and to keep the peace — “in time of peace by justice,
in time of war by the sword”.21 This meant that the King had to make provi
sion for a legal remedy where any of his subjects had suffered a wrong. Thus
14 Sir Courtenay Ilbert Parliament: its History, Constitution and Practice 3 ed revised
by Carr (1950) at 1; Stubbs op cit I at 611.
15 Jolliffe op cit at 6, 44.
16 Cf Taswell-Langmead op cit at 7, 476.
17 It is of interest that English historians regard the year 973 as the date when the whole
nation was finally united under one king; a celebration was held in 1973 to celebrate
one thousand years of the monarchy.
18 The subject swearing allegiance addresses the monarch as “my liege”.
19 Pollock and Maitland op cit at 40.
20 Jolliffe op cit at 46; Pollock & Maitland op cit at 301. That this situation persisted
for many years is evident from Shakespeare’s Henry V, for example. Even today, it
is the State President’s prerogative to declare war and to make peace.
21 Calvin’s Case (1608) 7 Coke’s Reports 1.
although the power to administer the law was not a direct consequence of
the allegiance relationship, it was a logical corollary of the kingship.22
However, the King still had no authority to change the law: in accordance
with the allegiance concept the law was regarded as unchangeable; it could
be found by the wise men and declared in their dooms.23 In certain circum
stances the people could make new laws, but this power was largely con
fined to the guilds during the Anglo-Saxon period. Likewise, the power to
levy taxes vested only in the people, not in the King.24
When legislative powers were exercised or taxes imposed by the people,
this was done by the witenagemot or council of wise men. It is not clear pre
cisely what the nature of this body was, whether it was a national assembly
like the moots, or an aristocratic body - which appears the most likely con
clusion.25 It was not an elected body and the kings tended to dominate the
witenagemot and even to decide who should be its members.26 All we know
is that the chairmen of the shire-moots or regional assemblies, which were
representative bodies, served on the witenagemot.
In theory the witenagemot possessed wide powers. It could elect the next
King27 and approve legislation. However, these powers were seldom exer
cised: its legislation usually consisted of declaratory acts rather than new laws
and the only tax it levied was the so-called danegeld.28 It did take important
decisions, such as whether to declare war or make peace,29 and acted as the
final arbiter in legal disputes.
It may be said that the Anglo-Saxon kings kept within the bounds imposed
on them by the principles of elementary allegiance law and community law.
They did not arrogate to themselves the power to make laws or impose
taxation.
Ill THE NORMAN PERIOD

The Norman period started with the reign of William the Conqueror in 1066.
Although feudalism was not an inevitable consequence of the allegiance rela
tionship,30 the Norman kings introduced the feudal system into England. They
were, as feudal lords, monarchs who wielded despotic powers, but never at
tempted to assume autocratic powers by dispensing with bodies such as the
witenagemot. However, the witenagemot was gradually replaced by the great
council of the King which assembled three times a year. This council was
22 Pollock & Maitland op cit at 203; Jolliffe op cit at 107.

23 Jolliffe op cit at 46; Wilkinson Constitutional History of Medieval England (1216-1399)
III (1948-1958) at 241.
24 However, the subject sometimes had to pay the King for some or other benefit (bene-
ficiurn) received by him.
25 See Jolliffe op cit at 25; Taswell-Langmead op cit at 17-18.
26 Taswell-Langmead op cit at 20.
27 During this period the kingship did not devolve automatically, and the King himself
could not appoint his successor: see Maitland Selected Essays (1936) at 58.
28 This was money paid to keep the Danes from invading England. See Maitland op cit
at 58.
30 See Jolliffe op cit at 78: feudalism implies both homage and the use of a certain tract
or land, while allegiance relates only to a personal relationship of fealty or loyalty.
sometimes referred to as the curia regis, a name which was also used for the
smaller body consisting of the King and a few chosen officials. The smaller
curia regis took over the management of day-to-day matters, particularly
financial matters, and acted as a court of law. The larger council, which was
really the successor to the witenagemot, gradually became known as the mag
num consilium or the commune consilium regni nostri.
The rule that the King could not levy taxes “save by the common council
of our realm” (nisi per communem consilium regni nostri) was recognized
by the Norman kings,31 as was the principle that the King’s judicial power
could be validly exercised only by his curia regis, which consisted of his per
manently appointed counsellors. Legislation which took the form of declara
tory acts was also classified as judicature.32
The great council acquired a more representative character in 1213 when
King John summoned four men from each county to attend its meetings as
well as the feudal lords and the ‘lords temporal and spiritual’.33 The King
was in all probability trying to strengthen his position vis-a-vis the barons,
with whom he was in constant conflict. These very barons were the ones who
compelled him to sign the Magna Carta at Runnymede in 1215.
The Magna Carta, the most famous English constitutional document, and
one of the most important, was not originally intended to serve as a guaran
tee to protect the lives, liberty and property of the people, but to protect
the interests of the barons. It contained a large number of provisions which
are no longer of great constitutional significance today, in addition to cer
tain guarantees — which were probably inserted to obtain the backing of
the populace as a whole.
The most important sections of the Magna Carta are sections 39, which
reads: “No free man shall be taken or imprisoned or disseised ... or out
lawed, or exiled, or anyways destroyed; nor will we send upon him, unless
by the lawful judgment of his peers, or by the law of the land”; and 40,
which reads: “To none will we sell, to none will we deny or delay, right or
justice.”34 These provisions are generally regarded in England as the foun
dation of the doctrine of the rule of law35 and as the basis of the famous
‘due process’ provision in the Constitution of the United States of America.36
Although the Magna Carta contained no new legal rules or principles,37
but merely confirmed existing rules which the King had persistently disregard
ed, the signing of the document was an event of major importance because
future kings who transgressed could be faced, not merely with unwritten rules
of constitutional law, but with a constitutional document.
Thus even though the Magna Carta was not primarily intended to serve
as a guarantee of individual rights, and although subsequent generations of
lawyers have been inclined to read more into sections 39 and 40 than was
31 See Stubbs op cit I at 289.

32 C H McIlwain The High Court of Parliament (1910) at 45-47.
33 Maitland op cit at 68.
34 Translation of the Latin text by Taswell-Langmead op cit at 81.
35 See the discussion of this doctrine in ch 5 below.
36 Fifth Amendment.
originally intended, it is of major importance because it laid the foundation

for the later development of the law relating to the protection of personal
liberty, the principle of an independent judiciary and the protection of the
individual against arbitrary infringement of his rights and liberties by the state.
IV FROM 1215 TO THE BEGINNING OF THE SEVENTEENTH

CENTURY
Before 1300 a true Parliament was to develop out of the King’s magnum
consilium, which was also on occasion referred to as the National Assem
bly. This assembly was initially called a colloqium, but parliamentum gradu
ally became the accepted term.38 Although the principle of representation
was recognized, this did not mean that the representatives of the counties
had actually been elected by the people.39 The nobility still had the final say:
the barons were still under the influence of feudal principles in accordance
with which, together with the King, they made the decisions.
However, the ancient concept of Parliament as a national assembly
representing the entire nation gradually became more popular, particularly
because this would facilitate the imposition of taxes on the counties and
boroughs.40
Simon de Montfort convened his famous Parliament in 1265 after there
d been armed unrest. The representatives of the boroughs now sat in the
?mbly with the nobility and the representatives of the counties.41 As a rule
>e representatives were simply nominated, though they were sometimes
| tuinely elected.42 There was therefore no election in the modern sense, nor
In Simon de Montfort’s Parliament be called a Parliament in the modern
sense. On the other hand, the Parliament of 1295 was no longer a feudal
court, but an assembly consisting of the King and the three ‘estates of the
realm’, namely the clergy, the nobility and the commons,43 even though the
representatives of the boroughs and counties still played a minor part.
After 1295 it was generally accepted that new taxes could not be imposed
without the consent of Parliament.44 Laws were, however, still made in as
semblies consisting only of the aristocracy. These assemblies were called
magna consilia to distinguish them from the parliamentum, which included
the commons. In time, the important laws and taxes were approved by the
parliamentum, and less important legislation by the magnum consilium. The
latter usually consisted of executive acts in the form of legislation. The King
38 Jolliffe op cit at 298.

39 Cf Maitland op cit at 71.
40 Jolliffe op cit at 286-287 and 302-303; before 1265 only the counties, and not the
boroughs as well, were represented.
43 The word ‘commons’ did not denote the ordinary citizens or ‘commoners’ in the modern
sense of the word; the term was derived from communities (‘the communities or univer-
sitates, the organized bodies of freemen of the shires, counties and towns, cities and
boroughs’) — Stubbs op cit II at 174-175. This included both the ordinary citizens
and the knights who represented the counties; cf Maitland op cit at 86.
44 This excluded indirect taxes or ancient levies of a feudal character. See Maitland op
cit at 96.
dealt with the levy of such monies as did not constitute new taxes, in the
magnum consilium or even in the exchequer.45
The coronation oath was amended in 1272 and again in 1307. The King
now undertook: “to hold and keep the laws and righteous customs which
the community of your realm shall have chosen.”46 This had important con
stitutional implications:
(i) it was acknowledged that the King’s power was founded in law and that
he was subject to the law and to the laws of his own Parliament;
(ii) it was acknowledged that when Parliament exercised legislative powers,
it, as the community of the King’s geographical sphere, determined the law
applying within that sphere.
The principle of community law, that Parliament chooses the law, is clearly
manifest in the coronation oath sworn by Edward II in 1307. These laws
were regarded as binding because they had been chosen by the community
which constituted the entire realm. In Maitland’s words:
Legislation, it is now considered, is the function of the communitas regni, the
whole body of the realm concentrated in a Parliament.47
The King himself was subject to the law and could not make laws on his
own.48
Although the consent of the ‘community of the realm’ — the House of
Commons49 — was required for the creation of new laws and the levying of
taxes, the actual power exercised by the Commons was not great. Even in
the fifteenth century the King had considerable power: he could dissolve or
prorogue Parliament and had an influence over the membership of both
Houses, though, as mentioned above, he could not repeal laws, impose taxes,
or interfere with the administration of justice.50 The major say was still in
the hands of the King and the nobility, and any constitutional struggle was
between the nobles and the King’s favourites.
The Commons increased in importance during the fourteenth century and
Parliament stated during the reign of Edward II (1327-1377) that
all matters concerning the King and realm were in future to be accorded and
established by the communes (commons) as well as by the prelates and magnates.51
The division of Parliament into two Houses also took place during the reign
of Edward II, although it is not clear when the Lords and Commons began
to sit separately, if, in fact, they did ever sit together.52 Parliament had, by
this time, taken over the consultative functions of the old witenagemot and
the magnum consilium of the Norman kings.53
45 Maitland op cit at 90; but cf Jolliffe op cit at 344-345.

47 Op cit at 100.
48 Maitland op cit at 191; Jolliffe op cit at 315. Richard II was in fact deposed because
he arrogated to himself the right to make and change the laws of the realm.
49 Even at this stage the Commons consisted of the counties, cities and boroughs; the
aristocracy never formed part of the communitas; of Jolliffe op cit at 330.
50 Maitland op cit 195.
51 Jolliffe op cit at 370.
52 Ilbert op cit at 104; Taswell-Langmead op cit at 153; Stubbs op cit III at 444; Mait
land op cit at 175; Jolliffe op cit at 372.
53 Stubbs op cit at 395.
Although Parliament’s status was now fixed, and the possibility no longer
existed that the King could, as was the custom in some Continental coun
tries, raise taxes by exercising feudal powers, a distinction was nevertheless
maintained between Acts of Parliament and ordinances. The latter were not
regarded as amendments to the existing laws, and could be adopted by the
King in his smaller council without having to be submitted to the communi-
tas communitatem. However, like all other exercises of executive power, or
dinances were subject to the control of the Commons.54
The legislative powers of Parliament were exercised by means of a peti
tion from the Commons to the King and his nobles. The Commons, as the
community of all Englishmen, signified by their petition that they had chosen
certain rules for themselves, and requested the King and the nobles to approve
their laws.55 Taxes, on the other hand, were regarded as the free gift of the
English people to the King. Once the Commons had voted certain taxes, they
were deemed to have given the proceeds to the King on behalf of the entire
nation.56
The House of Commons was recognized as an essential part of the legisla
ture, but it was never acknowledged as a partner in the judicial function of
Parliament. The Commons could request that a certain person be tried or
a certain matter heard, but had no power to adjudicate. It never gained access
to the judicial process at all, largely for historical reasons. After Richard
II was deposed in 1399, a number of his aristocratic officials were tried by
the House of Lords. Because the Commons feared the repercussions that
could ensue, they stated unequivocally, with the consent of the Lords, that
the House of Commons had no judicial powers;57 initially in criminal mat
ters, and, less than a century later, in all cases. Since then, the House of
Lords has been the highest court in England, and the Commons only once
laid any claim to judicial powers, when it convicted a person of a crime other
than contempt of the House itself. The Lords objected to this usurpation
of their jurisdiction, and the Commons acknowledged that they possessed
jurisdiction only when their own privileges were at stake.58 The House of
Lords had jurisdiction to try its own members for a criminal offence; was
the highest court of appeal in England; acted as court in impeachment
proceedings; and could also adopt a Bill of Attainder (in which case Parlia
ment itself acted as a court). Apart from these cases, neither Parliament nor
the House of Lords had original trial jurisdiction. When the House of Lords
hears an appeal, the judgment is technically that of the House of Lords, but
is in fact that of certain Lords of Appeal.59
During the reigns of Henry IV and Henry V a standard of parliamentary
government was achieved that was not equalled for many years.60 In 1414

55 Jolliffe op cit at 377; Ilbert op cit at 8, 124; cf Taswell-Langmead op cit at 207-211.
56 Stubbs op cit II 395; Jolliffe op cit at 404. In theory the whole nation was represented
in the Commons, but in the fourteenth century a freely elected House of Commons
was an ideal rather than a reality; see Jolliffe op cit at 440.
58 Ibid.
59 Ilbert op cit at 173-174; see the discussion of the High Court of Parliament case in
South Africa, below at 261 et seq.
60 Stubbs op cit III at 73.
it was formally acknowledged that the Commons not only submitted peti
tions but also had to approve all legislation.61
At the same time it was acknowledged that the laws requested by the Com
mons could not be tampered with, but had to be either approved or reject
ed.62 Thus the custom developed that a bill, and not a petition, was sent to
the King and the Lords.63 However, the King remained in a powerful posi
tion: he retained the right of veto and did not hesitate to use it; his approval
was required for all legislation; he could suspend or dispense with legisla
tion temporarily or for a specific case. He still could not impose taxes or
repeal laws, though he did have the somewhat vague power to pass or
dinances.64
An Act was passed as early as 1330 decreeing that Parliament had to sit
as least once a year, and, by the fifteenth century, there were regular ses
sions of Parliament. Freedom of speech in Parliament was also accorded
recognition during this period.65 The House of Lords began to assume the
form it still has today. The clergy, who constituted one of the two estates
(lords temporal and lords spiritual) which sat in the House of Lords, gradu
ally lost their character as an independent estate and merged with the nobles
in the House of Lords.66
Legislation and the imposition of taxes were subject to the will of Parlia
ment, but the executive authority was in the hands of the King’s small body
of permanent advisers. However, the King was not obliged to consult his
advisers in the exercise of his executive powers, though it was customary for
him to do so. In practice his executive power was controlled to a certain ex
tent by the so-called doctrine of the seals, which was, some centuries later,
to develop into the system of ministerial responsibility.67
If the early part of the fifteenth century represents a high point in
parliamentary government, the later part of that century and the one which
was to follow represents a decline. The Crown began to dominate Parlia
ment, which was convened only when it suited the King.68 Nevertheless, ac
cording to Jolliffe,69
... the predominant theme [in the fifteenth century] was the supremacy of law
and the function of the community to declare, and, if necessary, change it. Given
a community of lawful men, these fundamentals were secured century after cen
tury, according to the method of each generation, by popular assembly, or by
councils really or fictitiously representative of that part of the nation which was
politically organised.
61 Up to then it had been customary for the Commons to approve legislation, but the
Norman Kings did not want to acknowledge this formally.
63 Cf Jolliffe op cit at 430.
64 Maitland op cit at 195. When the King disapproved a bill - something he did fairly
often at this stage — his decision was couched in very polite terms; “le roy s’y avisera”
(the king will consider the matter) but it was a refusal nevertheless. According to Jol
liffe op cit at 430, Parliament derived its wide powers from the fact that it had been
a royal court prior to the fifteenth century.
65 A member of the House of Commons who had criticized Richard II and his court
in the Commons and had been sentenced to death by the Lords, was pardoned.
66 Maitland op cit at 239; Jolliffe op cit at 435.
67 See below at 44.
68 See Jolliffe op cit at 449 at 492; Maitland op cit at 177, 184-185.
69 Op cit at 490.
The reign of the Tudor monarchs (from Henry VII in 1485 to Elizabeth I,
who died in 1603) was marked by the subjugation of Parliament to the Crown.
Henry VIII, in particular, bent Parliament to his will in all spheres of life,70
but was shrewd enough neither to break the law nor to profess to be an ab
solute ruler. He insisted that he always acted with the consent of the people
and Parliament. As Taswell-Langmead 71 puts it, he managed “to unite the
exercise of practically absolute power with respect for constitutional forms”.
Ironically, Henry VIII’s domination of Parliament strengthened rather than
weakened that body; according to Maitland,72
Parliament is so tractable that the King is very willing that the King in Parliament
should be recognised as supreme - it strengthens his hands that what he does
should be the act of the whole nation.
Like her father, Queen Elizabeth I was a despot who managed to avoid any
direct confrontation with Parliament. However, the seeds of the conflict
which was to be the dominant feature of the seventeenth century, were sown
in this period: in 1601, when the Commons objected to the large number
of monopolies awarded by the Queen, she backed down, undertaking to with
draw existing monopolies and to refrain from issuing new ones.73
Despite the negative features which manifested themselves in the sixteenth
century, the position by the end of that century was that the supremacy of
Parliament was generally acknowledged, as was the principle of representa
tion underpinning the authority of Parliament. It had also become customary
for money bills (bills relating to taxes or the payment of money to the King)
to be initiated in the House of Commons, on the strength of the argument
that taxes were a gift from the people and that only the Commons (the com
munitas communitatem, the community in which the entire English nation
was represented) could decide about the gift to be made.
V THE SEVENTEENTH CENTURY - AN ERA OF CONFLICT

In the Elizabethan era there were some, like Sir Thomas Smith, who held
the view that sovereignty vested in Parliament, and others, like Thomas
Hobbes, who took over Bodin’s theories of absolute sovereignty and applied
them to the English monarchy.74 This view that the King was the bearer of
absolute and ultimate power by virtue of the fact of his kingship, and that
all constitutional institutions and bodies were subject to the King’s pleasure,
appealed to the Stuart kings75 who promptly adopted the idea of the divine
right of kings.
70 He even contrived to get an Act passed in 1539 authorizing him to issue proclamations
having the force of law, without the consent of Parliament. Such so-called “Henry
VIII provisions” may even be encountered in South African law (viz in s 25(1) of the
Black Administration Act 38 of 1927). See below at 299 fn 75 and 302-303.
71 Op cit at 233.
72 Op cit at 252.
73 The famous Case of Monopolies 1602 Darcy v Allein 11 Coke’s Reports 85.
74 See the discussion of the doctrine of parliamentary sovereignty in ch 6 below.
75 The Stuart era signifies the birth of Britain: James I of England was also James VI
of Scotland, and the two kingdoms were united after his accession to the throne.
Conflict was inevitable. During the reign of James I (1603-1625) the con
flict mainly concerned the King and the bench. It was during this period that
the famous judge, Edward Coke (1552-1634), who headed the Court of Com
mon Pleas from 1606 onwards, achieved prominence. The upshot of the con
flict was that the Commons, the judges and the people themselves began to
examine the powers of the King, Parliament (the House of Commons in par
ticular) and the courts.
The first clash came with the Case of Prohibitions in 1607.76 The judges
of the common-law courts had held that they were empowered to act in the
King’s name, by means of the so-called ‘prohibitions’, to prevent a spiritual
court from hearing matters that should be heard by other courts. The King
averred that the judges were his delegates and that he could decide which
court should hear which matter. Coke held that the King had no power to
make any decision about the law, since such matters “are not to be decided
by natural reason, but by the artificial reason and judgment of law”. To
the King’s accusation that it would be treason to affirm that the King was
bound by the expositions of the law by the judges, Coke replied in Bracton’s
words: “Rex non debet esse sub homine sed sub deo et lege.”7778 79
The decision given by Coke in Calvin’s Case11 in 1608, that subjects of the
King born in Scotland after the union of the kingdoms of England and Scot
land could not be aliens in England, met with James’s approval, but it was
only a matter of time before the next clash, in the so-called Case of Procla
mations,19 which resulted from the King’s attempts to alter the law by way
of proclamation. Coke held that the King had no power to change the law
or to create an offence by proclamation, and that “the King hath no preroga
tive but that which the law of the land allows him”. The King was obliged
to concede defeat, but only until 1616, when the Case of Commendams19*
arose. Here the question was whether a bishop was entitled to an income
granted him by the King ‘in commendam’, together with his office. The King
instructed Coke not to proceed with the case until the judges had consulted
the King. Coke and his fellow judges decided unanimously to proceed with
the hearing, upon which the King sent for them and demanded an undertaking
that they would, in future, stop the case if requested to do so by him. All
except Coke capitulated; he was suspended and dismissed shortly afterwards.
Coke then turned to active politics.
After Coke’s departure, James no longer encountered judicial opposition,
but he was often at loggerheads with the Commons and in fact governed
without Parliament for the entire period from 1614 to 1620.
76 (1607) 12 Coke’s Reports 63. During the period between 1607 and 1610 James I did
not convene Parliament at all, because he was irritated with the constant flow of com
plaints from the House of Commons and this body’s insistence on its privileges. See
Maitland op cit at 268; Taswell-Langmead op cit at 350.
77 “The King should be subject to no man, but to God and the law.”
78 (1608) 7 Coke’s Reports 1; 2 St Tr 559. See the discussion of this case in ch 20 at 373.
79 (1611) 12 Coke’s Reports 74; 77 ER 1352; see Taswell-Langmead op cit at 342.
79a Colt and Glover v Bishop of Coventry Hobart 140.
When Charles I acceded to the throne in 1625 he at once determined to

rule as an absolute monarch. However, he had a more intractable Parlia
ment to contend with, a Parliament that had already begun to test its strength
against his father, James I. Conflict was soon to follow.
In 1628 Lord Coke initiated the adoption of the Petition of Right, which
was presented by the Commons to the Lords in the form of a bill. The Peti
tion enumerated various autocratic actions of the King, such as forced loans,
the arbitrary imprisonment of persons at the King’s behest, and the quarter
ing of soldiers and sailors in private houses. Reference was made to old laws
such as the Magna Carta in particular, and certain actions of the King al
leged to be in conflict with these laws. It was also alleged that subjects of
the King had been imprisoned and even killed on the pretext that martial
law was in force. The King was not expressly accused of responsibility for
these acts, but everyone realized that the Petition of Right was aimed at him.80
If Charles were to approve the Petition of Right, it would mean that he could
no longer rule without Parliament, since he would not have the funds. He
would also have to acknowledge that he was subject to the law.
Charles, understandably, went to great lengths to prevent the Petition of
Right from becoming law. The House of Lords proposed an amendment
stating that the Petition would not impair the King’s sovereign power. But
Coke would have none of it; he knew that this would place the King in the
position of a sovereign in the sense Bodin attached to the word:
I know that prerogative is part of the law, but sovereign power is no parliamen
tary word. In my opinion it weakens Magna Carta, and all our statutes; for they
are absolute, without any saving of sovereign power; and shall we now add it,
we shall weaken the foundation of law, and then the building must needs fall.
Take we heed what we yield unto: Magna Carta is such a fellow that he will have
no sovereign. I wonder this sovereign was not in Magna Carta, or in the confir
mations of it. If we grant this, by implication we give a sovereign power above
these laws. Power, in law, is taken for a power with force.8'
The Petition of Right was eventually accepted by both Houses of Parliament
and reluctantly approved by the King.
The truce was short-lived. By the middle of 1628 the battle became so in
tense that the King dissolved Parliament and did not convene it again for
the next eleven years. The judges, fearing that they would go the way of Coke,
did the King’s bidding. Charles ignored the Petition of Right and continued
his autocratic rule, circumventing the need to rely on Parliament. His main
problem was to devise a means of raising money without having to rely on
Parliament. He did this in two ways: the first was by extorting exorbitant
fines by means of his special court, the infamous Star Chamber.82 The King’s
second source of revenue was found by unearthing and exploiting ancient
and obsolete royal privileges. One of these was the King’s power to issue
80 Coke’s part in the matter was abundantly clear from the way in which the Petition
was formulated and from the way in which old laws such as Magna Carta were em
phasized and restated.
81 Taswell-Langmead op cit at 368, 369.
82 Taswell-Langmead op cit at 377-390; Maitland op cit at 220, 261. The Star Chamber,
so called because of the star pattern on the ceiling, was a special royal court which
originated from his permanent administrative council. After the Court of Chancery
writs to maritime counties ordering them to supply the King with ships.
Charles issued these writs, demanding, not ships as such, but the amount
of money which each ship would cost (ship money). This led to the so-called
Case Shipmoney (also known as Hampden’s Case)63 in which the judges
declared this tax valid by a majority of seven to five. The decision unleashed
a storm of protest from the long-suffering British, who would tolerate a great
deal, but not a King who claimed despotic powers.
Three years later a rebellion broke out in Scotland and Charles was ob
liged to convene Parliament again, but he failed to get his way, and Parlia
ment was dissolved once again. However, the Scots proved too much for
Charles to handle and he was compelled to reconvene Parliament. This Parlia
ment was known as the ‘Long Parliament’ because it was dissolved only in
1649, when the House of Lords was abolished by Cromwell. Charles was
forced to give way to Parliament on several issues, such as the release of
political prisoners being held in the Star Chamber. Parliament also started
to impeach some of Charles’s main counsellors. Impeachment was the process
whereby a senior official was charged by the House of Commons before the
House of Lords, usually with treason or some other crime against the state
or government. Although impeachments had been very rare for a long time,
Parliament revived the process in order to attack the King by impeaching
his henchmen.
The 1641 Parliament adopted a large number of laws which it forced
Charles to approve. The Triennial Act provided that Parliament had to be
convened at least every three years and could not be prorogued or dissolved
within fifty days without Parliament’s consent; another law abolished ship
money and other unfair taxes; the Star Chamber was abolished by the Act
for the Regulating of the Privy Council and for Taking Away the Court Com
monly called the Star Chamber.83 84 Charles also undertook to appoint judges
for life quamdiu se bene gesserint (while they behaved).
In 1642 Charles made a fatal blunder. He entered the House of Commons
in person, in order to arrest five members who were responsible for submit
ting a ‘remonstrance’ or protest against the King’s actions. He was backed
up by an armed force at the ready to enforce the King’s demand.85 After
this, civil war could no longer be avoided.
became an independent court, the permanent court remained, with certain judicial func
tions. The Star Chamber developed from this council (James I participated personally
in the proceedings of the Chamber). The civil jurisdiction of the chamber related mainly
to maritime matters and its criminal jurisdiction to fraud and offences of a public
nature. It could impose any sentence except the death sentence and was notorious for
the excessive fines and cruel punishments it imposed. The Star Chamber was the only
English court which permitted torture. The House of Commons had always protested
against the existence of the Star Chamber because it was often used by the kings to
enforce despotic measures. The court and its activities faded into the background in
the fifteenth century, but the Stuart Kings brought it back into use.
83 1637 3 St Tr 825.
84 The Privy Council’s civil and criminal jurisdiction was terminated as far as Britain
was concerned, but it remained the highest court of appeal in the colonies and, later
in the dominions (in South Africa, until 1950).
85 See Taswell-Langmead op cit at 411.
The civil war, which lasted for seven years, culminated in Charles’s defeat,
trial and execution in 1649. Oliver Cromwell took over as Lord Protector
and instituted the only republic in British history. But the people proved to
be dyed-in-the-wool monarchists, and the monarchy was restored after eleven
years, in 1660. The constitutional changes Cromwell attempted to introduce
were short-lived.
Charles II (1660-1685) was not an inherently wiser man than his predeces
sors, but he managed nevertheless to avoid open confrontation. (He was,
no doubt, mindful of the fate of Charles I!) Despite this, however, his
ministers did not always act in accordance with Parliament’s wishes and some
of them were in fact impeached.86
The impeachment of Danby was of particular constitutional importance;
the fact that he had acted on the King’s express instructions and that the
King had secretly pardoned him cut no ice with the House of Commons.
“No minister can shelter himself behind the throne by pleading obedience
to the orders of his sovereign.” The Danby case was a milestone in the de
velopment of ministerial responsibility.
The 1660s were also marked by a three-year-long conflict between the
House of Commons and the House of Lords (1666-1669), about the ques
tion whether the Lords could hear a civil suit as a court of first instance.
The Lords eventually backed down, and since then it has been acknowledged
that the House of Lords possesses no original trial jurisdiction, but appeal
jurisdiction only.8788
In 1679, the year of Danby’s impeachment, the procedure relating to habeas
corpus™ was streamlined to provide a subject who had been unlawfully ar
rested with an expeditious and effective legal remedy.89
The reign of James II (1685-1688) was of brief duration but of vital con
stitutional importance. In true Stuart tradition, James II started on a colli
sion course as soon as he acceded to the throne. He began with a proclamation
that import duties which had been payable only during Charles H’s lifetime,
should remain payable - in direct conflict with the principle that the King
could not impose taxes or exercise legislative powers by proclamation.
However, James’s most noteworthy constitutional misdemeanour was to
obtain a judicial decision to the effect that he possessed the power to dis
pense with or suspend a legal provision. Having made sure that all the judges
who could oppose him were out of the way, James instituted a test case against
Sir Edward Hales,90 a convert to Catholicism91 who had not renounced the
Catholic faith as all holders of military office were obliged to do. Hales con
tended that the King had granted him dispensation from the statute in
86 Eg Clarendon in 1667 and Danby in 1679.

87 See Skinner v East India Company 1666 6 St Tr 710.
88 The legal remedy entrenched in the Magna Carta: See the discussion above at 31 and
below at 101 et seq s v the doctrine of the rule of law.
89 Taswell-Langmead op cit at 432-436.
90 Godden v Hales (1686) 11 St Tr 1165.
91 James too, had adopted the Catholic faith and devoted much of his time and energy
to promoting Catholicism.
question, and the court upheld his defence, recognizing the absolute nature of
the royal prerogative:
The King may dispense with a statute, thereby causing the mischief which the sta
tute aimed at preventing, even though the statute be one passed in the public
interest.
In the end it was James’s determination to promote Catholicism which proved
his undoing. When seven bishops who had petitioned against a royal order
promoting Catholicism were acquitted by the King’s Bench, the nation
rejoiced.92 This incident sparked off the Glorious Revolution of 1688, so
called because remarkably little blood was shed.
The Glorious Revolution was probably the single most important event
in English constitutional history. It was the only true revolution in the sense
that a new legal order was created as a result of a complete break with the
past, something that cannot be said for the ‘new order’ created in 1649 when
the monarchy was replaced by a republic. In short, the Glorious Revolution
established a new grundnorm for the British Constitution.93
After the flight of James II, the throne was offered to William of Orange
and his wife, Mary, who had an indirect claim to the throne. They acceded
jointly in 1689 and the Declaration of Right, which had been drawn up in
an attempt to invest the new order with a measure of legitimacy, was adopted
with a few amendments as the Bill of Rights.9495 It listed James Il’s transgres
sions and declared that:
(i) the pretended power of suspending laws or the execution of laws by the King,
without the consent of Parliament, is illegal;
(ii) the pretended power of dispensing with laws or their execution is illegal;93
(iii) the commission for erecting the court of Commissioners for Ecclesiastical
Causes and commissions ‘and courts of like nature’ are illegal;96
(iv) levying money for the use of the Crown by pretence of prerogative without
the grant of Parliament is illegal;
(v) the subject is entitled to petition without fear of prosecution;

93 S A de Smith Constitutional and Administrative Law, 4 ed (1981) at 76-77, points
out that there was no King from December 1688, when James fled the country, to
February 1689, when William III and Mary accepted the crown offered to them by
the Convention of Lords and Commons subject to the conditions set out in the Decla
ration of Right. The Convention ‘Parliament’ had been irregularly summoned, and
William had no legal title to the throne. Technically, therefore, every British King and
government since 1688 has been illegal - like the American government for that mat
ter. However, as De Smith points out, “one must acknowledge that in certain circum
stances a breach of legal continuity, be it peaceful or accompanied by coercion and
violence, may have to be treated as superseding the constitutional and legal order and
replacing it by a new one. Legal theorists have no option but to accommodate their
concepts to the facts of political life. Successful revolution sooner or later begets its
own legality”. See, further, the discussion of the grundnorm of South African con
stitutional law s v the doctrine of parliamentary sovereignty in ch 6.
94 Will and Mary Secs 2 c 2 (1689). Obviously it differs enormously, constitutionally speak
ing, from modern Bills of Rights, which are usually procedurally entrenched in inflexible
written constitutions. The full text of the Bill of Rights has been reproduced in Ver-
Loren van Themaat, op cit at 528-530.
95 However, the King’s prerogative of mercy was not abolished and exists to this day
both in Britain and in South Africa.
96 This provision stemmed from James’s attempts to establish Catholicism.
42 Introduction to South African ConstitutionalLaw
(vi) the raising or keeping of a standing army in time of peace is illegal except
with the consent of Parliament;97
(vii) Protestant subjects may have arms for their defence suitable to their condi
tions and as allowed by law;9899
(viii) elections for Parliament ought to be free;
(ix) freedom of speech in Parliament must be privileged;
(x) excessive bail, excessive fines, and cruel and unusual punishments should be
forbidden;
(xi) jurors should be duly impanelled and jurors in treason trials should be free
holders;
(xii) all grants and promises of fines and forfeitures before conviction are illegal
and void;
(xiii) sessions of Parliament should be held frequently to ensure the redress of
grievances and the amending, strengthening and preserving of all laws.
The constitutional developments of the seventeenth century concluded with

the passing of the Act of Settlement in 1701." The first objective of the Act
was to govern succession to the throne, but it contained a number of highly
important provisions from the constitutional point of view:
(i) No member of the House of Commons would be permitted to hold a
remunerative post under the Crown. The reason for the provision was that
some kings had contrived to keep members of the Commons dependent on
and beholden to them by granting them pensions or ensuring that they were
given lucrative posts, or even by procuring seats in the Commons for the
King’s own officials. This was made possible by the unsatisfactory electoral
system which existed until the 1830s, which made it possible for some con
stituencies to have only a handful of voters.100
(ii) Judges were to be appointed for as long as they conducted themselves
properly (quamdiu se bene gesserinf) at a salary which could not be reduced.
They could be removed only at the request of both Houses of Parliament.
(iii) The King’s pardon would no longer be of any avail if one of his ministers
were to be impeached by the House of Commons.
(iv) The kings were to govern in accordance with the law; the laws and rules
guaranteeing the religion and the rights and freedoms of the people were
restated.
Again this was a constitutional document which was largely of a declaratory
nature, restating the law as it was. The provision that members of the House
of Commons could not occupy a remunerative post under the Crown was
subsequently watered down to some extent, first to permit the payment of
salaries to ministers, and later to all members of Parliament. However, the
rule still applies in the sense that anyone who holds a post in the public ser
vice must resign from it if he is elected to Parliament.
97 The Petition of Right, 1628, signed by Charles I, contained a similar provision.

98 Yet another spin-off of the religious conflict.
99 12 and 13 William III c 2 1701.
100 The Tudor monarchs, and Queen Elizabeth in particular, created certain ‘rotten’ and
‘pocket’ boroughs, viz urban constituencies with very few voters, and then gained
control over the House of Commons by manipulating the elections in such boroughs.
It was only with the Electoral Reform Act of 1832 that the rotten and pocket boroughs
were eliminated.
VI THE PARLIAMENTARY SYSTEM AFTER 1700 - THE

DEVELOPMENT OF CABINET GOVERNMENT
With the adoption of the Act of Settlement the struggle between King and
Parliament came to an end. The trend that developed in the eighteenth cen
tury was for Parliament itself to assume autocratic power. The doctrine of
parliamentary sovereignty gained in popularity during this period.101
Although the kings had come off second best in their struggle with Parlia
ment, they retained a considerable measure of real power because they were
still in full control of their ministries.
From earliest times the English kings had their advisers, chosen from the
ranks of the King’s personal favourites.102 Under the Norman kings this small
body of permanent advisers became known as the curia regis. Other bodies
gradually began to split off from the curia regis'. the Exchequer, the Chan
cery, the King’s Bench, the Court of Common Pleas, and, eventually, the
royal council or concilium regis, a body with wide and somewhat undefined
powers, which advised the King in administrative matters and was subsequent
ly regarded as the true royal council. The concilium regis, which was also
known as the ordinary council, must be distinguished from the older curia
regis. The scope and power of the concilium regis increased during the thir
teenth century and it developed into an administrative body, while the curia
regis tended increasingly to become a judicial body.
The members of the concilium regis were chosen by the King, and he con
sulted them when he wished to do so: he was not obliged to seek their ad
vice.103 The council heard petitions, referred them to the correct court, and
also exercised quasi-legislative powers in minor cases, issuing ordinances
which had the force of law.104
Originally, the royal council was a kind of permanent committee of the
great council or common council {magnum concilium or commune consili
um) which developed into Parliament. However, it gradually changed from
a parliamentary to a predominantly extra-parliamentary body consisting
mainly of the members of the nobility.105
When the concilium regis grew too large for efficiency, the leading mem
bers formed a confidential committee which took over all the council’s ad
ministrative functions. This committee, whose members swore an oath of
secrecy, was known as the Privy Council.106 By the middle of the sixteenth
century the Privy Council was one of five committees of the royal council.
In addition to its executive powers, the Privy Council also had certain ju
dicial functions which were abolished, as far as Britain was concerned, in
101 The Act of Union with Scotland, 6 Anne c 1, was passed in 1707. In terms of this
Act there were certain provisions which were to have been incapable of amendment
or repeal. However, they were in fact repealed by subsequent Parliaments — in
accordance with the principle that a sovereign parliament cannot bind itself in respect
of area of power. See the discussion below at 137 et seq.
102 J P Mackintosh The British Cabinet 3 ed (1977) at 35.
106 Ibid at 612.
1641.107 Some years later the Privy Council, too, had grown too large to serve
as a secret body, and Charles II therefore instituted a smaller, select body,
the Cabinet Council, where important measures were settled before they were
formally submitted to the Privy Council for ratification.108
The Cabinet Council, as it was in the time of Charles II, presented many
opportunities for intrigue, since the Privy Council could no longer exercise
effective control over the King’s actions. Little wonder, then, that the Cabi
net was regarded with suspicion. However, although the Privy Council re
mained the recognized constitutional body, the Cabinet gradually gained
ground as the effective executive body.
An important reason for the development of cabinet government and
ministerial responsibility as we know it today, was that the King could not
be held responsible for his actions - “the King can do no wrong”109 — cou
pled with the usage that any official royal document had to be countersigned
by a member of his council and sealed with the royal seal. The doctrine of
the seals is an ancient one which can be traced right back to Norman times.
Only documents bearing the royal seal were recognized as genuine expres
sions of the royal will.110 These seals were, for the most part, in the custody
of the King’s most senior officials, whose task it was to affix the seals on
documents on the King’s behalf. This practice led to the officials (later known
as ministers) incurring co-responsibility for the King’s actions. Because the
King could not be brought to account in the courts, the ministers were held
responsible. As a result, the ministers were careful not to attach the seal in
their custody to any royal document if the King had exceeded his powers.
The practice of holding the minister responsible for the King’s mis
demeanours dates back to an early stage in English constitutional history.111
The King often tried to protect his ministers by exerting pressure on the court
or pardoning them, but, as was seen above,112 this was, in later years at any
rate, to no avail, and once the principle of ministerial responsibility had been
firmly entrenched in the Act of Settlement there was no more to be said.
No longer could the King protect his ministers against impeachment.113
107 See above at 39.

108 In 1671, the Cabinet which constituted the real executive authority in the state, con
sisted of Ministers Clifford, Arlington, Buckingham, Ashley and Lauderdale, and
was called the CABAL. The word ‘Cabal’ soon acquired a negative connotation and
was associated with machinations and intrigue. Oddly enough, ‘Cabal’ was used even
for the advisers of James II, and the fortuitous circumstance of the initials of Charles
Il’s Cabinet ministers led to the word being used in an unfavourable context as a
synonym for ‘Cabinet’. See Taswell-Langmead op cit at 613.
109 This did not mean, literally, that the King was a divine being whose actions were
above reproach, but simply that he was immune in law from prosecution or impeach
ment or civil suit.
Ill Taswell-Langmead op cit at 190-193.
112 Danby’s case - see above at 40.
113 It is of importance to note that the King was never subject to impeachment (cf the
position in presidential systems such as that in the USA). The impeachment of
ministers was fairly common in the seventeenth and eighteenth centuries. A well-known
case was the impeachment of Warren Hastings, former Governor of India. The last
impeachment was that of Lord Melville in 1804.
Although Parliament’s position of superiority was a fait accompli after

1688, the relationship between Parliament and the executive was still some
what fluid. However, it had become clear that it was essential that harmony
should prevail between the Cabinet and the majority party in Parliament.114
In general, the ministers did not oppose the Commons in important mat
ters, except that foreign policy and the armed forces were still firmly in the
hands of the King and his advisers. The personal qualities of leadership of
the King and the leading parliamentarians played a decisive part.
William III was a strong king who
had as high a view of prerogative as his predecessors and intended, like them,
to conduct his own policy and choose his own supporters, with Parliament rendering
support and granting finance.115
He realized, however, that this approach could lead to clashes with Parlia
ment, and that it was in his interests to co-operate with the leading parliamen
tarians. Thus when the Whigs were in the majority in Parliament in 1694,
William gave Cabinet posts to young Whig leaders. Although this Cabinet
is often referred to as the first ‘modern’ Cabinet, it must be remembered
that not all its ministers were appointed from the ranks of the Whigs, and,
furthermore, that the Cabinet had not been appointed by the majority party
in Parliament.116 (It can hardly be said that the party system, as we under
stand it today, was in existence before 1700. However, the two main politi
cal parties of the time, the Whigs and the Tories, had already made their
appearance. The Whigs, regarded as the predecessors of the Liberal Party,
viewed the powers and privileges of Parliament as their main concern, while
the Tories, the predecessors of the Conservative Party, tended towards the
upholding of the royal prerogative.)
Parliament still did not trust the Cabinet - the express provision in the
Act of Settlement entrenching ministerial responsibility was a manifestation
of this distrust. Although the spectre of impeachment ensured that the
ministers treated Parliament with respect, they were not yet directly respon
sible to Parliament, because they were not necessarily members of Parlia
ment and because it was still the King who chose his ministers personally.
The idea that the Cabinet should give expression to the will of Parliament,
that is, to the will of the majority in the House of Commons, took root only
after the accession of the Hanoverian monarchs in 1714. George I did ini
tially attend Cabinet meetings but gradually withdrew to an ever-increasing
extent. His successor, George II, also preferred to consult with his ministers
individually rather than with the full Cabinet.117
114 Mackintosh op cit at 40.

115 Ibid at 45.
116 Ilbert, op cit at 129, holds the view that cabinet government originated in the reign
of William III, between 1693 and 1696: “. . . but it extended over a long period of
time. In its early stages . . . experiments were made such as the exclusion of office
holders from Parliament, experiments which, if they had succeeded, would have
resulted in the establishment of an entirely different system, more resembling that
set up afterwards in the United States”.
117 The reason for George I’s lack of interest is usually stated to be his inability to un
derstand English, but Mackintosh op cit at 51, is of the view that it was not so much
his lack of command of English as his lack of intelligence and ignorance of English
politics. According to Erskine May, Constitutional History I at 7, both George 1 and
George II found “the troublesome energies of Parliament” too much for them.
By this time the posts which rated cabinet status had already been identi
fied to a major extent.118 Each minister was responsible for his own depart
ment, and the distinction between the full Cabinet and the so-called Inner
Cabinet, which had originated much earlier, was maintained.119
It is generally accepted that the post of Prime Minister was created be
cause George I and George III did not participate in Cabinet meetings and
someone had to take over the job of chairman, but in fact it took many years
before the custom that one particular minister should take the lead and act
as spokesman for the Cabinet became established. For one thing, even George
I and George II did not withdraw from government altogether and, for
another, Parliament was opposed to the idea of a premier or ‘sole minister’,
as it felt that this development would interfere with the exercise of parliamen
tary control over the Cabinet.120 Moreover, it was not always clear who was
the leading minister or the strongest figure. Sometimes, of course, one man
did emerge as the leading figure, such as Walpole, who enjoyed the confi
dence and support of George II. It was of prime importance that a strong
person should be in charge of the country’s finances and, for this reason,
the leading minister was often the First Lord of the Treasury rather than
the Prime Minister.121
George I and George II may have been content to leave the government
to their ministers most of the time, but George III was a different kettle of
fish. He consistently tried to influence his ministers and to appoint ministers
in accordance with his own personal preferences, and he was, moreover, very
interested in matters of state.122 Although he managed to get his own way
on occasion, he gradually realized that his choices were determined to a large
extent by the realities of the political situation. George III also maintained
that his right to veto legislation was unimpaired, but never went so far as
to exercise it.123
The eighteenth century was an important period in the development of
cabinet government but the changes were unobtrusive rather than formal.
The life of a ministry was not yet linked with that of Parliament (which was
seven years at that stage),124 but the principle of collective ministerial respon
sibility was established during this period, as is evidenced by Lord North’s
statement that the war against the American colonists “was the responsibili
ty of all the King’s servants”.125 By the end of the eighteenth century, a motion
of censure against an individual minister was seen as a legitimate means of
118 The office of Archbishop of Canterbury was one of these.

119 The Inner Cabinet originated because the full Cabinet was too large and cumber
some a body to deal with everyday matters.
120 Maitland op cit at 396; Mackintosh op cit at 56; Robert Walpole, the famous
eighteenth-century statesmen, who is generally regarded as the first Prime Minister,
was in fact not eager to be described as the ‘Prime Minister’. As S B Chrimes English
Constitutional History, points out at 181: “The term Prime Minister, like the term
‘cabinet’, began as a term of abuse and reproach.”
122 He took a great interest in the conduct of the American War of Independence, for
example.
123 The royal veto was in fact last exercised in 1707.
124 Since the passing of the Septennial Act 1716; it remained seven years until it was
reduced to five by the Parliament Act of 1911.
attacking the policy of the Cabinet as a whole. The Cabinet would not, at
this stage, have suggested any measure sure to meet with the King’s disap
proval. On the other hand, it was no longer generally accepted that the King
could ignore the Cabinet’s advice or prohibit the consideration of a particu
lar matter.
The real power of the Crown dwindled steadily, if imperceptibly. There
were a number of reasons for this, notably the personality of the Hanoveri
an monarchs, the emergence of strong political figures, the crystallization
of concrete political issues, the development of political consciousness in the
electorate and the process of reform undergone by the administration.126
Although, by 1820, the post of Prime Minister was firmly established, and
the members of the Cabinet were acting as a unit, the members were not
yet appointed as a unit and the actual choice and appointment of the ministers
were still in the hands of the King himself. It was really only after the pass
ing of the Reform Act of 1832 and subsequent legislation that the turning
point was reached. Queen Victoria took an active interest in matters of state
and tried very hard to exert an influence on the course of events. In 1850
she drew up a memorandum in which she issued instructions that she want
ed to be fully informed about what was happening and did not wish to sign
official documents purely mechanically. She made it quite clear that she want
ed to rule and that she regarded participation in the government process as
her right and her duty. She felt that, as head of state for life, she was better
equipped than a purely temporary leader of the Cabinet. Because the institu
tion of the monarchy and the Queen herself enjoyed a large measure of
esteem, the government handled the matter tactfully and permitted the Queen
to think that she had more real power than she did.127 However, when the
Liberal Party won the general election of 1890, she at first refused to send
for Gladstone, but eventually had to give way.128
The only real discretions which remained to the monarch were the deci
sions involving the choice of Prime Minister and the option of calling a general
election or asking the leader of the opposition to form a government after
the defeat of the government in a no-confidence motion. In the time of Glad
stone and Disraeli there was no dispute about the leader of the party but
matters were not always cut and dried. This was due in part to the reluc
tance to vote openly for the party leader, a practice which is of very recent
origin indeed.129 Where there was no clear-cut leader, the monarch retained
some measure of choice in the matter of the appointment of Prime Minister.130

127 In particular, her favourite, Lord Disraeli, was so subtle and diplomatic that it
appeared to all intents and purposes that her will was being done.
128 Unlike Disraeli, Gladstone was no favourite of the Queen: in fact, she s^jj that she
would “sooner abdicate than send for or have any communication with that half
mad fire-brand who would soon ruin everything and be a dictator.
129 The first Conservative Party leader to be chosen by ballot was Edward e^th in 1965.
Before this time the leader emerged gradually - a number of in or ‘straw’
polls was held among caucus members. The Labour Party had admi ecUy followed
a more realistic approach from an earlier stage. . ,.
130 When Neville Chamberlain resigned as Prime Minister early in o War II, the
candidates for the office were Lord Halifax and Sir Winston Cnurc jt js com_
mon knowledge that King George VI personally preferred Halifax u v^$ persuad
ed to appoint Churchill.
Today there is no question of the monarch’s making a personal choice in

this regard.
As far as the second area of choice is concerned, it seems highly improb
able that the monarch would make a personal decision whether to call an
election or to ask the leader of the opposition to form a government. A general
election will almost inevitably be the result of the government’s defeat in
a motion of no confidence.131
It is not certain just how much influence the present royal family and Queen
Elizabeth II, in particular, exert today. The Queen is ostensibly a purely con
stitutional monarch who merely attaches her signature to official documents.
It is undeniably true, however, that she has more knowledge of, and insight
into, matters of state than did her father, George VI.132
VII THE DEVELOPMENT OF THE PARTY SYSTEM

The party system is of much more recent origin than regional representa
tion, parliamentary supremacy and ministerial responsibility. The principle
of regional representation is the oldest of these, and can be traced back to
community law.133 For many centuries each member of Parliament did in
truth represent the voters in his constituency; he was responsible to them
and not to the political party he belonged to. This is why, even today, there
is no legal obligation on a member of Parliament who crosses the floor to
another party to resign his seat and to contest a by-election under the colours
of his new party.134
Although political parties originated as early as the eighteenth century,135
the development of a party system as such happened relatively recently.
When, in 1841, Sir Robert Peel required a measure of loyalty from his
followers, they were rather taken aback.136 In fact, Peel did not set out to
attain recognition as party leader to any marked degree. Sometime later, Dis
raeli stated that “the first duty of an English Minister is to be faithful to
his party”,137 but Mackintosh holds the view that this is not a true reflection
of the state of affairs in Disraeli’s time.
131 It is well known that when the then Prime Minister of the Union of South Africa,
General Hertzog, was defeated in a no-confidence debate at the beginning of World
War II, the Governor-General, Sir Patrick Duncan, did not call a general election,
but asked General Smuts to form a government. Many people were of the opinion,
even at that stage, that he had acted unconstitutionally, but the urgency of the situ
ation may well have prompted his decision. The holding of a general election would
certainly have taken up time that the country could ill afford. See the discussion of
conventions below at 175 et seq.
132 George VI was pitched into office without any prior preparation; various British com
mentators have described him as ‘politically naive’. See Mackintosh op cit at 422.
133 See the discussion above at 28 and below in ch 8.
134 However, it is certainly becoming more customary for such politicians to resign than
it was in the past. The voting public, which is less concerned with the ancient prin
ciples of community law, tends to become indignant if a politician does not discharge
his moral duty to put his credibility to the test. It is probably only a matter of time
before political reality will supersede theory.
136 N Gash Peel and the Party System quoted by Mackintosh op cit at 88-89.
137 B Disraeli Lord George Bentinck (1905) at 253-254, quoted by Mackintosh op cit at 87.
At that stage, that is, the middle of the nineteenth century, individual mem
bers were not formally subject to the party leader or the party caucus.
However, they certainly stood by the general principles advocated by their
party and the policy they supported played a part in the way the voters vot
ed. But the individual members of Parliament regarded themselves as bound
only by the broad political principles of their party and were more concerned
with the interests of the members of their constituencies than with slavish
adherence to the ideas of a particular ministry. Although no disciplinary ac
tion was taken against members of Parliament who voted against their party,
they thought twice before doing so, since a general election could mean that
they lost their seats. It gradually became clear that party solidarity held ad
vantages for both the ministers and the ordinary members of Parliament.
On the other hand, while party ties were informal, a ministry could, on oc
casion, even count on support from the opposition.138
Although a measure of party organization existed, there was no formal
party membership and no party hierarchy that decided who would be stand
ing for the party as a parliamentary candidate. A meeting of all government
supporters was held at the start of each sitting of Parliament to set out govern
ment policy on broad lines and to enlist support from backbenchers.139 There
was no large-scale organization, but the registration of voters was already
being done on a party basis.140 On the other hand, because there was a wide
variety of interests, and because the people had not yet become divided into
two mainstream political parties, any person who stood as an independent
candidate had a good chance of being elected. Mackintosh141 refers to this
period as “the golden age of the private MP”.
The freedom of individual members of Parliament to vote in accordance
with their own views made the task of government very difficult, because
the government could never be altogether sure of its supporters. The govern
ment was responsible for the formulation of policy, but Parliament took an
active part in affairs and did not hesitate to criticize what it saw as malad
ministration. As a result, public opinion was not a manifestation of pres
sure groups outside Parliament but was reflected in Parliament itself.142
The Reform Act of 1867 gave the development of the party system a good
deal of impetus. The electorate was enlarged and the constituencies rearranged
in such a way that they were more homogeneous than before.143 This result
ed in greater public interest in politics, but until the 1870s the majority of
candidates still refused to toe the party line or to acknowledge the leader
ship of one person without reservations. Party members were still at liberty
to vote in accordance with their private conscience, and cross-voting was fairly
common.
The two leading statesmen of the age, Disraeli and Gladstone, both felt
the need for party solidarity. The Conservatives displayed a greater measure
of group loyalty than the Liberals, but Gladstone himself declared that the
138 Mackintosh op cit at 91-92.

140 Ibid.
141 Op cit at 97.
143 Ibid at 175.
party followers as well as the leaders had obligations to fulfil.144 A number

of important political issues arose towards the end of the nineteenth century,
for example, whether Ireland should have home rule, and how to conduct
the Anglo-Boer War; and the electorate began to demand consistency and
unanimity in the political approach followed by Members of Parliament
belonging to the party they supported.
Even before 1867, when the Reform Act was passed, there was some party
organization, but it was regional rather than centralized. An effective Con
servative Control Office came into being under Disraeli. The party offices
began to play an important role, particularly at election time, because they
recruited candidates and financial support and encouraged an esprit de corps
in the voting public. Yet they did not have the real power which party
organizations have today.
By the 1880s the political dividing lines had become so well-defined that
W S Gilbert could comment, in 1882:
How nature always does contrive
That every boy and every gal
That’s born into the world alive
Is either a little Liberal
Or else a little Conservative!145
VIII THE STRUGGLE BETWEEN THE HOUSE OF COMMONS

AND THE HOUSE OF LORDS
The first major clash between the Lords and the Commons occurred in 1832
after the franchise had been extended by the Reform Acts. Strong opposi
tion was encountered against these laws and it was overcome only when the
Cabinet, which enjoyed the support of the House of Commons, threatened
to advise the King to “swamp” the House of Lords by creating enough new
peers to outvote those members who were opposed to the legislation.146 The
King, William IV, was apparently prepared to follow this course, and he had
in fact created sixteen new peers when the House of Lords decided to give
way. The threat to swamp the Lords has been made more than once, but
has never been carried out. There are those who would regard such a step
as unconstitutional. 147
The next serious clash between the Houses occurred from 1909 to 1911
and culminated in the passing of the Parliament Act of 1911.148 The trouble
began in 1909 when the House of Lords rejected a financial bill. A general
election took place in 1910, in which the relationship between the Lords and
the Commons featured prominently. The electorate sided with the Commons,
and this resulted in a dispute in which a number of suggestions and counter
suggestions were made, and the threat to swamp the House of Lords was
again made. The Lords gave way, and the Parliament Act, which curtailed
the powers of the House of Lords to a considerable extent, was passed. A

145 From Gilbert & Sullivan’s famous musical lolanthe, which was first produced in 1882.
146 A similar move was in fact employed in South Africa during the consitutional crisis
of the 1950s — see below at 147.
147 See Taswell-Langmead op cit at 545; A S Turberville The House of Lords in the Age
of Reform (1784-1837) (1958) at 262.
148 1 and 2 Geo V c 13.
financial bill sent to the Lords at least a month before the end of a sitting
and not approved within one month could, from now on, be presented to
the King for his approval, upon which it became law. Other bills could also
be passed without the consent of the Lords if they had been accepted by the
Commons and rejected by the Lords at three successive sittings, provided
at least two years passed between the date of the second reading, when the
Commons approved the bill for the first time, and the date on which the
Commons approved the bill for the third time.
The Parliament Act was amended further in 1949, so that from then on
a public bill need be approved by the Commons and rejected by the Lords
only twice, provided one year has elapsed between the first approval of the
bill by the Commons at its second reading, and the second approval of the
Commons. The 1949 Act was also the result of a clash between the House
of Lords and the House of Commons, this time about the nationalization
of industries, in particular the steel industry.
The House of Lords has undergone a complete metamorphosis as a result
of these Parliament Acts. Its powers have been so reduced that they amount
to no more than the power to delay the passage of a bill for one year. The
membership of the House of Lords has increased from 174 in 1760 to 850
in the mid-1980s, but the real power of the House has declined.
The reason for the decline in the importance of the House of Lords must
be sought, in part at least, in the development of the system of cabinet govern
ment: the Cabinet is directly responsible to and dependent on the majority
party in the House of Commons, which is voted into power by the electorate.
Thus the extension of the franchise, and the modernization of the electoral
system, which was brought about by the various Reform Acts, contributed
to the weakening of the position occupied by the House of Lords. Since the
Cabinet is responsible to the Commons, it was inevitable that the custom
should become established that the Prime Minister should be a member of
that House. A number of nineteenth-century Prime Ministers belonged to
the peerage, but today an aristocrat with high political ambition will have
to divest himself of his title, as Lord Home did in 1963, when he took over
the premiership as plain Sir Alec Douglas-Home. Although a number of Cabi
net ministers have always been drawn from the ranks of the House of Lords,
the House itself does not exercise a great deal of influence on policy-making.
After 1911 it was feared that the House of Lords would lose any useful
function it may once have had. A great deal of thought has therefore been
devoted to the possibility of converting it into a more significant and useful
body. In 1968 the Labour government put forward proposals to convert the
House of Lords into a more conventional type of second chamber, but op
position from backbenchers put paid to the scheme. In 1977 a working group
consisting of Labour peers tried again, but to no avail.
On the other hand there are those who feel that the mere presence of the
House of Lords adds a quality to the British constitutional system which it
would otherwise lack. Hood Phillips, for example, holds the view that without
the Lords “our constitution would be not merely flexible but spineless”,149
and De Smith points out that “real enthusiasm for Lords’ reform is too often
149 Op cit at 168.

found among the eccentric and the naive”.150 He does feel, however, that
reform which could produce a less timid and more professional upper cham
ber would be generally welcomed.
Despite serious proposals to abolish the House of Lords, the essentially
traditionalist British society will probably ensure that this body will remain,
and that it will continue to play a largely undefined but undeniably impor
tant role as a stabilizing and moderating factor. The abolition of the House
of Lords is almost as unthinkable as the abolition of the monarchy.
C The Role of the British Empire in the Development of

South African Constitutional Law151
I THE EARLY PERIOD (1578-1603)
The year 1578 is a useful starting point, because it was in that year that Sir
Humphrey Gilbert was granted a concession, by means of a letter patent
issued by the monarch, to explore foreign countries and to take possession
of them in the name of the Crown. The concession holder was given authority
over the local inhabitants but not over free British subjects, unless they volun
tarily submitted to that person’s authority. English law was deemed to be
the applicable law in such a territory.152
II THE STUART ERA (1603-1689)

luring the Stuart era it became the practice to issue letters patent to found
:ttlements, to associations of persons known as chartered companies, as
ell as to individuals. These ‘corporate colonies’ were more viable than the
proprietary colonies’ founded by individuals.
The first colony was Virginia, which was granted a royal council in 1606
and incorporated as a commercial company in 1609. It was a typical com
munity in the mould of the guilds and the urban communities (for example,
London). Use was made of the old community law formula and, as was the
case with other communities, the King gave permission for the community
to be brought into being by means of a letter patent. In the words of
Andrews:153
Legally, a colony was always considered an inferior and subordinate corporate
body, similar in type to the guilds, boroughs and trading companies of England,
all of which exercised self-governing powers but within certain defined limits.
Even at this stage there was friction between Britain and the colonial com
munites, resulting, in Virginia, in the withdrawal of Virginia’s letter patent
and in the conversion of Virginia into a royal province, namely, a territory
outside England over which the King exercised direct control. Virginia’s legis
lative assembly was, however, left intact.
150 Op cit at 313.

151 The British writer A B Keith Constitutional History of the First British Empire (1930)
divides the imperial period into the First British Empire (1578-1783), the Second British
Empire (1783-1926) the Third British Empire (1926-1949) and the Commonwealth
(1949- ) a classification which makes obvious good sense. However, since 1910 is
a critical date for South Africa, a different classification will be used here.
152 See the discussion in ch 2.
153 C M Andrews The Colonial Background of the American Revolution (1942) at 31.
At this stage the headquarters of the community were in London. (This

was the case even with the colony founded by the Pilgrim Fathers in 1620.)
The letter patent to Massachusetts was the first not to contain a clause that
the headquarters of the governing body must be in London.154 The colonists
could manage their own affairs as long as they did not act in contravention
of the terms of the letter patent. In fact, the colonies were so independent
that several of them155 could form a confederation, the United Colonies of
New England, without having to obtain leave to do so.
It was not clear, however, just how far the colonies’ legislative powers ex
tended, or which British authority could make laws for the colonies. The
colonists held the view that they possessed well-nigh unlimited legislative pow
ers, but James I took the view that control over foreign territories was vest
ed in the King and the Privy Council while Parliament, in particular the House
of Commons, claimed this right for itself.156 After Charles I had been de
posed, Parliament’s authority was firmly entrenched. In 1650 the so-called
Dependency Act was passed, which declared that Britain and all her colonies
and dependencies were subordinate to the British Parliament.157 In fact the
main reason for the adoption of the law was to confirm Parliament’s authority
vis-a-vis the colonies, but the Act remained on the statute book.
Ill FROM THE GLORIOUS REVOLUTION TO THE AMERICAN WAR

OF INDEPENDENCE
During this time the British Parliament’s legislative authority over the colonies
was generally accepted.158 However, the New England colonies, in particu
lar, resented the supremacy of the British Parliament159 and as early as 1707
the colonists in Pennsylvania declared that they would recognize the authority
of the British Parliament only if they were given representation in Parlia
ment.160 The colonial governments of this period have been described as
‘representative institutions but not responsible government’.161
Although most of the colonies reluctantly acknowledged the legislative
supremacy of the British Parliament, some were adamant that Parliament
had no power to tax them.162 Although the British Parliament had never relin
quished the right to tax the colonies, it very seldom exercised this power.
However, it was to be the tax issue which sparked off the American War
of Independence.
The trouble started after Canada became a British possession in 1763. The
British Parliament felt that the American colonies should contribute to the
154 Keith op cit at 28.

155 Massachusetts, Plymouth, Connecticut and New Haven. See H E Egerton A Short
History of British Colonial Policy (1917) at 51.
156 As it was, the King and the British Parliament were locked in a bitter power struggle
at this time.
157 Egerton op cit at 60-61; Keith op cit at 6.
158 The Navigation Act of 1666 provided expressly that colonial laws in conflict with
the Act would be void.
159 Egerton op cit at 107.
162 Egerton op cit at 107 et seq.
war effort since they, too, would benefit from the removal of the French
threat. The practice was that the colonial legislatures themselves would vote
the money required by the British government, but when the amount voted
was insufficient, the British Parliament levied the additional taxes and a
Declaratory Act was even adopted, confirming Britain’s power to do so.
However, matters came to a head in the colonies only when the taxes were
in fact imposed. It was the retention of the import duty on tea in 1773 which
gave rise to the famous ‘Boston Tea Party’, when the inhabitants of Mas
sachusetts dumped all the tea on board a ship in the Boston harbour in the
sea. This incident was the immediate cause of the American Revolution in
1776.
It is of importance that the struggle was both a legal and a political one.
The British government held to the concept of the supremacy or sovereignty
of the British Parliament, as expounded by authorities such as Bodin, Tho
mas Smith and Blackstone,163 while the colonists relied on principles of com
munity law, which permitted only that taxes be granted to the monarch by
the House of Commons as the community of the realm. The American colo
nies were not part of the British community and were not represented in the
British Parliament. There was therefore both a legal and a historical basis
for the call that ‘taxation without representation is tyranny’.
Resistance was aimed at the taxes at first. When the King used armed force
to suppress the resistance the colonists renounced the King because, they con-
snded, he had breached his obligations under the allegiance relationship:
I; should have protected his subjects against the unlawful action of the British
arliament, but had sided with Parliament instead.164
IV THE PERIOD AFTER 1783

The colonies which remained after the loss of the American colonies were
in essence not self-governing colonies but territories under the direct control
of the Crown. The constitutional position in a conquered territory was set
out in Campbell v Hall.165 In brief, the law of the conquered territory re
mained in force until it was changed by Britain; once the inhabitants of such
a territory were placed under the King’s protection they were no longer aliens
but enjoyed the same rights as British subjects who settled in the territory;
once the King had granted a conquered territory a legislative assembly he
lost all legislative power and power to impose taxes in respect of that territo
ry; it was subsequently subject only to the legislative authority of the British
Parliament, just like a settlement.
The colony whose constitutional development during this period is of
greatest relevance to South Africa was Canada: first of all because there were
163 See the discussion of sovereignty below at 135 et seq. Egerton op cit at 172 et seq
supports the view taken by the British Parliament.
164 In the Declaration of Independence of 4 July 1776 the colonists averred that the King
“has abdicated government here, by declaring us out of his protection and waging
war against us”. As a result, the colonists were “absoluted from all allegiance to
the British Crown”.
165 1774 I Cowper 204; 98 ER 1048. See the discussion in ch 2.
two language and national groups in Canada, and secondly because Canada
often took the lead in the constitutional development of the British colonies.
A measure of self-government was granted both to Ontario, which was
predominantly English-speaking, and to Quebec, which was predominantly
French-speaking, in 1791.166 However, this was not the same form of full
self-government that the American colonies had enjoyed. The Governor
received his instructions from the British government and acted in accordance
with these. He appointed the ministers without regard to whether they en
joyed the support of the majority in the legislature. Conflict resulted from
the system of an executive dependent on and responsible only to the Gover
nor and, indirectly, to the British government, as it did in Britain when the
King acted through his ministers without regard to the will of Parliament.
A revolt broke out in Canada in 1837, and although it was relatively easi
ly suppressed, the British government was sensible enough to order an in
vestigation. Lord Durham was appointed as Governor and was given the
mandate to undertake an investigation and to report back to the British
government. His report is regarded as an important milestone in the con
stitutional development of the colonies because it formed the basis of the
successful British colonial policy which was adopted subsequently.167
V LORD DURHAM’S REPORT

Lord Durham’s ideas were not exceptionally original, but he did formulate
them clearly and showed that they could be implemented in practice. They
were not immediately implemented, however, largely because they were some
what too progressive for the government of the day.
The most important constitutional principle formulated by Lord Durham
was that representative and non-responsible government are not reconcilable.
If voters are fit to elect their own representatives those representatives must
bear the responsibility:
It is difficult to understand how any English statesman could have imagined that
representative and irresponsible government could be successfully combined.16’
If this basic principle is disregarded, according to Lord Durham, the result
will be that:
. . . the colonial demagogue bids high for popularity without the fear of future
exposure. Hopelessly excluded from power he expresses the wildest opinions and
appeals to the most mischievous passions of the people without any apprehen
sions of having his sincerity or prudence hereafter tested by being placed in a po
sition to carry his means into effect.169
166 Quebec in fact had a legislative assembly much earlier, but it was abolished by the
Quebec Act in 1774. See Keith Responsible Government in the Dominions 2 ed I (1930)
at 5.
167 See Keith Responsible Government at 14.
168 C P Lucas Lord Durham’s Report II at 74.
169 Lucas op cit II at 82. It is of interest that Lord Durham highlighted one of the major
drawbacks of strict adherence to the doctrine of separation of powers. See the dicus-
sion below in ch 7. The wisdom of his approach has been confirmed by the South
African experience, notably in the failure of bodies such as the Coloured Persons
Representative Council; see the discussion in ch 21.
Lord Durham therefore recommended that, in future, the colonial executive

should be responsible to the representatives of the colonial populace and not
to the British government. In all matters not directly involving the relation
ship between the mother country and the colony, the administration ought
to be conducted in accordance with the wishes of the majority in the legisla
ture. Thus the Governor should appoint the ministers from the ranks of those
enjoying the support of the majority in the legislature.170
Unlike Montesquieu, therefore, Lord Durham did not believe that a sepa
ration of powers was necessary for good government. Oddly enough, though
Lord Durham was full of praise for the American system of government,
which permitted its citizens to live . under a perfectly free and eminent
ly responsible government”,171 he apparently did not realize that the execu
tive in the United States was independent of the legislature, and went so far
as to say that an
entire separation of the legislative and executive powers of a state is the natural error of
government desirous of being free from the check of representative institutions.172
Of course, the position in Canada was not in all respects comparable with
that in the United States, since both the executive and the legislature were
elected in the United States while the Canadian executive was appointed by
an outside agency. It is unquestionably true that an absolute separation of
powers was undesirable in a colony, where it could result in the legislature’s
becoming totally impotent in the face of an executive dominated by the
representatives of the colonial power.
As far as legislation was concerned, Lord Durham recommended that there
hould be as little interference as possible in the affairs of the colony and
.hat the power to veto colonial legislation should be exercised as little as
possible.
Once Lord Durham’s recommendations had been implemented in Cana
da, the policy he supported became the accepted pattern in colonies with a
settled white population. The principle that the governors would appoint the
executive from the ranks of those who enjoyed the support of the majority
in the legislature was, however, never embodied in a written rule of law: it
remained a convention.
Lord Durham recommended that British supremacy should remain intact
in matters such as foreign relations, trade with Britain, other British colonies
and foreign powers, and Crown land.173 He did not foresee that the implemen
tation of his ideas would ultimately lead to the breaking up of the British
Empire and the achievement of fully independent status by the colonies.
VI THE DEVELOPMENT OF SELF-GOVERNMENT IN THE BRITISH

COLONIES
The Cape Colony was granted a form of limited self-government in 1853
but representative and responsible government only in 1872.174 The British
170 Lucas op cit II at 279; Egerton op cit at 263.

171 Lucas op cit I at 139.
172 See Lucas op cit I at 139 and 261.
173 Lucas op cit 11 at 394.
174 Egerton op cit at 307. The constitutional development of the South African colonies
will be discussed in greater detail below.
government was reluctant to grant self-government to the Cape because of

the problems arising in relation to the non-white population and the friction
which often occurred between the colonists and the British Colonial Minister.
Even though the nineteenth century was a period of unprecedented imperial
expansion, the British were sometimes inclined to give up their claim to a
territory altogether rather than to take on its problems, as was done in the
case of the Transvaal in 1852 and the Orange Free State in 1854.175
The various colonies all enjoyed essentially similar legislative powers. These
were restricted in the following respects:
(i) by the colonial constitutions176 which invariably excluded the power to
pass extra-territorial legislation177 and often contained specific restraints as
well;178
(ii) by the fact of the colonial legislatures’ subordination to the British Parlia
ment. It was generally accepted that any colonial law which conflicted with
a British law was invalid,179 by virtue of the so-called doctrine of repugnan
cy. The question was whether colonial laws would be invalid if they were
in conflict with any British law or with English common law, or only if they
were in conflict with a British law which had expressly been rendered ap
plicable to the colonies. If the first interpretation were the correct one it would
have meant that the legislative powers of the Colonial legislatures were se
verely restricted. This was highlighted in South Australia where Boothby J
repeatedly declared colonial laws invalid because they were in conflict with
English common law. Even if the Governor or the monarch had approved
the measure, Boothby would still declare it invalid because it was in conflict
with royal prerogative or instructions. He evidently would not countenance
the idea that the monarch could waive the royal prerogative. As a result of
this uncertainty the task of the colonial legislatures became a virtually im
possible one.180 The Colonial Laws Validity Act was therefore passed in 1865
to clarify matters.
VII THE COLONIAL LAWS VALIDITY ACT181

It is often forgotten that the Colonial Laws Validity Act was “an Act to re
move doubts as to the validity of colonial laws”, that is, a Validity Act rather
than an Act imposing restrictions on colonial legislatures. It now became
175 Egerton op cit at 300 and 301. See the discussion of the constitutional history of the
Transvaal and OFS below, at 64 et seq.
176 These constitutions usually took the form of a British Act of Parliament. The grant
ing of self-government by means of letters patent was no longer in vogue after the
seventeenth century, although the colonial legislature was, on occasion, empowered
by way of a letter patent to draw up its own constitution subject to certain conditions.
177 According to H Jenkyns British Rule and Jurisdiction Beyond the Seas at 69, the
power “to make laws for the peace, order and good government of the colony”
excluded the power to legislate extra-territorially, but the phrase was interpreted differ
ently at a later stage. During the imperial conference of 1930 (see the discussion below
at 209-210) it was acknowledged that “the subject is full of obscurity”.
178 Eg the British North America Act of 1867 which created the federal state of Canada
and in which the powers of the central and federal governments were demarcated.
179 Jenkyns op cit at 71.
180 See Jenkyns op cit at 288 et seq; Keith Responsible Government in the Dominions
(1912) I at 402-408.
181 28 & 29 Victo c 63, 1865.
evident that colonial legislation would be invalid on the ground of its repug
nancy to a British law only if it was clear that the British Parliament had
intended that particular law to apply in that colony. The colonial legisla
tures were therefore fully competent to amend the common law, whether
the common law of Britain or of another country. In the Cape this meant
that the legislature could amend Roman-Dutch law, which remained the basic
law182 and, in some cases, English common law, which applied in certain
spheres. English statute law which had been introduced to the Cape Colony
as part of the common law and had not been rendered applicable to the colony
expressly or by necessary implication, could therefore also be amended.183
Furthermore, it was clearly stated that a colonial law would not be declared
invalid solely by reason of its having been approved by the Governor in con
travention of royal instructions.184 Finally, the colonial legislatures could even
amend their own constitutions if the prescribed formalities were observed.185
Although the Colonial Laws Validity Act placed the colonial legislatures
in a much stronger position than before, considerable restrictions remained.
Apart from the fact that they could not adopt extra-territorial legislation or
legislation repugnant to those British laws which were directly applicable to
the colony in question, each bill had to be approved by the monarch or the
Governor.
The Governor could assent to a bill; withhold assent; reserve it for the
nonarch’s pleasure; or return it to the legislature. The Governor had some
iscretion to decide what to do with a bill, but in general he received fairly
?mprehensive instructions. The position was not the same as that in Britain,
Inhere the royal assent had become a mere formality.
When a bill had been reserved for the monarch’s pleasure the latter could
assent to it; withhold assent; or send it back to the legislature with emenda
tions. In addition, bills that had been assented to by the Governor could be
disallowed within a certain period. If this happened, the law became null
and void ab initio even though it had enjoyed legal force prior to disal
lowance.186
All these powers were exercised by the monarch on the advice of his or
her British ministers. The instructions given to the Governor were also drawn
up by these ministers and were merely signed by the monarch. Thus the Brit
ish government retained the final say in colonial matters, but it generally
acted with tact and diplomacy and realized that the power of disallowance,
in particular, was one that could give rise to dissatisfaction in the colonies.
To prevent this, provision was made in the instructions to the governors that
legislation which could affect British interests, should be reserved.187

183 See Jenkyns op cit at 71-72.
184 S 4. The monarch could always act by virtue of the so-called power of disallowance,
viz the power to veto a law within a certain period if the governor had acted contrary
to royal instructions. The Colonial Laws Validity Act prevented a law being declared
invalid a long time after it was passed.
185 S 5.
186 The Dutch version of ‘disallowance’ in the South Africa Act was ‘ontzegging’.
187 In 1878, after the Canadian Federation had become a reality, new instructions were
issued to the Canadian Governor-General in which obligatory reservation was not
mentioned. However, the British government was not prepared to go as far as the
Within less than fifty years after the passing of the Colonial Laws Validi
ty Act, Canada188 and Australia189 became federations, and the four former
South African colonies merged to form the Union of South Africa.
VIII CONSTITUTIONAL DEVELOPMENT IN SOUTH AFRICA UP TO

1910
1 The Cape Colony

After the second British occupation of the Cape in 1806, the Dutch East In
dia Company’s rule finally came to an end. For the first two decades there
after, virtually all powers of government were vested in the Governor, whose
legislative and executive powers were subject only to orders in council, let
ters patent and the royal instructions.
The first step in the process of constitutional development came in 1825
with the creation of a nominated Advisory Council, composed of the Chief
Justice and leading officials. Legislation was now technically in the hands
of the Governor-in-Council, but the Council had such limited powers of con
trol over the Governor that it proved ineffectual.190 Two unofficial mem
bers were added to the Council in 1827, but the call for a more representative
form of government continued. In 1828 judicial and local administrative re
forms were introduced, and the freedom of the press was recognized.
In 1834 Governor Sir Benjamin D’Urban produced a new Constitution
for the colony.191 It provided for an Executive Council composed of the four
most senior officials and the Governor, who presided at its meetings, and
a Legislative Council, composed of the same four officials, the Attorney-
General and from five to seven unofficial nominees of the Governor. The
Legislative Council was empowered to legislate on a restricted number of
topics. Although the Executive Council exercised control over the Gover
nor’s powers in theory, he remained extremely powerful in practice, since
he had both a deliberative and a casting vote in the Council and, moreover,
retained the power of disallowance.
Furthermore, the Crown could still legislate for the colony, disallow legis
lation or simply allow an ordinance to lapse by not approving it within three
years.
Elected municipal boards were instituted in 1837 — truly representative
institutions therefore started here. But the demands for representative govern
ment at the central level were not satisfied, since the Legislative Council en
Canadians wanted and made it clear that the possibility of reservation still existed.
But it was only in Canada that obligatory reservation was abolished. A measure of
obligatory reservation was retained in South Africa even after Union because Britain
and the Union differed on racial issues. See Keith Responsible Government in the
Dominions at 1011.
188 The British North America Act 1867.
189 The Commonwealth of Australia Constitution Act 1900.
190 For a detailed discussion of the historical development during this period see Hahlo
& Kahn The Union of South Africa: The Development of its Laws and Constitution
(1960) ch 3.
191 The separation of the eastern and western parts of the colony had been requested,
but this was refused.
joyed no popular respect. The British government was reluctant to accede

to these requests, for various reasons, among them the colour question, the
separatist movement in the eastern Cape and the depopulation of the Colony
as a result of the Great Trek. However, a new Constitution eventually saw
the light of day in 1853.
For the first time there was to be a Parliament, consisting of the Gover
nor and two Houses: the upper House (the Legislative Council) was to be
wholly elected — a departure from British colonial practice. It was composed
of the Chief Justice and fifteen members, elected in single electoral divisions.
Four of the members vacated their seats every five years.192 The lower House
(the House of Assembly) was composed of forty-six members elected in elec
toral divisions, each returning two members, except for Cape Town (four
members). Franchise qualifications were low, and non-Whites were not ex
cluded. Any voter193 could stand for election to the House of Assembly, but
higher qualifications were required for election to the Legislative Council.194
Parliament’s powers were restricted in so far as appropriation bills had
to be recommended by the Governor. Money bills had to originate in the
House of Assembly but — yet another unique feature as far as upper Houses
were concerned — the Legislative Council could vote to increase or decrease
taxation or expenditure. The Governor had to convene Parliament once a
year; he could recommend laws or amendments to bills presented to him;
and he had the power to reserve assent. A reserved bill lapsed if it was not
assented to within two years. The Crown could also disallow legislation within
two years after it had been approved.
The executive authority was vested in an Executive Council, whose mem
bers could sit and speak in both Houses but who could not vote and were
lot eligible for membership of either House. The new Constitution there-
ore provided for representative but not responsible government.
The first elections were held in 1854, on a non-party basis; the first Parlia
ment met soon afterwards. Its internal rules were based on the Westminster
model and recognized freedom of speech and debate. Local government
received a boost with the establishment of district councils, institutions which
have survived until today.
Unlike Canada and Australia, the Cape had not been entrusted with a
responsible form of government, and this caused a great deal of dissatisfac
tion in the colony. No changes took place in this regard for the next twenty
years or so, largely because the Executive Council generally acted correctly
and constitutionally. In 1872 a bill converting the Constitution to a system
of responsible government was passed in both Houses. By now the imperial
government was eager to rid itself of the burden of maintaining troops in
the Colony and responded favourably.
192 Unless the Council was dissolved at the same time as the lower House.
193 Provided he did not hold an office of profit under the Crown and was not an unre
habilitated insolvent.
194 Candidates had to be at least thirty years old and had to own immovable property
worth £2000 over and above any mortgage burdening it.
The first minor crisis arose in 1878 when the Governor, Sir Bartie Frere,
dismissed the Molteno ministry in circumstances which did not constitute
an emergency. In all other cases it was the function of the legislature to sig
nify a lack of confidence in the government. Parliament supported Frere,
probably not realizing that the Governor had acted unconstitutionally.195 For
tunately this was an isolated incident and the course of constitutional
development was not affected by it.
A number of changes took place between 1872 and the turn of the centu
ry: the composition of Parliament, method of electing the upper House and
the boundaries of the electoral divisions all underwent changes from time
to time (although the urban areas remained under-represented). The fran
chise requirements were made stricter as the colony’s boundaries were ex
tended and increasing numbers of tribal Blacks came under its jurisdiction.
The office of Prime Minister was recognized in an enactment passed in 1879
and the Powers and Privileges of Parliament Act of 1883 defined and en
larged the existing rights and privileges of both Houses. Voting by secret ballot
was introduced in 1892. Finally, although English was the only official lan
guage, Dutch was often used in parliamentary debates.
2 The ‘Trekker’ States

The various ‘Trekker’ republics which resulted from the exodus of the ‘Trek-
kers’ from the Cape Colony are not of major importance constitutionally,
but are discussed so that a complete picture can be obtained.
In November 1836 an assembly of ‘Trekkers’ met at Thaba Nchu to elect
seven ‘judges’ to act as a court of ‘landdrost’ and ‘heemraden’ and to form
a legislature to be bound by the rules made at a general meeting of the people
(‘Het Volk’). The executive authority was vested in a People’s Council or
‘Burgerraad’, but this was replaced the following year by a new organ of
government chosen the following year. According to the new ‘Constitution’
there was to be a Governor or President, a President-Judge and a ‘Burger
raad’ or ‘Raad van Politic’ composed of five persons. The exact powers and
functions of this body were never properly defined: it appears that it per
formed all three government functions — legislative, executive and judicial.196
In 1838, after the majority of the ‘Trekkers’ had moved to Natal, the
‘Grondwet’ of Natal was drafted in the form of Instructions for the Council
of Representatives of the People.197 It made provision for the annual elec
tion of a ‘Raad’, which apparently reigned supreme as legislature, executive
and judiciary. In theory the ‘Trekkers’ remaining at Winburg and the new
community at Potchefstroom also fell under the jurisdiction of the ‘Raad’,
but a separate subordinate legislature or ‘Adjunct Raad’ was established for
Potchefstroom in 1841 and for Winburg in 1843. The decisions of these bodies
195 Parliament also evidently did not perceive the incompatibility of the Governor’s twin
functions viz on the one hand, that of a head of a colony having a responsible govern
ment and on the other, that of a High Commissioner accountable to the British
Government.
196 See Hahlo & Kahn op cit at 60.
197 Ibid at 61 fn 67 and the authorities cited there.
had to be confirmed by the ‘Raad’, which sat at Pietermaritzburg. The sys

tem did not prove feasible in practice and, in any event, the British occupied
Natal in 1842. British allegiance was accepted in 1843, and Natal remained
a British Colony until Union.
After the collapse of the Republic of Natal, the other groups broke away
and repudiated their connection with Natal. A new sovereign republic was
declared by the ‘Burgerraad’ in Potchefstroom on 9 April 1844 and the
famous ‘Thirty-three Articles’ setting out the constitution of the new state
were adopted. These articles were to form the basis of the constitution of
the South African Republic. Once again a judiciary was created with general
legislative powers. The ‘Volksraad’ was to be elected annually, and no pro
vision was made for a separate executive or an executive head, though Andries
Hendrik Potgieter was possibly the first de facto head.198
After the British annexation of the land between the Orange and the Vaal
in 1849, a meeting was held at which the articles were confirmed, and it was
decided that the jurisdiction of the peripatetic ‘Volksraad’ was to extend over
the entire Transvaal. The British government recognized the independence
of the republic in the Sand River Convention of 1852.
British influence over the Orange River Colony was terminated two years
later, in terms of the Bloemfontein Convention, after it became apparent
to the British government that the colony’s defence demands were going to
prove too burdensome.
At this stage, therefore, there were in South Africa the two independent
‘Trekker’ republics (the Orange Free State and Transvaal) and the British
colonies of the Cape and Natal.
3 Natal
Initially the colony was governed by a Lieutenant-Governor and Executive
Council of five officials, but it soon became apparent that it was inconvenient
to be governed from the Cape. In 1847 a nominated Legislative Council was
instituted by letters patent. This council was composed of the Officer
Administering the Government and two or three other persons. Three per
sons were added to the executive in terms of the royal instructions.
The Lieutenant-Governor alone could initiate legislation, and he had both
a deliberative and a casting vote. Laws purporting to affect the constitution
of the Legislative Council, the royal instructions or any British statute were
invalid, as were laws subjecting non-Whites to legal disabilities, whilst or
dinances affecting revenue, the royal prerogative or the public service required
special leave, even before they were introduced. In addition, the Crown could
disallow any ordinance wholly or in part.
It is hardly surprising that this system enjoyed little support and that
demands for representative institutions were becoming more insistent, but,
mainly because of the colour question, the British authorities did not think
the time was ripe for these requests to be granted. What constitutional
198 In 1845 Potgieter left Potchefstroom, after further dissension, and established a new
‘Volksraad’ at Ohrigstad. After still more conflict, Potgieter continued north some
time later, establishing yet another republic.
progress there was, was made in the sphere of local government, until at last
the Charter of 1856 was granted following the recommendations of Sir George
Grey, then Governor at the Cape.
The precedents of New South Wales and the West Indies were followed
in this instance: the legislature was to consist of a single chamber, the Legis
lative Council, three-quarters of whose members were elected and one-quarter
nominated. There was no explicit colour bar but the franchise qualifications
were high enough to ensure that virtually no Non-Whites would qualify. In
most British colonies the Governor presided over the legislature, but in Na
tal a Speaker was elected. The Governor had to recommend appropriation
bills and he was empowered to recommend other legislation as well. In addi
tion, he could return bills with amendments he recommended, assent to or
refuse assent to bills, or reserve bills. In certain cases reservation was com
pulsory. The Crown could disallow ordinances within two years and could
even revoke the Charter. The Council itself could amend the Charter, but
could not abolish or curtail the powers of reservation and disallowance.
The Lieutenant-Governors clashed with the Council from the outset, usual
ly about the colour question. In 1865 all Blacks were disenfranchised except
for those specially enfranchised by the Lieutenant-Governor. A Native Trust,
administered by the Lieutenant-Governor and members of the executive, had
been set up in 1864 to administer communal land occupied by Blacks.
A Supplementary Charter was granted in 1869, whereby the Governor could
appoint two additional members to the Executive Council from the elected
members of the legislature. This was followed by a further supplementary
Charter in 1872 which altered the civil list to enlarge the resources for ad
ministrative purposes. These were attempts to produce greater harmony in
government.
In 1874 the Legislative Council passed a bill to establish two Houses and
to institute responsible government, but the bill failed to obtain royal as
sent. By way of compromise, eight non-official nominees were added to the
legislature.199 The colonists remained dissatisfied and again passed a draft
bill proposing the institution of two chambers and responsible government,
which was again rejected.
Yet another futile attempt was made in 1881 to achieve responsible govern
ment. This time the solution was sought in an enlarged legislature. The non
white franchise remained the chief stumbling-block. Eventually some com
promise was reached with the Constitution Act of 1893: there was to be a
nominated upper House (the Legislative Council), half of whose members
would retire after five years, the rest after ten; and a lower House (the Legis
lative Assembly) elected for four years. Ministers had to be members of one
of the Houses (though not more than two could come from the Legislative
Council) or become members within a certain time.
In this respect the Natal Constitution was more ‘advanced’ than that of
the Cape. As was the custom, the Crown could reserve bills or disallow them
199 It remained a representative legislature for the purposes of the Colonial Laws Validity
Act of 1865, and could make laws relating to its own Constitution, powers and pro
cedure - see Hahlo & Kahn op cit at 68.
64 Introduction to South African Constitutional Law __
within two years. The Governor was entitled to transmit bills to the legisla
ture, and the Legislative Assembly had the sole right to decide on appropri
ation — on the recommendation of the Governor.
The shortage of skilled labour had led to the immigration of Indians from
1860, which in time gave rise to the problem of the Asiatic vote. A protest
led by Mahatma Gandhi resulted in the British refusal to approve the disen
franchisement of Indians, but eventually the law excluding all Non-Whites
from the vote was passed in 1896. The last two decades leading up to Union
were marked, more than anything else, by mismanagement in the adminis
tration of non-white affairs.
4 The Orange Free State to 1900

Those representatives of the people who were authorized to conclude the
Bloemfontein Convention were also empowered to take over the government
of the territory until a new dispensation could be established. However, they
opted to summon a ‘Volksraad’ immediately so that a constitution could be
drafted. The ‘Grondwet’ produced by this process showed a marked
resemblance to the Constitution of the United States of America and in fact
some of its provisions were taken directly from the American Constitution.
It also displayed some of the features of the French and Dutch Constitu
tions and borrowed from the legal system obtaining at the Cape as well. It
may perhaps be described as the first autochthonous constitution to emerge
from Southern Africa. It turned out to be a very sound constitution and a
successful one. Its draftsmen, in the words of Bryce:200
came as near as any set of men ever have come to the situation which philosophers
have so often imagined, but which has so rarely in fact occurred - that of free
and independent persons uniting in an absolutely new social compact for mutual
help and defence, and thereby creating a government whose authority has had,
and can have had, no origin save in the consent of the governed.
The first ten years were, nevertheless, extremely difficult ones, but after Presi
dent Brand took over the reins of government in 1864 the Orange Free State
was a ‘model republic’, orderly and stable.
The Constitiution provided for a unitary state with a unicameral legisla
ture, popularly elected by Whites only, but not a sovereign legislature, since
the Constitution was a fundamental law which guaranteed certain civil rights.
Amendment of the ‘Grondwet’ required a special procedure. For the first
time, as far as Trekker constitutions were concerned, there was some mea
sure of separation between legislature, executive and judiciary, although it
cannot be said that a separation of powers was present to the extent that
it is found in the American constitution. The President, who was elected by
popular vote, was the head of the executive but had no ministry as such.
He governed with an advisory council appointed by the legislature. The Presi
dent himself was not a member of the legislature and had no right to veto
legislation, but could initiate it.
200 James Bryce Studies in History and Jurisprudence (1901) Vol 1 at 360-361, quoted
by Hahlo & Kahn op cit at 73.
The history of the Republic of the Orange Free State is remarkably free
from political and constitutional conflict; this was due in large measure to
the fact that, unlike the Transvaal, the Free State had a homogeneous White
population and that the little Republic was not beset by major political, social
and economic crises during this period.
It is of interest that it took until 1866 before it was finally settled precisely
who would be entitled to vote. Franchise requirements and citizenship laws
were amended on a number of occasions. In fact, the franchise requirements
remained liberal until the Jameson Raid in the Transvaal alerted the Free
Staters to the ‘dangers’ posed by the influx of large numbers of immigrants.
The ‘Volksraad’
The ‘Volksraad’ (legislature) was elected for four years, half the members
retiring every two years — this in imitation of the Dutch Constitution. Can
didates for membership did not need to be citizens of the Free State until
1866; all that was required was that the person concerned should have at
tained the age of 25 years, been resident in the Republic for at least one year,
and should possess unburdened immovable property worth at least £200. Con
viction of a criminal offence constituted the only disqualification.
The function of the ‘Volksraad’ was said to be: “to make the law, regu
late the government and the finances of the country”.201 Two restrictions
were placed on its legislative powers: first of all, any amendment to the
‘Grondwet’ had to be adopted by a three-quarters majority in three succes
sive annual sittings;202 secondly, the ‘Volksraad’ was not empowered to pass
legislation which curtailed the citizens’ rights to hold peaceful assemblies,
or rights of personal freedom and property or the freedom of the press, sub
ject to the reservation “provided the law is not contravened”. The law was
said to be applicable equally and impartially to all (nothing was said about
Non-Whites, however!), but there was no guarantee of freedom of worship
— the ‘Volksraad’ was enjoined to promote and support the ‘Nederlandsche
Hervormde Kerk’ (later changed to the ‘Nederduitsch Gereformeerde Kerk’).
Like the American Constitution, the Free State Constitution did not
explicitly confer on the judiciary the power to test legislation and declare
it invalid, but, as was the case in the United States,203 it gradually became
accepted that the courts did have this power. Even though the judiciary was
not constitutionally entrenched, its independence was recognized and the
Volksraad acted constitutionally throughout, “though at times grievously
vexed”.204
The High Court expressed itself about the validity of legislation on sever
al occasions. In Cassim & Solomon v The State205 legislation requiring Asiatics
entering the country to obtain the consent of the President was held not to
be in conflict with the provision in the Constitution guaranteeing equality
before the law; in The State v Gibson206 Hertzog J held that the ‘Volksraad’

202 This was amended to two sittings in 1866.
203 The leading case here is the famous one of Marbury v Madison 1803 1 Cranch 137 (US).
204 Hahlo & Kahn op cit at 77.
205 Reported in (1892) 9 Cape LJ 58.
206 (1898) 15 Cape LJ 1.
was the supreme legislative authority, but was nevertheless controlled and
limited by the Constitution so that laesae majestatis could not be committed
against the ‘Raad’; and draft rules of order giving the ‘Raad’ certain powers
to enquire into and punish breaches of its privileges were severely criticized
by Melius de Villiers CJ, resulting in their withdrawal by the ‘Raad’.
However, the ‘Volksraad’ did have some judicial functions: it was
empowered to decide on the validity of the election of a member207 and it
could ‘impeach’ the President. The President could be removed from office
if he became insolvent, or was sentenced for a criminal offence. The ‘Volks
raad’ could try the President and other public officers for treason, bribery
and other ‘serious crimes’ and, if they were found guilty, dismiss them from
office and bar them from future public office. A three-quarters majority of
members present at a full ‘Volksraad’ meeting had to be in favour of such
measures.
The ‘Volksraad’ also enjoyed certain powers of control over the execu
tive: it was entitled to choose the three unofficial members of the Executive
Council and, understandably, tended to choose them from its own ranks.
A presidential appointment made between sessions of the ‘Raad’ had to be
confirmed by the latter, and the President had to obtain its consent for decla
rations of war, conclusions of peace and of conventions or treaties. In prac
tice the President would declare war or make peace and then request ex post
facto ratification from the legislature - approval which was not invariably
granted. Although the President was elected by popular vote, the ‘Volks-
aad’ had to recommend candidates for the presidency. If a temporary
/acancy arose, the ‘Raad’ appointed an acting President.
The ‘Volksraad’ exercised control over the President in that he was respon
sible to the ‘Raad’. Moreover, any appeal against his actions had to be lodged
with the ‘Volksraad’.
The President did not preside at meetings of the ‘Volksraad’; the ‘Raad’
itself elected a Chairman from its ranks, and he possessed a casting vote.
The President, as well as the Chairman and the majority of the Executive
Council, however, could convene extraordinary sessions of the ‘Volksraad’.
The President
Persons entitled to vote for members of the ‘Volksraad’ were entitled to vote
for the President. Candidates for the presidency were not subject to any
qualifications whatsoever. (Presidents Boshof, Pretorius and Brand were not
Free State ‘burghers’ - in fact, they were not even domiciled in the terri
tory.) The President was elected for five years and was eligible for re
election.208
The President’s main function was executive, but he was also expected to
advise the ‘Raad’. He could introduce bills into the ‘Volksraad’, and partici
pated in the debates right from the outset, although, unlike the American
President, he possessed neither a vote nor a veto. The fact that the President
207 This provision was taken almost verbatim from the American Constitution. In this
respect the ‘Volksraad’ often apparently failed to act constitutionally, but attempts
to transfer the power to the jurisdiction of the courts failed.
208 President Brand served five successive terms. The President of the USA may not serve
more than two successive terms.
___________ The Historical Development in South Africa up to 67
emerged as the most powerful figure in the legislature was due at ieast jn
part to the fact that there was no party political system.
The President was assisted in his executive function by the Executive Coun
cil, composed of the ‘landdrost’ of the capital, the Government Secretary
and the three unofficial members appointed by the ‘Volksraad’. The Presi
dent presided over its meetings and had a casting vote. However, the Execu
tive Council could not be termed a ministry in the proper sense. Since the
Treasurer-General was not a member, finance remained in the hands of the
‘Volksraad’. Moreover, the President alone and not the Executive Council
as a whole, was responsible to the ‘Raad’, nor was he obliged to act on the
advice of the Council in all cases. The President was responsible for the func
tioning of the state departments and the public service. He declared war,
made peace and concluded treaties and conventions with the consent of the
‘Raad’, but declared martial law and exercised the right of mercy with the
co-operation of the Executive Council. In practice, he was the dominant figure
in both the executive and the legislature. Even though the legislature appeared
in theory to be in a strong position vis-a-vis the President, the latter called
the tune in practice. The Commandant-General himself was subject to
presidential instructions in war-time. The only issue on which the ‘Volks
raad’ steadfastly refused to budge was that of the presidential veto of legis
lation, which several presidents tried to introduce.
5 The South African Republic (Transvaal) to 1900

Amazingly, there was no constitution at all for the first six years following
the Sand River Convention. A peripatetic ‘Volksraad’; no real executive (only
‘Krijgsrade’ and a ‘Kommissieraad’) which had no real legal basis other than
the Instructions of 1853 (which were virtually identical to the Natal Instruc
tions of 1838) — little wonder that the country was unstable. A ‘Grondwet’
was mooted at a meeting of the ‘Volksraad’ in 1855, and a commission
appointed to draft a code, but the process was severely hampered by the
various factions existing in the ‘Trekker’ community in the Transvaal. Even
tually a constitution of sorts was produced in 1860, by which time all the
smaller would-be republics had decided to throw in their lot with the
Transvaal.
The new ‘Grondwet’ was a strange admixture of provisions taken from
the Batavian Constitution, the ‘Grondwet’ of the Orange Free State and
numerous clauses of a non-constitutional nature. Most of the oddities and
inconsistencies were ultimately eliminated, but there was one glaring weak
ness that remained: it was not clear whether the Constitution was a fundamen
tal law superior to the legislature or not. Furthermore, though the ‘Grondwet’
was not expressly entrenched, no express provision was made for the way
in which it was to be amended. Although the matter is by no means clear,
there were several indications that sovereignty vested in the people and not
in the legislature. This issue was to lead to a constitutional crisis in the 1890s.
The ‘Grondwet’ stated that any matter had to be decided by a three-quarters
majority vote, but in fact the ‘Volksraad’ legislated by simple majority —
in three different ways. First there was legislation passed in accordance with
the formal procedures of the ‘Grondwet’, including the requirement of three

months’ notice of legislation; secondly, where the matter was urgent, the three
months’ notice was dispensed with, and finally, there were informal resolu
tions (‘besluiten’), which were to prove the subject of the judicial crisis.209
The features of the Transvaal ‘Grondwet’ were the following: no equality
existed between Whites and Non-Whites; the three organs of government
were clearly separate; the unicameral legislature was elected by universal adult
male white vote; members of the legislature, executive and judiciary had to
belong to the Dutch Reformed Church; there was a popularly elected State
President who presided over an Executive Council which included the
Commandant-General (popularly elected), officials and nominees of the legis
lature, and which was not responsible to the legislature; the judiciary was
composed of elected ‘landdrosten’ and ‘heemraden’; there were no constitu
tionally entrenched civil liberties.210
From 1877 to 1881 there was an interlude of British rule which was termi
nated by the Pretoria Convention of 1881, after the First War of Indepen
dence. The Pretoria Convention was superseded by the London Convention
of 1884, in terms of which the only limitation imposed on the Transvaal rela
ted to the conduct of foreign affairs: the Republic undertook not to con
clude any treaty with any state other than the Orange Free State, without
he approval of the Crown. However, it remained a moot point whether the
3uth African Republic was a fully sovereign state.
During the next fifteen years the ‘Grondwet’ was constantly being redrafted
Ind amended. By the time it could be said that a finished product had been
achieved, the Anglo-Boer War was about to break out.
The Legislature
The seat of government was to be at Pretoria, a single ‘Volksraad’ elected

for two years by adult male burghers who were members of the ‘Nederduitsch-
Hervormde’ Church.211 Half of the ‘Volksraad’ members retired each year,
in accordance with the Free State formula, but they were eligible for re
election. Disqualifications for election were coloured blood (not surprising
ly), openly bad behaviour, a dishonouring sentence or — a rather unusual
209 In the OFS too, the practice of passing ‘besluiten’ informally gave rise to confusion.
210 The ‘Nederduitsch-Hervormde’ Church was stipulated to be the state church and the
people’s antipathy to the Roman Catholic Church was expressly stated. However,
the reference to a specific branch of the Dutch Reformed Church was dropped sub
sequently, as was the anti-Catholic provision (in order to foster good relations with
the Portuguese) but non-Protestants were excluded from both legislature and execu
tive throughout. The freedom of the press was initially granted subject to the law
governing defamation and injuria but in 1896 a Press Law was passed giving the ex
ecutive wide powers of control over the press. This caused a storm of protest and
the draft ‘Grondwet’ of 1899 left the position open. Another enactment which was
subject to heavy criticism was Law 6 of 1894 which restricted freedom of assembly.
But the civil right which caused the most trouble in the Transvaal was the right to
vote. See Hahlo & Kahn op cit at 103-107 for an account of the controversial history
of the franchise in the South African Republic.
211 The religious test for voters was abolished in 1858 and the test for ‘Volksraad’ mem
bers liberalized in 1873 to membership of a Protestant Church.
provision — relationship to another member. Father and son, brothers, un

cle and nephew therefore could not sit in the ‘Volksraad’ together. The Presi
dent summoned the ‘Volksraad’, but it was presided over by a Chairman
elected by the ‘Raad’ for one year. The President could introduce laws,
whether his own or those submitted to him by the people;212 members of
the ‘Volksraad’ could also propose laws, but had to obtain the prior consent
of the ‘Volksraad’ to table them and had to give a preliminary indication
of their contents. Members of the Executive Council were entitled to sit in
the ‘Volksraad’ but had no vote. The ‘Volksraad’ could exclude the Presi
dent from its sessions but did not do so; the President’s personality was such
that it militated against his exclusion. However, the Executive Council was
not, as in the Orange Free State, an insignificant body; it wielded consider
able influence and in fact the President obtained the approval of the Coun
cil before proposing legislation.
In 1890 the legislature was altered radically and provision was made for
a First ‘Volksraad’ and a Second ‘Volksraad’ in an attempt to accommo
date the clamouring demands for inclusion of ‘Uitlanders’ in the governmental
process. The First (and most important) ‘Volksraad’ had more stringent
qualifications both for members and for voters, the Second ‘Volksraad’ was
in every respect less important and less powerful. The Second ‘Volksraad’
had no power to levy taxes or pass appropriation bills, it could legislate on
a limited range of topics only, and its laws had to be endorsed by the First
‘Volksraad’. The President had the power to veto the legislation of the Second
‘Volksraad’, a power he never had in respect of the First ‘Volksraad’. After
the creation of the Second ‘Volksraad’, the President had to be elected by
and from the ranks of citizens with First ‘Volksraad’ suffrage. No official
voters’ rolls existed, the lists of voters being compiled by ‘veldcornetten ’.
There were no safeguards against abuses and irregularities and the ‘Volks
raad’, not the courts, was the sole judge of the qualifications of members
and the validity of elections. Voting by secret ballot was introduced only in
1897.
The Executive
The executive authority in the South African Republic was in the hands of
the State President and his Executive Council. The President, unlike his coun
terpart in the Free State, had to be a citizen of the Republic, at least thirty
years old, a member of the ‘Nederduitsch-Hervormde’ Church, who had been
enfranchised for at least five years. A dishonouring sentence disqualified a
candidate. He was popularly elected, but no provision was made for the
proposal of candidates by the ‘Volksraad’. Initially there was no require
ment of nomination and, since presidential elections were, as in the Orange
Free State, not held on party-political lines, there was a certain degree of
uncertainty present until provision was made for nomination by 100 voters,
acceptance of nomination by the candidate, and for a definition of ‘majority’
as the majority of votes cast.213
212 The President or Executive Council could decide not to submit a bill proposed by
a citizen; the latter could then appeal to the ‘Volksraad’, who could overrule the Presi
dent’s decision.
At first no provision was made in regard to eligibility for re-election as

President, but when M W Pretorius was re-elected for a second term there
were no complaints. Re-election was specifically provided for in 1877.
The Executive Council consisted of the Commandant-General, 214 two
citizens appointed by the ‘Volksraad’, and the Government Secretary. The
President was chairman of the Council and had both a deliberative and a
casting vote. The Commandant-General was obliged to attend, but had a
vote only when the Council was dealing with military matters. When a death
sentence was confirmed or a declaration of war contemplated, the Council’s
decision had to be unanimous. No permanent Vice-President or deputy was
provided for at first: if the need arose, the office of acting President was
entrusted to the oldest member of the Council. This was changed in 1877,
and after 1883 it became settled practice for the ‘Raad’ to appoint a Vice-
President immediately after the presidential election.
All public officials except those who formed part of the judiciary were
under the President’s control. In the conduct of foreign affairs the Execu
tive Council and the President were subordinate to the ‘Volksraad’, since
no treaty or convention could be proposed or concluded until its approval
had been obtained. In times of emergency the Commandant-General acted
in consultation with the War Council, but martial law was proclaimed by
the President and the Executive Council. The President and the Council were
also responsible for exercising the power of mercy.
Although it was not, until 1877, explicitly stated that the President was
to be responsible to the ‘Volksraad’, it is clear that this was the intention.
However, as Hahlo and Kahn point out,215 this ‘responsibility’ did not mean
that the President was obliged to resign if a presidential proposal were to
be rejected. Rejection was not constructed as a motion of no confidence.
Nor was the President responsible for the acts of the Executive Council, since
the members of that body were not, as in the United States, the ‘King’s Men’.
Removal of the President from the office involved the participation of the
legislature. Initially the position was that any enfranchised ‘burgher’ could
charge the President (or a member of the Executive Council) before the Chair
man of the ‘Raad’. The ‘Raad’ would instruct the State Attorney to enquire
into the charge, and then forward it to the High Court. If the Court found
the person unworthy of office, the members of the ‘Raad’ attended a special
sitting to dismiss him. This was subsequently changed to make provision for
a hearing before a special court composed of the members of the High Court
and the Chairman and one other member of the ‘Volksraad’, with the State
Attorney acting as prosecutor. Still later, in 1894, provision was made for
a special court of five members appointed by the ‘Volksraad’ and at least
four members nominated by the High Court from its own ranks. The Presi
dent and other officials would be tried by an ordinary court for ‘ordinary’
offences, but by this specially constituted court for ‘official offences, mis
conduct and unfitness for office’. This phrase was not defined, but the 1899
draft ‘Grondwet’ solved the problem by providing that all alleged offences
214 Unlike his counterpart in the Orange Free State, the Commandant-General was, until
1873, appointed on a permanent basis.
215 Op cit at 99-100.
<' ■
would be heard by a special court, and that the First ‘Volksraad’ could dis
miss the incumbent upon conviction by such a court.
The title of State President instead of President was used for the first time
in 1866. The titles of other officials, such as the State Secretary (previously
the Government Secretary) were also changed from time to time. The com
position of the Executive Council also varied in accordance with the needs
of the times.
I
I’
The Judiciary
The independence of the judiciary was recognized from the outset, though
the exact position of the judiciary vis-a-vis the legislature and the President
was not clear. A single-judge High Court was established by the British
authorities, later enlarged to allow for the appointment of additional mem
bers. ‘Landdrosten’, ‘veldcornetten’ and justices of the peace exercised juris
diction in lesser matters.
A serious conflict arose between the judiciary and the executive in the 1890s
as a result of the fact that the Volksraad sometimes legislated by informal
In earlier cases the validity of the ‘besluiten’ was
resolution or ‘besluit’.216217
219
218
upheld, but in 1887 the first signs of trouble appeared when, in the case of
Dorn’s Trustee v Bok NO,2V1 Jorissen J dissented from the majority deci
sion, holding that the ‘Grondwet’ bound the legislature. President Kruger,
convinced that no such intention had been in the minds of the original drafts
men of the Constitution, set about enacting a provision declaring the legal
force of a ‘besluit’ published by the President in the Staatskoerant above
dispute. This provision notwithstanding, Kotze CJ (who had previously
decided in favour of the validity of ‘besluiten’) stated in Hess v The State21*
that legislation could be assailed on procedural grounds (though the bench
would not interfere with the legislature’s decision to dispense with the three
months’ notice requirement on the ground of urgency).
Matters reached a head in the famous case of Brown v Leyds NO™ in
which Kotze C J and Ameshoff J expressly declared ‘besluiten’ invalid, stat
ing that sovereignty was vested not in the ‘Volksraad’ but in the people, and
that the ‘Grondwet’ made fundamental law against which the judiciary could
test legislation as to both form and content. Opinion was (and still is) divid
ed on the question whether Kotze C J had acted correctly or not: on the one
hand the judgment overthrew thirty years of accepted practice, reducing the
legal status of ‘besluiten’ to confusion and uncertainty; on the other, he could
be praised for taking a stand in favour of constitutional government. Be that
as it may: the President, determined that any sign of a testing power should
be eradicated, procured the adoption of a law stating this categorically and
requiring the judges to renounce any claim to such a power. Kotze renounced

217 (1887) 2 SAR 189.
218 (1895) 2 OR 112.
219 (1897) 4 OR 17.
his understanding not to assume the testing power and was promptly dis
missed by Kruger.220 The Transvaal therefore did not follow the lead of the
United States and the Orange Free State in this regard.
6 The Orange River Colony and the Transvaal after 1900

In terms of the Treaty of Vereeniging of 31 May 1902, which brought the
Anglo-Boer War to an end, the conquered territories were promised that civil
government and representative institutions leading to responsible government
would be introduced as soon as possible. Letters patent provided for Crown
executive and legislative bodies almost immediately, but these failed to satisfy
the people, and leaders such as Botha and Smuts, in particular, repudiated
the nominated bodies and called for representative institutions.
The first attempt to achieve these was made in 1905 by Colonial Secretary
Alfred Lyttelton who proposed a new Constitution for the Transvaal. The
proposals did not suit the Botha/Smuts ‘Het Volk’ group at all, but before
the Constitution could be introduced there was a change of government in
Britain, and Campbell-Bannerman’s Liberals were far more co-operative in
their approach. Immediate responsible government was granted to the Trans
vaal in 1906 and to the Orange River Colony in 1907.
The Transvaal was to have six ministers; the Orange River Colony five.
All could remain members of the legislature but were not required to be mem
bers of either House. Each colony would have a bicameral legislature; the
Legislative Councils were initially nominated but would become elected bodies
within four years; the Legislative Assemblies were to be elected representa
tive bodies, the members to be elected by adult white males who had resided
in the territory for six months. The legislature was empowered to amend the
constitution by ordinary enactment but the bill would have to be reserved.
Bills differentially affecting Non-Whites or providing for indentured foreign
labour had to be reserved as well, while the Governor possessed a discre
tionary power of reservation. The Crown could disallow any law within two
years, but did not reserve the right to revoke the letters patent creating the
new constitutions. The Legislative Council could (as in Natal) reject, but not
(as in the Cape) amend money bills. Were a conflict to arise between the
houses, the Governor could, in the second session of the deadlock, convene
a joint sitting, and the bill could then be passed by an absolute majority of
members of both Houses; or the Governor could dissolve the council (if it
had reached the stage of being an elected body) and the Assembly (if it had
more than six months to run) and convene a joint sitting after the election
if this proved necessary.
The official language of the parliaments was to be English, though the
debates could be held in Dutch and votes and proceedings and bills had to
be printed in both languages. Ministers could sit and speak even in the Houses
of which they were not members. The position of the Governor would be
much the same as that of the Governor of Natal. Judges were appointed by
220 The constitutional crisis is discussed in some detail by Hahlo & Kahn op cit at 107-110,
JW Gordon ‘The Judicial Crisis in the Transvaal’ 1898 LQR 343, and CJR Dugard
Human Rights and the South African Legal Order (1978) at 21.
the Governor-in-Council and could be removed by him only if requested to

do so by both Houses and on the grounds of proven misconduct or incapacity.
This stage of the history of the Transvaal and the Orange Free State was
only a very brief one. Responsible government had hardly been achieved when
the drive towards Union started to gain momentum. Federations had been
mooted earlier (both Sir George Grey and Lord Carnarvon had formulated
plans for federations in South Africa), but it was only now that the move
ment towards unification of the South African colonies became a workable
proposition.
House, whose representatives are directly elected by the voters. A govern

ment which does not enjoy the support of the lower House cannot govern.
The Cabinet not only controls the executive function of government, but
is also responsible for initiating the most important legislation submitted
to Parliament.
6 The Cabinet is headed by a Prime Minister who is the leader of the majori
ty party or strongest party in the elected house. He is the real ruler of
the country and the members of the government are chosen by him.
7 The head of state (the monarch in Britain) is a politically neutral figure
head, a symbol of national unity, who possesses enormous powers in
theory but virtually none in practice, since he is obliged by convention7
to act on the advice of his ministers or the Prime Minister, or to act in
a particular way, as the case may be. He has almost no discretion to act
according to his own inclination.8
8 The relationships between the head of state and his ministers, between
the head of state and Parliament, and between the Cabinet and Parlia
ment, are governed largely by unwritten rules of constitutional law called
conventions, which are enforced not by the courts but by Parliament.9
The position of the Prime Minister, the most powerful figure in the
government, is governed almost entirely by convention. All systems of
government will have conventions or binding ‘rules’ which have their ori
gin in custom and usage; but conventions occupy a more central position
in the Westminster system because the British do not have a Constitu
tion in the sense of a single constitutional document in which all the rules
governing the system of government are embodied.
9 The party system is closely linked with conventions because it developed
by convention. It is of relatively recent origin, however, and became firmly
established only in the latter half of the nineteenth century. As Van Wyk
points out,10 the party system should not be regarded as traditionally
peculiar to the Westminster system, but rather as part of a more general
HWestern democratic heritage. On the other hand, the party system deve-
/ loped its own unique character in Britain: two major parties, a strongly
( /developed caucus system, and an officially recognized opposition party
Ywith its own shadow cabinet.
10 The principle of parliamentary sovereignty or legislative supremacy is
regarded by some writers as the most important characteristic of the
7 See the discussion in ch 9 below.

8 The pomp and ceremony attaching to all functions performed by the British monarch
\ are part and parcel of the Westminster idea. The monarchy in Britain has undergone
various constitutional phases: the monarch has been, in turn, a feudal lord, an abso
lute ruler, and, now, a constitutional monarch. The monarch’s relationship vis-a-vis
Parliament and the executive has varied accordingly. His position has gradually changed,
until he has become, in modern times, purely a symbol - all the outward trappings
of authority notwithstanding. As a result, all the other ‘Westminster-type’ heads of
state are pale imitations of the real thing. See Van Wyk op cit at 267-268.
9 See ch 9 below, in which conventions are discussed at length.
10 Op cit at 269.
The Westminster System of Government 77
British system of government.11 Parliamentary sovereignty means, in brief,

that Parliament, consisting of the elected representatives of the people,
is the supreme authority in the country. Despite the powerful position
occupied by the executive, the Cabinet remains accountable to Parlia
ment, and the judiciary has no power to invalidate parliamentary legisla
tion which has been duly passed.
11 The doctrine of the trias politica or separation of powers is adhered to,
but to a limited extent only. Although there is no total separation of legis
lature and executive,12 there is a separation as regards function. The sepa
ration between the judiciary and the other branches of government is,
furthermore, upheld to a substantial degree, and the independence of the
judiciary is regarded as an important characteristic of the Westminster
system.13
12 Adherence to the rule of law is often said to be one of the prominent
features of the Westminster system. As will be seen later,14 the rule of
law is a doctrine which is not readily definable, and is surrounded by
a good deal of controversy, particularly in South Africa. In a certain sense,
though, it is an important part of the Westminster system: as the legen-
dary Dicey,15 the ‘father’ of the doctrine, pointed out, the rule of law
t
means that individual rights are effectively protected, not by a formal
bill of rights in a rigid constitution, but by the ordinary courts interpret
ing accepted and hallowed rules of common law. Thus while the prin
ciples embodied in the rule-of-law doctrine may be broadly defined as
general democratic principles rather than norms which are peculiar only
to the Westminster system, the doctrine has distinctively ‘Westminster’
origins even though it has acquired an international flavour. / 4^ *
13 Britain is one of very few countries which have no formal writfen Consti
tution (although there are a number of vitally important constitutional
II documents and statutes, such as the Magna Carta, Bill of Rights^ Act
11 of Settlement, Reform Acts and so on) and evolutionary development
is a natural corollary of such a system. While the other countries which
have adopted the Westminster system in the broader sense do have writ
ten constitutions, these are usually flexible rather than rigid, so that their
constitutional development tends to be evolutionary. This is certainly true
of South Africa as well.16
14 The Westminster system of government implies a unitary rather than a
federal state. This is so, not only because Britain happens to be a unitary
11 See O Hood Phillips Constitutional and Administrative Law (1978) at 27: “The most
important characteristic of British constitutional law is the legislative supremacy (some
times called ‘sovereignty’) of the United Kingdom Parliament.” Hood Phillips devotes
two entire chapters to the topic of legislative supremacy. Parliamentary sovereignty
will be dealt with fully in ch 6.
12 As mentioned above, ministers have to be Members of Parliament.
13 The doctrine of separation of powers will be dealt with in ch 7, and the judiciary in
chs 13 and 19.
14 In ch 5.
15 A V Dicey Introduction to the Study of the Law of the Constitution 10 ed (1975).
16 See VerLoren van Themaat op cit, at 1-2; H Booysen and DH van Wyk Die
’83-Grondwet (1984) at 39-40.
state, but more specifically because the principle of a sovereign central

parliament is incompatible with the idea of federal government. Once
again this is a typical, though not exclusive, feature of the system: cer
tainly not all unitary states have a Westminster form of government, and
a federation may display some of the features of the Westminster sys
tem: Canada and Australia are cases in point here.
15 Boulle16 regards the principle of universal franchise as an indispensable,
albeit not exclusive, characteristic of the Westminster system. It must be
n borne in mind that universal franchise is a recent development — it was
a only in the twentieth century that women obtained the vote. As Van Wyk1718 19
points out, universal franchise is, like some of the other features of the
Westminster system, not so much a characteristic of that one particular
system but of Western political thought in the twentieth century.
Ill THE ADVANTAGES AND DISADVANTAGES OF THE WESTMIN

STER SYSTEM
Boulle” describes the Westminster system of government asJthoroughly
majoritarian’ in several respects. The idea that majority rule is essential to
democracy is one which is often taken for granted, largely because of the
somewhat facile argument that the only alternative to majority rule is minority
rule, which is obviously undemocratic. There were some authorities who could
see the flaw in the notion of democracy by majority rule (for example, Burke,
De Tocqueville and John Stuart Mill)20 but in general the recognition of
minority rights was slow to be accepted.21 Thus although the Westminster
system was, for a long time, regarded as a prime example of a democratic
system of government, its majoritarian features have come to be seen as im
portant weaknesses.
The following weaknesses of the ‘winner-takes-all’ system may be men
tioned:
1 JThe electoral system (simple majority in single-member constituencies) does
not provide a fair reflection of political opinion. It favours the stronger
/parties at the expense of the weaker ones, and the way in which electoral
(districts are delimited can distort the picture even further.22
2’Within the legislature itself, the government may be able to procure the
adoption of extremely important legislation on what Boulle calls “a very
. parrow basis of popular consent”23 because legislation requires only ą sjpi-
ple parliamentary majority.24 ' ------- —-------
3-Utiless LheTe is a coalition government in power, the executive (Cabinet)
is composed of members of the majority party only. This places the ad
ministration and implementation of legislation firmly in the hands of the
17 1980 CILSA at 9-11.

18 Op cit at 269.
19 South Africa and the Consociational Option at 6 (hereafter Consociational Option).
20 Boulle Consociational Option at 2.
21 See the discussion of the concept of minority or group rights in ch 5.
22 This issue is discussed at some length in ch 8.
23 Consociational Option at 6.
24 The notion of entrenched provisions, such as are encountered in the South African
Constitution, is foreign to the Westminster system as such.
parliamentary majority (which, as is explained above, need not necessari-

ly represent majority political opinion in the country as a whole). As a
H result, all the ‘spoils of government’ fall to the majority party, led by the
Uall-powerful figure of Prime Minister.
4 The principle of parliamentary sovereignty or legislative supremacy means
that there is no right or freedom, no rule of common or statutory law,
which is not at the mercy of the legislature. The courts have no testing
power over the merits of legislation, which means that their supervisory
constitutional role is- limited to that of interpreters of thejaw.25
5 The Westminster system tendslowards centralization and concentration
of political power, as a result of parliamentary supremacy on the one hand
and the powerful position of the executive on the other.
In brief: the ‘winner-takes-all’ system means that the party gaining a simple
overall majority in Parliament, perhaps as a result of gaining a simple majori
ty (and not necessarily an overall majority) in the electoral districts sending
representatives to Parliament, is in full control of both legislature and ex
ecutive. In addition, the principle of legislative supremacy means that this
* domination cannot be effectively mitigated by the judiciary.
The Westminster system does, however, offer a number of advantages as
well. The majoritarian or ‘winner-takes-all ’ system is conducive to strong
and effective government, the electorate is presented with clearer choices,
and the record shows the greater stability in government is encountered in
such a system. In addition, there are a number of features which limit or
mitigate the severe effects of majoritarianism:
1 General elections are held every five years (sometimes more frequently).
Where the major parties are reasonably evenly matched (as in Britain) this
is a most effective brake on majoritarianism, since all parties must be aware
of voter opinion and must woo the voters at all times. Where the govern-
1/ ing party is exceptionally strong and there is little chance of its losing office
11 (as in South Africa), these considerations do not apply to nearly the same
êxtent.
2 The respect with which the rule of law is regarded in Britain imposes cer
tain restraints on both legislature and executive. It has been pointed out
that the rule of law does not enjoy the same regard in South Africa,26 where
it cannot be said to fulfil “a similar function to a justiciable bill of rights”.27
3 The doctrine of separation of powers is not adhered to in the Westminster
system to the same extent as in the United States of America, which prides
itself on the ‘checks and balances’ in its system of government. The only
| real restraints within the British system are constituted by the composi-
I tion of Parliament with its three component parts, and by the system of
I ministerial responsibility to Parliament. In general, however, formal
\ ‘checks and balances’ do not play a major role in limiting majoritarian-
/ ism in the Westminster system.
25 See the discussion of sovereignty in ch 6, and the discussion of the protection of minority
and individual rights in ch 5.
26 Boulle 1980 CILSA 1.
27 Boulle Consociational Option at 9.
4 Boulle points out28 that single-party cabinets based on clear parliamen

tary majorities are seen to be the norm in the Westminster system but that,
in reality, coalitions or quasi-coalitions have been in power in Britain for
almost one-third of the twentieth century. While coalitions are viewed by
some as weak governments in which choices are obscured and lines of
responsibility blurred, Boulle sees genuine coalitions as a “limited form
of power-sharing”.2’
5 The devolution movement which started in earnest in Britain during the
1970s has had the effect of achieving a greater measure of decentraliza
tion in government, and this, too, tends to mitigate the effects of the
majoritarian system.
6 British governments have always showed an above-average sensitivity to
public opinion. For example, when Britain’s entry into the European Eco
nomic Community was mooted, the government placed the issue directly
before the voters in a referendum rather than indirectly in a general election.
The factors which tend to counter the effects of majoritarianism in Britain,
need not necessarily have the same beneficial influence when the Westmin
ster system of government is transplanted into a different setting. This has
become increasingly evident within the South African context.
IV THE SOUTH AFRICAN CONSTITUTIONAL SYSTEM

AS A WESTMINSTER SYSTEM
In general terms, South African constitutional law, as it was prior to the
commencement of Act 110 of 1983, may be said to have been essentially West
minster in character: Parliament was composed of members elected on a ba
sis of territorial representation in single-member constituencies; the
government was in the hands of a Cabinet of ministers, who were Members
of Parliament, belonging to the majority party in Parliament and responsi
ble to Parliament; the most important figure in the government was the Prime
Minister, who was the leader of the majority party in Parliament; the State
President was a figure-head cast in the mould of the British monarch; con
ventions played a major role in determining the relationships between the
various organs of government; the party system operated in a manner simi
lar to that encountered in Britain; the principles of parliamentary sovereignty
and separation of powers were adhered to in the same measure as in Britain,
with some adaptations; evolutionary development was a feature of the sys
tem; and South Africa had a unitary and not a federal system of government.
There were, however, deviations from the system as well. First of all, South
Africa did have a written constitution, which, even though it could not be
regarded as a grundnorm,30 was extremely flexible and did not constitute a
‘higher law’. The so-called entrenched provisions,31 which required a spe
cial, more difficult procedure for their repeal or amendment, also represent
ed an element totally foreign to the Westminster system which recognized
28 Ibid.
29 Consociational Option at 10.
30 See the discussion in ch 6 below at 142 et seq.
31 Ss 35, 137 and 152 of the South Africa Act; ss 108 and 118 of the Republic of South
Africa Constitution Act 32 of 1961.
no restrictions on Parliament either in ‘area of power’ or in ‘manner and

form’.32 The provincial system of government, too, was foreign to the West
minster system.33 In 1980,34 the Senate was abolished, so that the South Afri
can Parliament consisted of only one House from 1980 to 1984. A more
important departure was the restriction of the franchise, as far as central
government was concerned, to Whites only, and the creation of separate con
stitutional institutions for non-Whites.35 The introduction of a number of
nominated and indirectly elected members into the House of Assembly was
a departure from the Westminster system which elicited a good deal of ad
verse criticism,36 as did the amendment which extended the period within
which Cabinet ministers had to become Members of Parliament from three
to twelve months.37 The creation of the original President’s Council need
not be seen as a departure from the Westminster system as such: the Presi
dent’s Council did not form part of the legislature and was not, in law, the
successor to the Senate;38 it was simply an advisory body, a species of per
manent commission appointed by the State President by virtue of common
law prerogative.39 Finally, as BouIIe40 points out, the rule of law has never
been treated with the same reverence in South Africa as in Britain. Taken
all in all, however, South African constitutional law prior to 1983 is perhaps
one of the classic examples of the adaptability of the Westminster system.41
But what of the new Constitution? It is clear that it was intended to be
a total departure from a system said to be unsuited, even in an adapted form,
to the needs of South African society.42 The 1983 Constitution does indeed
display certain important deviations from the Westminster model: the figure
head State President has disappeared, as has the office of Prime Minister,
to be replaced by an executive State President who is both head of state and
head of government; there is once again a written constitution which, although
it is not a ‘Constitution’ in the sense of a rigid document spelling out all
the rules of constitutional law,43 nevertheless embodies the rules governing
the constitutional dispensation to a far greater extent than the 1961 Consti
tution; there is a tricameral Parliament consisting of three ‘lower’ Houses;
provision is made for a multi-party Cabinet, and so on.44 A number of the
cardinal features of the Westminster system remain, however, albeit some
times in an adapted form: the parliamentary procedures which are peculiar
to the Westminster system; ministerial responsibility; the sovereignty of
32 See ch 6.
33 See ch 21.
34 By s 13 of Act 101 of 1980.
35 See ch 21.
36 S 17 of Act 101 of 1980. See H Rudolph ‘Nominated Members of Parliament and
the Demise of the Entrenched Sections’ 1981 SALJ 346.
37 S 20(3) of Act 32 of 1961 as amended by Act 70 of 1980.
38 See below at 238.
39 See the discussion below at 238-239 and 363.
40 1980 CILSA at 29-30.
41 See Van Wyk op cit at 272.
42 See DH van Wyk ‘Westminsterstelsel — Requiescat in PaceV 1981 THRHR 105 for
the view that the Westminster system, with the necessary adaptations, still has much
to offer.
43 See the discussion s v Constitution in ch 1.
44 The 1983 Constitution will be dealt with in detail in Part C of this work.
Parliament conventions of the Constitution (some enacted in the Constitu

tion itself); the party system; the unitary system of government; and territorial
representation. 45
The question remains: where does the Westminster system start and when
can it be said, finally, that it has been abandoned? And, above all, does it
matter? Even in Britain there are moves towards change. The adoption of
a bill of rights incorporating the European Convention on Human Rights
is favoured by many,46 as is the codification of British constitutional law,
while devolution of government authority has become a major issue. The
abolition of the House of Lords has even been mooted in some quarters.47
If these changes were to be introduced — improbable as this may seem —
would it mean that Britain itself has abandoned the Westminster system or
would it simply serve to underline the adaptability and flexibility of the sys
tem?48
45 See G Carpenter ‘The Republic of South Africa Constitution Act 110 of 1983’ 1983
SAYIL 96; D H van Wyk ‘The New Constitution: Some Unsolved Questions’ 1983
SA YIL 104; F Venter ‘Die Grondwet van die Tweede Republiek van Suid-Afrika’ 1985
THRHR 253.
46 The legal problems involved in the possible adoption of a bill of rights for Britain
have been analysed in depth by J Jaconelli Enacting a Bill of Rights (1979).
47 See, for example, P Mirfield ‘Can the House of Lords Lawfully be Abolished?’ 1979
LQR 36; G Winterton ‘Is the House of Lords Immortal?’ 1979 LQR 386.
48 See Van Wyk ‘Die Westminsterstelsel’ at 273.
CHAPTER FIVE
The Doctrine of the Rule of

Law and the Protection of
Fundamental Individual Rights
I INTRODUCTION
There can be no topic in South African constitutional law which has attracted
as much attention as the question whether the rule of law is adhered to and
whether fundamental individual rights are adequately protected against both
legislative and executive encroachment.1 The issue is bedevilled to an almost
intolerable extent by problems of definition, so that it is extremely difficult
to get the debate under way at all.
The very first question which arises, is: what does ‘rule of law’ mean, and
can it be expressed in legal rather than political terms at all? Is rule of law
simply a synonym for law and order, or is there more to it? Does it approxi
mate the old Germanic concept of sovereignty of the law, the modern German
Rechtsstaat idea, or any of the other terms in common use in constitutional
parlance, such as democracy, limited government, constitutionalism or
legality? In other words, is the rule-of-law doctrine as it has evolved in
England, the pride and joy of Dicey and several other English constitutional
lawyers, something truly special and unique, or is it simply a case of “a rose
by any other name . . .”? The dilemma is strikingly expressed by SA de
Smith:2 “The concept has an interesting characteristic: everyone who tries
to define it begins with the assumption that it is a good thing, like justice
or courage.” It is, however, quite another matter to define the concept more
closely.
The issue of fundamental rights is an even more pressing one. Should one
call them fundamental human rights, individual rights, basic rights, civil
rights? Are they in fact rights at all, or are they powers, freedoms, competences
or even privileges? It is generally agreed that the so-called rights to life, liberty
and property are just that — rights in the traditional sense in which the term
is used in private law, ‘subjektiewe regte’ which have an identifiable legal ob
ject and which the individual may enforce against interference from whatever
1 The interest engendered by this topic is reflected in the many outstanding contribu
tions to the proceedings of the first international conference on human rights in South
Africa in 1979. See the publication Human Rights: the Cape Town Conference (ed For
syth and Schiller) Juta (1979), in particular, the contributions by Mr Justice Corbett,
Van der Vyver, Schlemmer, Doehring, Lillich, Gelhorn and Dugard. A number of con
ferences and symposia have been held since, the most recent being the Bill of Rights
Symposium hosted by the University of Pretoria in May 1986.
2 Constitutional and Administrative Law 4ed (1981) at 30.
83
source.3 But what about the so-called ‘civil rights’, such as the ‘right’ to vote,
to work, to be educated, to enjoy a certain minimum standard of living, and
so on? And the traditional ‘freedoms’ - freedom of association, of move
ment, of conscience, of expression? Are they manifestations of certain class
es of private-law rights (rights of personality, or physical liberty) or are they
something different again? Do the recognized private-law rights have an
equivalent in public law, or is it theoretically and jurisprudentially unsound
to refer to public-law rights at all?
There are those who contend that a discussion of this kind has no place
in a work on constitutional law, that it belongs purely within the sphere of
jurisprudence or legal philosophy or in the sphere of criminal law, procedure,
or private law, depending on the nature of the issue which is raised. The fact
of the matter is, however, that the protection of these rights, liberties and
competences (call them what you will) is an issue which arises in relation to
the nature and structure of a country’s constitution, and as such it directly
concerns the constitutional lawyer.
The two issues mentioned above (what adherence to the rule of law entails
and what meaning is to be attached to the concept of fundamental rights)
are closely interrelated. A sound jurisprudential basis for the protection of
individual rights must be established if a system is to be devised whereby the
delicate balance between the interests of the individual and the interests of
the community (the state) can be satisfactorily achieved.
II THE RULE-OF-LAW DOCTRINE AS IT DEVELOPED IN ENGLAND

The idea that the law reigns supreme is perhaps the most ancient and revered
of English constitutional principles. It predates parliamentary sovereignty by
several centuries. The Magna Carta, which King John was compelled to sign
in 1215, is often cited as the oldest source of the idea of the rule of law. Of
course, the barons who were the main protagonists in the action, were primarily
seeking to serve their own interests rather than to formulate some general
ideal that governmental powers will be exercised subject to the law and that
individuals will not be exposed to the arbitrary will of the state. Neverthe
less, clauses 39 and 40 did contain the nucleus of the idea that all are subject
to the law and only to the law.4
Then, too, there was Bracton, writing in the first half of the thirteenth cen
tury: “Ipse autem rex non debet esse sub homine sed sub Deo et sub lege,
3 There is a vast array of South African writing on this topic. Only a few examples are
mentioned here: W A Joubert Grondslae van die Persoonlikheidsreg (1953) the pioneering
work in this field; H JO van Heerden Grondslae van die Mededingingsreg (1961) esp
at 105-157; NJ van der Merwe and PJJ Olivier Die Onregmatige Daad in die Suid-
Afrikaanse Reg 2 ed (1970) esp at 51-59; JC van der Walt Risiko-aanspreeklikheid uit
Onregmatige Daad unpublished LLD thesis UNISA (1974) esp at 267; J Neethling Die
Reg op Privaatheid unpublished LLD thesis UNISA (1976) esp at 287-312;
FJ van Zyl and JD van der Vyver Inleiding tot die Regswetenskap (1972) esp at 42;
WJ Hosten, AB Edwards, C Nathan and F Bosman Introduction to South African
Law and Legal Theory (1980).
4 39. “No free man shall be taken, imprisoned, outlawed, banished, or in any way des
troyed, nor will we proceed against or prosecute him, except by the lawful judgment
of his equals and by the law of the land? 40. “To no one will we sell, to no one will
we deny, or delay, right or justice!’
Rule of Law and Protection of Fundamental Individual Rights 85
quia lex facit regem.”5 This was the prevailing view in England except,
perhaps, during the Stuart era when the kings were trying to persuade Parlia
ment that the Divine Right of Kings placed them above the law.6 After the
Glorious Revolution of 1688, the supremacy of the law was once again re
stored, but had, as Hood Phillips78points out, “to be combined with the new
doctrine of the supremacy of Parliament”.
The first of the modern writers on English constitutional law to discourse
at length about the rule of law was the legendary Dicey, who devoted a con
siderable portion of his work, Introduction to the Study of the Law of the
Constitution
* to a treatment of this topic. Although his approach has been
widely criticized at various stages ever since, it remains the starting point for
any discussion of the doctrine.
Dicey’s exposition of the rule of law rested on three premisses:
(i) The absence of arbitrary power — no man is above the law and no man
is punishable except for a distinct breach of the law established in the or
dinary manner before the ordinary courts.
(ii) Equality before the law — every man is subject to the ordinary law and
the jurisdiction of the ordinary courts.
(iii) Judge-made constitution — the general principles of the British Consti
tution, particularly those governing the liberties of the individual, are the result
of judicial decisions confirming the common law.
Dicey’s critics have pointed out the weaknesses in his doctrine: the confu
sion of arbitrary power with discretionary power, the misconceptions relat
ing to the French droit administratif, which he criticized because it is not
implemented by the ‘ordinary courts’, the inaccuracy of the notion of general
equality before the law, his excessive chauvinism, which led him to believe
that a system such as the judge-made British system, based on common law,
furnishes superior protection to the individual than the statutory protection
conferred by a bill of rights, and so on.9 It should be borne in mind, however,
that Dicey was a member of the individualist or laissez-faire school of thought,
which held that “any substantial discretionary power was a danger to
liberty.”10 He was concerned almost exclusively with the rights of individuals
rather than with the other side of the coin, namely the powers of authorities
or the positive function of the state. He was also unquestionably the product
of the era in which he lived, the high-water mark of the humanist movement,
laissez-faire, the rights of the individual. The day of the administrative state
had not yet dawned.11 In all fairness to Dicey, too, it should be emphasized
that he was not postulating an ideal system of human rights for the world
5 The King himself ought not to be subject to man, but subject to God and the law, be
cause the law makes him king — De Legibus et Consuetudinibus Angliae.
6 See the detailed discussion in ch 3.
7 O Hood Phillips Constitutional and Administrative Law 6 ed (1978) at 35.
8 First published in 1885.
9 For example, see Hood Phillips op cit at 36-40; Sir Ivor Jennings The Law and the
Constitution 5 ed (1959) at 54-60; Wiechers Administrative Law (1985) at 12-15.
10 Jennings op cit at 54.
11 See PJ van R Henning ‘Die Administratiewe Staat’ 1968 THRHR 1.
source.3 But what about the so-called ‘civil rights’, such as the ‘right’ to vote,
to work, to be educated, to enjoy a certain minimum standard of living, and
so on? And the traditional ‘freedoms’ - freedom of association, of move
ment, of conscience, of expression? Are they manifestations of certain class
es of private-law rights (rights of personality, or physical liberty) or are they
something different again? Do the recognized private-law rights have an
equivalent in public law, or is it theoretically and jurisprudentially unsound
to refer to public-law rights at all?
There are those who contend that a discussion of this kind has no place
in a work on constitutional law, that it belongs purely within the sphere of
jurisprudence or legal philosophy or in the sphere of criminal law, procedure,
or private law, depending on the nature of the issue which is raised. The fact
of the matter is, however, that the protection of these rights, liberties and
competences (call them what you will) is an issue which arises in relation to
the nature and structure of a country’s constitution, and as such it directly
concerns the constitutional lawyer.
The two issues mentioned above (what adherence to the rule of law entails
and what meaning is to be attached to the concept of fundamental rights)
are closely interrelated. A sound jurisprudential basis for the protection of
individual rights must be established if a system is to be devised whereby the
delicate balance between the interests of the individual and the interests of
the community (the state) can be satisfactorily achieved.
II THE RULE-OF-LAW DOCTRINE AS IT DEVELOPED IN ENGLAND

The idea that the law reigns supreme is perhaps the most ancient and revered
of English constitutional principles. It predates parliamentary sovereignty by
several centuries. The Magna Carta, which King John was compelled to sign
in 1215, is often cited as the oldest source of the idea of the rule of law. Of
course, the barons who were the main protagonists in the action, were primarily
seeking to serve their own interests rather than to formulate some general
ideal that governmental powers will be exercised subject to the law and that
individuals will not be exposed to the arbitrary will of the state. Neverthe
less, clauses 39 and 40 did contain the nucleus of the idea that all are subject
to the law and only to the law.4
Then, too, there was Bracton, writing in the first half of the thirteenth cen
tury: “Ipse autem rex non debet esse sub homine sed sub Deo et sub lege,
3 There is a vast array of South African writing on this topic. Only a few examples are
mentioned here: W A Joubert Grondslae van die Persoonlikheidsreg (1953) the pioneering
work in this field; H JO van Heerden Grondslae van die Mededingingsreg (1961) esp
at 105-157; NJ van der Merwe and PJJ Olivier Die Onregmatige Daad in die Suid-
Afrikaanse Reg 2 ed (1970) esp at 51-59; JC van der Walt Risiko-aanspreeklikheid uit
Onregmatige Daad unpublished LLD thesis UNISA (1974) esp at 267; J Neethling Die
Reg op Privaatheid unpublished LLD thesis UNISA (1976) esp at 287-312;
FJ van Zyl and JD van der Vyver Inleiding tot die Regswetenskap (1972) esp at 42;
W J Hostcn, A B Edwards, C Nathan and F Bosman Introduction to South African
Iaw and Legal Theory (1980).
4 39. “No free man shall be taken, imprisoned, outlawed, banished, or in any way des
troyed, nor will we proceed against or prosecute him, except by the lawful judgment
of his equals and by the law of the land!’ 40. “To no one will we sell, to no one will
we deny, or delay, right or justice!’
quia lex facit regem.”5 This was the prevailing view in England except,
perhaps, during the Stuart era when the kings were trying to persuade Parlia
ment that the Divine Right of Kings placed them above the law.6 After the
Glorious Revolution of 1688, the supremacy of the law was once again re
stored, but had, as Hood Phillips78points out, “to be combined with the new
doctrine of the supremacy of Parliament”.
The first of the modern writers on English constitutional law to discourse
at length about the rule of law was the legendary Dicey, who devoted a con
siderable portion of his work, Introduction to the Study of the Law of the
Constitution3 to a treatment of this topic. Although his approach has been
widely criticized at various stages ever since, it remains the starting point for
any discussion of the doctrine.
Dicey’s exposition of the rule of law rested on three premisses:
(i) The absence of arbitrary power — no man is above the law and no man
is punishable except for a distinct breach of the law established in the or
dinary manner before the ordinary courts.
(ii) Equality before the law - every man is subject to the ordinary law and
the jurisdiction of the ordinary courts.
(iii) Judge-made constitution — the general principles of the British Consti
tution, particularly those governing the liberties of the individual, are the result
of judicial decisions confirming the common law.
Dicey’s critics have pointed out the weaknesses in his doctrine: the confu
sion of arbitrary power with discretionary power, the misconceptions relat
ing to the French droit administratif, which he criticized because it is not
implemented by the ‘ordinary courts’, the inaccuracy of the notion of general
equality before the law, his excessive chauvinism, which led him to believe
that a system such as the judge-made British system, based on common law,
furnishes superior protection to the individual than the statutory protection
conferred by a bill of rights, and so on.9 It should be borne in mind, however,
that Dicey was a member of the individualist or laissez-faire school of thought,
which held that “any substantial discretionary power was a danger to
liberty.”10 He was concerned almost exclusively with the rights of individuals
rather than with the other side of the coin, namely the powers of authorities
or the positive function of the state. He was also unquestionably the product
of the era in which he lived, the high-water mark of the humanist movement,
laissez-faire, the rights of the individual. The day of the administrative state
had not yet dawned.11 In all fairness to Dicey, too, it should be emphasized
that he was not postulating an ideal system of human rights for the world
5 The King himself ought not to be subject to man, but subject to God and the law, be
cause the law makes him king — De Legibus et Consuetudinibus Angliae.
6 See the detailed discussion in ch 3.
8 First published in 1885.
9 For example, see Hood Phillips op cit at 36-40; Sir Ivor Jennings The Law and the
Constitution 5 ed (1959) at 54-60; Wiechers Administrative Law (1985) at 12-15.
11 See PJ van R Henning ‘Die Administratiewe Staat’ 1968 THRHR 1.
at large: he did not regard the rule of law as an aggregate of universal prin
ciples setting out what the law ought to be.12 In short, he was concerned purely
with English law - and nineteenth-century English law at that!
The main weakness in Dicey’s theory, and in the concept of the rule of
law as a special and unique feature of English constitutional law, lay in his
inability to reconcile the rule of law with that other cardinal principle of
English constitutional law, the sovereignty of Parliament. It is true that Dicey
himself attempted to bring the two into line by arguing that the will of Parlia
ment, which represents the will of the people, can be expressed only by an
Act which must be interpreted by the courts (although its validity cannot
be tested) and that any additional discretionary powers can be conferred on
the government only by Parliament. The main reason, however, why there
is no apparent conflict between legislative supremacy and the rule of law in
Britain, must be sought in the historical development of the role of Parlia
ment. The conflict between King and Parliament which eventually saw Parlia
ment reign supreme, was in fact a conflict between arbitrary power (as
represented by the King) and democracy (as represented by Parliament). The
British always perceived Parliament as the protector of the individual rather
than as a threat to the rights of the individual: thus it was Parliament itself
which upheld the rule of law.
This has had a subtle psychological effect on British constitutional think
ing. It has influenced Parliament not to encroach unduly upon the rights
of the individual in its legislation; the courts incline towards the liberty of
the individual when interpreting legislation; and the rule of evidence that
everyone is prima facie equal before the law, means that extraordinary
powers, privileges or immunities will not be presumed — they must be proved.
Despite the shortcomings of Dicey’s theory, his influence has been con
siderable, both in Britain and elsewhere.13 Subsequent British writers, whether
they have been apologists for or critics of Dicey, have all adapted and updated
his concept of the rule of law to fit in with the doctrine’s new ‘international’
image. After the Second World War the rule-of-law concept came to be iden
tified with the doctrine of human rights as a result of the fact that the term
‘rule of law’ was used in the Universal Declaration of Human Rights of 1948.
Rule of law has since become accepted as a collective term for all those prin
ciples which signify democratic government. Wade and Phillips put it thus:
“The rule of law has come to be regarded as the mark of a free society.”14
As a result, the writings of post-war constitutional lawyers, both in South
Africa and in Britain, reflect this ‘interpolated’ view of the rule of law. As
Van der Vyver15 puts it, the restated rule-of-law doctrine had moved into
the sphere of legal ideas.
To Wade and Phillips, adherence to the rule of law means “that the exer
cise of the powers of government shall be conditioned by law and that the
12 See JD van der Vyver Seven Lectures on Human Rights (1976) at 108.
13 See ECS Wade and Godfrey Phillips Constitutional Law 8 ed (1970) at 63: “The in
fluence of Dicey remains a real force.”
14 Op cit at 77.
15 Seven Lectures at 109.
subject shall not be exposed to the arbitrary will of the ruler”.16 According
to them this implies that:
(i) there should be no arbitrary exercise of power;
(ii) there should be effective control over delegated legislation;
(iii) all discretionary power must be exercised in a predefined manner;
(iv) everyone, whether private citizen or public official, should be respon
sible to the ordinary law of the land;
(v) private rights should be determined by impartial and independent
tribunals; and
(vi) fundamental individual rights should be safeguarded by the ordinary law
of the land.17
Hood Phillips18 has a somewhat formal approach to the rule of law.
According to him, it is merely an ethical principle which influences the legis
lature or, at most, a rule of interpretation or an evidentiary rule that the
individual citizen should be given the benefit of the doubt, that in cases of
uncertainty the interpretation of the law should favour the subject rather
than the state. He points out that many exceptions are made to the doctrine
of equality before the law: ministers and other public officials, for example,
have powers not conferred on the ordinary citizen. Finally, he endorses the
definition of the rule of law formulated by the International Commission
of Jurists in 1959 as “the most valuable version so far”.
De Smith19 sees Dicey’s view of the rule of law as idiosyncratic; De Smith
himself feels that Dicey’s ideas no longer warrant detailed analysis, since the
concept is an open-textured one, lending itself to an extremely wide range
of interpretations. He does, however, summarize the concept as follows: (i)
the powers exercised by government must be based on authority conferred
by law; (ii) the law should conform to certain minimum standards of justice,
both substantive and procedural.
One of the severest critics of the Diceyan approach and indeed of the ten
dency to regard the rule of law as a panacea for all the constitutional ills
of mankind, is Sir Ivor Jennings. He analyses minutely the difficulties inherent
in formulating a precise definition of the rule of law, concluding that “ [i]f
the rule of law is a synonym for law and order, most states have achieved
it, and it is a universally recognised principle”,20 and that the development
of the rule of law into something more than mere law and order resulted from
liberal or democratic principles, which hold that individual freedom is to be
preferred to absolutism, no matter how benevolent. It is not enough to say
that the powers of the authorities must be derived from the law, since that
would not necessarily disqualify the most dictatorial of regimes.
According to Jennings,
[the rule of law is] an expression of liberal and democratic principles, in them
selves vague when it is sought to analyse them, but clear enough in their results.
16 Op cit at 62.
17 Op cit at 76-77.
18 Op cit at 39-40.
19 Op cit at 30.
20 Op cit at 45.
There are many facets to free government, and it is easier to recognise it than
to define it. It is clear, however, that it involves the notion that all governmental
powers, save those of the representative legislature, shall be distributed and de
termined by reasonably precise laws.21
He continues with a discussion of the Continental Rechtsstaat concept, which
is essentially synonymous with the rule-of-law ideal: it implies a limitation
of powers (usually in statutory constitutions) and the notion of equality -
though, as Jennings points out, the scope of this notion is as imprecise as
that of the rule of law itself.22 The law itself is full of inequalities - property
is not distributed equally, the same laws do not apply to all persons, and so
on. Equality, Jennings concludes, means simply “that among equals the laws
should be equally administered, that like should be treated alike”.23
In addition to equality (in the limited sense mentioned above) the rule of
law also implies liberty, yet another imprecise concept. As a liberal and an
individualist, Dicey set great store by liberty, but failed to realize that public
authorities possessed wide discretionary powers (even in his day) which could
and often did encroach upon the liberty of the individual to a marked degree.
Furthermore, Parliament, the sovereign and supreme authority, possessed in
finitely wide powers to curtail the liberty of the individual — then, as now.
The restraints imposed on Parliament by the rule of law are moral and psy
chological rather than legal.
Jennings concludes, in his much-quoted statement:
The truth is that the rule of law is apt to be rather an unruly horse ... If analysis
is attempted, it is found that the idea includes notions which are essentially impre
cise. If it is merely a phrase for distinguishing democratic or constitutional govern
ment, it is wise to say so.24
He concludes that democracy is not dependent on any particular form of
government or on any limitation of the legislature, but on free elections and
the presence of lively and free expression of public opinion, so that criticism
of the government is not only possible but is positively encouraged: “The
test of a free country is to examine the status of the body that corresponds
to Her Majesty’s Opposition.”25 (He obviously does not consider the neces
sity of constitutional guarantees for the protection of minority interests, a
matter which has given rise to much constitutional debate both here and else
where.26 A fully representative legislature elected by means of free and fair
elections may be guarantee enough where there is a largely homogeneous popu
lation; where there are minorities that can be swamped by a majority, it is not.)
Ill SOUTH AFRICAN APPROACHES TO THE RULE OF LAW AND

FUNDAMENTAL RIGHTS
There has, in recent times, been a tremendous upsurge of interest in the topics
of rule of law and fundamental rights among South African writers. The ap
21 Op cit at 48.
22 Op cit at 49.
23 Op cit at 50.
24 Op cit at 60. Van der Vyver Seven Lectures at 106, suggests that, in truth, “the rule
of law resembles a chameleon rather than a horse”!
25 Op cit at 62.
26 See the discussion below at 118 et seq. Also see the discussion of majoritarian charac
teristics in the Westminster system in ch 4 at 78 et seq.
proach to the issues has varied roughly according to whether the writer tends
to follow the English or the Continental (in particular the German) school
of thought. While both schools are concerned with the ethical principles which
determine what the law ought to be, some of the authorities concentrate
primarily on devising a practical system for the effective protection of in
dividual rights, while the others postulate a sound theoretical and jurispruden
tial basis for a system of human rights protection as a pre-condition for the
formulation of a practical solution. This latter group generally prefer the
German Rechtsstaatsprinzip to the English rule-of-law concept.
Like their English counterparts, South African writers who use the rule
of law as their starting-point, have had to adapt the original doctrine to a
greater or lesser extent to fit in with modern approaches and requirements.
One of the first South African writers to attempt a thorough study of the
rule of law was Beinart.27 He distinguishes between the central and the secon
dary meaning of the concept: the central meaning, he indicates, is simply
the principle lex suprema est; the secondary (or real) meaning is that the legal
system should be organized with reference to detailed predetermined rules.
In this way legal certainty can be achieved; and legal certainty is conducive
to more effective protection of individual rights because the individual knows
where he stands.28 Like Dicey, Beinart is opposed to excessive discretionary
power, although he does recognize the need for some discretionary power.
By and large, however, his approach is that wide discretionary powers are
not only conducive to uncertainty but also open to abuse. He agrees with
the American jurist Roscoe Pound that judicial justice is to be preferred to
legislative or executive justice. In other words, if a discretion must be con
ferred, let it be exercised by a judge rather than by the executive or the legis
lature.
Beinart distinguishes between lawfulness and legality. Although he sees
both as relating to what he calls the ‘mechanics’ rather than the substance
of the enforcement of individual rights, he gives lawfulness a narrower con
notation than legality. In short, lawfulness means that the letter of the law
has been observed, legality that the spirit has not been overlooked.29
In his discussion Beinart acknowledges the shortcomings of the formal,
‘predetermined rules’ approach, and admits that the protection it confers
is formal rather than material. Another drawback of the ‘detailed formula
tion’ approach is that it can lead to over-regulation and what may be termed
legislative ‘overkill’. On the other hand, he holds that the recognition of a
substantive doctrine of individual rights will inevitably involve value judg
ments, which, in turn, will lead to a too subjective approach.
27 ‘The Rule of Law’ 1962 Acta Juridica 99.

28 However, see the dictum of Lord Atkin in Ras Behari Lal v King-Emperor (1933) 60
1A 354 at 361: “Finality is a good thing, but justice is a better.”
29 It is of some interest to compare Beinart’s view of legality with those of Wiechers and
Van der Vyver, whose approaches are discussed below. Wiechers’s definition of legal
ity tallies to a major extent with Beinart’s, while Van der Vyver’s approximates Beinart’s
view of lawfulness. This latter approach also tallies with the common meaning attached
to ‘legalistic’ that is, strictly in accordance with the letter of the law. See also MA
Rabie ‘The Principle of Legality and Parliamentary Sovereignty: Unbridled Power
behind the Throne’ 1977 THRHR 179.
Beinart’s emphasis on legal certainty leads him to a further distinction,

namely between justice according to law and individual justice. The former
has the advantages of uniformity, certainty and impartiality, but the disad
vantages of rigidity and complexity, and the danger that justice will not be
done in a particular case. He feels, however, that the advantages outweigh
the disadvantages and that the individual himself prefers certainty to chance,
even though the system cannot promise perfect justice. Legal certainty does
imply that retroactive legislation will not be passed, for example, and that
the maxim nulla poena sine lege (no-one is punishable unless his action is
punishable by law) will be adhered to.
Like Dicey, Beinart puts his trust in the ordinary courts of the land; but
he does not share the faith of Dicey and Jennings in a parliamentary
democracy as the best safeguard of individual rights. The greater the
parliamentary majority, the greater the ease with which safeguards may be
removed, and parliamentary self-restraint is not something which the individu
al can count on. He concludes that there is no substitute for constitutional
guarantees enforced by an independent and impartial judiciary, for the fol
lowing reasons:
(i) the professional training and judicial tradition of impartiality of judges
engenders public confidence;
(ii) full reasons are given for judicial decisions, which are published and may
be critically scrutinized;
(iii) judicial proceedings are, as a rule, held in public and are placed on record;
(iv) the right of appeal affords protection against errors of judgment;
(v) the judiciary is politically the weakest arm of government and since it
has no ambition to acquire power, it poses no political threat to the legisla
ture or the executive.30
Finally, Beinart sums up what he regards as minimum standards of justice,
or procedural rules postulating the basic requirements for a fair trial:
(i) equality of treatment;
(ii) the presumption of innocence;
(iii) observance of the rules of natural justice;
(iv) the right to legal representation;
(v) observance of the rule that no-one can be compelled to incriminate himself.
It may be observed that Beinart’s views have a distinct slant towards crim
inal law: he does not concern himself with the question whether the individual
may enforce certain (civil) rights against the state, such as the ‘right’ to work,
to be educated, to vote, and so on. He concentrates on the defensive aspect,
that is, the position of the individual who is faced with charges by the state.
Schreiner, too, formulated a formal rule-of-law concept: individual rights
should not be impinged upon by the state except “in accordance with a general
30 In an address delivered at the Bill of Rights Symposium at the University of Pretoria

in May 1986, Mr Justice Didcott put forward similar reasons for entrusting the pro
tection of individual rights to the judiciary.
precept applicable to all persons in circumstances set out in the law, the ap
plicability to a specific person being decided by a court of law”.31
Perhaps the strongest support for Dicey comes from Mathews32 who takes
the view that the rule-of-law concept embodies fundamental moral values.
He postulates a higher legal order based on the principles of natural law.
He contends that Dicey’s contribution to this sphere of the law remains
important and that in criticizing Dicey, Jennings fails to give Dicey the credit
which is his due. In his interpolated definition of the rule of law, Mathews
accepts the three criteria stated by Jones in his work Rule of Law and the
Welfare State:33
(i) in a decent society the idea that the state should wield arbitrary power
over the individual is unthinkable;
(ii) all persons, including government officials, are equally responsible to the
law;
(iii) effective judicial remedies afford the individual greater protection than
constitutional declarations.
In brief, Mathews postulates legality, a regime of known and certain rules.
One writer who tries to reconcile Dicey’s doctrine with modern require
ments, with the aid of the definition framed by the International Commis
sion of Jurists in 1959, is Sanders.34 He describes this version of the rule of
law as a dynamic concept which is employed to safeguard the civil and polit
ical rights of the individual in a free society and to establish social, economic,
educational and cultural conditions under which the legitimate aspirations
and dignity of the individual may be realized. Obviously this is a manifesto
rather than a statement of positive law. As Sanders points out, however, this
ideal or ‘politico-legal code of conduct’ as defined above, is, to a greater
or lesser extent, incorporated in the law of most Western countries. As a
result it provides a useful practical guide for other countries to follow.
Like Mathews, Sanders feels that Dicey’s concept of the rule of law con
tains much which is of value in spite of its obvious deficiencies. He adapts
and amplifies Dicey’s doctrine, and concludes that the rule of law entails
the following:
(i) equality before the law — which means more than equality before the
courts’,
(ii) legal certainty;
(iii) minimum (procedural) standards of justice — in other words, due process
of law;
(iv) limitation of government power by means of the separation of powers
or other ‘checks and balances’;
31 OD Schreiner The Contribution of English Law to the South African Law; and the
Rule of Law in South Africa (1967) at 84-85.
32 AS Mathews ‘A Bridle for the Unruly Horse?’ 1964 SALJ 312; see also Order, Law
and Liberty in South Africa (1971), and FH Lawson ‘Dicey Revisited’ 1959 Political
Studies 121.
33 Quoted by Mathews 1964 SALJ at 316.
34 A JGM Sanders ‘Die Rule of Law — ’n Gemeenskaplike Westerse Gedragskode’ 1971
THRHR 164 and 284.
(v) effective judicial remedies, which serve the individual better than formal
declarations of rights;35
(vi) an independent judiciary and an independent legal profession function
ing without interference.
At the other end of the spectrum, there are those South African writers
on constitutional law whose first concern is the theory underlying the pro
tection of individual rights within the state. Although their approach is by
no means uniform, they all have this in common, that they regard the rule-
of-law doctrine as too deficient in principle to form a sound jurisprudential
basis for a system of human rights protection.
Among the most prominent contributors in this field are Neethling,
Rautenbach, Van der Vyver, Venter, Van Wyk and Wiechers. Neethling36
and Rautenbach37 were perhaps the first South Africans to attempt a sys
tematic study of human rights and their place in the jurisprudential scheme
of things. Rautenbach points out that it is necessary, not only to study
philosophical views about human rights, but to determine whether these
philosophical ideas have found their way into positive law38 — in other words,
whether the law of a particular state in fact recognizes these ‘rights’ as such.
One of the main problem areas pinpointed by him concerns the distinction
between rights and competences and the role which competences could play
in the systematization of human rights. The difficulty with human rights as
‘rights’ in the strict, private-law sense of the word lies in the absence of an
economically appraisable legal object in the case of certain human rights.
Rautenbach expresses the view that the concept of a legal object should not
be hamstrung by the economic criterion. He comes to the conclusion, ulti
mately, that the issue of human rights is central to the study of public law
as a whole.39
Rautenbach’s main premiss is that state action always implies a threat of
encroachment upon the interests of an individual, since the relationship
between state and individual involves a certain tension (‘spannings-
verhouding’). The law must therefore strike a balance in this relationship
by protecting individual rights, powers and competences against excessive
state interference — whether these may be categorized as rights (‘subjektiewe
regte’) in the private-law sense or not. Although certain parallels do exist
with private law - most of these fundamental rights are linked with the
category of rights of personality in private law - the legal remedies need
not invariably have private-law equivalents in every respect. However,
Rautenbach prefers to avoid the concept of human rights as it is usually
understood in the international sphere, since this is capable of extremely wide
interpretation.
35 In this his view mirrors that of Mathews - see above.

36 J Neethling ‘Enkele Gedagtes oor die Juridiese Aard en Inhoud van Menseregte en
Fundamentele Vryhede’ 1971 THRHR 240.
37 IM Rautenbach ‘Subjektiewe Regte en Menseregte’ 1971 THRHR 399; Die Reg op
Bewegingsvryheid (1974) LLD thesis UNISA; ‘Die Begrip Menseregte as Sis-
tematiserende Faktor in die Suid-Afrikaanse Publiekreg’ 1976 TSAR 168; ‘Die Juridiese
Werking van Menseregte-aktes en die Nuwe Grondwetlike Bedeling’ in ‘n Nuwe Grond-
wetlike Bedeling vir Suid-Afrika: Enkele Regsaspekte (ed Jacobs) (1981) 151.
38 1971 THRHR at 401.
39 1976 TSAR 168 at 170-171.
--------------------------------- ---- - —------
Although Neethling’s main area of concern is private law, his contribu
tion to the jurisprudence of constitutional law is an important one. He con
centrates, in the first place, on the question of which human rights should
be recognized and protected - perhaps the most important issue of all. Again
the question whether human rights are rights in the technical sense of the
word, comes strongly to the fore. Neethling suggests that the concept of public
freedoms be used in imitation of English law and that where a particular
human right has a recognizable legal object, it should be recognized as a fully-
fledged right (‘subjektiewe reg’). Human rights may therefore be categorized
as rights in the pure sense, as public freedoms or as powers.
Although the work of Wiechers40 deals principally with administrative law,
his views are of major importance in the field of constitutional law proper
as well, since the protection of individual rights against infringement by the
state is a constant concern of administrative law. Like Neethling, he divides
fundamental rights into various categories: rights in the private-law sense,
a wide range of common-law freedoms, powers and privileges acknowledged
by public law (such as the ‘right’ to be economically active); and rights, powers
and privileges created by statute or existing by virtue of democratic prin
ciples of government. This last category may be compared with the compe
tences of private law. An example here would be the ‘right’ or competence
to vote.
Wiechers sees the most satisfactory approach to the rule of law in the iden
tification of the doctrine with the general principle of legality. He gives
‘legality’ a wider meaning than mere formal adherence to the letter of the
law: it means that all state action is governed by law (which includes both
statutory and common-law rules), that such action must be subject to clear
limitations, and that mechanisms must exist for the control of state action.
In other words, the state may not act arbitrarily or above the law.41 He admits
that these are purely formal criteria, and that if the state were to have as
its positive objective the protection of the freedom of the individual in all
its facets and the promotion of the material and spiritual welfare of all its
subjects, a more substantive or material concept of the rule of law would
be necessary.42
One of the most productive writers in the field of human rights is J D van
der Vyver.43 It is not possible, however, to do justice to his work within the
scope of a general discussion on constitutional law. In many of his writings
40 M Wiechers ‘Die Legaliteitsbeginsel in die Administratiefreg’ 1976 THRHR 309; ‘Ad

ministrative Law’ LAWSA Vol 1 (1976) 30; Administrative Law (1985);
JP VerLoren van Themaat Staatsreg 3 ed by M Wiechers (1981).
41 Staatsreg at 141.
42 Ibid.
43 See the following: Die Juridiese Funksie van Staat en Kerk (1972); Die Juridiese Sin
van die Leerstuk van Menseregte unpublished LLD thesis UP (1974); ‘Brown v Board
of Education: A Survey of the American Desegregation Programme’ 1974 SALJ 491;
‘Hedendaagse Calvinistiese en Rooms-Katolieke Natuurregsteoriee’ 1974 THRHR 380;
Beskerming van Menseregte in Suid-Afrika (1975); Seven Lectures on Human Rights
(1976); ‘Persvryheid in die Suid-Afrikaanse Reg’ Gedenkbundel HL Swanepoel (1976)
81; ‘The Function of Legislation as an Instrument for Social Reform’ 1976 SALJ 56;
‘Censorship’ LA WSA vol 2 (1977) 93; ‘The State, the Individual and Society’ 1977
SALJ 291; ‘Actiones Populares and the Problem of Standing in Roman-Dutch, South
he is concerned with the philosophical and religious basis of the relationship

between the state and the individual.44 On a more practical plane, he clas
sifies the rights and freedoms which are protected and guaranteed in various
constitutions, bills of rights and international declarations into two categories:
substantive rights and freedoms, and procedural rights.4546
Substantive rights would include personal rights (such as the right to life,
liberty and property); civil rights (freedom of movement, of residence, of
conscience, of expression, the right to privacy); political rights (the right to
vote, to be represented, to participate in government, to demonstrate, to as
semble, to petition the authorities, the right to one’s citizenship); economic
rights (freedom to work, to choose one’s occupation, the right to a fair wage,
to social security, to own property, to contract, to join a trade union); cul
tural rights (the right to be educated); social rights (freedom of association,
freedom to marry and have a family).
Procedural rights, on the other hand, relate mainly to the administration
of justice and may be summed up in the American phrase ‘due process of
law’: matters such as a fair trial in open court, by impartial, independent
and legally qualified judges, legal representation, legal aid, no detention
without trial, no cruel and unusual punishments, no retrospectivity and so on.
It will be seen, however, that while this classification forms a useful prac
tical guide to the kind of protection of individual rights which one may aim
to achieve, it provides no general theoretical basis for a system of human
rights.
Unlike Wiechers, Van der Vyver does not see the solution to the fundamen
tal rights problem in the concept of legality or the doctrine of the rule of law:
The rule of law simply means legality, that is that both the government and
the subordinates of the state are subject to the law. The principle of legality
as such does not necessarily preclude unjust laws . . .45
Wiechers’s concept of legality would indeed exclude unjust laws. In the
administrative-law context, Wiechers interprets legality as that principle which
requires that the administrative organ must act, not only within the scope
African and American Law’ Essays in Honour ofB Beinart III (1979) 191; ‘The Con
cept of Human Rights: its History, Contents and Meaning’ Human Rights: The Cape
Town Conference (1979) 10; ‘The Section 114 Controversy and Governmental Anar
chy’ 1980 SALJ363; ‘Inperkingsbevele’ 1980 THRHR 178; ‘Kantaantekeninge by die
Wet op Binnelandse Veiligheid 74 van 1982’ 1982 THRHR 294; ‘Parliamentary
Sovereignty, Fundamental Freedoms and a Bill of Rights’ 1982 SALJ 551: ‘The Bill-
of-Rights Issue’ 1985 77? PF 1.
44 For example, in his doctoral thesis (Die Juridiese Sin van die Leerstuk van Menseregte)
he identifies five basic classes of legal principle which bind the legislator: fundamen
tal juridical principles; typical juridical principles, structural juridical principles; consti
tutive modal principles; and regulative modal principles. Also see Die Juridiese Funksie
van Kerk en Staal; and 1974 THRHR 380. For further examples of the religious and
philosophical approach, see LM du Plessis Die Juridiese Relevansie van Christelike
Geregtigheid, unpublished LLD thesis PU for CHE (1978); ‘Reg, Geregtigheid en
Menseregte’ 1980 Obiter 51; ‘Thoughts on Law, Order and State Security 1985 TSAR
233; ‘Law, Race and Ethnicity in a Plural Society’ 1985 TR W89; F Venter ‘The Wither
ing of the Rule of Law’ 1973 Speculum luris 69; ‘Die Staatsregtelike Soewereiniteit
van God’ 1977 TSAR 4; and Die Publiekregtelike Verhouding (1985).
45 See Seven Lectures at 57 et seq.
46 Seven Lectures at 121.
of its conferred powers (intra vires) but also in conformity with common
law rules postulating the intention of the ideal legislature: in other words,
the act must be objectively reasonable.47
In Van der Vyver’s view, the rule-of-law concept cannot serve as an ade
quate cornerstone of individual rights and civil liberties. He prefers to classify
the juridical principles which form the basis of a lawgiver’s sovereignty as
follows:48
(i) the fundamental juridical principle, namely the attribute which
distinguishes the law from all other kinds of laws (such as natural, historical
or economic laws);
(ii) typical juridical principles, or principles which typify the societal struc
ture to which they apply (state, church, and so on);
(iii) structural juridical principles, which relate to the typical structure or
characteristics of the things or events to which the law applies;
(iv) constitutional modal juridical principles, which indicate the way in which
the law functions within the totality of reality as a whole;
(v) regulative modal juridical principles, which “have an ethical basis and
apply as regulative ideas of what the law ought to be”.49 He holds that this
concept of regulative principles, rather than the rule-of-law doctrine or the
principle of legality in the narrow sense, should serve as a criterion for the
ideal legal system.
Finally, he indicates some of the implications of the rule of law:50 first
of all, state authority must operate in accordance with the law, which means
that the legislature must operate in accordance with legal rules; that discre
tionary powers conferred on the executive should be confined within definite
limits; and that the judges should apply the law as they find it, but without
bias and without fear of intimidation. Furthermore, the law should be clearly
understandable, should be of general application and should never operate
retroactively. If the rule of law is interpreted in this sense, it can provide
a framework for the realization of egalitarian and libertarian principles —
it can serve justice but cannot guarantee it.
In spite of the fact that his main concern, in his thesis, was not with the
theory of fundamental rights as such, the contribution of Van Wyk in this
field is a considerable one.51 His starting-point is the Rechtsstaat concept
rather than the rule-of-law doctrine. He makes a fundamental distinction
between the material and the formal Rechtsstaat concept: the formal
Rechtsstaat complies with criteria such as the principle nulla poena sine lege',
a legislature functioning in terms of fixed legal rules; a measure of separa
tion of powers or other ‘checks and balances’ between the various organs
47 See Wiechers Administrative Law at 176-177.

48 Seven Lectures at 118-120.
49 Ibid at 119.
50 Ibid at 122.
51 DH van Wyk Persoonlike Status in die Suid-Afrikaanse Publiekreg unpublished LLD
thesis UNISA (1979); ‘Suid-Afrika en die Regstaatidee’ 1980 TSAR 152; ‘Privaatreg,
Publiekreg en Subjektiewe Regte’ 1980 De Jure 1; also HJ van Eikema-Hommes ‘Die
Materiele Rechtsstaat-idee’ 1978 TSAR 42.
’ of government; an independent judiciary; legal certainty; minimum

procedural standards of justice; and so on. The material or substantive
Rechtsstaat concept, on the other hand, presupposes that certain values such
as ‘justice’ or ‘freedom,’ will be adhered to. It is value-orientated rather than
mechanism-orientated and probably implies judicial rather than legislative
supremacy.
The most recent attempt to formulate a system of public-law rights in South
Africa is that of Venter.52 In an earlier publication53 Venter criticized the
rule-of-law doctrine as an off-shoot of humanism, a doctrine he finds both
legally and theologically unacceptable. In Die Publiekregtelike Verhouding
he analyses the work of certain South African writers in the field of fun
damental rights54 and eventually frames a system of public-law rights
(‘publieke subjektiewe regte’) based on public-law legal objects. He classi
fies public-law rights into two basic categories — material public-law rights
and immaterial public-law rights. Material public-law rights, or real rights
in public law, may have, as their legal object, either movable or immovable
things — just like real rights in private law. The immaterial public-law rights
are subdivided into three further categories: rights relating to actions
(‘publieke handelingsregte’), rights relating to circumstances or situations
(‘publieke handhąwingsregte ’) and rights relating to immaterial property
(‘publieke immateriele goedereregte’). He gives the following as examples
of these categories of legal objects: the legal object of a public-law real right
could be the territory occupied by a citizen or expropriated by a local author
ity; the legal object of a public-law right relating to actions is the act of dis
closing one’s income to the Receiver of Revenue or the act of registering as
a voter; circumstances which may constitute the legal object of ‘publieke
handhawingsregte’ are the fact of citizenship or of state security or even of
7aw and order'; finally, immaterial property which may serve as a legal
object, is the country’s flag or the national anthem.55
Venter elaborates further, explaining that the concept of public-law rights
does not adequately explain the position of the state and the individual in
this sphere: the individual must also be competent to participate in the public
law process — in other words, he must meet the requirements laid down by
law for an entity to possess a particular legal status and to perform acts to
which legal consequences are attached.56 Again he provides a schematic
representation, indicating first of all that capacity to act, locus standi, and
the capacity to act unlawfully occur in the sphere of both public-law and
private-law competences. Public-law competences are divided into two
categories: those of the state and those of other legal subjects. The state’s
competences, which operate in the sphere of governmental authority, may
be legislative, executive or judicial. The categories of individual competences
52 Die Publiekregtelike Verhouding (1985).

53 ‘The Withering of the Rule of Law’ 1973 Speculum Juris 69.
54 Notably Van der Vyver, Rautenbach, Neethling, Sanders, Van Wyk and Van der
Westhuizen (see J V van der Westhuizen Noodtoestand as Regverdigingsgrond in die
Strafreg, unpublished LLD thesis UP (1979)). ,
55 Die Publiekregtelike Verhouding at 159-164.
56 Ibid at 165.
are based on the theories of the German jurist Georg Jellinek57 who differen
tiates between four categories of public-law status: the active status, the
positive status, the negative status and the passive status. The active status
describes the individual’s role in government and state administration (and
the competences arising from the fact of this status); the positive status relates
to the claims the individual may have against the state (such as the ‘right’
to employment, social security, education); the negative status defines the
spheres in which the individual is (or should be) free from government con
trol (freedom of speech, of conscience and so on); and the passive status
reflects the individual’s duties towards the state (to render military service
or to assist the police, for example).
Having made these classifications, Venter concludes with what he sees as
the requirements for a sound system of public law (‘behorenseise aan die
publiekreg’). He endorses Van der Vyver’s five juridical principles (discussed
above) to a substantial degree, and complements the concept of regulative
modal juridical principles with that of Christian justice as espoused by
L M du Plessis.58 Applied to the legal sphere, the ideal of Christian justice
would: ensure recognition of each person’s individuality; preclude absolutism
of interests and undue formalism; ensure legal certainty; make the resolu
tion of disputes possible; provide flexible and fair results; promote equality
of treatment in comparable circumstances; and engender legality and legit
imacy, since both state and subject are bound by the law.
Next to Van der Vyver, the most prolific writer on human rights in the
South African context is probably C J R Dugard.59
In Dugard’s view, the judiciary’s role in the protection of individual rights
is a vital one even in a system of legislative rather than judicial supremacy.
He is critical of the way in which the South African courts have, on occa
sion, approached this issue and puts forward the view that the positivist ‘ours-
not-to-reason-why’ approach has not been conducive to the development of
a sound system of protection of individual rights in South Africa. He
acknowledges that the South African judiciary has a reputation for indepen
dence and impartiality but holds that — as is the case in many Western socie
ties — it often leans in favour of the executive when the opportunity presents
itself to protect the individual against undue executive (or legislative) en
croachment. He suggests that in a system where there are no statutorily
57 System der Subjektiven offentlichen Rechte (1919); Allgemeine Staatslehre (1922). Also
see Van Wyk op cit at 26-29 and 111-139.
58 Die Juridiese Relevansie van Christelike Geregtigheid unpublished LLD thesis PU for
CHE (1978); ‘Reg, Geregtigheid en Menseregte
* 1980 Obiter 51.
59 He has also written a great deal on public international law. Among his writings deal
ing with the protection of individual rights in South Africa are the following: ‘The
Courts and Section 6 of the Terrorism Act’ 1970 SALJ 289; ‘The Judicial Process,
Positivism and Civil Liberty’ 1971 SALJ 181; ‘South African Lawyers and the Liber
al Heritage of the Law, Justice and Society’ 1972 SPROCAS 19; Human Rights and
the South African Legal Order (1978); ‘Human Rights in South Africa — Retrospect
and Prospect’ Human Rights: The Cape Town Conference (1979) 263; ‘The Human
Rights Clauses in the United Nations Charter and South African Law’ 1980 De Jure
297; ‘Some Realism about the Judicial Process and Positivism - A Reply’ 1981 SALJ
372, ‘A Triumph for Executive Power — an Examination of the Rabie Report and
the Internal Security Act 74 of 1982’ 1982 SALJ 589; ‘Should Judges Resign? - A
Reply to Professor Wacks’ 1984 SALJ 286.
defined human rights, such as South Africa, the judiciary may have an even
more important role to play in the protection of these rights than in a system
where individual rights enjoy statutory recognition.60 Although there are a
number of cases in which the South African judiciary has, in Dugard’s words,
done its best to protect individual rights,61 there are others in which “it has
failed to display the maximum commitment to liberty permissible within the
limits of the judicial function”.62
According to Dugard, the mechanical or ‘phonographic’ approach of most
South African judges stems from the acceptance of positivism as a
jurisprudential guide.63 He points out that judges have not hesitated to criti
cize unjust legislation in the field of private law or in politically neutral cases,
and have often adjudicated creatively in such cases.64 In short, he postulates
a value-orientated judicial policy instead of a sterile and mechanical approach,
and suggests that these values may be found in the basic political and legal
ideals of modern Western society65 and that many of them have their roots
in the Roman-Dutch tradition; for example, the principles that there should
be no arbitrary arrest or detention without trial, that anyone whose liberty
is at stake should have the right to be heard, that the right to legal
representation, freedom of speech, assembly, movement and so on, should
be recognized. Dugard does not agree with Wacks66 that judges have little
discretion and that they should resign rather than participate in a system they
60 ‘Human Rights in South Africa - Retrospect and Prospect’ in Human Rights: The
Cape Town Conference (1979) at 284.
1 He cites the cases of S v Ndou 1970 1 SA 668 (A); S v Mandela 1972 3 SA 231 (A);
S v ffrench-Beytagh 1972 3 SA 430 (A); Wood v Ondangwa Tribal Authority 1975
2 SA 294 (A); Nxasana v Minister of Justice 1976 3 SA 745 (D); Mtima v Bantu Af
fairs Administration Board, Peninsula Area 1977 4 SA 920 (A); Ebrahim v Minister
of the Interior 1977 1 SA 294 (A); S v Moroney 1978 4 SA 389 (A) and the dissenting
judgment of Corbett JA in Goldberg v Minister of Prisons 1979 1 SA 14 (A) at 38.
To this list may be added the judgments on race classification cited by Wiechers ‘Die
Legaliteitsbeginsel in die Administratiefreg’ 1967 THRHR 309 at 327 as well as the
more recent cases of S v Gibson NO 1979 4 SA 115 (N); S v Meer 1981 1 SA 739 (N);
S v Russell 1980 2 SA 459 (C); Rikhoto v East Rand Administration Board 1982 1
SA 257 (W), and such recent cases as Hurley v Minister of Law and Order 1985 4
SA 709 (D); Katofa v Administrator-General for SWA 1985 4 SA 211 (SWA); Nkon-
do and Others; Gumede v Minister of Law and Order; Minister of Law and Order
v Gumede 1986 2 SA 756 (A); Mkhize v Minister of Law and Order 1985 4 SA 147
(N); S v Ramgobin 1985 4 SA 130 (N); and 1985 3 SA 587 (N) (full bench); S v Baleka
1986 1 SA 361 (T) (the judgments of Stegmann and Preiss J J).
62 Human Rights: The Cape Town Conference loc cit. See the following cases: Rossouw
v Sachs 1964 2 SA 551 (A); Schermbrucker v Klindt NO 1965 4 SA 606 (A); South
African Defence and Aid Fund v Minister of Justice 1967 1 SA 263 (A); S v Van Nie-
kerk 1973 3 SA 711 (A); Sobukwe v Minister of Justice 1972 1 SA 693 (A); Minister
of Justice v Alexander 1975 4 SA 530 (A); S v Wood 1976 1 SA 703 (A); S v Naude
1975 1 SA 681 (A); South African Associated Newspapers v Estate Pelser 1975 4 SA
797 (A); Goldberg v Minister of Prisons 1979 1 SA 14 (A); S v Adams; S v Werner
1981 1 SA 187 (A), which Dugard describes as even more draconian in its effect than
the judgment in Lockhat v Minister of the Interior 1960 3 SA 765 (D).
63 1971 SAL J at 183.
64 Ibid at 196 and 199.
65 Compare the approach of Sanders, discussed above at 91-92.
66 See R Wacks ‘Judges and Injustice’ 1984 SALJ 266; Dugard’s reply ‘Should Judges
Resign? - A Reply to Professor Wacks’ 1984 SALJ 286; and again, Wacks ‘Judging
Judges: A Brief Rejoinder to Professor Dugard’ 1984 SALJ 295. Opinions on the role
regard as morally and legally indefensible. He sees a certain amount of

progress in the sphere of fundamental rights and concludes that judges have
become more sensitive to these issues in the past decade if compared with
the previous one.
South African jurists have in recent years shown an increasing tendency
to seek inspiration in the works of Continental writers in general and German
authorities in particular. It is therefore of some interest, especially if regard
is had to the approach of Dugard as discussed above, to examine the views
of one of the modern German writers in this sphere, F Miiller.67 In a paper
read at a seminar held in Germany in 1984 and attended by students from
the universities of Cape Town and Stellenbosch, Muller made the following
statements, among others:
In the democratic constitutional state, law is the normative expression of the
parliamentary process in which different interest groups take part.68
The less a law serves common ideas of justice, but prescribes or projects specific
measures, the greater the danger of encroachments upon constitutional rights
becomes.69
Justice is only realised in the decision of the single individual case. The law as
an abstract rule can only make justice possible; it cannot itself realise it.70
In our Western way of thinking, justice is a value superior to politics.71
The question still remains, however, what justice really is, since it is not ident
ical with law . . . Human dignity . . . and all the other fundamental rights have
been made the basis of the constitutional order ... In the end it is therefore the
supreme constitutional principles that approach the idea of justice as far as is
possible.72
He points out that, although the prevailing view in Germany is that positive
law owes its validity to the fact that it has been formally set down, and not
to any connection with an ideal of justice, in a constitutional state law is
incompatible with justice only in exceptional cases.73
of the judiciary have also been expressed by JRL Milton ‘A Cloistered Virtue?’ 1970
SALJ 424; Barend van Niekerk ‘The Uncloistering of the Virtue: Freedom of Speech
and the Administration of Justice’ 1978 &4LJ362, 534; E Cameron ‘Legal Chauvinism,
Executive-Mindedness and Justice — L C Steyn’s Impact on South African Law’ 1982
St4LJ38; D Dyzenhaus ‘LC Steyn in Perspective’ 1982 S/1LJ380 and ‘Judges, Equi
ty and Truth’ 1985 SALJ 295; G Marcus ‘Judging the Judges’ 1984 SALJ 160; CF
Forsyth In Dangerfor their Talents - A Study of the Appellate Division of the Supreme
Court of South Africa from 1950-1980 (1985); AS Mathews ‘The South African
Judiciary and the Security System’ 1985 South African Journal on Human Rights
(SAJHR) 199; H Corder Judges at Work: the Role and Attitudes of the South Afri
can Judiciary 1910-1950 (1984); H J Erasmus Regspleging in die Gedrang lecture given
at the University of Stellenbosch, February 1986; Kentridge ‘Telling the Truth about
Law’ 1982 SALJ 648; LJ Boulle ‘Detainees and the Courts: New Beginings’ 1985
SAJHR 251; C Hoexter ‘Judicial Policy in South Africa’ 1986 SALJ 436.
67 University of Bayreuth, Federal Republic of Germany. See ‘The Judge and Unjust
Law: A German Perspective’ 1985 TR W 152.
68 At 152.
69 At 153-154. Here he is stressing the changed role of the law in the so-called ‘social’,
‘welfare’ or ‘administrative’ state.
70 At 154.
71 At 156.
72 At 160. The statement that law and justice are not synonymous is reminiscent of the
cynical observation of the London cabby who told his passenger that he did not know
where the courts of justice were. When the passenger rephrased his request, asking
to be taken to the courts of law, the cabby immediately responded: “Why didn’t you
say so in the first place?”
73 At 161.
Muller would seem to agree with Dugard about the nature of the judicial
process:
[Tjhe work of a judge is not that of an automatic machine ... he has the key
position in a value-orientated process: the realisation of justice in the individual
case.74
Finally:
If the judge in a constitutional state tries to decide according to the idea of justice
not only in the formal sense, but also in the material sense of the word, he has
to take the socio-ethic context into consideration.75
Conclusion
There is, as yet, no single theory of individual rights protection which enjoys
general currency in South Africa. There are, however, a number of basic
principles and postulates which are endorsed by virtually every academic who
is concerned with this issue. Whether the approach stems from the basic doc
trine of the rule of law, from the Rechtsstaat, from natural-law ideals, from
humanism or from an ideal rooted in the Christian ethic, the consensus is
that the protection of fundamental rights in South African law is not what
it should be.76 Likewise, the fact that no solution has been found to the conun
drum ‘when is a right not a right?’ should not constitute an insurmountable
obstacle to the drafting of a practical system of individual rights which takes
the interests of both community (state) and individual into account and which
provides for a greater degree of equilibrium than is the case at present.
IV THE PROTECTION OF FUNDAMENTAL RIGHTS IN SOUTH AFRICA
1 Introduction
There is no constitutionally entrenched protection of fundamental rights in
South Africa.7778Many of these rights certainly enjoy protection at common
law, particularly those which are generally recognized as private-law rights
(‘subjektiewe regte’), and for many years this protection was indeed adequate.
As Innes C J said in Krohn v The Minister for Defence:™
If any man’s rights or personal liberty or property are threatened, whether by the
Government or by a private individual, the courts are open for his protection.
And behind the courts is ranged the full power of the state to ensure the enforce
ment of their decrees.
But that was at a time when encroachment upon individual rights took place
only by way of exception and only, as Innes CJ himself put it, when the
74 At 162.
75 At 163.
76 In addition to the works cited elsewhere in this chapter, see Suzman ‘South Africa
and the Rule of Law’ 1968 SALJ 261; Lippmann ‘Human Rights Reviewed: the Pro
tection of Human Rights under the International Convention on Civil and Political
Rights’ 1979 SAYIL 82; Hiemstra ‘Constitutions of Liberty’ 1971 SALJ 45, and the
debate between Davis and Forsyth in 1980 SALJ at 94, 103, 616 and 623.
T1 The only ‘exception’, if one can call it that, is the constitutional entrenchment of the
two official languages. It is jurisprudentially incorrect to speak of languages having
rights as such; it is the individual who has the right in respect of his language, as an
off-shoot of rights of personality together with all other ‘rights’ which flow from the
individual’s cultural background. There is no doubt that if one of the two official lan
guages were to be abolished the members of the community who speak that language
would feel that their rights have been encroached upon.
78 1915 AD 191 at 197.
Rule of Law and Protection of Fundamental Individual Rights. 101
existence of the state is at stake, when “more drastic and speedy” machinery
is required to cope with the “urgent danger. 79
2 The Protection of Personal Liberty - Habeas Corpus and the

Interdictum de Homine Libero Exhibendo
It may seem strange, at first glance, to see the protection of one particular
right being singled out for special treatment. As Sir Alfred Denning Points
out,80 however, the issue of personal liberty is regarded as of such importance
in English law, that whenever an application is brought which concerns the
liberty of the subject, it is heard first - everything else is set aside.
Personal liberty in English law is protected by means of a writ of habeas
corpus which derived originally from the King’s judicial prerogative. It is
a common-law remedy “declared by Magna Carta and the statutes which
affirm it.”81 It is a remedy available to any person82 confined without legal
justification and is obtainable by any person on behalf of the prisoner if access
to the prisoner is denied, thus preventing him from giving instructions to
a legal adviser, for example.83 The writ is available against anyone suspected
of detaining another unlawfully, and not only against public authorities such
as the police. Application is made ex parte, and the applicant must show
that the detention is prima facie unlawful. It need not be shown, however,
that the respondent is holding the detainee in bad faith.8485 87
86
The equivalent Roman-Dutch remedy is the interdictum de homine libero
exhibendo. The question whether both remedies are available in South African
law has not yet been pertinently decided by our courts. In Bozzoli v Station
Commander, John Vorster Square, Johannesburg
* 5 Snyman J simply stated
that the request was for a writ of habeas corpus, “rendered more correctly
in our law as an interdictum de homine libero exhibendo . . .” while in Wood
v Ondangwa Tribal Authority
* 6 Rumpff CJ held that the interdictum forms
part of South African law but did not consider the status of the writ of habeas
corpus.
* 1 It is therefore not yet settled law that the habeas corpus is part of
79 Ibid.
80 Freedom under the Law (1949) at 3.
81 Broom’s Constitutional Law 2 ed at 223, quoted by Wade and Phillips op cit at 492.
For a full discussion of the history and present application of habeas corpus see Wade
and Phillips op cit at 491-499 and Hood Phillips op cit at 476 et seq.
82 Except a prisoner of war or an interned enemy alien — see Wade and Phillips op cit
at 491.
83 Wade and Phillips op cit at 492; Hood Phillips op cit at 479.
84 See VerLoren van Themaat op cit at 159; DL Carey Miller 1975 SALJ 242;
P Aronstam 1976 SALJ 346; H Booysen 1975 THRHR 309.
85 1972 3 SA 934 (W).
86 1975 2 SA 294 (A).
87 Cases in which the issue of personal liberty have arisen, are the following: In re Willem
Kok 1879 Buch 45; Cebekulu v Pepler 1947 4 SA 580 (W); LiKui Yu v Superintendent
of Labourers 1906 TS 181; In re Marechane 1882 SAR 27; In re Jacobs 1885 HCG
294; Tonge v Governor of Johannesburg Gaol 1903 TH 393; In re Fourie 1900 SC
173; Abner Major v John Makettra 1880 EDC 47; Principal Immigration Officer v
Narayansamy 1916 TPD 274; Mbadlanyna v Pepler 1961 4 SA 806 (C); Mkhize v Swem-
mer 1967 1 SA 186 (D); Bozzoli v Station Commander John Vorster Square Johan
nesburg 1972 3 SA 934 (W), amongst others. Also see the cases of Hurley, Katofa
and Gumede, cited above at 98 (fn 61).
South African law. There would appear to be no reason, however, why it

should not be, even if one accepts that the relationship between state and
subject is governed primarily by Roman-Dutch law,88 since the writ is also
concerned with the relationship between the King and the subject by virtue
of its being a prerogative writ. VerLoren van Themaat accepts that it is part
of our law,89 while both Kentridge90 and Basson and Viljoen91 regard the
recognition of a second action in addition to the Roman-Dutch interdict as
unnecessary, since the writ and the interdict are substantially similar. Ver
Loren van Themaat92 points out that the scope of habeas corpus is wider
than that of the interdict in certain respects, since the interdict requires that
dolus malus be proved on the part of the respondent, and since it is an effec
tive defence to show that reasonable grounds exist for the detention; fur
thermore, the person making the application on behalf of the detainee must
not be a suspect; his application must be bona fide. Basson and Viljoen93
are of the opinion, however, that the requirement of dolus has fallen into
disuse.
Another question arising in relation to the two actions is whether the
requirement of locus standi is the same for both. In English law the detainee
is afforded every opportunity to apply for the writ; and if access to the
detainee is denied, the application may be made on his behalf by another.94
This latter person need not stand in any specific legal relationship to the
detainee, nor need he be expressly authorized to act on his behalf, but it does
seem that he must have some specific interest in the matter and not merely
be an interested stranger, volunteer or good Samaritan.95 De Smith96 suggests
that the application may be made by a relative, guardian or friend of the
detainee. The implication is that the Roman actio popularis, which conferred
locus standi on any member of the general public, is not reflected in English
practice. It may be mentioned, nevertheless, that Eckard97 has found that
the English courts are more inclined toward the recognition of a kind of actio
popularis than are the Continental judiciaries.
88 See ch 2 above at 20 et seq.

89 Op cit at 160.
90 ‘Habeas Corpus Procedure in South Africa’ 1962 SALJ 283. Kentridge’s approach
(at 285) is that jurisdiction to grant a writ of habeas corpus was derived from the Roman-
Dutch remedy of the interdictum — an old hybridization of the two systems. He con
cludes that in modern South African law the writ has been extended to provide the
remedy prayed for, whether detention has been dolo malo or not, and that the term
habeas corpus is used to describe the remedy. The judgment in Wood v Ondangwa
Tribal Authority 1975 2 SA 294 (A) was, of course, given after the writing of this article.
91 Studentehandboek vir die Suid-Afrikaanse Staatsreg (1986) at 432.
92 Op cit at 159.
93 Relying on Hahlo and Kahn The Union of South Africa — The Development of its
Laws and Constitution (1960) at 137 - op cit at 431.
94 Hood Phillips op cit at 492; Wade and Phillips op cit at 479; EW Ridges Constitu
tional Law 8 ed by GA Forrest (1950).
95 See Rollin C Hurd A Treatise on the Right of Personal Liberty and on the Writ of
Habeas Corpus 2 ed by Frank H Hurd (1876) at 202 et seq. This is admittedly an Ameri
can work, and very much out of date.
96 Constitutional and Administrative Law at 462.
97 CF Eckard Die Locus Standi van Aansoekers by die Geregtelike Hersiening van
Administratiewe Handelinge unpublished LLD thesis UNISA (1975) at 243.
Rule of Law and Protection of Fundamental Individual Rightj^ 1Q3
In an early South African case, In re Cakijana v TobelcP

* a very Uêraj
approach to locus standi was adopted. This led Kentridge to conclude
the writ of habeas corpus “lies at the suit of any person, whether dit-g^
interested or not, even one . . . who does not normally have locus Stancn
in judicio”."
In Bozzoli v Station Commander, John Vorster Square Johannesbitrg\QQ
it was held that habeas corpus and the interdictum were synonymous, fnd
that a university principal has a special interest, that is, “an interest above
that of the ordinary member of the public”98 101 in regard to students of hjs
100
99
university, and therefore has locus standi to apply for their release, y^g
Appellate Division took a wide view in Wood v Ondangwa Tribal Author.
ity.102 Rumpff CJ held that although the actiones popularis have become
obsolete in the sense that no member of the public has locus standi as such,
the interest of the person who applies for the interdictum should be widely
construed because “illegal deprivation of liberty is a threat to the very foun
dation of a society based on law and order.”103 Thus, although some special
interest in the aggrieved person is required before an applicant will have locus
standi, this need not arise from a personal or family relationship; in casu
the applicant was a bishop of the church to which some of the aggrieved
persons belonged.
The order given in the Wood case, however, was not the customary man
datory writ, but a prohibitory interdict aimed at preventing the respondents
from continuing with their action against the victims. Now both the inter
dictum de libero homine exhibendo and the habeas corpus are of a man
datory nature: their object is to achieve the release of a person who is being
detained illegally. In the Wood case the victims had been detained and
assaulted while in detention, but were not being detained at the time when
the application was brought. The court was nevertheless prepared to accept
that they needed someone else to make the application on their behalf, and
to extend the application of the interdictum to serve as prohibitory inter
dict. This extended application of the interdictim elicited a certain amount
of criticism.104
The right to personal liberty and the protection afforded by the remedies
of habeas corpus and the interdictum have been whittled down to a marked
extent in South African law by various legislative measures.105
3 Common-law Protection of Other Fundamental Rights in South

Africa
Those rights which are recognized as private-law rights (‘subjektiewe regte’)
in South African law are, in general, adequately protected by law in the con
98 1908 NLR 193 at 201.

99 Op cit at 185.
100 Supra.
101 At 935F.
102 Supra.
103 At 309G.
104 See DL Carey Miller 1975 SALJ 242; Peter Aronstam 1976 SALJ 346; H Booysen
1975 THRHR 309.
105 See the discussion below at 110 et seq.
stitutional sphere as well. Apart from the right to physical liberty, which has
been discussed above, the rights to physical or bodily integrity, property,
privacy, honour and reputation, are protected by common law against
infringement by both private individuals and the state. On the other hand,
all of them may be encroached upon in some way or other by legislation:
the state may expropriate private property, interfere with the individual’s
privacy in the interests of state security (it is common knowledge that tele
phones may be ‘tapped’ and post intercepted), tarnish the individual’s repu
tation (by listing him as a Communist, for example) and so on. The
common-law presumption against discrimination may be overturned by legis
lation;106 the presumption of innocence may be replaced by a presumption
which places the onus on the individual instead of the state; freedom of
speech, press freedom, freedom of association and of assembly — all recog
nized at common law - may be curtailed by legislation.
As VerLoren van Themaat107 points out, because South African society
in its entirety is ordered on a racial bias, the status of every individual, and
in consequence, his rights, privileges and freedoms as well, is governed by
this system of racial classification.108 Race governs the competence to vote;109
the right to live and work where one pleases;110 the right to attend a school
106 As regards the issue of legalized racial discrimination, see Minister of Posts and
Telegraphs v Rasool 1934 AD 167; Williams and Adendorff v Johannesburg
Municipality 1915 TPD 106; SvNaicker 1963 4 SA 610 (N). For judgments in which
the courts upheld the principle of equality, see R v Abdurahman 1950 3 SA 136 (A);
Bindura Town Management Board v Desai & Co 1953 1 SA 358 (A); R v Lusu 1953
2 SA 484 (A); the minority judgment of Schreiner J A in Mustapha v Receiver of
Revenue Lichtenburg 1958 3 SA 343 (A); Metal and Allied Workers Union v Minister
of Manpower 1983 3 SA 238 (N). Also see KPS Roome ‘Discrimination in By-Laws’
1969 S/1LJ319; WHB Dean ‘Reason and Prejudice: The Courts and Licensing Bod
ies in the Transvaal’ in Fiat lustitia Essays in Memory of Oliver Deneys Schreiner
(ed Kahn) (1983) at 211 and ‘The Role of the Law in the Elimination of Racial
Discrimination’ Essays in Honour of Ben Beinart (1978) at 157; A Avins ‘Racial Sepa
ration and Public Accommodations’ 1968 SALJ 53.
107 Op cit at 151.
108 See the Population Registration Act 30 of 1950; DH van Wyk ’n Administratiefregte-
like Ondersoek na die Stelsel van Rasseklassifikasie in Suid-Afrika unpublished LLM
dissertation UNISA (1974) and Persoonlike Status in die Suid-Afrikaanse Publiekreg
unpublished LLD thesis, UNISA (1979); BR Bamford ‘Race Reclassification’ 1967
SALJ 37; A Suzman ‘Race Classification and Definition in the Legislation of the
Union of South Africa 1910-60’ 1960 Acta Juridica 339; the Report of the Commission
of Enquiry into Matters Affecting the Coloured Population Group (the Report of
the Theron Commission) RP 38/1976 at 23.
109 Political power has, since 1910, been concentrated in the White population group,
although Coloureds, and some Blacks have, at certain stages, possessed the franchise
— see ch 6 below at 139 et seq. The 1983 Constitution extended the franchise to
Coloureds and Indians, but Blacks still have no say in the election of representatives
to the central Parliament - see chapters 17 and 20 below.
110 This is governed principally by the Group Areas Act 36 of 1966 and the Black Areas
Act 25 of 1945. Urban Blacks had, until the abolition of influx control in terms of
Act 84 of 1986, to qualify in terms of s 10 of the 1945 Act before they could live
and work in a white urban area and may still be prosecuted for trespass and vagrancy.
See the cases of Mtima v Bantu Affairs Administration Board Peninsula Area 1977
4 SA 920 (A); Komani v Bantu Affairs Administration Board 1980 4 SA 448 (A);
Rikhoto v East Rand Administration Board 1983 4 SA 278 (W); also see Dugard
Human Rights and the South African Legal Order at 144.
or university of one’s choice;”1 and until recently, the right to marry and
associate with whomsoever one chooses,”2 and the right to form political
associations with whomsoever one chooses,”3 were also subject to statutory
restriction.
The system of racial separation also resulted in the loss of South African
citizenship for those Blacks who became citizens of Transkei, Bophutha-
tswana, Venda and Ciskei, when these former homelands opted for full con
114 This citizenship has, however,
stitutional independence from South Africa.111
113
112
been restored in certain circumstances.115
4 Curtailment of Fundamental Rights in South African Law
(i) In times of martial law

Both English and Roman-Dutch law recognize the principle that the state
is entitled to curtail the rights of the individual in time of war or internal
rebellion. This principle, which dates back to Roman law, is: salus reipublicae
suprema lex.
The common-law rules relating to martial law have to a major extent been
superseded by legislation, but this does not mean that the common-law matrix
can be discarded altogether.
There is no unanimity on the question whether the South African law on
this point is based on English or on Roman-Dutch law. Ex parte Kotze1'6
Bristowe J said:
Inasmuch as martial law is a constitutional weapon which has arisen in England,
the English authorities are conclusive as to what the extent and nature of martial
law may be.
VerLoren van Themaat, on the other hand, holds that martial law in South
Africa is governed by Roman-Dutch law, since martial law is not linked with
the supremacy of Parliament or with the powers and prerogatives of the
Crown.117
Adherents to the Roman-Dutch school base the power to proclaim mar
tial law on the principles of self-defence and necessity. The same principles
111 In terms of the Extension of Higher Education Act 45 of 1959, non-Whites require
ministerial permission to attend white universities and vice versa. This restriction has
been relaxed somewhat, but children of one race group may still not go to schools
designated for another race group as a matter of course. The number of non-white
children attending white private schools has, however, increased dramatically dur
ing the past few years.
112 The Prohibition of Mixed Marriages Act 55 of 1949 and s 16 of the Immorality Act
23 of 1957 were repealed by ss7(l) and (2) of Act 72 of 1985, respectively.
113 Ss 1 and 2 of The Prohibition of Political Interference Act 51 of 1968 were repealed
by the Constitutional Affairs Amendment Act 104 of 1985.
114 See the Status Acts of Transkei (100 of 1976); Bophuthatswana (89 of 1977); Venda
(107 of 1979) and Ciskei (110 of 1981). The governments concerned entered into agree
ments with the South African government that former South African citizens would
not forfeit existing rights and privileges relating to residence, employment etc on be
coming citizens of the new states. Also see Dugard Human Rights: The Cape Town
Conference(1979) at 281; WH Olivier ‘Statelessness and Transkeian Nationality’ 1976
SA YIL 149; and the discussion in ch 20 below.
115 Act 73 of 1986.
116 1914 TPD 564 at 570. Also see AM Conradie ‘Krygswet’ 1941 THRHR 183.
117 Op cit at 161-162.
that apply to these doctrines in the sphere of private law would apply here:
there must be an imminent danger threatening the safety of the state; if action
is taken in self-defence, the imminent attack must be unlawful; the steps taken
in self-defence must be commensurate with the danger. When the steps are
taken on the basis of necessity rather than self-defence, they are not aimed
at an aggressor’s unlawful action, but the measures adopted must still be
in proportion to the danger, so that the rights of the individual may not be
curtailed to an extent which is disproportionate to the threat posed by the
emergency.118
Acceptance of these principles implies that any action taken during the
period of martial law must have been objectively necessary; in other words,
that the subjective judgment of the military authorities is subject to ex post
facto scrutiny by the courts to determine the necessity of the action taken.
The role and powers of the courts in time of martial law will be discussed
presently.
The view that the rules governing martial law are of English origin is based
on section 6(3)(f) of the Constitution Act119 which provides that the State
President is empowered to declare and terminate martial law. Like the other
powers enumerated in section 6(3), this is a power ‘inherited’ from the British
monarch.120 If martial law is to be construed as a matter of prerogative, it
must be remembered that prerogatives are discretionary powers originating
in the King’s position as liege lord; that they were initially exercised by the
King himself, but eventually (by convention) on the advice of his ministers.
The exercise of prerogative powers is, to a certain extent, subject to judicial
control: the decision to exercise the prerogative may not be challenged but
the way in which the decision is implemented is subject to judicial scrutiny.121
Applied to the martial-law issue, this means that the objective necessity for
the proclamation of martial law cannot be questioned, but that the way in
which the power is exercised may, although the merits or desirability of the
action is not subject to judicial control. The courts may enquire only whether
the prerogative power has been duly and correctly exercised.
Hood Phillips122 points out that the royal prerogative to proclaim martial
law in peacetime was abolished by the Petition of Right (1628) and that, in
Britain, it has not been proclaimed in wartime since the reign of Charles I.
When the government feels that the situation requires that extraordinary
powers be conferred on the military, emergency legislation is passed by Parlia
ment. There are still some authorities, however, who hold that martial law
may be proclaimed in Britain in time of war. Among the judgments relied
on for this conclusion is that in Ex parte D F Marais,123 a Privy Council appeal

119 110 of 1983.
120 See the discussion of prerogatives in ch 9 below. S 6(3) lists some of the powers which
the State President derived from his predecessor, who exercises them by virtue of
the royal prerogative but, by convention, on the advice of the ministers of state.
121 See The Case of Proclamations (1611) 12 Co Rep 74; Sachs v Dónges NO 1950 2
SA 265 (A).
122 Op cit at 363.
123 1902 AC 109.
from South Africa. In general, the English judgments are few and far be
tween; what is more, they do not provide a complete and comprehensive pic
ture. Our courts have nevertheless tended to follow English precedent in this
regard.124
English law requires, for the proclamation of martial law, that a state of
war must exist. This includes both armed conflict with another state and
armed revolution within the state.125 When there is armed conflict involving
another state, martial law may apparently be proclaimed even if there is no
fighting within the borders of the state itself. A number of South African
decisions support this view. In Ex parte Kotze'26 for example, Bristowe J
said “I think [martial law] is clearly justifiable ... in a country which is
at war, though not actually the theatre of military operations . . .”127 and
in Ex parte D F Marais'2* a South African case which was eventually taken
to the Privy Council, Lord Halsbury treated the phrases ‘where actual war
is raging’ and ‘where war actually prevails’ as if they are synonymous, which
they clearly are not. It may be argued that the factor of geographical proxim
ity to the theatre of military operations is no longer decisive, since modern
communications are so sophisticated that a state which is at war is threat
ened even if far removed from the actual fighting; but it does seem rather
far-fetched to argue that martial law could have been declared in Britain it
self during the Falklands war or in the United States of America during the
Vietnam war. As far as the South African situation is concerned, there was
internal unrest during the First World War (the Rebellion); and while there
ws a certain amount of unrest during the Second World War, owing to the
activities of the Ossewa-Brandwag, it cannot be said that war raged, or
prevailed, or that a situation of rebellion or insurrection prevailed. The procla
mation of martial law during the Second World War was nevertheless regard
ed as justified in Triimpelmann v Minister for Justice and Minister for
Defence.'29
If one adheres to the view that martial law is based on prerogative, the
act of proclamation is logically a sine qua non for the existence of martial
law. The prevailing opinion, however, is that proclamation is merely a notifi
cation to the public and that it confers no additional powers on the mili
tary.130 This approach follows logically on the premiss that martial law is
124 See Q v Bekker 1900 SC 340.

125 See Dicey op cit at 288, who recognizes the power to proclaim martial law in the
event of war, invasion, insurrection, riot, and so on, as essential to the very essence
of orderly government; also Stephen The History of Criminal Law in England
5 ed (1894) at 215.
126 Supra.
127 At 566.
128 Supra. It must be borne in mind throughout that the Privy Council was obliged to
apply the law of the country from which the appeal originated. Thus although Privy
Council judgments are the judgments of a British court, they are binding on the country
of origin (South Africa, in this case) but not on British courts, since the supreme
court of appeal in matters originating in Britain is the House of Lords. The Privy
Council’s judicial powers in Britain were abolished in 1641 — see ch 3 above.
129 1940 TPD 242.
130 See Dedlow v Minister of Defence and Provost Marshall 1915 TPD 543 at 553; Krohn
v The Minister for Defence 1915 AD 191 at 197; RS Welsh ‘Martial Law’ 1941 SALJ
111 at 114.
based on self-defence and necessity: as soon as the requirements for self-

defence or necessity have been met, the powers may be exercised. Once Parlia
ment sees fit to adopt legislation, however, the situation is governed by that
enactment and all further speculation becomes futile.131132 134
133
The most important issue in this regard relates to the position of the ordi
nary courts at a time of martial law. The first question is whether the courts
may query the actual decision to impose martial law on the country. If the
decision is taken by virtue of the prerogative, it cannot be challenged.
In Q v Bekker331 Solomon J stated emphatically that
both the justification for proclaiming martial law and the actual exercise of authori
ty thereunder, are strictly limited by the necessities of the situation,
thus implying that the courts have jurisdiction with regard to both issues.
Lord Halsbury, in Ex parte DF Marais333 distinguished between war and re
bellion:
Doubtless cases of difficulty arise when the fact of a state of rebellion or insurrec
tion is not clearly established . . . but once let the fact of actual war be estab
lished ... the civil courts have no jurisdiction to call in question the proprietary
of the military authorities.
In Ex parte Kotze33* Bristowe J endorsed the principle laid down in Marais's
case in regard to rebellion'.
The civil courts have the right, so long as they exist, to decide whether Martial
Law is necessary or not, and the extent to which it is necessary.
As far as war is concerned, our courts have not been consistent. In Tole v
Director of Prisons135136 Wessels J held that the court has jurisdiction to de
137
cide whether martial law is necessary or not, but in Dedlow v Minister of
Defence and Provost Marshal335 the same judge was not prepared to accept
that the courts could determine whether martial law was necessary or not;
in Krohn v The Minister for Defence331 De Villiers J A admitted: “I am not
clear that I quite grasp the exact scope and limitations of the rule thus broadly
stated [in the Marais case].” Finally, in the Triimpelman case138139 the court
simply accepted that war ‘was prevailing’ once war had been declared, and
flatly refused to exercise any jurisdiction in the matter.
The second question to be answered is whether, once martial law has been
imposed, the courts may enquire into specific measures taken under martial
law. The case law is somewhat confusing, since the courts have not consis
tently distinguished between the imposition of martial law (a general measure)
and the steps taken against the individual in consequence of martial law (a
particular measure).
In Q v Bekker339 Solomon J held, unequivocally:
I do not think the court is debarred, merely because martial law is in force, from
satisfying itself that the acts complained of, are under the circumstances proper
and necessary.
131 The War Measures Act 13 of 1940 was probably adopted in consequence of the Triim-
pehnann case.
132 Supra at 356.
133 Supra at 115.
134 Supra at 569. He adds, however, that once they have decided that it is necessary,
their jurisdiction is superseded to the extent to which the military authorities choose
to supersede it.
135 1914 TPD 20.
136 Supra.
137 Supra at 212.
138 Supra at 249.
139 Supra at 357.
In In re FourieiA0 Buchanan AC J added: At any rate until the contrary

is shown, the fact of the proclamation will be sufficient prima facie evidence
of necessity.” Innes C J in the Krohn case140
141 distinguished between the area
of actual hostilities” where judicial interference would be undesirable, and
‘‘places where there are no military operations in progress, and where yet
it may be necessary to exercise special powers of supervision and control”.
In the same case, however, Solomon J A seems to have taken a somewhat
stricter view:
The broad principle as enunciated by the Privy Council [in the Marais case] is
that in time of war the action of the military authority is not justiciable by the
courts of law.142
As is to be expected, the court was not prepared to interfere with the action
of the military in Dedlow’s case:143
If war actually prevails or if the fact of actual war is established, the ordinary
courts have no jurisdiction over the military authorities. The fact that for some
purposes some tribunals pursue their ordinary course is not conclusive proof that
war is not raging.
Only one exception to this rule was recognized — if it could be shown that
the military authorities were acting mala fide, they would not be acting with
in the scope of their powers and their action would be justiciable.144 In Halder
v Minister of Defence and Provost Marshal ofPretoria'
* 5 the court once again
emphasized its duty to uphold personal liberty, even in time of war. Curlewis J
held that the question was not whether a state of war existed in the British
Empire, but whether war was actually prevailing in South Africa. Since it
was not, the court had jurisdiction to decide whether an internment was justi
fied or not. Finally, in the Triimpelmann case 146 the military authorities were
given virtual carte blanche. It was simply held that the courts have no right
to interfere — not even the matter of bona fides was mentioned in the judg
ment itself. This judgment is severely criticized by VerLoren van Themaat147
who points out that the War Measures Act, which was adopted after the
Triimpelmann decision, did not go as far as the judgment itself, since the
jurisdiction of the courts was not ousted, even though the only ground on
which an aggrieved person could challenge the action of the military was that
of mala fides.
140 1900 SC 173 at 177.

141 Supra at 207.
142 Ibid.
143 Supra at 549.
144 At 552.
145 1915 TPD 622.
146 Supra.
147 Op cit at 169. He quotes the famous minority judgment of Lord Atkin in Liversidge
v Anderson [1942] AC 206 at 244: “I view with apprehension the attitude of Judges,
who on a mere question of construction, when face to face with claims involving
the liberty of the subject show themselves more executive-minded than the execu
tive.” The judge then quoted the dictum of Pollock CB in Bowditch v Balchun (1850)
5 Ex 378: ‘‘In this country, amid the clash of arms, the laws are not silent. They
may be changed, but they speak the same language in war as in peace. It has always
been one of the pillars of freedom, one of the principles of liberty for which we are
now fighting, that the judges are no respectors of persons and stand between the subject
and any attempted encroachment on his liberty by the executive, alert to see that any
coercive action is justified in law.”
Once hostilities have been terminated and martial law no longer obtains,
the question of liability of the military authorities for acts performed under
martial law may arise - in the unlikely event that no indemnity Act has been
passed by Parliament.
The essential question is whether it would be a sufficient defence to show
that the act complained of had been bona fide and reasonably necessary in
the subjective view of the person performing the act. Some authorities148 hold
that objective necessity must be proved (which would be in keeping with
Roman-Dutch principles). Others, such as Pollock149 see this as somewhat
harsh. He supports the so-called doctrine of political necessity, which requires
that the action should have been performed in good faith and that there must
have been “reasonable and probable cause according to the apparent
urgency”.
Enemy subjects and prisoners of war do not, as a rule, enjoy access to
the courts in times of war. They are, however, protected by international
conventions and treaties.150
(ii) The Public Safety Act 3 of 1953

The Public Safety Act covers a wide spectrum of situations which can threaten
public safety, from internal unrest to natural disasters such as flood or fire.
If public order or safety is so gravely threatened that the ordinary law of
the land can no longer deal with the situation, the State President may
proclaim a state of emergency. He does this via the promulgation of emer
gency regulations which must be tabled in Parliament within fourteen days
(if Parliament is in session or within fourteen days of the commencement
of the next session) and which must be ratified during the same session. The
Minister of Justice may also promulgate emergency regulations on behalf
of the State President, but these remain valid for ten days only.
A state of emergency has been declared on three occasions since the enact
ment of Act 3 of 1953, namely in 1960, in 1985 and in 1986. On each occa
sion this has given rise to important judicial decisions.
In J? v Manthutle151 it was held that the doctrine of nullum crimen sine
lege remains applicable even though a regulation promulgated in terms of
section 2(c) of the Act may have retroactive effect, so that an act will consti
tute an offence only if it was an offence at the time when it was committed,
and in Mbadlanyna v Pepler'52 that the remedy of habeas corpus is excluded
if the regulation permits detention.
The two most important cases emanating from the 1960 state of emergency
were, however, Stanton v Minister of Justice153 and Brink v Commissioner
of Police,154 both decisions of the Transvaal Supreme Court. In the Stanton
148 Such as Dicey op cit at 290-291; also see Q v Bekker supra at 356.
149 ‘What is Martial Law?’ 1902 LQR 152.
150 See Labuschagne v Maarburger 1915 CPD 425; R v Werner 1947 2 SA 828 (A); H
Booysen ‘Treaties, Enemy Aliens and Prisoners of War in South African Law’ 1973
SALJ 386.
151 1960 4 SA 827 (C).
152 1961 4 SA 806 (C).
153 1960 3 SA 353 (T).
154 1960 3 SA 65 (T).'
case, Jansen J adopted a strict approach and held that the material question
was whether the officer who had detained the applicant in terms of the emer
gency regulations had held a particular opinion (that the detention was in
the interest of public order or safety), and not whether the opinion was justi
fied by the actual emergency: “The court cannot substitute its own opin
ion.”155 The applicant could establish that her arrest and detention were
unlawful only by showing that the officer had acted mala fide.
The approach of Galgut J in the Brink case, which was decided before
the Stanton case, was somewhat different. He held, first of all, that
the fundamental right of every South African citizen to obtain legal assistance
on his apprehension or arrest... is so fundamental that it should only be taken
away if the regulations specifically say so or if the regulations say so by necessary
implication.156
Furthermore, he added that if the safety of the state was in danger, the court
would not only look at the regulations, but would support any bona fide
action taken by the authorities157 thus implying that the court is entitled to
examine the factual situation and therefore to go behind the regulations, as
it were.158 As Wiechers159 points out in regard to the question whether ac
tion taken in terms of the Public Safety Act may have been wrongful, the
fact that a state of emergency has been proclaimed is prima facie proof that
the safety of the state is threatened, but not incontrovertible proof; the fact
that the government believed that its action was necessary, is relevant to the
issue of fault, not wrongfulness. Wrongfulness must be determined objec
tively.
Legislation was adopted in 1961160 and again in 1977,161 after the Soweto
riots of 16 June 1976, virtually excluding state liability for any action taken
in terms of emergency regulations, provided the action was taken in good
faith, that is, with the intention to prevent or suppress internal disorder in
South Africa, or to maintain or restore order or public safety or essential
services, or to terminate a state of emergency in any area within the country162
— and not with any other intention.
A state of emergency was declared in 1985 and again in 1986; in terms
of these regulations, too, wide powers were conferred on the military and
the police, and state liability for bona fide action taken in terms of the regu
lations was excluded.163
(iii) The Defence Act 44 of 1957

Chapter 10 of the Defence Act (sections 90-103) deals with the powers of
the military to combat terrorism and to deal with an armed conflict outside
155 At 355.
156 At 69.
157 Ibid.
158 See the discussion of the Brink and Stanton cases in Wiechers Administrative Law
at 142 and 329 (fn 90). Also see Slovo v Superintendent Johannesburg Gaol 1960
4 SA 230 (W); Mawo v Pepler NO; Mbadlanyna v Pepler NO 1960 4 SA 291 (C);
R v Manthutle supra.
159 Op cit at 329.
160 Indemnity Act 61 of 1961.
161 Indemnity Act 13 of 1977.
162 Wiechers op cit at 328-329 fn 90.
163 See Proc R120, 1985 and Proc R109, 1986.
the Republic or with internal disorder or other emergency. Such action may
seriously curtail the rights of individuals whether they are members of the
Defence Force or civilians. Section 103, which provides for the promulga
tion of emergency regulations by the State President, is virtually identical
to section 3 of the Public Safety Act, except that the power is conferred
specifically “in time of war”.
(iv) The Police Act 7 of 1958

Powers similar to those conferred by the Defence Act may be conferred on
the Police in terms of the Police Act.
(v) Security legislation

(a) Historical background
The history of security legislation in South Africa may be said to have started
with the Suppression of Communism Act 44 of 1950 (later renamed the
Internal Security Act). This Act not only placed a ban on the promotion of
Communism as a doctrine; it also contained a very wide definition of Com
munism and provided for the banning of organizations, the listing of per
sons as Communists, the placing of restrictions on persons so listed, the
prohibition of certain publications, preventive detention, the detention of
witnesses and the removal of persons from the Republic.
The powers conferred on the executive in terms of this Act were enormous.
For example: in terms of section 9(2), reasons had to be furnished for the
imposition of a restriction order on an individual unless the minister con
cerned was of the opinion that it would not be in the public interest to do
so. In Minister van Justisie v Alexander'6* the court held that the decision
whether it would be in the public interest to disclose otherwise admissible
evidence, lay solely in the minister’s discretion.164
165 The minister’s powers of
restriction were described in S v Weinberg'66 as “draconian in form and con
tent”. Although the Act was initially designed to combat Communism as
such, its provisions were gradually extended to cover all forms of anti
government activity and propaganda which threatened state security and pub
lic order. In terms of section 2(2)(c), for example, the State President could
ban any organization which in his view promoted these forbidden objectives,
whether it admitted to supporting the Communist ideology or not. Such ban
ning orders were not subject to judicial review.167
The Suppression of Communism Act was followed by a steady stream of
restrictive legislation; among the most important Acts were the Public Safety
Act;168 the Official Secrets Act169 (now the Protection of Information Act);
164 1975 4 SA 530 (A) at 544H.

165 See AS Mathews The Darker Reaches of Government (1978) at 148; Dugard Human
Rights at 352-355.
166 1979 3 SA 89 (A) at 103E.
167 See the case of SA Defence and Aid Fund v Minister of Justice 1967 1 SA 263 (A);
and, in general, Dugard Human Rights and the South African Legal Order; Mathews
Law, Order and Liberty (1971) and The Darker Reaches of Government-, Van der
Vyver Die Beskerming van Menseregte (1975); Seven Lectures on Human Rights (1976);
‘Inperkingsbevele’ 1980 THRHR 178 (a discussion of S v Zigqolo 1980 1 SA 49 (A)).
168 3 of 1953, discussed above.
169 16 of 1956.
Rule of Law and Protection of Fundamental Individual Right? 113
the Riotous Assemblies Act;170 the Unlawful Organisations Act;17’ the General
Law Amendment Act of 1962172 (the so-called Sabotage Act, which contained
an extremely wide definition of sabotage and placed the onus of proving
absence of guilt on the accused); the General Laws Amendment Act of
1966,173 which authorized the detention of suspected terrorists and saboteurs;
the Terrorism Act,174 which contained a very wide definition of terrorism
and provided for an almost unbounded discretion to authorize detention
without trial; the Affected Organisations Act,175 which prohibited certain
organisations from receiving money from abroad; the Publications Act;176
the Security, Intelligence and State Security Council Act177 and so on.
The general effect of all this legislation was that freedom of movement,
freedom of association and freedom of speech were severely curtailed; but
the most serious encroachment was on personal liberty in consequence of
the suspension of procedural safeguards. In particular, the power to detain
persons without trial was authorized in a number of provisions: Act 37 of
1963 provided for 90 days’ detention;
* 78 Act 44 of 1950 empowered the
minister to detain persons; the Terrorism Act authorized senior police offi
cials to detain persons for an indefinite period; section 12B of Act 44 of 1950
took over the so-called 180-day detention clause from the Criminal Proce
dure Act.179
In 1981 a Commission of Enquiry under the chairmanship of Mr Justice
PJ Rabie was appointed to enquire into security legislation (the so-called
Rabie Commission). In its report the Commission stated that although
security legislation is necessary to ensure order, it cannot guarantee that law
and order will be maintained in the long run, and cannot provide a solution
to the underlying causes of unrest and violence.
The Commission examined, in all, 26 laws dealing directly, and nine deal
ing indirectly, with state security in South Africa. In brief, the report dealt
with the following criticisms of existing legislation: the multiplicity of the
laws; their permanent nature and harsh effect; the deviation from normal
and accepted procedure; the lack of control over administrative and execu
tive action; restrictions on academic freedom and freedom of the press; and
the unfair effect of the Indemnity Act of 1977.
The Commission recommended that at least some of the security legisla
tion should be consolidated; that the crime of terrorism should be defined
more restrictively and specifically to include the elements of intention and
violence, and that no minimum penalty be laid down; that sabotage, too,
170 17 of 1956.
171 34 of 1960.
172 76 of 1962.
173 62 of 1966.
174 83 of 1967.
175 31 of 1974.
176 42 of 1974.
177 64 of 1972.
178 The section was suspended in 1965 but the State President could extend it for 12 months
at a time.
179 56 of 1955.
be more specifically defined; that the crime of subversion should be dis

tinguished from terrorism by the absence of violence; that Communism be
redefined more specifically; that the traditional principles governing onus
of proof, minimum penalties and res judicata should be reverted to; and that
some additional control over executive and administrative action be
introduced. In particular, the Commission recommended greater control in
the spheres of detention for the purposes of interrogation, preventive deten
tion, treatment of detainees, the scope of judicial review of executive action
by way of a board of review, the prohibition of publications, and legal
representation.
Although the recommendations of the Rabie Commission did not go as
far as many would have wished,180 they represented a distinct improvement
on the existing system. Effect was given to these recommendations to a major
extent in three enactments: the Demonstrations in or near Court Buildings
Act,181 the Intimidation Act182 and the new Internal Security Act.183
(b) The Internal Security Act 74 of 1982

The Minister of Law and Order may: declare unlawful any organization if
he is satisfied that it constitutes a danger to the security of the state or to
law and order or promotes communism;184 prohibit certain publications;185
investigate suspected organizations or publications.186 Before exercising the
powers conferred by section 4(1) or 5(1), he must consider the report and
recommendation of an advisory committee appointed by the Minister of
Justice and consisting of a judge, senior magistrate or advocate of ten years’
standing, and two other persons, one of whom must possess legal qualifi
cations.187
If, after considering the report of the advisory committee, the minister
decides to exercise the powers conferred in terms of section 4(1) or 5(1),188
an organizer or publisher affected by the minister’s action may request the
minister to furnish reasons for his decision; the minister must then disclose
as much of the relevant information as, in his opinion, can be disclosed
without detriment to the public interest.189
Provision is made for review of a decision to declare an organization
unlawful or to ban a publication. The Chief Justice or another Supreme Court
judge may set aside the steps taken by the minister on the grounds of excess
of power, bad faith, or the consideration of irrelevant facts.190
180 See e g John Dugard ‘A Triumph for the Executive — an Examination of the Rabie
Report and the Internal Security Act 74 of 1982’ 1982 SALJ 589.
181 71 of 1982.
182 72 of 1982.
183 74 of 1982.
184 S 4(1).
185 S 5(1).
186 S 6.
187 S 7.
188 He need not accept any of the recommendations of the committee — s 10(2).
189 S 11(1).
190 S 11(3) and (4).
Rule of Law and Protection of Fundamental Individual v
~ 115
The Act also makes provision for restrictions on the .
newspapers191 and for the keeping of a list of names of certain îs^t^n of
as persons convicted in terms of the Act, persons detained or r^rso118 (such
so on).192 There is a presumption that the name of any person stricte?, and
the list has been correctly entered.193 ąbpe2nhg on
Chapter 3 of the Act (sections 18-34) provides for measur^
taken against individuals. These include provisions relating t0 thatân be
of certain organizations and public bodies,194 presence in or ąkler0ceefShip
certain places,195 attendance at gatherings,196 publication Of sen from
utterances of certain persons;197 orders to report periodicaj8peet es..or
stations;198 restrictions by way of general notice;199 preventive ^tio -wo
detention for purposes of interrogation;201 the prohibition of rele^ bail’202
detention of witnesses;203 disqualification for membership of Parliament204
and for the practising of certain legal professions.205 Provision js made for
the furnishing of reasons in the case of restrictions imposed in terms of sec
tion 18, 19 or 20 (but again only where, in the opinion of the minister this
would not be to the detriment of the public interest)206 and for the making
of representations by restricted persons.207 Financial assistance may be ren
dered to persons affected by restrictions.208
Chapter 4 of the Act provides for a board of review and inspectors of
detainees. The board of review consists of three members, one of whom must
be a judge, retired judge, senior magistrate or advocate of at least ten years’
standing, who acts as chairman. One of the other two members must pos
sess legal qualifications.209 Whenever the minister has imposed a restriction
in terms of section 18(1), 19(1) or (2), 20 or 28(1), he must submit his deci
sion to the board for review and consideration.210 If the person affected by
the restriction submits a request in writing, he must be given an opportunity
to give oral evidence before the board, unless the board is of the opinion
that it would not be in the public interest that he be heard.211 The affected
person must be notified of the board’s findings and recommendations, if
191 S 15.
192 S 16.
193 S 17.
194 S 18.
195 S 19.
196 S 20.
197 S 23.
198 S21.
199 S 22.
200 S 28.
201 S 29.
202 S 30.
203 S 31.
204 S 33.
205 S 34.
206 S 25(1).
207 S 25(2).
208 S 26.
209 S 35.
210 S 38(1).
211 S 38(4).
any.212 The minister need not give effect to the board’s recommendation,
however,213 but if the refusal has the effect that stricter measures than those
recommended by the board remain in force, the minister must submit the
matter for further review to the Chief Justice or another judge appointed
by the latter,214 who may set aside the minister’s decision on the grounds
of excess of power, bad faith or the consideration of irrelevant facts,215 or
endorse the decision.216 No court of law has jurisdiction to pronounce on
the finding made in terms of section 41(2) or (3).217
Section 43 provides for periodic review of the cases of persons subjected
to restrictions in terms of section 18(1), 19 or 20, or in detention in terms
of section 28,218 as well as for review of such cases at the request of the
minister himself.219
Section 44 provides that the minister may appoint inspectors of detainees,
whose function is to visit persons detained for the purposes of interrogation220
and to satisfy themselves as to the well-being of the detainees.221 Such an
inspector must furnish a full report to the Minister after each visit222 and
must furnish the Attorney-General with a copy of the report if he suspects
that an offence may have been committed in respect of such a detainee.223
Chapter 5 of the Act provides for measures in connection with certain
gatherings: this includes the power to prohibit gatherings or to impose con
ditions for the holding of gatherings;224 the power to close places to prevent
prohibited gatherings;225 the power to disperse prohibited or riotous gather
ings;226 rules restricting the use of firearms or other lethal weapons to dis
perse gatherings;227 action which may be taken by police to combat a state
of unrest, which includes the power to arrest persons without a warrant and
to detain them for a period of 48 hours;228 the abrogation of the common
law in so far as it renders illegal any open-air gathering;229 and provision
for the requirement that the permission of a magistrate must be obtained
for the holding of a procession.230
Chapter 6 deals with offences and penalties. Section 54 redefines terrorism
and related offences and provides for penalties for such offences. As has
been explained above, the definition of terrorism, which carries the same
212 S 38(7).
213 S 41(1).
214 S 41(1).
215 S 41(2).
216 S 41(3).
217 S 41(4).
218 S 43(1).
219 S 43(6).
220 In terms of s 29.
221 S 45(1). Such visits must take place in private - s 45(2).
222 S 45(4).
223 S 45(5).
224 S 46.
225 S 47.
226 S 48.
227 S 49.
228 S 50.
229 S 52.
230 S 53.
penalties as high treason, has been narrowed down and is now much more
specific. Acts which could, under the previous legislation, have been con
strued as terrorism, are now classed as subversion, in cases where the ele
ment of violence is lacking. The maximum penalty is twenty-five years’
imprisonment, and then only when the act charged resulted in violence which
the accused should have foreseen.231 The offence of sabotage, too, is defined
more precisely in this section, while section 55 redefines the offence of
promoting the aims of Communism.
Chapter 7 deals with matters of procedure, jurisdiction and evidence.
Among the most important provisions are section 66, which deals with state
privilege, and section 69, which provides for presumptions in favour of the
state (including presumptions of intent on the part of an accused charged
with terrorism or subversion).
It is clear that even though some of the more undesirable features of the
previous legislation have been eliminated, South Africa’s security legislation
remains exceptionally stringent, and that it makes radical inroads into per
sonal liberty and freedom of speech, association and assembly.232 The latest
crop of cases dealing with the Internal Security Act do, however make
interesting reading.
In S v Ramgobin233 the court held that section 30(1) of the Act, which
empowers the Attorney-General to refuse to grant bail, limits the liberty of
the individual and curtails the powers of the courts and should therefore be
interpreted strictly. The court added that there appeared to be no necessity
for such legislative curtailment of ancient and fundamental rights and sug
gested that serious consideration be given to the repeal of the provision.
In Katofa v Administrator-General for SIK4234 the court held that, since
there was nothing in the proclamation which denied a detainee access to quali
fied legal advisers, conditions of detention which have the effect of denying
such a right would be ultra vires. Furthermore, if a person who is being wrong
fully detained, applies for review in terms of the proclamation, this fact does
not render an unlawful arrest lawful, nor does it preclude the detainee from
instituting the interdictum de homine libero exhibendo. Thirdly, the
Administrator-General is obliged to furnish reasons for the detention and
the court is empowered to examine them and to consider whether the deten
tion is in fact justified.
231 S 54(2).
232 In addition to the works mentioned above under this heading (see fn 161) see F Venter
‘Salus Reipublicae Suprema Lex’ 1977 THRHR 83; Mathews and Albino ‘The
Permanence of the Temporary’ 1966 SALJ 16; Dugard Human Rights (1979) 250
et seq and passim-, DP de Villiers ‘Regsoppergesag en Openbare Veiligheid in Heden-
daagse Suid-Afrika’ 1979 TSAR 83; LM du Plessis ‘Staatsveiligheid in Teoreties-
*
prinsipiele Perspektief 1981 Koers 246 at 249; Rubenstein ‘State Security and Human
Rights: the Israeli Experience’ in Human Rights: The Cape Town Conference (1979)
at 138; IM Rautenbach ‘Aspekte van die Beskerming van Staatsveiligheid in Israel
en RSA’ 1973 THRHR 210; H Rudolph Security, Terrorism and Torture (1984).
233 1985 4 SA 130 (N).
234 1985 4 SA 211 (SWA).
The most significant of the recent judgments is that in Hurley v Minister

of Law and Order135 which dealt with detention in terms of section 29(1)
of the Act. The court held that the ouster clause contained in section 29(6)
applied only when action had been taken in terms of that section. Moreover,
it was held that the phrase “reason to believe” implied a belief based on
reason, that is, a factual basis for the belief. This factual basis was a juris
dictional fact which had to exist before the statutory power could be validly
exercised. The objective existence of such a jurisdictional fact is justiciable
and therefore the ouster clause did not preclude the court from investigating
the existence of the fact.235
236237
238
In S v Baleka,131 which related to section 30(1) of the Act, Ramgobin's
case was applied. The court held that in an application for the release on
bail of detainees held under section 29, the prior arrest of the accused is a
circumstance that must exist as a jurisdictional fact before the Attorney-
General may validly issue an order prohibiting the release of the accused on
bail. In casu the orders preceded the arrest of the applicants and were there
fore null and void.
The only recent Appellate Division judgment in this sphere is that in
Nkondo and Others; Gumede v Minister of Law and Order; Minister of Law
and Order v Gumede.133 It was held that since section 28(1) of the Internal
Security Act confers far-reaching powers, the minister may not act arbitra
rily; section 28(9) makes provision for the furnishing of reasons to the ac
cused — a statement by the minister indicating which of the statutory grounds
he is acting upon cannot satisfy this requirement. The court rejected the ap
proach of the court a quo that, since three possible grounds for ministerial
action are contained in the statute, it is sufficient to indicate one of these
as a ‘reason’ for the action. The notices were declared invalid on the ground
that the minister had not furnished reasons as required in terms of the section.
V MINORITY OR GROUP RIGHTS
1 Introduction
The idea that “South Africa is a country of minorities” is one which has
often been aired during the past few years, particularly when the call for
a system of universal suffrage (which could, presumably, lead to black
majority rule) has been raised. The rationale behind it is that South African
Blacks do not constitute a single nation but a number of individual nations
(Xhosa, Zulu, Sotho, Tswana, Venda, Ndebele and so on), each with its own
235 1985 4 SA 709 (D). See L J Boulle ‘Detainees and the Courts: New Beginnings’ 1985
SAJHR 251 as regards the Hurley judgment: “For the first time, a detention order
issued in terms of s 29 of the Internal Security Act 74 of 1982 has been invalidated
and a detainee’s release secured. The decision deals with issues of a deep and univer
sal constitutionality — limited government, separation of powers, justiciability of
executive action, and the liberty of the individual.”
236 As regards the court’s power to examine jurisdictional facts, see Wiechers Adminis
trative Law at 189.
237 1986 1 SA 361 (T).
238 1986 2 SA 756 (A).
I
language and culture. The Whites are usually portrayed as a single group
despite the division between English- and Afrikaans-speaking South Africans,
with concomitant differences in language, culture and religion. The principle
that the Blacks are divided into a number of nations rather than a single group
is not, however, accepted without qualification by all South Africans.
A large number of studies examining the legal position of minority groups
have been undertaken since the concept of minority rights began to attract
attention after the Second World War.239 The first difficulty lies in defining
minorities. Whereas Capotorti240 defines minorities as groups
numerically inferior to the rest of the population of a state, in a non-dominant
position, whose members — being nationals of the state - possess ethnic, reli
gious or linguistic characteristics differing from those of the rest of the popu
lation and show, if only implicitly, a sense of solidarity, directed towards
preserving their culture, traditions, religion or language,
Sigler points out that “minority status does not require a numerical minori
ty”.241 The main characteristic of minority groups is subordinate status (often
coupled with low self-esteem) which leads to members’ often being the vic
tims of discrimination and prejudice. Sigler also points out that minority sta
tus is rarely voluntary,242 and that minority groups are conflict groups, sources
of unrest and social dissatisfaction.243
In the South African context one is inclined to confine the problem to the
racial issue, and to overlook other classes of minorities such as religious
groups (Jews, Muslims, Hindus and so on).
Race, as a means of classifying people, did not initially arise among the
different European nations; awareness of race first appeared when the Euro
pean nations came into contact with the invading barbarians. In the modem
world, race is a factor not only in Africa, but in South and North America,
Australia, Asia and, increasingly, in Europe, as a result of the immigration
of Blacks and Asiatics to European countries. Wherever the white group is
dominant, other race groups are, to a greater or lesser extent, in the position
of minority groups, except where racial lines are somewhat blurred, as in
South America.
In terms of the above, South African Whites cannot be classed as a
minority group despite their numerical inferiority to Blacks. It is conceiv
able, but not inevitable, that Whites will acquire this status if black majority
rule were to be introduced. But even if Whites do not occupy the position
of subordination which is characteristic of minority status, it is clear that
there are, at this stage, several identifiable racial groups in South Africa which
do differ quite materially in culture, language and religion, quite apart from
colour. Up to now the coloured (half-caste) members of the community have
been classed as a separate group even though they do not have a separate
239 That by Jay A Sigler Minority Rights - A Comparative Analysis (1983) is excep
tionally useful, in particular for the comprehensive bibliography it contains, and for
the historical background it provides.
240 F Capotorti Study on the Rights of Persons belonging to Ethnic, Religious and Lin
guistic Minorities UN Doc E/CN 4/sub 2/384 Rev 1 (1979) at 96, quoted by Sigler
at 4. (Italics mine.)
241 Op cit at 8. Not surprisingly, he quotes South Africa as an illustration of this point.
242 Op cit at 7.
243 Op cit at 8.
language (most speak Afrikaans, though the tendency towards English is

growing) and even though there is a distinct group within the group (the so-
called Cape Malays, who have Asiatic origins and are Muslims rather than
Christians).
2 The Development of the Concept of Group Rights

The idea that the majority rules and the minority abides by the decision of
the majority still forms the basis of most Western democratic ideas.244 The
rights of minorities not to be dominated by the majority have only come
to the attention of political scientists and constitutional lawyers compara
tively recently. As Sigler points out,245 the minority rights issue first gained
prominence in the post-Napoleonic era as a result of the breaking up of the
European state system. But despite some awareness of the problem, no real
progress was made during the nineteenth century.
The First World War was in fact sparked off by the action of a member
of a minority group. The interest manifested in minority rights after the ter
mination of the war was inspired by the fear of political interest rather than
concern for the minorities. The Covenant of the League of Nations did ac
cord recognition to the problem and various treaties were signed in terms
of which racial, linguistic, ethnic and religious minorities were protected.
It must be borne in mind, however, that the concept of group rights was
alien to the liberal Western tradition of individual rights.246 As a result, the
rights extended to minority groups were in reality individual rights. Further
more, minority rights principles were not enforced consistently and univer
sally. The League of Nations minority system may therefore be said to have
been a failure. The rise of Nazism and the policy of genocide which followed
may be seen as a low point in minority rights protection. Despite this, the
minority rights issue does not feature strongly in the United Nations Chart
er, although the right to self-determination of peoples is mentioned in the
Charter. When the Universal Declaration of Human Rights was being de
bated, United States delegate Eleanor Roosevelt even argued explicitly that
the Declaration should not mention minority rights.247 Gradually, however,
treaties and conventions proclaiming minority rights, even if indirectly and
minimally, came to be adopted; for example, the 1960 Covenant against Dis
crimination in Education, the 1966 International Covenant on Civil and Po
litical Rights and the European Convention on Human Rights. In general,
however, all these covenants tend to be somewhat vague, although the
Covenant on Civil and Political Rights does expressly recognize the rights
of members of ethnic, religious or linguistic minorities to enjoy their own
culture, practise their religion and use their own language - in community
with other members of their group.248 The emphasis is once again on individ
ual rights.
244 See the discussion in ch 4 above.

245 Op cit at 67.
246 Sigler op cit at 73.
248 Part III article 27.
There is a United Nations subcommission devoted to the prevention of

discrimination and the protection of minorities, but, to quote Sigler:249 “[Lit
tle has been issued from that docile body.”
It is of interest that Sigler devotes an entire chapter to the phenomenon
of minority rule, despite the fact that minority governments are rare in the
modern world. As he admits, South Africa is, at present, probably the only
major modern example of direct, intentional minority rule.250 He points out,
in his discussion of the South African system,251 that the position in South
Africa cannot be explained simply in terms of colonialism and imperialism,
but must be seen against the background of the history of the country as
a whole.
3 The Protection of Group Rights in Individual States

The problem of devising an effective system of protection of group rights
has raised its head all over the world. Among the countries in which the
problem has been most pressing, owing to the heterogeneous nature of the
population, are Belgium, Switzerland, India and the USSR. The Belgian
approach has been novel and innovative, but the success of the system still
has to be proved.252 The Swiss seem to have found the most successful means
of accommodating their four major linguistic groups - the Swiss federal
system is one of the most stable in the world despite the “geographic non
coincidence of language, religious and cultural boundaries”.253 The Indian
Constitution, which has to provide for a population of 700 million, speak
ing 24 languages and more than 200 dialects, is the longest (and arguably
the most complicated) in the world. The problems of group rights are also
probably the most severe, but major efforts have been made to solve them
in a legal context.254 The USSR, too, is an example of a country with ex
treme diversity of cultures, languages, ethnic groups and religions. Minority
rights protection has never been an outstanding feature of the Constitution,
although the latest version (that of 1977) does accord some tentative recog
nition to the claims of the different groups accommodated within the state.255
Although minorities are technically not as great a problem in countries
such as the USA and Great Britain, these countries have played a leading
role in alleviating the unfavourable position of minority groups. The
American Constitution does not specifically mention group rights but does
accord special constitutional status to American Indians. Perhaps the most
interesting aspect of the protection of minority rights in the United States
of America, however, has been the implementation of anti-discriminatory
policies.and of ‘affirmative action policies’ aimed at redressing the wrongs
and disadvantages suffered by minorities (notably Blacks and Hispanics) in
the past. Affirmative action programmes are criticized in some quarters as
249 Op cit at 80.

250 Op cit at 91.
251 Op cit at 98-101.
252 See Sigler op cit at 113-117.
254 Ibid at 117-122.
255 Ibid at 125-129.
discrimination in reverse; but, as Sigler points out,256 the removal of dis

criminatory laws and practices may place those previously disadvantaged
(Blacks, Puerto Ricans and also, in some cases, women) on an equal legal
footing with the majority, but will not, for a considerable time, remove the
gap existing between the majority and the disadvantaged group as regards
status, opportunity, income, education and so on. It remains true, however,
that affirmative action can, and does, lead to conflict and to potential dis
crimination in reverse. The legitimacy of the concept that disadvantaged
groups should in some cases receive preferential treatment (for example by
the establishment of quotas in university admissions) is by no means accepted
by all. On the one hand there are those who maintain that a ‘benign neutral
ity’ merely tends to perpetuate the status quo',25'1 on the other, those who
see affirmative programmes as inherently offensive to the principle of non
discrimination.
In Great Britain, the problem of disadvantaged minorities is an issue of
relatively recent origin despite the presence of Scottish and Welsh national
movements which draw attention to cultural and linguistic differences within
the kingdom. Recent years have, however, seen an influx of black Common
wealth citizens into Britain itself. Before this time there certainly were group
differences — history points to a great deal of discrimination against Jews,
Irish and non-conformists; and class distinction in Britain was rivalled only
by the caste system in India. But it was only when Britain developed a colour
problem that discrimination became a major issue. A Race Relations Act
was passed for the first time in 1965. The current Act (that of 1976) pro
hibits discrimination on racial grounds in employment, education, services
and housing, and makes incitement to racial hatred an offence. The protection
of minorities in Britain is therefore for the most part, confined to racial (more
specifically non-white)258 minorities.
4 The Theoretical Basis of the Concept of Group Rights

As is stated above, the classical approach to democracy acknowledges the
right of the individual to belong to a group (freedom of association) but denies
the validity of the concept of group rights as such. The question really is
whether the members of a group — in their capacity as part of the group
rather than as individuals in society — have a more effective claim to pro
tection of their ‘group rights’ if group rights are recognized as such. If mem
bers of groups feel that the classically orientated individual protection is
adequate, there would seem to be no justification for creating a separate
category. Developments all over the world do, however, point to the need
to recognize groups within society, and to acknowledge that such groups may
indeed lay claim to a separate identity (independent of the identity of the
individual members) which merits legal protection.
Sigler258 has developed a preliminary theory of minority rights in which
he states their basic character as follows:
(i) Although minority rights may be claimed by an individual, they are group
rights which emanate from membership of a group seeking a measure of
256 Op cit at 136.

257 US Department of Health, Education and Welfare Higher Education Guidelines, Ex
ecutive Order 11246 (Oct 1972) at 3, quoted by Sigler op cit at 139.
258 Jews are not seen as minority group in this sense, for example.
differential treatment distinct from the rest of the population. Equal treat
ment is not the basis of such rights.
(ii) Minority rights may include individual rights - a member of a minority
group may aver that he has been discriminated against as an individual on
the strength of his membership of that group.
(iii) Trivial distinctions such as left-handedness do not justify the recogni
tion of an identifiable group. Sigler goes further, and would exclude as minori
ty groups not only voluntarily formed groups (such as trade unions) but also
groups such as the aged and disabled, since these relate to acquired status.
This does not mean, however, that trade union members, disabled persons
or the aged may not be entitled to differential treatment in certain circum
stances.
(iv) Although membership of a minority group is based on status which is
not acquired voluntarily, continued membership should be voluntary: in
dividuals should not be barred from leaving their group, taking up a different
religion, marrying a member of another race or surrendering their language
rights, if they wish.
(v) Minority rights should not be a pretext for discrimination. This is linked
with the previous point; members of minority groups who are ‘locked’ within
that group by law are discriminated against.259 260
(vi) Failure to recognize the existence of a substantial minority in a multicul
tural (plural) society is a denial of minority rights.
(vii) In exceptional circumstances, minority rights justify special treatment
for disadvantaged groups.261
(viii) Minority rights include rights to political representation and to social
and economic justice.
(ix) Minority rights do not include the right to revolution and secession except
in so far as such rights are accorded to individuals in society.
5 Practical Implications of the Recognition of Minority or Group

Rights
There are a number of practical aspects which require brief mention.
(i) It is sometimes averred that the minority rights issue is nothing but
separatism in disguise. Certainly the quest for self-determination of minori
ty groups may well be aimed at independence rather than protection within
a greater society. It is true that minority frustration can give rise to separatist
sentiments and objectives, and there are many nationalist groups and par
ties all over the world which may be said to have some claim to a separate
existence, for example, the Scots and Welsh in Britain, the Basques, the
259 Op cit at 195-196.

260 Sigler quotes South Africa as an example of this kind of discrimination. The (now
repealed) Prohibition of Mixed Marriages Act and Prohibition of Political Interfer
ence Act and existing legislation such as the Group Areas Act and the so-called
‘homelands legislation’ which determines that Blacks shall be citizens of certain
National States, are all examples of measures which ‘lock’ the member of a particu
lar group within that group.
261 Sigler is strongly in favour of affirmative action. See ch 7 of his work.
French Canadians, the Bretons, and so on. When minority rights are blend
ed with nationalism and separatism, the mixture is explosive, as Sigler points
out.262
(ii) In many countries the trend is towards assimilation of all groups within
the whole, and here advocates of group rights may well be seen as separatists,
snobs or, at worst, trouble-makers, a threat to national unity or stability.
Minority rights are necessarily a political issue, and exclusionism, elitism and
separatism can contribute towards polarization of interests within the state.
Instead of promoting peaceful co-existence, the very recognition of group
rights could cause further divisions in a society which is immature or intole
rant. This is one of the main reasons why group rights are viewed with sus
picion in many countries.263
(iii) Various constitutional structures have been suggested as an alternative
to conventional majoritarian democracy as a means of accommodating group
rights or minority rights within the same state. Federalism (and, to some
extent, regionalism or a system of partial autonomy for certain regions)
provides a solution where the groups to be accommodated are concentrated
in certain geographical areas. This has proved successful in Switzerland, but
less so in Canada, Yugoslavia and Czechoslovakia, for example. Consocia-
tional democracy, the brain-child of Arend Lijphart264 has been the solution
mooted for South Africa. The chances of success are, however, open to ques
tion, since Lijphart himself admits that the prospects are less favourable in
deeply divided societies or in countries with a high degree of pluralism or
a numerical imbalance among the various groups.265
iv) Effective protection of minority rights presupposes rigid legal structures,
nforced by means of judicial action.
.v) The traditional winner-takes-all system of electoral representation is less
suited to the protection of minority rights than a system of proportional
representation.266
6 Conclusion
South Africans are inclined to think that no other country has as complex
a population structure. This is not true; the problem of group and minority
rights is universal, as is evident from the Capsule Survey of minority groups
provided by Sigler.267
VI THE PROTECTION OF FUNDAMENTAL RIGHTS: SYSTEMS

AND MECHANISMS
1 Introduction
To some extent the desiderata in this sphere of the law have been touched
on in this chapter already. It is nevertheless of importance to examine the
262 Op cit at 190.

263 It may well be asked whether any state which views the very existence of opposition
political parties as a threat to national unity, could ever accommodate the concept
of group rights satisfactorily.
265 Democracy in Plural Societies: A Comparative Exploration (1977) at 13. Also see
Brian Barry ‘Political Accommodation and Social Democracy’ 1975 British Journal
of Political Science at 502-505.
267 Op cit at 205-213.
various systems and mechanisms which may be employed and to point out
some strengths and weaknesses of each.
2 Constitutionally Entrenched Bills of Rights

This is the most popular, and arguably the most effective means of protect
ing fundamental rights.268 The Constitution itself enumerates certain fun
damental rights or freedoms which may not be encroached upon by the
legislature or the executive, except in circumstances specificaly defined in
the Constitution itself; a system of judicial supremacy ensures that legisla
tive encroachment on fundamental rights is subject to testing by the courts.
The classic model of judicially enforced bills of rights is that of the United
States of America.269*Interestingly enough, the federal Constitution of 1787
contained no separate declaration of rights as such. This came in 1791, when
the first ten amendments to the Constitution were adopted, the first nine
of these coming to be known as the ‘Bill of Rights’. Among the rights pro
tected here are freedom of speech, the press, assembly and petition, the right
to carry arms and certain procedural safeguards.
The American model has a number of interesting features. The first is that
no specific provision is made for judicial testing of legislation. The testing
rights of the courts was first recognized in the famous case of Marbury v
Madison210 in which Marshall CJ held that since the Constitution is a su
perior or higher law, its provisions must prevail if a conflict arises between
the Constitution and some other law. If this happens, the court has a duty
to declare the inferior law invalid. This testing power was extended to state
legislation (Marbury having dealt with federal legislation) in Martin v Hunter’s
Lessee.211
A second point is that the American Constitution makes no specific pro
vision for the curtailment of human rights in circumstances such as a state
of emergency, for example. In other words, it has no derogation clause. Here,
too, the courts have played a major role in determining the limits of individual
rights.
Thirdly, the American Bill of Rights is technically applicable only to the
federal legislature and not to the state legislatures. As a result of extensive
interpretation of the ‘due process’ provision in the fourteenth amendment,272
however, the courts have rendered the Bill of Rights applicable to the states
as well.273*
Of particular interest to South African constitutional law are the American
cases of Brown v Board of Education of Topeka214 and Baker v Carr.215 In
268 For a detailed discussion of a number of declarations of fundamental rights see Van
der Vyver Beskerming van Menseregte ch 2. .
269 For a treatment of American constitutional law in general, see Shapiro and Tresohru
American Constitutional Law 4 ed (1975).
270 (1803) 1 Cranch 137 (US).
271 1 Wheat 304 (1816).
272 This amendment does apply to the states.
273 See Engel v Vitale 370 US 421 (1962).
274 347 US 483 (1954).
275 369 US 186.
Brown's case the previously held doctrine of ‘separate but equal’ was ex
pressly rejected, the court holding that separate treatment of racial groups
was inherently unequal and therefore unconstitutional.276 In Baker v Carr
it was held that the delimitation of electoral districts was justiciable, and that
such electoral districts should be roughly equal as regards the number of
voters.
Among the more ‘modern’ declarations of human rights, that of the Federal
Republic of Germany has proved one of the most successful.277 The
Grundrechtskatalog (catalogue of basic rights) of the Bonner Grundgesetz
(Bonn Constitution) occurs right at the beginning of the Constitution and
comprises nineteen sections. Among the rights and freedoms guaranteed in
the declaration are human dignity, personality development, equality, free
dom of conscience, movement, assembly and association, privacy of cor
respondence and the protection of property rights. The German Constitution
distinguishes between human rights, basic rights and civil rights. Human rights
are sometimes defined as those pre-statutory rights which are recognized by
implication in the first section of the Constitution; basic rights all those rights
which are expressly enumerated and guaranteed in the Constitution; and civil
rights those basic rights which accrue to German citizens.
Although the Constitution contains a derogation clause which defines the
circumstances in which basic rights may be curtailed, it is provided that the
essence of a basic right may not be violated, and that basic rights may be
limited only in an enactment which is of general application. Moreover, the
so-called Rechtsweg, or right of access to the courts, is guaranteed wherever
basic rights are in issue. Constitutional rights in the Federal Republic of
permany are enforced, not by the ordinary courts, but by a special constitu-
:ional court (Bundesverfassungsgericht).
Many of the African states which attained independence in the post-war
era have adopted bills of rights, some of which, according to cynical obser
vers, are not worth the paper they are written on. Among the emergent states
which have opted for an inflexible constitution with an entrenched bill of
rights is Bophuthatswana, 278 whose Declaration of Rights is based on the
European Convention of Human Rights, but adapted to meet the specific
needs of the country. Rights protected include equality (irrespective of race,
colour or creed); the right to life, liberty and property and to a fair trial;
freedom of speech and conscience and freedom from slavery. Fundamental
rights may be curtailed only by a legislative enactment which is of general
application, and as in Germany, may not be infringed in essence. The Supreme
Court is expressly empowered to test all post-independence laws against the
Constitution in general, and the Declaration of Rights in particular. In
276 Cf the South African cases of Minister of Posts and Telegraphs v Rasool, supra,
and R v Abdurahman supra.
277 See the commentary on the Grundgesetz by Maunz-Diirig-Herzog; also IM Rautenbach
Die Reg op Bewegingsvryheid unpublished doctoral thesis UNISA (1974) at 227 et
seq, where he deals with certain aspects of the German Constitution.
278 See the discussions of the Constitution of Bophuthatswana by Wiechers and Van Wyk
‘The Republic of Bophuthatswana Constitution
* 1977 SAYIL 85; Venter ‘The Con
stitutions of the Republics of Transkei, Bophuthatswana and Venda in Comparative
Perspective’ 1980 Afrikarecht und Wirtschaft 9.
S v Marwane279 the Appellate Division of the Supreme Court of South Afri

ca (the final court of appeal for Bophuthatswana at that stage) went so far
as to hold that certain provisions of legislation ‘inherited’ from South Africa
were inconsistent with the Constitution, thus giving the constitutional Decla
ration of Rights an extensive interpretation. The minority judgment was based
on the literal meaning of the provisions of the Constitution, but the majority
judgment reflected the more libertarian influences of American and Con
tinental thinking; in particular, reference was made to the analogy provided
by the Federal German Constitution.280281 In Smith v Attorney-General,
282
Bophuthatswana2*' the Bophuthatswanan Supreme Court held that a provi
sion that the Attorney-General may refuse to grant bail to accused in certain
circumstances and that the Attorney-General’s notification relating to these
circumstances “shall be conclusive and final proof of such matters” was un
constitutional, and that it was not saved by the provisions of the derogation
clause, since it encroached “in its essence” on the individual’s right to due
process. Again the court found valuable analogies in German law, and ap
plied the German “principle of proportionality” (Verhaltnismassigkeit)2*2
to the interpretation of the Declaration of Rights. In its approach to the ques
tion whether the enactment in its essence encroached upon the individual’s
right, the court turned to the German concept of Wesensgehalt. 283 Admit
tedly the case had no bearing on security legislation, and Hiemstra C J was
at pains to emphasize this; he also criticized the majority judgment in the
Marwane case as “a typical example of over-eager invalidation”.284
There are a number of problems which can arise in regard to constitution
ally entrenched bills of rights. The first is to decide which rights and free
doms should be accorded specific constitutional protection. A vague general
statement that all fundamental, common-law, natural or basic rights will be
guaranteed, clearly opens the door to endless difficulties of interpretation.
In a most interesting work in which the possibility of enacting a bill of rights
for Britain is canvassed, Jaconelli285 warns against the dangers inherent in
the ‘freedom from’ approach. It is one thing to guarantee freedom to seek
employment or to obtain an education; quite another to guarantee freedom
from poverty, unemployment or ignorance.
A sound starting-point would seem to be all those rights which are recog
nized at common law. Almost without exception these will qualify as private
law rights (‘subjektiewe regte’) as well.286 It may be argued, in the South Afri
can context, that a bill of rights protecting life, liberty, property, personality
and so on, will not give the individual anything he does not have already.
279 1982 3 SA 717 (A).

280 At 751E. Also see the discussions of this judgment by G Carpenter 1983 THRHR
93, S Luiz 1983 THRHR 231, A Thomashausen ‘Human Rights in Southern Africa:
the Case of Bophuthatswana’ 1984 SALT 467.
281 1984 1 SA 196 (BSC). See the discussions by Carpenter 1984 THRHR 363, and
Thomashausen 1984 SALJ 467.
282 At 201A-C.
283 At 202E.
284 At 204B.
285 Joseph Jaconelli Enacting a Bill of Rights (1980) at 5-7.
286 See the discussion above in this chapter.
This is true: but there is a difference nevertheless, since these common-law

rights are not guaranteed against legislative encroachment, and the protec
tion against executive encroachment is by no means comprehensive.
Another useful guide to what should be protected in a bill of rights may
be found in existing bills of rights and in the European Convention of Human
Rights. One would then include, in addition to fully-fledged rights recog
nized in private law, all those common-law freedoms and rights which are
universally recognized in the sphere of public law: the right to a fair trial,
with everything that implies; a guarantee against retrospective onerous
measures; freedom of thought, conscience and religion; freedom of speech,
expression and the press; freedom of association and assembly; independence
of the judiciary, and so on. Certain problems may still arise in the South
African situation as it stands at present: these relate mainly to discrimina
tion in the field of so-called social and political rights.287 Among these ‘rights’
there would be the right to elect representatives to the central legislature,
to seek employment and to live wherever one pleased — rights which are
not, at this stage, accorded to all South African citizens. A South African
bill of rights containing a provision similar to article 14 of the European Con
vention would therefore require major legislative surgery to the general body
of South African law before it could become operative.288
It is clear that any list of guaranteed rights and freedoms should be drawn
up very carefully and with due regard to prevailing political, social and ethi
cal norms in the country. It has been said that a bill of rights should be a
shield, not a sword.
The next problem, admittedly not an insoluble one, is to decide who is
to enforce the guarantees entrenched in the constitution. Here the choice lies
essentially between the ordinary courts (as in the USA) and a special con
stitutional court (as in the Federal Republic of Germany). The institution
of a special court has several advantages: the persons serving on the court
would be specialists in constitutional law, and the danger that the judicial
process as a whole will become politicized, is reduced.
On the other hand, there are disadvantages too, as was pointed out by
Mr Justice Didcott:289 the chances of political appointments are much greater
in the case of a special court consisting of only a few members than in the
case of the judiciary as a whole; furthermore, the judgments of such a court
will all be politically tinged, which could result in greater public distrust than
constitutional judgments liberally interspersed with contractual, matrimonial
and ordinary criminal cases.
The aspect of bills of rights which causes the most difficulty in practice
is the matter of so-called ‘derogation clauses’. No right is unlimited: even
287 See IM Rautenbach ‘Die Juridiese Werking van Mensereg-aktes en die nuwe Grond-
wetlike Bedeling’ in ’n Nuwe Grondwetlike Bedeling vir Suid-Afrika: Enkele Regs-
aspekte (ed Jacobs) (1981) at 157-158; also the contributions of L Henkin and
F Ermacora in Human Rights: The Cape Town Conference (1979) at 224-250.
288 Article 14 reads: “The enjoyment of rights and freedoms set forth in this Conven
tion shall be secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin, association
with a national, minority, property, birth or other status.”
289 In a paper read at the Bill of Rights Symposium, University of Pretoria, May 1986.
rights which are constitutionally guaranteed are subject to legal restriction

when the circumstances are such that normal rules are inadequate to protect
the community as a whole. The question is: how is one to provide for limita
tion of constitutionally guaranteed rights in an emergency situation without
rendering the guarantee worthless?
The Constitution of the USA does not provide expressly for the limitation
of any of the fundamental rights (as it does not provide expressly for judi
cial scrutiny of legislation impinging on such rights). The Supreme Court
has, however, recognized certain grounds on which limitations may be
imposed. The Constitution of the Federal Republic of Germany (FRG) does
contain a derogation clause, but there are certain rights which are not sub
ject to this clause, such as the right of access to the courts. In general, though,
even supposedly ‘absolute’ rights are subject to the qualification that they
may not interfere with the rights of others or with the constitutional or moral
order.290 The determination of the ‘essence’ of a right gives rise to a great
deal of difficulty; it is therefore not a satisfactory criterion to provide that
any limitation of guaranteed rights should not encroach upon the essence
of such rights, for example.
Although derogation clauses certainly do constitute a thorny issue, there
are nevertheless a number of practical guidelines which may be stated.
(i) There must be a clear indication of the organ which is competent to impose
limitations and the manner in which it may impose them. It is clearly more
desirable that such a power of derogation should vest in the legislature, which
is a composite body consisting of the elected representatives of the people,
than in a single member of the executive (such as the Minister of Justice,
Defence or Law and Order) or even in the executive as a body. A procedural
obstacle (such as the requirement of a two-thirds majority, for example) could
also serve to improve the quality of the guarantee.
(ii) The circumstances in which the limitation may be imposed should be
defined with reasonable certainty: ‘grave national emergency’, for example,
rather than merely ‘interest of the state’ or ‘public interest’. Inevitably,
however, such circumstances will have to be defined in fairly wide terms.
(iii) Ideally, there should be some means of determining the objective neces
sity of the emergency measures. The court (Supreme Court or constitutional
court) would appear to be the appropriate body to act as arbiter here. There
would seem to be no reason why an aggrieved individual should not have
access to the court (possibly sitting in camera) or to a judge in chambers —
even in a time of grave national emergency.291
3 Unentrenched Bills of Rights

Bills of rights which are not constitutionally entrenched and which are not
enforceable by the courts would appear, at first glance, to be a brutumful-
men, a harmless thunderbolt (or, if you will, a paper tiger). There are,
290 See Rautenbach op cit at 158.

291 Note that British security legislation aimed at containing the crisis situation in Northern
Ireland does provide for preventive detention, detention for considerable period
without trial, etc, but the jurisdiction of the courts is not ousted, in circumstances
very closely parallel to those obtaining in South Africa.
however, a number of such declarations of rights in modern constitutional

law, and some, at least, appear to serve the purpose for which they were
designed. One advantage of such an arrangement is that it is not totally
irreconcilable with the concept of legislative sovereignty, and therefore pro
vides a possible compromise for those countries which find the idea of judi
cial supremacy unpalatable. Perhaps the most successful examples of this
kind of protection are to be found in the constitutions of France, New Zealand
and Canada.
Nearer home, the Constitution of the Republic of Ciskei292 contains a com
prehensive Declaration of Fundamental Rights which purports to protect
rights such as human dignity; equality before the law; freedom from dis
crimination on the grounds of sex, race or religion; life, liberty and security
of person; privacy, honour and reputation; freedom of movement, conscience
and association; protection of nationality, personality, employment, educa
tion, and so on. There is a derogation clause which is couched in rather wide
terms, and, furthermore, a provision that no law of the National Assembly
shall be declared invalid by a court of law by virtue of the fact that it contra
venes the provisions of the Declaration. The Ciskeian Declaration of Fun
damental Rights may therefore be seen, at this stage, as little more than a
series of guide-lines for the legislature.
This does not mean, however, that an unentrenched bill of rights is not
worthy of consideration. One of the main stumbling-blocks to a judicially
enforced bill of rights in South African law is the tradition of legislative
supremacy.293 This tradition is even more firmly entrenched in Britain, and
for this reason the approach of Jaconelli294 is of particular interest. He bears
the realities of British constitutional law in mind throughout, and attempts
to find a solution which disturbs the basic tenor of that law as little as possi
ble. Jaconelli ultimately opts for a specific law in which all the traditional
fundamental rights and liberties are expressly stated and recognized. Any
parliamentary enactment which suspends or encroaches upon these rights must
state specifically that it will take effect notwithstanding the bill of rights.
The practical effect of such a provision would be, first, that only Parlia
ment (and no subordinate legislature or any executive body) may curtail these
rights, and, secondly, that curtailment must be express and not implied. The
attention of the public would be focused on such legislation, so that any
unnecessary or unreasonable curtailment of fundamental rights would have
political (if not legal) repercussions. Furthermore, the courts would in all
probability interpret such legislation even more restrictively than ordinary
laws curtailing common-law rights and freedoms. There are other safeguards
that may be built into a system of unentrenched fundamental rights. Here,
292 See G Carpenter ‘Variation on a Theme - the Independence of Ciskei’ 1981 SA YIL
83 at 88 et seq.
293 For a discussion of the factors which have militated against acceptance of the idea
of a bill of rights for South Africa, see Rautenbach ‘Die Juridiese Werking’ at 151
et seq\ parliamentary sovereignty is the main juridical factor, but there are other,
more emotionally charged reasons why, until recently, bills of rights have been anathe
ma to many South Africans. See H J Coetsee ‘Hoekom nie ’n Verklaring van Men-
seregte nie?’ 1984 TR W 5.
294 Op cit at 155 et seq; and at 282 et seq.
too, the requirement that a more difficult legislative procedure must be fol
lowed, is distinctly worthy of consideration, since it is a mechanism which
is not unknown to South African law. Proposed legislation which could en
croach upon rights listed in the bill of rights could also be submitted to a
special consultative body (such as a fundamental rights committee or even
a committee of the President’s Council). Although the advice of such a body
would not be binding, it could certainly serve to iron out difficulties before
the bill became law.
4 An Ombudsman or Similar Official

Finally, the institution of an ombudsman could be considered. An ombuds
man is an official whose function is to investigate grievances and complaints
against the administration. Although this topic falls more specifically within
the sphere of administrative law, an ombudsman could serve as guardian
of individual rights in the wider constitutional sense as well. The idea
originated in the Scandinavian countries and has spread to countries such
as New Zealand, Zimbabwe and Bophuthatswana. A great deal has already
been written about the ombudsman figure, and a number of South African
writers have mooted the appointment of such an official for South Africa.295
In his article, Gering296 points out that law is not an end in itself but a means
of serving the needs of society; the ombudsman is one device which can serve
these needs.
Ideally an ombudsman should be appointed by Parliament, not the
executive. He should have had legal training and should enjoy the same sta
tus as a judge. While he has wide powers to investigate the matters referred
to him and has access to government files, records and documents for the
purposes of his enquiries, he has no power to reverse any government deci
sion, but merely reports and makes recommendations.
The advantages of such an appointment, according to Gering, would be
the following:
(i) the ombudsman can cover ground which is outside the scope of judicial
control;
(ii) he can act on his own initiative, unlike the judiciary;
(iii) the procedure involved is both speedy and inexpensive;
(iv) the ombudsman could be in a position to eliminate grievances by
explaining to an aggrieved person the reasons for a certain administrative
measure (it is well known how often people are satisfied by a person-to-person
explanation rather than an impersonal official statement);
(v) if an undesirable or unsatisfactory state of affairs is brought to light,
future malpractices may be prevented;
(vi) the ombudsman plays a persuasive role and is therefore less likely to en
gender resentment in official circles than an authoritarian figure or pressure
groups (one would like to think so; but this would depend rather heavily
on the ombudsman’s personality and not so much on the nature of his post);
295 See GN Barrie ‘The Ombudsman: Governor of the Government’ 1970 &4LJ224;
GC Kachelhoffer ‘Die Ombudsman’ 1967 THRHR 339; L Gering ‘Legal Institutions
and Human Needs’ 1974 THRHR 274. Also see W Gelhom ‘Protecting Human Rights
in the Administrative State’ in Human Rights: The Cape Town Conference (1979)
at 177.
296 See previous footnote.
(vii) he could play a valuable role with regard to persons in detention who
have little access to the outside world (presumably the ombudsman could
visit detainees regularly, thus possibly co-ordinating with visits by magistrates
and district surgeons).297
The following objections to and disadvantages of the introduction of an
ombudsman have been put forward:
(i) Such a person would become a super-administrator or governor of the
government and would stultify government as we know it. Since the ombuds
man has no real power, but acts solely in an advisory capacity, this does not
appear to be a valid objection.
(ii) The appointment of an ombudsman would conflict with the established
principles of ministerial responsibility. The same answer applies to this as
to (i) above.
(iii) If wide publicity is given to administrative errors or abuses, it could result
in loss of confidence in the administration. This argument also appears to
have little substance, since wide publicity would only be given to gross mis
management, and such mismanagement would certainly receive a great deal
of attention from the press anyway. In any case, it would appear to be an
advantage, not a disadvantage, to have mismanagement exposed.
(iv) Efficient administration would be impeded by a ‘sword of Damocles’
hanging over the heads of officials. One would think that the risk of having
one’s shortcomings exposed would, in fact, act as a spur to greater efficiency.
Moreover, no official is ever altogether free of a sword of Damocles in some
form or other — the Auditor-General would appear to be a more frighten
ing spectre than an ombudsman.
(v) A real flaw lies in the fact that the ombudsman lacks real power — he
may advise and publicize, but cannot compel the government to take the steps
he deems necessary. To a great extent the effectiveness of the scheme will
depend on the executive’s willingness to co-operate and even on the official’s
personal attributes (such as an ability to persuade officialdom and not rub
the officials up the wrong way).
(vi) The ombudsman, after all is said and done, remains an official — in
the eyes of the public, a representative of the bureaucracy. It may well prove
difficult to persuade the people that the ombudsman will not put the interests
of the administration before those of the public.
(vii) Although the ombudsman idea seems to be proving successful in coun
tries such as Sweden and New Zealand, it does not necessarily follow that
the formula will work equally well here. Of course, this should not militate
against its being given a trial.
Taken all in all, however, it seems that the ombudsman idea is one well
worth considering. There are advantages for the administration as well, since,
to quote Walter Gelhorn:
In the great bulk of cases the ombudsman has found the complaint ill founded
in fact or in law, thus shielding administrators from wrongheaded persons far more
frequently than he shields persons from wrongheaded administrators.298
Perhaps one should let Jennings have the last word on rule of law and
fundamental rights:
Liberty is a consequence not of laws and institutions but of an attitude of mind.299
297 See the discussion of the Internal Security Act above at 114 et seq.
298 Op cit at 185.
299 The British Constitution at 203.
CHAPTER SIX
The Sovereignty of Parliament
I INTRODUCTION
Parliamentary sovereignty is traditionally held to be one of the most impor
tant features, if not the single outstanding feature, of the Westminster sys
tem.1 Jurisprudential thinking about sovereignty has, however, changed a
good deal over the years, to the extent that writers such as Booysen and Van
Wyk express doubts about whether there is room for the concept in contem
porary constitutional law.2 Other authorities do not quarrel with the con
cept of sovereignty as such, but view the term ‘sovereignty’ with disfavour
because it is open to more than one interpretation, and prefer to use
‘parliamentary sovereignty’ or ‘legislative supremacy’.3 In view of the fact
that the concept of parliamentary sovereignty has played a major role in the
development of South African constitutional law, and that the Constitution
Act itself refers to the Parliament of the Republic as the ‘sovereign legisla
tive authority in and over the Republic’,4 it is necessary to examine the ori
gins, development, history and current meaning of sovereignty in South
African constitutional law.
II THE VARIOUS MEANINGS WHICH MAY BE ASSIGNED TO THE

TERM ‘SOVEREIGNTY’
It is not clear precisely what ‘sovereignty’ was originally intended to mean,
when the term developed, or to whom it applied — whether to the state, an
individual such as the King, or to a body of persons.5 We may speak of a
particular person (a monarch) as ‘the sovereign’ (in other words, ‘sovereign’
is used as a synonym for ‘king’ or ‘ruler’); secondly, a state may be referred
to as a ‘sovereign independent state’, which means that such a state is not
subordinate in any way to the authority of any other state:, and thirdly, it
may be used to refer to the supreme power "within a particular state, whether
such a state is fully sovereign in the international sense or not. The second
1 See e g A V Dicey Introduction to the Study of the Law of the Constitution 10 ed

(1975) at 70, who calls it “the very ‘keystone’ of constitutional law in this country”;
WI Jennings The Law and the Constitution 5 ed (1959) at 144; O Hood Phillips Con
stitutional and Administrative Law 6 ed (1978) at 27.
2 H Booysen and D H van Wyk Die '83-Grondwet (1984) at 43-44. The part to be played
by the doctrine of sovereignty under the 1983 Constitution will be fully dealt with in
ch 17 below.
3 See Hood Phillips op cit at 42: “The doctrine of sovereignty in the theory of municipal
law as opposed to international law, however, is now out of fashion ... A body may
have supreme (highest) power without necessarily being sovereign (unlimited) in Austin’s
sense, nor do we assert or imply here that there must be a sovereign authority in every
legal system.”
4 S 30 of Act 110 of 1983.
5 H Quaritsch Staat und Souveranitat (1970).
133
and third senses are sometimes confused, as will be explained later. Constitu
tional theory is concerned primarily with sovereignty as the highest authori
ty within a state.
Ill THE ORIGINS OF SOVEREIGNTY

Theories about the origins and nature of state or government authority may
be traced back as far as the ancient Greeks. Ancient regimes such as those
of Pericles, the Roman Republic and Empire may be seen as the earliest
‘democratic’ forms of government in the sense that the people were recog
nized in the process of government, though we should classify them as oligar
chic, aristocratic or even autocratic.6
Classical Greece was not so much a state as a conglomerate of city states.
The relationship between the state and the citizen was largely undefined, but
the general view was that the individual’s interests were subordinate to those
of the state. The authority of the state was simply a fact of life. Plato and
Aristotle saw the reason for the existence of the state in man’s very imper
fection. The state, in their view, was there to strike a balance between the
individual and society; the individual’s duty was to give of his best, to con
trol his passions, and so on - an idealistic view based on the Homeric myth.7
The Romans were somewhat more pragmatic in their approach. Unlike
the Greeks, they stressed the citizen’s duty to his country. Although the rela
tionship between the state and the individual was not seen as a legal rela-
ionship in the modern sense, the Romans regarded their society as one
irdered by the law, and the theory that the authority of the state was vested
n the people was held as early as the third century BC.8 Lex (statutory law)
was a decision, and the comitia (assembly) the mouthpiece of the people.
The imperium (authority) of the people was transferred first to the comitia
and, during the imperial era, to the princeps’, a gradual move towards au
tocracy, therefore.9 In theory the absolute power vested in the Roman em
perors was delegated to them by the people.10 The theory that the Emperor
derived his authority from God became established under the influence of
Christianity, and the idea that imperial authority was based on the law was
not far behind.11 The Romans therefore acknowledged three sources of state
authority (the people, God and the law) at different stages.
The Germanic view, by contrast, was wholly consistent: the only authori
ty was the authority of the law, which was immutable and supreme.12 The
6 GA Rauche ‘Filosofiese en Teoretiese Aspekte van Grondwetlike Stelsels en Owerheids-

instellings’ in Politieke Alternatiewe vir Suider Afrika: Grondslae en Perspektiewe (ed
van Vuuren en Kriek) (1982) at 1-2; also C P Joubert ‘Die Gebondenheid van die Soewe-
reine Wetgewer aan die Reg’ 1952 THRHR 7.
7 Rauche op cit at 2-3.
8 J P VerLoren van Themaat Staatsreg 3 ed (1981) at 14.
9 G N Barrie Die Soewereiniteit van die Parlement unpublished doctoral thesis UNISA
1968 at 9.
10 VerLoren van Themaat loc cit.
11 Ibid.
12 The law did, however, allow the individual to take the law into his own hands in order
to safeguard his own interests and even to avenge wrongs suffered by him or his family
or tribe. Such action was unlawful only when a situation of peace prevailed, whether
this was the peace of the assembly of the people (ding, fylkisthing, folk-moot), the
peace of the household or the peace of the tribe (ironically enough, in time of war).
Finally, anyone who took an oath of peace was obliged to respect it: an oath was
regarded as sacrosanct. See VerLoren van Themaat op cit at 14-15.
The Sovereignty of Parliament 135
idea that authority vested in the state or in one particular individual only
took root later.
The most generally held view in the Middle Ages was, understandably,
that state authority derived from God, but there was no unanimity about
the bearer of the authority. The early Middle Ages were marked by a bitter
struggle between the Pope and the emperors in which the latter eventually
proved the victors. In Europe the general view was that the Emperor was
subject only to the ius naturale and not to temporal law.13 He was expected
to respect the laws made by him or his predecessors, however, as a mark
of his good faith. In England the approach was that the King was bound
to observe, not only the rules of natural law, but the law in general; as
Bracton14 put it: Rex non debet esse sub homine sed sub Deo et lege (the
King should be subject, not to any man, but to God and the law).
The sixteenth century, in particular, saw a renascence of interest in theories
about the origin and scope of state authority. There were reformulations of
existing ideas rather than wholly original thoughts, but what is of interest
is that the concept of sovereignty began to gain prominence15 as the expres
sion to be used for the supreme authority within the state.
Various theories enjoyed currency. They are neither mutually exclusive nor
in all respects irreconcilable with one another. One view was that the people
were the sovereign, a view which was well received in England, and which
was also adhered to by the founding fathers of the United States of America,
whose Constitution is introduced with the words “We, the people of the Unit
ed States . . .”. The ‘Voortrekker’ states and ‘Boer’ Republics likewise ac
knowledged the sovereignty of the people.16
The idea that the authority of the state stems from an agreement between
the state and the individual, the social contract theory, is usually attributed
to the French writer Jean Jacques Rousseau, but he popularized rather than
devised the theory. The idea of such an agreement had already been can
vassed by such eminent men as Hobbes, Grotius, Althusius, Locke, Pufen-
dorff and Montesquieu long before Rousseau’s work was published.1718 This
theory also influenced constitutional thought in the United States of Ameri
ca, the ‘Voortrekker’ states and ‘Boer’ Republics, all of which entered into
an agreement to form a state (pactum unionis).™
The Germanic idea that the law is supreme and immutable (the law may
found but not altered)19 is, to some extent, in accord with the idea of a
natural law common to all nations and applicable everywhere and in all cir
cumstances. It is reflected in the doctrine of the rule of law, which occupies
such a prominent position in English constitutional law, and the Rechtsstaat
13 Bartolus (1314-1357) Cod 1 1 4 4 n 21, cited by VerLoren van Themaat op cit 16 fn 49.
14 De Legibus et Consuetudinibus Angliae, written between 1250 and 1260.
15 Although the word may be traced back as far as ± 1283, when it was used by Philippe
de Beaumanoir in ‘Coustumes de Beauvoisis’ — see H VerLoren van Themaat ‘Die
Soewereiniteitsbegrip’ 1938 THRHR 99 at 100.
16 See J P VerLoren van Themaat op cit 19 and the authorities cited in footnote 55.
17 See J P VerLoren van Themaat op cit at 19.
18 Rousseau was a major driving force behind the French Revolution, and the ideas gene
rated by the Revolution had a widespread influence in America and South Africa.
concept of German law, which has also had an influence on South African
law.20 However, it must be emphasized that these doctrines are not identi
cal, nor are they synonymous with the old Germanic idea that the law is sove
reign.21
The French writer Jean Bodin is generally regarded as the founder of the
doctrine of sovereignty as we know it today, although his original concept
has undergone a great deal of change since he first formulated it in his Six
livres de la Republique22 Bodin equated sovereignty with the potestas legi-
bussoluta (literally, the power of freedom from the laws). For the first time,
sovereignty became an absolute concept. Before this, the ‘souvrain’ had been
merely ‘superanus’ or ‘superior’, not supreme. In the Middle Ages, more
than one person could have been sovereign. Now sovereignty, according to
Bodin, vested in a single person or group of persons — not, it must be
stressed, in the state itself. Bodin acknowledged no state sovereignty as such,
but concerned himself solely with the bearer of the supreme authority. He
offered no theory on the origin of sovereignty, or of the state or the purpose
of the state, but concentrated on the bearer of sovereign authority.
Writers such as Dooyeweerd23 regard Bodin as an advocate of an absolute
concept of sovereignty, and his doctrine as signifying a sovereign who has
the sole and absolute power to make laws,24 subject only to the restraints,
if they can be called that, of the ius divinum and ins naturale. Yet McIlwain25
believes that Bodin has been wronged by his critics. His view is that Bodin
understood the fundamental (but not obvious) distinction between consti
tuent law and ordinary legislation. Thus when Bodin says that sovereignty
is absolute but not arbitrary, he is not contradicting himself, but is distin
guishing between the ordinary laws (from which the sovereign is ‘free’, so
that he may alter them) and the fundamental principles of the Constitution
under which the government comes into being: “the sovereign cannot over
leap the bounds of the constitution which gives him being, without destroy
ing the very foundation on which all his authority rests . . ,”26 Quaritsch27
sums up Bodin’s contribution to constitutional theory as an effort to con
tain the legally unfettered authority of the state within the limits of what
is right and proper by means known to him and his contemporaries.
According to Dooyeweerd28 Bodin’s efforts resulted, first of all, in the
recognition of the distinction between the state and all other political and
non-political entities; secondly, in the recognition of the unity and indivisi
bility of the sovereign and thus of the state itself; thirdly, in the isolation
of legislation as the express or tacit will of the legislature; and, finally, in
20 Rule of law is discussed fully in ch 5.

21 It is therefore not quite accurate from the point of view of legal theory, to render
*
‘rule of law in Afrikaans either as ‘regsoewereiniteit
* or as ‘die regstaatbegrip
.
*
22 This appeared in 1577. The Latin version, prepared by Bodin himself, appeared in
1586. Machiavelli (1469-1532) is also sometimes given the credit for devising the con
cept of sovereignty.
23 De Crisis in die Humanistische Staatsleer (1931) at 28, 149 and 169.
24 De Strijd om het Soewereiniteitsbegrip (1950) at 5.
25 C H McIlwain Constitutionalism in a Changing World (1939) at 72-73.
26 McIlwain op cit at 73.
27 Op cit at 393.
28 De Strijd om het Soewereiniteitsbegrip at 9.
the recognition of the fact that all law-making powers are ultimately depen
dent on the sovereign head of state (because Bodin still saw the sovereign
as a person - the concept of a sovereign legislature had not yet evolved).
After Bodin, the doctrine of sovereignty developed along divergent paths
in England and on the continent of Europe. In Europe a period of absolutism
was to follow, and ‘constitutional’ or ‘internal’ sovereignty was pushed into
the background. In England the development of sovereignty followed a differ
ent course.
IV THE DEVELOPMENT OF THE DOCTRINE OF SOVEREIGNTY IN

ENGLISH LAW
The most important contributor to the development of the doctrine of
sovereignty in England was made by a contemporary of Bodin, Sir Thomas
Smith, whose De Republica Anglorum was written in 1565, but published
only in 1583.29 In keeping with Bracton’s view that the King was subordinate
to no man but subject to the law, Smith’s approach to sovereignty was that
it was based on a juridical relationship. Although some of the kings of
England had tried to be absolute or autocratic rulers30 the generally accept
ed view was that the King exercised his powers subject to the law. Smith’s
concept of sovereignty reflected this; sovereignty vested, not in the King, but
in Parliament:
The Parliament of England which representeth and hath the power of the whole
realm, both the head and the body. For every Englishman is intended to be there
present, either in person or by procuration and attorneys, of what pre-emminence,
state, dignity or quality soever he be, from the Prince, be he King or Queen, to
the lowest person of England. And the consent of the Parliament is taken to be
every man’s consent.31
From this it is clear that the sovereignty of Parliament did not mean, ac
cording to Smith, that Parliament ruled over the people, since the people
were represented in Parliament. Sovereignty of Parliament therefore meant,
to him, sovereignty of the people.
The approach of Thomas Hobbes (1588-1679), famous both for his work
Leviathan (1651) and for his cynical utterance that homo homini lupus (one
man is to another like a wolf) differed radically from Smith’s. Hobbes’s sove
reign was the King, not Parliament or even the King-in-Parliament. Accord
ing to Hobbes’s constitutional theory, the people ceded some of their rights
unconditionally to the ‘leviathan’ (literally ‘monster’) - the state. The as
sembly or Parliament was deemed to have been authorized by a social con
tract to decide on behalf of the people, but Parliament was merely the agent
through which the supreme authority (the King) expressed his sovereign will.
According to Hobbes, the King was not even bound to adhere to the agree
ment between him and the people. His doctrine was more akin to Bodin’s
29 It is of interest that Smith served as Queen Elizabeth I’s envoy at the French court.
However, it is not known whether he was in any way influenced by Bodin’s ideas or
even if either Bodin or Smith was aware of the other’s existence.
30 Richard II for example; see the discussion in ch 3 above.
31 De Republica Anglorum, quoted by F W Maitland Constitutional History of England
(1941) at 225.
than to Smith’s, but his view of sovereignty was even more absolute than
Bodin’s. McIlwain32 goes so far as to say: “It is true that the theory of Bodin
and that of Hobbes have very little in common. They are poles apart. The
former is a theory of law, the latter a theory of might.” Most authorities,
whether ancient or modern, take the view that Hobbes’s approach was
extreme, and was not in keeping with the realities of the situation in England.
Philosopher John Locke, who is better known for his theory about the
separation of powers,33 held, like Smith, that the community has the final
say, that the will of the people must prevail. His insistence on the supremacy
of the law echoes Lord Coke’s “Magna Carta is such a fellow that he will
have no sovereign”.34
The idea that parliamentary sovereignty was absolute had not yet taken
root in the seventeenth century. It was held in Bonham’s Case35 for example,
that the courts had the power “to control acts of Parliament and sometimes
adjudge them to be utterly void” and in the Case of Ship Money3637 there is
a dictum to the effect that an Act of Parliament which attempts to abolish
one of the inalienable royal prerogatives would be invalid. In Day v Savadge31
it was said that: “. . . even an Act of Parliament made against natural equi
ty, as to make a man a judge in his own cause, is void, for jura naturalia
sunt immutabilia and they are leges legum.”
The eighteenth century saw the emergence, once again, of a more abso
lute theory of sovereignty. The first person to analyse the supremacy of Parlia
ment as such and to determine the scope and content of parliamentary
sovereignty was Blackstone, whose Commentaries appeared in 1758. Accord
ing to Blackstone, there must be, in every state, a supreme power, “that ab
solute and despotic power which must in all governments reside somewhere”,
and that supreme power was Parliament. Although Blackstone held that there
were certain absolute and inalienable rights which all Englishmen possessed,
he did not adhere to the view that acts of Parliament could be declared in
valid by the courts.38 His theory of sovereignty was based on a contract in
terms of which this “absolute despotic power” was conferred on Parliament.
Apparently he saw no contradiction in believing both in absolute individual
rights and in absolute parliamentary sovereignty: presumably he did not be
lieve that Parliament would betray its trust or that Parliament is subject to
no law whatsoever.39
Jeremy Bentham, the advocate of the doctrine of utilitarianism (“the
greatest good for the greatest number”) and John Austin, perhaps the best-
known of the English positivists, who wrote in the early nineteenth century,
32 Op cit at 74.
33 See ch 7 below.
34 J R Tanner English Constitutional Conflicts of the Seventeenth Century (1928) at 63.
35 8 Coke’s Reports 118A (1610). It is generally held, though, that this was not the prevail
ing view at the time.
36 1637 3 St Tr 825 at 1125.
37 1615 Hob 85 at 87.
38 See J P VerLoren van Themaat op cit at 26, fn 87.
39 Parliament was not, in those days, seen as a threat to individual liberty, but as its
protector. See ch 3 above.
said that law is the command of the sovereign. In the view of Hood Phil
lips,40 Austin’s concept of unlimited sovereignty is obsolete today, but there
is no doubt that Bentham and Austin contributed a great deal to the formu
lation of the concept of parliamentary sovereignty as it became accepted in
the nineteenth century and was expounded by the formidable Dicey.
Dicey called parliamentary sovereignty the very keystone of English con
stitutional law. While Blackstone said that what Parliament had done, no
man could undo, Dicey stated: “There is no power which, under the English
constitution, can come into rivalry with the legislative sovereignty of Parlia
ment.”41
It was only when problems relating to sovereignty arose in Ireland, Aus
tralia and South Africa, that the attention of English constitutional lawyers
was drawn to the complexities inherent in the doctrine. The Irish case was
that of R (O’Brien) v Military Governor, NDUInternment Camp:42 In its
haste to secure the passage of a measure entitled the Public Safety (Emer
gency Powers) Act 1923, the British government omitted to comply with cer
tain formal requirements laid down by Article 47 of the Irish Constitution.
The court held that the measure was not a valid statute. The Australian case
was the well-known Attorney-General for New South Wales v Tretho wan.43
In 1929, the New South Wales legislature had enacted that the Legislative
Council (the upper House) should not be abolished unless the bill concerned
had been approved by the electorate at a referendum prior to its presenta
tion for the royal assent, and also that the requirement of a referendum could
be repealed only if the same process were adopted. When a new government
took office, it attempted to abolish the upper House and to repeal the referen
dum requirement by means of an ordinary legislative measure. Two mem
bers of the Legislative Council successfully sought a Supreme Court
declaration that the proposed action was illegal and an injunction restrain
ing presentation of the bills to the Governor before they had been submitted
to a referendum. The South African case was that of Harris v Minister of
the Interior,44 which will be discussed under the next heading.
V DEVELOPMENT IN SOUTH AFRICA UP TO 1961

The question of legislative supremacy arose in the Transvaal even before the
end of the nineteenth century, in the famous case of Brown v Leyds,45 which
sparked off a constitutional crisis and led ultimately to the dismissal of the
Chief Justice by the President of the South African Republic, Paul Kruger.
Kotze CJ and Ameshoff J held that the Constitution of the Republic was
a fundamental law, and that legislation which was in conflict with the con
stitution was invalid. The Chief Justice had been influenced by the judgment
40 Op cit at 42.
41 Op cit at 70.
42 1924 1 IR 32.
43 1932 AC 526; 44 CLR 394.
44 1952 2 SA 428 (A).
45 1897 4 OR 17. See C J R Dugard Human Rights and the South African Legal Order
(1978) at 20, and the same author’s contribution ‘Die Regbank en Konstitusionele Ver-
andering’ in Politieke Alternatiewe vir Suider-Afrika at 320.
in the famous American case of Marbury v Madison,

* 6 in which the Supreme
Court of the United States had exercised the power to test legislation despite
the absence of an expressly conferred power in the Constitution itself.
However, some of Kotze’s contemporaries adhered to the English approach
even though the Transvaal was not subject to English law at that stage.
When the four former colonies merged to form the Union of South Africa
in 1910, each of them was, by virtue of conquest by Britain, subject to the
legislative supremacy of the British Parliament. As was explained in Chap
ter 2, the British parliamentary system also became part of South African
law. The Parliament established in terms of the South Africa Act46 47 was
modelled on the British (Westminster) system and not on the American model,
as the Constitutions of the ‘Boer’ Republics had been. But the South Africa
Act contained one feature in particular that was unknown in English con
stitutional law. This was the phenomenon of the so-called entrenched sec
tions (35, 137 and 152),48 which could be repealed or amended only by a
two-thirds majority in a joint sitting of the House of Assembly and the Senate.
After the enactment of the Statute of Westminster in 1931, the question
was often asked whether the Union Parliament was still bound by the en
trenched provisions of the South Africa Act. The thought that the
‘sovereignty’ conferred by the statute was not so much ‘legislative suprema
cy’ as ‘sovereignty’ in the sense of public international law, apparently never
occurred to anyone.
The first case to deal with the entrenched sections was that of R vNdobe
* 9
which was decided before the adoption of the Statute of Westminster, and
the court therefore had no difficulty in finding that a statutory provision
which conflicted with section 35 and had not been adopted by a two-thirds
majority in a joint sitting of Parliament was invalid.
In 1936, black voters were placed on a separate voters’ roll in terms of
Act 12 of 1936, which was adopted in accordance with section 35. The valid
ity of the amendment was challenged in Ndlwana v Hofmeyr,50 in which coun
sel for the plaintiff advanced a number of ingenious arguments to support
the view that, since the entrenched sections were no longer binding on the
Union Parliament, section 35 should have been adopted in the ordinary man
ner in order to be valid. The Appellate Division rejected these arguments
and held:
Parliament, composed of its three constituent elements, can adopt any procedure
it thinks fit; the procedure express or implied in the South Africa Act is, so far
as Courts of Law are concerned, at the mercy of Parliament like everything else.51
The only qualification added was that the procedure followed must be a legiti
mate one.
46 1803 1 Cranch 137 (US).

47 9 Edw VII C9 1909.
48 S 35 protected the non-white franchise and s 137 the equality of the two official lan
guages, while s 152 provided for the special procedure to be adopted in the event of
amendment or repeal of any of the three sections. It is of some interest that ss 24 and
85(iii) could not be amended at all for a period of ten years: the question whether
these provisions impinged upon the sovereignty of the Union Parliament was never
mooted, probably because it was not generally accepted, before the passing of the Statute
of Westminster, that the Union Parliament was sovereign.
49 1930 AD 484.
50 1937 AD 229.
51 At 238, per Stratford ACJ.
The judgment in Ndlwana v Hofmeyr was accepted as correct and when \

the South African government started, in 1949, to set in motion legislation I
to place the coloured voters on a separate voters’ roll, it did not anticipate /
any legal problems. Not only was there the authority in Ndlwana v Hofmeyr. (
there was the Privy Council decision in Moore v Attorney-General for the\
Irish Free State,52 in which it was held that, subsequent to the enactment )
of the Statute of Westminster, the Irish Parliament could change the Irish (
Constitution in a way which conflicted with the provisions of the Anglo-Irish j
treaty, and another Privy Council decision, British Coal Corporation v The I
King,53 in which it was held that the Canadian Parliament was competent \
to abolish guarantees contained in the Constitution. The Trethowan case54 !
was not considered because it had been decided on the strength of the Colonial '
Laws Validity Act of 1865, and because the effect of the Statute of Westy
minster was not in issue in that case.
Apart from the case law, there was authority to be found elsewhere for
the government’s proposed action. English authors A B Keith55 and K C
Wheare56 both held the view that the entrenched sections were no longer bind-
ing, and the South African authority H J May57 stated categorically: “The
[two-thirds majority] rule is legally as dead as the proverbial dodo.”
One of the earliest voices to go up in support of the opposite view was \
that of L I Coertze.58 The two most influential and authoritative opinions
supporting the view that the entrenched provisions remained binding, were,
however, those of D V Cowen59 and B Beinart60 repsectively.
Cowen’s approach was, in essence, that
the basic of this essay [is] that the provisions of section 152 have never involved,
and do not involve, any limitation whatsoever on the powers of the Union Parlia
ment to repeal the entrenched sections.
He also pointed out, for the first time, that the concepts of political and con
stitutional sovereignty were being confused; that a state could be politically
sovereign (not subject to any external power) even if its Parliament does not
enjoy constitutional sovereignty (that is, legislative as opposed to judicial /
supremacy) — and vice versa. The enactment of the Statute of Westminster
did not mean that the South African Parliament was no longer subject to
the law, and, where the entrenched sections were concerned, the law was that
where the individuals who constitute Parliament act in order to pass legisla
tion, the rules that determine how Parliament is to be constituted, must be
obeyed. He saw the South African Parliament as both a static and a dynam
ic concept: in its static form, it consisted of its three elements, King, House
52 1935 AC 484.
53 [1935] AC 500 (PC).
54 Supra.
55 The Dominions as Sovereign States (1938) at 177.
56 The Statute of Westminster and Dominion Status (1949) at 240.
57 The South African Constitution 2 ed (1949) at 33.
58 ‘Die Wetgewende Orgaan van die Unie van Suid-Afrika’ 1941 THRHR 47.
59 The ‘Entrenched Sections’ of The South Africa Act, (1949) a brochure which he
expanded and brought out in his well-known work Parliamentary Sovereignty and the
Entrenched Sections of the South Africa Act (1951).
60 ‘Sovereignty and the Law’ 1952 THRHR 101; ‘Parliament and the Courts’ 1954 SX
Law Review 134.
/"of Assembly and Senate; in its dynamic form it consisted of the same three
. elements composed as laid down by law, whether in joint sitting (unicamer-
ally) or in separate sitting (bicamerally). The crucial question, for Cowen,
was: “Has Parliament spoken?” Unless Parliament had acted in accordance
with the rules determining its composition and modus operandi it could not
\ be said to have “spoken”.61
x"" Beinart’s approach was based to a major extent on Hans Kelsen’s concept
of the grundnorm or fundamental rule to which all state authority can be
ultimately traced.62 Beinart’s basic premiss was that “the whole constitution,
including the sovereign and his powers, must in an established legal system
derive their existence and validity from the law”.63 The grundnorm is the
entire foundation of the legal order, and it is the grundnorm which not only
\ ensures the legal continuity of the order, but qualifies and defines the acts
of all organs of government, whether sovereign or not.64 He contended that
( the continual emphasis on the extraordinary powers of the sovereign result
ed in the negation of the law behind the sovereign. Although the sovereign
can make or unmake any law, it can never escape the rules constituting and
defining it. Sovereignty must be based on some basic norm or grundnorm-.
it cannot draw authority from its own existence. No country, thus argued
Beinart, claiming to be founded on a legal order, can work on any other
basis. “Thus, not only must Parliament be defined by law, but the sovereignty
of Parliament is itself a legal principle; in these two narrow spheres, the law
is superior to Parliament.”65 Beinart cited the English authority Sir Ivor Jen
nings to support his argument: “The law is that Parliament may make any
law in the manner and form provided by the law”66 and concluded that there
are two necessary differences:
one, that until altered by Parliament the law is supreme; second, that Parliament
must be constituted and act in accordance with the standing law before it can ex
ercise its supremacy.67
Where the sovereign consists of a single person, there may also be require
ments relating to manner and form, but it is really when sovereignty vests
in a body such as Parliament that the definition of the sovereign must
prescribe some rules for the manner and form in which the sovereign will
is to be expressed. In the formulation of his views Beinart quoted with ap
proval Cowen’s exposition of the static and dynamic concepts of Parliament.
Beinart also compared the rules relating to manner and form as they ap
plied to the British Parliament and the Union Parliament. As far as Britain
61 See the first edition of J P VerLoren van Themaat Staatsreg 1956 at 442-449 for a
detailed discussion of the case law and opinions leading up to the Harris cases, and
for criticism of the approaches of Cowen and Beinart. At 436-437 he criticizes Cowen’s
concept of several parliaments (‘verskeie parlemente’). It must be pointed out, however,
that Cowen never in fact suggested that there were two Parliaments (one static and
one dynamic) but merely that Parliament, in its dynamic form, could function in two
ways.
62 General Theory of Law and State (1945).
63 1952 THRHR 101.
64 At 104.
65 At 109.
66 The Law and the Constitution at 144.
67 1952 THRHR at 110.
is concerned, he saw the bicameral process as imperative, that is, as tran

scending the realms of internal procedure and therefore as part of the defi
nition of Parliament. The dominion legislatures, on the other hand, including"''
the South African Parliament, were “not the products of centuries of histor-
ical growth, but creatures of express legislation”.68 In consequence, the rules
governing the manner and form were spelt out more expressly, and “the laws
anterior to law-making in the Union ... are in substantial respects different /
from and more numerous than in the case of the British Parliament”.69
It was submitted by Beinart that the judgment of Stratford ACJin the' '
Ndlwana case contained three cardinal errors: the suggestion, first, that there
are no rules relating to the functioning of Parliament; secondly, that the rule /
requiring a bicameral sitting of Parliament was not an imperative rule of
law; and thirdly, that the courts had no jurisdiction to enquire whether the
laws anterior to the legislative enactment had been observed.70
Like Cowen, Beinart emphasized the distinction between the sovereign pow
er within a state and the sovereignty of the state itself.71 After analysing the
concept of sovereignty in English law, he concluded that Parliament may
legislate on any matter whatsoever, and that its legislation may not be declared
invalid by the courts, but that this logically implies that the Act in question
must be a valid one. Again like Cowen, Beinart was at pains to stress that
the rules governing the manner and form of the sovereign’s expression of
will do not derogate in any way from its sovereignty:
All rules, relating to manner and form or ‘procedure’ of passing an Act of Parlia
ment are rules flowing from the nature of the sovereignty, and not from his pow
ers; in other words, from the designation of the sovereign and the method in which
he must declare his will, and not from the definition of the content of sovereignty.
To put it more crisply, they define the sovereign, not sovereignty.72
In other words, Parliament may alter the rules governing manner and form;
but, until they have been altered, they must be observed. The problem he
still had to surmount, however, was the doctrine that no sovereign parlia
ment can be bound by a previous parliament. Once again he linked this rule
with fetters imposed in regard to subject matter or duration of previous legis
lation, and not to manner and form. Moreover, where there is a rule governing /
manner and form, the sovereign cannot, according to Beinart, amend this
rule by implication simply by passing an Act inconsistent with the prior rule: X.
this would confer on Parliament a ‘dispensing power’ rather similar to that N
claimed by the Stuart monarchs.73 Parliament can alter a rule relating to man- ■
ner and form only by prescribing another manner and form, acting in the
prescribed way. “The mere fact that Parliament ignores or disregards, the '
prescribed ‘manner and form’ and follows a different line, does not produce
conflicting provisions whereof the latter may prevail.”74
68 At 116.
69 At 118.
70 At 119.
71 At 123.
72 At 126.
73 At 132.
74 At 133. See the quotation from Latham’s article ‘What is an Act of Parliament?’ 1939
King’s Counsel at 152, in R F V Heuston Essays in Constitutional Law (1979) at 7-8:
“It is not impossible to ascertain the will of an individual without the aid of rules:
The government decided to follow the advice of its legal advisers, who
held the view that the Union Parliament was no longer bound by the en
trenched sections and went ahead with the removal of the coloured voters
from the common roll. The Separate Representation of Voters Act 46 of 1951
was enacted, and four coloured voters promptly applied to the Cape Provin
cial Division of the Supreme Court for a declaration that the Act was in
valid.75 The court felt bound to follow the judgment in Ndlwana v Hofmeyr
xand refused the application. The case was thereupon taken on appeal.
The Appellate Division unanimously upheld the application and overruled
the decision in Ndlwana v Hofmeyr. Although Cowen’s view of a dynamic
and a static concept of Parliament was not mentioned in the judgment, it
is clear that his approach was largely accepted by the court. Three aspects
enjoyed particular attention: (i) the effect of the Colonial Laws Validity Act
of 1865 on the South Africa Act; (ii) the effect of section 2(2) of the Statute
of Westminster on the legislative powers of the South African Parliament;
and (iii) the status of the entrenched sections of the South Africa Act and
the sovereignty of the South African Parliament after the passing of the Sta
tute of Westminster.
As far as the Colonial Laws Validity Act was concerned, the court held
that the South Africa Act had already empowered the Union Parliament to
enact laws which were repugnant to an Act of the British Parliament. Where
two Acts of the British Parliament {in casu, the Colonial Laws Validity Act
and the South Africa Act) contain contradictory provisions, the later Act
is regarded as having repealed the earlier Act to the extent of the repugnan-
/~cy or contradiction. In other words, the Colonial Laws Validity Act had been
£ amended pro tanto by the South Africa Act; as a result, the Colonial Laws
/ Validity Act would not apply to the legislation of the Union Parliament as
j long as the latter acted in accordance with the provisions of the South Afri-
■' ca Act. The repeal of the Colonial Laws Validity Act would therefore have
\_Jiad no effect in this regard.76
As to the effect of section 2(2) of the Statute of Westminster, the court
- admitted that it conferred on the Union Parliament a power it did not have
prior to the passing of the Statute, namely the power to enact legislation
repugnant to an existing Act of the British Parliament which was applicable
he may be presumed to mean what he says, and he cannot say more than one thing
at a time. But the extraction of a precise expression of will from a multiplicity of hu
man beings is, despite all the realists say, an artificial process and one which cannot
be accomplished without arbitrary rules. It is, therefore, an incomplete statement to
say that in a state such and such an assembly of human beings is sovereign. It can
only be sovereign when acting in a certain way prescribed by law. At least some rudimen
tary manner and form is demanded of it . . .”.
75 Harris v Minister of the Interior 1952 2 SA 428 (A), the so-called first Harris case.
76 At 461 of the report: “A repeal or alteration of the South Africa Act enacted by an
Act of the Union Parliament in accordance with the provisions of sec 152 would be
repugnant to the provisions so repealed or altered. Those provisions are, it is true,
contained in a British Act of Parliament, viz the South Africa Act, but that repugnancy
is specifically authorised by that very British Act which is a later Act than the Colonial
Laws Validity Act and must therefore in case of conflict override the earlier Act. Sec
2 of the Colonial Laws Validity Act could therefore have no application to a repeal
or amendment of the South Africa Act.”
to the Union (such as the South Africa Act). But this still did not answer
the question whether the Union Parliament enjoyed unlimited legislative ca
pacity after the passing of the Statute of Westminster. The court held that
the Union Parliament had had the power to amend the South Africa Act
since 1910, as mentioned above, but that there was no indication in the Sta
tute of Westminster that the Union Parliament should suddenly become com
petent to amend the South Africa Act in a manner not provided for in that
Act.77
z The most important aspect of the judgment related to the sovereignty of
the Union Parliament. It was contended that, after the passing of the Sta
tute of Westminster, the Union Parliament had become a sovereign parlia
ment cast in the mould of the British Parliament (which traditionally
functioned bicamerally) and was therefore, like the British Parliament, sub
ject to no procedural limitations. The court rejected this argument.78 The
fact that the South African Parliament was not a replica of the British Parlia
ment did not, according to the court, derogate from the sovereignty of the
Union Parliament in any way: the ‘legal sovereignty’ of the Union Parlia
ment was divided between Parliament sitting bicamerally and Parliament sit
ting unicamerally.79
As VerLoren van Themaat points out,80 the court concentrated on the
procedural issue in the first Harris case, and did not go so far as to hold
expressly that the court had the power to test legislation impinging on con
stitutional guarantees. Nor did the court state from where it derived its com
petence to test legislation, whether on purely procedural, or on more
substantive grounds. One principle emerged quite clearly from the judgment,
however, namely that the constitutionalism of legislation cannot be explained
simply by reference to the supremacy of Parliament. To say that Parliament
is supreme because it is supreme is a petitio principii. Parliament, being a
composite body, can act as a legislature only if it acts in the manner prescribed
by the law, whether the law is contained in a single statute or in a series of
principles established by a historical process.81
77 “If this contention [that the Statute of Westminster had conferred the power on the
Union Parliament to ignore the entrenched sections] were sound, it would follow that
the Statute of Westminster has, by mere implication, effected a radical alteration of
our Constitution” (per Centlivres CJ at 463F).
78 “It seems to me to be based on the fallacy that a Dominion Parliament must neces
sarily be a replica of the British Parliament despite the fact that all Dominion Parlia
ments have constitutions which define the manner in which they must function as
legislative bodies. There is nothing in the Statute of Westminster which in any way
suggests that a Dominion Parliament should be regarded as if it were in the same position
as the British Parliament” (per Centlivres CJ at 464A).
79 “Such a division of legislative powers is no derogation from the sovereignty of the
Union and the mere fact that the division was enacted in a British Statute which is
still in force in the Union cannot affect the question in issue (at 464E).
80 Staatsreg 3 ed at 313. The decision was sharply criticized in earlier editions of the work.
See the first edition at 450-461.
81 This was also stated by Van den Heever JA in Minister of the Interior v Harris 1952
4 SA 769 (A), the second Harris case, in his famous dictum at 791B-F: “[T]he fact
that our constitution is a creature of the British Parliament seems to me a fortuitous
circumstance which is quite irrelevant; so too is the fact that we have a written consti
tution. I would have been of the same opinion if it had been framed by a constituent
assembly of the people, made by Solon or extracted from the laws of Hammurabi.
It seems to me immaterial whether one adheres to the mandatory theory of legislative
The idea that the South Africa Act is the grundnorm of South African
X constitutional law, as suggested by Beinart, seems therefore to have been ac-
/ cepted, albeit indirectly, in the first Harris case,82 and certainly finds sup
sport in the second Harris case, Minister of the Interior v Harris.
After the Appellate Division had declared Act 46 of 1951 invalid, the
' government’s next step was to create a ‘High Court of Parliament’ to review
the judgment of the Appellate Division about the validity of Acts of Parlia
ment. In terms of the High Court of Parliament Act 35 of 1952, this court
was to consist of all members of the Senate and the House of Assembly;
only a minister could request the court to review a decision of the Appellate
Division; the application was referred to a judicial committee of ten mem
bers, and when the report and recommendations of the committee had been
considered by the court, it handed down its judgment.
The High Court of Parliament reversed the first Harris case, on the grounds
that the South Africa Act was not a constitution in the Continental sense,
but had to be interpreted against the background of English constitutional
law and the powers of the British Parliament, whose enactments could not
/ be tested by the courts and whose sovereignty could not be fettered by sta-
7 tute (at that stage, at any rate). The court also held that section 2(2) of the
Statute of Westminster, which provided that no enactment of a dominion
Parliament would be invalid by reason of its repugnancy to a British Act,
could not be reconciled with the restraint contained in section 152 and that
the latter must be deemed to have been amended, so that the entrenchment
and the special procedure had fallen away.
The validity of Act 35 of 1952 was thereupon challenged in the Cape
Provincial Division, where the applicants’ case was upheld. The minister then
took the matter on appeal. The Appellate Division refused the appeal, mainly
on two grounds: first, that section 152 guaranteed certain rights and that
these rights would be meaningless if the Supreme Court could not protect
them against infringement;83 secondly, that the High Court of Parliament
was no court at all, but simply Parliament in another guise.84
The attempt to equate the Union Parliament with its British counterpart
as regards the latter’s role as the High Court of Parliament, failed to take
into account a number of basic facts. Certainly the English Parliament was
power or any other. The fact remains that the South Africa Act is our constitution
and apart from that constitution there are no organs ofstate and no powers. . . Neither
the people nor any other constituent authority has conferred upon Parliament as or
dinarily constituted the power to alter the Cape franchise ... If nevertheless Parlia
ment as ordinarily constituted assumes the power to alter the Cape franchise, its acts
would have no more validity than if the City Council of Bloemfontein had presumed
to do so.” (Italics mine.) This last sentence is rather reminiscent of the comment made
by Dean Griswold of the Harvard Law School ‘The Coloured Vote Case in South Africa’
1952 Harvard Law Review 136: “Apart from the South Africa Act, the group of per
sons assembled as the Parliament of the Union has no more standing than a church
convention or a political rally.”
82 This view is not in accordance with that of H VerLoren van Themaat ‘Die Grund-
norm van die Unie-Staatsreg’ 1937 THRHR 57.
83 In this respect, therefore, the second Harris case went further than the first.
84 This aspect of the judgment will be dealt with in greater detail in ch 13.
a High Court of Parliament, particularly in early times.85 The judicial func

tion of the House of Commons was, however, terminated at a very early
stage of English parliamentary history. For some seven or eight centuries
now, the House of Lords has been the supreme judicial body; but when it
sits as a court, the procedure is purely judicial, not parliamentary, and only
the ‘Law Lords’ (all senior judges) form part of the judicial process.86
There has never been a similar process in South Africa, and when the South
African Parliament is referred to as a ‘High Court of Parliament’ this means
nothing more than that Parliament, as the supreme legislative authority within
the state, is competent to undo the effect of any decision of the highest court
by passing legislation in conflict with the decision of the court.87
Having been frustrated yet again in its determination to remove the
Coloureds from the common voters’ roll, the government initiated legislation
to enlarge the Senate to provide the necessary two-thirds majority, and adopt
ed further legislation to reconstitute the Appellate Division so that it would
consist of eleven members when hearing cases of a constitutional nature. The
reconstituted Appellate Division then heard an appeal against the decision
of the Cape Provincial Division refusing an application for an order declar
ing invalid both the Senate Act88 and Act 9 of 1956, which reinstated the
Separate Representation of Voters Act.89 The court held that the Senate Act
had been legally amended, since there was no special procedure prescribed
for its amendment. The fact that the Senate had been enlarged solely to ob
tain a two-thirds majority for the purpose of altering the Coloured franchise,
was irrelevant.90
VI THE DOCTRINE OF PARLIAMENTARY SOVEREIGNTY IN

SOUTH AFRICA FROM 1961 TO 1984
The judgments in the two Harris cases were given statutory endorsement in
the Republic of South Africa Constitution Act 32 of 1961. The entrench-
85 See, e g S A de Smith Constitutional and Administrative Law 4 ed (1981) at 79; Hood

Phillips op cit at 123.
86 See the discussion on separation of powers in ch 7 and on the judiciary in ch 13.
87 Thus the dictum in Tole v Director of Prisons 1914 TPD 20, where it was said: “As
there is a Bill of Indemnity now before Parliament, the acts that have been done by
the Government, and sentences which have been pronounced by courts-martial, are
matters which are sub judice before the highest court of this land, that is, our Parlia
ment”, is somewhat misleading.
88 53 of 1955.
89 Collins v Minister of the Interior 1957 1 SA 552 (A).
90 Centlivres CJ at 565D of the report: “If a legislature has plenary power to legislate
on a particular matter no question can arise as to the validity of any legislation on
that matter and such legislation is valid whatever the real purpose of that legislation
is. If Parliament sitting bicamerally has plenary power to reconstitute the Senate, i e
if its powers are not restricted by any other provisions in the South Africa Act then
evidence as to the purpose of the Senate Act is irrelevant.” A minority judgment was
handed down by Schreiner JA, who distinguished between motive, which is irrelevant,
and purpose, which is not. He contended that legislation which has an unauthorized
objective or purpose is invalid. He went further than the rest of his colleagues, who
kept strictly within the positivist framework, and tried to introduce a more radical
constitutionalism into South African law. The Collins case was discussed by J P Ver-
Loren van Themaat 1957 THRHR 225; G A Mulligan ‘The Senate Act Case’ 1957
SALJ1; H WR Wade ‘The Senate Act Case and the Entrenched Sections of the South
Africa Act’ 1957 SALJ 160.
ment of language rights was contained in section 108, which provided that
English and Afrikaans were the official languages of the Republic, and sec
tion 118, which provided that section 108, and section 118 itself, could be
repealed or amended only by a two-thirds majority vote in a joint sitting
of the Senate and the House of Assembly. The two sections were adopted,
like the rest of the Constitution, by an ordinary majority in an ordinary bi
cameral session. The then Prime Minister, Dr H F Verwoerd, took the view
that this procedure created a binding entrenchment, since the original en
trenchments had been written into the South Africa Act by an ordinary
majority of the British Parliament. As VerLoren van Themaat91 points out,
however, the Union legislature was a subordinate legislature in 1909 and the
British Parliament could at that stage legislate for the Union. No similar rela
tionship existed between the Union Parliament and the legislature created
in terms of the Constitution Act of 1961. It may therefore be argued that
sections 108 and 118 were technically invalid, since the Union Parliament
had no power to ‘speak’ in regard to the entrenched sections if it acted in
accordance with the normal procedure.92 If this is correct, the old sections
137 and 152 would have remained in existence. Another view is that sections
108 and 118 are nothing more than a restatement of the old sections 137 and
152. This is not quite accurate, since section 137 had defined the official lan
guages as English and Dutch (which included Afrikaans, by definition) while
section 108 referred only to English and Afrikaans; it does seem rather tech
nical and legalistic, however, to quibble about the validity of a provision
which is in essence nothing more than a restatement of its predecessor.
Section 59(1) restated the provision first introduced by the Status Act 69
of 1934, that the Republican Parliament was the sovereign legislative authority
in the Republic. Since this had unquestionably been so since the enactment
of the Statute of Westminster, this provision was altogether unnecessary:
had section 59(1) been repealed, the sovereign legislative authority would still
/ have vested in the Republican Parliament.
Section 59(2) was also a declaratory provision: it stated that no court of
law would be competent to test the validity of an Act of Parliament, except
for legislation purporting to amend or repeal sections 108 and 118 — pre
cisely what was held in the Harris cases. (It may be argued that the Harris
cases support the contention that all procedural provisions, and not only en
trenched provisions, may be tested; but this would be by implication only,
since the cases were concerned purely with entrenched provisions.)
In this regard an important question arose in regard to the binding force
of section 114, which was a ‘manner-and-form’ provision but not an en
trenched section. It provided that no provincial boundaries would be altered
or powers of a Provincial Council curtailed unless a petition requesting this
had been received from the province(s) concerned. Since section 59(2) stated
categorically that only the entrenched sections were protected by a possible
judicial sanction of invalidity, the matter was generally regarded as settled
91 Op cit at 216.
92 See VerLoren van Themaat op cit at 217; Ellison Kahn The New Constitution 1962
at 31; C W H Schmidt ‘Die Grondwet van die Republiek van Suid-Afrika’ 1962 THRHR
36 at 43.
by most authorities.93 The issue arose pertinently when some of the former
black homelands opted for full constitutional independence, thus necessitating
alterations to the boundaries of the provinces concerned. The changes were
not preceded by petitions from the Provincial Councils, and their validity
was challenged in a number of cases.94
When the Senate was abolished in 1980, no doubts were raised about the
validity of the abolition, possibly because the co-operation of the Senate it
self was not withheld at any stage. However, the possibility that the House
of Lords could be abolished, and the potential legality of such a step, has
received a certain amount of attention in Britain.95
The 1983 Constitution raises a number of issues relating to parliamentary
sovereignty. These will be dealt with in chapter 17 (The Legislature).
VII THE DOCTRINE OF SOVEREIGNTY IN ENGLISH LAW TODAY

Up to the time of Dicey, parliamentary sovereignty was regarded as a reason
ably simple issue: Parliament may pass any act on any topic and no other
body may challenge its validity. Jennings96 even went so far as to say:
In drafting a constitution nobody bothers about sovereignty; the problem is the
distribution of the various powers; and if the result is that nobody can claim
sovereignty, so much the better.
He also pointed out that there is no direct authority in English law for the
proposition that Acts of Parliament cannot be declared invalid by the courts,
93 See C W H Schmidt ‘Section 114 and the Sovereignty of Parliament’ 1962 SALJ 315;
VerLoren van Themaat op cit at 34-35, 48 (fn 67): 197 (fn 60); 321; 339.
94 Nasopie (Edms) Bpk v Minister van Justisie (2) 1979 4 SA 438 (NC); Cowbum v Nasopie
(Edms) Bpk 1980 2 SA 547 (NC); Mpangele v Botha (1) 1982 3 SA 633 (C); and
Mpangele v Botha (2) 1982 3 SA 638 (C). Reservations were expressed in the second
Nasopie case by Van den Heever J, who raised the argument that, while Parliament
left s 114 unamended, it would be bound by the rules created by itself, and that, not
withstanding the provisions of s 59(2) of the 1961 Constitution, the courts would have
been at liberty to declare legislation invalid where s 114 had been disregarded. For
example, if it were decided by an ordinary parliamentary majority that elections would
be abolished and the office of State President converted into a life-long and heredi
tary office with unlimited powers, the courts would have had jurisdiction to invali
date such an ‘act’. Although this was an obiter dictum and therefore largely of academic
interest, it did represent the same line of thought as that of Beinart — (see above at
142-143) as well as that of J D van der Vywer ‘The Section 114 Controversy and Govern
mental Anarchy’ 1980 SALJ 363. Also see F Venter’s discussion of the Nasopie case
in 1980 THRHR 448. In the latest cases on this point (the two Mpangele cases, which
related to the independence of Ciskei) the court held that s 114 was not entrenched
and that, therefore, the procedure prescribed was not binding on Parliament but de
pended for their observance on good faith, the electorate or public opinion (Mpan
gele (1) at 637F). Van den Heever J’s dictum from the Cowburn case was cited in
Mpangele (2), but the court simply held that Parliament could amend or repeal s 114
either expressly or by necessary implication — by not following the prescribed proce
dure. See Beinart 1952 THRHR 133, quoted above at 142, where he states his view
that a conflicting provision which amends an earlier provision by implication is not
created by the mere fact that Parliament has ignored the prescribed manner and form.
Admittedly, Beinart’s article was written before s 59 had been enacted, but there would
nevertheless appear to be some support for his approach even after the enactment (see
the views of Van der Vywer 1980 SALJ 363, for example).
95 See the discussion below at 153.
96 Op cit at 157.
since the judgments usually cited to support this proposition are obiter dicta.
However, no one would seriously have contended that the doctrine of
parliamentary sovereignty did not apply in English law, whether under that
name or under the name of parliamentary or legislative supremacy, the terms
used by authors such as Wade and Phillips’7 or Hood Phillips97 98 because of
the ambiguity inherent in the term sovereignty. As Jennings99 himself said:
Thus Parliament may remodel the British Constitution, prolong its own life, legis
late ex post facto, legalise illegalities, provide for individual cases, interfere with
contracts and authorise the seizure of property, give dictatorial powers to the
Government, dissolve the United Kingdom or the British Commonwealth, introduce
communism or socialism or individualism or fascism, entirely without legal
restriction.
He conceded that it is very difficult to establish whether there is indeed some
limit to the awesome powers of Parliament, since the British Parliament has
never passed legislation so extreme that the issue could become a real one:
It has not, for instance, sought to extinguish itself, or to expropriate all land without
compensation or to dissolve all trade unions, or to introduce slavery, or to forbid
all public meetings, except by the Government party, or to censor all newspapers
so as to prevent the case for the Opposition being heard. Probably it never will:
but a lawyer ought to be able to say what the answer of the courts would be, and
happily we cannot do so because there are no precedents.100
This passage illustrates very clearly the absence of checks and balances in
the Westminster system in general and in the doctrine of parliamentary
sovereignty in particular: the limitations imposed by concepts such as the
rule of law, constitutionality, public opinion, and so on, are vague and
nebulous rather than certain and defined. Even the acceptance that Parlia
ment is sovereign does not mean that Parliament is not subject to the law;101
to say that sovereignty is the highest authority in the state, the supreme legal
power, not the greatest might102103 does not finally dispose of the problem.
The scope and character of parliamentary sovereignty, so long taken for
granted in Britain, became a prominent issue largely for two reasons:
developments in some of the dominions and former British colonies, and
developments within Britain itself.
The enactment of the Statute of Westminster in 1931 was perhaps the
starting-point in a series of statutory acts acknowledging the constitutional
independence of former British colonies. Each of these entailed an abdica
tion of sovereignty: once the sovereignty of the dominion legislatures had
been recognized, it followed logically that the British Parliament’s sovereignty
had to give way, since indivisibility is a cardinal feature of parliamentary
sovereignty. There was a considerable body of opinion which held that the
British Parliament, being sovereign, could not bind itself not to repeal the
Statute of Westminster. For example, Lord Sankey said in British Coal Cor
poration v The King:'03 “Indeed the Imperial Parliament could, as a matter
97 Constitutional Law 9 ed (1977) at 55.

98 Op cit at 42.
99 Op cit at 147.
100 At 160.
102 McIlwain op cit at 27.
103 [1935] AC 500 (PC) at 520.
of abstract law, repeal or disregard section 4 of the Statute.” (He did add,
admittedly, . that is theory and has no relation to realities”.) A B Keith10!
called the Statute of Westminster ‘‘a limitation self-imposed and legally
revocable, but not a negation of sovereign power”. K C Wheare104 105 was of
the opinion that the British Parliament retained a certain residuary supremacy
over the dominion legislatures even after the enactment of the Statute. It
was generally conceded that a British law which disregarded the Statute of
Westminster would be enforceable only by a court in Britain,106 but, as far
as South Africa was concerned, the problem remained, since the Privy Council
remained the final court of appeal for the Union until 1950. Because the revo
cation of the Statute was seen as a possibility not so remote that it did not
need to be taken seriously, the Status of the Union Act107108 was enacted, so
that any future repeal of or amendment to the Statute of Westminster could
not affect the Union’s constitutional status. Although the Privy Council re
mained the final court of appeal, it was obliged to apply the law of the country
from which the appeal originated, and would therefore have had to give effect
to the Status Act.
Constitutional cases in the dominions exercised a good deal of influence
over English thinking on sovereignty. Among these cases were the Tretho-
wan case and the two Harris cases discussed above, and cases such as Bribery
Commissioner v Ranasinghe'0* and Liyanage v 7?109 both from Ceylon, as
it was then.
After the Second World War, the number of former British colonies gain
ing independence from Britain increased at a steady rate. Some even became
republics while retaining membership of the Commonwealth.110 It became
clear that the old view of parliamentary sovereignty, as stated by Lord Salmon
in Blackburn v A G111 (“As to Parliament, in the present state of law, it
can enact, amend and repeal any legislation it pleases”) no longer held water.
Lord Denning’s judgment in the same case reflected the modem situation
far more accurately:
We have all been brought up to believe that, in legal theory, one Parliament can
not bind another and that no Act is irreversible. But legal theory does not always
march alongside political reality. Take the Statute of Westminster, 1931, which
takes away the power of Parliament to legislate for the Dominions. Can anyone
imagine that Parliament could or would reverse that Statute? Take the Acts which
have granted independence to the Dominions and territories overseas. Can any
one imagine that Paliament could or would reverse these laws and take away their
independence? Most clearly not. Freedom once given cannot be taken away.112
Legal theory must give way to practical politics.
The Rhodesian issue, too, gave rise to a number of important practical ques
tions relating to sovereignty. There had been no legal abdication of Britain’s
104 Constitutional Law 7 ed by E W Ridges at 495.

105 The Statute of Westminster 1933.
106 Keith Constitutional Law of the British Dominions (1933) at 26.
107 69 of 1934.
108 1965 AC 172.
109 1967 1 AC 259.
Ill 1971 1 WLR 1037 at 1041.
112 A clear echo of Stratford ACJ’s famous dictum “freedom once conferred cannot
be revoked” — Ndlwana v Hofmeyr, supra at 237.
sovereignty over Rhodesia, but it was nevertheless a question of political real

ity that Britain could exercise no sovereignty over Rhodesia during the so-
called UDI period.113
The difficulty arising here centres around the issue of self-limitation, the
so-called ‘paradox of omnicompetence’: if Parliament is truly sovereign, it
must be able to pass any law, including a law which binds future parliaments,
but if it does so, the future parliament, being subject to the limitations im
posed by its predecessors, can no longer be described as sovereign. Jennings,114
for one, favours the more direct approach, the one which takes account of
the political realities mentioned above: “The ‘legal sovereign’ may impose
limitations upon itself, because its power to change the law includes the power
to change the law affecting itself.” Wade,115 on the other hand, takes the
narrower view, namely that Parliament is not competent to curtail the om
nipotence of future parliaments. It has been pointed out that a necessary
corollary of this view would be that the British Parliament is not competent
to pass legislation according European Community law precedence over Brit
ish statutes, to incorporate an entrenched bill of rights, or to reform or abolish
the House of Lords.116
S'The debate seems to have crystallized into an enquiry whether the
sovereignty of the British Parliament is ‘continuing’ or ‘self-embracing’. If
Parliament’s power is ‘continuing’, each Parliament has exactly the same
powers as its predecessors (Wade’s approach). If it is seen as ‘self-embracing’,
there are two possibilities: first, that Parliament may lawfully impose on a
~ successor procedural restrictions only; second, that it may impose both
procedural (manner and form) and substantive (area of power) restrictions
on its successors. If it is accepted that Parliament may validly impose any
restriction whatsoever on its successors, it may be said, according to Win
terton,117 an Australian writer, that the succeeding Parliament will no longer
be ‘omnipotent’ but remains ‘supreme’, since no other body is superior to
it. He points out that although such terminological questions ultimately be
come irrelevant, the question whether the courts may test subsequent legis-
\ lation remains.
Although there are still some authorities who adhere to the concept of a
continuing parliamentary sovereignty, the general trend is towards accep
tance of the ‘self-embracing’ concept. Admittedly the question of procedural
restriction has not really arisen in Britain itself, but that of abdication of
supremacy has. Even Dicey, who held that Parliament cannot bind its suc
cessors, acknowledged that it could validly abdicate or transfer sovereignty
over an entire area to another legislature (for example, that of a former colo
ny). When the Statute of Westminster was adopted in 1931, there was no
unanimity about its effect on the sovereignty of the British Parliament.118
113 See VerLoren van Themaat op cit 29 fn 2 and the authorities cited there.
114 Op cit at 153.
115Constitutional Fundamentals (1980).
116See G Winterton ‘Parliamentary Supremacy and the Judiciary’ 1981 LQR 265 at
270-271.
117 ‘The British Grundnorm: Parliamentary Supremacy Re-examined’ 1976 LQR 591 at
593. It will be shown in ch 17 below that the South African Parliament constituted
in terms of Act 110 of 1983, is ‘sovereign’ in the sense that it is ‘supreme’, but is
not omnipotent, because of the numerous procedural restrictions it is subject to.
118 See the discussion in ch 10 at 211-213.
Moreover, the restriction placed on the British Parliament by the Statute of

Westminster was not such that Parliament may be said to have expressly ab
dicated its sovereignty: that was to come later, with the passing of a large
number of ‘independence Acts’ for former colonies. As Winterton points
out,119 no-one seems to have realized the inconsistency inherent in accepting
that Parliament may bind itself by abdicating but not in other spheres.
The British courts have not expressed themselves as to which of the theo-" ,
retical formulations of sovereignty is the correct one; nor have they decided /
whether, in fact, they should exercise a testing power if such a power has C
been conferred by implication. Winterton120 suggests that the second for- /
mulation (that parliamentary sovereignty is self-embracing, but in the more
restricted sense) should be accepted, and that the formulation of sovereignty
as totally self-embracing can be accepted only if a new grundnorm is estab- z
lished.121 —
Those who adhere to a continuing concept of parliamentary sovereignty
also believe that the composition of the British Parliament is unalterable.
The question whether Parliament may lawfully abolish the House of Lords
and be reconstituted as the Queen and the House of Commons, was can- '
vassed by academics in the late 1970s. One of these was Mirfield,122 who came
to the conclusion that such an alteration in the composition of Parliament
would amount to a technical revolution,123 particularly if this was done via
the Parliament Act procedure.124 He admitted, though, that the Diceyan the
ory of sovereignty admits of the possibility that Parliament may be rede
fined without this necessarily resulting in a break in legal continuity, and
that Jennings’s approach, that is, that Parliament may change the law
affecting itself, also means that a redefinition is possible.
Winterton125 took the opposite view and concluded that there are no seri
ous obstacles in law to the abolition of the House of Lords, whether the bill
in question is passed by both the Lords and the Commons or by the Com
mons only (in terms of the Parliament Acts). He even went so far as to
acknowledge the possibility of de facto abolition of the House of Lords (for
example, by the Commons contriving to ensure that the Lords had no mem
bers or no business).
An even more recent development than the emancipation of former colonies
is the possibility of devolution of Scotland and Wales and the influence this
may have on the sovereignty of the British Parliament.126
The most radical change in the constitutional position of Great Britain,
however, has resulted from Britain’s membership of the European Econom
ic Community (the so-called Common Market) and the adoption of the Euro
pean Communities Act of 1972. In terms of this Act, community law (ie the
119 1976 LQR at 603.

120 1976 LQR at 612.
121 See the reference to Wade’s theory above at 152.
122 P Mirfield ‘Can the House of Lords Lawfully be Abolished?’ 1979 LQR 36.
123 At 45.
124 The Parliament Act makes provision for the House of Lords to be ‘circumvented’
in the event of a dispute. See ch 3 at 50-51.
125 ‘Is the House of Lords Immortal?’ 1979 LQR 386.
126 See V Bogdanor Devolution (1979).
Treaty of Rome itself and other treaties) enjoys preference to English legis
lation. It cannot be denied that this technically constitutes a partial surrender
of British parliamentary sovereignty, but, in general, English writers have
taken a conservative line.127 The difficulties raised by Britain’s adoption of
the European Communities Act are described by De Smith in the following
terms:
And so this unique Act is a fascinating exercise in equivocation, a wilful manifesta
tion of legislative schizophrenia. Or to vary the metaphor, the United Kingdom
Government has seated Parliament on two horses, one straining towards the preser
vation of parliamentary sovereignty, the other galloping in the general direction
of community law supremacy.128
The summary of the ‘new view’ of parliamentary sovereignty which is given
by the English writer, R F V Heuston,129 is as good as any. (It is interesting
to note that Heuston acknowledges his indebtedness to Beinart’s approach
which is discussed above.130) Heuston describes the confusion which existed
in constitutional thinking prior to 1930 and hails the ‘new doctrine’ which
had made its appearance by 1940. He concludes:
The concept of sovereignty, as a result of a cautious and subtle re-examination
from within its own four corners, as it were, has been shown at once more com
plex and less terrifying than had been thought. It appears that the lawyer can,
without reservation or evasion, subscribe not only to the unlimited power of Parlia
ment, but also to the possibility of legal restraints upon (at least) the mode of
user of that power. So Anglican a solution cannot fail to be agreeable to many.131
Heuston then summarizes the new view as follows:
Sovereignty is a legal concept, and the rules which identify the sovereign and
prescribe its composition and functions are logically prior to it.132
He concludes that the question to be asked is not “What can Parliament
do?” or “Can Parliament bind its successors?” but rather “How is Parlia
ment composed?” or “How does Parliament express its will?” In Cowen’s
words, “How does Parliament speak?” Because these rules are, in England,
so simple and because they have been accepted for so long, according to
Heuston, it is sometimes forgotten that they are rules of law.
Heuston concludes that this ‘new view’ of sovereignty which is in accord
with the South African situation as it obtained after the Harris cases, is equally
applicable to the British Parliament, and that the objections which could be
raised against its application are devoid of substance.133 But problems do
not arise only in regard to manner and form; some of the thorniest issues
are, today, related to area of power.
127 Cf D C M Yardley Introduction to British Constitutional Law 5 ed (1978) at 35; Hood

Phillips op cit at 79.
128 The New Commonwealth at 81.
129 Essays in Constitutional Law, 2 ed (1964).
130 1954 Butterworth’s SA Law Review 134.
131 Op cit at 6.
132 A view held not only by South African writers such as Cowen and Beinart, but also
by English writer Richard Latham, in The Law and the Commonwealth (1949) (a
work described by Heuston as “the most brilliant contribution to the literature of
English constitutional law since Dicey”): “When the purported sovereign is anyone
but a single actual person, the designation of him must include the statement of rules
for the ascertainment of his will, and these rules, since their observance is a condi
tion of the validity of his legislation, are Rules of Law logically prior to him” (at 523).
133 Op cit at 23-30.
/ ' The belief that a sovereign parliament cannot bind future parliaments, lest
I I it become less than sovereign, no longer enjoys the currency in Britain that
used to enjoy. The paradox of omnicompetence no longer presents a spectre
Ao the modern British constitutional lawyer, who tends to be somewhat more
- \pragmatic than his predecessors. As Bradley134 puts it:
\ The problem is less intractable than the comparative conundrum of whether an
\ omnipotent deity can bind itself, for even sovereign parliaments are human insti-
\tutions; and there is nothing inherently impossible in the idea of a supreme parlia
ment having power to make fresh constitutional arrangements for the future.
134 A W Bradley Constitutional and Administrative Law 9 ed (1977) at 67.

CHAPTER SEVEN
The Doctrine of Separation of

Powers
I INTRODUCTION
The doctrine of separation of powers is usually attributed to the French
philosopher, Montesquieu, but in fact his work, L’Esprit des Lois, which
appeared in 1748, was based largely on the ideas of English philosopher John
Locke, while the concept of a separation of powers may be traced as far back
as Aristotle.1 Locke2 originally classified the three functions of government
as: (i) legislation; (ii) executive action, including the enforcement of the law
by means of criminal sanctions; (iii) the conduct of foreign relations.
Montesquieu amended this classification by substituting the administra
tion of justice for the conduct of foreign relations, thus formulating the con
cept of separation of powers in the form in which we know it today:
(i) legislature; (ii) executive; (iii) judiciary. He is generally believed to have
pleaded for an absolute separation between these three basic functions of
government to prevent an over-concentration of power in the hands of one
man or group of men, and also to have used the British Constitution as an
example of a system which adhered to the doctrine.3 However, it has been
suggested that Montesquieu knew perfectly well that:
there is not, and never has been, a strict separation of powers in the English con
stitution in the sense that legislative, executive and judicial powers are assigned
respectively to different organs;4
and that it was merely with an eye to the constitutional position in France
that he postulated an ideal constitution and extolled the virtues of an indepen
dent judiciary.5
The exact meaning of ‘separation of powers’ is not something which is
immediately obvious. While it is generally acknowledged that there are three
main classes of government function (legislative, executive, judicial), and that
there are, or should be, three main organs of government in the state (the
legislature, the executive and the judiciary), and reasonably widely
acknowledged that the concentration of more than one class of function in
1 See S A de Smith Constitutional and Administrative Law 4 ed (1981) at 31.

2 Second Treatise of Civil Government (1690) ch 12.
3 J P VerLoren van Themaat Staatsreg 3 ed (1981) at 49-50.
5 VerLoren van Themaat op cit at 50, and M J C Vile Constitutionalism and the Sepa
ration of Powers (1967), probably the most comprehensive and up-to-date treatment
of the topic.
156
The Doctrine of Separation of Powers 157
any one person or organ of government is a threat to individual liberty,6 it

is by no means certain precisely how these government functions are to be
kept apart. Does the doctrine of separation of powers mean that the same
persons may not serve on more than one organ of government; or that none
of the three main organs of government may interfere with, or exercise con
trol over, any of the others; or that one government organ may not take over
or usurp the function of any of the others? In no two countries is the doc
trine applied in precisely the same way: nowhere is an absolute separation
of powers to be found,7 though all adhere to the principle that power should
be dispersed, and that checks and restraints should be imposed to avoid con
centrations of power in one person or group of persons, thus limiting the
possibility of an arbitrary exercise of power. In other words, the aims or
objectives are, in general, the same, but the techniques employed to achieve
these aims differ.
It has been pointed out that the phrase ‘separation of powers’ is
“notoriously susceptible to a variety of meanings”,8 but that the formulation
which Lord Diplock had in mind when he referred, in Hinds v The Queen,9
to “the basic concept of legislative, executive and judicial power”, was that
persons who constitutionally perform one kind of function should not per
form another — in other words, the third of the possible formulas mentioned
above. Taken in this limited sense, the doctrine may be said to be adhered
to both in England and in South Africa, even though the members of the
executive are members of the legislature, and even though the legislature does
exercise control over the executive.
If the objectives of efficiency and political freedom are to be served, com
plete separation is neither feasible nor effectual in preventing malpractices.
‘Checks and balances’ are more effective than total separation: though too
great a degree of direct control of one government organ over another would
constitute interference and would stand in the way of efficient government,
a measure of control and partial separation of powers is conducive to the
basic principle of limited government.10 The operation of checks and balances
remains possible if there is a partial overlapping, for example, as regards
persons constituting the legislature and the executive, but if there were total
overlapping there could be no control over possible excesses. The principle
whereby the executive is responsible to the legislature is compatible with the
idea of checks and balances even though it does not represent an absolute
6 De Smith op cit at 31.

7 If the idea of separation of powers were to be rigidly and absolutely applied, the criti
cism of Walter Bagehot The English Constitution (1933) and Hood Phillips ‘A Con
stitutional Myth: Separation of Powers’ 1977 LQR 11 would be justified, and one
would be constrained to agree with W A Robson Justice and Administrative Law (1928)
that the doctrine is “an antique and rickety chariot”.
8 Geoffrey Marshall Constitutional Theory ch 5, cited by Colin Munro ‘The Separation
of Powers: Not such a Myth’ 1981 Public Law at 21.
9 1977 AC 195 at 212.
10 For a discussion on the application of the doctrine of separation of powers in South
Africa today, see M Hough ‘Die Ontwikkeling en Kontemporere Betekenis van die
Leerstelling van Verdeling van Staatsgesag’ 1978 De Jure 346.
CHAPTER SEVEN
The Doctrine of Separation of

Powers
I INTRODUCTION
The doctrine of separation of powers is usually attributed to the French
philosopher, Montesquieu, but in fact his work, L’Esprit des Lois, which
appeared in 1748, was based largely on the ideas of English philosopher John
Locke, while the concept of a separation of powers may be traced as far back
as Aristotle.1 Locke2 originally classified the three functions of government
as: (i) legislation; (ii) executive action, including the enforcement of the law
by means of criminal sanctions; (iii) the conduct of foreign relations.
Montesquieu amended this classification by substituting the administra
tion of justice for the conduct of foreign relations, thus formulating the con
cept of separation of powers in the form in which we know it today:
(i) legislature; (ii) executive; (iii) judiciary. He is generally believed to have
pleaded for an absolute separation between these three basic functions of
government to prevent an over-concentration of power in the hands of one
man or group of men, and also to have used the British Constitution as an
example of a system which adhered to the doctrine.3 However, it has been
suggested that Montesquieu knew perfectly well that:
there is not, and never has been, a strict separation of powers in the English con
stitution in the sense that legislative, executive and judicial powers are assigned
respectively to different organs;45
and that it was merely with an eye to the constitutional position in France
that he postulated an ideal constitution and extolled the virtues of an indepen
dent judiciary.3
The exact meaning of ‘separation of powers’ is not something which is
immediately obvious. While it is generally acknowledged that there are three
main classes of government function (legislative, executive, judicial), and that
there are, or should be, three main organs of government in the state (the
legislature, the executive and the judiciary), and reasonably widely
acknowledged that the concentration of more than one class of function in
1 See S A de Smith Constitutional and Administrative Law 4 ed (1981) at 31.

2 Second Treatise of Civil Government (1690) ch 12.
3 J P VerLoren van Themaat Staatsreg 3 ed (1981) at 49-50.
5 VerLoren van Themaat op cit at 50, and M J C Vile Constitutionalism and the Sepa
ration of Powers (1967), probably the most comprehensive and up-to-date treatment
of the topic.
156
any one person or organ of government is a threat to individual liberty,6 it

is by no means certain precisely how these government functions are to be
kept apart. Does the doctrine of separation of powers mean that the same
persons may not serve on more than one organ of government; or that none
of the three main organs of government may interfere with, or exercise con
trol over, any of the others; or that one government organ may not take over
or usurp the function of any of the others? In no two countries is the doc
trine applied in precisely the same way: nowhere is an absolute separation
of powers to be found,7 though all adhere to the principle that power should
be dispersed, and that checks and restraints should be imposed to avoid con
centrations of power in one person or group of persons, thus limiting the
possibility of an arbitrary exercise of power. In other words, the aims or
objectives are, in general, the same, but the techniques employed to achieve
these aims differ.
It has been pointed out that the phrase ‘separation of powers’ is
“notoriously susceptible to a variety of meanings”,8 but that the formulation
which Lord Diplock had in mind when he referred, in Hinds v The Queen,9
to “the basic concept of legislative, executive and judicial power”, was that
persons who constitutionally perform one kind of function should not per
form another — in other words, the third of the possible formulas mentioned
above. Taken in this limited sense, the doctrine may be said to be adhered
to both in England and in South Africa, even though the members of the
executive are members of the legislature, and even though the legislature does
exercise control over the executive.
If the objectives of efficiency and political freedom are to be served, com
plete separation is neither feasible nor effectual in preventing malpractices.
‘Checks and balances’ are more effective than total separation: though too
great a degree of direct control of one government organ over another would
constitute interference and would stand in the way of efficient government,
a measure of control and partial separation of powers is conducive to the
basic principle of limited government.10 The operation of checks and balances
remains possible if there is a partial overlapping, for example, as regards
persons constituting the legislature and the executive, but if there were total
overlapping there could be no control over possible excesses. The principle
whereby the executive is responsible to the legislature is compatible with the
idea of checks and balances even though it does not represent an absolute
6 De Smith op cit at 31.

7 If the idea of separation of powers were to be rigidly and absolutely applied, the criti
cism of Walter Bagehot The English Constitution (1933) and Hood Phillips ‘A Con
stitutional Myth: Separation of Powers’ 1977 LQR 11 would be justified, and one
would be constrained to agree with W A Robson Justice and Administrative Law (1928)
that the doctrine is “an antique and rickety chariot”.
8 Geoffrey Marshall Constitutional Theory ch 5, cited by Colin Munro ‘The Separation
of Powers: Not such a Myth’ 1981 Public Law at 21.
9 1977 AC 195 at 212.
10 For a discussion on the application of the doctrine of separation of powers in South
Africa today, see M Hough ‘Die Ontwikkeling en Kontemporere Betekenis van die
Leerstelling van Verdeling van Staatsgesag’ 1978 De Jure 346.
separation of powers.11 It must be borne in mind, however, that the separa

tion of powers does not mean an equal balance of power: in South Africa,
as in Britain, Parliament is supreme, while in the United States of America
the judiciary has the final say.
II THE APPLICATION OF THE DOCTRINE OF SEPARATION OF

POWERS IN PRACTICE
1 Britain
Despite the denials of such eminent authorities as Hood Phillips, De Smith12
and others, the doctrine of separation of powers is applicable in Britain, but
in the limited, and not in the absolute, sense. There is a considerable degree
of overlapping as far as the persons constituting the government organs are
concerned: the members of the Cabinet are, without exception, members of
Parliament; the Law Lords sit in the House of Lords both as judges and
as legislators; the Lord Chancellor is a Cabinet Minister, head of the judiciary
and serves as a member of the House of Lords when it sits in its legislative
capacity. But the dividing line is rather clearer when it comes to function:
although Parliament may delegate legislative powers to the executive, the
executive has no inherent legislative authority and whatever legislation
emanates from the executive (regulations, proclamations and so on) consti
tutes subordinate legislation. Despite the fact that the House of Lords is the
highest court of the land, its judicial and its legislative function are entirely
separate: only the Law Lords (professional judges) participate in the judi
cial process, and these very Law Lords will, as a rule, not participate in con
troversial political debates in the House; full-time judges are not qualified
to sit in the House of Commons; and judges are, in general, insulated from
political pressure.13
The judiciary therefore occupies a more independent position than the legis
lature and the executive, which are interdependent to a greater extent. As
De Smith points out14 however, this insulation of the judiciary might have
been more complete under a written constitution. In fact, he favours a writ
ten constitution in this respect, and concedes that as far as the independence
of the judiciary and the entrenchment of judges’ security of tenure are con
cerned, “the doctrine of the separation of powers and the climate of thought
of which it is a part, has practical value”.15
11 Lord Durham, in investigating the constitutional position of Canada during the

nineteenth century, discovered that a system whereby the executive was not respon
sible to the legislative assembly did not operate successfully and gave rise to much
dissatisfaction on the part of the colonists; see the discussion of Lord Durham’s report
at 55-56.
12 It is of interest that statements such as the one that the English constitutional lawyer
“tends to regard the theory [of separation of powers] as ... an irrelevant distraction
for the English law student and his teachers” and that “no writer of repute would
claim that it is a central feature of the modern British constitution,” which appeared
in the 3rd edition of De Smith’s Constitutional and Administrative Law (1966), are
absent from the 4th edition (1981).
13 De Smith Constitutional and Administrative Law 4 ed at 32-33.
14 Ibid.
15 At 34.
2 South Africa
The position is similar, but not identical, to that in Britain. The members
of the executive are members of the legislature and are responsible to it, and
the legislature may delegate some of its legislative powers to the executive.
But there is not, nor was there ever (even before the abolition of the Senate
in 1980) a High Court of Parliament in the British sense. This was clearly
stated by the Appellate Division in Minister of the Interior v Harris,16 (the
second Harris case), in which Parliament’s attempt to create a High Court
of Parliament to act as final arbiter in constitutional matters was firmly
squashed. Van den Heever JA, in particular, emphasized that although our
Parliament is of British origin it is not an exact replica of the British Parlia
ment and the concept of a High Court of Parliament is no part of our law,
and, more specifically as regards the doctrine of separation of powers, that
“the authors of our constitution had in mind the doctrine of the trias poli
tico” ,17 All five judges stressed the non-judicial character of the proposed
creation and emphasized the absence of such minimum requirements as
professionally qualified judges, judicial procedure, impartial arbitration, and
so on.18 The independence of the judiciary is therefore seen as sacrosanct.
Judges are nevertheless appointed by the executive (admittedly political ap
pointments are rare, though the probability is not excluded) and may be dis
missed, on the ground of misconduct, by Parliament.
3 The United States of America

The Constitution of the United States of America allows for a greater degree
of separation than that of Britain or South Africa, but it still cannot be said
that separation is absolute, since the legislature, executive and judiciary ex
ercise control over one another in various ways. Legislative authority is vested
in Congress, which consists of a House of Representatives directly elected
by the electorate, and a Senate, in which each state has two members irrespec
tive of the size or population of the state. The executive consists of the Presi
dent, who is chosen by the people, albeit on an indirect basis, and his
ministers, who are appointed by him and who are not members of Congress.
It is possible that the President may not enjoy the support of the majority
in one or both of the houses. The President may veto legislation but may
not dissolve Congress; although his term of office does not coincide with
that of Congress and though he is not dependent on the support of a majori
ty in Congress, he may be impeached by Congress if he transgresses; treaties
entered into by the President with foreign powers must be ratified by the
Senate with a two-thirds majority, and appointments of federal judges also
require Senate approval. The courts may declare the legislation of Congress
invalid if it is unconstitutional, but judges may be impeached by Congress.
Ill CONTEMPORARY PROBLEMS IN THIS FIELD

A certain number of problems are bound to arise in the modern ‘adminis
trative’ state in regard to the distribution of power. Increased demands are
16 1952 4 SA 769 (A).

17 At 792A of the report.
18 This case will be dealt with in greater detail in the chapters dealing with the judiciary.
made on the executive because of the emergence of the so-called administra

tive state;19 this, in turn, places increased power in the hands of the execu
tive at the expense of the legislature and the judiciary, to the extent that it
is sometimes alleged that parliamentary government has given way to cabi
net government. That there is some truth in these assertions cannot be de
nied. There is no doubt that it is the executive which is responsible for
initiating all-important legislation, and that ministerial responsibility to Parlia
ment is a sanction to be reckoned with only where the governing party en
joys a somewhat tenuous lead over the opposition; where the government
has a clear numerical advantage, the threat of a motion of no confidence
is not the sword of Damocles it may appear to be in theory, particularly since,
in a parliamentary system, the same party is in control of both legislature
and executive. In a presidential system this need not be the case, but in prac
tice the position will often be similar to that obtaining in a parliamentary
system. In both systems the relative strength of the major parties is the most
important factor determining the measure of control which can be exercised:
the degree of separation between the organs of government cannot change
this.
Another major problem which has arisen as a result of the extended role
of the executive, relates to subordinate legislation which emanates from the
executive by virtue of powers delegated to it by the legislature. Hough20 sug
gests, however, that there are a number of ways in which control may be
exercised over subordinate legislation. Responsibility for such control falls
mainly on the legislature, since it may incorporate certain controls into the
enabling act, for example by establishing controlling committees or by re
quiring that consultation procedures be followed by the subordinate legisla
tor. A measure of control is contained in the fact that the courts may always
enquire into the validity of subordinate legislation (as opposed to parliamen
tary legislation).21 On the other hand, Parliament often ousts the jurisdic
tion of the courts in parliamentary legislation in terms of which administrative
powers are exercised. The all-important control function of the courts over
the executive is seriously impaired by such provisions.22 Hough further sug
gests that administrative tribunals may be used to good advantage since they
are less expensive, more expeditious, more flexible and informal; their mem
bers usually possess special expertise, and the bodies may take government
policy and public welfare into account. On the other hand, the concept of
an administrative ‘court’ raises problems in the application of the doctrine
of separation of powers, but it must be remembered that the rules of ad
ministrative law (such as the audi alteram partem rule for example) do pro
vide safeguards, and judicial review of administrative action provides the
best ultimate safeguard.
19 See P J van R Henning ‘Die Administratiewe Staat’ 1968 THRHR 1.

20 Op cit at 357-360.
21 An example of such a provision arose in the case of Government of the Republic of
South Africa v Government of KwaZulu 1983 1 SA 164 (A). The State President had
issued a proclamation without first consulting the KwaZulu government as required
by the National States Constitution Act 21 of 1971. The court held that the State Presi
dent had acted ultra vires and that the proclamation was therefore invalid.
22 For a detailed discussion of the principles involved, see M Wiechers Administrative
Law (1985) at 280-285.
In conclusion, although the doctrine of separation of powers cannot, by

itself, furnish adequate guarantees of protection against excess of power by
any organ of government, it certainly has an important contribution to make
if interpreted in the limited sense. Separation of powers and adherence to
the rule of law, plus various external controls (such as the media, public opin
ion, pressure groups, and opposition parties), serve to maintain the balance
amongst all the elements of the political system.
CHAPTER EIGHT
Representation
I INTRODUCTION
The principle that a large number of people may be represented in the process
of government by a single delegate is so firmly entrenched in the modern
world that one seldom even stops to think how the idea developed or what
it signifies. The concept of representative government is one which is com
mon to all legal systems: the difference lies in the particular system which
is adopted.
The idea of representative government is one which is common to all
democratic systems. The underlying principle is that the power or authority
of government should be exercised, not arbitrarily, but with the consent of
the people via their representatives.
Even though the Romans had a sophisticated form of government, the
idea of representative government did not arise there. All citizens were mem
bers of the comitia centuriata during the Republican period.1 The National
Assembly was regarded as representative of the entire population, but at no
stage did the concept of any one member’s representing or voting on behalf
of another arise. Thus the Roman occupation of Britain had no contribu
tion to make in this field.
It cannot be said with any degree of certainty exactly how and when the
concept of representation became established in England. As the English legal
historian, Lovell, points out,2 first causes usually remain unknown, nor is
it possible to fix the exact date on which a certain institution was founded.
Constitutional institutions grew so gradually that when their significance came
to be realised they had already been in existence for some time.
In Anglo-Saxon times the premier constitutional body was the witan or
yvitenagemot, whose function was to elect the King and to advise him.3
Although Taswell-Langmead4 admits that the witenagemot was an aristocratic
body and not representative in the modern sense, he adds that it was seen
as representing, in some way, the ‘national will’. Lovell,5 however, states
quite emphatically that it is a mistake to view the witenagemot as a parlia
ment in embryo, or as “the original source from which Parliament sprang.
1 See D A Basson Verteenwoordiging in die Staatsreg, unpublished LLD thesis UNISA

1981, at 33. Also see D A Basson 1982 THRHR 231 and 370 and 1984 SALJ 142,
for articles on this topic, which have been based on the above thesis, as well as D A Bas
son and H P Viljoen Studentehandboek vir die Suid-Afrikaanse Staatsreg (1986) at
118-147, and 192-235.
2 C R Lovell English Constitutional and Legal History (1962) at xi.
3 The concept of a hereditary kingship developed later.
4 English Constitutional History 11 ed by T F T Plucknett (1960) at 18.
5 Op cit at 15.
162
Representation 163
Unlike Parliament, the witan was not a representative body.” The witenange-
mot was, moreover, an advisory and not a legislative body.6 The concept
of legislation was still strange to the Anglo-Saxon mind, as the law was con
ceived of as immutable, and ‘law-making’ therefore an impossibility.
However, there were bodies to which all freemen7 belonged - the so-called
moots. The folkmoot was an assembly of all the people, and the shiremoot
an assembly of the inhabitants of a particular shire or county. In their origi
nal form these moots were, in fact, courts, but one of their main functions
was to consent to taxation in order to provide the King with the funds he
required.8 The principle of representation developed out of the principle of
consent: the representatives of the various shires and boroughs were autho
rized to consent to the payment of taxes on behalf of the communities.9
The reasons for the development of a system whereby one man represents
a number of others, were purely practical. The Anglo-Saxons were more or
less constantly at war with invading Germanic tribes, and it became both
dangerous and impractical for all the men of the tribe to attend meetings
of the moot or thing, leaving their homes and families unprotected. Thus,
in the words of Taswell-Langmead,1011 “the theoretical right of the individual
to attend the assembly in person was exchanged for the practical right of
electing representatives”. He points out that the idea of representation started,
“not with representation in the National Assembly, but with representation
to folkmoots and shiremoots”. The practice arose for each tribe to send a
representative (doomsmari) to the National Assembly.
The coming of the Normans in 1066 did not radically alter the state of
affairs since they, too, did not recognize the concept of legislation as such.
However, it was during the Norman period that the feudal system came into
its own, and here it was the feudal lord or baron who represented his vassals
vis-a-vis the King.
Parliament as a National Assembly is generally thought to date from Simon
de Montfort’s first parliament of 1265 and to have become recognisable as
the forerunner of the modern parliament by 1295.12 It was during this peri
od that Edward I acceded to the throne (in 1273) and the representation idea
may be said to have become firmly established at about this time.13 Before
this time (for example, during the time of King John) the King could sum
mon the knights to the National Assembly, but in giving his consent to the
payment of taxes, each of them acted on his own behalf.
Feudal law did not recognize the principle that one man could act on behalf
of another in the giving of this consent.14 This link between representation
and consent is a vital one.
6 See ch 3 above for a discussion of the development of constitutional institutions in

general.
7 Slavery had not yet been altogether eradicated.
8 The King possessed no basic power to legislate or to levy taxes (see ch 3 above).
9 Basson 1982 THRHR 231 at 240-241.
10 Op cit at 129.
11 According to Taswell-Langmead, the first recorded extension of the idea of represen
tation to the National Assembly itself took place at St Alban’s in 1213.
12 See ch 3 above.
13 See Basson Verteenwoordiging at 43.
14 Lovell op cit at 156; A B Keith Constitutional Law at 42.
Important developments took place during the fourteenth century:

Parliament crystallized, so to speak, into two bodies: the House of Lords,
of which all the nobility and higher clergy (lords spiritual and lords temporal)
were members, and the House of Commons, in which the ‘communities’ were
represented. It was during this period that the importance of the House of
Commons increased dramatically; it began to make demands of the King,
thus marking the beginning of the struggle between King and Parliament
which was to last several centuries.15 The function of the representatives also
changed during the fourteenth century: previously their task had been ‘to
hear and to do’, but after 1313 it was expressly recognized that the function
of parliamentary representatives was to give consent.16
The principle that representatives represented a specific geographic area
was also based on practical considerations. It would have been strange, given
the existence of the feudal system, if any other basis for representation had
been devised. Although there was no question of elections in the contem
porary sense, the representatives were certainly elected or chosen by the people
whom they were to represent. Even though the delegates were chosen to attend
to the interests and requirements of a certain geographically-defined group,
a suggestion that members of the Commons should serve, not only the mem
bers of their own constituencies, but the entire realm, was put forward as
early as 1571, during the reign of Elizabeth I.17
The system of regional representation was given a major boost by the
Reform Act of 1832, which eliminated the so-called ‘rotten boroughs’ and
‘pocket boroughs’ and gave the system an image more closely resembling
the one we know today.18
II THE THEORETICAL BASIS OF REPRESENTATION

Representative government means that the authority of the state is exercised
by the representatives of the people on their behalf, for their benefit and
with their consent.19 In other words, representative government is consonant
with the ideals of democracy (government of the people by the people for
the people), the rule of law, or the rechtsstaat concept, whichever formula
is preferred. The theoretical ideal of democratic government therefore finds
concrete expression in the institution of representative government.
If representative government is truly to fulfil the ideal stated above, it must
meet certain requirements. First of all, the principle of consent presupposes
15 The Commons demanded that all taxes be consented to by Parliament; that both Houses
consent to legislation; that the right of the House to enquire into maladministration
be recognized. See Taswell-Langmead op cit at 158 et seq, and ch 3 above.
16 J E A Joliffe The Constitutional History of Medieval England 2 ed (1947) at 351.
17 Taswell-Langmead op cit at 326. Also see Basson Verteenwoordiging, where he sug
gests that this is the first sign of the existence of the ‘free mandate’ theory of represen
tation. This will be touched on below.
18 See ch 3 above at 42 fn 100.
19 See, e g H C Mansfield Modern and Medieval Representation, quoted by Basson Ver
teenwoordiging at 211: “The principle that the government should represent its peo
ple is almost universally held today . . . The natural law of modern representative
government requires the consent of the governed . . .”.
Representation 165
that the representatives of the people have been chosen by the people them
selves and not merely appointed on their behalf. For this reason, indirect
representation such as that encountered at various stages in South Africa’s
constitutional history does not qualify as ‘representation’ in the strict sense
of the word.20
Secondly, the principles of freedom of association, assembly, speech and
organization should be adhered to, so that the people are able to make a
free and informed choice. These so-called ‘political’ rights or freedoms ad
mittedly do not qualify as ‘rights’ in the private-law sense,21 but are vitally
important constitutional rights.22
Thirdly, since the government should ideally represent all the people,
universal adult suffrage would appear to be a precondition for true represen
tative government.
Fourthly, the elections held to determine who the representatives of the
people are to be, must be ‘free and fair’. This implies not only that they must
be ‘general’ in the sense that all qualified persons (ideally, all adult citizens
not subject to disqualification by reason of their being insane, unrehabilitated
insolvents, convicted criminals and so on23 may participate, but also that elec
tions must be held at regular intervals; that the election procedure must be
orderly; that voting must be by secret ballot (to eliminate the possibility of
duress or undue influence); and that corruption be eradicated.
If these requirements are met, the composition of the members of the legis
lative branch of the governmment, which is the branch vested with the ulti
mate power to decide by which laws the state is to be governed, will have
been determined by the people themselves. Such a government will bear the
stamp of legitimacy in the sense in which the term is used in constitutional law.
Ill REPRESENTATION IN SOUTH AFRICA

It was a more or less foregone conclusion that the Union of South Africa
would adopt a system of regional representation with single-member consti
tuencies. Not only did such a system obtain in Britain, and therefore in the
British colonies of fairly long standing (the Cape Colony and Natal); both
the South African Republic24 and the Republic of the Orange Free State25
had similar systems. However, the Transvaal delegation to the Union talks,
(
under Smuts, proposed that a system of proportional representation be in
troduced.26 The proposal was rejected and a single-member system of regional
representation was instituted in order to favour the rural voter.
20 This, too, is the reason behind the criticism of nominated members of Parliament (see
chs 12 and 17).
21 See e g I Rautenbach ‘Subjektiewe Regte en Menseregte’ 1971 THRHR 99, Die Reg
op Bewegingsvryheid unpublished LLD thesis UNISA (1974); J Neethling ‘Enkele
Gedagtes oor die Juridiese Aard en Inhoud van Menseregte en Fundamentele Vry-
hede’ 1971 THRHR 240.
22 The Prohibition of Political Interference Act 51 of 1968, which was repealed in 1985,
is a striking example of a legislative measure which encroached upon the principle of
freedom of association and thereby on the basis of representative government.
23 See ch 17 below.
24 Basson Verteenwoordiging at 275.
25 Ibid at 268.
26 Ibid at 285.
The system of regional representation as it applied in Britain was introduced

in South Africa as far as white voters were concerned. Non-Whites were never
at any stage treated on the same basis as Whites, although certain non-Whites
in the Cape Province possessed the franchise. Non-Whites enjoyed indirect
representation at various stages, both in the House of Assembly and in the
Senate.27 Eventually all indirect representation was abolished with the creation
of separate political institutions for each population group.28
IV TERRITORIAL REPRESENTATION AND THE PARTY SYSTEM

Although the principle of territorial representation is one of the oldest to
become established in English constitutional law, and the party system is of
more recent origin,29 both figures may be said to be cardinal features of the
^Westminster system. In fact, the emergence of the party system may perhaps
pe said to be the single most important development in contemporary Western
/systems of government.
Until the early twentieth century, it could in truth be said that an elected
member of Parliament primarily represented the voters in his constituency
/and only secondarily the political party to which he belonged. He would
almost cetainly have lived in his constituency, have been a familiar figure
in local circles and have taken a personal interest in the affairs of the dis
trict. In any event, certain well-known political figures are bound to poll many
more votes in their ‘home’ constituencies than they would in another consti
tuency, even if they were to stand for the same party. However, the general
pattern which has emerged very strongly since the 1930s is that voters simply
cast their vote in favour of whoever is standing for a certain party, often
in complete ignorance of all but the candidate’s party affiliation. An indepen
dent candidate stands virtually no chance of being elected; he may have the
interests of a particular constituency at heart, but his sphere of influence
is far too limited for him to achieve anything outside the party structure.
One of the consequences of the development of the party system is that
the principle of freedom of association has come strongly to the fore. Until
the repeal of the Prohibition of Political Interference Act, no member of
one race group in South Africa was permitted to join a political party com
posed of members of another group. Political discussion across the colour
line was possible, but not full political association. The Act was repealed
in 1985, but freedom of association is still impeded by the fact that the three
legislative chambers are racially segregated. For example, if the coloured
community wished to elect a white representative to the coloured Chamber,
he would be disqualified by reason of his belonging to the White population
group. Ideally, every voter should be free to vote for the party of his choice.
A further issue which arises in this regard is whether a member of Parlia
ment who crosses the floor to another party is obliged to resign his seat and
27 See chs 3 and 12 for a discussion of the development of the franchise in South Africa.
28 The Coloured Persons Representative Council, the South African Indian Council and
the various legislative assemblies of the Black ‘homelands’, later known as National
States. See chs 3 and 21, and Basson Verteenwoordiging at 289-308.
29 See ch 3 above.
Representation 167
to fight a by-election under his new colours. At first glance the answer seems
simple: having gained election on a ‘party ticket’, he is the representative
of the party and must resign if he changes allegiance — to do otherwise would
mean that he is staying on under false pretences. In practice, however, this
does not invariably happen. It may certainly be argued that such a member
has a moral duty to his constituents, but it has never been suggested that
he is under a legal obligation to resign. There are two possible reasons for this.
The first is that the principle of territorial representation takes precedence
over the principle of party representation: whatever the position may be in
practical terms, in law the person who is returned to Parliament represents
a particular geographical district and not a particular political party. He him
self is the one who was elected by the voters, not his party.
The second consideration is of a more theoretical nature and is based on
the assumption that South Africa adheres to the ‘free mandate’ theory of
representation and not the ‘imperative mandate’ theory.30 In brief, the free
mandate theory means that the representative (member of Parliament) is not
bound by the mandate given him by the electorate, but that he must act in
accordance with the dictates of his own conscience and in the interests of
the country as a whole.31 The imperative mandate theory, on the other hand,
holds that the representative is bound by the mandate given him by his prin
cipal (the electorate). The latter theory enjoyed currency during the Middle
Ages, but contemporary constitutional systems, by and large, adhere to the
free mandate theory.32 It must be conceded that there is a paradox inherent
in the idea of a free mandate: on the one hand, the representative possesses
a free mandate to exercise his powers in the interests of the state as a whole;
on the other, the very essence of representative government is such that he
must act on behalf of the group of persons who elected him. It is not incon
ceivable that these duties may conflict in certain circumstances. The party
system as we know it today plays a significant part in resolving this paradox
in the majority of cases, as party discipline and party policy deprive the in
dividual representative of much of his initiative and individualism: he acts
on behalf of his constituency and the country as a whole, but within the party
framework. Should he decide to leave his party and join another, this frame
work no longer provides the answer.
In cases where there is a conflict between the representative’s allegiance
to his party and his duty to the country in general (that is, where he no longer
feels he can remain a member of his party), the general rule, in both Britain33
30 See Basson Verteenwoordiging at 105-106, 187-189 and 319 et seq.

31 See above at 164 esp fn 17.
32 Basson Verteenwoordiging at 181 et seq.
33 See Osborne v Amalgamated Society of Railway Servants (1909) 1 Ch 163; also
Chikerema v The UANC 1979 4 SA 258 (ZRA), a decision of the appeal court of
Zimbabwe-Rhodesia, in which the judge even went so far as to say that an agreement
between the representative and the party that the former would abide by party policy
did not affect the member’s tenure and was unenforceable: “A contract so widely word
ed as to bring about the obligation of a member to vacate his seat in Parliament if
his conscience compelled him to resign from the party ... is clearly contrary to pub
lic policy and unenforceable” (at 273A of the report).
and South Africa,34 is that the member is free to act in accordance with the
dictates of his conscience and need not resign. There have been many such
cases in South African political history, and although the apostates are usually
called upon to resign and challenged to contest a by-election, it has never
been suggested that they have a legal duty to do so. It has happened on several
occasions that the member concerned has, in fact, resigned and tried to re
enter Parliament under the aegis of his new party, and it may well be asked
if a convention is not perhaps in the process of evolving.
V OTHER SYSTEMS OF REPRESENTATION

It has been mentioned above that a system of proportional representation
was mooted at the time of Union.35 It cannot be denied that the system of
territorial representation has both advantages and disadvantages. The most
important disadvantage of the system of single-member constituencies in
which the winner of an election is the person who is ‘first past the post’ (in
other words, the one who has balloted more votes than the next best candi
date, but not necessarily more than all his opponents put together) is that
lit incorrectly reflects the relative strength of the parties, favouring the stronger
/and tending to eliminate the weaker ones.36 The way in which the consti
tuencies are delimited can exacerbate this imbalance, so that a government
may have a substantial majority in Parliament even though it does not, in
terms of actual votes cast, enjoy as great a degree of support among the people
as is reflected by its parliamentary position.
The main advantages of the ‘first-past-the-post’ system are its simplicity
and the fact that it is conducive to strong, stable government. Alternatives
to the relative majority system, such as a system requiring a candidate to
poll an absolute majority of votes cast (the so-called ‘second ballot’ system),37
34 Du Plessis NO v SkrywerNO 1980 2 SA 52 (SWA) and the appeal which followed (1980
3 SA 863 (A)), in which Rumpff CJ held unequivocally (at 873): “Die lede van die
Wetgewende Vergadering kan m i dus nie as verteenwoordigers van die nominerende
tjartye of verenigings beskou word nie maar alleen as verteenwoordigers van die mense
Ivan die gebied.” (The members of the National Assembly must not, in my view, be
I seen as representatives of the nominating parties or associations, but purely as represen-
Utatives of the people of that region.)
36 See D A Basson ‘Kiesstelsels van Proporsionele Verteenwoordiging’ 1985 THRHR 44,
and W H Olivier ‘Party- en Kiesstelsels’ in Politieke Alternatiewe vir Suider-Afrika:
Grondslae en Perspektiewe (ed Van Vuuren and Kriek) (1982) at 335. The latter illus
trates, by way of statistics, how inaccurate a picture of political reality is presented
by the cunent system both in Britain and in South Africa. For example, in the general
election held in Britain in 1974, the Conservative Party polled over 200,000 votes more
than the Labour Party, but won fewer seats; and in the 1981 election in South Africa,
the National Party polled 57% of the votes, but won 131 (almost 80%) of the 165
seats; the Herstigte Nasionale Party could not win a single seat despite polling 14%
of the votes, while the New Republic Party won eight seats with 7,8% of the votes
cast. See also the trenchant criticism levelled at the system of territorial representa
tion by H W R Wade Constitutional Fundamentals (1980) ch 2 (‘Representation: Elec
toral Injustices’), at 5, where he says: “The first and foremost object of reforming
zeal ought in my opinion to be the system of Parliamentary representation, or rather
misrepresentation.”
37 The State President is elected on this system. When it comes to the election of the
head of state, it is understandable that a relative majority is undesirable.
Representation 169
have the disadvantage that they are more complicated and time-consuming
and do not necessarily produce a more accurate reflection of voter opinion.
A block system, in which the voter votes for all his party’s candidates en
bloc, would give the strongest party an even more disproportionate ad-
vanatage. A system which eliminates some of the drawbacks of the absolute
majority or ‘second ballot’ system, is one whereby the voter is given two
or more votes, enabling him to ‘grade’ the candidates in order of preference.38
If no candidate obtains an absolute majority, the alternative votes come into
play. Even this system is fairly complicated, however, and it does not neces
sarily ensure that the voters’ first choice will be elected.
The only way in which a fair reflection of voter opinion can be guaran
teed is by a system of proportional representation. One of the problems which
are eliminated is the possibility that the delimitation of electoral districts could
contribute to a false image of political opinion. The customary variation in
the numerical size of constituencies, so that rural constituencies usually have
far fewer voters than urban constituencies, thereby rendering the urban vote
of less value, is unfair to the urban voter. But numerically equal constituen
cies would mean unrealistically large and far-flung rural constituencies. Such
constituencies are impossible to manage as a unit, and as a result there may
be little cohesion or feeling of ‘belonging’ among the constituents. However,
it may be argued that this is still the lesser of two evils.
Many types of proportional systems have been devised, and a variety of
these are operative in contemporary constitutional systems.39 The simplest of
these is perhaps the list system: this implies a multi-constituency unit (which
may comprise the entire country or the individual provinces, for example).
The voters then simply vote for a particular party, and the seats are allocat
ed to the parties in proportion to the votes polled by them.
Other proportional systems are the so-called D’Hondt system, the Lague
system, the single transferable vote system, and so on, all of which are based
on complicated formulas. The advantage of the single-transferable-vote sys
tem over the simpler list system, for example, lies in the fact that it is primarily
candidate-orientated rather than party-orientated. A complicated version of
this system is used in Ireland, while the Lague system, which is based on
a formula which tends to favour moderately strong parties at the expense
of both the very strong and the very weak parties, is used in some of the
Scandinavian countries. The system used in most European countries,40
however, is the D’Hondt system. It is based on a quota which is aimed at
ensuring that seats are allocated to the party with the largest average num
ber of votes per vacancy, and that, once all the seats have been allocated,
the average number of votes which is required to win one seat, will be the
same for every party.
While the various systems of proportional representation lack the dis
advantages of the majority vote system, they, too, have certain drawbacks.
38 See Olivier op cit at 344 and K C Wheare Legislatures (1968) at 34 et seq.

39 For a detailed explanation of the variations on the theme of proportional representa
tion, see Olivier op cit at 344-351, and Basson 1985 THRHR at 50-57.
40 E g Italy, France, Belgium, the Federal Republic of Germany, Luxembourg, as well
as Israel and Turkey.
l~0 Introduction to South African Constitutional Law
They tend to be impersonal, and party- rather than candidate-orientated;

they are complicated and difficult to understand; they often fail to produce
a clear and workable majority; and by-elections, which are regarded as such
an important indicator of political trends inlhe Westminster system, raise
well-nigh insurmountable difficulties. By contrast, the ‘first-past-the-post’
system is simple, and as Wheare points out, it does produce an answer, even
though it is . crude and misleading”.
The ultimate question is whether the best system is one that reflects public
opinion accurately or one that is conducive to strong and stable government.
In South Africa, as elswhere, the choice of electoral system is influenced by
both tradition and prejudice. It therefore seems unlikely that the simple
majority vote system will be supplanted by one of the range of proportional
representation systems in the near future. It is, nevertheless, a possibility
which should not be discounted altogether, since a proportional system would
appear to be more in keeping with the consociational ideal which is seen as
the best potential solution to South Africa’s constitutional problems. Basson41
argues strenuously that a system of proportional representation would suit
the South African needs very well, and points out that there are some (ad
mittedly few) precedents for adopting such a system here.42 He suggests the
introduction of the list system, but with certain refinements, so that the voter
may be given a wider freedom of choice. He emphasizes that the system
chosen must be readily understandable to illiterate or semi-literate voters,
but is not prepared to venture a suggestion as to precisely which system would
fit the bill.
One writer who has put forward concrete proposals for a new electoral
system for South Africa, is David Chapman.43 He suggests a special modifi
cation of the Governing-List System (a variant on proportional representa
tion in which one of the proportionally represented parties is elected as the
government party). His proposal is for the Multi-Roll Governing-List Sys
tem (MRGLS): persons of different race are registered on different electoral
rolls, but the dice are loaded in favour of parties with across-the-board sup
port among all races. Until such a system has been examined more closely
both in theory and in practice, it is difficult to assess its chances of success.
41 1985 THRHR at 59 et seq.

42 One version of the list system is currently in use in South West Africa/Namibia.
43 ‘An Electoral System for South Africa’ 1986 SALJ 421.
CHAPTER NINE
Prerogatives, Conventions and

the Party System
A Prerogatives
1 INTRODUCTION
These three topics are dealt with in the same chapter because of the links
between prerogatives and conventions on the one hand and between con
ventions and the party system on the other.
II PREROGATIVES IN ENGLISH LAW

The royal prerogative was defined by Blackstone as pertaining to those rights
and capacities of the Crown which are based on the “special pre-eminence
which the King hath, over and above all other persons, and out of the ordi
nary course of the common law, in right of his legal dignity”.1 In truth this
tells us very little about the legal nature of the prerogative. The term was
originally used to denote those powers which the King possessed by virtue
of his position as liege-lord, and is therefore a consequence of the allegiance
relationship.2
In its simplest form, a prerogative is a discretionary power exercised at
will. Dicey3 defines prerogatives as “the residue of discretionary or arbitrary
authority, which at any time is legally left in the hands of the Crown”. (It
has already been explained4 that Dicey tended to confuse discretionary pow
ers with arbitrary powers. Hood Phillips5 also points out that Dicey’s use
of the word ‘arbitrary’ is misleading.) By the seventeenth century, the exer
cise of the royal prerogatives had become a burning issue in the struggle be
tween King and Parliament. The problem was solved in two stages. The first
was the Bill of Rights of 1689, which followed on the Glorious Revolution
of 1688, and which declared certain specific abuses of the prerogative ille
gal. The second stage came with the establishment of a constitutional monar
chy as we understand the term today.6
In the modern sense, ‘prerogatives’ may be defined as those common-law
powers which the British monarch possesses by virtue of the kingship. Vir
tually all these powers are exercised by the Cabinet. (One of the most impor-
1 Commentaries I at 232.
2 See ch 3 above at 27-28, 38.
3 An Introduction to the Study of the Law of the Constitution 10 ed (1975) at 424.
4 See ch 5 at 85.
6 See Wade and Phillips Constitutional Law 8 ed (1970) at 183-184; also ch 3 above at 43.
171
tant exceptions relates to the choice of a Prime Minister: since no government

is in existence at the time, the advice of the government cannot be obtained.)78
Ill THE MOST IMPORTANT PREROGATIVES

1 During the early stages of English history the administration of justice was
a royal prerogative exercised by the King by virtue of his position as feudal
lord or liege-lord. In the course of time, however, this judicial prerogative
passed to permanent courts. It was during the reign of Edward I (1272-1307)
that the division into three courts of justice took plącę: the ‘Common Bench’
or ‘Court of Common Pleas’, the ‘King’s Bench’ and the ‘King in Council’
or ‘King in Parliament’.
Although the King no longer exercised the judicial prerogative personal
ly, there were certain monarchs who arrogated to/themselves the right to in
terfere with the administration of justice via their so-called ‘dispensing power’.
In Godden v Hales
* the court, pandering to the whims of James II, held:
“The King may dispense with a statute, thereby causing the mischief which
the statute aimed at preventing, even though the statute be one passed in
the public interest.” As was to be expected, this exacerbated the poor rela
tionship already existing between the King and the judiciary, and was one^
of the factors leading to the deposition of Jape<II in L688-.9 The indepen-'
dence of the judiciary was finally guaranteĆćTby the Act of Settlement (1701)
in terms of which the King renounced all claims to the judicial prerogative.
2 The conduct of foreign relations was in the hands of the King. This meant
that he was empowered to appoint diplomatic representatives (ambassadors,
attaches, consuls, charges d’affaires and so on) to foreign countries and to
receive the representatives of foreign countries, who, by international cus
tom, must present their credentials to the head of state before they can be
regarded as accredited representatives. The right to declare war and make
peace was also a royal prerogative.10 This prerogative is not exercised purely
on the advice of the executive, but with the consent of Parliament — a per
fectly logical arrangement if one bears in mind that it is Parliament which
has to vote the funds for any war which is to be waged. The right to con
clude treaties at international law is yet another aspect of the prerogative
relating to foreign relations, as is the right to decide which foreigners may
be admitted into the country.
These executive acts which relate to the conduct of foreign relations are
known by the generic term ‘acts of state’. Neither English nor South Afri
can law is altogether clear on precisely what constitutes an act of state. Refer
ences to acts of state in South African case law are scarce and somewhat
haphazard. In general, acts of state are seen as non-justiciable acts of a high
executive nature11 but in Patriotic Front-ZAPU v Minister of Justice, Le-

8 (1686) 11 St Tr 1166.
9 See ch 3 at 40-41.
10 When the liegemen swore the oath of allegiance to their liege lord, they renounced
their right to exercise self-help, and thus to make war on foreigners.
11 See Beckmann v Minister of the Interior 1962 2 SA 223 (E) at 240; Bam v Minister
of Justice 1976 4 SA 643 (Tk); Inter-Science Research and Development Services (Pty)
Ltd v Republica Popular de Mocambique 1980 2 SA 111 (T); also H Booysen Volke-
reg - ’n Inleiding (1980) at 255 et seq and ch 11 below at 229.
Prerogatives, Conventions and the Party System 173
gal and Parliamentary Affairs'2 the court distinguished between international

acts of state over which the court has no control, and internal acts of state,
which affect the rights and interests of individuals and which are justiciable.
3 Like the power to declare war and make peace, the King’s position as
commander-in-chief of the armed forces originated in the allegiance rela
tionship between the King as liege-lord and his subjects as liegemen. It sym
bolized the King’s duty to protect his subjects ‘by the sword’ in time of war.
By the same token, he could declare and terminate a state of martial law.
4 The King was entitled to the advice of his liegemen and it was therefore
his prerogative to convene bodies such as the Privy Council and curia regis,
and to appoint persons to serve on such bodies. The right to appoint com
missions of enquiry is part and parcel of this prerogative. Because the King
was entitled to the advice of his subjects, he could also appoint and dismiss
state officials.
5 As head of state the King could confer honorary titles.
6 The King’s prerogative of mercy, that is, the power to pardon offenders,
commute sentences and reduce penalties, appears at first glance to be a rem
nant of the judicial prerogative. In fact, however, this is a power of an ex
ecutive rather than a judicial nature.
7 Not only did the King have the right to permit aliens to enter the country:
it was his prerogative to grant or refuse travel documents (passports, in
modern parlance) to subjects.
8 All finances vested in the King, except that he had no power to impose
taxes. On the other hand, the English kings did have the right to own ships,
and this prerogative was often used (particularly by the Stuarts) as a pretext
for demanding money from Parliament.12 13
9 The King’s power to convene and prorogue Parliament was regarded as
a prerogative power even though it was not, strictly speaking, a power of
an executive nature. The same applied to the prerogative to appoint a Prime
Minister.
10 Finally, the King was deemed to be the owner of all land — yet another
throwback to the feudal system; hence the term ‘Crown land’ rather than
‘state land’.
Apart from the power to dispense justice, which disappeared with the Act
of Settlement, the royal prerogative did not include the power to make laws
or to levy taxes.
Initially the King exercised his prerogative powers personally. The prac
tice that prerogative powers of an executive nature were exercised on the ad
vice of the King’s ministers became established by convention.14 Conventions
will be discussed in detail in the next section of this chapter; suffice it to
say, for the moment, that a convention is a constitutional custom of a bind
ing nature.
12 1986 1 SA 532 (ZSC).

13 See the Shipmoney case 1637 3 St Tr 825 and the discussion in ch 3 above.
14 There were certain prerogatives which could not be exercised on the advice of the Cabinet
but these constituted exceptions to the general rule.
The courts have no power of control over the way in which prerogatives
are exercised, although they may certainly determine the extent of the preroga
tive.15 In other words, the court may enquire whether the prerogative has
been duly exercised (that is, intra vires) but may not challenge the desirabili
ty of the decision taken.
IV PREROGATIVES IN SOUTH AFRICAN LAW

1 In Terms of the South Africa Act
The South Africa Act of 1909 contained no direct reference to prerogatives.
Most of the royal prerogatives possessed by the monarch in respect of his
British subjects were transplanted to South Africa but there were a number
which never applied here.16
2 In Terms of the Republic of South Africa

Section 7(3) of the Constitution contained a list of powers which were con
ferred on the State President as successor in law to the British monarch. All
of these were typical royal prerogatives: the power to appoint ministers and
confer titles, to appoint and receive diplomatic representatives, to convene
and prorogue Parliament, and so on. These were the same powers that had
been exercised by the Governor-General on behalf of the monarch between
1910 and 1961. Since section 7(4) provided that the State President would
possess the same powers and functions as the Queen had possessed by virtue
of prerogative immediately prior to the commencement of the Constitution,
the enactment of section 7(3) was entirely unnecessary; prerogative powers
which were not listed in section 7(3) (such as the powers relating to the issu
ing of passports and the appointment of commissions of enquiry) survived
in their original form.
3 In Terms of the Republic of South Africa

Section 6 is virtually a carbon copy of section 7 of Act 32 of 1961: section
6(1) provides that the State President is the head of state; section 6(2) that
he is the Commander-in-Chief of the Defence Force; section 6(3) that he pos
sesses a number of prerogative powers (to address one House of Parliament,
or all three Houses in a joint sitting, to confer honours, to conclude interna
tional treaties, and so on); and section 6(4) that, in addition to the powers
specifically enumerated, he will, as head of state, possess the same powers
and functions as those possessed by the State President by virtue of preroga
tive immediately before the commencement of the Act.
15 See H Booysen and D H van Wyk Die ‘83-grondwet (1984) at 75, and S A de Smith
Constitutional and Administrative Law, who explains that discretionary powers are
absolute in the sense that once the existence, scope and form of a prerogative power
have been established, the courts will not review the propriety or adequacy of the
grounds on which the power has been exercised.
16 See ch 2 at 21 et seq.
It has been suggested17 that the royal prerogatives of the Westminster sys
tem constitute an anachronism in the 1983 Constitution. Be that as it may,
the powers have been retained in precisely the same form as before. The way
in which they are exercised under the new Constitution differs somewhat from
the way in which they were exercised under the 1961 Constitution.18
B Conventions
I THE NATURE AND PURPOSE OF CONVENTIONS
1 What are Conventions?
Conventions may be defined briefly as rules of political practice regarded
as binding by those to~whom they apply.19 These customary rules were termed
“the unwritten maxims of the constitution” by John Stuart Mill20 and “con-
Ygntions of the constitution” by Dicey.21 This last-mentioned_phraseJias±e.-
come the generally accepted one.
The word ‘convention’, unlike ‘maxim’, ‘custom’ or ‘practice’, presupposes
some form of agreement — the everyday meaning of the word is that of an
agreement between one or more parties, or a meeting or coming together
of parties.22 The implication is that there is an element of consent in the
character of constitutional rules of practice as well. However, as Wade and
Phillips23 point out, the notion of a convention of the constitution implies
no necessary connection with the concept of an express agreement in the sense
of a convention in public international law. Conventions of the constitution
are agreements only in the sense that their validity is based on general ac-
quiescence.
Conventions must be distinguished from the following: ‘unwritten. Iaws2_.
(since it is not universally agreed that conventions fall within.the_cat_e£ory_
of law in the strict sense);24 ‘customs’, ‘practices’ and‘usages j(which carry
no sense of obligation); rules which apply in the constitutional or .political—
sphere but have no constitutional significance; formal, legal rules which are
enforced by the courts; and rules of parliamentary procedure and privilege.
— although this last category does occasionally overlap with conventions.25
2 Law and Convention

The majority of British writers on constitutional law hold that conventions
are not legal rules, and that it is of importance to maintain the distinction.
17 By, amongst others, D A Basson and H P Viljoen Studentehandboek vir die Suid-
Afrikaanse Staatsreg (1986) at 49-50.
18 The prerogatives relating to the executive will be discussed in ch 16 and those relating
to the parliamentary process in ch 17.
19 See Hood Phillips op cit at 104-105.
20 Representative Government (1865) at 87, quoted by Sir Ivor Jennings The Law and
the Constitution 5 ed (1959) at 81.
21 Dicey op cit at 417 et seq.
22 From the Latin convenio = come together, agree.
23 Op cit at 79.
24 See the discussion below.
25 See Hood Phillips op cit at 105-106.
between law and convention.26 The general consensus among these writers
is that conventions belong to the sphere of morality rather than pure law.27
However, the simple distinction between law and convention which was
put forward by Dicey,28 and generally accepted by most of his successors,
namely that laws are rules enforced by the courts, that conventions are rules
but are not~erifbrced ~by thecóurtś,~and therefore that conventions are not
legal rules? Las’itśjćritics, even in Britain: Mitchell29 points out that there
aê laws which have noJudicialjanction, and Jennings30statesthat “theem
phasis uponthe courts, though natural to an English lawyer, is somewhat
misplaced’THe concludes31 that there is no distinction of substance or na-
turebetween conventions and legal rules and points out that, like most fun
damental rules of any constitution, conventions owe their existence and
validity to general acceptance: “A written constitution is noFTaw because
somebody~has~made ft, but because it has been accepted.” VerLoren van
Themaat32 is adamant that conventions which are generally recognized as
binding should be regarded as rules of customary law. All these writers em
phasize the fact that conventions are bindingTenforceable rules; they are en
forced, not by the courts, but by Parliament.
The fact that conventions are not enforced by the courts does not mean
that they are not recognized and acknowledged both by the courts and by
the legislature. Both the British33 and the South African34 courts have recog-
nized the existence of certain conventions in their judgments. The existence
of conventions is, likewise, presupposed in certain legislative enactments. The
office of Prime Minister, the most important government official in the West
minster system, has been firmly established since the eighteenth century, but
was mentioned in British legislation for the first time in 1917; the Cabinet
featured for the first time in 1937, as did the Leader of the Opposition.35
Jennings emphasizes that provisions such as the above do not validate or
legalize the conventions: they recognize the existence^ conventions.36 This
26 See Hood Phillips op cit at 105: “The distinction may perhaps be comparatively un
important for the political scientist or the politician, but it is surely of vital impor
tance for lawyers.” J P Mackintosh The British Cabinet 3 ed (1978) at 12 suggests,
however, that the nature of conventions is less important than their function and effect.
27 Dicey op cit 417; Hood Phillips op cit at 104 and in ‘Constitutional Conventions: a
Conventional Reply’ Journal of the Society of Public Teachers of Law 1964 at 64:
“Constitutional Conventions are political, not legal”; F W Maitland Constitutional
History (1908) at 342, 398 and 527 refers to “constitutional morality” and A L Lowell
The Government of England I at 10 to “a code of honour”, “rules of the game”.
28 Loc cit.
29 J D B Mitchell Constitutional Law 2 ed (1968) at 34 et seq.
30 Sir Ivor Jennings The Law and the Constitution 5 ed (1959) at 103-104; he says fur
ther (at 131): “The fallacy of Dicey’s argument lies, however, essentially in the view
that law is enforced."
31 Op cit at 117.
32 Staatsreg 3 ed (1981) at 172 et seq. He relies strongly on the views of Mitchell and
Jennings, and on French writer J J Chevalier in L’Evolution de L’EmpireBrittanique.
33 E g in Liversidge v Anderson [1942] AC 206; British Coal Corporation v The King
[1935] AC 500 (PC); Carltona Ltd v Commissioners of Works (1943) 2 All ER 560;
A ttorney-General v Jonathan Cape Ltd[\976] QB 752; R v Secretary of Statefor Home
Department ex parte Hosenball (\9T1) 1 WLR 776 (CA).
34 Acting President Rhodesia v Deary 1979 4 SA 39 (ZRA).
35 See Jennings op cit at 118-119.
36 At 119.
is not mere sophistry: the conventions do not owe their validity to the statu
tory provision; the provision merely reflects the legal position.
The difference between law and convention is a technical, formal one which
does not affect the essence or substance of conventions. Jennings37 explains
these technical differences as follows: (i) when a rule is a legal rule, it is gener
ally the function of the courts to declare that there has been a breach of such
a_rule;~(ii) legal rules are either formally expressed or formally illustrated
by a decision of a court, whereas conventions arise out of practice; (iii) there
is a psychological distinction which confers greater sanctity on a rule of law
than_on. a..c.onventioni_A government may act unconstitutionally_without
necessarily acting illegally. (It must also be emphasized, how_e_ye_r,_that. un-
constitutional conduct may imply more than the breach of a conventionL.it
implies action which is inconsistent with the accepted tenets of democratic
government. Furthermore, whether a government’s conduct is unconstitu
tional or merely contrary to established convention, the remedy is political,
not legal.)
3 The Purpose Served by Conventions

According to Dicey,38 conventions serve to secure the ultimate supremacy
of the .electorate as the true political sovereign, a view echoed by.H_o_od.Ehil-
lipsL^J‘The ultimate object of most conventions is that public affairs should
be conducted in accordance with the wishes of the majority of the electors.”
VerLoren van Themaat points out that this approach, which is based on the
notion of the sovereignty of the people, no longer enjoys general currency.40
He sees the purpose of conventions as Jhe_reconciliation_af_constitutional—
jaw with constitutional reality,.which is in line, with HoodJPhillips’s state
ment that the general purpose of conventions is to adapt structure_to_func-_.
tion. The will of the electorate is only one of a number of factors which
determine constitutional reality. Constitutional reality demands flexibility^.
so that the formal constitutional law can operate in accordance with prevail
ing constitutional notions and theories. Constitutional development may be
achieved without the necessity for formal changes in the law. The only other
alternative means of evolutionary growth by adaptation, namely, that oŁjudic-
ialjnterpretation, has less scope in the constitutional field than development
.by.way of convention would seem to offer.
4 The Scope and Operation of Conventions

Conventions presuppose that there is a basic legal framework within which
the conventional rules can develop and evolve. They require some statutory
formal backing for the process of growth and transformation in the con-
. -stitutional sphere to take place.
Dicey’s definition of conventions as “rules intended to regulate the exer
cise of the whole of the remaining discretionary powers of the Crown, whether
37 Op cit at 133.
38 Op cit at 429.
39 Op cit at 108-109.
40 Op cit at 178.
these powers are exercised by the Queen herself or by the ministry”41 is, as
is pointed out by both VerLoren van Themaat42 and Wade and Phillips,43
an inadequate one. Conventions certainly do play a major part in determin
ing how the royal prerogative is to be exercised; but they figure just as prom
inently in the development of the party system and in the relations between
Britain and the Commonwealth countries.
The effect of conventions is to restrict the ostensibly wide powers possessed
by the’ihonarch, the ministry and Parliament, by transferring the power from
the person"orbody thaCftjrmally exercises it to other persons or bodies. For
example, the royal prerogatives are exercised by the Queen in name only.
"The actual decision is taken by her ministers; but, lest the Cabinet itself be-
cornetoo powerfulît, inturn, is controlled by Parliament — again by con
vention. The scope of the powers is not affected in any way; they are not
watered down by the effect of conventions, but are merely transferred from
the formal holder of the power to other persons or bodies. This is in keeping
with the’ideals of democratic or ‘limited’ government. It is a characteristic
feature of conventions that the original holder of the power retains a resi
duum or reserve power which he may exercise only if the exigencies of the
political situation demand this. It is difficult to conceive of any situation
which could arise today that would justify the exercise of this reserve power
- nothing short of a full-blown coup attempt_would seem to meet the case.
It may be asked whether it would not serve the purpose better simply to
incorporate established conventions into the formal rules of constitutional
law by means of legislation; Such enacted conventions would then be fully-
fledged legal rules enforceable by the courts, thus eliminating all controversy
about their nature, scope and effect". This course has, to some extent, been
adopted in South Africa. The Republic of South Africa Constitution Act
of 1961 contained a number of enacted conventions44 and the Constitution
Act of 1983 has added to this number.45 This approach is not favoured in
Britain at all - mainly because the British Constitution itself is largely un
written, so that the presence of numbers of statutorily enacted conventions
would have an intrusive and incongruous effect. Moreover, as VerLoren van
Themaat points out,46 the manner in which convention has brought about
a balance in the relationship between the Crown and Parliament, and be
tween the Crown and the Cabinet, confers on the entire system of constitu-
tional monarchy a special traditional dignity which transcends the often sordid
scrambling engaged in by party politicians. Finally, an enacted convention
'is really a fpntradicfion in terms_-_it is no longer a convention, but a for
mal legal rule. The conferment of statutory status on conventions may be
conducive to greater certainty, but the flexibility and adaptability which con
ventions achieve, would be lost.
41 Op cit at 426.
42 Op cit at 172.
43 Op cit at 79.
44 E g s 16(1), which provided that the State President acted on the advice of his ministers
in executive matters.
45 E g ss 21(2), 24, 33(1), 39 - amongst others. See chapters 15, 16 and 17 below.
46 Op cit at 177.
5 How do Conventions become Established?

It is not easy to determine when a convention has become established. Con
ventions based on usage will obviously become recognized as finding con
ventions when the usage is of long standing. Long standing, however, is not
the samFaTimmemorial usage, aTequifemeritfor the creation of customary
—law>_Moreover, some of the more recent conventions, such as those dealing
withjCommonwealth relations, are based, not on usage, but on agreement-
pure and simple, thus harking back to the original meaning of ‘convention’.47
Clearly there must be at least one precedent before a convention can be
said to exist. A long series of precedents is persuasive evidence that a con-
ventiorThas become established - but how many precedents may be said
to be enough? For example, a referendum was held in South Africa before^
the Union in Natal; in I960,48 prior to South Africa’s becoming a Republic;
and again in 1983 before the Republic of South Africa Constitution Act 11Q
of 1983 was put into operation. Can it be said that the South African govern
ment is obliged by convention to hold a referendum if major constitutional
changes are planned, or will the calling of a general election be constitution
ally acceptable?
Jennings49 suggests two criteria for the creation of a convention:
(i) it must be generally accepted that a binding convention exists; and
(ii) there must be a reason or purpose for the usage, one which relates to
existing or current requirements for constitutional government. This would
explain why a series of precedents may not create a convention in.one case,-
while a single precedentm’aygive rise to a generalacceptance that a certain
mode of conduct is obligatory” “
There is no cut-and-dried solution, since one politician (or party) may
regard a practice as binding, while others may not. The requirement that
a convention cannot be regarded as established unless it is generally .recog-
nized~as being binding, provides the main reason why conventions are ad—
z hered to~even~in 'the “absence of formal legal sanctions for breaches of—
convention. It is obvious that if conventions are not regularly observed, they
cease to be recognizable as conventions. Politicians will therefore .observe
conventions for a simple psychological reason — because they regard them
as binding and because they are aware that they risk losing their reputations
and the favour of the voters if they act unconstitutionally or in breach of
an established convention.
JI THE MOST IMPORTANT CONVENTIONS

1 Introduction
There are a number of conventions which apply in Britain but not in South
Africa, either because they never took root here or because constitutional
change has rendered them obsolete here. In this work the main emphasis will
be on conventions which have (or used to have) some relevance to South

48 More correctly, a plebiscite. See at 216.
49 Cabinet Government 3 ed (1978) at 5-13.
African constitutional law. Conventions may be classified into four groups:”

conventions governing the exercise of the prerogative and the working of
the cabinet system; conventions regulating the relations between Great Bri
tain and the independent members of the Commonwealth; conventions which
govern proceedings in Parliament and the relations between the Houses of
Parliament; and conventions governing the operation of the party system.
With the commencement of the South Africa Act in 1910, the established
conventions applying in Britain were transplanted into South African law.
Both the 1961 and the 1983 Constitutions contain provisions to the effect
that recognized constitutional practices would continue to exist as before.51
2 Conventions Relating to the Exercise of the Prerogative and

the Operation of the Cabinet System
This group of conventions is the one emphasized by Dicey,52 and is indeed
the most important, along with the second group.
(i) The monarch invites the leader of the majority party in the House of Com
mons to form a government.53 This person is termed the Prime Minister,
and he or she is the most powerful figure in government despite the fact that
little or no reference to the premiership is found in formal constitutional law.
Until Act 110 of 1983 came into operation the same position obtained in
South Africa. Before 1961, the Governor-General appointed the South Afri
can Prime Minister in accordance with this convention, and after South Africa
.p.o^wo-'”
became a Republic in 1961, the position remained unaltered save for the fact
that the pro forma appointment was made by the State President. Neither
the South Africa Act of 1909 nor the Republic of South Africa Constitution
-’
Act of 1961 contained any reference to the office of Prime Minister.

In terms of the 1983 Constitution, the offices of State President and Prime
Minister have merged, which has obviously meant that the convention has
had to be adapted.54
(ii) The monarch appoints (and dismisses) the members of the Cabinet on
the advice of the Prime Minister. There is very little reference to the Cabinet
in British statutes; the Cabinet, like the Prime Minister, may be said to be
50 See Hood Phillips op cit at 113. His tripartite classification differs somewhat from
the one suggested here.
51 See s 7(5) of Act 32 of 1961 and s 83 of Act 110 of 1983. See Basson and Viljoen
op cit at 47, where the authors put forward the view that the 1983 Constitution leaves
no room for the retention of existing conventions, apart from the ones which ha\e
been enacted in the Constitution itself. They feel that the development of new con-
ventions is certainly possible, but that only time will tell what this development will be.
52 Op cit at 423. See above at 177-178.
lhe d'scussjon °f the development of the premiership in ch 3 above.
54 The State President himself is the leader of the majority party in one of the Houses
(almost inevitably the House of Assembly) even though he is not a member of Parlia
ment. The chairmen of the other two Houses may be seen as ‘ethnic’ Prime Ministers
in a conventional sense, but the convention has been altered somewhat: according to
the Act, it is not the Chairman of the House who nominates the members of that House s
,flMVWV
Ministers Council; the State President appoints the ministers from the ranks of the
majority party and then appoints the leader of this party (or a person commanding
a majority in the House) as chairman. See the discussion in ch 17.
almost entirely the product of convention.55 The South African Constitu

tion of 1961 referred to the appointment of members of the Executive Council
(Cabinet) by the State President,56 but these appointments were, as in Bri
tain, made on the advice of the Prime Minister.57 Under the 1983 Constitu
tion the State President himself appoints all ministers of state, whether to
the Cabinet or to the Ministers’ Councils.58
(iii) Ministers of state must be members of Parliament, or become members
within a reasonable time. This convention received statutory recognition in
South African law. Initially the period within which a minister had to be
come a member of Parliament was fixed at three months,59 but the period
of grace was extended to twelve months in 1980.60 The 1983 Constitution
requires ministers and deputy ministers — whether they are members of the
Cabinet or members of Ministers’ Councils — to become members of Parlia
ment within twelve months.61
(iv) The monarch is bound to exercise her prerogative powers (and, indeed,
all powers relating to executive function in general) on the advice of her
ministers. She is bound by their advice, and may not override it, although
she is entitled to be kept informed and to express her opinion.62 This con
vention was enacted in the 1961 Constitution63 and has found its way into
the 1983 Constitution as well.64 However, there has been an adaptation here
as well. In matters which are general affairs, the State President acts, not
on the advice of the Cabinet, but in consultation with the Cabinet.65 The
Westminster convention is retained in its pure form in regard to ‘own af
fairs’ — here the State President still acts on the advice of the Ministers’
Council concerned.
(v) When a government is defeated in a motion of no confidence in the Lower
House, it must resign. This convention is sometimes stated in somewhat wider
terms: a government must resign (or request a dissolution) if it no longer
enjoys the support of the majority in the Lower House. This does not mean,
however, that the government is no longer entitled to remain in office if it
is defeated in any motion.66 The motion must be one of confidence or no
confidence or at least be classified as a motion on a major issue. If this were
not so, a government could find itself out of power as a result of a defeat
at a time when a number of its members happened to be absent. Party dis
cipline will ensure that all members are present to vote whenever a major
55 Hood Phillips op cit at 114.

56 Ss 17 and 20 of Act 32 of 1961.
58 Ss 19-21 of Act 110 of 1983.
59 S 20(3) of Act 32 of 1961.
60 S 20(3) of Act 32 of 1961 as amended by s 2 of Act 70 of 1980.
61 S 24(3)(a) of Act 110 of 1983.
62 Hood Phillips op cit at 115. It is therefore not quite accurate to say that the monarch’s
function is simply to rubberstamp executive action.
63 S 16(1) of Act 32 of 1961.
64 S 19 of Act 110 of 1983.
65 See the discussion at 323 et seq below.
66 Hood Phillips op cit at 115 points out that Ramsay McDonald’s government was defeat
ed on twelve occasions in 1924, but that the Prime Minister had stated explicitly that
he would resign only if defeated on a major issue.
issue arises. Should the government be defeated despite the actions of the
party whips, it would indicate that some shift in allegiance has taken place
which leaves the government short of the required support.
If a government has lost the support of the Lower House, it may either
resign or request the monarch to dissolve Parliament. It is not yet altogether
certain whether the monarch is bound to follow the government’s advice and
grant the dissolution, or whether she has a discretion to dissolve Parliament
or to ask someone else, who does command the support of the Lower House,
to form a government. What is certain, however, is that the monarch is not
at liberty to allow a government which does not enjoy the support of the
House to continue in power. It seems to be generally agreed that the monarch
will grant a defeated government at least one dissolution if this is request
ed.67 Wade and Phillips68 suggest three criteria for a justifiable refusal to
grant a dissolution: (a) if the existing Parliament is still capable of perform
ing its task; (b) if a general election would be detrimental to the country
(in particular, to the economy); (c) if there is a person available to act as
Prime Minister who commands a working majority in the House. Dissolu
tions were refused by the respective Governors-General of Canada (in 1926)
and South Africa (in 1939).69 In the latter case the South African Prime
Minister, General Hertzog, was defeated in Parliament on the question
whether South Africa should participate in the Second World War. His re
quest for a dissolution and a general election was refused by the Governor-
General, Sir Patrick Duncan, who asked General Smuts to form a govern
ment. Although Smuts enjoyed enough support in the House of Assembly
to be able to govern effectively, there were nevertheless those who held the
view that a general election should have been called, since the government
had no mandate from the electorate to go to war.70
This convention is enacted in adapted form in the 1983 Constitution Act.
Section 39(2)(b) provides that the State President must dissolve Parliament
(or resign from office) if every House adopts a motion of no confidence in
the Cabinet or rejects a money bill;71 section 39(3)(b) that he must dissolve
a particular House or reconstitute its Ministers’ Council if that House adopts
a motion of no confidence in the Ministers’ Council or rejects a money bill;
section 39(3)(a) that he may dissolve a particular House if that House adopts
a motion of no confidence in the Cabinet, rejects a general affairs money
bill, if that House can no longer function effectively72 or if the Ministers’
Council requests a dissolution. This power is not one which is expressly in
cluded among those exercised by the State President on the advice of a
Ministers’ Council or in consultation with the Cabinet.73

68 Op cit at 84.
69 Wade and Phillips op cit at 85 point out that while all three preconditions were met
in the South African case, the third one was not met in the Canadian incident.
70 Whether there is a convention that a government must obtain a mandate from the
electorate before taking a major step such as this, is still a moot point and will be
discussed below at 185-186.
72 See S 37(2) of Act 110 of 1983.
73 S 19(2) of Act 110 of 1983. It is suggested that in the cases where the constitution
confers a discretion on the State President, he may well be bound by convention to
act in accordance with the criteria mentioned above — see Wade and Phillips op cit at 84.
(vi) Ministers are collectively responsible to Parliament for the adminis

tration of the country. Collective responsibility presupposes a high degree
of solidarity among the members of the Cabinet, and this is why, by con
vention, all the ministers are appointed from the ranks of the majority party
in Parliament or, in the case of a coalition government, from the ranks of
those parties participating in the coalition. Any minister who feels that he
cannot identify with government policy on a major issue, should resign.
The collective responsibility of a ministry has, however, a narrower scope
than is sometimes averred. ‘Collective responsibility’ merely means that the
ministers must show a united front to the public, and not that all the ministers
are deemed to know what is going on in every department. Thus only the
minister who has committed a serious lapse, and those other ministers who
would know or be expected to know about it (the Prime Minister and perhaps
the Minister of Finance in most cases), can be held responsible. Since it is
by no means an established practice that the Prime Minister must keep all
his ministers informed about every matter,74 knowledge and the concomi
tant responsibility are not necessarily imputed to all the ministers.75
It is not yet quite settled just how this convention will be applied in the
1983 Constitution, since the members of the Cabinet need not necessarily
be drawn from the ranks of one party.76 It may be predicted that the con
ventions of cabinet solidarity and joint responsibility will inevitably be wa
tered down somewhat.
(vii) Ministers are individually responsible to Parliament for the adminis
tration of their departments. This direct responsibility is the raison d'etre
74 During the Suez crisis of 1956, the British Prime Minister, Anthony Eden, had in
formed only a few members of his Cabinet that military action was to be taken against
Egypt. Moreover, Eden further refused to answer any questions or to accept parliamen
tary responsibility for what happened. It is clear, however, that he went too far; his
high-handed action led to his losing the premiership and to the ruin of his political career.
75 The so-called information scandal, which occurred in South Africa in 1977-1978, is
a case in point here. A fierce debate took place as regards the responsibility of the
minister concerned (Dr C P Mulder), the erstwhile Prime Minister (Mr B J Vorster)
and the government as a whole. Mulder’s responsibility for maladministration in his
own department was generally accepted. The enquiry into the Prime Minsiter’s respon
sibility was bedevilled by the fact that, by the time the scandal broke, Vorster had
already resigned as Prime Minister and assumed the post of State President, so that
he could no longer be brought to book. The other members of the Cabinet denied
all knowledge and refused to accept any responsibility. A Commission of Enquiry,
the so-called Erasmus Commission, was appointed to investigate the matter. It found
that primary responsibility lay with Mulder and Vorster. The upshot was that Mulder
resigned from the Cabinet and that Vorster voluntarily relinquished the office of State
President. (Some attempts were made in Parliament to set in motion the process of
removal of the State President from office, but these proved abortive, owing to the
numerical advantage enjoyed by the National Party, the party which had supported
Vorster’s candidature.) No doubt, if the Erasmus Commission’s findings had pointed
to knowledge on the part of other Cabinet ministers, there would have been a strong
case for demanding their resignation. However, as VerLoren van Themaat (op cit at
183) points out, while the Prime Minister (now the State President, since the office
of premier has been subsumed in that of head of state) enjoys the support of the majority
in Parliament, there is no chance that the Cabinet can be forced to resign en bloc.
76 See the discussion below at 325-326.
for the conventional role requiring ministers to be members of Parliament.

This is where question time in Parliament plays an important part. The Stand
ing Orders set aside certain times for questions,77 which in itself signifies recog
nition of this convention. Ministers must be prepared to answer questions
in the House relating to the manner in which their departments are being
administered and, in theory at any rate, an erring minister runs the risk that
a motion of censure may be passed against him, in which case he would be
obliged to resign.78
(viii) Parliament must be summoned to meet at least once a year.79 In South
Africa this is an enacted convention.80
(ix) The Queen must assent to every bill duly passed by Parliament.81 This
convention was transmitted into South African law as a ‘pure’ convention
— there was no express provision reflecting the nature of the Governor-
General’s (later the State President’s) obligation until the adoption of the
1983 Constitution. In theory the monarch still possessed a power of veto over
colonial and dominion legislation, but in practice no South African legisla
tion was vetoed after 1910.82
Section 24 of the 1961 Constitution provided that the State President could
assent to a bill presented to him, reject it or return it to Parliament with sug
gested emendations. Section 16(2) provided that, except where there was an
express or implied provision to the contrary, a reference to the State Presi
dent was deemed to be a reference to the State President acting on the ad
vice of the executive; this led some to conclude that the two provisions should
be read together — in other words, that the State President’s power to as
sent to legislation had to be exercised on the advice of his ministers.83
However, as VerLoren van Themaat points out,84 the Governor-General,
when assenting to legislation on behalf of the monarch, did not act on the
advice of the Union ministers. He concludes, therefore, that the State Presi
dent exercised his power of assent in accordance with convention, which sim
ply meant that he was obliged to assent to legislation duly passed, in
accordance with parliamentary procedure, by both Houses of Parliament (af
ter 1980, by the House of Assembly).
77 See the discussion below in ch 17.

78 In earlier times, of course, a minister who was guilty of serious misconduct in the
administration of his department could be impeached — see the discussion in ch 3
at 44. The process of impeachment has, however, fallen into disuse in the British con
stitutional system and it never did find its way into South African law.
79 Initially, observance of this convention was enforced by the practice of limiting to
one year the period for which statutory authority was given for raising and spending
revenue for the maintenance of the Army and Air Force — see Hood Phillips op cit
at 114.
80 See s 38(2) of Act 110 of 1983, which provides that there must be at least one session
of Parliament each year, so that no more than 13 months may elapse between the com
mencement of one session and the commencement of the next; also s 29 of Act 32
of 1961, which contained a similar provision, except that the ‘interim’ period was fixed
at a maximum of twelve months.
81 The last monarch to refuse assent was Queen Anne in 1707.
82 See VerLoren van Themaat Staatsreg 1 ed (1956) at 153, fn 45 and ch 3 above, in
which the constitutional development of South Africa is discussed.
83 Eg see Ellison Kahn The New Constitution (1962) at 26.
84 Staatsreg 3 ed at 257; also see C W H Schmidt ‘Die Grondwet van die Republiek van
Suid-Afrika Wet 32 van 1961’ 1962 THRHR 36 at 41.
This is precisely how the convention is enacted in the 1983 Constitution.

Section 31(1) provides that the State President may assent to a bill presented
to him or refuse assent, but may not refuse assent unless he is satisfied that
the bill has not been dealt with in accordance with the provisions of the Con
stitution.
(x) The royal prerogative to declare war or make peace is, like any other
prerogative, exercised on the advice of the executive. However, there is a
convention that this prerogative will not be exercised without the approval
of Parliament.85 Since Parliament must vote money for the conduct of a war,
it is plainly logical that its approval is a prerequisite.
(xi) It is sometimes averred that there is a convention that the government
should not exceed the bounds of its mandate from the electorate, but the
exact status of this ‘convention’ has not yet been established. It is obviously
a convention which is usually relied upon by the opposition as soon as a
government proposes to initiate legislation which is regarded as in any way
radical. If this is an established convention, then it is a very recent one. When
Smuts took over the reins of government from Hertzog shortly after the out
break of World War II in 1939, the members of the Union Parliament had
no mandate from the electorate to involve the country in a war — for obvious
reasons: when the election was held, war was not imminent (although it was
a possibility) and the issue of ‘will we go to war or won’t we?’ was not one
which was canvassed by the candidates in their election campaigns. South
Africa did enter the war as an ally of Great Britain, but there was a good
deal of controversy within the country in regard to South Africa’s participa
tion. Of course, it may be argued that it is simply not practicable to hold
a general election — something which requires a good deal of time to or
ganize — in circumstances where time is of the essence..
It would, however, appear to be an established convention in South Afri
ca that no radical change to the constitutional system will be implemented
before the electorate’s opinion has been tested by means of a referendum.86
Prior to the referendum held in 1960 to gauge public opinion about a change-
over to a republican form of government, the only referendum in South Afri
can constitutional history was the one held in Natal before Union.87 As far
back as 1953, the then Prime Minister, Dr Malan, undertook that the adop
tion of a Republican form of government would not take place unless the
government had obtained a mandate from the voters in a general election.88
When the decision was taken to set in motion the process leading to the
change, however, the government opted for a referendum instead, possibly
because a referendum or plebiscite reflects public opinion far more accurately
than a general election.89 After that there was a precedent for the holding
85 See Hood Phillips op cit at 116; VerLoren van Themaat Staatsreg 3 ed at 183.
86 More correctly, a plebiscite, since the result is not binding on the government but merely
serves to give some indication of the electorate’s willingness to accept the proposed
change, See D A Basson ‘Referendum en Plebissiet’ 1982 De Rebus 312 for the dis
tinction between a referendum and a plebiscite.
88 See VerLoren van Themaat Staatsreg 3 ed at 184.
89 Particularly in a system of regional representation - see ch 8 above.
of the 1983 referendum to test white voter opinion about the 1983 Constitu
tion. In this case, the legislation was piloted through Parliament before the
referendum was held. It is of interest that no referendums were held to test
the views of the Indian and coloured population groups — possibly because
the government feared that they might reject the Constitution altogether,
which would have proved fatal to the plan. Instead, general elections to elect
members to the two new Houses of Parliament were held directly, and the
new tricameral Parliament was put into operation despite very low percen
tage polls in the Indian and coloured elections.
The issues on which the two referendums were held have been of such vi
tal importance that the convention may be regarded as established even though
there is no long line of precedents.
3 Conventions Regulating Relations between Great Britain and

the Commonwealth
Since South Africa is no longer a member of the Commonwealth, these con
ventions are no longer of direct importance to South African constitutional
law. They are mentioned briefly, purely for the sake of completeness.
The conventions which developed in the relationship between Britain and
her former colonies are mentioned in Chapter 3. Even before the adoption
of the Statute of Westminster in 1931, which placed these issues beyond doubt,
there was a convention that the British Parliament would not legislate for
a dominion except with its consent and at its request; that legislation alter
ing the succession to the throne or to the royal title required the assent of
the dominion parliaments; that the monarch acted on the advice of the domin
ion’s Prime Minister when appointing a Governor-General for that domin
ion; that the Governor-General of a dominion was the representative of the
monarch and not of the British government, and therefore acted on the ad
vice of the dominion government; that the governments of Britain and the
other members of the Commonwealth would keep one another informed
about the negotiation of treaties and the conduct of foreign affairs, and that
no one member was competent to commit other members without their con
sent.90
The character of the British Commonwealth changed radically after the
Second World War, so that even the common allegiance to the Crown has
fallen away with the acceptance of republics as members of the Common
wealth. The only surviving common factor is the fact that all the members
are former British colonies.91
4 Conventions Governing Proceedings in Parliament and the Rela

tions between the Houses of Parliament
(i) Conventions governing proceedings in Parliament
The rituals and customs which are so integral a part of the Westminster
parliamentary system all developed via usage into conventions. The pomp
90 See Hood Phillips op cit at 119.

91 For a discussion of the constitutional status of the Commonwealth today, see S A
de Smith The New Commonwealth and its Constitutions (1964). Even this work does
not reflect the changes that have taken place since 1964.
and ceremony, the speech from the throne, the role and status of the Speak
er, the part played by party whips — all these developed by convention, as
did the procedures for the adoption of legislation, and so on.92
As far as South Africa is concerned, most of these rules governing the
day-to-day running of Parliament have been embodied in the Standing Ord
ers of Parliament. The introduction of the tricameral Parliament has neces
sitated changes to the legislative process, and for example, the part played
by the various parliamentary committees is now governed by this formal mode
of regulation to a major extent. 93
(ii) Conventions governing relations between the Houses of Parliament

These conventions evolved as a result of conflicts which arose on occasion
between the House of Lords, a chamber whose members are there purely
by virtue of birth or privilege, and the House of Commons, whose members
are the directly elected representatives of the people. The rule that the lower
house, the House of Commons, has the final say in both legislative and ex
ecutive matters, developed by convention and was eventually statutorily enact
ed in the Parliament Act of 1911. Conventions that the Prime Minister (but
not necessarily all the members of his Cabinet) must be a member of the
House of Commons, that money bills must be read in the House of Com
mons first, and that the Lords must ultimately give way in the event of a
deadlock, all fall within this category.
In South Africa statutory provision was made for the resolution of con
flicts between the House of Assembly and the Senate, first in the Senate Act94
and later in the Republican Constitution.95 It was also a statutory rule that
money bills had to be introduced in the Assembly first,96 but an exception
was later created for legislation introduced by a minister.97 After the aboli
tion of the Senate in 1980 the necessity for these rules fell away altogether.
The South African Prime Ministers were all members of the House of As
sembly — the possibility that a Senator could become party leader and thus
Premier was never mooted.98 Legislative procedure was never governed by
statute either.
The introduction of the tricameral Parliament has brought about far-
reaching changes in the sphere of parliamentary procedure. The main rea
son for this is that all three Houses are ‘lower’ or representative Houses.
Consequently there was no conventional solution to the problem of poten
tial conflicts, and recourse was had to statutory measures to break any dead
lock which could arise.99 Changes in the legislative process were also
inevitable, but these have been achieved by amending the Standing Orders
92 For a detailed discussion of parliamentary procedure and the customs and traditions
surrounding it see D H van Wyk ‘Parliament’ LA WSA vol 19 at 168-240; also R Kil-
pin Parliamentary Procedure in South Africa (1955).
93 The rules of parliamentary procedure will be touched on again in ch 17 below.
94 Act 54 of 1926.
95 S 63 of the Republic of South Africa Constitution Act 32 of 1961.
96 S 60(2) of Act 32 of 1961.
97 At that time the Minister of Finance (O P F Horwood) was a member of the Senate.
98 Signifying tacit recognition of the convention?
99 See ch 17 below.
of Parliament rather than the Constitution itself.100 In most other respects

the conventions have remained applicable.
5 Conventions Governing the Operation of the Party System

The party system is an important topic in its own right and will be discussed
under the following heading.
C The Party System
I INTRODUCTION
The development of the party system has taken place almost entirely by con
vention. Little or no reference will be found to the system in the formal (statu
tory) law of Britain or even South Africa. It is, in fact, astonishing that writers
such as Dicey confine their discussion of conventions mainly to those con
ventional rules which govern the exercise of the prerogative, and neglect —
or even overlook entirely — the conventions which govern the way in which
the party system operates.
II DEVELOPMENT OF THE PARTY SYSTEM IN BRITAIN

The first signs of development may be traced back to the early eighteenth
century, when the terms ‘Whigs’ and ‘Tories’ first made their appearance.
It must be remembered that, until the middle of the seventeenth century,
the struggle was between King and Parliament.101
Even when the classification of members of Parliament into so-called Whigs
and Tories came about, the alliances between those who were essentially pro
Orange (the Whigs) and those who were still pro-Stuart (the Tories) were
very informal and casual, and there certainly was no question of any party
policy, let alone party organization, at that stage. The development of a party
system as such was closely linked with the development of cabinet govern
ment and the evolution of the position of Prime Minister as the leading figure
in government (still only a primus inter pares, but for all that a spokesman
for the Cabinet and the link between the King and the government). As the
premiership gained in stature and as it became clear that no ministry could
hope to govern successfully without the support of the House of Commons
(no matter how high the ministers’ standing with the King), the idea slowly
100 See the Standing Orders of Parliament and the discussion in ch 17 below.
101 See ch 3 above for the discussion of the historical background. Certainly there were
factions within Parliament: there were those who supported the King and those who
felt that his powers should be curtailed. The struggle between the Stuart faction and
those opposing it continued after the deposition and execution of Charles I, through
the brief reign of Oliver Cromwell as Lord Protector, through the Restoration and
the reign of Charles II, through the reign of James II and the Glorious Revolution,
and continued even during the reign of William and Mary as long as the Old Pretender
(Prince James Edward) and the Young Pretender (Prince Charles Edward or ‘Bon
nie Prince Charlie’) were pressing their claims to the British throne. But these could
not, in truth, be classified as parliamentary groupings or political parties in the modern
sense.
emerged that a Prime Minister needed to know that he could count on the
support of the rest of the Cabinet and on the support of the majority in Parlia
ment (notably the Lower House). And he could not determine the extent of
this support without some form of formal acknowledgement that these were
‘his men’.102
Another event which was an equally important factor in the evolution of
the party system was the Reform Act of 1832. Prior to this, Parliament was,
in theory, an assembly of the representatives of the people of Britain; in prac
tice the picture looked altogether different: there was no universal franchise
and no voters’ rolls whereby the size and numerical strength of the various
constituencies could be gauged; there were ‘rotten boroughs’ or constituen
cies which represented virtually no one, but nevertheless returned a member
to Parliament; and there were ‘pocket boroughs’ or constituencies which had
been ‘bought’ by the member of Parliament.103 Once the electoral system
had undergone reform, and the franchise extended, the way was paved for
the development of a more sophisticated system, for organization on a party
political basis and for more formal structural divisions within Parliament
itself.104
Ill THE CHARACTERISTICS OF THE PARTY SYSTEM IN BRITAIN

It is often said that the Westminster system works best as a two-party sys
tem. Certainly Britain has, at various stages of her history, had more than
two major parties; and it is equally true that the United States of America
has, for very many years, had only two major political parties — the Repub
licans and the Democrats.105 In this sphere there have been more changes
and realignments in Britain: first there were the Whigs and the Tories, who
developed into the Liberals and the Conservatives respectively; the begin
ning of the twentieth century saw the rise of the Labour Party, which took
over from the Liberal Party as the ‘other’ main party, although the Liberal
Party has continued to function; there has also been the emergence of the
Social Democrats as well as the nationalist movements in Scotland and Wales.
Nevertheless, it remains true to say that the Westminster system is based on
the concept of two - and no more than two - major parties: the governing
party and the opposition.
The status enjoyed by the official opposition is a cardinal feature of the
Westminster system. The Leader of the Opposition receives an official sa
lary over and above his salary as a member of Parliament, and every govern
ment minister has a mirror-image in the opposition — there is a ‘shadow’
102 Not that this realization came overnight. As is recorded in ch 3 above at 48, when
Sir Robert Peel first mooted a declaration of loyalty from party members, he received
a very unenthusiastic response.
103 For a discussion of this period in British history, see J P Mackintosh The British
Cabinet 3 ed (1977) at 75 et seq.
104 It may be said that the party system as we know it today - a Cabinet of ministers
drawn from the majority party in the lower House and displaying a marked degree
of party solidarity, a solidarity which is evident in the parliamentary caucus as a whole
- dates from this period.
105 Furthermore, there has yet to be a coalition government in the USA.
minister in the opposition for every portfolio held by a member of the

government.
If the importance of splinter parties is severely diminished in a two-party
system, the significance of the independent member of Parliament has dwin
dled altogether. That period of the nineteenth century before the party sys
tem took a firm hold on Parliament is sometimes described as the ‘golden
age of the independent MP’. The independent was usually a local man, known
and respected in his community, whose main aim in standing for Parliament
was to promote the welfare of his constituents (and, of course, to boost his
own image in the community!). He was an individual, not merely a small
cog in a large machine.
Since then the chances of being elected as an independent have become
remote. Splinter parties admittedly have a certain ‘nuisance value’, which
is considerably enhanced if the balance of power between government and
opposition is such that the support of smaller parties could prove a crucial
factor. Even within the major parties there is a hierarchical structure which
makes it very difficult for ‘backbenchers’, or those members who are low
down in the party’s pecking order, to wield any great influence. The number
of members of Parliament may be considerable: the main protagonists are
very few.
The development of the party system into the sophisticated system it has
become, meant that voters had to be organized on a large scale; that party
policy and aims had to be formulated expressly and specifically; that party
leaders had to have a certain public image; and, above all, that party dis
cipline had to assume a vitally important role. The rigidity of party discipline
eads to a strong hierarchy within the party. The individual’s influence is
therefore wielded first and foremost within the party caucus and in Parlia
ment only thereafter. As a result of this the views and policies of the leaders
of the governing party are directly reflected in the most important legisla
tion, particularly where the party is operating on a strong majority. That
is why it is sometimes said that parliamentary supremacy is a thing of the
past, and that the real sovereignty rests in the executive. Even though much
of Parliament’s legislative output is non-contentious, and even though no
member of Parliament is legally obliged to vote on party lines if his con
science dictates otherwise,106 it certainly is a fact of modern political life that
the Cabinet, which is composed of the leading figures in the governing party,
is the dominant force even in the legislative sphere.
As VerLoren van Themaat107 points out, the party system is rooted in prac
tical politics, and many of the characteristics of the party system are of in
terest to the political scientist rather than the constitutional lawyer.
Nevertheless, the party system is based on two fundamental principles of con
stitutional law: freedom of association and freedom of choice.
IV THE PARTY SYSTEM IN SOUTH AFRICA

Even though the Westminster system has been the constitutional system in
South Africa since 1910, it has taken a different form in certain respects,
106 See the discussion in ch 8 above. The member who does not toe the party line may
be expelled from his party, but he cannot be compelled to resign his seat.
107 Op cit at 188-189.
_________________ Prerogatives, Conventions and the Party System 191
simply because the franchise has always been confined primarily to Whites.
This separatism has been most marked in the political parties which have
operated in South Africa through the years.
Parliamentary parties have, for obvious reasons, always been white par
ties. Even when a limited number of non-Whites enjoyed the franchise, mem
bers of these population groups never played an active role in the party
organization of any of the white political parties. Until the adoption of the
Prohibition of Political Interference Act,108 however, there was no reason
why persons other than Whites could not belong to the recognized political
parties. It was the fear of support by the coloured vote for the United Party
which prompted the National Party government to press for the removal of
coloured voters from the common roll in the 1950s, a move which precipi
tated the most serious constitutional crisis South Africa has known. The
Liberal Party boasted a wide membership among Blacks even though the
latter had no franchise. The party therefore operated partially within and
partially outside the parliamentary sphere. When the abovementioned Act
prohibiting political ‘interference’ by members of one population group in
the politics of another was passed, the principle of freedom of association
was dealt a severe blow. Even after the Act was repealed,109 the pattern of
separate political parties for the different race groups had become so firmly
established that no significant moves towards ‘multiracial’ political parties
within the parliamentary context were made.
In addition to the restrictions placed on party political organization by
virtue of the system of racial separation, there are also formal requirements
with which political parties must comply: all political parties must be
registered in terms of the Electoral Act110 and parties may not adopt names
which could harm race relations, threaten state security or could be construed
as blasphemous. Parties which enjoyed no parliamentary or provincial
representation on 19 January 1979 have to meet additional requirements for
registration.111
While it is tempting to think only in terms of white political parties when
the history of the party system in South Africa is under consideration, it
should not be forgotten that non-parliamentary organizations such as the
African National Congress, for example, have formed part of the political
scene in South Africa for very many years. More recently developments have
led to the formation of the United Democratic Front, a political organiza
tion which operated across the colour bar even before the Prohibition of Po
litical Interference Act was scrapped. Another organization which has had
an important impact on the political front, is Inkatha, a largely Zulu or
ganization. While these cannot, strictly speaking, be classed as political par
ties, since they operate outside Parliament, it should be taken into account
that they would, in all probability, have been parliamentary parties had South
108 51 of 1968.
109 By Act 104 of 1985, whereby the title of the Act was changed to the Prohibition of
Foreign Financing of Political Parties Act, and ss 1 and 2 repealed.
110 Act 46 of 1946, ss 36-40. See J A Faris ‘Elections’ LAWSA vol 8 at 323.
111 The Herstigte Nasionale Party has been the hardest hit by these provisions. See HNP
van Suid-Afrika v Sekretaris van Binnelandse Sake en Immigrasie 1979 4 SA 274 (T).
Africa had a system of universal franchise and had the principle of freedom
of association received full recognition.112
Several of these extra-parliamentary organizations have on occasion fallen
foul of the law. The Communist Party was banned in 1950 in terms of the
Suppression of Communism Act113 as was the African National Congress,
owing to its close links with the Communist Party. The United Democratic
Front has ^pt-been banned as such, several of its members have been
detained, charged with treason and other offences against the state, or sub
jected to various restrictions.
The strict separation between the different population groups and the con
comitant separation in the sphere of political activity has given rise to vari
ous pressure groups, which have achieved a great deal of importance in the
political sphere. In addition to those mentioned above, there have been vari
ous black student organizations, black trade union movements (now that trade
unionism among Blacks has been sanctioned) and essentially white organi
zations such as the Black Sash and the National Union of South African
Students. The role of the media has always been a vital one, despite restric
tions imposed on both the local press and the international media.
While the principle of freedom of association has been severely curtailed
in the political sphere in South Africa, the principle of freedom of speech
or expression has been upheld to a much greater extent. Opposition political
parties are free to criticize the government both inside and outside Parlia
ment, provided the rules governing defamation are observed outside Parlia
ment and the rules of debate are observed inside it. Criticism of the
government by the media is, likewise, subject to the ordinary rules of defa
mation.114
In the rest of Africa the trend has been towards the establishment of one-
party states. Only one party is permitted, and as a rule only one candidate
is nominated, whether for the office of President or for membership of the
legislature. The only barometer of public opinion is constituted by the per
centage of votes cast in favour of that single candidate. For obvious reasons
this formula is regarded with suspicion by those schooled in the ideals of
Western democratic thought115 - the track record of the emergent African
112 Concepts such as freedom of association, expression and so on, are dealt with in
greater detail in ch 5.
113 Act 44 of 1950, now the Internal Security Act.
114 It is a criminal offence to adhere to the Communist doctrine or to promote the aims
of Communism in South Africa, therefore it is defamatory to call someone a Com
munist unless he is a listed Communist in terms of the Internal Security Act. Deroga
tory remarks about a politician’s general reputation will be defamatory, but allegations
of incompetence or political ineptitude will not. See the following cases: R v Roux
1936 AD 271; Huyser v Die Voortrekker Pers Beperk 1954 3 SA 75 (W); De Klerk
v Union Government 1958 4 SA 496 (T); Botha v Marais 1974 1 SA 44 (A); Greeff
v Raubenheimer 1976 3 SA 37 (A); SA Associated Newspapers Ltd v Estate Pelser
1975 4 SA 797 (A); also the discussion of the last-mentioned case by C J R Dugard
in Human Rights and the South African Legal Order (1978) at 179, as well as C King-
horn ‘Defamation’ LA WSA vol 7 193 at 198.
115 And by some African authorities as well: see, in general, B O Nwabueze Constitu
tionalism in the Emergent States (1973). Also see T E Smith Elections in Developing
Countries (1960), Sir Richard Luyt ‘African Constitutionalism: Constitutions in the
Context of Decolonization’ in Constitutional Change in South Africa (ed J A Benyon)
(1978); S A de Smith The New Commonwealth and its Constitutions (1964).
states is not, in general, very encouraging in this regard. However, although

the probability is much greater that a military (or civil) dictatorship will be
come established in a one-party state than in one where ‘traditional’ Western
democracy holds sway, it must be pointed out that a one-party system need
not be undemocratic per se\ furthermore, the transplantation of ‘foreign’
constitutional ideas into the political systems of newly emergent states is
fraught with hazards. The idea of a ‘loyal opposition’ may be central to the
Westminster system, but is seen by most Africans as a contradiction in
terms.116 Even communities with a fairly long history of sophisticated sys
tems of government have difficulty in accepting that political confrontation
does not have to be treasonable, and that a ‘government of national unity’
is a figment of the imagination even in a homogeneous society.
116 See S A de Smith The New Commonwealth at 236 et seq, where he discusses the fac
tors which have militated against the successful grafting of Western concepts of
democracy onto the constitutions of emergent African states.
Part B
The Historical Development of

South African Constitutional
Law from 1910 to 1983
CHAPTER TEN
General Constitutional Develop

ment in South Africa from 1910
to 1983
I THE ACHIEVEMENT OF UNION

There are a number of textbooks on South African history which deal with
the creation of the Union of South Africa.1 The purely historical aspects of
this period will therefore not be dealt with in detail in this work.
A few years after all four South African colonies had come under British
rule at the conclusion of the Anglo-Boer War in 1902, it began to be felt
that a merger of the four colonies had much to offer. The example of Canada
and Australia also exerted some influence here, because the idea of a federa
tion was seriously mooted in some quarters. It was eventually decided, how
ever, that a unitary state would suit South Africa better than a federation.2
In 1908, a conference was held in Pretoria in an attempt to sort out the
constant difficulties which arose between the colonies in regard to tariffs and
rail traffic. The four colonies were parties to a customs union, but it did
not operate smoothly.3 It was soon realized that a political union offered
the only permanent solution to the disputes,4 and it was unanimously decided
to convene a National Convention to draw up a constitution. A Convention
consisting of thirty-three delegates from all four colonial legislatures, met
under the chairmanship of Chief Justice de Villiers, first in Durban, and there
after in Cape Town. A constitution was drafted and submitted to the four
legislatures.
The Transvaal Parliament was prepared to accept the draft without amend
ments, but all the other Parliaments proposed amendments. The Cape and
Free State Parliaments objected mainly to the proposed system of propor
tional rather than regional representation. The Free Staters felt very strongly
that urban and rural voters should not enjoy equal treatment, but that the
rural constituencies should be favoured. This resulted in the inclusion of sec
tion 40(3) in the South Africa Act, in terms of which the delimitation com
mission had, in demarcating the boundaries between constituencies, to take
cognizance of certain circumstances in such a way that some of them could
1 E g R H Brand The Union of South Africa, 1909. Also see H R Hahlo and E Kahn
The Union of South Africa: The Development of its Laws and Constitution (1960) ch 3.
2 According to Hahlo and Kahn op tit at 119, the disadvantages of federation were often
exaggerated by the advocates of a Union.
3 See Brand op cit at 26.
4 The Inter-Colonial Convention of 1908 was a direct result of the Transvaal’s stated
intention to withdraw from the customs union — see Hahlo and Kahn loc cit.
197
have fifteen per cent more or fewer voters than others. Since some rural con
stituencies could therefore have up to thirty per cent fewer voters than urban
constituencies, the vote of the rural community was worth more than that
of the city dwellers.5 Natal, too, proposed amendments, many of them purely
obstructive. Although “none of them did anything to improve either the form
or the substance of the Constitution,”6 the Convention went to great lengths
to accommodate Natal and agreement was finally reached.
The amended draft Constitution was accepted by the Parliaments of the
Transvaal, Cape Colony and Orange Free State. A referendum was held in
Natal, and, contrary to all expectations,7 the Constitution was approved by
the electorate with an overwhelming majority.8
By June 1909, the draft Constitution had been approved by all four colo
nies, and it was passed by the British Parliament in the same year.9 No amend
ments were made by the British Parliament, but a kind of preamble was
added, stating the reasons for the legislation (the desirability of unification,
the agreement of the four colonial Parliaments, the need to make provision
for four provinces and for the possible incorporation of other South Afri
can territories). This is the foundation of the view that the South Africa Act
was a pactum unionis, an agreement by the people of the four colonies to
form a community in the same sense as the historical communities of the
middle ages.10
VerLoren van Themaat points out11 that although the South Africa Act
was the product of a voluntary process leading to the creation of a commu
nity, the participants were not altogether free to create a community entirely
as they may have wished, since their constitution was subject to the approval
of the British Parliament. The British views on racial affairs led to the
incorporation of the so-called entrenched sections (35, 137 and 152) which
protected the non-white franchise in the Cape and which were to give rise
to South Africa’s most bitter constitutional crisis in the 1950s.
5 This principle still applies.

6 Brand op cit at 37.
7 The English press in Natal was strongly opposed to the idea of Union.
8 Brand loc cit. This was the first time a referendum was used in South Africa. Although
the idea did not originate in Switzerland, the referendum is usually regarded as a Swiss
institution. It is, in any case, foreign to English law (a referendum was first conducted
in Britain in connection with Britain’s proposed entry into the European Economic
Community) and was never used in the Boer Republics either. President Steyn tried
the idea in the Orange Free State in the 1890s without success. Two referendums
(plebiscites) have been held in South Africa since Union: one in 1960, before the country
became a republic, and one in 1983, to test the white electorate’s views on the 1983
Constitution Act. It may conceivably be argued that the holding of a referendum has
become a tradition (or even a convention) in South Africa when radical constitutional
change is proposed.
9 South Africa Act 1909 (Edw VII (c)).
10 It could be argued that the unification of South Africa was an example of a social
contract as expounded by Rousseau, but VerLoren van Themaat Staatsreg 3 ed (1981)
at 199 feels that the community concept reflects the reality of the situation more ac
curately. If one accepts that the South Africa Act was a pactum unionis, an agree
ment ratified by the British Parliament, the deduction that the powers of the South
African Parliament derive ultimately from the South Africa Act, and that this Act
is indeed the grundnorm of South African constitutional law, as is held by Beinart
(see the discussion in ch 6) is a logical one.
11 Op cit at 200.
Constitutional Development in South Africa 199
II FROM 1910 TO THE PASSING OF THE STATUTE OF WEST

MINSTER
1 The General Characteristics of the South Africa Act
The South Africa Act created a system of government which was, in all
essential features, a ‘Westminster’ system.12 There were two Houses of Parlia
ment — the House of Assembly (lower House) and the Senate (upper House);
the executive was responsible to and formed part of the legislature; while
the judiciary occupied a more independent position. The doctrine of separa
tion of powers was therefore not adhered to absolutely; in this regard the
position was in accordance with that in Britain.
Although the Union of South Africa was unquestionably a unitary state,
there were those who saw certain federal characteristics in the system,13 nota
bly in the equal representation of the provinces in the Senate, and in the sys
tem of provincial government, which is not a feature of the Westminster
system. These were not true federal characteristics, however, since the
provinces retained no real autonomy as they would have done in a federa
tion.14 The provision that the powers of the Provincial Councils would not
be curtailed or the provincial boundaries altered without a prior petition from
the province concerned, is not particularly helpful, since it was generally not
regarded as a binding ‘manner-and-form’ provision like the entrenched pro
visions. Parliament was fully at liberty to amend or repeal the provision.15
It is of some interest that section 1 of the South Africa Act16 provided
that the people of the Union acknowledged the sovereignty and guidance of
the Almighty. Much emphasis is, to this day, placed on the sovereignty of
Parliament, so that there would appear to be a contradiction in terms, even
if only in the philosophical sphere. There is some difference of opinion
whether this provision (and its successors) may be said to contain a legal norm
or simply a confession of faith.17 VerLoren van Themaat18 reconciles the two
principles by suggesting that Parliament is the supreme legislative authority,
but that authority is not absolute, since it acknowledges the sovereignty of
God.
2 The Constitutional Restrictions applicable to the Union in 1910

It has already been mentioned that the obligatory reservation of legislation
did not disappear with the achievement of Union.19 Although the British
12 See the discussion of the characteristics of the Westminster model in ch 4.

13 See H J May The South African Constitution 2 ed (1949) at 132 and 191; 3 ed at 359;
H J May and M L Mitchell ‘The Development of Provincial Government since Union’
1960 Acta Juridica 29 at 42.
15 See the discussion at 148-149. The same applies to s 114 of Act 32 of 1961, the successor
to s 149 of the South Africa Act.
16 As amended by s 1 of Act 9 of 1925.
17 See J D van der Vyver Die Juridiese Funksie van Staat en Keck, (1972) at 157 and
‘The Function of Legislation as an Instrument for Social Reform’ 1976 SALJ at 62,
who holds the view that the provision contains no legal norm, and F Venter ‘Die Staats-
regtelike Soewereiniteit van God’ 1977 TSAR 64, who feels that it does.
18 Op cit at 201 and 214-215. He raises the possibility that the provision may in certain
circumstances, support the argument that the people have a ‘right’ to resist and thus
to disobey ‘ungodly’ parliamentary legislation.
19 In ch 3.
government would be less likely to interfere with one of the ‘senior’ colonies
such as Canada, Australia and South Africa, the Union was nevertheless tech
nically subordinate to Britain in several respects.
(a) The Union Parliament was subordinate to the British Parliament

(i) The Colonial Laws Validity Act still applied, so that any Union legisla
tion which conflicted with British legislation that applied to South Africa
was invalid.20
(ii) The British Parliament could, at any time, adopt laws and make them
applicable to the Union, thus rendering Union laws which conflicted with
such laws invalid.
(iii) Certain sections of the South Africa Act (33, 34 and 85) could not be
amended until a certain period had elapsed, while others (35, 137 and 152)
could be amended or repealed only if a certain procedure was followed. Any
law which purported to amend or repeal these sections in conflict with the
Act, would have been invalid by reason of its repugnancy to a British law
(the South Africa Act itself), but the British Parliament could have amend
ed or repealed them at any time using the normal procedure.
(iv) The Union Parliament was indirectly subordinate to the British Parlia
ment in the sense that the British Cabinet was dependent on the majority
in the House of Commons, who could have instructed the Cabinet to advise
the King to veto Union legislation.
(b) The Union Parliament was subordinate to the British executive

The British ministers could interfere with Union legislation or draft legisla
tion at various stages of the process:
(i) as mentioned above, when they advised the King about the instructions
to be given to the Governor-General in regard to reservation, approval or
disapproval of legislation;
(ii) when they advised the King whether to assent to legislation which had
been reserved;
(iii) when they advised the King whether to disallow legislation that had al
ready been approved by the Governor-General;
(iv) when they gave the Governor-General direct instructions, which they
could do, since they had appointed him.21
The convention gradually developed that the British ministers would not
advise the King about Union legislation, but would serve purely as a conduit
20 There was a large number of these, for example, the Merchant Shipping Act 1894,
Colonial Courts of Admiralty Act 1890, the Official Secrets Acts of 1911 and 1920.
In addition the following laws are mentioned by Keith Constitutional Law of the British
Dominions (1933) at 465: Colonial Boundaries Act 1895; Fugitive Offenders Act 1811;
Colonial Prisoners Removal Acts of 1869 and 1884; Extradition Acts of 1870 and 1873;
Foreign Enlistment Act 1870 (in part); International Copyright Act 1886; Geneva Con
vention Act 1911; Indemnity Act 1920; Bankruptcy Act 1914; Trustee Act 1925.
21 In the case of the Union, the Governor-General was expressly requested in the letter
patent to follow the instructions of the senior secretaries of state; see L I Coertze ‘Die
Posisie van die Koning as Hoof van die Uitvoerende Gesag van die Unie van Suid-
Afrika’ 1939 THRHR 250.
for transmitting the wishes of the Union ministers. Nor did the King and
Governor-General ever exercise their right of veto in respect of Union legis
lation. In theory, however, the ministers’ powers remained, and in practice
the British minister formally advised the King. Each bill presented to the King
for his assent was formally presented to him with the necessary advice, by
the minister concerned.22 Thus the British Cabinet retained a reserve power
in respect of Union legislation.
(c) The Union Parliament could not adopt extraterritorial legislation23

The principle that the colonial legislatures could not adopt extra-territorial
legislation, as expounded in Macleod v Attorney-General of New South
Wales24 was generally recognized. Colonial legislatures were authorized to
make laws ‘for the peace, order and good government’ within the territory,
and it was accepted that this meant, literally, within the borders of the coun
try only. However, it was not clear exactly what constituted ‘extraterritorial
legislation’: a colonial law taxing dividends on shares in England was declared
invalid,25 while profits made in the Union by a person not resident within
the Union could be validly taxed.26
(d) The Union Executive was dependent on the British Executive

(i) Even though section 14 of the South Africa Act described the Union
ministers as the King’s Ministers of State for the Union, only the British
ministers had access to the monarch. Thus a Union minister wishing to ad
vise the King was obliged to do so with the mediation of a British minister.27
The mediation of a British minister was also rendered necessary by the fact
that the royal seals were in the possession of the British ministers.28 In the
ory, therefore, the British Cabinet could interfere with every executive act
of a Union minister. Nevertheless, the custom (which later developed into
a convention) was that the British ministers advised the King in accordance
with the wishes of the colony concerned.
(ii) Although the Governor-General was the head of the Union executive,
he was appointed by the King on the advice of his British ministers and was
responsible to the British government, whose instructions he was obliged to
follow.29
(e) The Union Executive was dependent on the British Parliament

The British Parliament could, by passing legislation applicable to the Union,
interfere with both the Union executive’s function and the Union Parliament’s
powers. The House of Commons could also interfere indirectly by obliging
22 This was the Minister for Colonial Affairs, later the Minister for Commonwealth Re
lations.
23 The topic of extraterritorial legislation has already been touched on in ch 3.
24 1891 AC 455.
25 See Brassard v Smith 1925 AC 371; Pass v British Tobacco Co (A ustralia) Ltd 42 TLR
771 (1926); Spiller v Turner 1897 1 ch 911; Indian Investment Co v Borax 1920 1 KB
539; contra R v Offen 1934 SWA 73.
26 Rhodesia Railways v Commissioner of Taxes 1925 AD 438.
27 Usually the Minister of Colonial Affairs.
28 Coertze 1939 THRHR at 250.
29 Ibid.
the British ministers, who were dependent on a majority in the House, to

advise the King in a particular way in regard to executive action relating to
the Union. The British Parliament did not, however, interfere in this way
in practice.
(f) The Union judiciary was subordinate both to the British Parliament and
to the British Cabinet
(i) The Union courts were obliged to apply laws of the British Parliament.
(ii) The British judiciary had no authority over the Union judiciary, but the
Privy Council, which was, in the first place, a body which assisted the King
in the exercise of his executive powers, was the highest court of appeal in
the Union until 1950.30 It could therefore reverse any decision by a Union
court, declare invalid any Union legislation which was in conflict with British
laws applicable in the Union, and give judgment against the Union ministers
in respect of executive acts performed by them.
3 Colonial and Imperial Conferences prior to 1914

The practice of holding periodic imperial conferences started in the latter
part of the nineteenth century.31 In 1902, agreement was reached on the desir
ability of convening a conference every four years at least, so that matters
of common interest could be discussed. At the next conference, which was
held in 1907, the name ‘Imperial Conference’ was adopted, and it was decided
to hold conferences at four-yearly intervals under the chairmanship of the
British Prime Minister.32 It was at this conference, too, that the name ‘domin
ion’ was adopted for the independent colonies.33
At the imperial conference held in 1911, the matters discussed were for
eign affairs and the defence of the Empire. The British Prime Minister,
Asquith, wanted diplomacy to remain in the hands of the British govern
ment, although the dominions were given the assurance that they would be
kept abreast of affairs. The dominions were expected to contribute to the
defence of the Empire.
Canada continued to take the lead in the colonial and imperial confer
ences, and strove for recognition of her independent status. Because of the
30 See the discussion in ch 3. The continued authority of the Privy Council as the final
court of appeal in the colonies stemmed from prerogative, and was confirmed by sta
tute in 1844: see A B Keith Constitutional Law of the British Dominions (1933) at
265, and K C Wheare The Constitutional Structure of the Commonwealth (I960) at
45. There were two kinds of appeal to the Privy Council: that ‘by right of grant’ and
that by special leave of the Privy Council, instituted by the Judicial Committee Act
of 1844. The latter could not be abolished by the colonial legislatures: see VerLoren
van Themaat op cit at 205 fn 85; Nadan v The King 1926 AC 482; British Coal Corpo
ration v The King [1935] AC 500 (PC); O Hood Phillips Constitutional and Adminis
trative Law 6 ed (1978) at 704.
31 The first was held in 1887, and further conferences in 1894 and 1897.
32 Duncan Hall The British Commonwealth of Nations (1920) at 112. On that occasion
the colonies drafted a formal Constitution for the imperial conferences, embodying
the principle of imperial co-operation, with the assistance of the British Prime Minister.
33 Keith Imperial Unity and the Dominions at 9; Lovell and Hall The British Common
wealth of Nations (1927) at 575.
possibility that Canada could call upon the support of her powerful neigh
bour, the United States of America, the Canadians were in a strong position
to negotiate.
4 The First World War

The First World War provided a powerful thrust towards full constitutional
independence for the dominions. Once again Canada, led by Prime Minister
Robert Borden, took the lead. An imperial war conference was held in 1917,
at which it was decided that the constitutional position of the constituent
elements of the British Empire and, in particular, the relationship between
Britain and the dominions, needed to be revised. The principle was accepted
that the revision and adaptation of relationships with the Empire “should
be based upon a full recognition of the Dominions as autonomous nations
of an Imperial Commonwealth”.34
Another war conference was held in 1918, at which it was agreed that one
navy for the entire Empire was not practicable, and that dominion navies
should enjoy autonomy.
It must be clearly stated, however, that although the dominions were
dubbed ‘autonomous’, there was no mention of equality between Britain and
the dominions at the time. The declaration issued by the war conference was,
nevertheless, subsequently interpreted as signifying that Britain and the
dominions enjoyed equal status, and the relationship between Britain and
the dominions was referred to in terms of ‘equality of nationhood’ as early
as 1919.
The dominions were parties to the Peace of Versailles and the Covenant
of the League of Nations in 1919, but not as fully independent nations. They
did not enjoy the same status as Belgium or Greece, for example, though
Borden strove to achieve equal status with Belgium, and the imperial war
Cabinet more or less promised him that this would be conferred.35
The position of the dominions at the Treaty of Versailles was anomalous.
The treaty distinguished between allied and associated powers and high con
tracting parties. Only the British Empire was on the list of principal allied
and associated powers, and not the dominions. The high contracting parties
were the heads of state of the various allied and associated powers, includ
ing Germany and the dominions, but not the German head of state. The al
lied heads of state were deemed to constitute the high contracting parties
and to conclude the treaty with the German state, and not the powers or
states themselves. The German President, on the other hand, was not made
a high contracting party.36 The King, being the head of state of Great Bri
tain, the dominions and India, could sign on behalf of all. While the Ger
man foreign minister and another minister signed the treaty on behalf of
34 Resolution XI, Imperial War Conference 1917. Cf Lowell and Hall op cit at 176; Keith
Speeches and Documents 1918-1931.
35 Lovell and Hall op cit at 622; Duncan Hall op cit at 184. The dominions were dissatis
fied because the truce had been signed on 11 November 1918 and they had been ignored:
H Edelman Vorming en Ontvoogding van die Unie van Zuid-Afrika (1935) at 118.
36 Germany had just become a republic, and it was feared that if the Kaiser were to have
succeeded in a counter-revolution and regained the throne, he could have repudiated
a treaty signed by a President who had become the head of state by revolution.
Germany, it was signed, on behalf of King George V, by the ministers of

Great Britain, Ireland, the overseas British dominions and India, even though
India had not yet attained full dominion status. Representatives of the domin
ions and India were permitted to participate in the discussions which preceded
the peace treaty.
Like the Treaty of Versailles, the Covenant of the League of Nations did
not place the dominions on an equal footing with states such as Belgium.
The British Empire, the dominions and India were mentioned as original
members of the League, but the dominions and India were listed, not in the
same alphabetical order as the other states, but as a ‘subsection’ of the British
Empire.37 The inference was that although India and the dominions were
members of the League of Nations, they nevertheless did not enjoy the same
standing as the other signatories. This inference was strengthened by the in
clusion of India, about whose subordinate status there was no doubt at all,
in the same categories as the other dominions, which were virtually independ
ent.38
5 The Development of Autonomy in the Dominions between 1919 and

1926
After 1919, the leading dominions were eager to take their place in the inter
national community and to maintain their independence.39 By 1920, the
dominion ministers still had no direct access to the King, but, according to
Duncan Hall,
... the effect of the constitutional developments from 1917 onwards has been
to introduce the new constitutional practice that the Crown should not take ac
tion in any vital matter of high policy involving each part of the Empire unless
advised thereto by all responsible Governments of the Group.40
The dominions gradually began to conduct foreign relations with states out
side the British Empire and, in 1920, Britain agreed that Canada could send
her own envoy to the United States.41
The constitutional position of the dominions was stated in the following
terms by the British Prime Minister at the 1921 imperial conference:
The British Dominions have now been accepted fully into the comity of nations
by the whole world . . .. They have achieved full national status, and they now
37 The list of original members of the League of Nations read as follows:

I Original members of the League of Nations,
Signatories of the Treaty of Peace
United States of America China
Belgium Cuba
Brazil Ecuador
British Empire France
Canada
Australia
South Africa
New Zealand
India
38 Cf Keith Speeches and Documents 1918-1931 at 17; Lovell and Hall op cit at 622;
Duncan Hall op cit at 193.
39 Op cit at 247.
40 Duncan Hall op cit at 248.
41 Lovell and Hall op cit at 576 and 579; Keith Speeches and Documents 1918-1931 at 38.
stand beside the United Kingdom as equal partners in the dignities and respons
ibilities of the British Commonwealth.42
The developments that had taken place with regard to the dominions were
discussed at the conference but no decision was taken.
The issue of foreign relations came pertinently to the fore during the so-
called Chanack incident. When Turkey invaded Greek territory in Asia Minor
in September 1922, the British Prime Minister, Lloyd George, contacted the
dominions to enquire whether they would be willing to go to war against
Turkey. Australia and New Zealand signified their willingness but Canada
and South Africa expressed reluctance.43 The idea that one part of the Empire
could be in a state of war while others remained neutral was still totally
unacceptable to adherents of imperialism.44 (This very question was to arise
in South Africa at the outbreak of the Second World War in September 1939.)
The main task of the imperial conference of 1923 was to discuss the con
clusion of treaties and the conduct of foreign relations by the dominions.
It was decided that the individual component nations could conclude treaties
with foreign powers, but that the other governments should be kept fully
informed. Where more than one government was involved in a treaty there
should be full communication of ideas before and during negotiations.
At this stage the Empire was still the principal entity which consisted of
a number of self-governing and less independent nations.
6 The Imperial Conference of 1926

By 1926 the British Empire was no longer an empire in the strict sense -
at any rate where the dominions were concerned. It had developed into an
association of states whose subjects all owed a common allegiance to the
British Crown, but which were not in any way subordinate to one another.
Although the term ‘British Empire’ was still in use, ‘British Commonwealth
of Nations’ or simply ‘Commonwealth of Nations’ had become more
common.45
The imperial conference of 1926 was the most important of all the coloni
al or imperial conferences, because the constitutional position of the domin
ions was examined thoroughly for the first time. Although the British
representatives were opposed to a clear definition of the constitutional sta
tus of the dominions, South Africa, who in fact placed the matter on the
agenda,46 Ireland and Canada insisted that the matter be clarified.47 The up
shot was a unanimous resolution:
They (Great Britain and the Dominions) are autonomous communities within the
British Empire, equal in status, in no way subordinate one to another in any aspect
42 Cf Lovell and Hall op cit at 589 and 599.

43 Lovell and Hall op cit at 576 and 602.
44 Keith Speeches and Documents 1918-1931 at xxiv.
45 After 1926 ‘British Empire
* was sometimes used to denote Britain and those colonies
which had not attained dominion status.
46 The National Party had come into power in 1924.
47 Keith Speeches and Documents 1918-1931 xxv and xxvi. Canada, South Africa and
Ireland demanded greater independence, while Australia and New Zealand were more
conservative. (K C Wheare The Statute of Westminster and Dominion Status 4 ed 1949
at 227 referred to New Zealand’s “lukewarm attitude to proposals at the conference
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.48
Certain anomalies remained, however, in the use of the terms ‘British Empire’
and ‘British Commonwealth of Nations’.49 Furthermore, although the decla
ration stated unequivocally that the dominions were equal in status to Britain
it was nevertheless said that equality of status did not apply to the same ex
tent with regard to ‘function’ - it is not clear what was meant by this.
Presumably Britain would still take the lead in policy matters, finance, trade,
foreign policy and so on, but now by virtue of the dominions’ voluntary con
sent rather than by virtue of Britain’s superior constitutional status.
The declaration also stated:
Existing administrative, legislative and judicial forms are admittedly not wholly
in accord with the position as described. This is inevitable, since most of these
forms date back to a time well antecedent to the present stage of constitutional
development.
The forms referred to above were the following:
(i) The King’s title.
(ii) The position of the Governor-General. In consequence of a resolution
of the imperial conference, the Governor-General was no longer the link
between the British government and the Union government but the represen
tative of the Crown.
(iii) The legislative powers of the dominions. Although the British Parlia
ment had long since ceased to make use of its powers to interfere with the
dominions in the legislative sphere, the position was still technically that
dominion legislation which was repugnant to an Act of the British Parlia
ment applicable to that dominion was invalid in terms of the Colonial Laws
Validity Act, and that the British Parliament could still, in theory, make laws
for the dominions without their consent.5051 The dominion parliaments were
also still subordinate to the British executive in theory, because the King acted
on the advice of his British ministers in regard to the royal instructions to
the Governor-General, the reservation of bills for the King’s assent and the
exercise of the King’s power to disallow legislation expost facto.5' Paragraph
of 1926 that the legal status of the Dominions should be brought into line with their
conventional status”. In 1931 Churchill confessed that he had misgivings about the
resolutions of the conference, but subsequently justified the resolutions in the House
of Commons, saying that they were in line with the views of those who wanted to
keep imperial bonds to a minimum and thus to remove the relationship between Britain
and the dominions from the political arena in the dominions: Duncan Hall op cit at
231-235. Gen Smuts, speaking in a debate in the House of Assembly in 1919, conten
ded that equality of status had already been established. In reply to a question whether
a British law binding the Union would be legal, he said: “It is not a question of law.
It would be unconstitutional.”
48 The report of the inter-imperial relations committee, 1926 imperial conference par 1;
cf Keith Speeches and Documents 1918-1931 at 161.
49 ‘British Empire’ was still generally used in treaties but the dominions were mentioned
by name if they were parties to the treaty.
51 See the discussion at 200. It may be mentioned that in 1909 King Edward VII had,
on advice of his British Ministers, instructed the Governor-General of the Union to
reserve any bill which affected the Non-White franchise.
3(c) of the 1926 report stated that it was the right of the government of each
dominion to advise the Crown as regards its own affairs, and that it would
not be in accordance with constitutional practice for advice to be given to
the King against the views of the government of the dominion concerned.52
The problem of extraterritorial legislation by dominion parliaments was also
still unclear.53
The report of the 1926 imperial conference mentioned four matters which
still awaited clarification:
(i) The King’s power to disallow laws already approved by the Governor-
General and the practice that all dominion legislation was submitted to the
King.54 The principle was accepted that the British government would not
interfere in the affairs of dominions at all.
(ii) The possibility of reservation of legislation also still remained - in the
ory. Again the conference declared that the British ministers would not ad
vise the King to exercise this power in respect of dominion legislation.
(iii) It was declared desirable that the dominions should be competent to
adopt extraterritorial legislation once the issue of extraterritoriality had been
investigated.
(iv) The Colonial Laws Validity Act still applied, so that, in theory, the British
Parliament could still legislate for the dominions. Attention was, however,
drawn to the constitutional practice that the British Parliament did not adopt
laws for a dominion without the consent of the dominion concerned.
Other topics dealt with were merchant shipping, the appeal to the Privy
Council and the signing of treaties. The desirability of uniform shipping legis
lation was stressed, and the appeal to the Privy Council was deferred for
discussion at the next imperial conference. It was stated, however, that the
dominions should be able to decide for themselves whether to retain the appeal
or not. Finally, it was decided that the King would continue to sign treaties
as the head of state, but that the ‘parts’ of the Commonwealth on whose
behalf he was signing would be indicated in the treaty.
7 The Conference of Experts, 1929

As recommended by the imperial conference of 1926, a conference of ex
perts was convened in 1929 to examine the problems relating to dominion
legislation and sub-conference was convened to investigate merchant ship
ping. The conference made the following recommendations:
(a) Disallowance
The conference agreed that the constitutional position required that the King
should no longer be empowered to disallow dominion legislation.55 Where
52 See L I Coertze ‘Die Posisie van die Koning as Hoof van die Uitvoerende Gesag van
die Unie van Suid-Afrika’ 1939 THRHR 250 at 251, who puts forward the view that
a British minister could have advised the King against the wishes of the dominion govern
ment only when his power to do so was based on an existing statute.
53 See the cases cited by VerLoren van Themaat op cit at 122 for 65.
54 At the insistence of Ireland, the conference declared that the British government would
not advise the King contrary to the wishes of the dominion governments (par 3(c) of
the report).
55 Australian and South African legislation could be invalidated after one year and New
Zealand and Canadian legislation within two years after receipt of a law assented to
by the Governor-General in question.
the constitution of a dominion made provision for disallowance, the power

could be abolished in accordance with the procedure prescribed in that con
stitution. In other cases the British Parliament could adopt the required legis
lation.56
(b) Reservation
The conference report stated that the power to reserve legislation could be
exercised at three stages:
(i) in the instructions (to reserve legislation) which the King gave the
Governor-General on the advice of his British ministers;
(ii) at the stage when the British ministers advised the King about such a
reserved bill;
(iii) when the British minister concerned formally countersigned a bill emanat
ing from a dominion; the possibility existed that the minister could delay
the adoption of the bill or even ensure that it was never submitted to the King.
The conference decided that the first two means of interference would no
longer take place, thus endorsing the views taken by the 1926 Imperial Con
ference.57 (The third possibility was not mentioned expressly.) It was also
decided that where obligatory reservation was provided for by statute or in
the constitution of a particular dominion, the dominion government would
advise the King and the British government would not advise the King other
wise than in accordance with the views held by the dominion.58
As in the case of disallowance, the dominions could either abolish obliga
tory reservation themselves or request the British Parliament to do so.59
(c) Extraterritorial legislation

It was recommended that legislation be adopted making it clear that the
dominion parliaments were not subject to any restrictions in this sphere.60
(d) The Colonial Laws Validity Act

The conference commented on the circumstances which had led to the pass
ing of the Colonial Laws Validity Act and pointed out that, although the
Act had extended the powers then possessed by colonial legislatures, it
nevertheless contained restrictions which, in the view of the conference, were
no longer in line with the constitutional position of the dominions. It would
not have solved the problem merely to repeal the Colonial Laws Validity Act,
however, since that could have revived the position as it had been before
56 Par 23. In South Africa the power of disallowance could be abolished by a simple
majority (s 65 of the South Africa Act, read with s 152) and this was done in the Status
Act 69 of 1934.
57 Par 32.
58 Par 33 and 34.
59 Par 36.
60 Although the courts never expressly declared invalid any dominion legislation having
extra-territorial effect, it was sometimes stated, albeit obiter, even by the Privy Coun
cil, that such legislation would be invalid; e g see Macleod v Attorney-General for
New South Wales 1891 AC 455 (PC).
________________ Constitutional Development in South Africa 209
1865.61 The text of the provision recommended by the conference was adopted
with a minor amendment as section 2 of the Statute of Westminster of 1931.
The British government was, however, most reluctant to surrender the legis
lative supremacy of the British Parliament entirely. Britain would have
preferred to have retained the convention that the British Parliament would
not adopt legislation in respect of a dominion rather than to pass legislation
to that effect. The existence of a convention does, however, entail the exist
ence of a reserve power which can be exercised in a time of crisis, for exam
ple if a coup d’etat is threatened. On the other hand, there were those who
argued that the British Parliament could even repeal a statutory surrender
of its legislative powers, since a sovereign parliament cannot bind its succes
sors. Paragraph 54 of the report, which dealt with this issue, was somewhat
ambiguous and there were those who interpreted it to mean that the British
Parliament should retain a residuary supremacy. The conference drew at
tention to the fact that the royal title could be changed by mutual consent
only and that the constitutional guarantees embodied in the constitutions
of Canada, Australia and New Zealand would not be affected by the pro
posed legislation.62 Legislation in this regard was not deemed necessary for
South Africa and Ireland, since they were competent to amend their own
constitutional law and, it was said further, “in the case of the Union of South
Africa the exercise of these powers is conditioned only by the provisions of
Section 152 of the South Africa Act 1909”.63 (It is ironic that this very pro
vision was to constitute the subject of South Africa’s most serious constitu
tional crisis, the coloured franchise affair, in the 1950s.)
(e) Legislation relating to merchant shipping and the Courts of Admiralty Act
of 1890
The dominions did have the power to legislate for merchant shipping, but
their powers were subject to a number of restrictions. To make it clear that
the dominions had plenary legislative powers in matters relating to merchant
shipping, it was recommended that the British Parliament adopt legislation
and that Britain and the dominions co-operate where matters of merchant
shipping were involved.
8 The Imperial Conference of 1930

The most important task of this conference was to ratify the recommenda
tions of the Conference of Experts of 1929. Although the latter had done
its job thoroughly, there was still some uncertainty because of the British
government’s efforts to retain the conventional basis of the relationship of
61 The repeal of the Colonial Laws Validity Act posed a problem in so far as the British
Parliament still had to adopt laws for the dominions; for example, certain of the pro
visions of the British North America Act (the Canadian Constitution) could be amended
only by a British Act. Thus the legislative powers of the British Parliament in respect
of the dominions could not simply be removed altogether. See, further, A B Keith
Speeches and Documents on the British Dominions xxix and xxx and K C Wheare
The Statute of Westminster and Dominion Status 3 ed (1947).
62 Par 62-66.
63 Par 67.
equality between Britain and the dominions. The British government want
ed the British Parliament, like the King, to retain a reserve power in the rela
tionship between itself and the dominion parliaments, so that the British
Parliament would still be able to take over in a crisis and to legislate for the
dominions. The British government did not openly strive to achieve this, since
the representatives of Canada, Ireland and South Africa would have pro
tested vehemently, but it appears that the dominions did not realize the full
implications of the ambiguity of paragraph 54 of the 1929 report, although
the Canadian and South African representatives expressed their reservations
about the matter.64 The uncertainty created by paragraph 54 was never cleared
up altogether, since it was never stated categorically that the reserve power
of the British Parliament to make laws for the dominions no longer existed.
The recommendation made at the 1929 conference that the British ministers
would not, in any circumstances, advise the King in a manner which con
flicted with the wishes of the dominion, was accepted. As a result, the British
minister would be nothing more than a conduit whereby the recommenda
tion of a dominion minister could be formally submitted to the King. Even
so, the South Africans were not altogether satisfied, since the impression that
the dominion minister remained in a subordinate position was not removed;
furthermore, the possibility that a British minister could refuse to submit
the advice of a dominion minister to the King was not excluded. This result
ed, in 1931, in the establishment of a practice that Union ministers would
have direct access to the King. The Union ministers personally submitted
documents to the King for his signature. The normal procedure was that the
Governor-General was asked to send a letter to the King from the Prime
Minister, requesting the King’s assent to a particular act of the executive.
If any further explanation was required, it could be furnished by the Union’s
High Commissioner in the United Kingdom.
Ill FROM 1931 TO 1961

1 The Statute of Westminster 193165
The Statute of Westminster, subtitled “An Act to give effect to certain reso
lutions passed by Imperial Conferences held in the years 1926 and 1930”
contained the following provisions:66
(a) It was stated in the preamble that Great Britain, Ireland and all the domin
ions had consented to the legislation and requested that it be adopted.
(b) The existing convention that the royal title could be amended by mutual
agreement only was also stated in the preamble.
64 There were other problems as well: for example, the Canadian provinces feared that
the repeal of the Colonial Laws Validity Act would weaken their position vis-a-vis
the central government, while the British government was concerned that the repeal
of the Act might detract from the normal extraterritorial force of British laws, i e that
they would not enjoy the same force in the dominions as in France or the United States
of America, for example.
65 22 Geo V c 4.
66 See VerLoren van Themaat op cit at 532-534 for the full text of the Statute.
_ ____________________Constitutional Development in South Africa.
(c) Section 2(1) of the Statute repealed the Colonial Laws Validity a •
so far as it applied in the dominions, and subsection (2) made it clearCt in
the position as it was before 1865 would not revive. Section 2(2) prov-that
that no law of a dominion would be invalid on the ground that it was reIded
nant to a British law applicable in the dominion, and that any such Br- Vg"
law could be amended or repealed by the dominion parliaments. tlstl
(d) Section 3 provided that the dominion parliaments were competent
adopt laws having extraterritorial force. °
(e) Section 4 provided that no British law would apply in a dominion unless
the law declared expressly that the dominion in question had requested that
the Act be passed.
2 The Effect of the Statute of Westminster

There were various views on the effect of the Statute.
(a) The first, and ostensibly the most logical (albeit positivist) view, was that
the Statute of Westminster conferred autonomy on the dominions. It is not
always clear, but it seems as if this was the view most generally held in the
South African courts, the rest of the Commonwealth and by the Privy Coun
cil.67 Some British writers also referred to the powers of the dominion parlia
ments as ‘derived powers’.
(b) The second view, held by VerLoren van Themaat68 amongst others, is
that the autonomy of the dominions, and that of the dominion parliaments,
was an accomplished fact and that the Statute was merely a declaratory Act
serving to set down in statutory form the factual situation as it had existed
for some time. This approach finds support in the report of the 1926 imperi
al conference, which referred to the dominions as ‘autonomous communi
ties’ and stated69 that “existing administrative, legislative and judicial forms
are admittedly not wholly in accord with the position as described”, con
tinuing: “This is inevitable since most of these forms date back to a time
well antecedent to the present stage of constitutional development.” Accord
ing to this view, the dominion parliaments could have passed legislation in
67 See R v Ndobe 1930 AD 484 in which there was an obiter dictum to the effect that
an Act of the Union Parliament which conflicted with a British Act applicable in the
Union, would be invalid. In Ndlwana v Hofmeyr 1937 AD 229 it was accepted that
the Union Parliament had become independent as a result of the adoption of the Sta
tute of Westminster. In Harris v Minister of the Interior, 1952 2 SA 428 (A) at 459
and 461, likewise, it was accepted that, until the Statute of Westminster had been adopt
ed, “the Union Parliament could not pass any law repugnant to a British Act which
extended to the Union” (per Centlivres CJ). The effect of the Statute of Westminster
was that “the Union Parliament can now make a law repugnant to a British Act of
Parliament in so far as that Act extends to the Union, e g the Union Parliament can,
as it has actually done, repeal the British Merchant Shipping Act in so far as it extends
to the Union”. In Moore v Attorney-General for the Irish Free State 1935 AC 484
it was accepted that the Statute of Westminster had conferred on the Irish Parliament
the power to repeal the Irish Constitution and the Anglo-Irish Treaty. Also cf British
Coal Corporation v The King [1935] AC 500 (PC); Attorney-General for Ontario v
Attorney-General for Canada 1947 AC 127; Attorney-General for New South Wales
v Trethowan 1932 AC 526.
68 Op cit at 127-128.
69 In par 3.
conflict with a British law applicable to those dominions even before the
Statute of Westminster had been passed.
The first-mentioned formalistic view will appeal to the positivist, while
the latter will find favour with those who regard law as those rules which
enjoy general observance in a community rather than as the command of
the sovereign. The argument is largely an academic one, however, and pos
sibly of less interest to modern constitutional law than the third view, which
is more rigid than either of the first two.
(c) The view of the well-known British authority, A B Keith, was based prin
cipally on the sovereignty of the British Parliament. He believed that the lat
ter could repeal the Statute at any time, and could even revive the Colonial
Laws Validity Act. Such a law would be wholly valid in Britain and the Brit
ish courts would be obliged to apply it.70
Keith’s approach is, perhaps, technically correct, but he apparently did
not realize that to take this argument to its logical conclusion would lead
to absurdity in practice: in theory the British Parliament could legislate for
its most famous former colony, the United States of America, or even an
nex the Soviet Union - and the British courts would be obliged to give ef
fect to the legislation. At the time of the passing of the Statute of Westminster,
however, this absurdity was not quite so obvious, for the simple reason that
the dominions were, at the time, still British possessions, a fact which was
recognized by the dominions themselves and by the world at large. The possi
bility of revocation of the Statute if there were to be a change of govern
ment in Britain was therefore by no means beyond the bounds of possibility,71
70 See E W Ridges Constitutional Law 8 ed at 446 and the 7th edition of this work, which
was produced by Keith as Keith’s Constitutional Law at 495, where Keith stated, in
regard to the Statute of Westminster: “This measure removes, or confers on the Domin
ions the power to remove, all signs of legal inferiority save one. The Imperial Parlia
ment is not in future to legislate for the Dominions save at the request and with the
consent of the Dominion expressed in the Act. This is a limitation self-imposed and
legally revocable, but not a negation of sovereign power” (my emphasis). In Con
stitutional Law of the British Dominions (1933) at 26, Keith conceded that any British
legislation adopted in respect of the dominions without their consent could be enforced
only by British courts. The view that the British Parliament retained a residual supre
macy even after the passing of the Statute of Westminster was shared by K C Wheare
The Statute of Westminster (1933). He admitted that Britain would obviously be most
unlikely, as a matter of policy, to repeal the Statute, but stressed that the legal issue
was whether the British Parliament was competent to do so, and whether the domin
ions would be obliged to acknowledge the validity of the repeal. In the Statute of West
minster and Dominion Status (1949) at 154, Wheare went even further, stating that
the British Parliament did not even have to repeal or amend the Statute explicitly,
but could merely pass an enactment in conflict with the Statute, which would auto
matically amend the Statute. It is significant, however, that he quoted Lord Sankey’s
dictum in British Coal Corporation v The King [1935] AC 500 (PC) at 520: “It is doubt
less true that the power of the Imperial Parliament to pass on its own initiative any legis
lation that it thought fit extending to Canada remains unimpaired. Indeed the Imperial
Parliament could, as a matter of abstract law, repeal or disregard section 4 of the
Statute. But that is theory and has no relation to realities.” (my emphasis.) Also see
S A de Smith The New Commonwealth and its Constitutions (1964) at 4.
71 This is not merely an academic argument. Even now, the issue is very much alive both
in Britain (where the devolution of powers to Scotland and Wales is currently of con
stitutional importance) and in South Africa (in regard to the constitutional emancipa
tion of Black territories). The theoretical and practical possibility that the South African
but it was only the Union of South Africa that took precautions to ensure
that the legislative supremacy of Britain vis-a-vis South Africa could not be
revived.
3 The Status Act

In 1934 the Union Parliament adopted the Status of the Union Act 69 of
1934. The Status Act was primarily a declaratory Act, but it had a signifi
cant effect in various respects:
(a) It incorporated the text of the Statute of Westminster into the law of
South Africa. This meant that the repeal of the Statute by the British Parlia
ment could not eradicate it from South African law. The legislative
sovereignty of the Union Parliament was confirmed in section 2 of the Act,
which provided that the Union Parliament was the ‘sovereign legislative
authority’ in and over the Union and that no British law passed after the
commencement of the Statute of Westminster would apply in the Union.
(b) The convention that the King exercised his executive powers via the
Governor-General on the advice of his Union ministers and not on the ad
vice of the British cabinet, was enacted in the Status Act itself.
(c) The Governor-General ’s power to reserve legislation, whether in his own
discretion or in accordance with royal instructions, was abolished.72 There
were still cases where South African legislation had to be reserved, but this
reservation took place in accordance with statutory provisions. Even in these
cases the King would not act on the advice of his British ministers, but would
respect the convention that any bill passed by both South African Houses
of Parliament should be approved.
(d) The royal power to disallow laws within a year was also abolished.73
The effect of the Status Act was therefore, first of all, to remove the subor
dination of the Union legislature to the British Parliament (since Britain could
no longer legislate for South Africa without the latter’s consent); secondly,
to remove the subordination of the Union Parliament to the British execu
tive (since the King’s powers of reservation were either abolished or exer
cised in accordance with the convention that legislation approved by the Union
Parliament would be approved); thirdly, to remove all vestiges of subordi
nation of the Union ministers to the British executive.
The only respect in which the Union remained subordinate to Britain af
ter 1934 related to the position of the judiciary: the Privy Council was still
the final court of appeal for the Union. The Council was in essence an ex
ecutive and not a judicial body, and was not the highest court of appeal in
Britain — this is the privilege of the House of Lords. Moreover, the Privy
Council did not apply English law in appeals from dominion courts, but ap
plied the law of the country from which the appeal originated. The possibili
ty did exist, however, that the councillors could, in the event of a conflict,
Parliament may revoke the statutes granting partial or total constitutional indepen
dence to the so-called black homelands is dealt with in ch 21 at 408.
72 In s 8, which replaced the old s 64 of the South Africa Act.
73 In s 11(2), which repealed s 65 of the South Africa Act.
feel obliged to give effect to British legislation (had the British Parliament
decided to repeal the Statute of Westminster, for example) and it was there
fore only a matter of time before this last remaining schackle was thrown off.
The formal implications of the adoption of the Statute of Westminster
and the Status Act were attended to in the Seals Act 70 of 1934, whereby
the formal subordination of the Union executive to the British executive was
removed. In terms of this law the Union acquired a Royal Great Seal and
a Royal Signet. Previously there had been only a Great Seal, used by the
Governor-General. The Governor-General retained his Great Seal, but the
Union Prime Minister had custody of the Royal Great Seal and the Signet.
This meant that the King’s executive acts would, in future, be sealed by the
Union Premier. The King would now attach his signature to the document
concerned, which would be countersigned by a Union minister and sealed
by the Royal Great Seal or Signet by a Union Minister.74 Where it was not
practicable to obtain the King’s signature or where it would cause undue de
lay, the Governor-General was empowered to sign on the King’s behalf.75
The Governor-General could even sign on behalf of the King if the latter
were to decide, either on the advice of his British ministers or off his own
|jat, not to sign a document presented to him for his signature. In practice
the King was consulted informally whenever this section was resorted to. Sec
tion 7 of the Seals Act provided that the Governor-General would be em
powered to exercise those powers which had vested in the King-in-Council
in terms of British statutes applicable in the Union prior to 1931. These powers
were in fact exercised by the Governor-General-in-Council unless the
Governor-General decided that the King-in-Council should exercise them;
the King would then act on the request of the Union Prime Minister. Final
ly, section 8 provided that the powers and duties conferred on certain offi
cial British bodies by British laws applicable in the Union would be exercised
and performed by persons and bodies appointed by the Governor-General
by proclamation.
4 Entry into World War II

The outbreak of war in 1939 again highlighted the constitutional position
of the dominions as autonomous entities. It was the King’s prerogative, as
liege lord, to declare war,76 and the question was now asked for the first time
whether Britain’s declaration of war automatically placed the dominions in
a state of war with Germany. This issue sparked off a crisis in South African
constitutional law. General Smuts took the view that it was impossible for
South Africa to remain neutral while Britain was at war — a view in keeping
with the King’s position as a liege lord whose subjects were bound to follow
74 Because the Great Seal, in particular, was so clumsy and cumbersome, wafer seals
were instituted.
75 S 6. On 6 September 1939 the Governor-General, Sir Patrick Duncan, declared war
on Germany in terms of this section.
76 Janson v Driefontein Consolidated Mines 1902 AC 484; The King v Bottrill: Ex parte
Kuechenmeister 1947 KB 41; The Hoop 1799 1 C Rob 196 at 199 per Lord Stowell:
“By the law and custom of this country the sovereign alone has the power of declar
ing war and peace.” See Wade and Phillips op cit at 235.
him into battle. General Hertzog, by contrast, felt that even though the King
was King of Britain and South Africa, he could be at war in the former
capacity but neutral in the latter. This view was supported both by the
principle of international law that it is not the King, but the state, which
is at war, and by the concept of the divisibility of the Crown which had in
fact been recognized since the accession of the Hanoverian monarchs to the
British throne.
These Kings were both Elector of Hanover and King of Great Britain: it
was conceivable that George I, for example, could have been at war in his
capacity as Elector of Hanover but not as King of Britain. However, the
divisibility of the Crown was a concept British authorities were loath to recog
nize expressly.77
In South Africa the upshot was a split in the coalition government of the
day. The Prime Minister, Hertzog, was defeated and he asked the Governor-
General, Sir Patrick Duncan, to dissolve Parliament. Possibly because of
the urgency of the matter, however, Duncan decided not to call an election
but to ask Smuts to form a government. South Africa’s formal declaration
of war on Germany was made on 6 September 1939, three days after Britain’s.
The question whether any member of the Commonwealth could in fact
have remained neutral did not arise pertinently during the Second World War,
since all member countries except Eire joined in the war. Ireland’s neutrality
is not particularly significant, since that country had already severed its links
with Britain to a major extent long before the war. There is no doubt that
in modern times no Commonwealth country would be considered bound to
join any other — including Britain — in a war. No-one even suggested, for
example, that any other member of the Commonwealth was at war with
Argentina during the Falklands War of 1982.
5 The Appeal to the Privy Council

As mentioned above,78 the position of the Privy Council as final court of
appeal for South Africa reflected the only respect in which South Africa re
mained subject to the British executive.79 Surprisingly, since, as Hood Phil
lips points out,80 the idea of a final court of appeal in another country is
77 Constitutional Law 8 ed (1970) at 457-458; but see the 9th edition (1977) at 301, in
which the authors suggest that the concept of ‘the Crown’ should be restrictively in
terpreted (i e to refer only to states recognizing the Queen as head of state) in regard
to acts of state.
78 At 213.
79 Appeals from the dominions were admittedly heard by a judicial committee of the
Council, but the Privy Council was not intrinsically a judicial body. This is borne out
by the fact that Privy Council decisions are technically referred to as ‘opinions’. See
the dictum of Baron Park in In re Ames 1841 3 Moore PC 409 at 413: “We are dis
posed to say that we ought not to have recommended Her Majesty to have allowed
the appeal, but we are not disposed to say that we have not the power so to have done,
as Her Majesty is the head of Justice, and we are sitting here, not merely as a judicial
body, but as Privy Councillors . . .” (italics mine). See O Hood Phillips Constitu
tional and Administrative Law 6 ed (1978) at 704-713 for a discussion of the way in
which appeals to the Privy Council operated in dependent colonies and in indepen
dent Commonwealth countries.
80 Op cit at 712.
inconsistent with independence, the appeal to the Privy Council was abolished
in respect of South Africa only in 1950.81 Once this had been achieved, the
possibility of British interference in and domination of South Africa’s con
stitutional development was finally removed.82
IV THE CREATION OF THE REPUBLIC OF SOUTH AFRICA

1 The Referendum
The republican ideal was one which had been held by the National Party,
in particular, for many years. Dr D F Malan, who became Prime Minister
when the National Party came into power in 1948, stated in 1953 that the
republican issue would, when the time came, be put to the electorate in a
general election. It was, however, decided in 1960 to hold a referendum to
determine the electorate’s attitude. The then Prime Minister, Dr H F Ver-
woerd, held the view that the narrowest of margins would be sufficient to
justify the change-over to a republican form of government. In the event,
approximately 52% of the votes cast were in favour of a republic, with 48%
against. Approximately 90% of all registered voters cast their vote.
This was the first time a referendum had been held since Union, though
one was held in Natal before Union in order to test whether the inhabitants
of that colony were in favour of Union.83 Although the referendum is fo
reign to English constitutional law, use was made of the device in Ireland
in 1937 and in Jamaica and Southern Rhodesia in 1961. Since then a referen
dum has been held in Britain itself, to decide about the country’s entry to
the European Economic Community, while the voters of Wales and Scot
land were asked to state their attitude to- devolution in a referendum held
in 1978.
It must be emphasized, however, that the 1960 referendum, unlike the
referendum encountered in Swiss constitutional law, was not binding, and
should perhaps have been termed simply a plebiscite. As South African con
stitutional law stood at that stage, the government was not bound by law
to continue with its plans for adopting a republican form of government,
and could have shelved them temporarily or indefinitely if the circumstances
dictated this. In the event, the government decided that it had sufficient sup
port from the electorate to go ahead with its stated course.
81 By Act 16 of 1950.
82 An interesting parallel is to be observed in the South African process of constitutional
emancipation of black States: whenever a former black homeland has attained full
constitutional independence, the Appellate Division of the Supreme Court of South
Africa has, for some time at any rate, remained the final court of appeal for the new
ly independent state. Like the Privy Council, the South African court is obliged to
apply the law of the country from which the appeal originates, and not South African
law. In the case of a state such as Bophuthatswana, which has a Constitution with
a fully entrenched Bill of Rights, this has meant that the Appellate Division has had
to deviate from the fundamental principles on which South African law is based in
order to give effect to the Constitution. See S v Marwane 1982 3 SA 717 (A) and the
discussion in ch 21 below.
83 See at 198 above.
________________ Constitutional Development in South Africa 217
2 South Africa leaves the Commonwealth

Until the end of the Second World War, it was generally accepted that no
member of the Commonwealth was entitled to withdraw unilaterally from
that body. One of the arguments raised in this connection was that the power
to secede was so fundamental that no member could simply arrogate to
itself such a power in the absence of any agreement with other members and,
in particular, with Britain.84 (This would be in keeping with the approach
that the Statute of Westminster conferred independence on the dominions
and did not merely reflect an already existing autonomy.)
The character of the Commonwealth changed fairly rapidly after the Se
cond World War, however, and the ties between Britain and the other mem
bers became increasingly less rigid. Burma was the first country to leave the
Commonwealth (in 1947) after Britain had somewhat reluctantly conceded
that such a unilateral secession was not inconceivable. The idea that a coun
try opting for a republican form of government need not necessarily leave
the Commonwealth also gradually gained acceptance and it was initially hoped
that South Africa would be able to follow the lead of India, Pakistan and
Ghana and remain within the Commonwealth even after becoming a republic.
Before the holding of the referendum in 1960, Verwoerd attended a meet
ing of Commonwealth Prime Ministers and attempted, on an informal basis,
to gain the assurances of members that a republican South Africa would be
permitted to remain a member of the Commonwealth. The other delegates
were not prepared to commit themselves, and the republican process was set
in motion despite the uncertainty regarding membership. When Verwoerd
formally applied for continued membership of the Commonwealth at the
meeting of Prime Ministers in March 1961, South Africa’s internal policies
sparked off a dispute which could have led to a schism within the Common
wealth. Verwoerd therefore withdrew the application and South Africa left
the Commonwealth on 31 May 1961 when the Union became the Republic
of South Africa.85
3 The ‘New’ Commonwealth

The development of the Commonwealth into what it has become was some
thing which no-one would have predicted even in 1931. As Latham put it:86
“The British Commonwealth took the law by surprise.” The formula for
84 See Jennings and Young Constitutional Laws of the Commonwealth (1952) at 143;
Keith The Constitutional Law of the British Dominions (1933) at 59. Hertzog had,
however, even in 1936/37, expressed the opinion that the Union could secede from
the Commonwealth, and Ireland adopted a Constitution in 1937, stating that Eire was
a “sovereign independent democratic state”. Eire became a republic in 1948.
85 It is interesting to speculate about what would have happened had the application for
continued membership not been withdrawn. Whether the application was approved
or rejected would have made little difference: it is almost certain that a serious (perhaps
even fatal) crisis would have been precipitated within the Commonwealth; it is also
possible that the members may have deemed it necessary to create a formal procedure
for the expulsion of members from the Commonwealth, something which had never
been considered before.
86 The Law and the Commonwealth (1937) at 513.
membership contained in the preamble to the Statute of Westminster reads

as follows:
Inasmuch as the Crown is the symbol of the free association of the members of
the British Commonwealth of Nations, and as they are united by a common
allegiance to the Crown . . .
There are a number of important key phrases here: first, there is the ‘free
association’ of the members, which signifies their independence (as does the
phrase ‘established constitutional position’ which is used later on in the pre
amble); secondly, there is the reference to the Crown as a symbol of this
association; and thirdly, there is the ‘common allegiance’ which members
are said to owe to the Crown.
This formula was perfectly adequate for the Commonwealth of 1931; but
it simply could not serve for the post-war Commonwealth which counted
among is members not only a number of republics, but even an independent
monarchy (Malaysia). The common allegiance to the Crown had therefore
fallen away.
The ‘free association’ of independent states was also seen in a different
light after the Second World War, when it was acknowledged for the first
time that the freedom of the association was such that a member could de
cide, of its own free will, to terminate the association and leave the Com
monwealth. In any case, the concept of a free association of autonomous
states was hardly a concept so unique as to set the Commonwealth apart
from other alliances and free associations. It also became extremely difficult
to pinpoint precisely the ambit of this free association: members of the Com
monwealth co-operate with one another in the economic sphere, but they
also form economic alliances with other states. (In some cases countries out
side the Commonwealth receive more favourable treatment than fellow
members.) The military and political fields, likewise, provide no answer: Bri
tain’s main military allies, for example, are not members of the Common
wealth, and there can be no question of political unanimity among members.
This leaves the symbol of the Crown: although not all members of the
Commonwealth still have an allegiance to the Crown or recognize the Queen
as head of state, all recognize the Crown as the symbol of the Common
wealth and the Queen as symbolic head of the Commonwealth. No doubt
the fact that all the members of the Commonwealth are former British colo
nies is the deciding factor in the acceptance of the symbolic significance of
the Crown and the unstated but undeniable position of leadership occupied
by Britain. (Perhaps this would change if a state having no historical links
with Britain were to apply for membership, but to date this has never been
mooted.)87
V THE GENERAL CHARACTERISTICS OF THE REPUBLIC OF SOUTH

AFRICA CONSTITUTION ACT 32 OF 1961
The change from a monarchic to a republican form of government in South
Africa was of major importance politically but brought with it little that was
87 For a detailed discussion of the character and development of the ‘new’ commonwealth,
see S A de Smith The New Commonwealth and its Constitution (1964).
new constitutionally. In essence the new Constitution did little more than
replace the Queen, as represented by the Governor-General, with another
symbolic head of state, the State President. All other characteristic features
of the South Africa Act were retained: legislative supremacy, a limited ad
herence to the doctrine of separation of powers, the recognition of conven
tions, regional representation — all cardinal features of the Westminster
system88 — and the two entrenched sections guaranteeing language equality
between English and Afrikaans.
The Act did, however, have a number of innovations. It was furnished with
a preamble in the form of a kind of manifesto or statement of intent. Con
stitutionally a preamble is of minor significance, since it does not detract
from any of the provisions of the Act itself and can be used only as an aid
to interpretation in the event of ambiguity.89 Perhaps one of the most im
portant ‘new’ sections was section 59. The South Africa Act had said no
thing about the judiciary’s power to test any parliamentary enactment,
whether such enactment related to the so-called entrenched sections or not.
The constitutional crisis of the 1950s had brought this issue pertinently to
the fore, and the position as set out in the Harris cases90 received statutory
endorsement in the Constitution in section 59. In brief, the section provided
that no court of law would be competent to pronounce upon the validity
of any act duly passed by Parliament, the sole exception being enactments
purporting to amend or repeal the entrenched sections (108 and 118).91
Perhaps the most interesting feature of the Republican Constitution is that
it was adopted by the Union Parliament, unlike the South Africa Act, which
was an Act of the British Parliament. It is extremely doubtful, however,
whether this single feature is sufficient to render the Republican Constitu
tion an autochthonous constitution.92
88 See the discussion of the cardinal features of the Westminster system in ch 4.

89 See Steyn Uitleg van Wette 5 ed (1981) at 145-146.
90 Harris v Minister of the Interior 1952 2 SA 428 (A) and Minister of the Interior v
Harris 1952 4 SA 769 (A). See the discussion in ch 6 at 144-147 and in ch 13 at 260-265.
91 There is some doubt whether, technically, ss 108 and 118 are in fact valid, since the
reference to the Dutch language was removed without adherence to the special proce
dure prescribed in the South Africa Act: see VerLoren van Themaat op cit at 216-218.
The author concludes that the view that the sections concerned are invalid is techni
cally perhaps the correct one, but concedes that the acceptance of the validity of the
provisions offers certain practical advantages.
92 See the discussion of autochthonous constitutions in ch 1 at 10-11 above.
CHAPTER ELEVEN
The Executive 1910 to 1983
I THE UNION EXECUTIVE

The executive power in the Union of South Africa vested in the following
organs: the King, his representative (the Governor-General), the Executive
Council, the Cabinet of ministers, state departments and other bodies
entrusted with the actual administration of state.
1 The King
The character of the British monarchy is complex. Coke defined the duality
of the so-called ‘corporation sole’ in the following terms:1
The King hath two capacities in him: one a natural body, being descended of
the blood royal of the realm; and this body is of the creation of Almighty God,
and is subject to death, infirmity and such like: the other is a politic body or
capacity, so called because it is framed by the policy of man; and in this capa
city the King is esteemed to be immortal, invisible, not subject to death, infir
mity, infancy.
As a corporation sole (the incorporation of a series of successive persons)
the King therefore represented the state. However, it is not invariably ac
cepted that a corporation sole is a juristic person, since the King, as feudal
king or liege lord, represented something more than an abstract concept. The
state was not originally seen as a juristic person by the English authorities;
thus when the King signed a treaty, he was regarded as acting on his own
behalf and on behalf of his successors, as the representative of his subjects
and not on behalf of the state as such.2 As far as the Union was concerned,
it was only after the adoption of the Seals Act that the King was seen to
act as an organ of a legal entity (the Union) and not in his personal capacity,
when concluding treaties.3
The monarch’s powers are very wide. The common-law discretionary pow
ers of the King (royal prerogatives) are derived from the allegiance relation
ship and from feudal law. In South Africa the King exercised these
prerogatives either personally, or, more commonly, via his representative,
the Governor-General. Where the King did not exercise his prerogatives un
der his own hand,4 he conferred certain powers on the Governor-General
1 Calvin’s Case 2 St Tr 624, (1608) 7 Coke’s Reports.

2 See J P VerLoren van Themaat Staatsreg 3 ed (1981) at 224.
3 See L I Coertze ‘Die Posisie van die Koning as Hoof van die Uitvoerende Gesag van
die Unie’ 1939 THRHR 250 at 265.
4 Such acts included declarations of war, annexations, acts of state, the conclusion of
treaties (including peace treaties), the appointment and reception of amabassadors etc,
the conferment of royal titles and honours and the issuing of royal writs. After the
adoption of the Seals Act, the Governor-General was empowered to sign such instru
ments if the King’s signature could not be obtained or if the purpose of the act would
be frustrated.
220
The Executive 1910 to 1983 221
by letters patent and royal instructions.5 There were, however, a number of

prerogatives which never applied to South Africa.6 Until the passing of the
Statute of Westminster in 1931 the King was not bound, in exercising his
executive powers in respect of the Union, to act on the advice of his Union
ministers, but could take the advice of his British ministers.7
2 The Governor-General
The Governor-General was appointed by royal commission, and the Chief
Justice or next most senior appeal judge acted as Governor-General pending
the appointment of a Governor-General.8 The King initially appointed the
Governor-General on the advice of his British ministers without consulting
the colony concerned; the custom of informally consulting the colony gradu
ally became established, until it was expressly decided at the imperial con
ference of 1930 that the Governor-General would, in future, be appointed
on the advice of the ministers of the dominion concerned — but still after
informal consultation with the King. Until 1926, the Governor-General was
both the representative of the King in the Union and the British High Com
missioner,9 but after it was realized that this dual function was incompatible
with the idea of autonomous dominions, the two posts were separated.10
The Governor-General exercised the following powers on behalf of the
King:
(i) the power to issue regulations and to legislate by proclamation;11
(ii) the power to appoint ministers and members of the Executive Council;12
(iii) the power to appoint and dismiss officials;13
(iv) the powers previously exercised by the governor of the constituent
provinces, in so far as those powers remained in force; this power was sub
sequently extended to apply to South-West Africa as well;14
(v) the power to convene and prorogue Parliament and to dissolve the House
of Assembly or both the Assembly and the Senate after ten years had elapsed.
As VerLoren van Themaat points out,15 this was an executive and not a legis
lative function — an act performed in order to set the legislative machinery
in motion. This power owed its origin to the power of the King, as liege lord,
to summon his advisers to give him counsel;
(vi) the power to appoint a commission of three judges to delimit electoral
constituencies;16
5 Eg the prerogative of mercy, the command of the Defence Force etc.

6 See ch 2 above at 23-25.
7 See the discussion above at 201.
8 VerLoren van Themaat Staatsreg 1 ed (1956) at 254.
9 In this latter capacity, he was responsible for the administration of the British protec
torates in Southern Africa.
10 S 17 of the South Africa Act, par III of the letter patent of 1937.
11 The wide power to legislate in respect of black territories was of major importance.
12 Ss 12 and 14 of the South Africa Act of 1909.
13 S 15 of the South Africa Act, which was, however, largely superseded by Act 27 of 1923.
14 S 16 of the South Africa Act.
15 Staatsreg 1 ed at 257.
16 S 41 of the South Africa Act, subsequently replaced by s 1 of Act 55 of 1952.
(vii) the power to appoint an Administrator for each province;17

(viii) the power to assent to or reject provincial ordinances.1819
There was no
convention or rule obliging him to approve ordinances presented to him. In
this regard the Governor-General acted on the advice of his Union ministers
and he did, on occasion, refuse to assent to draft ordinances;
(ix) the power to appoint an auditor for each provincial administration,”
as well as a Controller and Auditor-General;20
(x) the power to appoint judges of the Supreme Court;21
(xi) the power to issue regulations pertaining to the election of Senators;22
(xii) the power to appoint members of a public service commission to make
recommendations about the reorganization and adaptation of the public
service after Union. Once the Union of South Africa had come into being,
a permanent commission had to be appointed;23
(xiii) the control and administration of black and Asian affairs.24
VerLoren van Themaat25 points out that many of the above-mentioned
provisions were in fact leges imperfectae, since they made no provision for
the contingency that the Governor-General could refuse or fail to perform
the acts enjoined upon him by the South Africa Act.
3 The Executive Council

The Executive Council consisted of both current and former ministers and
was intended to serve as an advisory body. In fact, however, the Council
served no purpose and seldom, if ever, even met. All the powers conferred
on the Executive Council were exercised by the Cabinet, which was com
posed of serving ministers.
4 The Cabinet
Section 14 of the South Africa Act made provision for the appointment of
ministers. All these ministers sat on the Executive Council and constituted
the real government of the Union, even where acts were performed profor
ma by the Executive Council as such. Although the South Africa Act con
tained no provision in this regard, ostensibly leaving the choice of ministers
entirely within the discretion of the Governor-General, the appointment of
ministers was governed by the convention that the leader of the majority party
in the Lower House (the House of Assembly, in the Union) must be appointed
as Prime Minister, and that he was the one who selected the ministers, the

19 S 92 of the South Africa Act. o.,
20 S 132 of the South Africa Act, repealed and replaced by Act 21 ot ivii.
23 Ss 141 and 142 of the South Africa Act. , . . .«
24 S 147 of the South Africa Act. These powers were considerably extended y
of 1927.
25 Staatsreg 1 ed at 257 and 258, passim.
Governor-General merely appointing them pro forma. (A strange provision

was enacted during the time of the coalition government in 1933, in terms
of which the Governor-General could appoint any member of the Executive
Council to serve on the Cabinet in a temporary capacity. It is difficult to
conceive of a situation where an ex-minister — in all probability a member
of the opposition — could serve on a Cabinet except in a coalition
government).
The Cabinet was the most important of the executive organs. The
Governor-General exercised most of his executive powers on its advice and
it was the Cabinet which took the lead in framing policy and initiating legis
lation in Parliament.
5 The State Departments

The various state departments have, since Union, been responsible for the
day-to-day administration of the country. The legal aspect of this activity
falls largely within the sphere of administrative law.
II THE EXECUTIVE FROM 1961 TO 1983

1 Introduction
As was explained above,26 the Republic of South Africa Constitution Act
32 of 1961 merely substituted a symbolic State President for a constitutional
monarch without changing the executive in essence in any way. South Africa
remained to all intents and purposes a constitutional monarchy. Section 7(4)
of the Constitution Act stated explicitly that the State President would possess
the same powers as those possessed by the British monarchs by virtue of
prerogative immediately prior to 31 May 1961. The State President’s powers
during this period must therefore be traced back directly to their English
origins.27
2 The State President

The executive authority in the Republic vested in the State President acting
on the advice of the Executive Council,28 which was composed of serving
Cabinet ministers.29 Deputy ministers could be appointed to act on behalf
of the ministers, but they were not members of the Executive Council.30
The State President was, unlike the Presidents of the old ‘Boer’ Repub
lics, not popularly elected, but was intended to be the representative of the
people, a symbol of national unity. The idea was that, like the British
monarch, he should be completely apolitical, removed from party politics.
In theory, the State President did not have any party affiliation and did not
represent any political party, but in practice he was elected by the majority
26 In ch 10, at 219.
27 See ch 3, at 28.
28 S 16(1) of the Constitution. The old Executive Council, consisting of both current and
former Cabinet ministers, fell away, so that ‘Executive Council’ became synonymous
with ‘Cabinet’ for all purposes.
29 S 17.
30 S 21(1).
party in Parliament from the ranks of retired Cabinet ministers. The first
few State Presidents were persons who had been active in politics but reason
ably non-controversial figures nevertheless; the election of former Prime
Minister B J Vorster as State President in 1978, however, finally put paid
to the idea of an apolitical State President representing the nation as a whole.
In keeping with the concept of a politically neutral, figure-head State Presi
dent, the Constitution contained provisions which rendered it an offence to
perform any act calculated to impair the dignity or honour of the State
President31 and which protected the State President against prosecution for
a criminal offence like an ordinary citizen.32
The procedure for the election of the State President was governed by sec
tions 8 and 9 of the Constitution. The State President was elected by an elec
toral college, consisting of all the members of the House of Assembly,33 at
a meeting chaired by the Chief Justice or an appeal judge appointed by him.
A candidate for the State Presidency had to possess the same qualifications
as a candidate for election to the House of Assembly (previously the Senate).34
Nominations had to be made in accordance with the stipulated form and
the names of the nominees were announced by the chairman at the meeting
of the electoral college. No debate was permitted. If only one nomination
was received, that person was declared duly elected. If more than one was
received, provision was made for a voting process whereby the weakest
candidates were eliminated one by one until one candidate received a clear
majority. If the deadlock still could not be resolved, the electoral college was
convened a second, and if necessary, a third time; after that, the chairman
had to exercise a casting vote. The successful candidate then took the oath
of office.35
The State President held office for seven years. His period of office there
fore did not coincide with the life of Parliament. It is of some interest that
he was not eligible for re-election unless the electoral college expressly decided
otherwise.
Section 10 provided for the dismissal of the State President on the grounds
of misconduct or incapacity. Neither of these terms was defined. The pro
cedure for removal of the State President started with a petition from thirty
members of the House of Assembly to the Speaker of the House, requesting
the appointment of a committee of the Assembly to investigate the alleged
misconduct or incapacity. No discussion was permitted in the Assembly prior
to its taking a decision whether to accede to this request.
31 S 13. See S v Beyleveld 1964 1 SA 269 (T); M J Strydom 1964 THRHR 314; Ellison
Kahn The New Constitution (1962) at 21 and ‘Violating the Dignity or Injuring the
Reputation of the State President’ 1964 SALJ 144; VerLoren van Themaat 3 ed 228
fir 23.
32 S 13 of Act 32 of 1961.
33 S 8(1). The electoral college consisted of the members of the Senate and House of
Assembly until the Senate was abolished in 1980.
34 S 8(4). The qualifications for a member of the House of Assembly were contained
in s 46: a candidate had to be registrable as a voter; resident within the Republic for
at least five years; a White South African citizen.
35 S 12. See VerLoren van Themaat 3 ed at 232, esp fn 44.
The procedure described above bears some resemblance to the process of

impeachment which was previously employed in England to try senior govern
ment officials (but not the King) for official misdemeanours, but the proce
dures were not identical. Before the Senate was abolished in 1980, its members
could participate in the joint parliamentary committee which investigated
the allegations against the State President, but the Senate could not take the
initiative instead of the House of Assembly.
VerLoren van Themaat36 holds the view that a refusal by the State Presi
dent to act in accordance with an established convention (for example, that
legislation duly passed by Parliament must be approved) could have been
construed as misconduct for the purposes of section 10, but there is in fact
no indication anywhere in the Constitution that ‘misconduct’ had to be
interpreted either narrowly (to encompass only such action as would betan-
tamount to a criminal offence) or widely (to include action which is techni
cally legitimate but unconstitutional in the wider sense).
Provision was also made for a pension to be paid to a former State Presi
dent or his widow,37 for the resignation of the State President,38 for the ap
pointment of an acting State President,39 and, after 1980, for the appointment
of a permanent Vice State President.40
The powers of the State President

The Constitution distinguished, first of all, between the State President’s
common-law powers and his statutory powers, and then between the powers
exercised on the advice of the executive and those not exercised on such advice.
A number of the powers which the King possessed by common law received
specific statutory endorsement in the Constitution:41 for example, the pow
er to pardon offenders, conclude treaties, declare martial law and so on. Those
prerogative powers which were not specifically mentioned were covered by
section 7(4), which provided that the State President was to possess all those
powers which the British monarch exercised in South Africa immediately prior
to 31 May 1961. Among the most important of these unenacted powers, were
those relating to the issuing of passports and the appointment of commis
sions of enquiry.42
The second classification, namely into powers exercised on the advice of
the executive and powers exercised otherwise than on such advice, is perhaps
of greater practical importance. This distinction remains of importance, as
will be seen in the discussion of the State President’s powers later in this work.
The powers exercised on the advice of the executive were those which were
essentially of an executive rather than a legislative nature. There were also
certain powers of an executive nature which were, for logical reasons, not
36 3 ed at 231.
37 Ss 14 and 15 of Act 32 of 1961.
38 S 10(3).
39 S 11.
40 S 10A, inserted by s 6 of Act 10 of 1980. The function of the Vice State President
will be touched on again in the discussion of the President’s Council.
41 See s 7(3).
42 See Sachs v Donges NO 1950 2 SA 265 (A); S v Mulder 1980 1 SA 113 (T) and Ver
Loren van Themaat 3 ed at 252-253.
exercised on the advice of the executive.43 The following powers were not
exercised on the advice of the executive:
(a) The power to appoint ministers to administer state departments

This is an executive power which, for obvious logical reasons, could not be
exercised on the advice of the executive, since the executive would not yet
have been appointed. This does not mean that the State President could
appoint whomsoever he pleased, since both sections 7(5) and section 16(5)
confirmed that the constitutional usages (conventions) applicable before 31
May 1961 would continue in force.44 The convention applicable here is that
the leader of the majority party in Parliament was appointed as Prime
Minister: he named the members of his ministry and the State President
merely appointed them pro forma. The position in regard to the dismissal
of ministers is not quite as simple. Clearly, if the government as a whole
had lost the confidence of the legislature, the State President was not obliged
to act on its advice if it refused to resign, but could either call on the leader
of the opposition to form a government or (the more likely course today)
dissolve Parliament and call a general election. The dismissal of a single
minister depended largely, though not solely, on the Prime Minister.45
(b) The power to fix the times for sessions of the House of Assembly, to
prorogue46 and to dissolve47 Parliament
These powers were, likewise, exercised, not on the advice of the executive,
but in accordance with convention.48 However, the State President’s power
to dissolve the Senate one hundred and twenty days after the dissolution of
the Assembly or the expiry of the term of office of a Provincial Council,
was not excluded in terms of section 16(3) and had therefore to be exercised
on the advice of the Executive Council.49
The State President’s power to convene Parliament must be read with sec
tion 26, which provided that Parliament had to be convened at least once
a year and that twelve months were not to elapse between the final sitting
of one session and the first sitting of the next. As VerLoren van Themaat
points out,50 however, there was no means whereby the State President could
43 Before 1961, these powers were exercised by the Governor-General without the advice
of his Union Ministers, and were specifically excluded in s 16(3) of the 1961 Constitu
tion. See VerLoren van Themaat 3 ed at 233; C S J Steyn Prerogatief en Diskresie
by die Uitvoerende Gesag in die Republiek van Suid-Afrika, unpublished doctoral thesis
UOFS 1970.
44 See the discussion of conventions in ch 9.
45 See VerLoren van Themaat 3 ed at 233, who disagrees with J J Fouche Die Bevoegd-
hede van die Staatspresident van die Republiek van Suid-Afrika, unpublished doctor
al thesis US (1964) at 199 and Ellison Kahn op cit at 25, who take the view that this
is not a case where the executive as a whole was not involved.
46 S 7(3)(a) read with s 25.
47 S 7(3)(a) read with s 47.
48 See s 16(3).
49 S 7(3)(a) read with s 16(3).
50 3 ed at 234.
____________________________________ The Executive 1910 to 1983 227
be compelled to convene Parliament: there was only the practical consider

ation that if Parliament were not convened, the money required for the
administration of the country would not be voted.
When exercising the power to prorogue or dissolve Parliament, the State
President acted in accordance with the convention that the advice of the Prime
Minister had to be followed. If the majority party in the Assembly51 had
lost the confidence of the House, however, it would have been ridiculous
for the State President to have followed the advice of the Prime Minister,
since the latter’s government would no longer have enjoyed the confidence
of the electorate.
It may be mentioned in this regard that section 19(1) apparently suffered
from a defect which could have given rise to problems of interpretation. This
section provided that all executive acts of the State President required the
co-signature of a minister in addition to that of the State President. Where
no Cabinet had as yet been appointed, there was no minister to act as co
signatory; furthermore, where the State President was, in terms of section
16(3) in general, not obliged to act on the advice of the Executive Council,
he was nevertheless obliged to obtain the signature of one of his ministers.
Clearly the problem could have been eliminated by bringing section 19 into
line with section 16(3), that is, by specifically excluding the requirement of
a minister’s signature in the cases provided for in section 16(3), but this was
not done. No ready solution presented itself: to conclude that the minister
had no choice but to sign in such cases is unsatisfactory, as VerLoren van
Themaat points out,52 since the very fact that an instrument bears the signa
ture of a minister would seem to imply that that minister’s advice had been
taken. Likewise, the suggestion that, since the State President was, in the
majority of cases provided for by section 16(3), obliged by convention to
act on the advice of the Prime Minister, the latter should have been the one
to co-sign the instrument in question,53 does not cover the case where even
the Prime Minister’s advice could legitimately be dispensed with. Perhaps
the best approach would have been to interpret section 16(2), which provided
that a reference to the State President meant the State President acting on
advice of the Executive Council except where provided otherwise expressly
or by necessary implication, to mean that the requirement of a minister’s
signature fell away in matters covered by section 16(3).54
Executive powers exercised by the State President on the advice of the

Executive Council
These fall roughly into two categories: powers ‘inherited’ by the State Presi
dent as the successor to the British monarch, and ‘new’ powers specifically
conferred on the State President in terms of the Constitution and other statu
tory enactments.
51 See the discussion on this convention in ch 9.

52 3 ed at 235.
53 VerLoren van Themaat 3 ed at 236.
54 See VerLoren van Themaat 3 ed at 236, esp fn 58. Also see ch 16 for the position
under the 1983 Constitution.
Powers of English-law origin included the following:

(a) The power to confer honours and medals.55
(b) The power to appoint, accredit, receive and acknowledge ambassadors,
ministers plenipotentiary, diplomatic representatives, consuls and the like.56
(c) The power to pardon offenders.57
(d) The power to conclude international conventions, treaties and agree
ments.58 As in Britain, the rule was that treaties entered into by the State
President, although internationally valid, had no effect on the rights of
citizens or the law of the land until ratified by Parliament.59 In practice,
treaties are entered into between the government of the Republic, represented
by an authorized minister acting on behalf of the State President and the
foreign state.60
(e) The power to declare or terminate martial law.61 The State President could
delegate the power to promulgate regulations under martial law to one of
his ministers, but could not amend existing laws without parliamentary
authority.62
(f) As Commander-in-Chief of the South African Defence Force, the State
President had the power to declare war and to make peace.63 This is one of
the oldest powers of the British monarch, and stems from his position as
liegelord in ancient times.64 It has, however, become an established conven
tion in Britain that Parliament will not only be consulted about the decla
ration of war, but will be kept fully informed about the progress of the war.
It is not altogether clear to what extent this convention enjoys recognition
in South African law,65 but since Parliament’s co-operation is essential to
the funding of any war operation, it seems hardly likely that it can be effec
tively overlooked.
(g) In addition, section 7(4) provided that the State President possessed all
the powers previously vesting in the British monarch and exercised on the
latter’s behalf by the Governor-General prior to 1961. All the royal preroga
tives which applied in South Africa,66 and which had not been reduced to
statutory form by specific inclusion in the Constitution, fell into this category.
Among the most important of these prerogatives was the prerogative to issue
55 S 7(3)(c); also see s 136(1) of the Defence Act 44 of 1957.

56 S 7(3)(d).
57 S 7(3)(f). Despite its superficial resemblance to a judicial act, this was an executive
act performed on the advice of a minister (usually the Minister of Justice).
58 S 7(3)(g).
59 See Attorney-Generalfor Canada v Attorney-Generalfor Ontario 1937 AC 326 at 347.
60 See S v Eliasov 1967 4 SA 583 (A); C J R Dugard ‘The Treaty-making Process’ 1968
SALJ 1, H Booysen Vblkereg (1980) at 35; R P Schaffer ‘The Extension of South
African Treaties to the Territories of South-West Africa and the Prince Edward Islands’
1978 SALJ 63.
61 S7(3)(h).
62 See Krohn v Minister for Defence 1915 AD 191 at 205.
63 S 7(2) and 7(3)(i); see R P Schaffer ‘The Prerogative of War and Peace: its Develop
ment in South Africa’ 1978 SAYIL 29 at 42.
64 See ch 3 above.
65 See VerLoren van Themaat 3 ed at 237-238.
66 See ch 2 and ch 9 above.
passports67 and the power to perform the so-called ‘acts of state’. Acts of
state must be distinguished from the other prerogative powers of the Crown
in so far as they relate to supreme executive acts performed in the sphere
of foreign relations (such as declarations of war, annexation, recognition
of foreign governments and so on) and in so far as the civil courts have no
jurisdiction over such acts.68
De Smith69 states that acts of state are “primarily prerogative acts of policy
in the field of external affairs” but concedes that there can be no all-inclusive
short definition covering all the different senses in which the term has been
used. He stresses that not every prerogative act is an act of state, and that
conclusions about the state of the law in this regard must be regarded as ten
tative, largely because
[m]any of the decisions on act of state have an archaic flavour. They deal with
the annexation of territory in India and Southern Africa in the heyday of im
perial expansion, when judges often seemed to be as executive-minded as the
Executive.70
Hood Phillips,71 likewise, expresses himself cautiously in the matter of acts
of state, declaring that there is no technical definition of the term in British
constitutional law, but that the expression is usually used for an act of po
licy performed by the Crown in relation to another state, or in relation to
an individual who does not fall within the allegiance to the Crown. When
it is said that acts of state are not justiciable, or that they “cannot be
challenged, controlled or interfered with by municipal courts”,72 this does
not mean that the courts cannot determine whether the act being impugned
is indeed an act of state:
the mere plea ‘act of state’ is not enough: the court can examine the facts in
order to decide whether what has been done is an act of state.73
If the act unquestionably falls within the category of acts of state - for ex
ample, if it concerns the recognition of foreign governments or the continued
validity of treaties with foreign states — the jurisdiction of the courts is ousted
completely.74
South African authority on acts of state is even more obscure than that
found in English law, but it may be accepted that the principle is that supreme
acts of government falling within the sphere of foreign relations will be
67 See the leading case of Sachs v Donges NO 1950 2 SA 265 (A). As M Wiechers
Administrative Law (1985) at 169 fn 292 points out, the issue of a passport is a unilateral
administrative disposition and not a contract between state and individual. Also see
Tutu v Minister of Internal Affairs 1982 4 SA 571 (T).
68 The courts do have jurisdiction in respect of prerogative acts in general: see the Case
of Proclamations (1611) 12 Co Rep 74. The courts cannot enquire into the wisdom
or desirability of acts performed by virtue of prerogative, however, but may merely
determine whether the act in question has been validly performed. As regards acts
of state see VerLoren van Themaat 3 ed at 244; H Booysen Volkereg (1980) at 255-322;
S A de Smith Constitutional and Administrative Law 4 ed (1981) at 152-157.
69 Op cit. He discusses acts of state at some length.
70 At 154.
71 Constitutional and Administrative Law 6 ed (1978) at 281 et seq.
72 Salomon v Secretary of State for India (1906) 1 KB 613 (CA).
73 Hood Phillips op cit at 284. Also see Wade and Phillips Constitutional Law E C S
Wade ‘Act of State in English Law’ 1934 BYIL 98; Keir and Lawson Cases in Con
stitutional Law 6 ed (1979) at 144-173; and the cases of The King v Bottrill: Ex parte
Kuechenmeister 1947 KB 41 and Nissan v AG 1970 AC 179, a judgment described
by De Smith as “a disaster for students of the law”.
74 S v Devoy 1971 1 SA 359 (N) and 1971 3 SA 899 (A).
regarded as non-justiciable by our courts.7576

There are, however, certain acts of state which Booysen terms “internal
acts of state”. These are executive acts of state performed by the executive
by virtue of its prerogative in the domestic sphere, and apply purely within
the Republic, for example, the calling of a general election. Here, too, the
courts have no power to question the merits of the decision taken. The dis
tinction between internal and foreign acts of state was dealt with in the case
of Patriotic Front-ZAPU v Minister of Justice, Legal and Parliamentary
Affairs.16
Among the State President’s statutory powers were the following:
(a) The power to appoint deputy ministers and to create new state
departments.77
(b) The power to appoint and dismiss persons in the service of the Republic.78
(c) Before the abolition of the Senate in 1980, the power to appoint senators
for each province.79
(d) The power to appoint a delimitation commission to divide each province
into electoral districts.80
(e) Before the abolition of the Provincial Councils in 1986, all powers relat
ing to provincial government, namely, to appoint provincial Administrators,81
to disapprove rules relating to the procedure of Provincial Councils,82 to
determine allowances payable to provincial councillors,83 to approve
allowances payable to members of provincial Executive Committees,84 to
assent to or withhold assent to provincial ordinances or to reserve them for
further consideration,85 and, in general, to exercise the powers previously
exercised in respect of the provinces by the Governor-General or the
Governor-General-in-Council, in so far as they had not been conferred on
another authority by law.86
(f) The power to appoint commissioners to the Railways and Harbours
Board.87
75 See VerLoren van Themaat 3 ed at 244 fn 99, where he compares acts of state with
the French concept of actes de gouvernemenf, Booysen op cit at 282; and the cases
of S v Devoy supra-, Beckmann v Minister of the Interior 1962 2 SA 233 (E) at 240;
Bam v Minister of Justice 1976 4 SA 643 (Tk); Inter-Science Research and Develop
ment Services (Pty) Ltd v Republica Popular de Mocambique 1980 2 SA 111 (T) at 117.
76 1986 1 SA 532 (ZSC).
77 Ss 20(1), 21(1) and (2).
78 See s 22 of the Constitution, as well as the Public Service Act 54 of 1957; Freeman
v Union Government 1926 TPD 638 at 650; B Beinart ‘The Legal Relationship between
the Government and its Employees’ 1955 SA Law Review 21; J Labuschagne DieAmp-
tenaarsverhouding - ’n Administratiefregtelike Ondersoek unpublished LLM disser
tation UNISA 1975.
79 S 28(l)(a) of the 1961 Constitution.
80 S 42.
81 S 66. The Administrator is still appointed by the State President.
82 S 73(2).
83 S 74.
84 S 76(3).
85 S 89(2).
86 S 113.
87 S 102, which was replaced by s 34 of Act 101 of 1980. In terms of Act 17 of 1916,
however, the railways and harbours board was retained.
(g) The control over and administration of black affairs and matters relat
ing specifically to Indians within the Republic.88
(h) The power to administer South-West Africa/Namibia and to control the
process of devolution in that territory.89
(i) The power to declare a state of emergency in terms of the Public Safety
Act 3 of 1953, to ban organizations and publications, and to prohibit meet
ings.90
(j) Various wide-ranging powers in terms of the Defence Act 44 of 1957.91
The abovementioned are only examples of the most important statutory
powers possessed by the State President prior to 1983. In brief, it may be
said that he possessed powers of nomination and appointment as well as emer
gency powers and the power to adopt subordinate legislation by way of procla
mation. Although such subordinate legislation did not enjoy the status of
parliamentary legislation (since it could be declared invalid by the courts),92
and although the State President’s legislative powers were subject to
parliamentary control (since his proclamations usually had to be tabled in
Parliament and could be disallowed by Parliament), they remained a very
powerful weapon in the hands of the executive. Strictly speaking, the State
President’s power to legislate by proclamation should perhaps be dealt with
in the chapter on the legislature; however, in this regard the State President
was not acting as part of the legislature, but as part of the executive, since
his powers were exercised on the advice of the executive. Moreover, sub
ordinate legislation is generally classified as falling into the category of legis
lative administrative action,93 so that it is not inappropriate to deal with it
here.94
The State President’s wide powers in respect of black affairs95 and South
88 S 111, and see ch 15 at 302-303 and ch 21 at 402.

89 S 1 of Act 95 of 1977, and see below at 302-303 and 422-424.
90 S 2 of Act 3 of 1953. See the discussion on the rule of law in ch 5; also C J R Dugard
Human Rights and the South African Legal Order (1978) at 155; A S Mathews Law,
Order and Liberty in South Africa (1971) at 53.
91 Eg ss 91-92 (mobilization of citizen force reserve and commandos); 99 (security of
harbours and airfields); 100 (commandeering of resources); 101 (censorship); 103 (emer
gency regulations).
92 See, for example, Sekretaris van Binnelandse Sake v Jawoodien 1969 3 SA 413 (A);
S v Hotel and Liquor Trader’s Association of the Transvaal 1978 1 SA 1006 (W); and
the leading cases of Government of KwaZulu v Government of the Republic of South
Africa 1982 4 SA 387 (D) and Government of the Republic of South Africa v Govern
ment of KwaZulu 1983 1 SA 164 (A), and the comments on these judgments in Wiechers
op cit at 33, 62, 90, 103 and 317.
93 See Wiechers op cit at 91.
94 As VerLoren van Themaat points out (3 ed at 240, fn 88), a statutory board is usually
appointed to make an investigation, upon which the proclamation is subsequently based.
In this way a bureaucratic rather than parliamentary legislative process is created.
95 It should be pointed out, however, that these powers are not something new: it was
the Black Administration Act 38 of 1927 (then called the Native Administration Act,
and later the Bantu Administration Act) which made the Governor-General the supreme
chief of all black people in the country, and vested in him sweeping powers to amend
or repeal by proclamation any Act of the South African Parliament relating to black
areas and to make new laws for such areas (s 25(1)). See the dictum of Greenberg J
A in R v Maharaj 1950 3 SA 187 (A) at 194D: “It appears to me that, subject to the
West Africa96 have been retained in the 1983 Constitution and will be dealt
with in greater detail at a later juncture.
3 The Vice State President

Prior to 1980, no provision was made for a permanent post of Vice State
President, but only for an acting State President when the post was vacant
or if the State President was unable to carry out his duties for reasons of
illness, for example. Before 1961 it was the Chief Justice or next most senior
judge who acted as Governor-General.97 The Republican Constitution of 1961
provided for the President of the Senate to act as State President, and, if
this was not possible, the Speaker of the House of Assembly.98 When the
Senate was abolished in 1980 and the President’s Council brought into being,99
provisions of section 26(1) (which provides for parliamentary control) the Governor-
General is given powers of legislation . . . equal to those of Parliament, that it is com
petent for him to repeal the Common Law or Statute Law.” Also see D Welsh ‘The
State President’s Powers under the Bantu Administration Act’ 1968 Acta Juridical.
This kind of provision, which is generally known as a Henry VIII clause (Henry VIII
having been able to persuade the English Parliament to confer on him the power to
amend or repeal acts of Parliament) is open to criticism on various grounds, not the
least of which is that it conflicts with the principle of separation of powers (see ch
7 above). Under the National States Constitution Act 21 of 1971 the State President
could even create constitutions for the emergent black states within South Africa (the
so-called national states, initially dubbed Bantustans). In fact, it has been suggested
that these powers were sufficiently wide to admit of the possibility that the State Presi
dent could amend the National States Constitution Act and repeal the constitutions
already granted in terms of the Act. This in turn raises the question whether the often
quoted dictum of Stratford C J in Ndlwana v Hofmeyr 1937 AD 229 at 237, to wit
that “freedom once conferred cannot be revoked” has any meaning in constitutional
law at all. See the discussion above at 149 et seq. Also see F Venter ‘Die Staatspresident
se Posisie in die Bantoestaatsreg’ 1972 THRHR 330, and Die Suid-Afrikaanse Bantoe-
staatsreg unpublished doctoral thesis, PU for CHE (1978) at 549; D H van Wyk
‘Owerheidsinstellings vir Nie-blankes in die Suid-Afrikaanse Staatsreg’ 1975 THRHR
1 at 14.
96 The State President possessed equally wide-ranging powers in respect of South-West
Africa. The process of constitutional development took place under the control of
the State President. In fact, the State President could, and did, alter the composition
of the South African Parliament by proclamation when South West Africa’s six
representatives in the House of Assembly and four Senators disappeared from the scene
in terms of Proclamation R249 of 1977. So far-reaching were the State President’s
powers that he was given virtual carte blanche by Parliament to make the constitu
tional arrangements for South West Africa. In terms of these powers he created the
office of Administrator-General by proclamation. The office of Administrator-General
was created by Proclamation R180 of 1977, and the Administrator-General was invested
with full legislative authority in terms of Proclamation R181 on the same day. The
Administrator-General, in turn, instituted a National Assembly of elected representa
tives to legislate for the territory. The National Assembly was instituted by Proclama
tion AG 21 of 1979. The legislative measures introduced by the Administrator-General
immediately after assuming office is sketched by J A Faris ‘South Africa’s Severance
of Links with South West Africa’ 1977 SA YIL 48 at 63.
97 Par I and VI of the letter patent which came into operation on 1 March 1937.
98 The draft constitution did include the Chief Justice as third substitute, but it was felt
that it was inappropriate that the head of the judiciary should perform this kind of
function. See E Kahn The New Constitution (1962) at 20.
99 Though not as the successor to the Senate in the legal sense - see the discussion be
low at 238-239.
the office of Vice State President was created.100 The function of the Vice
State President was to act as chairman of the President’s Council and to act
as State President if the latter was unable to act or if the post was vacant.
If the Vice State President was unable to act, the task fell onto the Speaker,
and if he in turn was unable to take over the function of the State President,
the Executive Council appointed someone from its ranks to serve in this
capacity.101
The Vice State President was elected in precisely the same way as the State
President, also held office for seven years, and had to have the same qualifi
cations as a candidate for the state presidency. Like the State President, he
had to take the oath of office and could be dismissed by the House of
Assembly on the grounds of misconduct or incapacity to perform his duties.102
The Vice State President’s main task was to act as chairman of the Presi
dent’s Council, which was, prior to 1983, a purely advisory body. In this
regard the Vice State President performed the important task of acting as
mediator and arbiter in a multi-racial body which, it was hoped, would set
an example in the development of a system of politics of negotiation rather
than confrontation. The creation of the post was seen by VerLoren van
Themaat103 as a very important constitutional step and there were many who
were surprised when the concept of a permanent Vice State President was
jettisoned altogether in the 1983 Constitution.104
4 The Executive Council

When South Africa became a republic in 1961, the old-style Executive Coun
cil, which had served little purpose,105 fell away and was replaced by the new
Executive Council which was, to all intents and purposes, identical to the
Union Cabinet. After 1961 the terms ‘Cabinet’ and ‘Executive Council’ could
be used interchangeably: ‘Executive Council’, the term used in the Constitu
tion, was used in a formal context, while ‘Cabinet’ was commonly used in
everyday speech, by the media, and so on.
The State President appointed a maximum of twenty persons to administer
the state departments of the Republic:106 these ministers of state constituted
the Executive Council.107 Like his predecessor, the Governor-General, the
State President appointed these ministers pro forma only, the actual selec
tion of ministers and allocation of portfolios being, by convention, a matter
for the Prime Minister.108 This clearly illustrates the all-powerful constitu
tional position of the Prime Minister. It may even be argued that the West
minster system has developed, not into a system of Cabinet government, but
into one of government by Prime Minister.109
100 See s 10A of the Constitution, which was inserted by s 5 of Act 101 of 1980.
101 Sil of the Constitution, as amended by s 6 of Act 101 of 1980.
102 See s 10A of the 1961 Constitution, inserted by s 5 of Act 101 of 1980.
103 3 ed at 232.
106 S 20 of the 1961 Constitution.
107 S 17.
108 See ch 9.
109 See J P Mackintosh The British Cabinet 3 ed (1977) at 457: “The lesson for students
of British government is that even at times when the record and capacities of a Prime
Minister are under the maximum criticism and therefore the office is at its weakest,
The convention that members of the Cabinet should either be members

of Parliament at the time of their appointment, or should become members
as soon as possible thereafter110 was incorporated into the Constitution Act
itself.111 Initially, the period within which ministers had to become members
of Parliament was fixed at three months, but this was extended to twelve
months in 1980, an amendment which elicited a good deal of adverse criti
cism, since the principle of ministerial responsibility to Parliament could be
jeopardized if there was no direct parliamentary control over specific mem
bers of the Cabinet.112 Before becoming a member of the Executive Coun
cil, a minister had to take the oath of office before the State President or
someone appointed by him.113
The Executive Council functioned by way of regular meetings at which
both general policy and the role of specific ministers and the functioning
of their departments was discussed. Such meetings are always held in camera
and the minutes of the meetings are not made public.114 Public statements
are the exception rather than the rule. As in Britain, the principle of individual
and collective ministerial responsibility is recognized in South Africa. Again
in Britain, however, the collective responsibility of ministers is not as wide
E
is sometimes thought. The modern Cabinet is a fairly large body and the
odern state administration is a complex business; a knowledge of what is
happening within one state department can therefore not necessarily be
imputed to a minister not directly concerned with that department. Nor was
it an established practice that the Prime Minister was obliged to inform the
entire Cabinet fully on every matter.115 Apart from the minister involved,
only the Prime Minister and, presumably, some or all the senior ministers
(or ‘Inner Cabinet’ as it is sometimes called) would have been au fait with
all the facts.
overall direction can come from no other source, no junta can take command, powers
that are circumscribed are not taken up by others but merely fall into abeyance and
there is no way out of the impasse other than one which involves a recovery in the
authority of the Prime Minister.”
110 S 20(3).
Ill In terms of Act 70 of 1980. Ministers who were not members of Parliament could
speak in Parliament, but had no vote (s 54(5) as amended).
112 As VerLoren van Themaat 3 ed at 246, points out, it is conceivable that a powerful
Prime Minister could, perhaps together with other ministers, have assumed respon
sibility to Parliament on behalf of Cabinet ministers who were not yet members of
Parliament. It is clearly unthinkable that the Prime Minister himself could have been
a non-member of Parliament, even temporarily, in view of the firmly established con
vention that the Prime Minister must be the leader of the majority party in the lower
house. A Prime Minister can hardly lead his party from outside of Parliament.
113 Ss 20(5) and 115 of the Constitution.
114 See Schierhout v Union Government 1927 AD 94 at 101; Nyangeni v Minister of Bantu
Administration and Development 1961 1 SA 547 (E) at 560; Minister of Community
Development v Salojee 1963 4 SA 65 (T) at 71; also the English case of AG v Jona
than Cape 1975 3 WLR 606 and A S Mathews The Darker Reaches of Government
(1978) at 112.
115 In 1956, for example, the British Prime Minister, Anthony Eden, did not inform all
the members of his Cabinet beforehand that military action was being planned in Suez.
This position was clearly illustrated by the so-called information scandal

of 1977-1978. Certain irregularities came to light within the Department of
Information, and a fierce parliamentary debate ensued about the respons
ibility of the minister concerned (Dr C P Mulder) and that of the then Prime
Minister (Mr B J Vorster) and the rest of his cabinet. Mulder’s responsibility
for the activities of his department was fairly generally accepted, and he
resigned. The question of the Prime Minister’s responsibility was bedevilled
by the fact that when the storm broke, Vorster had already resigned as Prime
Minister and been elected and sworn in as State President. Because he was
State President, he could no longer be brought to book by Parliament for
what had happened while he was Prime Minister; and although the Consti
tution made provision for the removal of a State President on the grounds
of misconduct or unfitness, the ‘misconduct’ had been committed not by
the State President but by the Prime Minister, and ‘unfitness’, it may be
argued, relates to physical or mental incapacity and has no moral conno
tation. The rest of the Cabinet stuck to its guns and flatly denied all respon
sibility.
It may therefore be concluded that the individual responsibility of a Cabinet
minister means that he is obliged to answer questions in Parliament on the
administration of his department, is responsible for policies framed by him
self and for matters under his actual control, and that he bears ordinary ‘non-
parliamentary’ or moral responsibility.
Collective responsibility would seem to mean little more than that the
ministers must present a united front to the public. Differences of opinion
should be thrashed out in Cabinet meetings and a minister who cannot iden
tify with or reconcile himself to the majority view must resign.116 It may also
be argued that ministers who knew about irregularities or malpractices within
another department bear joint responsibility with the minister concerned,
and that Parliament may call on them to resign. If they refuse, however,
there is little Parliament can do; the matter will really lie in the hands of
the party caucus. The courts have no jursidiction in the matter.
If, for whatever reason, a Cabinet minister was unable to perform any
of his official functions, the State President could appoint another member
of the Executive Council to act in his stead, either generally or to perform
a specific function.117 In addition, the State President could appoint up to
six deputy ministers to act on behalf of Cabinet ministers or to act in their
stead.118 Deputy ministers who were not members of the House of Assembly
had three months within which to become members, and had to take the
oath of office like Cabinet ministers. They were not members of the Execu
tive Council, but were appointed on the advice of the Council.
State departments were organized in much the same way as before 1961.
The allocation of portfolios was largely a matter for the Prime Minister, but
116 As Ministers Hofmeyr and Sturrock did in 1938. The extent to which this principle
will find application under the new Constitution is uncertain, since the Cabinet no
longer consists solely of members of the majority party in the House of Assembly.
See the discussion in ch 16 below.
117 S 20(4).
118 S 21.
obviously the wishes, views and individual expertise of the members of the
Cabinet played an important part. The organization of the state administra
tion varied in accordance with the needs of the time — in 1980, for example,
there was a large-scale rationalization of state departments and the existing
departments were reduced in number from 39 to 22. Both the Constitution119
and the Interpretation Act120 made provision for the possibility that the State
President could assign the functions of one minister or department to another,
on the advice of the Executive Council. There is, however, one provision
of the Constitution which is of interest here: section 95 provided expressly
that all administrative powers, activities and duties relating to the adminis
tration of justice fell under the control of the Minister of Justice. This could
mean that the State President’s power to assign powers of one department
to another did not extend to the Department of Justice.121
Control over the executive
As Wiechers points out,122 the laissez-faire state of the nineteenth century

has been supplanted by the administrative state of the twentieth, and it is
futile to quibble about the desirability of this development. What is of prime
importance, is to ensure that executive government is effectively controlled
and that the state administration is run in a manner which is efficient and
legally above reproach.
Parliamentary control is the oldest form of control over the executive and
although its effectiveness has declined somewhat, particularly in South Africa,
it remains of importance. Parliamentary control may take several forms: ques
tions to ministers about the administration of their departments,123 the
investigation of aspects of administration by select and standing commit
tees, the tabling of subordinate legislation,124 and, finally, financial control.
The last-mentioned form of control is the most effective in one sense, since
Parliament must annually vote the funds required for the administration of
the country. That is why the annual budget debate and the individual budget
debates of the various departments attract so much public interest. The
Auditor-General plays an important part in the control of state revenue and
his annual report may be seen as an important indication of the way public
money is spent and the country administered.
Ombudsmen and parliamentary commissioners have emerged in recent
years because parliamentary control over the executive has proved inadequate
in most countries. The ombudsman is a Scandinavian figure, an individual
official who enjoys relatively independent status, whose function is to inves
tigate charges of bureaucratic inefficiency and maladministration. The
advantages of the ombudsman institution are, amongst others, the relative
informality and inexpensiveness of the investigative process and the wide
nd 21(1).
1 (5) of Act 33 of 1957; see L C Steyn Uitleg van Wette 5 ed (1981) at 173-174.
ren van Themaat 3 ed at 259.
17 fn 52; also see P J van R Henning ‘Die Administratiewe Staat’ 1968
B Dean ‘Whither the Constitution?’ 1976 THRHR 266 at 276.

17 of the Interpretation Act 33 of 1957.
scope of the enquiry; the main disadvantages that the official concerned
(whether he is called an ombudsman, as in New Zealand or Bophuthatswana,
or a parliamentary commissioner as in Britain) remains an official and is
therefore still part of the bureaucracy and that he possesses little real power.
In 1979, after the information scandal, a call went up for the institution of
an ombudsman in South Africa.125 After initially resisting the suggestion
strenuously, Parliament eventually agreed to the institution of an Advocate-
General to report to Parliament on any discrepancies or irregularities in the
administration of public money.126 The incumbent enjoys a high degree of
independence, and reports back direct to Parliament, but (at this stage, at
any rate) his mandate is rather restricted, since it relates solely to the finan
cial sphere.127
Commissions of enquiry constitute a further means whereby control may
be exercised over the executive. Such commissions are appointed by the State
President by virtue of common-law prerogative and in terms of the Com
missions Act,128 which empowers the commissions to subpoena witnesses to
order the disclosure of documents, to prevent interference with its activities,
and so on. Because commissions of enquiry are often chaired by a judge,
they are commonly referred to as ‘judicial commissions’ but this is a mis
nomer, since they are not judicial bodies performing judicial functions.129
Commissions of enquiry serve to inform both Parliament and the general
public about matters of public interest.
All the above-mentioned forms of control over the executive are linked
with the control which is exercised by public opinion, as informed by the
media. The term public opinion covers not only public opinion in the widest
sense (the voting public), but also pressure groups such as church and cul
tural organizations, consumer unions, universities and so on. This is the public
to whom Parliament is ultimately responsible, and it is because public opin
ion is so important a factor that democratic institutions such as freedom of
speech, freedom of the press and the right to be informed are so jealously
guarded by the public.130
Judicial control over the executive is not as directly linked with public opin
ion as the other forms of control, but there is a strong nexus all the same.
125 See Dean 1976 THRHR 266 at 275.

126 The Advocate-General Act 118 of 1979.
127 For further information about the ombudsman figure, see W Gelhom Ombudsman
and Others (1967); also G C Kachelhoffer ‘Die Ombudsman’ 1967 THRHR 339; G
N Barrie ‘The Ombudsman: Governor of the Government’ 1970 SALT 224; H Rudolph
‘The Ombudsman and South Africa’ 1983 SALJ 92; L Gering ‘Legal Institutions
and Human Needs’ 1974 THRHR 274 at 275; as regards the British parliamentary
commissioner see S A de Smith Judicial Review of Administrative Action 4 ed (1980)
at 53 and H W R Wade Administrative Law 5 ed (1982) at 76.
128 8 of 1947.
129 See D H van Wyk ‘Commissions’ LA WSA vol 2 at 281; W Bray 1982 THRHR 390;
VerLoren van Themaat 3 ed at 252-253; and the cases of Bell v Van Rensburg NO
1971 3 SA 693 (C); S v Naude 1975 1 SA 681 (A) and 1977 1 SA 46 (T); Erasmus
v SA Associated Newspapers Ltd 1979 3 SA 447 (W); Smalberger v Cape Times Ltd
1979 3 SA 457 (C); S v Mulder 1980 1 SA 113 (T), and the discussion of the Mulder
case by F Theart 1980 TSAR 96.
130 See ch 5 above.
An independent judiciary is one of the corner-stones of any democratic state;

no judiciary can afford to lose the respect of the public, and the public’s
faith in the impartiality and independence of the courts is vital.131 Although
the courts’ jurisdiction over supreme executive acts is limited in various
respects,132 our law recognizes a common-law action for review of adminis
trative action133 as well as an action in delict for loss or damage resulting
from administrative action.134
5 The President’s Council

The President’s Council that was brought into being in 1980135 was, unlike
the Senate, not part of the legislature, since it had no legislative function
whatsoever. Nor was it, strictly speaking, part of the executive, since it had
no executive powers as such, but was a purely advisory body. It may,
nevertheless, conveniently be classified as part of the executive, if for no other
reason than its resemblance to the old royal council or curia regis, the body
of counsellors who advised the old English kings. In a more modern sense,
it may be said to be a kind of statutory board or commission.
The political developments of the late nineteen-seventies which preceded
the creation of a President’s Council are discussed in chapter 10. At this point
all that need be said, is that the President’s Council was the first attempt
to create a multi-racial body of any standing in the previously all-white South
African constitutional system.
The Council consisted of sixty members appointed by the State President
and was chaired by the Vice State President. Members had to be South
African citizens, at least thirty years old, not members of any legislative body
or holders of offices of profit in the state in terms of section 55 of the Con
stitution, and had to belong to the White, Coloured, Indian or Chinese popu
lation group.
The Council was appointed for a period of five years, but could be dis
solved before that time had elapsed, that is within ninety days after a general
election. Vacancies that arose were filled by the State President, who also
determined the members’ remuneration. Four committees were appointed,
each with its own chairman. These were the constitutional, economic and
planning committees, and the committee for community relations. Further
standing committees could be appointed, and there was nothing to prevent
a member from serving on more than one committee.
The President’s Council’s main function was to advise the State President
on request, but it was also empowered to take the initiative and to express
itself on any matter which it deemed to be in the public interest, except legis
lation. Draft legislation had to be referred to the Council by the legislature
concerned.136 In performing its advisory task the Council was entitled to con
sult with any person or organization it wished.
131 See the discussion of the role of the judiciary in chs 5, 13 and 18.
132 See below at 269-270 and 359-360.
133 See Wiechers op cit ch 6; L A Rose-Innes Judicial Review of Administrative Tribunals
in South Africa (1963).
134 See Wiechers op cit ch 7.
135 Ss 102-106 of the Constitution, inserted by s 34 of Act 101 of 1980.
136 Local authorities were not included.
The original President’s Council was therefore a statutory body which

advised both the executive (the State President) and the legislature (where
legislation had been referred to it). Since members of the black population
group were specifically excluded from the Council, its consultative powers
in matters affecting Blacks were regarded as potentially of considerable
importance, particularly after the government announced its intention to
abandon the idea of a statutory council for Blacks. The Council had, however,
very little opportunity to show what contribution it was capable of making
towards the new constitutional dispensation before the 1983 Constitution was
adopted, and with it an amended President’s Council.
CHAPTER TWELVE
The Legislature 1910 to 1983

I INTRODUCTION
Section 19 of the South Africa Act provided:
The legislative power of the Union shall be vested in the Parliament of the
Union, herein called Parliament, which shall consist of the King, a Senate, and
a House of Assembly.
The King was replaced by the State President in 1961, and the Senate under
went several changes before its abolition in 1980.
II THE HEAD OF STATE

1 The King
The King was represented in South Africa by the Governor-General; in cer
tain cases, however, bills could not be assented to by the Governor-General,
and had to be reserved for the King’s approval. The King could also disal
low legislation which had already been approved by the Governor-General.1
In exercising these powers, the King was advised by his own ministers, initially
at any rate. The question is, however, whether the Governor-General acted
pntirely on his own when legislation was presented to him for his assent,
whether he was bound by the advice of the Union ministers or whether he
acted in accordance with convention. According to VerLoren van Themaat,2
the Governor-General did not act on the advice of his ministers; furthermore,
since he never, in practice, refused assent to any bill or returned it to Parlia
ment, as he was empowered to do, it would appear that the British conven
tion that bills duly passed by Parliament will be assented to, became
established in South Africa as well.3 In theory, however, the Governor-
General, like the British monarch, retained his reserve power to refuse assent
to a bill in the event of a mistake or serious irregularity. ‘
2 The State President

When South Africa became a Republic in 1961, the State President stepped
into the shoes of the monarch. From then onwards, every Act of Parliament
read: “Be it enacted by the State President, the Senate and the House of
Assembly of the Republic of South Africa” instead of “Be it enacted by
Her Majesty the Queen, the Senate and the House of Assembly of the Union
of South Africa . . .”
1 See the discussion above at 200; this power was abolished in 1934, as was the power
to reserve legislation: see the first edition of J P VerLoren van Themaat Staatsreg (1956)
at 266-267.
2 Loc cit.
3 See the discussion of the relationship of the Union legislature vis-a-vis the British Parlia
ment and executive in ch 10, and the discussion of the development of conventions
of the constitution in ch 9.
240
The Legislature 1910 to 1983 241
Some of the recognized conventions existing before the switch-over to a

republican form of government were given statutory status in the Republic
of South Africa Constitution Act 32 of 1961. Among these was the conven
tion that the head of state acts on the advice of the executive. Section 16(2)
of the Constitution provided that, unless it was provided otherwise expressly
or by necessary implication, a reference in the Act to the State President was
deemed to be a reference to the State President acting on the advice of the
Executive Council. The question arose whether this provision had any bear
ing on the State President’s legislative function: in other words, did he have
to act on the advice of the executive when assenting to bills passed by Parlia
ment? The most logical answer appears to be that section 16 had to be con
strued as referring to the State President’s executive function only, for two
reasons: first, the Governor-General had not, immediately before the Union
became a Republic, acted on advice of his Union ministers when assenting
to legislation; secondly, the well-established convention governing royal assent
to legislation (namely that bills duly passed by Parliament would invariably
be assented to) had not been tampered with in any way.4 In theory the State
President had the power in terms of section 64, to assent to legislation, to
disapprove it or to return it with emendations recommended by him. In prac
tice, legislation was never returned to Parliament or disapproved, and it was
generally accepted that the reserve power would be exercised only in the case
of some mistake or serious irregularity.
Ill THE SENATE

1 Composition
In 1910 the Senate consisted of forty members: eight were appointed by the
Governor-General-in-Council, of whom four were appointed on the strength
of their knowledge of the needs and desires of the non-white races, and the
remaining thirty-two by the provinces (eight each). The Senators were ap
pointed for ten years and, for the first ten years after Union, the Senate could
not be dissolved and its composition could not be altered. Thereafter the
Senate could be dissolved together with the House of Assembly but not by
itself.
The elected Senators were chosen by the members of the House of Assem
bly and Provincial Councillors of each province, by a system of proportional
representation, each member having one transferable vote. This meant that
the various political parties were represented in proportion to their strength
in the Assembly and the Provincial Council.
The first clash between the Assembly and the Senate occurred in 1924 after
a change of government had taken place. The new government could not
command a majority in the Senate, since the latter had not been dissolved
at the time of the election. A number of bills passed by the Assembly were
rejected by the Senate, and this led to the passing of the Senate Act of 1926,
4 However, see Ellison Kahn The New Constitution (1962) at 26, who takes the oppo
site view; also CWH Schmidt ‘Die Grondwet van die Republiek van SA, Wet 32 van
1961’ 1962 THRHR 36 at 41, and GN Barrie ‘Die Oorgangstadium met die Verskui-
wing van Wetgewende Gesag van Koning tot Parlement’ 1972 SALJ 84.
in which amendments were brought about which would make it impossible

for the Senate to thwart the Assembly.5 Thus the Senate acquired a political
character in spite of the intentions of the draftsmen of the South Africa Act
that the Senate should be a stable, conservative influence relatively free of
political bias.
The Senate was enlarged in 1936 to make provision for four ‘native
representatives’ and again in 1949 to make provision for four representa
tives for South West Africa. But the most radical change came about in the
1950s,6 when the Senate was enlarged so that the National Party government
could obtain the two-thirds majority required to ensure the adoption of the
Separate Representation of Voters Act.7 The number of both nominated and
elected Senators was increased and proportional representation was abolished
so that the majority party in each province could appoint all the Senators
for that province. The new Senate was composed of 89 members: sixteen
were nominated, 27 elected for the Transvaal, 22 for the Cape Province, eight
each for Natal and the Orange Free State, four (two nominated and two
elected) for South West Africa and four members representing the Black
population.
The Act introduced other changes as well: these were aimed principally
at ensuring that the Senate could not frustrate the Assembly in the event of
a change of government. The Senate could now be dissolved within 120 days
after a provincial election and not, as before, within 120 days after a general
election. Another amendment related to conflicts between the Houses: pre
viously, the Senate and House of Assembly had sat in a joint sitting to resolve
the disagreement.8 The 1955 amendment brought the South African legal
position into line with that in Britain,9 which was that a bill which had been
passed by the Assembly in two successive sessions, but rejected by the Senate,
could be presented to the Governor-General for his assent and become law,
thus by-passing the Senate. A money bill which had been rejected by the
Senate could be presented to the Governor-General within the same session.
The life of the Senate was reduced to five years.
Once the Separate Representation of Voters Act had eventually been
adopted, the oversized Senate had served its purpose and 1960 saw the revival
of the smaller Senate and of proportional representation. More representa
tives were appointed to see to the needs of the coloured people, but those
Senators who had been appointed so that they could minister to the needs
of the black population, had fallen away in terms of Act 46 of 1959.10 The
two nominated and two elected Senators for South West Africa were retained.
When South Africa became a republic in 1961, the Senate was composed
as follows: there were eleven nominated Senators (two from each province
and South West Africa and one appointed for the coloured population) and
5 For details concerning the amendments see VerLoren van Themaat Staatsreg 1 ed at 268.
6 Senate Act 53 of 1955.
7 See the discussion of the constitutional crisis above at 144-147.
9 Introduced by the Parliament Act of 1949.
10 The Promotion of Black Government Act.
TlieLegislature 1910 to 1983 243
one Senator for each ten members of the House of Assembly and the Provin
cial Council in each province, in accordance with the principle of propor
tional representation, with a minimum of eight Senators in each province.
The indirect representation of Coloureds in the Senate was abolished in
1968 when the Coloured Persons Representative Council was created.11 The
development of South West Africa towards independence saw the disappear
ance of the Senators for that territory in 1977.12
Moves toward the total abolition of the Senate gained momentum in the
late 1970s, and in 1979 Parliament adopted legislation to prolong the life
of the current Senate to the end of 1980,13 after which it was to disappear
from the scene. The abolition of the Senate gave rise to a number of techni
cal difficulties. Although there was no requirement that the Senate could be
abolished only by means of a two-thirds majority vote in a joint sitting of
both Houses of Parliament, any repeal or amendment of the entrenched sec
tions of the Constitution (108 and 118) did have to follow this process. Thus
if the Senate were to have been abolished by a simple majority in separate
sittings, the joint sitting required in respect of the entrenched sections would
no longer have been possible, and the effectiveness of the entrenched sec
tions would have been affected.14 The problem was solved by Parliament’s
amending the entrenched sections by a two-thirds majority in a joint sitting,
to the effect that any future amendment or repeal of the sections would require
a two-thirds majority in the House of Assembly alone.15 After that, Parlia
ment adopted legislation abolishing the Senate as from 31 December 1980.16
This legislation was adopted in the normal manner, that is, by an ordinary
majority in each of the two Houses sitting separately. From 1981 until the
commencement of the 1983 Constitution, the South African Parliament there
fore consisted of the State President and the House of Assembly.
2 Qualifications
In order to qualify for appointment as a Senator, whether elected or nomi
nated, a candidate had to be a least thirty years old; qualified to be registered
as a voter for the House of Assembly; resident within the Republic for five
years; a White South African citizen; free of the disqualifications applying
to candidates for election to the House of Assembly.17
11 In terms of Act 50 of 1968.

12 In terms of Proclamation R249 of 1977. As regards this radical form of constitutional
amendment see JA Faris 1977 SAYIL 57.
13 Act 5 of 1979.
14 The abolition of the Senate could not be equated with the enlargement of the Senate
in terms of the 1955 legislation. Even though there was no doubt that the Senate was
being enlarged in order to circumvent the entrenched sections, there was no direct im
pingement on the entrenched provisions. See Collins v Minister of the Interior 1957
1 SA 552 (A), in which the enlargement of the Senate was held to be valid, but where
it was nevertheless stated (per Steyn J A at 582F) that any parliamentary enactment
which constituted an amendment of the entrenched sections would not be valid unless
the prescribed procedure had been followed.
15 Act 74 of 1980.
16 S 13 of Act 101 of 1980.
17 See VerLoren van Themaat Staatsreg 3 ed (1981) at 263-264.
A member of the Senate lost his seat if he no longer possessed the necessary
qualifications; if he became subject to any of the disqualifications; if he
resigned or absented himself from an entire sitting without express permis
sion from the Senate (unless he was rendering military service).
After 1955, all Senators held office for a period of five years from their
appointment or election, and the Senate was automatically dissolved after
five years. The Senate could also be dissolved before the Senators’ term of
office expired: at the same time as the dissolution of the House of Assem
bly; within 120 days after the dissolution of the Assembly;18 or within 120
days after the expiry of the term of office of a Provincial Council.19 Nomi
nated Senators lost their seats, not only when their term of office expired
or when the Senate was dissolved, but also if there was a change of govern
ment.20
3 Procedure in the Senate

The procedure followed in the Senate was closely akin to that in the House
of Assembly.21 Before taking their seats, all Senators took the oath of loyalty
to the state, and the first step after that was the election of one of their num
ber as president of the Senate. Fifteen members of the Senate constituted
a quorum. All matters were decided by majority vote of those present, the
President having a casting vote, except in the committee stage, where he pos
sessed an ordinary vote. The procedure followed in the adoption of bills was
the same as in the House of Assembly: the first reading, second reading,
committee stage (and report stage) and third reading. Bills were initially intro
duced first into the Assembly and then the Senate, as a general rule, but after
1951 it became customary to introduce non-controversial bills in the Senate
first, in order to spread the workload more evenly. Financial bills had,
however, to be introduced in the House of Assembly first.22 The Senate could
approve, reject or amend bills, except financial bills, which it could not
amend, but had to accept or reject as they stood.
4 Dissolution of the Senate

After 1955 the life of the Senate was, like that of the House of Assembly,
five years.23 The Senate was therefore automatically dissolved five years af
ter being constituted. The Senate could, however, be dissolved before its term
had expired: simultaneously with the House of Assembly; within 120 days
18 This provision, introduced by the Senate Act of 1926, was invoked in 1948 after the
National Party had won the election but the United Party still enjoyed the support
of the Senate.
19 S l(2)(a) of the Senate Act of 1955.
20 S 33(3) of the Republic of South Africa Constitution Act 32 of 1961.
21 VerLoren van Themaat Staatsreg 3 ed at 266-267.
22 This was later changed so that a money bill could be introduced first in the Senate,
provided it was introduced by a minister. A senator, Owen Horwood, was Minister
of Finance at the time.
23 VerLoren van Themaat Staatsreg 3 ed at 265-267.
after the Assembly had been dissolved;24 or within 120 after the term of a
Provincial Council expired.25
AU members, and not only elected members, lost their seats when the Senate
was dissolved.
Ill THE HOUSE OF ASSEMBLY

1 Introduction
While legislative work is the most important function of legislative bodies,
it is not their sole function. Legislatures within the framework of the West
minster system also perform financial functions, exercise control over the
executive and hear and grant petitions.26
2 Composition
In 1910 the House of Assembly consisted of 121 members (51 representing
the Cape Province, 36 Transvaal, 17 each the Orange Free State and Natal)
elected in accordance with the principle of regional representation in single
member constituencies. Section 33 of the South Africa Act provided that
this number could be enlarged, but that no province’s representation could
be diminished until ten years had elapsed and the number of members had
reached 150. This number was reached for the first time in 1933, and since
then the number of Natal and Orange Free State members gradually
decreased, although Natal regained its original number in 1965, and now
boasts twenty members as against the seventeen it was entitled to in 1910.
Most of the additional seats have accrued to the Transvaal. Section 34 also
fixed the maximum number of seats at 150, the idea being that any rearrange
ment of seats should be done within the 150-seat framework. Sections 33
and 34 were, however, repealed in 1942.27 The number of elected members
was increased to 160 in 196528 and to 165 in 1973.29
After the abolition of the Senate in 1980, provision was made, for the first
time, for four members to be nominated by the State President (one for each
province) and eight members elected by the House itself in accordance with
the principle of proportional representation. Although the number of non
elected representatives is very small, and their influence in real terms there
fore minimal, the legislation attracted a good deal of adverse criticism: it
is a basic tenet of the Westminster system that Parliament is sovereign and
24 This provision was introduced in 1926 (Act 54 of 1926) in order to ensure that any
change of government would be reflected in the Senate as well as the House of Assembly.
25 This provision, inserted by s l(2)(a) of the Senate Act of 1955, was also aimed at prevent
ing the Senate from artificially keeping in power a party which had been defeated in
an election and therefore did not enjoy the support of the Assembly.
26 For a detailed description of the way in which Parliament operates, see DH van Wyk
‘Parliament’ in LA WSA vol 19 at 167-240 and R Kilpin Parliamentary Procedure in
South Africa (1955).
27 By Act 21 of 1937 and Act 30 of 1942. Until ten years had elapsed and the number
of members had reached 150, ss 33 and 34 were entrenched sections requiring, for
their amendment, a two-thirds majority in a joint sitting of both Houses of Parliament.
28 By Act 83 of 1965.
29 By Act 79 of 1973.
that ultimate legislative supremacy should vest in the elected representatives

of the people.30
3 Qualifications for Membership of the House of Assembly

To qualify as a candidate for election to the House of Assembly,31 a person
had to be a White South African citizen, entitled to register as a voter,32 and
have resided within the Union for five years. The following persons were
disqualified from membership of the Assembly:33 members of the Senate;
persons who had been sentenced to twelve months’ imprisonment without
the option of a fine within five years prior to their election; unrehabilitated
insolvents; persons of unsound mind (declared thus by a competent court);
persons holding an office of profit under the Crown within the Union; with
the exception of ministers of state for the Union, persons receiving a pen
sion from the Crown (later the state); officers or members of the permanent
force; justices of the peace,34 administrators of estates; members of the
Defence Force in war-time; members of a statutory board or committee receiv
ing allowances and travelling expenses, but no remuneration as such; mem
bers of commissions of enquiry appointed by the State President or provincial
Administrator; members of a select committee of Parliament; members of
a Provincial Council.
4 Tenure of Members
Members remained in office until the Assembly was dissolved by the
Governor-General/State President, but for a maximum period of five years.35
The seat was also vacated if the member resigned,36 died,37 absented himself
from an entire normal session without the express consent of the House (un
less he was rendering military service)38 or if he became subject to one of
the disqualifications or no longer possessed one of the qualifications required
for membership.39 If a vacancy occurred during the life of Parliament, it
was filled by way of a by-election held in the constituency concerned.40
5 Officers and Office-bearers

Officers of a House are persons holding permanent appointments, such as
the secretary of the Assembly or anyone else on the staff of the House; in
30 See H Rudolph ‘Nominated Members of Parliament and the Demise of the Entrenched
Sections’ 1981 SALJ 346.
31 S 44 of the South Africa Act; s 46 of the Republic of South Africa Constitution Act
32 of 1961.
32 Certain non-Whites were still enfranchised at that stage, but no women had the vote.
See the discussion in ch 3.
33 Ss 52 and 53 of the South Africa Act.
34 In terms of s 2 of Act 17 of 1933, which was deemed to have come in operation on
01-08-1914.
35 S 45 of the South Africa Act; s 47(1) of the Republican Constitution.
36 S 175 of Act 46 of 1946, which replaced s 48 of the South Africa Act; later s 188(1)
of the Electoral Act 45 of 1979.
37 S 176 of Act 46 of 1946; s 189 of Act 45 of 1979.
38 S 54 of the South Africa Act, as amended; s 56(c) of the Republican Constitution Act.
39 S 54 of the South Africa Act; s 56(a) and (b) of the Republican Constitution Act.
40 See the discussion on elections in ch 17 below.
other words, persons whose position is not dependent on the course of party
politics.
Office-bearers, on the other hand, are members of Parliament who hold
specific offices in the House, such as the Speaker, Deputy Speaker, Chair
man of Committees, leader of the opposition and party whips.
The Speaker was the chairman of the House of Assembly,41 and also
represented the House as the bearer of the powers and dignity of the House.42
The first duty of the Assembly on being convened for the first time after
dissolution (after members had taken the oath of allegiance to the state) was
to elect a Speaker from its ranks. The rule that a new Speaker was elected
at the beginning of each new Parliament was not a statutory one, but was
governed by convention.43 As a rule, the previous Speaker was re-elected if
he was willing to stand; unless there had been a change of government, when
it would have been unlikely that the party coming into power would not have
opted for someone within its own ranks.
Until the Speaker had been elected, the clerk of the House (later the secre
tary) acted as Speaker. The office of Speaker became vacant if the incum
bent died, resigned, was dismissed by resolution of the House or ceased to
be a member of the House. The Assembly was empowered to elect one of
its members to stand in for the Speaker, and, as a rule, a Deputy Speaker
and Chairman of Committees were elected with this in mind.
Once the House had elected the Speaker, he presented himself to the
Governor-General/State President, and then reported back to the House —
a formal procedure marked by great pomp and ceremony. The office of
Speaker has always been a prestigious one, characterized by authority and
impartiality. The mace is the symbol of the Speaker’s office.
The Speaker’s main function was to maintain order in the House and to
decide on matters of form; for example, whether the entrenched sections were
still binding on the Union Parliament after the passing of the Statute of West
minster.44 Yet the Speaker remained in every sense of the word a member
of the House and his party. He possessed no ordinary or deliberative vote
but had a casting vote in the event of a deadlock.
The Speaker was one of the most important office-bearers of the House
of Assembly. Among the others were the Chairman of Committees, who took
over the chair when the House went into committee;45 the leader of the
opposition,46 and the party whips, who were responsible for party discipline
41 The chairman of the Senate was the President of the Senate, who cannot be said to
have been the equal of the Speaker in all respects.
42 The chairman of the lower House in the Westminster system is called the Speaker in
imitation of the British model. In early times, when the main function of the House
of Commons was to submit petitions, the person who acted on behalf of the House
was known as the Speaker. It is of interest that the term was not translated into
Afrikaans: the person concerned is known as ‘die Speaker van die Parlement’.
43 See Van Wyk op cit at 186.
44 See the discussion in chs 6 and 10.
45 See the discussion of the procedure followed in the adoption of legislation below at
339 et seq.
46 The official opposition occupies an important position in the Westminster system (see
ch 4) and the leader of the opposition even enjoyed statutory recognition - unlike
the Prime Minister. See the discussion on conventions in ch 9.
and ensured that members were present to cast their vote at the appropriate
time.
6 Procedure in the House of Assembly
As mentioned above,47 the members had to take the oath of allegiance to
the Union before taking their seats. This oath was administered by the
Governor-General/State President or someone authorized by him.48
It is generally said that Parliament is master of its own procedure; that
parliamentary law may be changed by statute, but parliamentary procedure
by the House itself.49 The procedure of the House of Assembly was governed
by the standing orders of the House. No special procedure was prescribed
for the amendment of standing orders, but there was a committee on stand
ing rules and orders appointed by the Speaker and chaired by himself. In
all cases not provided for by the standing orders, the Speaker made a ruling.
Such a ruling was, however, subject to review by the House.50
Thirty members constituted a quorum; once this was achieved, the House
could proceed with its business.
The greater part of parliamentary business is conducted by way of mo
tions which may indeed be described as the basis of all parliamentary proce
dure.51 Notice must almost invariably be given if a motion is to be introduced
or withdrawn. In addition to motions, petitions and questions also play their
part in parliamentary procedure. Private bills52 and public petitions have to
be introduced by way of petitions. Such petitions have to be presented by
a member, but a member wishing to submit a petition may not do so per
sonally; another member must present it on his behalf. Questions form an
important part of the activity of the House, since this is the way in which
Parliament exercises control over the executive. Questions are directed primar
ily at ministers (though they may be addressed to the Speaker or to private
members as well). Notice must be given if questions are to be asked, and
if the minister decides to exercise his right to refuse to reply, he should indi
cate that it would not be in the public interest to reply to the questions.
7 Powers and Privileges

The powers and privileges of Parliament have not altered radically under
the 1983 Constitution and will be dealt with in chapter 17.
8 Procedure in the Adoption of Legislation

The procedure followed prior to 1983 is discussed in some detail, since it
differs in material respects from that introduced by the 1983 Constitution.
47 At 247.
48 This person was usually the Speaker, but obviously this task could be delegated in
this manner only when the Speaker had already been elected.
49 The power to govern its own proceedings was conferred on the House of Assembly
by statute. See Van Wyk op cit at 191.
50 See Van Wyk op cit at 198-199.
51 Van Wyk op cit at 224.
The procedure followed by Parliament in the adoption of legislation

differed according to the nature of the bill, that is, according to whether
it was a public bill, a private bill or a hybrid bill.
A public bill is one which relates to the public or general interest and affects
the community as a whole, and not certain individuals or a specific group
in the community. The vast majority of bills submitted to Parliament are
public bills. A private bill, on the other hand, is one which relates to indivi
duals or a specific group. Legislation whereby a university is established is
a prime example of a private bill.53
A hybrid bill is a public bill which nevertheless affects the interests of
specific individuals or groups rather than the interests of the public at large.
Examples of bills which were deemed to be hybrid bills were a measure which
converted two private schools into government schools54 and a bill which
ratified an agreement between the government and a private railroad com
pany.55 Although bills dealing with the right to practise a particular profes
sion were always dealt with as private bills in earlier times, it became
customary for them to be regarded as public bills. Examples of this are to
be found in legislation governing the profession of veterinarians, which was
passed in 1933, and legislation governing the activities of attorneys, notaries
and conveyancers (1934). The legislation introducing separate university edu
cation was also deemed to be of a public nature, despite the opposition’s
contention that it should be dealt with as a hybrid bill.
Before a bill can be introduced in Parliament, it must be drafted by the
state department concerned, couched in the legally correct form by the govern
ment’s legal advisers and given its final form by the parliamentary drafts
man, whose duty it is to ensure that bills are properly drawn up and that
the English and Afrikaans texts correspond.
All bills submitted to Parliament had to follow the procedure of a public
bill, at least. Bills introduced by a minister were known as government bills,
and other public bills as private members’ bills.
Special procedures applied to private bills. These were introduced by way
of petition and were then referred to the examiners (the Chairman of Com
mittees and the Secretary of the House). Such a bill could be opposed by
way of a petition, in which case it would be referred to a select committee
before further steps were taken. Once the special procedures had been fol
lowed, private bills went through the same process as public bills.
53 Most of the universities in South Africa were brought into being in this way. See the
University of the Witwatersrand, Johannesburg (Private) Act 15 of 1921; the Univer
sity of Pretoria (Private) Act 13 of 1930; the University of Natal (Private) Act 4 of
1948; the Rhodes University (Private) Act 15 of 1949; the University of the Orange
Free State (Private) Act 21 of 1949; the Potchefstroomse Universiteit vir Christelike
Hoer Onderwys (Private) Act 19 of 1950. The Universities of Cape Town and Stellen
bosch were, however, established via public bills, because of the urgency of the situa
tion. See VerLoren van Themaat Staatsreg 1 ed at 287.
54 The University Schools Transfer Act 32 of 1926.
55 The so-called ‘Milnerton Railway Junction Alienation Bill’ of 1930. It was deemed
to be a hybrid bill because it abolished rights which had previously been conferred
on the private company.
In the case of hybrid bills there were also a number of special procedures:
for example, notice in the Government Gazette and the press had, as in the
case of private bills, to be given, such notice to be signed by a parliamentary
agent. On the other hand, a hybrid bill, could, unlike a private bill, be in
troduced and read for the first time before being referred to the examiners;
but after the first reading, the examiners still had to determine whether the
required notice had been given and the necessary formalities complied with.
Like a private bill, a hybrid bill was referred to a select committee, but after
the second reading, not before. Like a private bill, further, a hybrid bill had
to have a preamble which had to be approved before the individual clauses
were dealt with. The select committee then dealt with the bill in the same
way as with a private bill. After the select committee submitted its report
the hybrid bill was dealt with in the same way as a public bill.56
The traditional stages which a public bill passed through in the legislative
process were the following: (a) introduction and first reading; (b) second
reading; (c) committee stage; (d) report stage; (e) third reading. At first,
bills were generally submitted first to the House of Assembly and thereafter
to the Senate, where they followed the same process as in the Assembly. As
mentioned above, it became customary to introduce some bills in the Senate
first — for purely practical reasons. However, money bills were always in
troduced in the Assembly first.57
(a) Introduction or first reading

Public bills were almost invariably initiated by the government and introduced
by the •ponsible for the bill. The minister gave notice, by way
of rr 7uld be requesting the House’s permission to introduce
ab matter in question on a particular day.58 The motion
w< he appointed day, and once the motion to introduce
it he House decided formally whether permission to in-
tn be granted. The motion was seldom opposed or even
♦he proposed legislation was indicated in the so-
"I'ich stated the objectives sought to be achieved
fed, the member introducing the bill

(below the Speaker’s chair) and pró
56 If the hybrid bill was introduced by the government, no fees had to be paid and the
state attorney could act as parliamentary agent: s 3(1) of Act 56 of 1957.
57 Until the rule was adopted that a money bill introduced by a Cabinet minister could
go to the Senate first. This happened at the time when a member of the Senate, Owen
Horwood, was Minister of Finance.
58 Bills affecting the Crown, Crown lands or prerogatives, and bills or resolutions making
available state revenue, taxes or levies, could not be introduced except on the recom
mendation of the Governor-General given during the same sitting. See VerLoren van
Themaat Staatsreg 1 ed 289 fn 81. The rule was retained in essentially the same form
after South Africa became a republic: legislation making available state revenue, tax
es or levies, had to be brought by a minister or on the recommendation of the State
President in the same sitting (s 62 of the Constitution Act), and bills affecting state
land or property could not be introduced unless the State President had consented
to the introduction.
posed that the bill be read for the first time.59 The Speaker then put the mat
ter to the vote without permitting any amendments or debate. As soon as
the bill had been read for the first time, a date was set down for the second
reading. The bill was then printed.
(b) Second reading

On the appointed day, the person introducing the bill would explain the rea
sons for the introduction of the proposed legislation, whereupon the House
discussed the general principles involved. The individual clauses were not
debated at all during this important stage in the legislative process. Mem
bers opposed to the legislation could make one of three proposals: (i) that
the bill be read in six months’ time; (ii) that the bill should not be read a
second time;60 (iii) that the bill should be referred to a select committee. The
first form of opposition indicated a total rejection of the proposed legisla
tion, since it meant, in effect, that the bill would not be reintroduced.61 By
contrast, if a motion was passed that the bill should not be read a second
time, the bill could be reintroduced during the same session. Bills were, as
a rule, referred to a select committee only when the proposed legislation was
not of a party-political nature. A select committee, in this context, meant
a small committee on which all parties were represented more or less in
proportion to their numerical strength in the House.62 Parliamentary select
committees could be converted into commissions of enquiry after the
parliamentary session ended.63
If the motion that the bill be read a second time was approved, the Clerk
of the House read the short title of the bill, whereupon the bill was, as a
general rule, referred to the ‘committee’, that is, the committee of the whole
House, with all its members sitting as a committee.
(c) Committee stage

When the House went into committee, the Speaker left the chair, which was
taken by the Chairman of Committees. During this stage the bill was debated
clause by clause, in detail. Amendments dealing with underlying principles
could no longer be proposed, since the discussion of the principles of the
legislation would have been debated during the second reading.
(d) Report stage

After the consideration of the clauses of the bill in committee, the Chair
man reported back to the House. Any amendments to the bill which had
59 At one stage the bills were indeed read out, clause by clause.
60 Reasons for this proposal would have to be given when the motion was proposed.
61 The six-month interval meant that the House would have adjourned and that the bill
could not be read; and even where the House happened still to be in session after six
months had elapsed, the rule evolved that the bill in question could not be reintroduced
during that session.
62 The concept of select committees on which all political parties are represented is a
major feature of the 1983 Constitution. See the discussion in ch 17 below.
63 In exceptional cases there could be an additional stage at this point, ie if the House
decided, after the second reading, to debate the principles of the legislation once again.
This was referred to as ‘instructions of the House’. See Kilpin op cit at 10, fn 46,
and the authority cited there.
been approved by the House in committee were deemed to have been

approved by the House.
(e) Third reading

No important amendments could be proposed during this stage, when only
the loose ends could still be tied up. Once the bill had been read a third time,
it was deemed to have been passed, and it was then presented to the Governor-
General or State President for his assent.
The State President, like the Governor-General before him, could assent
to the bill, withhold assent, or return the bill to Parliament with suggested
emendations. In practice neither the State President nor the Governor-General
ever refused assent, but the Governor-General did on occasion return the
bill to Parliament so that errors could be corrected.64
Assent was signified by the signing of the copy of the bill as certified by
the Speaker. The English and Afrikaans texts were signed alternately, and
the Constitution Act provided that the signed text would receive preference
if an irreconcilable conflict were to arise between the two texts. The courts
have, however, on occasion regarded the unsigned text as decisive, on the
principle that it is pure chance that determines which text will be signed.65
Miscellaneous provisions relating to procedure:66

(i) A member wishing to withdraw a bill introduced by him had to obtain
the unanimous consent of all members present in the House.
(ii) A bill which had lapsed could be revived at the next session if a resolu
tion to that effect was passed.
(iii) A bill which had been rejected (where the amendment that the bill be
read in six months’ time had been adopted) could not be introduced in
essentially the same form during the same session.
(iv) Money bills were subject to special procedures governed by standing
orders.
9 Conflict between the Houses

Before the adoption of the Senate Act 53 of 1955, conflicts between the Senate
and House of Assembly were governed by section 63 of the South Africa
Act, which provided for the holding of a joint sitting of the Houses in such
a case. A conflict was deemed to exist where the Senate had rejected a bill
passed by the Assembly,67 and the bill was again approved by the Assembly
during the next session, but once again rejected by the Senate. The possibili
ty did exist that a potential conflict could be resolved by negotiation. If the
Senate amended a bill, it was returned to the House of Assembly for recon
sideration by the committee of the whole House or a select committee. If
the Assembly was prepared to accept the amended version of the bill, or if
64 See Kilpin op cit at 15.

65 See VerLoren van Themaat Staatsreg 3 ed at 289 fns 87 and 88, and the authority
cited there.
66 See Van Wyk op cit at 230-232.
67 Whatever the form taken by the rejection, eg the adoption of a resolution that the
bill be read in six months’ time: see Kilpin op cit at 135.
TheLegislature 1910 to 1983 253
the Senate was prepared to give way, conflict was averted, but if neither House
was willing to concede, the conflict procedure had to be set in motion. The
Governor-General would then convene a joint sitting, and if the legislation
was approved in this sitting, it was deemed to have been duly passed by both
Houses.68 If the bill rejected by the Senate dealt with moneys or revenue for
the public service, the joint sitting could be held within the same session of
Parliament.
The 1955 Senate Act simplified the procedure for resolving a conflict be
tween the Houses. The new section 63 procedure was closely akin to that
introduced in Britain by the Parliament Act of 1949, which severely curtailed
the powers of the House of Lords.69 Any conflict between the Houses would
now be resolved, not by a conference between the Senate and the Assembly,
as before,70 but by introducing the same bill afresh at the next session of
Parliament. If the Senate rejected it again, the bill could be submitted direct
to the Governor-General or State President for his assent. A money bill could
be dealt with even more expeditiously: it could be presented for assent
immediately after its first rejection by the Senate.71
10 Elections72
(i) General
As is pointed out by Wiechers,73 the law governing elections falls largely within
the purview of administrative law rather than constitutional law proper. There
are, however, two aspects of electoral law which relate purely to constitu
tional law: the right to vote, which is a burning question in South Africa
today,74 and the form of representation enjoyed by the voting public.75
Furthermore, since the legislature plays such a central role in any constitu
tional system, it is of importance to deal with the way in which this body
is constituted.
The franchise qualifications in the four provinces varied somewhat, for
historical reasons. In the Transvaal and the Orange Free State the vote was
restricted to Whites, as it had been before Union. In the Cape Province every
one who met certain requirements could vote, irrespective of colour or race.76
68 The s 63 procedure was used only three times: in 1926,1927 and 1928 — see VerLoren
van Themaat Staatsreg 3 ed at 294.
69 See at 50-52 above.
70 See VerLoren van Themaat Staatsreg 3 ed at 287.
71 The Senate could not amend bills appropriating revenue for the public service or
imposing taxes, nor could it increase taxes or levies: s 60(2) and (3) of the Constitu
tion Act. Such bills had to be accepted or rejected as they stood. If rejected, they could
be immediately presented to the State President for his assent.
72 The law governing elections is discussed in detail by J A Faris ‘Elections’ LA W'SA
vol 8 at 283 et seq.
73 VerLoren van Themaat 3 ed at 299, and Administrative Law (1985) at 7-8.
75 See ch 4 (as regards the features of the Westminster system in general) and ch 8, which
deals specifically with representation.
76 Ordinance 9 of 1853 (Cape) provided that all adult male British subjects resident in
the Colony were entitled to the vote, subject to the requirement that they occupied
a dwelling to the value of £25 (later £75) or earned £50 pa.
Most non-Whites were excluded in practice, but not in principle. In Natal,

Indians and Blacks had enjoyed a qualified franchise until 1896,77 but after
that a special exemption issued by the Governor was required.78 Women did
not have the vote in any of the provinces. That was the position in 1910.
The first major change came about in 1930 when white women were enfran
chised.79
In 1936 the black voters in the Cape Colony were placed on a separate
voters’ roll.80 They were entitled to elect three white representatives in the
three electoral districts into which the Cape Province was divided. There were
a few black voters in Natal as well, but these were left on the common roll.81
Indirect representation of Cape Blacks was eventually abolished in terms of
Act 46 of 1959.
Provision was made for the indirect representation of Indians in the Trans
vaal and Natal in terms of the Asiatic Land Tenure and Indian Representa
tion Act 28 of 1946, but this law was repealed by Act 47 of 1948 before it
even came into operation.
The coloured franchise was the subject of the constitutional crisis of the
1950s. The Separate Representation of Voters Act 46 of 1951 purported to
remove the coloured voters in the Cape Province from the common voters’
roll and to place them on a separate roll in terms of which four White mem
bers would be elected to the House of Assembly. After a protracted struggle
in Parliament and the courts, the legislation was eventually declared valid
by Act 9 of 1956.82
No non-Whites enjoyed the vote in Transvaal and the Orange Free State.
(ii) Qualifications and registration

Initially the franchise was restricted to South African citizens over the age
of twenty-one, but the vote was extended to eighteen-year-olds in 1958.83 Per
sons convicted of high treason,84 murder, contraventions of the Suppression
of Communism Act85 and the Terrorism Act,86 offences for which a sentence
of imprisonment or referral to a labour colony were imposed without the
option of a fine87 or corrupt or unlawful activities in terms of the Electoral
77 Act 11 of 1865 (Natal).

79 In terms of the Women’s Enfranchisement Act 18 of 1930. This enactment gave rise
to an anomalous situation, as all adult white women were enfranchised, but adult white
men resident in the Cape Province were still subject to the requirements mentioned
in fn 1 above. The vote was extended to all adult white males in the Cape Province
in terms of Act 41 of 1931.
80 Ss 6 and 7 of Act 12 of 1936.
81 In terms of s 13 of Act 46 of 1951 (which was eventually declared valid in 1956) the
names of non-Whites in Natal would remain on the voters’ roll, but no new names
added.
83 By Act 30 of 1958.
84 After 10 June 1932, later 10 June 1950.
85 44 of 1950 (now the Internal Security Act 74 of 1982).
86 83 of 1967.
87 This disqualification lapsed once three years had passed after the expiry of the sentence.
Act,88 were declared unfit to be registered as voters for a certain period. Also
excluded were persons who had been declared mentally disturbed or defi
cient.89
The provisions governing the registration of voters were amended several
times between 1910 and 1961. The voters’ rolls were drawn up by the chief
electoral officer of the Union, and a returning officer was appointed for every
electoral division at election time. Since then provision has been made for
the general registration of voters every ten years, calculated from 1972, with
the necessary additions, amendments and removals being done by electoral
officials. Voters are under obligation to register as such, and registration
within a particular constituency is determined by the place of actual or per
manent residence of the person concerned.
The delimitation of electoral divisions and the conduct of elections will
be discussed in chapter 17.
88 Act 46 of 1946, which was replaced by Act 45 of 1979.

89 Ss 3 and 4 of Act 45 of 1979.
CHAPTER THIRTEEN
The Judiciary 1910 to 1983

I THE ROLE OF THE JUDICIARY IN CONSTITUTIONAL LAW
It is generally agreed that the independence of the judiciary is a feature of
the Westminster system of government.1 If this means merely that judges
must be impartial, that the administration of justice must take place in a
manner which inspires confidence and respect in the minds of the general
public, that judges must be appointed on merit and not on the grounds of
political expediency and that their tenure should not be dependent on the
vagaries of political change, then an independent judiciary must be a charac
teristic of all democratic states, whether governed in accordance with the prin
ciples of the Westminster system of government or not. The phrase therefore
requires closer analysis. Questions to be asked include the following: Who
appoints the judges and who can dismiss them? What is the relationship be
tween the judiciary and the executive? What is the function of the judiciary
when constitutional or political issues arise? This last-mentioned question,
in particular, has attracted a great deal of attention from South African aca
demics in recent times.
II THE ORGANIZATION OF THE JUDICIARY IN SOUTH AFRICA

The South Africa Act contained detailed provisions relating to the organiza
tion of the judiciary.2 Each of the provinces had possessed a Supreme Court,
and in each case an appeal lay to the Privy Council as final court of appeal
— not to the House of Lords, which was the highest court of appeal in Bri
tain itself. The Privy Council’s judicial powers had long since been abolished
within Britain3 but its function as final court of appeal for the colonies was
retained. Although an Appellate Division of the Supreme Court of South
Africa was instituted at the time of Union, the appeal to the Privy Council
was retained until 1950.4 The Privy Council applied the law of the country
where the appeal originated, not English law. Since the councillors were
schooled in English law, however, it was inevitable that their findings would
reflect this influence.
It is of interest that, until 1955, when the Central African Federation came
into being, the Appellate Division of the South African Supreme Court also
1 O Hood Phillips Constitutional and Administrative Law 6 ed (1978) at 30-31; SA de

Smith Constitutional and Administrative Law 4 ed (1981) at 364 et seq; see ch 4 above.
2 Ss 95-116.
3 In 1641, in fact: see ch 3, at 39 above.
4 It was finally abolished by Act 16 of 1950. In terms of s 106 of the South Africa Act,
the Privy Council could grant leave to appeal from a judgment of the Supreme Court
of South Africa: there was no automatic right of appeal. The provision also stipulat
ed that any legislation abolishing the appeal must be reserved for the King’s approval;
this course was followed when Act 16 of 1950 was adopted.
256
The Judiciary 1910 to 1983 257
heard appeals from the high court of Southern Rhodesia5 and that the in
dependence constitutions of Transkei,6 Bophuthatswana,7 Venda8 and Ciskei9
all initially made provision for a final appeal to the South African Appellate
Division as well. The position was therefore analogous to that governing ap
peals to the Privy Council, except that the appeals to the South African Ap
pellate Division could be abolished by the states concerned without any
reference to any South African authority, simply by amending the Constitu
tion.10
Most of the provisions governing the judiciary in the South Africa Act
were of a procedural rather than a constitutional nature, and these were re
enacted in the Supreme Court Act 59 of 1959.1 * The Constitution Act of 1961
contained only two provisions with regard to the administration of justice:
section 94, which provided that the judicial authority in the Republic vested
in a Supreme Court consisting of an Appellate Division (situated in Bloem
fontein) and Provincial and Local Divisions; and section 95, which provid
ed that all administrative powers, activities and duties relating to the
administration of justice would fall under the control of the Minister of
Justice.12
Ill THE APPOINTMENT, TENURE AND DISMISSAL OF JUDGES

Although the conditions governing the appointment, tenure and remunera
tion of judges were contained in the Supreme Court Act, the principles
governing these matters were established in the Act of Settlement of 1701,13
which is the corner-stone of the institution of the independence of the
judiciary.
Judges were appointed by the State President on the recommendation of
the Minister of Justice,14 but the practice of appointing them from the ranks
of practising senior advocates was very rarely departed from15 and political
appointments were few and far between. The remuneration paid to judges
was fixed by Parliament and their salaries could not be reduced while they
remained in office.16 Only a judge or former judge could be appointed to
the Appellate Division. Judges remained in office until they retired or
resigned, and could not be dismissed from office quamdiu se bene gesserint
(while they conducted themselves properly). They could be dismissed on the
5 A carry-over from the days when the old Supreme Court had this appeal jurisdiction.
6 S 54(l)(e) of the Republic of Transkei Constitution Act 1976.
7 S 91(e) of the Republic of Bophuthatswana Constitution Act 1977.
8 S 5!(!)(/) of the Republic of Venda Constitution Act 1979.
9 S 54 of the Republic of Ciskei Constitution Act 1981.
10 See the discussion of the constitutional emancipation of black states within South Africa
in ch 21.
11 These provisions will not be discussed in this work, since they are dealt with in works
on civil and criminal procedure.
12 This probably meant that the rule that powers and duties could be transferred from
one minister or department to another did not apply to the Minister or Department
of Justice. Also see ch 18 at 354.
13 See ch 3 at 42 above.
14 S 10 of Act 59 of 1959.
15 A notable exception was the appointment of Dr LC Steyn, who later became Chief
Justice.
16 S 10(l)(a) of Act 59 of 1959; also see the Remuneration of Judges Act 91 of 1978.
grounds of misconduct or unfitness, but only after an address by Parliament

to the State President. No judge has been dismissed in this way since Union.17
IV PROTECTION OF JUDICIAL INDEPENDENCE

No judge (or magistrate) may be held liable for an incorrect judgment, even
if negligence can be shown,18 as long as the judgment was given in good faith.
It is possible, however, that a judge who deliberately gives an incorrect judg
ment may be held liable on the ground of his ‘quasi-delict’.19
The judiciary’s prestige is further protected by the rules governing the
offence of contempt of court, one of the oldest offences recognized by com
mon law. Any act which denigrates the judiciary, brings it into disrepute,
or attacks the dignity or integrity of the bench will constitute contempt of
court.20 The rule that matters which are sub judice may not be discussed and
speculated about in the media, for example, is based on the same considera
tion as the rules governing contempt of court: namely that the administra
tion of justice should take place in a dignified and impartial manner, and
that nothing should be permitted which can encroach upon this dignity and
impartiality. 21 On the other hand, this does not mean that judgments cannot
ever be exposed to criticism: the only requirement is that the tone of the criti
cism must not be disrespectful, and should not be calculated to bring the
judiciary into disrepute. In the words of Lord Atken in Ambard v Attorney-
General for Trinidad and Tobago:22
Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny
and respectful, even though outspoken, comments of ordinary men.
V THE RELATIONSHIP BETWEEN THE JUDICIARY AND THE

LEGISLATURE
1 Parliamentary Legislation and the Courts
When Montesquieu formulated his famous trias politico doctrine it was the
independence of the judiciary and its separation from the legislature and the
17 Kotze CJ was, however, dismissed by President Kruger in 1897 following his judg
ment in Brown v Leyds NO (1897) 4 OR 17; see the discussion in ch 3 above at 42, ,
and also Joan Church ‘The Constitutional Crisis 1897’ Codicillus Oct 1977 at 10; C J R
Dugard Human Rights and the South African Legal Order (1978) at 21.
18 De Villiers v Minister of Justice 1916 TPD 403; Smith v Union Government 1933 AD
363; R v Miller 1946 TPD 306; Swarts v Minister of Justice 1941 AD 181; Penrice
v Dickinson 1945 AD 6.
19 See P Pauw ‘Die Begrip Quasi-delik’ 1979 THRHR 240 at 247 and May v Udwin 1981
1 SA 1 (A).
20 Snyman Criminal Law (1983) at 291 defines contempt of court as follows: “Contempt
of court consists in the unlawful and intentional violation of the dignity, repute or
authority of a judicial officer in his judicial capacity, or of a judicial body, or the
unlawful and intentional interference with the administration of justice in a matter
pending before a judicial body.”
21 Note, however, that commissions of enquiry are not judicial bodies and that the rules
governing contempt of court do not apply to them: see DH Van Wyk ‘Commissions’
in LA WSA vol 2 at 281; W Bray "n Paar Gedagtes rakende die Getuie voor ’n Kom-
missie van Ondersoek’ 1982 THRHR 390; Erasmus v SA Associated Newspapers Ltd
1979 3 SA 447 (W) at 456; S v Sparks 1980 3 SA 952 (T).
22 (1936) 1 All ER 704 at 709. See S v Van Niekerk 1970 3 SA 655 (T) and the discussion
of this case by J RL Milton ‘A Cloistered Virtue’ 1970 S/1LJ424; also B van Niekerk
‘The Uncloistering of the Virtue: Freedom of Speech and the Administration of Justice
— a Comparative Overview’ 1978 SALJ 362, 534.
executive he was primarily concerned with, rather than any rigid dichotomy
between legislature and executive.23 Thus it is not the judiciary’s function
to legislate (judicis est jus dicere non dare), and it is not the legislature’s func
tion to adjudicate.24
In the Westminster system of government the judiciary is constitutionally
weaker than the legislature, because of the overriding supremacy of Parlia
ment. In the words of Hood Phillips:25
The most important characteristic of British constitutional law is the legislative
supremacy (also called ‘sovereignty’) of the United Kingdom Parliament. Posi
tively this means that Parliament can legally pass any kind of law whatsoever:
negatively it means that there is no person or body whose legislative power com
petes with it or overrides it. We may call it the one fundamental law of the British
Constitution.
But although the principle that the courts have no power to challenge the
validity of acts duly passed by Parliament may be seen as a cardinal feature
of the Westminster system today, the division between court and Parliament
was not always so clear-cut. It must be remembered that the English Parlia
ment of the Middle Ages was not a purely legislative body:
Parliament, up to the time of the Tudors was hardly thought of primarily or prin
cipally as a legislature; it was still in reality the High Court of Parliament.26
Even after the House of Commons lost its judicial function, the House of
Lords retained this function, and remains the highest court of appeal in Bri
tain. The rule that the courts could not test the validity of Acts of Parlia
ment is one that developed gradually: the redoubtable Coke himself said on
a number of occasions that the court could overrule Parliament if the sta
tute in question was in conflict with natural law.27 These dicta were general
ly obiter, however, and did not, in the long run, change the course of history.
In fact, Coke himself acknowledged the inviolability of parliamentary legis
lation in his Institutes.28
The South Africa Act contained no provisions governing the position of
the courts vis-a-vis Parliament. Section 98(3) merely provided that the courts
would retain the powers they possessed prior to Union, that they would be
competent to determine the validity of provincial ordinances and to hear cases
to which the government was a party. The question whether the courts had
the power to test parliamentary legislation therefore had to be answered with
reference to common law. The possibility that the entrenched provisions29*
could give rise to problems of sovereignty was not considered.
It was only after the passing of the Statute of Westminster in 1931 that
the constitutional status and effect of the entrenched provisions came into
23 See ch 7 above.
24 See the discussion of the High Court of Parliament case (the so-called second Harris
. case) below at 263 et seq.
25 Op cit at 27. (Italics mine.)
26 CH McIlwain The High Court of Parliament and its Supremacy 2 ed (1934) at 109.
27 For example, in Bonham’s Case 1610 8 Co Rep 114 at 118: “When an Act of Parlia
ment is against common right and reason, or repugnant, or impossible to be performed,
the common law will control it, and adjudge such act to be void.”
28 4 Inst 36. Also see Blackstone Commentaries (1765) 160-162; Dicey Introduction to
Study of the Law of the Constitution 10 ed (1975) at 39-40. For a discussion of the
development of the principles governing parliamentary sovereignty, see ch 6.
29 Of which ss 35, 137 and 152 were the most important. See the more detailed discus
sion of this issue in ch 6 above.
prominence. In R v Ndobe,30 which was decided before this time, the court
had no difficulty in finding that a statutory amendment of section 35 which
had not been adopted in accordance with the prescribed procedure was in
valid. The first case to arise after the adoption of the Statute of Westminster
was that of Ndlwana v Hofmeyr,3' and even here no real difficulty arose,
since the amendment had been adopted in accordance with the prescribed
procedure. Ironically, the plaintiff’s argument was that the enactment was
invalid because the special procedure, and not the ordinary parliamentary
procedure, had been followed. The court held that Ndobe’s case was no longer
relevant, since it had been decided before the Statute of Westminster, and
that the legal position in South Africa had been brought into line with that
in England. To quote Stratford CJ’s famous dictum:
Parliament, composed of its three constituent elements, can adopt any procedure
it thinks fit; the procedure express or implied in the South Africa Act is, so far
as Courts of Law are concerned, at the mercy of Parliament like everything else.32
The judgment raised very little dust, although one writer, LI Coertze,33 held
the view that the Union Parliament was still bound by the entrenched provi
sions. English writers AB Keith34 and KC Wheare35 were of the opinion that
the entrenchments were no longer binding and South African authority H J
May36 went so far as to say that the two-thirds majority rule was “legally
as dead as the proverbial dodo”.
It was only when the government tried to introduce the Separate Represen
tation of Voters Act in 1951 that the question of the courts’ power to test
parliamentary legislation received serious consideration for the first time.
Both the Speaker and the President of the Senate decided that the legislation
could be adopted by an ordinary majority in separate sittings and this was
done. When the validity of the legislation was challenged in the Cape Provin
cial Division of the Supreme Court, the court was obliged to follow the judg
ment in Ndlwana v Hofmeyr and to reject the application. The matter was
taken on appeal and the Appellate Division reversed the finding of the Cape
court in the so-called first Harris case (Harris v Minister of the Interior31).
The court (per Centlivres CJ) held that it was competent to depart from a
previous appellate judgment if the previous judgment was incorrect or if that
judgment did not relate directly to the point in issue in the later case. Cent
livres CJ took the view that the effect of the Statute of Westminster was not
directly in issue in the Ndlwana case, but that if the court in that case had
implied that Parliament was master of its own procedure and therefore sub
ject to no procedural restrictions, the judgment was incorrect in that respect.
Although the court in the first Harris case in effect recognized the court’s
testing power, it did not at any stage state this explicitly. The role and con
stitutional position of the South African judiciary vis-a-vis the legislature
was therefore not clarified in the first Harris case. As is pointed out by Ver-
30 1930 AD 484.
31 1937 AD 229.
32 At 238
‘Die Wetgewende Orgaan van die Unie van Suid-Afrika’ 1941 THRHR 47
33 The Dominions as Sovereign States (1938) at 177.
34 The Statute of Westminster and Dominion Status 4 ed (1949) at 240.
36
37 1952 2 SA 428 (A).
Loren van Themaat38 the court did not indicate whether Act 46 of 1951 was
invalid because Parliament had exceeded its legislative powers (acted ultra
vires) or whether Act 46 of 1951 simply never became law. The court did
not state expressly that it had a testing power; nor did it examine the extent
of the testing power, but simply assumed that it was competent to declare
Act 46 of 1951 invalid.
The legal position of the judiciary came more pertinently to the fore in
the second Harris case,39 or High Court of Parliament case. After the Ap
pellate Division had declared Act 46 of 1951 invalid, government’s next step
was to create a High Court of Parliament.40 Although the concept of a High
Court of Parliament derived its inspiration from English law,41 the South
African version did not correspond in all respects to the historical English
model; for one thing, the monarch (Governor-General) did not form part
of it. Today the British Parliament performs judicial functions in the fol
lowing respects only:42
(i) the House of Lords is the supreme court of appeal in both civil and crimi
nal matters;
(ii) the Lords and the Commons perform judicial functions within the sphere
of their privileges;43
(iii) the Lords and the Commons exercise jurisdiction in committees dealing
with private bills;
(iv) the Lords exercise judicial powers with regard to claims to ancient
peerages.
Among the judicial functions of the British Parliament which may now
be said to be obsolete are impeachment44 and acts of attainder.45
38 Staatsreg 2 ed at 314.
39 Minister of the Interior v Harris 1952 4 SA 769 (A).
40 In terms of Act 35 of'1952.
41 As De Smith op cit at 19 points out: “In its early days Parliament was a judicial as
well as a law-making body.” The various functions of government were not neatly
demarcated at this stage. Also see Hood Phillips op cit at 123: “In origin Parliament
was not primarily a law-making body, nor are its functions exclusively legislative at
the present day.”
42 See Hood Phillips op cit at 124.
43 The South African Parliament has always possessed similar powers: see ch 17 at 353-355.
44 Impeachment was a judicial proceeding against any person, whether lord or commoner,
accused of state offences beyond the reach of the law, or which no other authority
in the state would prosecute. The Commons were the accusers and the Lords were
judges both of fact and law. It is of importance to note that the King himself was
never subject to impeachment, but only his ministers. The last impeachment was that
of Lord Melville in 1805. Control over ministers is now exercised by Parliament or,
where criminal offences are concerned, by the courts. Because the process of impeach
ment is used against, for example, the President of the United States of America, the
term has been popularly used in the South African context as well. Strictly speaking,
however, the process for removal of a South African State President — under the 1961
Constitution, at any rate — would not have been an impeachment, since he followed
in the footsteps of the British monarch.
45 Acts of attainder were in fact Acts of Parliament finding a person guilty of some (usually
political) offence. Although the ‘accused’ could defend himself by means of counsel
and witnesses before both Houses, and although a penalty could be imposed, acts of
attainder were essentially of a legislative rather than a judicial nature (see Hood Phil
lips op cit at 125). Acts of attainder served much the same purpose as impeachment,
and were last used in the early eighteenth century.
- ?
The House of Lords has been the final court of appeal in England since
1485. Before that ultimate jurisdiction in the administration of justice vest
ed in “the King in his Council in Parliament”.46 Since 1844 only the legally
qualified peers (Law Lords) have participated in the judicial proceedings of
the House as final court of appeal.47 The legal position of the House was
clarified by the Appellate Jurisdiction Act of 1876.
It is clear that the South African Parliament never possessed judicial powers
in the ordinary sense.48 Since only the upper House had acted as a court of
law in England for many years, the only conceivable parallel would have
had to be sought in a Senate exercising judicial powers — no such move was
ever mooted in this country. The only sense in which the South African Parlia
ment may be said to be a ‘High Court of Parliament’ is that Parliament is
supreme and may therefore override an Appellate Division decision by me
■
■
levcuiv.
ans of legislation.
The High Court of Parliament created by Act 35 of 1952 was to have con
t.1KC
sisted of all members of the Senate and House of Assembly; it could review
-1 ..I „.warlike
decisions of the Appellate Division regarding the validity, legal force or ex
istence of an Act of Parliament only; only a minister could approach the
court for review of a decision of the Appellate Division; the application was
first referred to a judicial committee of ten members, and the ‘court’ hand
ed down its judgment after consideration of the report and recommenda
tions of the committee.
The first Harris case was overruled by the High Court of Parliament, in
a judgment based on the recommendations of the judicial committee, on the
grounds that the South Africa Act was not a fundamental law or grundnorm
in the Continental sense, and that, like the British Parliament, the Union
Parliament enjoyed legislative supremacy: this meant that no court could
invalidate its enactments and that its sovereignty could not be limited by sta
tute. The High Court also found that article 2(2) of the Statute of
Westminster49 was irreconcilable with the restriction imposed by section 152
and must therefore be taken to have amended it. In consequence the Union
Parliament could be constituted in only one way: King, House of Assembly
and Senate, in separate sittings.
The validity of Act 35 of 1952 was successfully challenged, first in the Cape
Supreme Court and thereafter in the Appellate Division, in the so-called se-
46 Hood Phillips op cit at 168.

47 Not all the Lords possessed the necessary qualifications forjudges, but lay peers took
part in the judicial proceedings of the House until 1844. In that year the convention
that lay peers do not participate when the Lords sit as a court of appeal, was recog
nized in the case of McConnell v The Queen.
48 Contra JP VerLoren van Themaat Staatsreg 1 ed (1956) at 457-464. The writer ex
amines a vast number of sources and concludes that there is no reason why the Union
Parliament could not have qualified as a High Court of Parliament in the British sense.
He relies heavily on the South African case of Tole v Director of Prisons 1914 TPD
20 in which Wessels J referred to Parliament as “the highest court of the land” (at
22) and Bristowe J to the “High Court of Parliament” (at 26), and rejects the argu
ments put forward by B Beinart ‘Parliament and the Courts’ 1954 SA Law Review
149 and D JH le Roux ‘Die Regskrag van Parlementere Prosedure’ 1954 THRHR 293.
49 See the discussion at 146 above.
cond Harris case. In this judgment the Appellate Division examined the po
sition and character of the judiciary more pertinently than in the first Harris
case. The court based its findings on the following two main considerations:
first, that the entrenched sections of the South Africa Act contained certain
constitutional guarantees and that these guarantees would be worthless un
less the courts enforced them;50 and second, that the High Court of Parlia
ment was not a court at all, but Parliament in a different guise. All the judges
handed down individual judgments, but each emphasized the importance of
determining the character of a court of law: Centlivres JA conceded that,
in form, the High Court of Parliament possessed some of the characteristics
of a judicial body but found that it fell short of the substantial requirements.
Only a minister could approach the High Court (which meant that any deci
sion which favoured the government rather than the subject would never be
brought before the High Court of Parliament); no provision was made for
oral argument; the court consisted of Members of Parliament, not legally
qualified persons; the court delegated to a ‘judicial committee’ the task of
ascertaining the law and then gave its judgment in the form of a resolution;
the court’s procedure was parliamentary rather than judicial; the persons
acting as judges would be adjudicating upon the validity of their own legis
lation, in conflict with the rule that no-one may be a judge in his own cause
(nemo judex in sua causa); the effect of the resolution/decision of the court
would be the same as legislation amending section 152, while the decision
of a court of law would not have that effect.51 He concluded:
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 function
ing under another name.52
Greenberg J A raised the issue that the “high standard of impartiality neces
sary for a judicial determination of questions both of fact and of law”53 is
a corner-stone of the South African judicial system and stressed the fact that
the High Court of Parliament consisted of ‘judges’ who were unqualified
to act as such.54 Schreiner JA conceded that the distinction between courts
of law and other tribunals is not always easy to define; but found, neverthe
less, that the High Court of Parliament was not a court of law but simply
“Parliament wearing some of the trappings of a Court”.55 In consequence,
50 Per Centlivres JA at 779E-G: “It is clear from ss 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 section 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 which offends against these sections . . . these sections contain constitutional
guarantees creating rights in individuals, the duty of the Courts . . being to ensure
that the protection of the guarantees is made effective, unless and until it is modified
by legislation in such a form as under the Constitution can validly effect such modifi
cation.” And per Schreiner JA at 787F: “To protect the entrenched sections by the
sanction of invalidity the highest tribunal must be a Court of Law or, in other words,
a Court exercising judicial power. The Constitution makes no express provision for
the determination of questions of validity or invalidity and must therefore be taken
to have left such determination to the Courts of Law of the land.”
51 At 783D-784C.
52 At 784D.
53 At 786B.
54 At 786D-E.
55 At 787G.
Act 35 of 1952 constituted an encroachment upon the powers of the judiciary,

which is fully separate from the legislature. The judgment of Van den Heever
JA, while concurring in the main finding of the other judges, raised a num
ber of further issues in regard to the character of a court of law. In a much-
quoted dictum, he expressed his views as follows:
As ordinarily constituted Parliament has unlimited power to reorganise the
judiciary. It can create a Court or Courts superior to the Appellate Division and
confer upon them such jurisdiction as it thinks fit. . . it is clear that the authors
of our constitution had in mind the doctrine of the trias politica and the existence
of some judicial power to enforce the constitutional guarantees. But I do not think
the further inference is justified that they had in contemplation that the judicial
power had for ever to be exercised by Courts constituted in a manner which satis
fied certain criteria to the end that the independence, competence and justness
of these tribunals be manifest and secured. ... In this respect the legislature has
absolute freedom of action and it is not for the existing Courts to criticise the
wisdom or equity of a measure passed in the exercise of that power by a compari
son of the Courts established with courts answering to some preconceived
standard.5657
58
Van den Heever JA clearly had a less stringent standard, in certain respects,
than his colleagues, as regards what constitutes a court of law in the strict
sense, but he nevertheless concluded, unequivocally:
All this, however, is subject to one limitation which follows by necessary implica
tion and has no relation to the character or competence of the new creation: it
must be a Court.5'1 Since it was conceived as being the arbiter between Parliament
as ordinarily constituted or even in joint session and subjects who complain that
they have unconstitutionally been deprived of their rights, it must necessarily be
a body other than Parliament and capable of passing judgment on that issue.5*
Hoexter JA held explicitly that section 152 had conferred a testing right on
the courts in respect of the entrenched sections. Unlike the other judges, he
was prepared to assume, for the first part of his judgment at any rate, that
the High Court of Parliament was a court of law in substance as well as
form.59 On examining the consequences of such an assumption, however,
he came to the conclusion that every decision of the High Court declaring
a statute valid was “no more and no less than a legislative declaration by
Parliament, sitting unicamerally, that a statute which has been declared in
valid by the Appellate Division is in law valid”.60 He pointed out that “(t]o
accept the proposition that the High Court is a Court of Law because the
Act says so would be to assume the validity of the Act and therefore to beg
the very question in issue”,61 and concluded, like his colleagues, that in sub
stance the High Court was Parliament sitting unicamerally to pronounce upon
the validity of a statute by a legislative act.
The second Harris case was therefore the definitive case on the legal posi
tion of the South African judiciary. It laid stress on the doctrine of separa
tion of powers, particularly between legislature and judiciary, and on the
56 At 791A-792D.
57 Italics mine.
58 At 792E-F.
59 At 794C.
60 At 796D.
61 At 796E.
concept of constitutionally protected rights which would be rendered nuga

tory without judicial protection.62 As Wiechers63 points out, however, the
tests employed by the court to distinguish the act of a judicial body from
that of any other authority do not go to the heart of the matter but are con
fined largely to external criteria. It must be conceded that the principles laid
down in the second Harris case do not serve to distinguish satisfactorily be
tween judicial and administrative or executive authorities, but, as Wiechers
indicates,64 the judgment of Van den Heever JA contains the key to the dis
tinction between a legislative and a judicial body: the latter “must necessari
ly be a body other than Parliament and capable of passing judgment” on
the issue between Parliament and the individual.
Having suffered a second heavy defeat in its campaign to remove the
Coloureds from the common roll, the government decided to try an altogether
new tack. Since it was obvious that the two-thirds majority rule could not
be circumvented, a means had to be devised to obtain a two-thirds majority
in Parliament. The Senate Act6566 was not entrenched in any way; it was there
fore possible for Parliament to change its constitution by means of an ordi
nary majority in a bicameral sitting. The new Senate,AcL53 of 1955 made-
provision for an enlarged Senate/6 Act 9 of 1956,whichdeclared the Separate
-Representation of Voters Act 46 of 195 Walid, was passed by a two-thirds
majority in a bicameral sitting of the House of Assembly and the reconstituted
Senate. The next step was an application brought by a coloured voter for
an order declaring Act 53 of 1955 and Act 9 of 1956 invalid, qn_the grounds
that these laws deprived the coloured voters of the constitutional guarantges
embodieddn sections 35 and 152 of the South Africa Act — Collins v Minister
of the InteridFl95TT SA 552 (A).
In terms of Act 27 of 1955, the hearing of any constitutional issue had
to take place before eleven appeal judges. The Collins case was tried before
Centlivres CJ, Schreiner, Hoexter, Fagan, Steyn, De Beer, Reynolds, De Vil
liers, Brink, Beyers JJA and Hall AJA. The court held, by a majority of
ten to one, that Parliament, sitting bicamerally, had the power to reconsti
tute the Senate; that the motive impelling the reconstitutionofjtheSenate
was irrelevant; that every step taken in the validation of Act 46 of 1951 had
been taken in accordance with sections 35 and 152 of the South Africa Act;
and therefore that Act 55 of 1955 and Act 9of_1956had been validly passed.
It rejected the contention that the enlarged Senate was; not aSenate for the
purposes of section l52, and refused to infer that section 152 justified the
62 To some extent the inference drawn by the court that a testing right must be deemed
to have been conferred on it by implication is reminiscent of the approach followed
by the American supreme court in the famous case of Marbury v Madison 1803 1 Cranch
137 (US), in which the US court’s right to test legislation was recognized for the first
time, also by way of inference.
63 Administrative Law (1985) at 101.
64 Ibid.
65 54 of 1926.
66 See above at 242. For a detailed discussion see VerLoren van Themaat Staatsreg 1
ed (1950) at 269-272 and 471-472.
266 Introduction to South African Constitutional Law _
implication that a Senate specially constituted in order to obtain a two-thirds

majority was not a Senate for the purposes of the Constitution.67
As regards the question of motive, Centlivres CJ acknowledged:
There can be no doubt that the object of passing the Senate Act was to provide
the Government with a two-thirds majority at a joint sitting of the two Houses
in order to pass at that joint sitting an Act to validate Act 46 of 1951.68
He conceded, however:
[I]f a Legislature has plenary power to legislate on a particular matter no ques
tion can arise as to the validity of any legislation on that matter and such legis
lation is valid whatever the real purpose of that legislation is.69
The only proviso to this would be that amendments to the Senate Act that
directly affected the entrenched sections would be invalid unless adopted in
accordance with the provisions of these sections.70
The sole dissenting judgment was handed down by Schreiner JA. As regards
theargument that a reconstitution of the Senate had no effect perse on mat
ters governed by the entrenchedsecfionsfUe said:
_There are only two separate fields ifjhey are really kept separate, not if they
are only separate as a matter of form. Once legislation in the one field is used
as a stage preparatory to legislation in the other,There ceases to be realśepara-
tion and in substance they become one field71 '
His, argument turned to a major extent on the premiss that the entrenched
^sections constituted a ‘federal’ characteristic in our Constitution; that, in
consequence, there was a division of poweFbetweehParliament as ordinari-
ly constituted and Parliament acting injhe sphere of the entrenched sections,
ancLihat there should be no encroachment by one sphere upon the other.72
An ingenious approach, but not one which is supported by the South Afri-
_can legal tradition. In brief, Schreiner JATlisagreedwifh his colleagues on
the question whether the gd hoc^Senate could be regarded as a House of
Parliament within the meaning of the South A'frica"Acf, and also as regards
-thejLrxeIevance_oL the, purpose of or motive behind legislation.
Thus ended the constitutional crisis surrounding the coloured vote. Its po
litical repercussions are, however, with us to this day.73
The position of the judiciary vis-a-vis the legislature after 1961

The two remaining entrenched sections were re-enacted in Act 32 of 1961
(the Republic of South Africa Constitution Act) as sections 108 and 118.74
67 See the dictum of Steyn JA at 58F: “Had the Constitution provided for the establish
ment of different Assemblies or Senates for different purposes, the position might
have been different.”
68 At 564F-G.
69 At 565C-D.
70 Per Centlivres CJ at 566D: “For instance Parliament sitting bicamerally cannot in
reconstituting the Senate provide that membership shall be confined to persons who
can speak or write English or to persons who can speak or write Afrikaans. Such a
provision would, pro tanto, be an alteration to section 137.”
71 At 575C.
72 At 579F-G.
73 Cf the following discussions of the Collins case: JP VerLoren van Themaat 1957
THRHR 225; GA Mulligan ‘The Senate Act Case’ SAL J 7; H WR Wade ‘The Senate
Act Case and the Entrenched Sections of the South Africa Act’ 1957 SALJ 160.
The principles laid down in the two Harris cases were accorded statutory
recognition in section 59 of the 1961 Constitution. Section 59(1) provided
that the Republican Parliament was “the sovereign legislative authority in
the Republic” and section 59(2) that the courts would possess a testing right,
but only in respect of legislation purporting to amend or repeal sections 108
and 118.
The question which arose here is whether section 59(2) was merely a declara
tory provision restating the common-law position; whether, in fact, the Harris
cases stated the common-law position or created new law; and whether sec
tion 59(2) itself created new law.
The rule that Acts of Parliament are immune to judicial interference was
not always accepted without question in English law. In Bonham’s Case15
Lord Coke declared (admittedly obiter) that the courts would declare Acts
of Parliament invalid if they conflicted with natural law. Coke himself con
tradicted this subsequently,7576 but cases in which the idea that laws conflict
ing with natural justice or common law could be invalidated by the courts
were still encountered in the eighteenth century. Although the rule that
parliamentary enactments could not be tested by the courts and that Parlia
ment was free to arrange its own procedure without judicial interference,
gained general recognition,77 the validity of a resolution of one House of
Parliament was not immune to judicial scrutiny.78 In time a rule developed,
known as the ‘enrolled bill’ rule, in terms of which the court cannot enquire
into the way in which a bill was introduced into Parliament, what preceded
its introduction and what happened in Parliament during the various legis
lative stages, once the bill had passed both Houses, received the royal assent
and been placed on the Parliament Roll.79 This rule is, however, no longer
regarded as final; while the courts will not impinge upon the sphere of
parliamentary procedure and usage,80 they certainly will declare invalid any
enactment which is clearly, in appearance, not an Act of Parliament.81
The decision in the second Harris case did not simply confirm the common
law rule that the courts may test the validity of an enactment which is not,
technically, an Act of Parliament. The judgment in the first case kept more
closely to the question whether parliament had ‘spoken’ — and thus whether
75 1610 8 Co Rep 114 at 118.

76 4 Inst 36. Also see the Case of Shipmoney 1637 3 St Tr 825 1235.
77 Lee v Bude and Torrington Railway Co 1871 LR 6 CP 576 582; Godden v Hales (1686)
11 StTr 1197; Richards v McBride 1881 QBD 119; Halpin v AG for Irish Free State
1936 IR; Labrador v The Queen 1893 AC 104.
78 Stockdale v Hansard 1839 8 LJ 294 (QB); Bowles v Bank of England 1973 1 Ch 57.
79 Edinburgh and Dalkeith Railway Co v Wanchope 1842 8 Cl & F 710 725, and the
more recent case of British Railways Board v Pickin 1974 AC 765.
80 See Article 9 of the Bill of Rights of 1689, which provided that “proceedings in Parlia
ment ought not to be impeached or questioned in any court or place out of Parliament”.
81 See De Smith op cit at 93-97 for an exposition of the origin of the rule and examples
of cases where it would not be invoked; and ECS Wade and Godfrey Phillips Con
stitutional and Administrative Law 9 ed (1977) 60, for a resume of parliamentary meas
ures and the kinds of ‘legislation’ which will be subject to judicial scrutiny in Britain.
It is of some interest that this kind of analysis in Britain was sparked off by the Harris
cases and the literature emanating from them (such as DV Cowen’s writings on the
question: has Parliament spoken?) as well as the British case of Bribery Commission
er v Ranasinghe 1965 AC 172 194.
the legislation in question was technically a nullity. This issue was not set
tled with any clarity; and in the second case the major issue was the court s
competence to enforce constitutional guarantees. Since the matter of statu
tory constitutional guarantees had never arisen in Britain, the common law
could not provide a firm guide in this respect. The express recognition of
the testing right in respect of entrenched constitutional provisions must there
fore be seen as a departure from, or at the very least an extension of, the
common law.
A question which was not answered by either of the Harris cases, however,
was whether the court’s power to test legislation in respect of ‘manner and
form’ extended only to entrenched manner-and-form provisions. (As early
as 1912, the Appellate Division had, in R v McClery,82 recognized the possi
bility of a general testing power — but it must be remembered that this dic
tum related to subordinate legislation and therefore did not carry a great
deal of weight where parliamentary legislation was concerned.)
Section 59(2) therefore did not simply restate the common-law position,
since the common law made no provision for entrenched provisions. Fur
thermore, while the question whether all manner-and-form provisions are
subject to judicial scrutiny was not settled in the Harris cases, the section
explicitly stated that the courts would have a testing power only in respect
of the entrenched sections (108 and 118). The most important unentrenched
manner-and-form provision in the 1961 Constitution was section 114, which
read as follows:
Parliament shall not -
(a) alter the boundaries of any province . . . except on the petition of the
provincial council whose boundaries are affected thereby;
(b) abolish any provincial council or abridge the powers conferred on provin
cial councils . . . except by petition to Parliament by the provincial coun
cil concerned.
Despite this provision, Parliament on numerous occasions abridged the pow
ers of Provincial Councils, even before 1961.83 At no stage was the validity
of the parliamentary enactment in question challenged in the courts. On the
other hand, the validity of legislation altering provincial boundaries without
the required petition (on each occasion when former black territories or na
tional states attained constitutional independence) was raised in the courts.84
The general approach was that section 59(2) provided the final answer: no
entrenchment, no testing power. The matter did, however, give rise to a good
82 1912 AD 199 at 215: “Our Courts have every right to enquire whether any statute
has transgressed the limits of the subjects in regard to which the Legislature is empow
ered to legislate, but they have no right to enquire whether, in dealing with subjects
within its competence, the Legislature has acted wisely or unwisely for the benefit of
the public or for the benefit of private individuals.”
83 See G Carpenter ‘Provincial Government’ LA WSA Vol 21 at 276.
84 Nasopie (Edms) Bpk v Minister van Justisie (2) 1979 4 SA 438 (NC); Cowburn v Nasopie
(Edms) Bpk 1980 2 SA 547 (NC); Mpangele v Botha (7) 1982 3 SA 633 (C); Mpaneele
v Botha (2) 1982 3 SA 638 (C). Also see S v Tuhadeteni 1969 1 SA 153 (A), which
dealt with the legal position in South West Afnca/Namibia.
and in Cowburn v Nasopie

deal of debate, particularly in academic circles,8586
(Edms) Bpkt6 Van den Heever J expressed serious reservations about the cor
rectness of the view that Parliament was not bound by the provisions of sec
tion 114. This was an obiter dictum, however, and in Mpangele v Botha (2)87
the court considered these reservations and concluded unequivocally that sec
tion 114 did not bind Parliament and that, since Parliament was free to amend
or repeal the section expressly, it could amend or repeal it by implication
as well.88
The role of the judiciary and its relationship vis-a-vis the legislature has
been spelt out in somewhat greater detail in the 1983 Constitution and will
be discussed in chapter 18.
2 The Judiciary and the Executive

The position of the judiciary vis-a-vis the executive is a topic which is governed
to a major extent by administrative law rather than constitutional law
proper.89 The two most important aspects of judicial control over the execu
tive relate to the courts’ role in ensuring the legality of administrative action
and the rules governing the liability of the state for wrongful acts performed
by servants of the state. There are occasions, however, when the spheres of
constitutional and administrative law overlap and these must be discussed
in brief.
85 See C W H Schmidt ‘Section 114 of the Constitution and the Sovereignty of Parliament’
1962 SAL J 315, who discussed the so-called paradox of omnicompetence (see ch 6
above) and conceded that section 114 did not fall within the category of manner-and-
form provisions which were binding on Parliament; B Beinart ‘Parliament and the
Courts’ 1954 SA Law Review 134, who took the contrary view; and J D Van der Vyver
‘The Section 114 Controversy and Governmental Anarchy’ 1980 SAL J 363 who dealt
with the views of other writers and came to the same conclusion as Beinart, namely
that if the law prescribes a procedure to be followed, only an enactment which has
been passed in accordance with this procedure can produce an ‘Act of Parliament’
— in other words, the crucial phrase is ‘duly passed’. It may thus be argued that the
court’s jurisdiction was not excluded by section 59(2) where an enactment was not
‘duly passed’ in accordance with the prescribed procedure, even if no entrenched pro
vision was involved.
86 Supra at 554. Van den Heever J suggested (albeit in an obiter dictum) that, while s 114
remained unamended, the courts would be at liberty to hold that legislation passed
in conflict with s 114 was invalid and, furthermore, that if Parliament were to abolish
all future elections and to elevate the office of State President to a hereditary post,
held for life, vested with unlimited legislative, executive and judicial powers, the court
would be able to declare such an ‘act’ invalid.
87 Supra.
88 This is in keeping with Schmidt’s view that since no prior petition was required for
the abolition of s 114, it could likewise be repealed by implication without a prior
petition, but not with that of Van der Vyver, who contends that the rule lex posterior
derogat priori applies only if the latter enactment qualifies as an Act of Parliament,
ie if Parliament has ‘spoken’; in his view Parliament has not spoken if the prescribed
procedure has not been followed.
89 See Marinus Wiechers Administrative Law (1985), ch 6 in particular; LA Rose-Innes
Judicial Review of Administrative Tribunals in South Africa (1963); J P VerLoren van
Themaat Staatsreg 3 ed (1981) at 340-342.
In principle, the courts are competent to examine the validity of any act
of the executive, whether the act is performed by virtue of statute or by vir
tue of a common-law power such as a prerogative. In this regard the locus
classicus in English law is the Case of Proclamations30 in which the court
emphatically asserted that it was competent to determine the limits of the
91 The leading case in South African constitutional law is Sachs
prerogative. 90
v Dónges,92 in which it was held that the granting of a passport is an act
which is performed by the executive by virtue of prerogative, not statute,
and that the revocation of a passport is not an act of state which cannot
be questioned by a court of law.93 Executive action taken during a time of
martial law or statutory emergency is likewise subject to judicial control in
principle, although our courts tend to be reluctant to interfere with the ac
tions of the executive or the military in this regard.94 There is one sphere
of executive activity, however, which is not subject to judicial control. This
concerns the so-called ‘acts of state’, which are encountered mainly in the
sphere of foreign relations.95
The position of the judiciary is of paramount importance under the 1983
Constitution. This will be discussed in chapter 19.
90 (1611) 12 Co Rep 74.

91 See De Smith op cit at 35; at 79, where he states that the Case of Proclamations may
be regarded as the most important case in English constitutional law; at 135; and at 333.
92 1950 2 SA 265 (A).
93 At 290.
94 See RS Welsh ‘Martial Law’ 1941 SALJ111; AM Conradie ‘Krygswet’ 1941 THRHR
183; R v Bekker 1900 SC 340; Marais v General Officer Commanding (Ex parte DF
Marais) 1902 AC 109; Krohn v The Minister for Defence 1915 AD 191; TolevDirec-
tor of Prisons 1914 TPD 20; Dedlow v Minister of Defence and Provost Marshal 1915
TPD 543; Halder v Minister of Defence and Provost Marshal of Pretoria 1915 TPD
622; Triimpelmann v Ministerfor Justice and Minister for Defence 1940 TPD 242; Liver-
sidge v Anderson [1942] AC 206; Stanton v Minister of Justice 1960 3 SA 353 (T); Brink
v Commissioner of Police 1960 3 SA 65 (T); F Venter 'Salus Reipublicae Suprema
Lex’ 1977 THRHR 233. This issue is dealt with in detail in ch 5 above.
95 See the discussion of acts of state in chs 9 and 16.
Part C
South African
Constitutional Law Today
CHAPTER FOURTEEN
General Features of the

Republic of South Africa
I INTRODUCTION - THE HISTORICAL BACKGROUND

It is often said that while South African law in general may be colour-blind,
South African constitutional law is not. Even before Union, and certainly
since, the part played by non-Whites in the constitutional development of
South Africa has been negligible. No-one other than a White has ever quali
fied to stand for Parliament, and the non-White franchise has always been
extremely limited and in fact even such non-White participation in the cen
tral government as there was, has been steadily whittled down to virtually
nothing.1
Prior to 1977, when the first moves towards a new dispensation were moot
ed, the position was that only Whites were represented in the central Parlia
ment. Blacks were accommodated in the pre-independent self-governing
National States or in the newly independent states (at that stage, only Trans-
kei, which became independent in 1976).2 Coloureds were represented in the
Coloured Persons Representative Council which was created by statute in
19633 but which came into operation only in 1969, after the indirect represen
tation of Coloureds in the central Parliament had been abolished in terms
of Act 50 of 1968. The Council was not a success, even though two-thirds
of its members were elected and the remainder nominated, and even though
it possessed real, albeit limited, legislative powers. The reasons for the Coun
cil’s failure may be summed up as follows: it was totally subordinate to the
white Parliament; all legislation was subject to the approval of the Minister
for Coloured Affairs; there was confusion about the sphere of application
of its legislation and the legal position of such legislation vis-a-vis subor
dinate legislation such as provincial ordinances or State President’s procla
mations; there was no territorial basis within which the Council operated;
and, finally, the Council was simply, as far as the Coloureds were concerned,
no substitute for the real thing. The Coloured Persons Representative Council
was disbanded in 1980.4
1 See the discussion in ch 3 above; also H Booysen and DH van Wyk Die ’83 Grondwet
(1984) at 5-6 sv ‘Die Verblankingsproses’.
2 The process of constitutional devolution of power as it has affected Blacks will be
dealt with in ch 21.
3 The Coloured Persons Representative Council Act 49 of 1963.
4 For a detailed discussion of the historical development of the constitutional rights of
Coloureds in South Africa, see VerLoren van Themaat Staatsreg 3 ed (1981) at 425-433;
273
If anything, the constitutional position of the Indian population of South

Africa was even more vague and unsatisfactory than that of the Coloureds.
Unlike the Coloureds, they never possessed even indirect representation in
the central Parliament. There were a few Indians in Natal who had been en
franchised prior to 1910, but after that none qualified for the vote.5 Although
an Act was passed in 1946 which created the possibility of indirect Indian
representation in Parliament, nothing came of this.6 The South African In
dian Council was created in terms of Act 31 of 1968. Unlike the Coloured
Persons Representative Council, this body did not possess even limited legis
lative powers, and was essentially only an advisory body, in spite of the fact
that it was largely elected and bore several characteristic features of represen
tative legislative bodies.7 Like the Coloured Council, it was not a success,
and it was abolished in 1983.8
In brief, then, while the separate constitutional institutions for Blacks may
be said to have functioned reasonably successfully from a constitutional point
of view,9 the institutions created for Coloureds and Indians did not. It there
fore became clear that another scheme would have to be devised.
II THE DEVELOPMENTS LEADING TO THE ADOPTION OF THE 1983

CONSTITUTION
It cannot be said with certainty just where the ideas underlying the new Con
stitution originated.10 The first concrete move, however, was the appoint
ment of a Cabinet committee under the chairmanship of PW Botha (then
Minister of Defence) to investigate the possibility of adapting the South Afri
can constitutional system to make provision for the accommodation of popu
lation groups other than the white group.
Booysen and Van Wyk op cit at 5-10; and, in particular, the Report of the Commis
sion of Inquiry into matters affecting the Coloured Population Group (the so-called
Theron Report) RP 38/1976; LJ Boulle ‘The Second Republic: its Constitutional Line
age’ 1980 CILSA 1; DH van Wyk Persoonlike Status in die Suid-Afrikaanse Pub-
liekreg unpublished doctoral thesis UNISA (1979); and ’n Administratiefregtelike
Ondersoek na die Stelsel van Rasseklassifikasie in Suid-Afrika unpublished LLM dis
sertation UNISA (1974); BR Bamford ‘Race Classification’ 1967 SALJ31; RE Gold
blatt ‘Constitutional Law’ 5 LA WSA (1978) at 36-42; M Wiechers ‘Kleurlingburgerskap
in Suid-Afrika’ 1972 THRHR 1; F Venter ‘Grondverskuiwings in die Suid-Afrikaanse
Staatsreg’ 1983 THRHR 249.
6 Act 28 of 1946, which was repealed by Act 47 of 1948.
7 Eg freedom of speech within the Council, a Chairman elected by the Council, a ‘majori
* and ‘minority’ or ‘opposition’ party, etc. See VerLoren van Themaat op cit at
ty
433-435.
8 S 101 of the Republic of South Africa Constitution Act 110 of 1983, read with part
2 of the second schedule.
9 Constitutionally as opposed to politically - this is a moot point and is, strictly speak
ing, not within the purview of a work on constitutional law.
10 The Theron Report supra unquestionably exerted considerable influence here: see Han
sard 16-05-1983 col 7211-7212. Also see VerLoren van Themaat op cit at 218-221 and
the authority cited there; Booysen and Van Wyk op cit at 13; F Venter 1983 THRHR
249; DC du Toit ‘Geskiedkundige Oorsig van Suid-Afrikaanse Konstitusionele Modelie
met’ Besondere Verwysing na die Westminsterstaatsmodel’ in Jacobs (ed) ‘n Nuwe
Grondwetlike Bedding vir Suid-Afrika (1981) at 15 et seq.
General Features of the SA Constitution Act 110 of 1983 275
This committee released its proposals in August 1977. There were to be

three legislative bodies; one for Whites, one for Coloureds and one for Indi
ans. Each of these was to bear sole legislative responsibility for matters relat
ing only to that population group, while there was to be joint responsibility
for matters of a general nature. Each population group was to have its own
Cabinet with a multi-racial Cabinet Council, consisting of a white Prime
Minister and six white ministers; a coloured Prime Minister and three fur
ther ministers; and an Indian Prime Minister plus two other ministers. This
Cabinet Council would be concerned largely with the initiation of legisla
tion dealing with general matters. The State President was to become an ex
ecutive rather than symbolic head of state, elected by an electoral college
nominated by the three legislative bodies in the following proportion: 50 by
the White legislature, 25 by the coloureds and 13 by the Indians. A Presi
dent’s Council, a body to advise the State President on matters of common
interest, was also proposed. The proposals were embodied in a draft bill in
1979, which elicited criticism of a predominantly unfavourable nature.11
The draft Constitution of 1979 made provision for three chambers - not
‘parliaments’ — one white, one coloured and one Indian. However, there
was no doubt that legislative supremacy vested in the white chamber (the
House of Assembly). The Cabinet .Council was to have a say in the legisla
tive sphere, because it could refer certain matters to the coloured and Indian
chambers. This blurring of the dividing line between legislative and execu
tive function was severely criticized as a denial of the principle of separation
of powers.12
The executive was constituted more or less in accordance with the 1977
proposals: three Cabinets, each with its own Prime Minister, and a Cabinet
Council chaired by a State President with real power and composed of mem
bers of all three Cabinets, in proportion to the relative size of the legislative
chambers.
The most important provision in the draft Constitution, the only one to
_have survived in more or less unchanged form, was the one creating a Presi
dents’ Council, an advisory body consisting of 55 members.
The bill was not introduced into Parliament but referred immediately to
a select committee consisting of members of both Houses, under the chair
manship of AL Schlebusch. This committee was converted into a commis
sion of enquiry at the end of that session of Parliament. The commission
heard a great deal of evidence during the latter half of 1979 and brought
out an interim report early in 1980.
11 See GE Devenish ‘A Critical Evaluation of the Theoretical and Political Implications

of the New Constitutional Proposals’ Series C4, University of the Western Cape (1979)
and ‘The Doctrine of Parliamentary Sovereignty and the Proposed New Constitution’
1979 THRHR 85; SC Jacobs "n Juridiese Analise van die Konstitusionele Voorstelle
vir ’n Nuwe Grondwetlike Bedeling vir Suid-Afrika’ 1979 THRHR 252; MP Vorster
and HP Viljoen ‘Die Nuwe Grondwetlike Bedeling vir Suid-Afrika’ 1979 TSAR 201;
H Booysen ‘Kommentaar op die Konsepgrondwet’ 1979 De Jure 298 and 1980 De Jure
12. Virtually the only apologist for the government’s proposals was D Worrall ‘The
South African Government’s 1977 Constitutional Proposals’ in Constitutional Change
in South Africa (ed J A Benyon) (1978) at 127. Obviously much of the general criti
cism was based on political rather than constitutional considerations, but these do not
concern us here.
12 Eg by Booysen 1979 De Jure 302.
The commission proposed that the Senate be abolished and the House of
Assembly slightly enlarged by the addition of a number of nominated mem
bers,13 and that a President’s Council be instituted under the chairmanship
of a permanent Vice State President to advise the State President on any
matter of public interest. This Council, which was to be multi-racial, could
then continue with the commission’s task of investigating constitutional op
tions for South Africa.
In 1979 draft Constitution died a natural death. It cannot be said that it
disappeared without a trace, however, since the idea of three legislative cham
bers and of segmental autonomy (the dichotomy between ‘own affairs’ and
‘general affairs’) survived and may be seen to form vital elements of the 1983
Constitution.
As recommended by the Schlebusch Commission, the Senate was abolished
on 1 January 1981;14 provision was made for an additional twelve members
of the House of Assembly (four nominated by the State President, one for
each province, and the remaining eight by the members of the House in ac
cordance with the principle of proportional representation); and a President’s
Council was instituted under the chairmanship of a permanent Vice State
President.
The President’s Council consisted of 60 members appointed by the State
President from the white, coloured, Indian and Chinese population groups.
Members had to be South African citizens, thirty years old, could not be
members of a legislative body or holders of remunerative positions under
the state.
The State President appointed four committees of the Council: an eco
nomic committee, a constitutional committee, a planning committee and a
committee for community relations, each with its own chairman.
AL Schlebusch was elected as Vice State President and ex officio chairman
of the President’s Council. The President’s Council was purely an advisory
body whose function was to advise both Parliament and the executive. It
had no legislative powers and therefore could not be regarded as the succes
sor, in juridical terms, to the Senate. Jurisprudentially the Council took the
form of a permanent statutory commission of enquiry.
13 The concept of a legislature consisting of a single body which is not entirely popularly
elected, is foreign to the Westminster system of government. The proposal was clearly
intended to compensate for the loss of the Senate by introducing a ‘Senate-like’ nomi
nated or non-representative element into the representative House of Assembly. It may
also be observed that the notion of a ‘mixed’ legislature consisting of a single cham
ber composed of both elected and non-elected members - whether the latter are nomi
nated or take their seats by virtue of some traditional position — is reflected in the
Constitutions of all four former South African Black States who have attained full
constitutional independence (Transkei, Bophuthatswana, Venda, Ciskei). See ch 21
for a discussion of the Constitutions of these states.
14 In terms of section 13 of Act 101 of 1980. See also ch 12 above. Although it was generally
agreed that the Senate had not served the purpose for which it had originally been
intended, viz that of a stabilizing influence exerted by maturer politicians, and that
the Senate had never enjoyed the prestige of a body like the House of Lords, the abo
lition of the Senate was not a move which was universally welcomed in political and
constitutional circles. See DH van Wyk ‘Westminsterstelsel — requiescat in pace?'
1981 THRHR 105.
The first major task of the constitutional committee was to investigate the
constitutional options further and to report on its findings. The two reports
of this committee formed the basis of the President’s Council’s recommen
dations regarding a new South African Constitution. The South African
government’s own proposals were made known after the first report but be
fore the second. It is therefore an open question whether the government’s
proposals materially influenced the content of the second report.
The First Report
The first report of the constitutional committee was of cardinal importance,

as it contained the core of all subsequent constitutional proposals. The Presi
dent’s Council’s starting-point was that the Constitution should be free from
any discrimination against any of the population groups involved, and that
the constitutional structure to be introduced should be based on the twin
principles of partition and consociative democracy. Partition meant that
Blacks were to be excluded from the central governmental structure and ac
commodated, as before, on a separate footing - in independent or autono
mous, but not altogether independent, National States. Consociative
democracy15 implied recognition of the following features: segmental auton
omy, grand coalition, proportionality and mutual veto.16 In brief, segmen
tal autonomy implies that interest groups will have the right to manage affairs
exclusive to that group; leaders’ coalition, that as many interests and per
sons should be involved in the decision-making process as possible; the mutual
veto is designed to protect minority groups against domination by other
groups; and proportionality means that the various groups will have a say
in proportion to their numerical strength or importance.17
As far as concrete proposals were concerned, the main thrust of the report
was that the executive should be entirely separate from the legislature; in
other words, that Cabinet ministers should not be members of Parliament
at all.18 The report proposed that the executive should be composed of an
indirectly elected President, a Premier or Prime Minister to attend to the
day-to-day administration and to act as go-between in the relationship be
tween government and legislature, and a Cabinet of ministers. The chapter
devoted to the legislature was largely theoretical and contained few concrete
proposals.
15 See F Venter ‘Konsosiatiewe Demokrasie’ in Politieke Alternatiewe vir Suider-Afrika

(ed Van Vuuren and Kriek) at 275-292; LJ Boulle ‘Federation and Consociation —
Conceptual Links and Current Constitutional Models’ 1981 THRHR 236, and South
Africa and the Consociational Option (1984) at 46-51.
16 See ch 1 above for a discussion of some of these concepts.
17 It is often said by politicians that South Africa is a country of minorities. In a system
like the Westminster system where the winner takes all, minorities cannot hope to en
joy any say in government, not even in proportion to their size or importance. See
the discussion of this issue in chs 4, 5 and 8.
18 This proposal was apparently inspired by the notion that a greater separation between
executive and legislature would be conducive to the ideal of consensus politics and
would contribute to a moving away from the traditional idea of confrontation or op
position politics.
—Introduction to South African Constitutional Law
The Government’s Proposals

The South African government responded officially to the President’s Coun
cil s proposals at a federal congress of the National Party on 30 July 1982
by way of its own set of proposals presented by the Prime Minister,
PW Botha.
In general terms, the government endorsed the principles of segmental au
tonomy, consociative democracy, grand coalition and proportionality. The
acceptance of a mutual veto was more guarded.
Whereas the constitutional committee had expressed itself opposed to the
idea of a system of councils within the executive, the government’s proposals
included the notion of separate Ministers’ Councils for each population group
to administer matters relating to that group’s interests. The proposals did
not, however, touch on the question of total separation of legislature and
executive, but merely stated that the executive authority would vest in a Presi
dent and a Cabinet. The government was emphatic that the President should
not be popularly elected and that his election should be conducted more or
less in accordance with the existing practice, namely by an electoral college
composed of members of Parliament. Whereas the State President was, un
der the 1961 Constitution, elected by an electoral college consisting of all
members of the House of Assembly,19 the 1982 proposals provided for an
electoral college drawn from the three chambers in proportion to the nu
merical strength of the chambers but not in proportion to the strength of
the various political parties within the chambers. This obviously ensured that
the candidate put forward by the majority party in the House of Assembly
would automatically get the nod.20
The legislature was cast in much the same mould as that suggested by the
constitutional committee: three Houses of Parliament: one for Whites, one
for Coloureds and one for Indians. Matters of common interest would be
dealt with by all three Houses, but matters concerning one population group
exclusively, by that group’s House of Parliament. The idea that conflicts be
tween the Houses in matters of general concern would be referred to the Presi
dent’s Council as final arbiter was introduced, thus watering down the
principle that each group should possess a right of veto.21
It was realized even at this stage that it would be impossible to distinguish
between general interests and specific interests of a particular group in the
Constitution itself. It was therefore proposed that the Constitution would
merely contain a guide but that the President would play a decisive role.
19 Ss 8 and 9 of Act 32 of 1961.

20 For criticism of this proposal see WHB Dean ‘The Government’s Proposals 1982’
in Constitutional Change in South Africa - the Next Five Years (ed WHB Dean and
D van Zyl Smit) (1983) at 97.
21 On the one hand, such a reference to a non-representative body may be criticized as
essentially undemocratic; on the other, it is certainly true that some provision has to
be made for ending deadlocks. Furthermore, if a right of veto is conferred on every
group without qualification, a very small minority may, in principle, hold the majori
ty to ransom indefinitely.
Little was said, either in the President’s Council’s report or in the govern
ment’s proposals, about the position of the judiciary. The President’s Council
did consider the possible incorporation of a bill of rights but decided that
a bill of rights did not suit the South African constitutional pattern.22
Among the government’s proposals was an enhanced role for the Presi
dent’s Council. In addition to its advisory role, it was to serve as arbiter in
disputes between the Houses concerning the adoption of legislation dealing
with general affairs. However, there was no suggestion that the President’s
Council should be converted into anything other than a nominated or in
directly elected body.
The Second Report of the President’s Council
It was inevitable that the second report of the President’s Council should
have reflected the influence of the government’s proposals. It would have
been an exercise in futility for the Council to bring out further proposals
which were irreconcilable with the government’s official approach.
As regards the legislature, the President’s Council suggested that the three
Houses should be accommodated under one roof and simply be known as
the white chamber, the coloured chamber and the Indian chamber; further
more, that the number of members of each chamber be calculated in propor
tion to the total number of voters in each population group. A novel proposal
was that each group should be free to adopt the electoral system of its choice.
The report also contained recommendations relating to parliamentary com
mittees.23
It is of some interest that the Council did not depart from its original stand
point that a rigid separation should be maintained between the executive and
the legislature.
An innovative proposal relating to the President’s Council was that the
composition of the Council should reflect the different political views
represented in Parliament. The report further contained a number of practi
cal suggestions, including suggestions for the resolution of conflicts.24
The Draft Constitution
The second draft constitution to be submitted to Parliament within less than

five years was introduced and read for the first time on 5 May 1983. Because
of the importance of the legislation, the bill was not merely read but was
debated briefly in Parliament. It became clear that the two major opposi
tion parties, at least, were strongly opposed to the proposed legislation.
22 Unfortunately this issue has been bedevilled by political ideologies and by a number
of misconceptions. The question of a suitable bill of rights for South Africa has been
discussed in some detail in ch 5 above.
23 See the Second Report of the Constitutional Committee at 33.
24 Eg low quorums, non-automatic reference of disputes to the Council, and the possi
bility that two chambers could function as Parliament if the members of one chamber
went on strike, so to speak.
When the bill was read a second time, its principles were debated furious
ly and extensively and accepted after a division. The bill was thereafter
referred to a select committee25 under the chairmanship of the Minister of
Constitutional Development and Planning, and Parliament adjourned in ord
er to give this committee an opportunity to examine the bill in detail. In the
meantime, numerous bodies and individuals submitted suggestions to the
committee. The committee’s report contained no fewer than 140 proposed
amendments, some of major constitutional importance, others purely lin
guistic.
The parliamentary session resumed, and proved stormy in the extreme.
All the clauses of the bill were to have been subjected to intense scrutiny,
but when the committee stage ended on 31 August, only 33 of the 102 clauses
had been fully debated. The so-called ‘guillotine’ rule was applied,26 a move
which incurred the wrath of the opposition members. The third reading was,
however, extended to ten hours, an exceptionally long time. On the other
hand, since no amendments of any real importance are possible once the third
reading has been reached, the extension of the time available for the third
reading served little purpose. It was made abundantly clear that the two main
opposition parties remained intractably opposed to the Constitution right
to the end.
The Republic of South Africa Constitution Act 110 of 1983 was duly adopt
ed by the South African Parliament and it was announced that a referendum27
would be held on 2 November 1983 to determine the reaction of the white
voters. The result was an overwhelming ‘yes’ in favour of the new Constitu
tion. The feeling of the coloured and Indian sectors of the population were
not, however, tested in the same way. General elections were held directly,
with no prior referendum.
Ill GENERAL FEATURES OF THE 1983 CONSTITUTION28

1 Autochthony29
Autochthony, when applied to constitutions, can be taken to refer either to
the indigenous or home-grown character of the constitution or to the source
of the independence (autonomy) of the state whose constitution is under
scrutiny.
A number of interesting jurisprudential questions arise in this regard. One
of these relates to the legitimacy of a constitution which results from a suc
cessful revolution, that is, a break in the so-called validity chain. The exam
ple that springs to mind most readily is that of the United States of America.
25 Not to the committee of the whole House, as is customary. See the discussion of the
various stages in the adoption of legislation in ch 12 above at 250 et seq.
26 This means that once a certain time has elapsed, no more debate is permitted and that
the House votes on the clauses one by one. See DH van Wyk ‘Parliament’ LA WSA
vol 19 at 225.
27 Like the referendum held in 1960 prior to the change-over to a republican form of
government, this, too, was technically a plebiscite rather than a referendum. See DA
Basson ‘Referendum en Plebissiet’ 1982 De Rebus 312 and the discussion at 216 above.
28 See Booysen and Van Wyk op cit at 39-53.
There is no doubt that the American Constitution is autochthonous in the

sense that it reflected a total break with the existing constitutional regime.
As regards the legitimacy issue, it may be said that success begets its own
legality30 — the American revolution was successful, the Rhodesian revolu
tion ultimately was not.
If the requirement of a total break with the past, coupled with a certain
degree of violent rejection, is not a requirement for autochthony, then con
stitutions such as those of Transkei, Bophuthatswana, Venda and Ciskei may
also be regarded as autochthonous, since they were adopted by the territories’
own legislatures and not by the South African Parliament. In this respect
they may be distinguished from the South Africa Act, which was an act of
the British Parliament. These constitutions also contain a number of in
digenous features, such as the inclusion of tribal chiefs in the legislature,
but are, for the most part, Western rather than indigenous in character.31
Another question which arises here, is whether a truly autochthonous con
stitution must be a ‘true’ constitution in the sense that it embodies all the
rules governing the constitutional structure of the state and in the sense that
it must be a ‘higher’ law than the ordinary laws of the land. There seems
to be no reason why it should. The British Constitution, after all, is a prime
example of a constitution which, though largely non-statutory, and no ‘higher
law’ as such, is home-grown or indigenous, tailored to the needs and character
of the people, and accepted by the population — to such a degree, in fact,
that the British have for many years been unable to resist the urge to export
their own constitutional model to former British colonies seeking constitu
tional independence. Of course, it is by no means certain that the British
regard their Constitution as autochthonous.32
If the abovementioned principles are applied to the South African situa
tion, one must conclude that the South Africa Act was heterotochthonous
or allochthonous, a ready-made British-type constitution ‘conferred’ or ‘im
posed’ on a former colony. It certainly did boast a number of indigenous
features, the entrenched sections and the provincial system being the most
important. Furthermore, the Constitution was accepted by the population
after the National Convention, but there was no question of its ‘springing
from the native soil’ or receiving any real impetus from a kind of spontane
ous combustion in the constitutional sense. It was not even a ‘national restate
ment’,33 let alone a break in the constitutional chain.
30 See SA de Smith Constitutional and Administrative Law 4 ed (1981) at 76.

31 See ch 21. The Constitution of Transkei, for example, is as good an example of a
Westminster clone as may be found anywhere. While it cannot be described as a con
stitution forced or imposed on the inhabitants, it may arguably be classified as a ‘bor
rowed constitution’ and therefore allochthonous, according to MP Vorster
‘Konstitusies’ in Politieke Alternatiewe vir Suider-Afrika: Grondslag en Perspektiewe
(ed Van Vuuren & Kriek) (1982) at 136.
32 It certainly is not allochthonous or heterotochthonous, since no other power had any
hand in forming the British system. On the other hand, the British constitutional sys
tem is virtually unique and it is therefore somewhat futile to try to confine or classify
it in accordance with notions which enjoy currency elsewhere. Perhaps the concepts
of autochthony and heterotochthony should be applied only to written constitutions.
33 The only requirement for autochthony in the view of Kenneth Robinson ‘Autochtho
ny and the Transfer of Power’ in K Robinson and F Maddon Essays in Imperial Govern
ment (1963) at 253.
The Republic of South Africa Constitution Act 32 of 1961 met Robin

son’s requirement of a national restatement, even though there was essen
tially nothing new in the Constitution. The only difference between the 1961
Constitution and the South Africa Act lay in the substitution of a symbolic
State President for a constitutional monarch and in the fact that it was the
South African Parliament itself and not the British Parliament which adopted
the constitution. By Robinson’s standards, it was a national restatement and
therefore qualified as autochthonous, but it is doubtful if this view would
be generally accepted.34
Finally, the 1983 Constitution: it is certainly indigenous in that it reflects
the ethnic basis which has underpinned the South African constitutional sys
tem right from the outset; the concepts of own affairs and general affairs
(segmental autonomy) and the notion that disputes between the legislative
chambers be referred to a non-representative body (the President’s Council)
as final arbiter are also features which seem to point to autochthony. Despite
the presence of a large number of entrenched sections, however, the Consti
tution cannot be said to constitute a higher law, or to be the grundnorm35
of South African constitutional law.
2 Evolutionary Constitutional Law

The evolutionary nature of British constitutional law is one of its striking
features. It is clear that South African constitutional law does not have the
same claim to the description ‘evolutionary’, since the development has taken
place over a far briefer period, but it has been an evolutionary development
nevertheless. There has never been a clear constitutional break with the past.
The South Africa Act36 represented the continuation rather than the climax
of a development, and the Constitution Act of 196 137 represented very little
in the way of constitutional change except for the substitution of a symbolic
State President for a constitutional monarch represented by a Governor-
General.38
The 1983 Constitution, on the other hand, was hailed in some quarters
as a departure from the Westminster-type constitutional dispensation which
had applied in South Africa until then. Even a cursory inspection of the Act
makes it clear, however, that it is much more difficult to break with the past
entirely than many imagine. Not only were a large number of existing provi
sions left untouched, but the ‘old’ approach, that the Constitution should
not be the sole document embodying all the rules governing the constitu
tional system, was retained. Finally, the very fact that the new Constitution
was instituted piecemeal is a strong indication that the intention was to
preserve the evolutionary nature of our constitutional law.
34 See Vorster op cit at 130, where he concludes that autochthony requires neither a purely
formal indigenous statement of constitutional provisions nor any novel constitutional
principle, but simply acceptance by the population. The objection to this definition
is that this would mean that virtually all constitutions would qualify as autochthonous,
which would rob the classification of any significance, even theoretical.
35 See ch 6 at 142 for a discussion of the grundnorm concept.
36 9 Edw VII C9 (1909).
37 The Republic of South Africa Constitution Act 32 of 1961.
38 See ch 3 above.
3 The Flexibility of the Constitution

As the original ‘Westminster’ constitution, the British Constitution is the
prime example of the flexibility which is a cardinal feature of that system.
One can hardly conceive of a system which is so flexible that some of its
most important principles are not embodied in any statute. The South Afri
ca Act and the Republican Constitution of 1961 were also extremely flex
ible, the only element of rigidity being the so-called entrenched sections, which
required that a special procedure be followed before these provisions could
validly be amended or repealed.
The provisions guaranteeing the equality of the official languages have
been retained in the 1983 Constitution, now perhaps more firmly entrenched
than ever.39 In addition, the 1983 Constitution contains a large number of
provisions which cannot be amended or repealed unless all three Houses have
agreed to the measure.4041 There is no bill of rights, however, and none of
the provisions — apart from the language provision - may be regarded as
sacrosanct. Thus the 1983 Constitution may be described as far less flexible
than its predecessors or the Westminster model, but by no means as ‘rigid’,
in the American sense.
4 No Higher Law
The Constitution does not enjoy enhanced status in relation to other sta
tutes despite the presence of the entrenched provisions. It cannot be said to
constitute a grundnorm
*
' and is not a higher law to which all other laws are
subordinate, and which serves as a touchstone for all other legislation. A
constitution which may be described as a higher law will almost invariably
contain an entrenched bill of rights furnishing individual protection against
both legislative and executive encroachment.42 The entrenchments embod
ied in the Constitution simply mean that certain amendments to the Consti
tution may be achieved only by means of a specific procedure, not that
legislation in general may be declared invalid because it conflicts with the
spirit and values of the Constitution.
5 Recognition of Conventions
The part played by conventions is one of the cardinal features of the West
minster system of government.43 The development of constitutional conven
tions or usages is a characteristic of evolutionary constitutional law, and the
recognition of the continued role of conventions in the 1983 Constitution
39 Under the South Africa Act and the 1961 Constitution, a two-thirds majority vote
in a joint sitting of the Houses of Parliament was required for amendment or repeal
of these sections; after the abolition of the Senate in 1980, a two-thirds majority in
the House of Assembly; under the 1983 Constitution, a two-thirds majority in each
House, the Houses sitting separately.
40 See s 99(3).
42 The adoption of a bill of rights was mooted but the proposal failed. If a constitution
is to be a higher law, then legislation or executive action in, say, the sphere of crimi
nal law, which conflicts with the constitution will be invalid. See S v Marwane 1982
3 SA 717 (A) which dealt with the interpretation of the Constitution of Bophuthatswana.
43 See ch 4 at 76 and ch 9 at 175 et seq above.
is an indication of the intention that the evolutionary development of con

stitutional law in South Africa should not be thwarted. The 1961 Constitu
tion contained a provision recognizing the continued existence of
conventions44 and also conferred statutory status on certain conventions which
had hitherto been unwritten or ‘genuine’ conventions.45 The ambit of these
conventions raised relatively few problems under the previous Constitution,
however, simply because the position remained virtually identical to that
which had prevailed under Union.46 There was therefore very little scope for
conflict between accepted conventions and the statutory provisions of the
Constitution.
The 1983 Constitution likewise contains a provision conferring recogni
tion on the conventions of the Constitution,47 but with the added proviso
that such constitutional and parliamentary usages will continue to exist only
in so far as they are not irreconcilable with the provisions of the Constitu
tion. As will become apparent later,48 there are a number of established con
ventions which will clearly fall by the wayside. Furthermore, there are now
a considerable number of conventions which have been enacted in the Con
stitution itself. These have in consequence lost the character of true conven
tions, and may now be regarded as legal rules in the strict sense.49 Time will
tell whether the remaining ‘true’ conventions will retain their force, and fur
ther, which new conventions will develop.50
It must be emphasized that, although the notion of conventions owes its
origin to the Westminster system, there is no reason why any country should
not develop its own individual conventions which may be totally foreign to
Britain. Conventions are usages which develop within the framework of a
particular system, and while South Africa and Britain obviously share a num
ber of the most important conventions by reason of their common origins,
this does not mean that a usage which develops in South Africa and which
bears no relation to British practice, cannot be characterized as a conven
tion in the full sense of the word.51
44 S 7(5).
45 S 16, for example.
47 S 88.
48 In chs 15 and 16 passim.
50 New conventions and usages will undoubtedly develop, because the new Constitution
is complicated in structure and procedure, and some means will have to be devised
to simplify it. It is fairly generally agreed that a convention has been established in
South Africa that any radical proposed change to the Constitutional system will be
subjected to a public opinion test by way of a referendum or plebiscite. Examples of
other conventions which may possibly develop, are given by Booysen & Van Wyk op
cit at 41: that the three Houses of Parliament will sit together during certain stages
in the adoption of general-affairs legislation, and go their own way only for voting
purposes; that senior members of the Ministers’ Councils will be appointed to the Cabi
net; that certain portfolios will be allocated to ministers from particular Houses; and
so on.
51 The question whether conventions are legal rules or not is touched on in ch 9 above.
It is submitted, however, that the issue is largely academic and has little practical im
portance.
6 Unitary and Federal Characteristics

The Republic of South Africa is, and has been since Union, a unitary state
with only one or two features which may arguably be described as ‘feder
al’.32 The importance of the dichotomy between own affairs and general af
fairs, and the degree of autonomy which is conferred on the various
population groups in matters affecting such groups exclusively, would,
however, seem to indicate the presence of a hint of federalism in the 1983
Constitution; admittedly not in the usual sense, since the demarcation of
authority is not achieved on a territorial basis. One is inevitably reminded
of the ‘race federation’ proposed by the now defunct United Party several
decades ago. Booysen and Van Wyk33 describe the new creation as a kind
of ‘personaliteitsfederasie’, or federation based on the personality principle
rather than the territorial principle. The Constitution cannot, however, be
said to have moved towards federalism in any material sense: the central
Parliament remains the supreme authority in the legislative sphere, the Cabi
net in the executive sphere. There is little question of decentralization of
power, despite the creation of more viable local authorities.34
7 The Principle of Segmental Autonomy and the Dichotomy between

Own Affairs and General Affairs
The classification own affairs/general affairs is unquestionably the central
feature of the 1983 Constitution — in theory. The concept of segmental
autonomy, the right to self-determination of each population group, is said
to underline the distinction. In broad terms, it means that the three popula
tion groups provided for in the constitution are to possess ‘sovereignty’ in
matters pertaining exclusively to the individual group in question (own af
fairs) while matters affecting the population as a whole (general affairs) must
be dealt with by all three groups.
‘Own affairs’ are defined as follows (in section 14(1)):
Matters which specially or differentially affect a population group in relation to
the maintenance of its identity and the upholding and furtherance of its way of
life, culture, traditions and customs are, subject to the provisions of section 16,
own affairs in relation to such population group.
At first glance the distinction appears to be based on cultural criteria, but,
since the White population group is deemed to be a single group for the pur
poses of the Constitution, it is obvious that cultural background and tradi
tion are not decisive: the English- and Afrikaans-speaking sectors of the white
group, the two main sub-groups, do not share a common cultural heritage
in every respect and it is difficult to see how topics such as agriculture and
water supply can be linked to cultural differences. The criterion is purely
racial, or ethnic, as is evidenced by the fact that the Houses themselves are
classified in accordance with the provisions of the Population Registration
Act.33*
52 See ch 1 at 13. Although the provincial system was described as having federal charac
teristics by HJ May (The South African Constitution 3 ed (1955) at 359) even this
indicator disappeared with the restructuring of the Senate in 1955.
53 Op cit at 46.
54 See ch 21 below.
55 30 of 1950. See s 100(i), (iii), (iv) and (v).
Schedule 1 of the Constitution contains a list of own affairs: for example,

social welfare, education, art, culture and recreation, health matters, com
munity development, local government, agriculture, water supply, the ap
pointment of marriage officers, the election of members to the House of
Parliament concerned, finances relating to the own affairs of a population
group, and so on. Almost all these classifications are, however, qualified
to some extent in the schedule itself.56 Finances, in particular, are hemmed
in by a large number of provisos and restrictions,57 to such an extent that
it cannot be said that the various population groups enjoy real financial
autonomy in regard to own affairs: no group may levy its own taxes, nego
tiate loans or even donations. The population groups therefore have no finan
cial resources of their own and cannot, in consequence, be said to possess
control over their financial resources.
Apart from the provisos contained in the schedule itself (many of which
are of such a nature that it becomes increasingly difficult to pinpoint with
certainty exactly when one is dealing with an ‘own affair’ of a particular
population group) the provisions of section 16, in terms of which the State
President has the power to decide whether a particular matter is a general
affair or an own affair of one of the population groups, also narrows the
potential scope of own affairs considerably.58 Booysen and Van Wyk59 con
clude that if one studies the first schedule closely, one is led to enquire whether
the topics that ‘survive’ after all the provisos and qualifications have been
applied, really justify the institution of a notion of own affairs with a
Ministers’ Council and administration for each population group.
General affairs are defined in section 15 as all matters which are not own
affairs in terms of section 14 — in other words, matters such as defence,
manpower, transport, finance, foreign affairs, home affairs, law and order,
and so on.60 Bills which are not endorsed by the State President as pertain
ing to own affairs, are deemed to be general affairs bills.61
8 The Personality Principle

The 1983 Constitution is based on personality rather than territoriality. As
is pointed out above,62 the division of power in the Republic has no geographi
cal foundation, as is customary. The territorial principle is the one most com
monly applied: legislation applies within a particular territory, and affects
all who live within that territory; jurisdiction is determined territorially and
56 For example, social welfare is an own affair, but is subject to a general law dealing
with norms and standards for the furnishing or financing of social services, or the
control of fund-raising or the registration of social workers - see item 1 of the sched
ule. Education, likewise, is subject to the provisions of general laws relating to certain
financial aspects and professional registration of teachers, or to syllabuses, examina
tions and certification - see item 2.
57 See item 11 of the schedule.
58 The State President’s role in this sphere will be dealt with in detail in the next chapter.
59 Op cit at 93.
60 See ss 18(3) and 98(1).
61 S 18(3).
62 At 283.
powers exercised within a particular geographical area; devolution of con

stitutional power is, likewise, territorially based.
The 1983 Constitution departs from this traditional approach and adheres
to the personal principle: the constitutional position of the individual is de
pendent, not on where he is, but on who he is, and more specifically, which
population group he belongs to.
9 The Ethnic Basis of the Constitution

As has been said above, while South African common law in general is largely
colour-blind, South African constitutional law - and, to some extent, South
African statutory law in general — is not. While the 1983 Constitution may
be described as the first attempt to break the exclusively white hold on govern
ment in South Africa, the traditional racial or ethnic basis of South African
constitutional law has been retained. The Population Registration Act of
1950, and race classification in terms of that Act, remain the corner-stone
of the constitutional system.
In terms of the Population Registration Act,63 the population of South
Africa is divided into three main groups: the Whites, the Blacks and the rest,
sometimes referred to loosely as the coloured races. That this is a misnomer
appears from the fact that a ‘Coloured’ in South African context is usually
a half-caste, and not an Indian, Chinese, Japanese and so on. However,
‘Coloureds’64 were divided into seven subgroups in terms of Proclamation
123 of 1967, namely, Cape Coloureds, Malays, Griquas, Indians, Chinese,
other Asiatics and other Coloureds. In terms of the 1983 Constitution, the
‘Coloured population’ is deemed to include the Cape Coloureds, the Ma
lays, the Griquas and other Coloureds only. The Indians form a separate
group, and no provision has been made for the Chinese and ‘other Asiatics’.65
For the purposes of the Constitution, then, the South African populace
may be divided into the Whites, who are represented in the House of As
sembly, the Coloureds (House of Representatives), the Indians (House of
Delegates), the Blacks (who are represented only in the governments of the
national states but not in the central government) and the Chinese and ‘other
Asiatics’ who appear at present to be in a state of limbo.
10 The Tricameral Parliament

Unlike the draft Constitution of 1977, the 1983 Constitution does not pro
vide for three ethnic Parliaments but for a single Parliament comprising three
chambers. The ethnic basis of the Constitution is reflected in the demarca
tion of the Houses, one for Whites, one for Coloureds, one for Indians.
Although the notion of more than one House of Parliament or legislative
chamber is a familiar one, the concept of three lower Houses rather than
one upper and one lower chamber is a novelty.
63 30 of 1950. This Act has been amended and amplified by the Identification Act 72
of 1986.
64 Afrikaans: ‘Gekleurdes’ and not ‘Kleurlinge’, which is the accepted term for half-castes.
No such distinction can be made in English.
65 The ethnic groups are defined in s 100. It is of interest that this is not an entrenched
provision — see the discussion below at 351-352.
The main theoretical question raised by the creation of this tricameral

Parliament is whether it still makes sense to state, as it is stated in section
30 of the Constitution, that Parliament is the sovereign legislative authority
in and for the Republic. Sovereignty, in the sense of legislative supremacy66
has a rather specific meaning within the Westminster system and is deemed
to be a cardinal feature of that system. There has, however, been a great
deal of innovative thinking on this topic in recent years, and modern per
spectives are rather different to those of the ‘classical’ period represented
by the writings of Dicey. In a nutshell, while the new South African Parlia
ment does not meet the traditional requirement of indivisibility, it cannot
be denied that Parliament, whether acting unicamerally (in own affairs) or
tricamerally (in general affairs) retains legislative supremacy, and remains
‘sovereign’ in the sense that the courts have no jurisdiction to declare in
valid any legislation duly passed by Parliament.67
11 Transition from a Parliamentary to a Presidential System?

The Westminster system of government is a parliamentary system. Despite
the encroachment of the executive on the powers of Parliament, it is the legis
lature which is the ultimate authority: the executive forms part of Parlia
ment and is responsible to Parliament, and the head of state is not an
‘executive’ head but a symbolic head, who forms part of Parliament but is
not a member of Parliament.
In the new Constitution, the members of the executive must still be mem
bers of Parliament68 and remain responsible to Parliament. The State Presi
dent is no longer a figure-head, but is both head of state and head of
government. He is no longer part of Parliament, but, together with Parlia
ment, forms the legislative authority in the Republic.69 On the other hand,
he is not popularly elected, but is elected by Parliament70 and is therefore
responsible to Parliament in this sense. He will inevitably be the leader of
the strongest political party in the House of Assembly, and not a retired poli
tician performing largely neutral tasks or merely placing the formal seal on
a decision actually taken by the political leaders.
In a sense, however, the State President will, if the Constitution is to have
any hope of succeeding, have to be more than the political leader of the
strongest White party. Where general affairs are concerned, he will have to
transcend the sphere of White segmental interests and act as the dominant
factor in the so-called new era of ‘politics of consensus rather than confron
tation’. He will have to tread a cautious path between the interests of the
White group in general and his own party in particular, on the one hand,
and the interests of all the population groups, on the other, since there is
much potential for conflict between the three Houses and between the Cabi
net and the Ministers’ Councils in the various houses. The State President’s
role in the demarcation of own affairs and general affairs is also fraught
with hazards.

68 S 24(3)(a).
69 S 30.
70 Ss 7 and 8.
To sum up: the 1983 Constitution certainly represents a move away from
a purely parliamentary system, but it may be described as a hybrid system
rather than parliamentary or presidential. Despite the prominent role accorded
to the State President, the roots of the parliamentary system remain, since
ultimate control over the executive (including the State President) is still in
the hands of the legislature and, for the present at any rate, effectively in
the hands of the House of Assembly.
12 The Role of Political Parties

The important part played by political parties in the Westminster system is
an aspect of the system which has developed largely by convention and is
therefore not reflected in the Constitution itself. This was certainly true of
the 1961 Constitution, which contained little or no reference to such vitally
important topics as the role of opposition parties. It is typical of this system
that the strongest party in the lower House forms the government and that
the task of the opposition parties is to criticize and check the government
in order to ensure that the ideals of ‘good government’ and constitutional
ism are achieved. Where Parliament consists of more than a single legisla
tive chamber, the political composition of the upper House reflects that of
the lower House at least to some extent: there will be no political parties in
the one House that are totally foreign to the other.
The part to be played by political parties in the 1983 Constitution is bound
to be more complicated. For one thing, the parties represented in the House
of Assembly are not, at this stage, represented in the other Houses as well.
Until the repeal of the Prohibition of Political Interference Act71 in 1985,
it was not possible for members of different population groups to belong
to the same party. Even now, it is theoretically possible, but the degree of
political party assimilation across the colour bar has been negligible. Thus
we have the situation that there are three Houses of Parliament, each with
its own ‘governing’ or majority party, and opposition parties. In matters
which are general affairs, the strongest party in the House of Assembly will
determine which is the governing party, even though members of the other
Houses may form part of the government (the Cabinet).
Complications inherent in the system include the following: there is no
guarantee that the views of the majority parties in the three Houses will be
in accord with one another at all; the majority party in the House of Assem
bly may be opposed not only by the opposition parties in that House, but
by all or any of the parties in the other Houses; despite the fact that the
majority party in the House of Assembly will constitute the governing party,
and despite the fact that this party can be ousted only by the opposition par
ties in the House of Assembly and not by the other Houses, the governing
party will be compelled to strive for reconciliation, accommodation and con
sensus rather than confrontation, if the new system is not to become a farce
- but this, in turn, could lead to political alienation within the ranks of the
governing party itself. The art of politics in South Africa will therefore be
far more complex than before.
71 51 of 1968.
One of the criticisms levelled against the new dispensation is that it reduces
the influence of opposition parties in the House of Assembly. It is undoubt
edly true that, where the entrenched provisions are concerned,72 the majori
ty parties in the House of Representatives and the House of Delegates have
more potential to thwart the majority party in the House of Assembly than
the opposition parties in the Assembly can have, irrespective of the numbers
of voters all these parties may represent. It must also be pointed out that
the majority party in the House of Assembly will have been elected on the
strength of its party manifesto and may be said to have received a specific
mandate from the white electorate. It may happen, nevertheless, that because
of the considerations explained above, the party will be unable to meet its
election commitments to its supporters. Likewise, even where own affairs
are concerned, it may prove impossible for the majority parties in the three
Houses to honour specific election promises, because of the complications
inherent in the own affairs/general affairs dichotomy as sketched above.73
For example, the majority party in the House of Representatives may have
undertaken to supply more housing or to furnish drought aid to farmers.
Even though community development and agriculture are classified as own
affairs, the State President may, because of the financial implications, re
fuse to endorse the bills concerned as own-affairs bills, and then the possi
bility arises that the legislation may not prove acceptable to the other two
Houses. If the bill is referred to the President’s Council and the Council does
not support the view taken by the House of Representatives, preferring that
of one of the other Houses, the House of Representatives will find itself un
able, through no fault of its own, to fulfil the commitments made to its
voters.74 In consequence, the importance of the individual Member of Parlia
ment will decline even further than it has done in recent times as a result
of the growth of the party system. His relationship with his constituents will
be complicated, not to say bedevilled, not only by the position of his own
party, but also by the growing influence of political parties in the other
Houses. Thus the notion of a Member of Parliament personally ensuring
that the interests of his constituents receive attention will fade into the back
ground. According to Booysen and Van Wyk75 this will mean that individu
als will turn to pressure groups rather than to their Member of Parliament
to make their presence felt.
13 Governmental Pluralism and Territorial Monism76

The creation of a tricameral Parliament with each House having its own ex
ecutive (Ministers’ Council) in addition to the central executive (Cabinet) must
inevitably lead to a multiplicity of governmental bodies and even to a cer
tain measure of duplication. While the general-affairs portfolios will not be
duplicated in the Ministers’ Councils, the converse is not true. For example,
72 I e provisions which cannot be amended or repealed without the agreement of all three
Houses, and which cannot be referred to the President’s Council in the event of a
dispute. See the discussion below at 344.
73 At 289.
74 See Booysen and Van Wyk op cit at 48.
75 Op cit at 49.
each of the three Houses will have a ministry of agriculture and of educa
tion; in addition, there is also a Cabinet minister holding a similar portfolio,
a fact which is not affected by slight variations in nomenclature. All four
executive bodies operate within the same geographical area.
The same problem arises in the legislative sphere. Parliament may func
tion tricamerally, that is, when adopting general-affairs legislation. Such legis
lation will apply to all persons within the Republic. In addition, each of the
Houses may adopt legislation dealing with own affairs: such laws will apply
only to members of the population group in question, but irrespective of
where they find themselves.
In terms of the Constitution, the legislation passed by a single House is,
like that passed by all three Houses, an ‘Act of Parliament’. Acts of the cen
tral Parliament therefore do not enjoy superior status. Likewise, there is no
thing to indicate that, within their own sphere, Ministers’ Councils do not
enjoy status equal to that of the Cabinet. It is clear that the possibility exists
that a conflict may arise between an own-affairs law and a general-affairs
law, or between the Cabinet and a particular Ministers’ Council, but no pro
vision is made for such a contingency in the Constitution.
In addition to the central Parliament and the four administrations con
nected with it, there are also four provincial administrations and a large num
ber of local authorities, all of whom may perform both legislative and
administrative acts within a particular territory and within the scope of their
powers. Since the acts of these bodies are subordinate to Parliament and thus
to the central government, however, the possibility of conflict raises no real
problems here.
14 Government by Grand Coalition

One of the features of a consociative form of government is said to be the
notion of a grand coalition.77 This entails a kind of government by the lead
ers of various groups acting in co-operation in matters of common concern,
while matters exclusively concerning the interests of a particular group re
main within the sole jurisdiction of that group (the principle of segmental
autonomy).
It is clear that the Westminster idea of winner-takes-all, that is, the princi
ple that the government consists purely of members of the majority party,
is not well suited to the concept of segmental autonomy. There can, in fact,
be no real segmental autonomy if the power in the central government is
concentrated in the hands of the strongest of the constituent groups.
On the other hand, the notion that the central executive may include per
sons who do not belong to the same party as the head of the government,
is foreign to those who are schooled in the Westminster system, and it may
be anticipated that the adaptation will not always proceed smoothly. The
idea of cabinet solidarity developed by convention and is in fact one of the
strongest conventions. Now the position may arise where the leading candi
dates for a Cabinet post in the House of Representatives or House of

Delegates hold political views which are totally irreconcilable with those of
the majority party in the House of Assembly. If the State President then
decides either to ignore the House in question when choosing the members
of his Cabinet, or to choose representatives whose views are more in keep
ing with his own, even though they do not reflect the view of the majority
in that House, the concept of grand coalition or government by consensus
will not be respected, and the credibility enjoyed by the government in the
sector represented by the House concerned will be severely affected. On the
other hand, if the State President decides that he must appoint only persons
who truly reflect the views of the majority party in their Houses, he will run
the risk that cabinet solidarity may be affected. A certain degree of com
promise on all sides will be necessary if government by grand coalition is
to become a reality. It may be foreseen, in any case, that Cabinet members
who are appointed from Houses other than the House of Assembly will not
be given contentious portfolios, particularly if they are politically somewhat
at variance with the views of the main governing party.
CHAPTER FIFTEEN
The State President

I INTRODUCTION
The State President’s* role in the 1983 Constitution is a vitally important

one. Unlike the typical Westminster head of state, the constitutional monarch
figure, who is traditionally a symbolic head with few real powers, the State
President created by the 1983 Constitution is both head of state and head
of government. In this respect he resembles the so-called ‘executive’ presi
dent we find in the United States of America, for example. As is pointed
out above,12 however, there has been only a partial change-over from a
parliamentary to a presidential system. In consequence it may be said that
the State President remains, in certain respects, a Westminster head of state,
while in others he has become an executive president with real powers.
The hybrid nature of the office of State President is made manifest by
the fact that he is stated to be the head of the Republic3 and thus to be the
symbol of the state and the state treasury. Like the 1961 Constitution, the
1983 Constitution provides that all revenues of the Republic vest in the State
President.45In this respect, therefore, he is in the same position as his predeces
sor. In a certain sense, therefore, the State President is still expected to be
a ‘symbol of national unity’ and not purely a political leader.
As will become apparent later on,s the State President also remains a typi
cal Westminster head of state in the sphere of each population group’s own
affairs. He must act on the advice of the Ministers’ Councils concerned; the
Councils themselves must be appointed in accordance with the convention
that the executive must enjoy the support of the majority in that House; in
short, he will be bound be convention to a marked extent.
In various other respects, however, the State President is no longer the
symbolic Westminster head of state, but performs a dual role: the roles of
the former State President and Prime Minister have merged into one.6 He
appoints the members of the Cabinet in fact and not merely in name; he acts
in consultation with the members of his Cabinet and not on their advice;7
he determines government policy in matters which are general affairs. In
1 In the draft Constitution the title proposed was simply ‘President’ but this was changed
back to ‘State President’ during the committee stage: see Hansard 1983-08-18 col
11802-11807.
2 In ch 14, at 288.
4 S 80.
6 See s 102(2)(b), which provides that any reference to the erstwhile Prime Minister is
to be construed as a reference to the State President.
7 S 19(l)(b). See the discussion below at 310 et seq.
293
Delegates hold political views which are totally irreconcilable with those of
the majority party in the House of Assembly. If the State President then
decides either to ignore the House in question when choosing the members
of his Cabinet, or to choose representatives whose views are more in keep
ing with his own, even though they do not reflect the view of the majority
in that House, the concept of grand coalition or government by consensus
will not be respected, and the credibility enjoyed by the government in the
sector represented by the House concerned will be severely affected. On the
other hand, if the State President decides that he must appoint only persons
who truly reflect the views of the majority party in their Houses, he will run
the risk that cabinet solidarity may be affected. A certain degree of com
promise on all sides will be necessary if government by grand coalition is
to become a reality. It may be foreseen, in any case, that Cabinet members
who are appointed from Houses other than the House of Assembly will not
be given contentious portfolios, particularly if they are politically somewhat
at variance with the views of the main governing party.
CHAPTER FIFTEEN
The State President

I INTRODUCTION
The State President’s1 role in the 1983 Constitution is a vitally important

one. Unlike the typical Westminster head of state, the constitutional monarch
figure, who is traditionally a symbolic head with few real powers, the State
President created by the 1983 Constitution is both head of state and head
of government. In this respect he resembles the so-called ‘executive’ presi
dent we find in the United States of America, for example. As is pointed
out above,2 however, there has been only a partial change-over from a
parliamentary to a presidential system. In consequence it may be said that
the State President remains, in certain respects, a Westminster head of state,
while in others he has become an executive president with real powers.
The hybrid nature of the office of State President is made manifest by
the fact that he is stated to be the head of the Republic3 and thus to be the
symbol of the state and the state treasury. Like the 1961 Constitution, the
1983 Constitution provides that all revenues of the Republic vest in the State
President.4 In this respect, therefore, he is in the same position as his predeces
sor. In a certain sense, therefore, the State President is still expected to be
a ‘symbol of national unity’ and not purely a political leader.
As will become apparent later on,5 the State President also remains a typi
cal Westminster head of state in the sphere of each population group’s own
affairs. He must act on the advice of the Ministers’ Councils concerned; the
Councils themselves must be appointed in accordance with the convention
that the executive must enjoy the support of the majority in that House; in
short, he will be bound be convention to a marked extent.
In various other respects, however, the State President is no longer the
symbolic Westminster head of state, but performs a dual role: the roles of
the former State President and Prime Minister have merged into one.6 He
appoints the members of the Cabinet in fact and not merely in name; he acts
in consultation with the members of his Cabinet and not on their advice;7
he determines government policy in matters which are general affairs. In
1 In the draft Constitution the title proposed was simply ‘President’ but this was changed
back to ‘State President’ during the committee stage: see Hansard 1983-08-18 col
11802-11807.
2 In ch 14, at 288.
4 S 80.
6 See s 102(2)(b), which provides that any reference to the erstwhile Prime Minister is
to be construed as a reference to the State President.
7 S 19(l)(b). See the discussion below at 310 et seq.
293
short, where general affairs are involved, he acts as an executive president

rather than a Westminster president.
This change in emphasis also manifests itself in the omission of the provi
sion in the Constitution in terms of which it was an offence to commit any
act which violated the State President’s dignity or injured his honour.8 This
is a clear indication that the State President is deemed to have descended
from his neutral, apolitical position into the rough and tumble of politics.
II ELECTION, TERM OF OFFICE AND REMOVAL OF THE

STATE PRESIDENT
1 Election
The election of the State President is governed by sections 7 and 8 of the
Constitution. Like his predecessor, he is not popularly elected but is elected
by an electoral college consisting of Members of Parliament. The Chief Justice
acts as chairman9 but is not a member of the electoral college and does not
possess a vote. The electoral college is composed of 50 members of the House
of Assembly, 25 from the House of Representatives and 13 from the House
of Delegates — 88 in all.10 No provision is made for proportional represen
tation of political parties in the delegation of each of the Houses: the majority
in each House will therefore elect the entire complement from that House.11
Furthermore, if any House should decide to boycott the proceedings and to
nominate fewer members than its quota, or to nominate none at all, the elec
toral college will be composed of such members as have been nominated,
since no quorum is prescribed.12 This means that non-participation by one
or even two of the three Houses cannot frustrate the election of a State Presi
dent. Only directly elected Members of Parliament may serve on an elector
al college; nominated and indirectly elected members do not qualify.13
The provision fixing the numbers of delegates each House is entitled to
appoint to the electoral college is entrenched, which means that it can be
amended only if all three Houses agree to the amendment.14 The possibility
that one of the Houses can ‘hi-jack’ the electoral college is therefore effec
tively excluded.
The composition of the electoral college is such that the majority party
in the House of Assembly will, in effect, elect the State President. As Booysen
and Van Wyk point out, a departure from this rule will be possible only if
there is a coalition government in the House of Assembly.15
8 S 13 of Act 32 of 1961.
9 S 7(l)(a).
10 S 7(l)(b).
11 Ibid.
12 Ibid.
13 Booysen and Van Wyk Die ’83-grondwet (1984) at 54 see in this provision an ac
knowledgment of the principle that the State President must be appointed by the
democratically elected Members of Parliament and therefore that the will of the elec
torate must prevail. However, the failure to provide for proportional representation
in the electoral college means that it is simply the will of the white voters which prevails.
15 Op cit at 54. They give the example of a House of Assembly comprising 60 represen
tatives from party A, 70 from party B and 36 from party C. Parties A and C form
The State President 295
The election of the State President is held at a time and place determined
by the Chief Justice. At least 14 days’ notice of the election must be given
in the Government Gazette.16 The first election had to take place within seven
days after the commencement of the first session of Parliament after the in
urement of the new Constitution.17 Likewise, when a general election has
been held after Parliament has been dissolved, the election of the new State
President must take place no more than seven days after the commencement
of the next session of Parliament.18 Where a new State President is to be
elected because the State President has died or has vacated his office for some
other reason, the election must take place no longer than a month after the
office becomes vacant.19 If, however, the office is vacant because the State
President has submitted his resignation to the Chief Justice in terms of sec
tion 9(4), and has indicated that he will vacate his office at least one month
after the date on which he has submitted his resignation, the election of his
successor must be set down for a date earlier than the day on which the resig
nation is to take effect.20 On the other hand, if the State President has been
removed from office in terms of section 9(3), the electoral college must elect
a successor immediately. 21
A candidate for the office of State President must be qualified to be nomi
nated or elected as a member of a House of Parliament and to take up his
seat as a member.22 This provision was taken directly from the 1961 Consti
tution.23 If interpreted literally, it would seem to mean that the candidate
must in fact be a Member of Parliament at the time of his election, since
the requirement that he must not only be qualified to be nominated or elect
ed as a member, but must be qualified to take up his seat implies that he
has in fact been nominated or elected,24 and, further, that he has taken the
prescribed oath.25 A further implication of a literal interpretation of the sec
tion would be that the State President must remain a Member of Parliament
after his election.26 This interpretation has, however, never been adopted in
South Africa. The approach has always been that a candidate need not actu
ally be a Member of Parliament at the time of his election, but need only
be qualified to stand for election.27 This interpretation is also in keeping with
a coalition government and agree that 34 representatives from A and 16 from C will
form the House of Assembly’s contingent in the electoral college. But the representa
tives of party C decide to support X, the candidate put forward by the House of
Representatives, rather than Y, the candidate agreed on by parties A and C. If the
House of Delegates also supports X’s candidature, he will be elected. It is obvious,
though, that the chances are extremely remote that something like this will happen.
16 S 7(2), read with s 7(4).
17 S 7(3)(a).
18 S 7(3)(b).
19 S 7(3)(c).
20 See the proviso to s 7(3)(c).
21 S 7(4).
22 S 7(5).
23 S 8(4), as amended by s 3(b) of Act 101 of 1980. Initially, candidates for the presiden
cy had to possess the qualifications of a senator.
24 Ss 41, 42 or 43.
25 S 57. Also see ss 54 and 56.
27 See JP VerLoren van Themaat Staatsreg 2 ed at 265, 3 ed at 229; Ellison Kahn The
New Constitution at 18.
the requirement that a candidate for the office of State President who oc
cupies a public office in respect of which he is remunerated out of state
revenue must vacate that office if he is elected.28 It is, however, not altogether
clear whether a Member of Parliament occupies a public office in this sense;
but if he does, then he must resign if he wishes to stand as State President.
The election procedure is governed by section 8. First of all, the chairman
of the meeting of the electoral college calls for nominations.29 Every nomi
nation must be submitted in the prescribed form and must be signed by two
members of the electoral college and by the nominee.30 No debate is permit
ted at the election:31 the names of the nominees are announced by the chair
man, and the voting proceeded with, unless only one candidate has been
nominated, in which case the candidate will be declared duly elected by the
chairman.32
Voting is by secret ballot, each member of the electoral college possessing
a single vote. If one candidate receives a majority of the votes cast, he is
declared duly elected by the chairman.33 If no candidate receives a clear
majority of votes, the candidate who received the least votes is eliminated
and another ballot held. The procedure is repeated until one candidate receives
a clear majority.34 When there are only two candidates, or when only two
remain after the rest have been eliminated in accordance with the provisions
of section 8(6), and these candidates receive the same number of votes, a
further meeting of the electoral college must be convened.35 If the third meet
ing of the college still yields no result, the electoral college is dissolved and
a new electoral college convened to elect a State President.36
When the State President assumes office he must swear the oath of office
laid down in section 11.
2 Term of Office
Whereas the previous State President remained in office for seven years and
was not dependent on the vagaries of political change,37 the 1983 State Presi
dent’s term of office is directly linked with the life of the Parliament that
elected him. Section 9(1) provides that the State President remains in office
for the duration of the Parliament from which the electoral college which
elected him was constituted;38 section 9(2) adds that he remains in office af
ter the dissolution of that Parliament until his successor has been elected.
28 S 7(6).
29 S 8(1). The chairman is the Chief Justice or a judge of appeal appointed by him -
s 7(1)(a).
30 S 8(2). The nominee may also signify his acceptance of the nomination by letter or
telegramme.
31 S 8(3).
32 S 8(4).
33 S 8(5).
34 S 8(6)(a). Where two or more candidates receive the same number of votes, but fewer
than the other candidates, the electoral college must hold a separate ballot, repeated
as often as is necessary, to determine which of the candidates must be eliminated for
the purposes of subsection (a) - s 8(6)(b).
35 S 8(7)(a).
36 S 8(7)(b).
37 S 10(l)(a) of Act 32 of 1961.
38 In terms of s 7(3)(b), thus for a maximum of five years.
The previous State President was not automatically eligible for re-election,3’
but there was no qualification in regard to the number of terms he could
40 Section 9(1) of the 1983 Constitution provides expressly that the State
serve.39
President is eligible for re-election but again nothing is said about the num
ber of terms he may serve.
The State President will vacate his office if he dies, resigns,41 no longer
possesses the qualifications required of him42 or is removed from office by
Parliament.43 The State President will become subject to the disqualifica
tions mentioned in section 9(2)(a) if, for example, he becomes insolvent, is
convicted of an offence and is sentenced to at least twelve months’ imprison
ment without the option of a fine, renounces his South African citizenship,
or, arguably, is declared to be mentally disordered by a competent court.44
The last-mentioned disqualification is also covered to a certain extent by sec
tion 9(2)(b), which provides that the State President may be removed from
office on the grounds of misconduct or inability to perform the duties of
his office. Since section 9(2) simply provides that the State President vacates
his office if he becomes disqualified in terms of section 7(5) or is removed
in terms of section 9(3), the implication is that the office is vacated auto
matically and that no further action on the part of Parliament is required.
Presumably a State President who becomes insolvent, is convicted of a seri
ous offence or renounces South African citizenship, will resign anyway.
However, if he is declared insolvent on 1 June, for example, and his resigna
tion takes effect only on 1 July, the question is whether any act performed
by him between 1 June and 1 July will be valid. Likewise, if he refuses to
resign, Parliament will presumably take steps to have him removed on the
ground of misconduct: here, again, it may be argued that acts performed
by him during the interim period after he became unfit for office but before
he was formally removed will be invalid.45 The equivalent provision in the
1961 Constitution was somewhat clearer:46 it was not provided that the State
President would automatically vacate his office; the House of Assembly had
to take steps to have him removed from office.
3 Removal from Office

As mentioned above, the State President may be removed from office on
the ground of his misconduct or inability to perform the duties of his office
effectively.47 The 1961 Constitution contained a similar provision.48 As be
fore, there is no definition — and in fact no indication — of what consti
tutes misconduct. VerLoren van Themaat49 suggests that the sanction
contained in the 1961 Constitution could have been employed where the State
39 S 10 of the 1961 Constitution.

40 Compare the position of the President of the USA, who may serve only two consecu
tive terms of office.
41 By submitting his resignation to the Chief Justice in writing - s 9(4).
42 S 9(2)(a).
43 S 9(2)(b).
44 See s 54.
46 See s 8(4) of Act 32 of 1961, read with s 10(l)(b).
47 S 9(2).
48 S 10 of Act 32 of 1961.
49 Staatsreg 3 ed by M Wiechers at 231.
President refused to comply with recognized conventions, such as the con

vention that he was bound to assent to legislation duly passed by Parliament
or that he was obliged to ask the leader of the strongest party in the House
of Assembly to form a government. Many of these conventions have now
been embodied in the Constitution itself.50 There seems little doubt that the
State President’s refusal to adhere to a convention expressly enacted in the
Constitution will constitute misconduct for the purposes of section 9. The
position in regard to unenacted (‘genuine’) conventions is not clear, but since
section 88 provides that constitutional and parliamentary usages existing im
mediately prior to the commencement of the 1983 Constitution remain in
force except in so far as they are irreconcilable with the provisions of the
Constitution, the State President will probably be able to argue that his non-
compliance with a recognized convention was justified in the light of this
proviso.
The procedure for removal of the State President is often referred to in
the popular media as ‘impeachment’.51 However, this is historically inac
curate, certainly as far as the 1961 Constitution was concerned, under which
the State President was a typical ‘Westminster’ head of state closely akin
to a constitutional monarch. Impeachment in English law was a procedure
adopted, not against the King,52 but against his ministers.53 The use of the
term would be rather more appropriate in terms of the 1983 Constitution,
since the State President’s position is now more clearly akin to that of the
President of the United States of America, where the process of removal is
also referred to as ‘impeachment’. However, the actual term used in the South
African Constitution is ‘removal’.
The procedure for removal of the State President is rather similar to that
laid down in the 1961 Constitution.54 Under the 1961 Constitution a petition
of 30 members of the House of Assembly to the Speaker was required, re
questing the appointment of a committee of Parliament55 to investigate the
alleged misconduct or incapacity. The committee was appointed by resolu
tion of the House of Assembly and no debate was permitted in the House
in connection with the appointment of the committee. If the committee found
that there were grounds for the State President’s removal, it reported thus
to Parliament and Parliament then passed a resolution dismissing the State
President from office.
The procedure laid down by section 9 of the 1983 Constitution requires
that the investigation into the alleged misconduct or inability to perform the
duties of office must be initiated by a petition to the Speaker of Parliament
50 See ch 9 above, and chs 16 and 17 passim.

51 Eg when there were moves afoot to attempt to dismiss State President BJ Vorster
in 1979.
52 ‘The King can do no wrong’ — see the discussion at 44 above.
53 See above at 40 and 44. Note that the minister concerned was impeached by the House
of Commons but tried by the House of Lords.
54 S 10 of Act 32 of 1961.
55 Until the abolition of the Senate in 1980, this committee was composed of all the mem
bers of both Houses; thereafter only the members of the House of Assembly were
involved.
signed by not fewer than half the members of each House, requesting that
a committee of Parliament be appointed in accordance with the provisions
of section 64. Again no debate is permitted in the Houses in connection with
the resolution in question. A joint committee must then be convened to in
vestigate the issue. This no longer means a committee composed of all the
Members of Parliament, but of representatives of all the Houses.56 The com
mittee then brings out its report, which must be considered by each of the
Houses. If, after consideration of the report, the Houses are of the opinion
that the procedure for removal must be proceeded with, they must request
the Chief Justice to convene an electoral college as prescribed in section 7
to declare that the State President be removed from office. The Chief Justice
must convene an electoral college if he receives such a request from all three
Houses. The electoral college then considers the resolution, but again no de
bate is permitted. It is clear that the procedure for removal of the State Presi
dent is even more complicated and difficult than it was under the 1961
Constitution, requiring, as it does, the co-operation of all three Houses on
at least three separate occasions. There appears to be no valid reason why
such a cumbersome procedure is necessary.57
Ill ACTING STATE PRESIDENT

The permanent office of Vice State President was instituted for the first time
in 1980.58 The main functions of the Vice State President were to act as chair
man of the President’s Council and to serve as Acting State President if,
for some reason, the State President was unable to perform his duties.59 If
the Vice State President was unable to act as State President, the Speaker
of the House of Assembly would do so, and failing him the Executive Coun
cil appointed someone to act.60
The Vice State President was elected in exactly the same way as the State
President, that is, by an electoral college consisting of members of the House
of Assembly, at a meeting presided over by the Chief Justice or another judge
appointed by him. He had to possess the same qualifications as a candidate
for the presidency, held office for seven years, could be removed from office
on the ground of misconduct or inability to perform his duties and had to
swear the oath of office.
The 1983 Constitution makes no provision for a permanent Vice-President,
but contains a number of possible arrangements for the appointment of an
Acting State President.61 For the first time, the State President himself may
56 See the discussion in ch 17 at 343 et seq of the role to be played by committees in

the new system.
58 S 5 of Act 101 of 1980.
59 Prior to 1961 the Chief Justice had acted as Governor-General if the latter was unable
to perform his duties. With the change-over to a republican form of government it
was felt that it was not desirable for judges to perform executive functions and the
President of the Senate was designated first substitute, followed by the Speaker of
the House of Assembly, and if he, too, was unable to act as State President, by some
one appointed by the Executive Council. See VerLoren van Themaat Staatsreg 1 ed
at 254, 2 ed at 267.
60 S 11 of Act 32 of 1961 and s 6 of Act 101 of 1980 — see VerLoren van Themaat 3 ed
at 231.
61 In s 10.
appoint a substitute. Section 10(1) does not prescribe the conditions under
which the State President may nominate a member of the Cabinet to act on
his behalf: it merely provides that he may do so whenever, for any reason,
he is unable to perform the duties of his office. Booysen and Van Wyk62
take the view that the State President need not be ill or abroad to appoint
a substitute, but may appoint an Acting State President to take over some
of his functions or even to appoint a permanent Acting State President to
assist with the State President’s ceremonial duties, for example. This may
be inferred from the fact that the Constitution provides for no time limit
after which the State President’s appointment of a substitute will lapse.
However, when it is impossible for the State President himself to nominate
a substitute; when the person nominated by the State is, for some reason,
unable to act; or when the office of State President is vacant and there has
been no substitute nominated or the nominee is unable to act, the task of
appointing an Acting State President devolves upon the Cabinet.63 The Cabi
net must designate one of its number to act until the State President himself
or his nominee can take over or until a State President has been elected and
has assumed office, as the case may be. The Cabinet therefore cannot ap
point an Acting State President for an indefinite period. Moreover, if an
Acting State President has been appointed by the Cabinet, and the Speaker
is of the opinion that neither the State President nor his nominee will be able
to resume his duties within 60 days after the inception of the incapacity, he
must communicate this opinion in writing to the Chief Justice and to the
Acting State President (the member of the Cabinet).64 An electoral college
must then be convened in accordace with the provisions of sections 7 and
8 to elect an Acting State President from the ranks of Cabinet members.
If such a designation is made, any appointment or designation made in terms
of subsection (1) or (2) - that is, whether by the State President or by the
Cabinet — lapses,65 and the new appointee will serve as State President until
the State President himself can resume his duties or until a new State Presi
dent has been elected and has assumed office.66 As a last resort, provision
is made for the Speaker to act as State President.67
As Booysen and Van Wyk point out,68 it is appropriate that a member
of the Cabinet should act as State President, since the State President is
primarily the head of the executive. It appears hardly likely that it would
ever become necessary for the Speaker to act as State President.
IV THE STATE PRESIDENT’S ROLE IN THE LEGISLATIVE SPHERE

1 Introduction
In terms of the 1961 Constitution the State President, like the British
monarch, formed part of Parliament,69 even though he was not a Member
62 Op cit at 57.
63 S 10(2).
64 S 10(3)(a).
65 S 10(3)(b).
66 S 10(3)(c).
67 S 10(4).
68 Op cit at 57.
69 Cf the British concept of the King-in-Parliament, whereby Parliament is constituted
by the King, the House of Lords and the House of Commons.
of Parliament. He was, in fact, one of the three (later two, after the aboli
tion of the Senate) constituent parts of Parliament. However, the 1983 Con
stitution states that Parliament consists of the three legislative chambers70
(the House of Assembly, the House of Representatives and the House of
Delegates) and that the legislative power of the Republic is vested in the State
President and the Parliament of the Republic,71 which together constitute
the sovereign legislative authority in and over the Republic.72 As Venter73
points out, it must now be more correct to refer, not to parliamentary
sovereignty, but to legislative sovereignty or supremacy in the South Afri
can context.
The State President’s most important legislative function under the 1961
Constitution was to assent to legislation.74 Because he was bound by con
vention to assent to legislation duly passed by Parliament, this function was
little more than a formality. The power to legislate by proclamation was,
of course, a more substantial power.75 Like several of the State President’s
other statutory powers, this power has both legislative and executive charac
teristics: it is legislative in both form and effect, but involves the participa
tion of the executive, since proclamations are issued on the advice of or in
consultation with the executive, as the case may be.76 There are other exam
ples of such ‘hybrid’ powers, which relate at first glance only to the legisla
tive function, but prove on closer examination to have executive overtones.77
In terms of the new Constitution, the State President possesses extensive
authority in the legislative sphere, notably in regard to the determination of
what are own affairs and what general affairs, and in the reference of con
flicts between the legislative chambers to the President’s Council.
2 Own Affairs and General Affairs

As mentioned above,78 the dichotomy between own affairs and general af
fairs is, in theory, the most important feature of the 1983 Constitution.
70 S 37(1).
71 S 30.
72 Francois Venter ‘Die Grondwet van die tweede Republiek van Suid-Afrika’ 1985
THRHR 253. Also see ch 6 above, in which the topic of sovereignty is dealt with in
detail, and ch 17 below.
73 At 275.
74 In terms of s 64 of Act 32 of 1961. See at 241 above.
75 The English kings had no original legislative powers (see above at 30) but monarchs
such as Henry VIII managed to induce Parliament to invest them with wide-ranging
powers to legislate by proclamation. These so-called ‘Henry VIII’ statutes can give
rise to abuse, and have been widely criticized because they imply an encroachment
by the executive (on whose advice the head of state acts in these matters) on the sphere
of the legislature, and a concomitant abdication by the legislature of its own powers.
Examples of such authorization abound in South African law, particularly in the field
of black administration. See the discussion at 304-305.
76 See the discussion of this last-mentioned aspect later on in this chapter.
77 For example, the State President’s power to dissolve Parliament in terms of s 39(2),
seems to be, if not a legislative function as such, a function relating purely to the legis
lative process: but this provision is not one which is expressly mentioned in section 19(2),
so that the power is one which must arguably be exercised in consultation with the
Cabinet. See below at 306.
78 In ch 14.
A
i
Although the first schedule to the Constitution contains a list of topics which
are to be regarded as own affairs of a particular population group, this list
is not the final word: first of all, so many of the topics are subject to qualifi
cations; secondly, the State President has the sole discretion to decide whether
a matter is an own affair of a population group or a general affair.
Section 16(l)(a) provides:
Any question arising in the application of this Act as to whether any particular
matters are own affairs of a population group shall be decided by the State Presi
dent, who shall do so in such manner that the governmental institutions serving
the interests of such population group are not by the decision enabled to affect
the interests of any other population group, irrespective of whether or not it is
defined as a population group in this Act.
■
lake te verrig. waar

moeitemeturinerlno.monddfOOflhe1
The distinction between own affairs and general affairs, as it affects various
sectors of the community, is based on ideological rather than legal consider
ations. Since the various population groups are not in all respects physically
separate or independent from one another, it will prove very difficult to iso
late interests of one group which truly do not impinge upon the interests of
another. For example, any decision made by Whites in regard to education
............
or agriculture, which are ‘own affairs’ as defined in the schedule, cannot

but affect the interests of other population groups as regards education or
agriculture as well. Since the categories of own affairs stated in the schedule
are not final, the State President’s role in this sphere will be a crucial one.
Section 16(2) provides that, when the State President has taken a decision
relating to the classification of own affairs or general affairs in a particular
case, he may (not must, or shall) make his decision known by publication
in the Government Gazette or in another manner as he deems fit, but he must
advise the Chairman of each Ministers’ Council of his decision. Even if he
has decided that a particular matter falls within the category of own affairs
of one population group, and has made his decision known by publication
in the Gazette or otherwise, this does not mean that the population group
has carte blanche to legislate about the matters listed in the Gazette. Before
a House can deal with legislation as own-affairs legislation, each bill must
be endorsed by the State President as own-affairs legislation.79
Furthermore, section 31(2) provides for the possibility that an amendment
to a bill which has been endorsed as own-affairs legislation, may have the
effect that the bill no longer deals purely with the own affairs of the popula
tion group in question. Such a bill may not be presented to the State Presi
dent for his assent unless the proposal for the amendment is withdrawn or
not agreed to, or, if the bill is passed before the certificate has been tabled,
unless the House adopts a reconsidered amendment in respect of which the
State President’s certificate is issued before it is adopted.
A bill passed by a House under section 31(1) or (2), must, when it is present
ed to the State President for his assent, be endorsed with the certificate of
the Chairman of the House that it has been passed in accordance with the
requirements of the section.80 Before the State Preident takes a decision in
79 S 31(1), read with s 16(2).

80 S 31(3).
this regard, he may refer the question to the President s Council for its ad
vice;81 he must, however, consult the Speaker and the Chairmen of the respec
tive Houses before issuing a certificate endorsing a bill as own-affairs
legislation.82 Presumably, since section 16 is not one of the provisions spe
cifically mentioned in section 19, he must also act in consultation with the
Cabinet when taking such a decision. The State President possesses powers
of an executive nature in this regard as well. These will be dealt with under
the appropriate heading.83
A large number of potential questions may arise in this regard. For exam
ple, may the State President refuse to endorse as own-affairs legislation a
bill which deals with a topic listed in the first schedule? In this regard it is
of importance to note that the first schedule is an entrenched provision,84
which means that it cannot be amended without the assent of all three Houses.
This would seem to indicate that the State President cannot ‘reclassify’ a
matter which falls unambiguously within the sphere of own affairs of a par
ticular population group, but may only interpret the Act in cases of uncer
tainty. There seems no reason, further, why the State President should not,
at some time in the future, decide that an issue which he has previously clas
sified as the own affair of one population group should, in the light of al
tered circumstances, now be classified as a general affair.85 There is no
provision in the Constitution which states that the State President’s decision
in regard to an own affair is final, or that he may not retract it before the
legislation in question has actually been passed, although it may certainly
be argued that once he has actually endorsed a bill as dealing with own af
fairs, he is functus officio in relation to that bill. Obviously political con
siderations will play a very important role here.
Booysen and Van Wyk86 raise the possibility that a certain topic may be
an own affair in respect of one population group only. If the possibility ex
ists, then a necessary corollary would be that the State President may place
the own affairs of that one population group on a territorial basis.
The most awkward aspect of the classification of own affairs and general
affairs lies in the fact that the State President’s decision is final and that no
court of law can challenge it. While it is conceivable that a member of one
population group may, in theory, have locus standi to challenge a decision
that a certain matter affects the interests of another population group only,
no court will be able to entertain his claim, no matter how well-founded it
may be in factual terms. One’s approach to own affairs and general affairs
would also depend largely on one’s ideological approach.87 The State Presi
dent’s task will be to reconcile the various ideological approaches and to find
a way of satisfying the demands of the different ‘factions’.
81 S 17(1).
82 S 17(2). Although no court may query the validity of the State President’s decision
as such, the Supreme Court may enquire whether the provisions of s 17(2), relating
to consultation, have been complied with. The manner of consultation is left to the
State President’s discretion.
83 See at 308 below.
84 See s 99(3).
85 He would presumably have to consult the Speaker and Ministers’ Councils again -
see Booysen and Van Wyk op cit at 88.
86 Op cit at 89.
87 If, like John Donne, one holds that “No man is an island” there can be no own af
fairs by definition!
3 Assent to Legislation
In terms of section 33(1), the State President must assent to legislation be
fore it can become law. This power is one which the State President exer
cises without reference to any other body88 but section 33 itself provides
expressly that he may withhold assent only if the bill has not been duly
passed.89 This is yet another example of a convention which has been enact
ed in the Constitution. The third possibility which existed in terms of the
1961 Constitution,90 that the State President could return the bill to Parlia
ment with suggested emendations, has now fallen away, except in so far as
he may, in terms of section 33(2), return an own-affairs bill to the House
in question if it is amended by that House and the State President is of the
opinion that the amendments relate to general affairs.91 In all other respects
^.(noeiteinetuflnerlng.monddrooflheid,
the State President’s legal position in regard to the approval of legislation

W
*
is the same as it was under the 1961 Constitution. The State President was
likntaketeverrio,
bound by convention to assent to bills duly passed, and retained the reserve
power of veto only where the legislation had not been so passed. Now, like
wise, the State President has no general power of veto and may refuse his
assent only where there has been some irregularity. Even the ‘exceptional
case’ expressly set out in section 33(2) may be construed as one where the
..„UJ
legislation has not been duly passed.

.
4 Reference of Legislation to President’s Council

General-affairs legislation must be passed by all three Houses of Parliament.92
If a conflict arises among the Houses, the outcome will depend, first of all,
on whether the proposed legislation relates to the repeal or amendment of
one of the ‘entrenched’ sections.93 If it does, the legislation lapses, unless
the conflict can be resolved among the Houses themselves.94 If it does not,
the State President may refer the bill to the President’s Council for its deci
sion.95 The State President is not obliged to do this, however, and if he de
cides not to refer the bill to the Council, it lapses. He may even withdraw
the reference at any time before the Council has given its decision.96 In this
regard the State President is therefore in a position to exercise considerable
influence in the legislative process.
5 The Power to Legislate by Proclamation

Like his predecessor, the State President is regarded as the ‘supreme chief’
of the black population.97 As such, he has considerable legislative powers
88 S 19(2).
89 “dealt with as provided in this Act”.
90 See s 64 of Act 32 of 1961 and s 95 of the Standing Orders.
91 S 31(2). If the State President certifies that the amendments deal with general affairs
the bill may not be resubmitted to him until the amendments have been retracted -
see above at 300.
92 See s 37(1), read with ss 30, 33(1) and 34(1). However, s 37(2) provides for the con
tingency that Parliament may continue to function even though one, or even two,
Houses are unable to do so.
93 S 99(3).
94 S 99(4).
95 S 32(1).
96 Ibid.
97 S 93 (s 111 of Act 32 of 1961). According to VerLoren van Themaat 3 ed at 241, fn 90,
this power originated in English law during the time of Henry VIII, who contrived
____________ The State President 30$
and may even repeal or amend acts of Parliament by proclamation. The State
President also possesses wide-ranging legislative powers in respect of South
West Africa/Namibia in terms of section 38 of the South West Africa Con.
stitution Act 39 of 1968. The National States Constitution Act 21 of 1971
even authorizes the State President to promulgate legislation creating con
stitutions for the various National States (that is, black territories within South
Africa which enjoy a certain degree of constitutional autonomy but not full
independence). He does not, however, possess the power to retract the legis
lative freedom of these states once he has conferred it, as became apparent
from the case of Government of the Republic of South Africa v Government
of KwaZulu,9899 which followed on a State President’s Proclamation purporting
to change the boundaries of the territory over which the KwaZulu authorities
exercised jurisdiction. It must be emphasized, however, that these are not
original powers but powers conferred on the State President by Parliament.
Furthermore, the proclamations issued under this head constitute subordinate
legislation which is subject to judicial control.”
Although these powers may be classified as legislative because of their form
and effect, a water-tight compartmentalization is not possible. Under the
1961 Constitution the State President acted on the advice of the Executive
Council; under the 1983 Constitution he must exercise the powers relating
to the administration of black affairs in consultation with the Cabinet.100
6 Miscellaneous Powers Relating to the Legislature
Like his predecessor, the State President convenes and prorogues Parlia
ment.101 Unlike his predecessor, who acted on the advice of the Prime
Minister, the State President takes this decision in consultation with the
Cabinet.102
to persuade the English Parliament to authorize him to repeal or amend Acts of Parlia
ment. However, this kind of power is virtually unknown in the United Kingdom to
day; the closest parallel is perhaps the phenomenon of Orders-in-Council which are
issued by the monarch and which also qualify as delegated legislation. See O Hood
Phillips Constitutional and Administrative Law 6 ed at 560-561. As far as South Africa
is concerned, the power of the Governor-General to act as supreme guardian of Blacks
was conferred in 1927 in terms of s 25 of the Native Administration Act 38 of 1927
(now known as the Black Administration Act). See, in general, D Welsh ‘The State
President’s Powers under the Bantu Administration Act’ 1968 Acta Juridica 81; F
Venter ‘Die Staatspresident se Posisie in die Bantoestaatsreg’ 1972 THRHR 330, and
Die Suid-Afrikaanse Bantoestaatsreg unpublished doctoral thesis, PU vir CHO 1978
at 549; D H van Wyk ‘Owerheidsinstellings vir Nie-Blankes in die Suid-Afrikaanse
Staatsreg’ 1975 THRHR 1 at 14.
98 1983 1 SA 164 (A).
99 It may be said that Greenberg J went a little too far when he said, in R v Maharaj
1950 3 SA 187 (A) at 194D: “It appears to me that, subject to the provisions of sec
tion 26(1), the Governor-General is given powers of legislation, within the area con
cerned, equal to those of Parliament, that it is competent for him to repeal the
Common Law or any Statute Law. . . .” While it is true that such proclamations
may change the common law and repeal or amend statutes, they are subject to the
testing power of the courts, which parliamentary enactments are not. Furthermore,
the State President’s powers in terms of the 1927 Act may be curtailed by the provi
sions of later enactments: Die Bestuursraad van Sebokeng v Tlelima 1968 1 SA 680
(A); Government of the Republic of South Africa v Government of KwaZulu supra.
100 Black affairs are general affairs. The administration of black affairs, ie the execu
tion of the proclamations, is obviously an executive function.
101 S 38(1). This is a power which has its origin in the allegiance relationship.
102 S 38 is not one of the sections listed in s 19(2) in respect of which the State President
does not act on the advice of or in consultation with the executive, but this seems
to be a case where the exclusion may be implied — see s 19(2).
Section 39 sets out the circumstances in which the State President may or
must dissolve Parliament. He may dissolve Parliament by proclamation in
the Gazette at any time103 but must dissolve Parliament or resign from office
if each House in the same ordinary session of Parliament passes a motion
of no confidence in the Cabinet within a period of 14 days104 or rejects a
money bill relating to state departments controlled by Cabinet ministers.105
If any one House passes a motion of no confidence in the Cabinet106 or re
jects a money bill as described above107 or if the House is unable to function
as set out in section 37(2),108 or if the Ministers’ Council in question requests
a resolution,109 the State President may dissolve that House. The State Presi
dent must dissolve the House or reconstitute the Ministers’ Council for that
House,110 if the House has passed a motion of no confidence in the Ministers’
Council for that House111 or has rejected a money bill relating to state depart
ments controlled by that Ministers’ Council.112 Section 39(3) is one of the
provisions listed in section 19(2), but section 39(2) is not. The question there
fore arises whether the State President must act in consultation with the Cabi
net when dissolving Parliament in terms of section 39(2)(a) — for example,
in order to call a general election before the life of that Parliament has ex
pired. It may be argued that this, too, is a case where the requirement of
consultation has been excluded by necessary implication. On the other hand,
it is section 39(2)(b) which contains the enacted convention (in somewhat
adapted form) that a government should resign when Parliament has passed
a motion of no confidence in it, and that if it does not, the head of state
should either dissolve Parliament and call a general election, or ask some
one who enjoys the support of the House to form a government. Sec
tion 39(2)(a) thus does not envisage the kind of situation where consultation
with the Cabinet would serve no purpose. If the State President decides to
call an early election for strategic reasons, it would make sense for him to
consult the Cabinet.
The interpretation of section 39(3) also gives rise to certain questions. While
subsection (b) spells out the circumstances in which the State President must
dissolve a particular House, subsection (a) confers a discretion on him
whether to dissolve the House or not. It is in this connection that conven
tions may play a part. For example, it is conceivable that the government
will not enjoy the unqualified support of the House of Representatives and
the House of Delegates, despite the presence of representatives from these
Houses in the Cabinet. A motion of no confidence in the Cabinet is there
fore no indication that any purpose would be served by dissolving that House
since, presumably, the Ministers’ Council for that House will still enjoy the
103 S 39(2)(a).
104 S 39(2)(b)(i).
105 S 39(2)(b)(ii).
106 S 39(3)(a)(i).
107 S 39(3)(a)(ii).
108 S 39(3)(b)(iii).
109 S 39(3)(b)(iv).
110 S 39(3)(b).
Ill S 39(3)(b)(i).
112 S 39(3)(b)(ii).
support of the majority in the House. However, such a move could certainly
be interpreted as a very severe criticism of the policies and administration
of the White-dominated government, and would serve as a warning to the
State President that the system is not functioning successfully. The remedy
for this is political rather than legal.
The passing of a motion of no confidence in the Cabinet by the House
of Assembly is a different matter altogether. This would be tantamount to
a rejection of the policies of the State President and his Cabinet by the peo
ple who elected him. As Booysen and Van Wyk point out,113 a vote of no
confidence in the Cabinet really means, in the context of the 1983 Constitu
tion, a vote of no confidence in the State President. In this regard he must
be seen in his prime ministerial rather than his presidential role.
The discretion conferred on the State President whether to dissolve a par
ticular House which has adopted a vote of no confidence in its Ministers’
Council or has rejected a money bill, or to re-constitute the Ministers’ Coun
cil, is pure Westminster. Nothing is said about the way in which he is to ex
ercise this option — he is not bound by the Constitution to take the advice
of the Ministers’ Council here.114 Whether he will be bound by convention
to favour one option rather than the other is an open question; it has be
come customary for Westminster heads of state to dissolve the House and
call an election rather than to form a new government. Whether it may be
said, however, that there would be any conventional preponderance in favour
of this alternative in connection with section 39(3)(b), is a moot point.
The State President is responsible for the nomination of members of each
of the Houses of Parliament:115 four to the House of Assembly (one from
each province);116 two each to the House of Representatives117 and the House
of Delegates;118 he is also empowered to make regulations in regard to the
election of indirectly elected members of the Houses.119 He is also respons
ible for the appointment of delimitation commissions to divide the Republic
into electoral districts.120 He may sit and speak in any House, but may not
vote;121 he may (by proclamation in the Gazette) summon any House for
the dispatch of business in connection with the own affairs of that popula
tion group while Parliament is not in session, and then prorogue the House
in the same way.122 The State President may call a joint sitting of all the
Houses if he deems it desirable, and must call it if requested to do so by
all three Houses.123
113 Op cit at 68.

114 He may, of course, consult the Ministers’ Council in order to assist him to make
his choice.
115 The phenomenon of indirectly elected and nominated members is discussed at 330
below.
116 S 41(l)(b).
117 S 42(1 )(b).
118 S 43(l)(b).
119 S 46(1).
120 S 48(1).
121 S 65(1), as amended by s 9 of Act 105 of 1984.
122 S 66.
123 S 67. He convenes such a sitting by message to the Houses. No resolution may be
adopted at such a joint sitting, at which the Speaker presides. See the discussion in
ch 17 below.
Finally, section 86 provides that any proposal made in a House relating
to the making available of state revenue or of taxes or levies must be made
by a minister, unless the provision has been recommended by the State Presi
dent during the same session. Such a recommendation will usually be con
tained in the State President’s opening address.
V THE STATE PRESIDENT’S EXECUTIVE ROLE
1 Prerogatives
Prerogatives may be defined as discretionary powers of a common-law124
rather than a statutory origin. Not all the royal prerogatives of English law
found their way into South African constitutional law,125 but a good many
did. Like the 1961 Constitution,126 the 1983 Constitution contains a list of
powers of the State President:127 to address any House, or all the Houses
at a joint sitting; to confer honours; to appoint and to accredit, to receive
and to recognize ambassadors, plenipotentiaries, diplomatic representatives
and so on; to pardon or reprieve offenders and to remit fines, penalties and
forfeitures; to enter into and ratify international conventions, treaties and
agreements; to proclaim or terminate martial law; to declare war and make
peace; to make appointments under statutory powers conferred on him and
to exercise the powers or perform the functions assigned to him by the Con
stitution itself or any other law. The fact that these powers have been enumer
ated in a statute does not deprive them of their common-law status: they
are not changed into statutory powers and the common law determines the
way in which they must be exercised. The final provision in section 6(3),
namely subsection (h), that the State President may make the appointments
he is empowered to make by law, and to exercise powers conferred on him
by the Constitution or any other law, would seem to serve little purpose;
it merely states the obvious, which is that the State President may do what
he is authorized to do.128
The list of prerogative powers expressly stated in the 1983 Constitution is
identical to that contained in the 1961 Constitution.129 Section 7(4) of the
1961 Constitution has been re-enacted in section 6(4) of the 1983 Constitu
tion, which reads:
The State President shall in addition as head of the State have such powers and
functions as were immediately before the commencement of this Act possessed
by the State President by way of prerogative.
124 In this context, English common law.

126 S 7(3) of Act 32 of 1961.
127 S 6(3).
128 See Booysen and Van Wyk op cit at 58; Venter 1985 THRHR at
129 Cf s 7(3) of Act 32 of 1961. K at
Among the most important prerogative powers which have not been enact
ed in legislation or specifically mentioned in section 6(3), are the power to
appoint commissions130 and to issue passports.131
By convention,132 prerogatives were exercised by the State President on
the advice of the Executive Council (Cabinet). The position under the 1983
Constitution depends first of all on whether prerogatives are to be regarded
as own affairs or general affairs. Section 19(1) provides that in regard to
matters which are the own affairs of any population group, the State Presi
dent exercises his executive powers on the advice of the Ministers’ Council
in question, but in regard to general affairs he acts in consultation with those
ministers who are members of the Cabinet. Furthermore, section 88 provides
that existing conventions are retained except where they cannot be recon
ciled with the provisions of the Constitution.
Prerogative powers are not singled out as own affairs in the first sched
ule. They must therefore be regarded primarily as general affairs, although
they could conceivably be construed as own affairs in exceptional circum
stances.133 In the unlikely event that the State President may find himself
exercising a prerogative power in a matter which touches one population
group exclusively, he must act on the advice of his Ministers’ Council in true
Westminster tradition. In all probability, though, he will exercise preroga
tive powers in the general sphere, and will, according to section 19(1 )(b), have
to act only in consultation with his Cabinet and not on the advice of his Cabi
net Ministers. Now it may be asked whether the convention that he must
act on the advice of his Ministers will override the statutory provision and
therefore act as a more effective curb on the powers of the State President.
It is submitted that such an interpretation would make nonsense of the ex
press statutory provision. If the legislature saw fit to provide that in certain
circumstances the State President must act in consultation with the Cabinet
and not on its advice, in accordance with convention, it would seem that
its intention could not have been more clearly stated. The effect of the pro
vision requiring consultation only is that the State President himself will now
exercise the prerogative powers. Since the Cabinet is composed of the ‘King’s
men’, persons who may be presumed to support the State President’s poli
cies, the consultation clause cannot be regarded as an effective check on the
State President’s exercise of prerogative powers.134
130 See S v Naude 1975 1 SA 681 (A) at 697; DH van Wyk ‘Commissions’ LA WSA vol 2
at 279; W Bray “n Paar Gedagtes rakende die Getuie voor ’n Kommissie van Onder-
soek’ 1982 THRHR 390; Burger ”n Kommissie van Ondersoek en die Kommissie-
wet’ 1980 77? PK 56.
131 Sachs v Donges NO 1950 2 SA 265 (A); Tutu v Minister of Internal Affairs 1982
4 SA 571 (T); C W van Wyk ‘The South African Passport’ 1976 SA YIL 212 at 216;
G Erasmus ‘Die Wei en Wee van ’n Paspoort’ 1986 THRHR 330.
132 See ch 11 above. This convention was embodied in s 16(1) of the 1961 Constitution.
133 See Booysen and Van Wyk op cit at 59-60. In Boesak v Minister of Home Affairs
1987 3 SA 665 (C) however, Friedman J differed from these authors, holding that
there is a third category in addition to the categories of own affairs and general affairs.
The creation of a category sui generis does not appear to be justified on any reading
of the Constitution Act.
134 See DA Basson and H P Viljoen Studentehandboek vir die Suid-Afrikaanse Staats-
reg (1985) at 70-71, where the opinion is expressed that the State President will not,
after all, be free to disregard or overrule his Cabinet ministers.
2 Statutory Powers Exercised with the Co-operation of the Executive

As regards own affairs, section 19(l)(a) of the Constitution provides:
The executive authority of the Republic in regard to matters which are own affairs
of any population group is vested in the State President acting on the advice of
the Ministers’ Council in question;
In regard to general affairs, the State President must exercise his powers in
consultation with the Cabinet. Section 19(l)(b) reads:
The executive authority of the Republic in regard to general affairs is vested in
the State President acting in consultation with the Ministers who are members
of the Cabinet.
As is mentioned above,135 there is no clear dividing line between the State
President’s legislative and executive functions. Although there certainly are
areas which may be firmly categorized as either legislative or executive, there
is a considerable ‘twilight zone’ as well, and here the dividing line is based
at least partially on convenience. The extent to which the executive dominates
the constitutional scene is illustrated by section 19(2), which reads:
Except in sections ... or where otherwise expressly stated or necessarily implied,
any136 reference in this Act to the State President is a reference to the State Presi
dent acting as provided in subsection (I).137
Among the powers of the State President which cannot be said to be of an
exclusively executive nature, but which must be exercised with the co
operation of the executive nevertheless, are the following: he may address
any House of Parliament or all three Houses in a joint sitting;138 he decides
whether a matter is a general affair or the own affair of any population
group;139 he may consult the President’s Council on the question whether
a particular matter should be classified as the own affair of a population
group;140 he may refer a bill to the President’s Council in the event of con
flict among the Houses;141 before own-affairs legislation may be passed by
the House in question, it must be endorsed as such by the State President;142
he determines the times for the sessions of Parliament and decides when
Parliament is to be prorogued;143 he may dissolve Parliament;144 he appoints
the nominated members in the three Houses of Parliament;145 he decides on
the date for a general election,146 he appoints the delimitation commission;147
he may convene a joint sitting of the Houses of Parliament;148 he appoints
fifteen of the members of the President’s Council;149 and he may amend any
135 At 299.
136 My emphasis.
137 le on the advice of the Ministers’ Councils in regard to own affairs and in consulta
tion with the Cabinet in general affairs - s 19(1).
138 S 6(3)(a).
139 S 16(l)(a) and 301-303 above.
140 S 17(1) and 302-303 above.
141 S 31(1), 304 above and 343-344 below.
142 S 31(1), 302 above and 339 below.
143 S 38(1) and 305 above.
144 S 39(2) and 306 above. Note that s 39(3) is excluded from the jurisdiction of the ex
ecutive.
145 Ss 41(l)(b), 42(l)(b) and 43(l)(b); see above at 307.
146 S 47.
147 S 48 and 307 above.
148 S 67(1).
149 S 70(1) and 364 below.
legislation conferring powers on a provincial executive if he decides to declare

the legislation in question an own affair and to assign the administration
of the law to a minister.150 In addition, he is empowered to appoint and dis
miss persons in the service of the Republic,151 a power which has a more
genuinely ‘executive’ colour than those mentioned before.
Some of these powers, notably the power to make appointments and the
power to convene, prorogue and dissolve Parliament, are prerogatives de
rived from English common law,152 which have now been accorded some
what enhanced statutory status, since they feature independently in the
Constitution and are not simply classified with the other prerogatives in sec
tions 6(3) and 6(4). Whether the powers must be exercised on the advice of
a Ministers’ Council or in consultation with the Cabinet will depend on
whether they fall within the sphere of general affairs or the own affairs of
a particular population group. While, as has been pointed out above,153 the
exercise of most of the commmon-law prerogatives by the State President
will take place in consultation with the Cabinet, since prerogatives will almost
invariably constitute general affairs, it will not be so readily evident whether
his statutory powers will relate to own affairs or general affairs in any par
ticular case. For example, whether the appointment of persons in terms of
section 28 will constitute an own affair or a general affair, will depend on
whether the appointment is to be made within a department of own affairs
or general affairs. Booysen and Van Wyk154 suggest, further, that the ap
pointment of nominated members of Parliament should be done on the ad
vice of the Ministers’ Council for each House and not in consultation with
the Cabinet, and that if an election is to be held in respect of one House
only, the date of that election should be fixed on the advice of the Ministers’
Council for that House and not in consultation with the Cabinet. It is cer
tain that uniform customs and usages will develop in this regard with the
passage of time, and that conventions, both old and new, will therefore have
an important part to play here, but it is not clear, at this stage, what their
role will be, except that the existing conventions will fit into the new scheme
of things more readily where own affairs are concerned; here the State Presi
dent’s role remains closely akin to that of the symbolic head of state exercis
ing his powers pro forma only, and acting on the advice of his ministers.
In general affairs the merging of the offices of State President and Prime
Minister155 complicates the legal status of conventions. To illustrate this differ
ence: the Constitution provides that the chairman of each Ministers’ Coun
cil must be a minister who enjoys the support of the majority in that House.156
The Westminster convention is that the Prime Minister is the leader of the
150 S 98(3)(c) and ch 21 below.

151 S 28. Also see s 6(3)(h).
152 See above at 172-173.
153 At 309.
154 Op cit at 61.
155 S 102(2)(b).
156 S 21(2). However, there is no express provision contained in the Constitution oblig
ing the State President to appoint a Ministers’ Council for each House, although
such an implication may be implied. He may be said to be obliged, by convention,
to appoint a Cabinet. See Booysen and Van Wyk op cit at 80-81, and the discussion
below at 326.
majority party in the lower house. Section 21 does not reflect this conven
tion altogether accurately, however, since convention decrees that the head
of state must appoint the leader of the majority party as Prime Minister,
and that the Prime Minister chooses his ministers, who are merely appoint
ed pro forma by the head of state. Here we have the converse: the State Presi
dent appoints the members of the Ministers’ Council first and then elects,
from their ranks, a chairman who enjoys the support of the House, presum
ably the leader of the majority party in that House, therefore.157 Moreover,
this convention does not apply at all where the House of Assembly is con
cerned, since the Chairman of that Ministers’ Council will be a senior mem
ber of the majority party, but not the leader, since the leader of the ruling
party will inevitably be elected as State President. When it comes to the ap
pointment of the Cabinet, on the other hand, the Westminster convention
cannot find application even in adapted form. First of all, there is no Prime
Minister or even an ‘ethnic’ Prime Minister (Chairman of the Ministers’
Council). The State President is the Prime Minister, he is the chairman and
the leader of the Cabinet, he chooses the members of the Cabinet and ap
points them both in law and in fact. Moreover, he is not bound to appoint
only members of his own party, or even to restrict his choice to persons who
share his political views. On the other hand, section 24(3)(b) requires that
members of Ministers’ Councils must have the support of the majority in
the House to which they belong - an enacted convention.
Of course, it cannot be said, as a general rule, that existing conventions
will always apply in own affairs and will not apply in general affairs; that
would be absurd, particularly in view of the relatively limited scope of own
affairs in both the legislative and the executive spheres.
3 Powers which the State President Exercises at his own Discretion

In terms of section 19(2), the State President acts either in consultation with
the Cabinet or on the advice of the Ministers’ Council in question (as the
case may be) except in regard to certain specific provisions or where other
wise expressly stated or necessarily implied.158 Some of these provisions, from
which the role of the executive is excluded, have been touched on already.
(a) The appointment of ministers

The most important function performed by the State President without refer
ence to his ministers is the appointment of these ministers. As is mentioned
above,159 ministers are appointed, in the Westminster system, by the head
of state acting by convention on the advice of the Prime Minister. Now that
the offices of State President and Prime Minister have merged, it is clear
that the State President decides personally who will be members of the Cabi
net.160 He may appoint as many persons as he deems necessary to administer
state departments or to perform other such functions as he may determine,
and may even administer a state department for general affairs himself if
157 In practice the convention is probably observed in its original form, for practical
reasons, but on a strict reading of the Constitution it has been inverted.
158 Ss 20(c) and (d), 21(2), 24, 25, 26, 27, 33, 39(3), 66 and 98(3)(b).
159 At 180-181.
160 S 24.
no one has been appointed under section 24 or 25161 to administer it.162 It

is apparently also in the State President’s discretion to decide how many state
departments there will be, what they will be called and to determine their
functions.
Section 24 does not distinguish between Ministers who are members of
the Cabinet and Ministers who are members of the various Ministers’ Coun
cils; all are simply termed ‘Ministers of the Republic’.163 The question is,
therefore, whether the appointment of Ministers’ Councils is subject to the
same rule as the appointment of Cabinet members. It clearly is not. As was
pointed out above, the members of the Ministers’ Councils must enjoy the
support of the majority in their respective Houses,164 and the chairman of
each Ministers’ Council, who is appointed by the State President from the
ranks of these Ministers, must likewise have the support of the House.165
It is of some interest to speculate about the possibility that no one party may
enjoy a clear majority in a particular House. Obviously two or more parties
would have to form a coalition, and then the State President would be in
a position to appoint the members of the Ministers’ Council from the ranks
of these parties. The question is, however, whether he would be obliged to
do so in accordance with the conditions negotiated by the parties in their
pact (for example that 70% of the members of the Ministers’ Council will
be drawn from representatives of party A and 30% from party B) or whether
he is bound only in so far as he must appoint some representatives from both
parties. Practical considerations may dictate his choice here, as elsewhere,
but it is not clear what his legal position would be. Had the Westminster
convention (that the person commanding the support of the House is ap
pointed as ‘Prime Minister’ and that he selects his ministers and determines
which portfolios each will hold) been enacted in the Constitution unchanged,
the problem would not have arisen.
A further question which arises in this regard is whether the death or resig
nation of the Chairman of a Ministers’ Council will mean simply that he
is replaced by someone appointed by the State President, or whether the ap
pointment of a new chairman will automatically involve a reshuffle of the
Council as a whole, as it would in the Westminster system if the Prime
Minister dies or resigns.
In the consideration of both the above questions, a distinction must be
made between the House to which the State President belongs and the other
two Houses.166 The chairman of the Ministers’ Council in the House of As
sembly is not an ethnic Prime Minister, as has been pointed out above; the
State President is, after all, the ‘Prime Minister’ in respect of the White popu
lation. He is merely a senior member of the State President’s party and a
member of the Cabinet - not a primus inter pares by any stretch of the imag
ination. If a coalition government were to come into power in the House
161 S 25 provides for one minister to act temporarily for another.

162 S 24(1) as amended by s 3 of Act 105 of 1984.
163 S 24(2).
164 S 24(3), above at 180 fn 54 and below at 326-327.
165 S 21(2) and 180 fn 54 above.
166 As matters stand at present.
of Assembly, the State President would simply appoint the members of the
Ministers’ Council (and the Chairman) in accordance with the coalition agree
ment between himself and the other (minor) governing party. Likewise, if
the Chairman of the Council is replaced, for whatever reason, there would
seem to be no need for any further changes or reshuffles. The letter of the
Constitution could be adhered to without further complication.
It is in regard to the House of Representatives and the House of Delegates
that the problems described above could arise. The only logical conclusion
would appear to be that, despite the wording of section 21(2), read with sec
tion 24, the convention that the leader of the majority party in a House is
appointed as chairman first, and that the appointment of ministers by the
State President follows, and is done on the advice of the chairman, who will
not only decide who he wishes to have in his Ministers’ Council, but which
portfolio is to be entrusted to which minister. If this is what is done in prac
tice, that is, if the Westminster convention is adhered to in its original form
despite the wording of the Constitution, the problems mentioned above will
also disappear: if there is a coalition government in either of the two Houses,
the chairman will have the final say in deciding how the appointments of
ministers are to be apportioned; and if the chairman dies or resigns, the new
chairman will reconstitute the Ministers’ Council. The relationship between
State President and Ministers’ Councils will be a typical ‘Westminster’ rela
tionship.
(b) The appointment of deputy ministers

The appointment of deputy ministers is governed by section 27, which em
powers the State President to appoint as many deputy ministers as he deems
necessary. Such appointments may be made without any reference to the Cabi
net or Ministers’ Councils,167 but it is conceivable that the State President
will be bound by convention to act on the advice of the chairman of a par
ticular Ministers’ Council when appointing deputy ministers to that Coun
cil, in keeping with his role as Westminster-style head of state in regard to
own affairs. (Deputies to ministers in Ministers’ Councils must belong to
the same population group as the ministers themselves but deputies to Cabi
net ministers may be drawn from any population group. Deputy ministers
are not members of the Cabinet.)
(c) The assignment of powers

Section 26 provides that the State President may assign any power, duty or
function entrusted to a minister to any other minister, either specifically (as
regards the administration of a particular law or as regards the powers of
any one minister) or generally (as regards the application of the laws in ques
tion to any population group or subject matter of the assignment).
The 1961 Constitution contained a similar provision which had been in
serted in 1981.168 Whereas the old provision was of relatively minor import
ance, since all the Cabinet ministers bore joint responsibility to one House
167 See s 19(2).

168 S 20A of Act 32 of 1961, inserted by Act 101 of 1981.
of Parliament, namely the House of Assembly, section 26 of the 1983 Con

stitution is of major importance because of the inherent complexity of the
system.
The terms of the provision are exceptionally wide and include the possi
bility that powers may be assigned, not only from one Cabinet minister to
another or from one member of a Ministers’ Council, to another, but from
a Cabinet minister to a minister of a Ministers’ Council, and vice versa. Sec
tion 26(1) must, however, be read with both section 16(3) and section 98.
Section 16(3) requires that when the State President assigns the administra
tion of a law to a minister for own affairs (a member of a Ministers’ Coun
cil, in other words) he must first take a decision that the law in question is
an own-affairs law. This means that no general-affairs law may be assigned
to a minister for own affairs. Likewise, administration of an own-affairs law
relating to the white population group, for example, may not be assigned
to a coloured or Indian minister for own affairs. Section 98 relates to the
administration of existing laws: in terms of subsection (1), every existing law
is deemed to be a general law even if it relates to a matter referred to in sec
tion 14 (the section defining own affairs)169 unless and until its administra
tion is assigned to a minister for own affairs in terms of section 26, while
subsection (4) provides that section 26 will apply mutatis mutandis to an as
signment from the executive authority of a province to a minister.170
Apart from these two provisions, there are no restrictions on the State Presi
dent’s power to assign powers from one minister to another. Section 26 is
one of the provisions expressly mentioned in section 19(2): thus the State
President is not bound to act either in consultation with the Cabinet or on
the advice of the Ministers’ Councils. In addition, section 26(2)171 provides
that any power, duty or function assigned to a minister for general affairs
which is administered by the State President may be exercised or performed
by the latter as if he were the minister, or on the State President’s behalf
by a minister referred to in section 20(b) or (c) who has been authorized to
do so by the State President.172
The provision is clearly intended to ensure greater flexibility in adminis
tration, but it does give rise to a number of difficulties,173 and reservations
may be expressed about the wisdom of such a wide power which is not sub
ject to the advice of Ministers’ Councils, consultation procedures or even
conventions, although there are some conventions which may conceivably

170 The Provincial Councils themselves were abolished during the 1986 parliamentary
session. The members of provincial executives are now appointed by the State
President.
171 Inserted by s 4 of Act 105 of 1984.
172 S 20(b) refers to Cabinet ministers appointed to administer state departments and
20(c) to ministers performing other functions and designated as members of the Cabinet
by the State President.
173 See Booysen and Van Wyk op cit at 65-66. They point out that if a power is trans
ferred from a minister for own affairs to a Cabinet minister without consultation
with the Ministers’ Council concerned, this would mean that the minister in charge
of the administration of a law etc, is not necessarily responsible to the population
group concerned.
apply here. The authorization could serve a useful purpose if a situation were
to arise in which, for example, the members of one Ministers’ Council de
cide to ‘go on strike’ or to force the State President’s hand by refusing to
participate in further constitutional activity. In such a case a fairly drastic
step such as the assignment of this Council’s functions to a member of the
Cabinet may be justified, but if the situation is politically normal, only the
assignment of functions from one Cabinet minister to another should be ac
ceptable in the absence of some measure of consultation. In this regard the
State President would be acting as ‘Prime Minister’ and would therefore be
entitled to reshuffle his Cabinet at his own discretion. The transfer of pow
ers from one minister for own affairs to another is less clear, particularly
where the Ministers’ Councils for the population groups other than the one
the State President belongs to are concerned. If the ministers are appointed
and their portfolios allocated, in accordance with convention, on the advice
of the Chairman of the House as leader of the majority party, then it fol
lows logically that any assignment of powers requires consultation with the
chairman at least.174 The case for consultation is even stronger where a pow
er is to be assigned from a minister for own affairs to a Cabinet minister.
Although section 26 is excluded from the requirement of cooperation with
the executive, section 16(3), which requires that a matter must first be declared
an own affair before being assigned to a minister for own affairs, is not.175
Since the question whether any matter is an own affair or a general affair
is itself a general affair,176 such a decision must be taken in consultation with
the Cabinet. The State President is also obliged to advise the chairmen of
the Ministers’ Councils of his decision.177
(d) Miscellaneous
The State President’s powers to assent to legislation,178 to convene a House

of Parliament179 and to dissolve one House of Parliament,180 are also exer
cised without reference to the executive.181
174 See the discussion above at 313-314.

175 See s 19(2).
176 S 16(l)(b).
177 S 16(2). If the State President decides to assign powers to a minister in terms of a
provincial ordinance, he will as a rule first declare that the ordinance relates to own
affairs. Before coming to this decision he must consult the executive committee of
the province concerned (s 98(3)(a)) and the Cabinet (s 19). Once the decision has been
taken and made known, the State President may assign the power or function to a
minister for own affairs (this is not expressly provided, but it is apparent from the
context that assignment to a Cabinet minister is not intended), technically without
taking the advice of the Ministers’ Council concerned or consulting the Cabinet
(ss 98(3)(b) and 98(4), read with s 26 and s 19(2)). Although provincial matters will
normally fall into the category of own affairs, they may conceivably be general af
fairs. See the discussion in ch 21.
178 S 33.
179 S 66.
180 S 39(3).
181 Since these powers are more closely related to the legislature than the executive, they
have been discussed under that heading. See above at 304-307.
VI THE STATE PRESIDENT AND THE PRESIDENT’S COUNCIL

The President’s Council which was established in 1980182 was a purely advi
sory body appointed entirely by the State President and chaired by the Vice
State President. Its function was to advise the State President or legislative
bodies on request, but could also act on its own initiative in the public in
terest. It was in essence nothing more or less than a permanent commission
appointed by the State President by virtue of his common-law prerogative.183
The President’s Council constituted under the 1983 Constitution differs
both in composition and in function. There are still 60 members, but only
25 of these are appointed by the State President. Ten of these so-called State
President’s nominees are, however, appointed by opposition parties in the
three Houses.184 It is only if there is only one opposition member in a partic
ular House, or if the House is not functioning and therefore cannot appoint
any members, that the State President has any discretion to make these ap
pointments. The remaining fifteen members are appointed by the State Presi
dent acting in conjunction with the executive. In this context this presumably
means in consultation with the Cabinet, since the function of the President’s
Council will relate more often to general affairs than to matters exclusively
concerning one population group.
In addition to its advisory function, the President’s Council has acquired
an important new function in the legislative sphere. Its main function re
mains that of advising the State President in matters referred by him for ad
vice. Section 78(1) provides:
The President’s Council shall at the request of the State President advise him on
any matter referred to it by the State President for its advice, and may, in its dis
cretion, advise him on any matter (excluding draft legislation) which, in its opin
ion, is of public interest.
The State President may therefore seek the advice of the Council on any mat
ter, including draft legislation, and the Council itself may take the initiative
and furnish him with advice on any matter except draft legislation. When
the State President receives the Council’s advice he must table it in each House
that has an interest in the matter.185 In addition, the State President may
refer the question whether a matter is an own affair or a general affair to
the President’s Council for its advice.186 There is nothing in the Constitu
tion to suggest that the State President is obliged to act on such advice. His
decision remains final.
The President’s Council’s role as arbiter in disputes between the legisla
tive chambers is an important innovation. Section 32(1) provides that (a) if
during the same session of Parliament; (b) there is a disagreement among
the Houses as regards a general-affairs bill;187 (c) the State President may
refer the bill or the different versions of it to the President’s Council for
182 See the discussion above at 238-239.

184 S 70(2).
185 S 78(7). The decision as to which Houses have an interest would appear to lie with
the State President — see Booysen and Van Wyk op cit at 127.
186 S 17(1) and see 302-303 above.
187 The various forms that such a disagreement may take, will be discussed in ch 17 below.
its decision-, (d) but may withdraw the reference at any time before the Council
gives its decision.
A number of important points emerge from the analysis of this section:
first of all, the three Houses must have dealt with the bill during the same
session; there must have been a lack of consensus among the Houses; the
State President has a discretion whether to refer the bill to the President’s
Council during that session or to allow it to lapse;188 the bill is referred to
the Council for its decision and not for its advice;189 the State President may
withdraw the reference but not after the decision has been taken. The power
conferred in section 32 is not one which is mentioned in section 19(2) and
he must therefore act in consultation with the Cabinet both when deciding
to refer the bill to the Council and when deciding to withdraw the reference.
Section 78(4)(b) gives rise to potential problems of interpretation.190 It reads:
The President’s Council may from time to time advise the State President that
any bills referred to it [under section 32], be amended or otherwise dealt with in
the manner recommended by the President’s Council.
The difficulty lies in reconciling section 32, which requires the Council to
decide, with the above provision, which empowers the Council to advise the
State President that the bill should be amended or dealt with in some other
way. One of the ways in which the bill can be ‘dealt with’ is for the Council
to advise the State President to withdraw his reference in terms of section 32
(since the Council has not yet given its decision). The bill may then be referred
to the legislature, with or without amendments recommended by the Presi
dent’s Council, in a further attempt to achieve consensus. Neither the Presi
dent’s Council nor the State President has the power to effect any
amendments to draft legislation — only the legislature can do this. The Presi
dent’s Council may only decide which of the versions of a bill that has been
adopted by one or more Houses of Parliament is to be accepted; if it is of
the view that the legislation cannot stand as it is and that certain amend
ments are desirable, it may only advise the State President of its views and
recommend that the State President withdraw his reference. If the State Presi
dent refuses to do so, the President’s Council will be obliged to take a deci
sion in terms of section 32, and the suggested amendments will come to
nothing.
VII CONTROL OVER THE STATE PRESIDENT

1 Introduction
It is clear that the State President occupies a position of considerable power,
equivalent at least to that of a Prime Minister under the Westminster sys
tem. In addition to the powers he possesses by virtue of this ‘prime ministerial’
status he also plays a dominant role in the demarcation of own affairs and
general affairs, as shown above. The powers are conferred on the State Presi
dent by the Constitution and it is therefore necessary to determine which
‘checks and balances’ operate to curb these powers and to examine their ef
ficacy.
188 If he takes no further action the bill will lapse at the end of the session.
189 The various options the President’s Council has in this regard will be dealt with in
ch 17.
190 See Booysen and Van Wyk op cit at 127-128.
2 Parliamentary Control
The State President is elected, not by popular vote, but by an electoral col
lege composed of elected members of Parliament and dominated by the White
House of Assembly.191 A new State President must be elected by each new
Parliament at least every five years192 so that the incumbent is directly respons
ible, in effect, to the white electorate.193 During his term of office the State
President may be dismissed on the grounds of misconduct or inability to per
form the duties of his office,194 but since the procedure for his removal is
extraordinarily complex (even more so than the procedure laid down in the
1961 Constitution) it is inconceivable that it can serve as a check on excesses
of power by the State President in any but the most gross circumstances.
If Parliament adopts a motion of no confidence in the Cabinet (and there
fore in the State President and his administration as a whole) or rejects a
financial bill appropriating revenue for the Cabinet, the State President must
either resign or dissolve Parliament and call a general election,195 which is
tantamount to a resignation, since the newly constituted Parliament will elect
a new State President via its electoral college. Once again, this form of con
trol is not fully effective, since each of the three Houses must adopt a mo
tion of no confidence or reject the financial bill. If a vote of no confidence
is adopted by the House of Assembly, however, it will certainly place a great
deal of pressure on the State President and his government, even if he is not
technically obliged to resign or to dissolve Parliament.
3 Ministerial Control
Except where the provisions enumerated in section 19(2) are concerned, the
State President is obliged to act either in consultation with the Cabinet (in
regard to general affairs) or on the advice of the Ministers’ Council con
cerned (in own affairs).196 Section 23(1) provides that the will and pleasure
of the State President in executive matters must be expressed in writing un
der his signature and section 23(2) that any instrument signed by the State
President acting on the advice of a Ministers’ Council or in consultation with
the Cabinet must be counter-signed by a minister who is a member of the
body concerned.197
The control exercised by the ministers of state is, however, like parliament
ary control, somewhat inadequate, for various reasons: first of all, the sig
nature of the State President must be confirmed in accordance with
section 22,198 which provides for the use of the seal of the Republic on all
public documents on which it was required to be used immediately before
the commencement of Act 110 of 1983, but with this proviso “save in so
far as may be otherwise determined by the State President”.199 It may there
fore be argued that, since the State President has the discretion to decide
191 s 9(1).
192 S 39(1).
194 S 9(3).
195 S 39(1).
196 S 19(1).
197 This principle of counter-signing by a minister was an important factor in the de
velopment of ministerial responsibility in Britain. See ch 3 above.
198 See s 23(3).
199 Subsection (2).
which instruments require to be sealed, he also has the discretion to decide

when a counter-signature is required. One could therefore find that only cer
tain public documents are signed by the State President, countersigned by
a minister and sealed with the seal of the Republic.200
An even more real deficiency in the effectiveness of ministerial control lies
in the fact that the ministers of state are appointees of the State President
both in name and in fact. Members of Ministers’ Councils do, admittedly,
have to be drawn from the ranks of the majority party in the House con
cerned, and, as was pointed out above,201 there is a strong possibility that
the State President will be bound by convention not to appoint ministers of
his choice to the Councils, but to act on the advice of the leader of the majority
party in the House, whom he must appoint as Chairman — at any rate in
the Houses other than that for the population group of which he is a mem
ber. As far as own affairs of the other two population groups are concerned,
there is therefore a fair measure of control built into the system. On the other
hand, own affairs are, as a rule, less important politically than general af
fairs; here the State President has a free hand in the choice of Cabinet
ministers. The only real control encountered here lies in the maxim quot ho
mines tot sententiae\ there are bound to be shades of opinion within a fairly
large body even if the members of that body do share the same political views
to a marked degree. The State President cannot function effectively without
a Cabinet, and there is a limit to the extent to which one person can enforce
his will on a number of others. This ‘control’ is, however, a purely political
rather than a legal one.
4 Judicial Control
The very idea of judicial control over the State President is foreign to South
Africa, with its Westminster tradition that ‘the King can do no wrong’.
However, it is clear that the change in the status of the South African State
President implies a considerably greater degree of judicial control than is
evident from a cursory glance at the Constitution. The first important fac
tor to be considered is that the State President is, unlike his predecessor,
an ordinary citizen: his dignity is no longer protected as it was under the
1961 Constitution,202 not is he immune from the ordinary legal process of
the land. This means that he is subject to judicial control in the ordinary
sense of the words, in so far as he may be sued in his personal capacity in
the civil courts or tried for any criminal offence in a criminal court.
But this is not the aspect of judicial control which is of paramount import
ance to constitutional law. Here the enquiry is whether the State President
may be compelled by the court to perform a particular constitutional duty
in his capacity as head of state and head of government and, conversely,
whether he may be restrained or interdicted, or whether any act performed
by him in his official capacity may be impugned in a court of law.
The Constitution itself makes limited provision for this kind of judicial
control. In terms of section 17(2), the State President must consult the Speaker

201 At 312.
202 S 13 of Act of 1961.
as well as the Chairmen of the respective Houses before issuing a certificate

that a bill deals with the own affairs of one population group.203 The Supreme
Court has jurisdiction to enquire whether this formal requirement has been
met204 but it is not competent to enquire into or pronounce upon the validity
of the decision itself.205 This is in keeping with the general rules of adminis
trative law as regards the exercise of executive powers: the court may examine
the administrative act to determine whether it has been duly performed by
the author but may not interfere with the merits of the decision or enquire
into its desirability.206
A second express provision conferring jurisdiction on the court is to be
found in section 34(2)(a), which confers jurisdiction on the Supreme Court
to enquire into and pronounce upon the question whether the provisions of
the Constitution have been complied with in the legislative process207 - in
other words, whether the legislation has been ‘duly passed’, whether ‘Parlia
ment has spoken’, or whether ‘manner-and-form’ provisions have been com
plied with.208 To a certain extent this provision constitutes an indirect form
of judicial control over the State President as head of the legislative authori
ty in the state.
These are the only cases where the court’s power to test the State Presi
dent’s action is expressly recognized in the Constitution. There is, by the same
token, nothing in the Constitution which expressly excludes the jurisdiction
of the courts where they would arguably possess jurisdiction under the com
mon law.
First of all, it may be argued that the court would be able to declare that
the State President has ceased to hold office if he becomes disqualified from
serving as State President.209 No other interpretation appears logical. Second
ly, although conventions are characteristically not enforceable by the courts,
conventions which have been accorded statutory status by enactment in the
Constitution must be regarded as legal rules in the strict sense of the term
and therefore justiciable.210 It may therefore be concluded that the courts
will be able to compel the State President to obey enacted conventions such
as that contained in section 39(2)(b), which states that the State President
must dissolve Parliament in certain circumstances, and section 39(3)(b), which
requires him to dissolve a particular House or to reconstitute its Ministers’
Council in certain circumstances.
A more difficult question is whether the courts would be prepared to grant
a mandamus or an interdict against the State President in circumstances where
such relief would have been available against the Prime Minister. Booysen
and Van Wyk211 hold the view that this should be possible despite the reten
tion of the prerogatives and the immunity which this implies, since the legal
203 S 31.
204 S 18(1).
205 S 18(2).
206 See M Wiechers Administrative Law (1985) at 192, also at 287 et seq esp at 288.
207 Rules and orders of any House and joint rules and orders of the Houses are excluded
- s 34(2)(b).
208 See the discussion above at 142 et seq (ch 6).
209 S 9(2), read with s 7(5). See above at 297.
210 See Booysen and Van Wyk op cit at 75, 138, and ch 6 above.
211 Op cit at 78.
position of the State President differs radically from that of a Westminster

style head of state, particularly where general affairs are concerned. There
is also a measure of support to be found for the argument that the principle
that ‘the King can do no wrong’ had undergone some change even before
1983: the concept of the liability of the state for wrongs committed by its
servants was introduced as early as 1910;212213
that an interdict may be obtained
214
against the state was recognized as far back as 1914, in Minister of Finance
v Barberton Municipality,113 in Government of the Republic of South Afri
ca v Government ofKwaZulu1"1* a State President’s proclamation was declared
invalid by the court on the ground of ultra vires, the court viewing the State
President as synonymous with the government; likewise, the court had no
qualms about its jurisdiction to hear an application for an interdict against
the Administrator-General of South West Africa,215 an important indicator
despite the fact that the position of the Administrator-General cannot be
equated with that of the State President. The view has also been put for
ward that acts of the State President which relate to the exercise of personal
and independent statutory obligations are justiciable.216 It would seem,
however, that the State President remains immune to judicial control where
he is not acting as ‘Prime Minister’ and wherever his decision is a purely
political one taken on the strength of political considerations.217 Here the
principle that desirability and efficacy are not open to the court’s scrutiny
is decisive.
VIII CONCLUSION
It is clear that the State President’s role in the 1983 Constitution is a vitally
important one both constitutionally and psychologically. The success of the
Constitution will depend heavily on the stature of the man who is to be the
symbolic head of state in some spheres, the real head of government in others,
the upholder of the ‘race federation’,218 and the prime mover in the achieve
ment of consensus and reconciliation among the various population groups
(including the Blacks).
The State President is in an extremely powerful position constitutionally.
There are some curbs on his powers but these appear, for the most part, to
be inadequate. Judicial and ministerial control are very limited and par
liamentary control too complex to be effective.
212 The Crown Liability Act 1 of 1910, now Act 20 of 1957. See Wiechers op cit ch 7,
at 305 et seq.
213 1914 AD 335.
214 1983 1 SA 164 (A).
215 Du Plessis v A dministrateur-Generaal van die Gebied van Suidwes-Afrika 1980 2 SA
35 (SWA); Beukes v Administrate™ Suidwes-Afrika 1980 2 SA 664 (SWA).
216 By JG Riekert ‘Litigation and the State President’ 1978 THRHR 426 at 431.
CHAPTER SIXTEEN
The Executive
I INTRODUCTION
The State President is both head of the legislature and head of the executive.
In general, however, his executive functions are more extensive than his legis
lative functions, and that is why most textbooks deal with the legal position
of the State President in the same chapter as the executive. In this work the
legal position of the State President has been deemed so important that it
merits a chapter on its own. It is nevertheless inevitable that the State Pre
sident will feature strongly throughout the present chapter as well. This chap
ter must therefore be read in conjunction with the previous one throughout.
II THE CABINET
In general affairs the executive authority in the Republic vests in the State
President acting in consultation with ministers who are members of the
Cabinet.1
It has already been pointed out that, in the Westminster system, the head
of state acts, in executive matters, on the advice of his ministers.2 These
ministers are appointed pro forma by the head of state but are in fact select
ed by the Prime Minister, who is the head of the government and the actual
ruler of the country.
Under the 1983 Constitution the State President is both head of state and
head of government; the office of Prime Minister has been subsumed in that
of State President. In his relationship with the Cabinet he occupies the same
position as the erstwhile Prime Minister: he selects the members of the Cabinet
personally, he is the chairman of the Cabinet, and, although he must con
sult his ministers, he is not bound to fall in with their views.3 The convention
that the head of state acts on the advice of his ministers and is in fact bound
by such advice, would seem to find no application here; this is a case where
existing conventions must be seen as irreconcilable with the provisions of
the Constitution. Since different phrases are used in the Constitution to
describe the State President’s relationship with the Cabinet and with the
Ministers’ Councils (“in consultation with” as opposed to “on the advice
of”) it must be presumed that the legislature intended to make a distinction
here.
Basson and Viljoen4 distinguish between the phrases “after consultation
with” and “zn consultation with” and come to the conclusion that the latter
1 S 19(l)(b) of the Constitution.

2 See ch 4 at 76.
3 Obviously, although he holds the reins, it is clear that from a purely practical point
of view the State President cannot afford to ignore the opinion of the Cabinet any
more than the British Prime Minister can survive a palace revolution.
4 Studentehandboek vir die Suid-Afrikaanse Staatsreg (1986) at 70.
323
phrase, on a literal interpretation, means that the State President and the
Cabinet must take decisions together; he is in a dominant position but can
not legally dispense with the opinion of his Ministers. In practice this will
probably be correct, as has been pointed out before, but in principle the view
taken by Booysen and Van Wyk5 would seem to be more correct. It is clear
that the Constitution makes provision for the State President to act in three
ways: on the advice of Ministers’ Councils, in consultation with the Cabinet,
and on his own. Just as “on the advice of” is not synonymous with “in con
sultation with”, so “in consultation with” does not authorize the State Pre
sident to act on his own. He must consult the Cabinet materially and not
merely formally.
Composition of the Cabinet6

The Cabinet is composed of -
(a) the State President, who is the chairman;
(b) those ministers who are appointed by the State President to administer
departments of state for general affairs;
(c) any minister who is assigned to tasks other than the administration of
a state department and who is appointed to the Cabinet by the State Pres
ident; and
(d) any member of a Ministers’ Council who is appointed to the Cabinet
for a specific or an indefinite period or for a specific purpose.
The Constitution does not specify what the tasks of a Cabinet minister
falling into the second category ((c) above) will be — it must be assumed
that he will simply be a minister without portfolio who can perform such
tasks as the State President deems necessary. The provision does give the
State President authority to appoint a ‘token’ member of the Cabinet from
either the House of Representatives or the House of Delegates without com
mitting himself to entrusting an important portfolio to someone who is not
a member of the governing party. He could, under this head, appoint a mem
ber of one of the other Houses who does not represent the majority party
in that House.
When a member of a Ministers’ Council is appointed to the Cabinet, it
would seem to be logical that such a person will not be given a general-affairs
portfolio in addition to his own-affairs portfolio. His function will prob
ably be to liaise between the Cabinet and his Ministers’ Council.
Appointment of the members of the Cabinet

Section 24 merely provides that the State President may appoint7 as ministers
as many persons as he deems necessary to administer departments of state
or to perform other tasks. The only restriction on the State President’s choice
5 Op cit at 79.
6 S 20.
7 He is therefore not expressly obliged to appoint a Cabinet in terms of s 24. A mo
ment’s reflection makes it clear, however, that he is obliged to do so by implication:
s 24 must be read with s 19, which stipulates where the executive authority vests. In
any case it may be argued that he is obliged by convention to appoint a Cabinet -
see Booysen and Van Wyk Die ’83 Grondwet (1984) at 80-81.
The Executive 325
is imposed by section 24(3)(a), which provides that a minister may not re
main in office for more than twelve months without becoming a member
of one of the Houses. As Booysen and Van Wyk point out,8 this implies that
when a minister is appointed, he must meet the requirements for member
ship of a House of Parliament. It would therefore be irregular to appoint
someone who is not eligible for election, even for a period of less than twelve
months. It is equally clear that Blacks are excluded from membership of the
Cabinet. There is no restriction on the number of appointees and there is
no requirement that the State President must include members of all the popu
lation groups. The very possibility that persons who are not members of the
State President’s own governing party may be appointed to the executive at
the highest level, is a marked departure from the Westminster system.9 It
was inevitable, therefore, that the character of the Cabinet would have to
change somewhat. For one thing, it cannot be expected that the same degree
of Cabinet solidarity can be retained where most of the Cabinet are mem
bers of one party but one or two are not. The analogy of a coalition govern
ment immediately springs to mind, but this is not altogether valid.10 It is true
that the appointment to the Cabinet of a person whose political views are
totally irreconcilable with those of the governing party, would be unaccept
able both to the State President and to the appointee himself. The position
is anomalous largely because party politics in South Africa remain racially
separated despite the repeal of the Prohibition of Political Interference Act.
The views of the majority parties in the House of Representatives and the
House of Delegates may or may not be amenable to the policies of the govern
ing party in the House of Assembly. If it should happen that the majority
in one of these houses is radically opposed to government policy on all points,
it would serve no purpose for a representative of such a party to be appoint
ed to the Cabinet. The State President would then find himself in a position
where he must appoint someone whose views can be accommodated in the
Cabinet but who does not enjoy the support of his House, or otherwise ap
point no representative from that House at all.
There is no requirement that members of the Cabinet must be members
of the governing party. (This typically Westminster convention is in fact
statutorily enacted in respect of the Ministers’ Councils.) The implication
is therefore irresistible that the intention is that some Cabinet members should
be drawn from outside the governing party - obviously from the House
of Representatives and the House of Delegates: and this is, in fact what has
happened. The question that may be asked, however, is whether it would
be possible for the State President to open the doors of his multi-party Cabinet
even wider, and invite members of the official opposition in the House of
Assembly to join the Cabinet. In theory this should certainly be possible:
Cabinet members may be appointed from the ranks of any party (not only
the majority party) in the other two Houses — why not, then, an opposition
8 Op cit at 80.
9 See ch 4 at 75.
10 It is of some interest that Rev Alan Hendrickse, the first Cabinet member to be drawn
from the House of Representatives, has gone on record as saying that he does not
see his position as that of a member of a coalition government.
supporter in the House of Assembly, since the basic tenets of the Westmin
ster system have been tampered with anyway? Practical politics would,
however, seem to militate against such a move, despite the avowed intention
to move away from confrontation politics towards the politics of consensus.
Members of the Cabinet are responsible to Parliament as a whole. Under
the Westminster system Cabinet ministers are deemed to be responsible to
the lower (elected) House; since all three Houses of the South African Parlia
ment are ‘lower’ Houses in this sense,11 the ministers will be responsible, not
only to their own House, but to Parliament. Of course, they are, in practical
terms, responsible to the State President first and foremost.
Ill THE MINISTERS’ COUNCILS

As in the case of the Cabinet, the Constitution does not expressly oblige the
State President to appoint Ministers’ Councils. Section 24 merely provides
that he may appoint as many ministers as he deems desirable. While it may
be argued that the State President is obliged by convention to appoint a
Cabinet12 the same consideration does not apply to the Ministers’ Councils.
That there is such an obligation may, however, be inferred from section
19(l)(a), which provides that the executive authority in the own affairs of
any population group vests in the State President acting on the advice of
the Ministers’ Councils concerned.13 Although this is not stated expressly,
the obvious intention is that there should be a Cabinet and three Ministers’
Councils — one for each population group.
Composition of Ministers’ Councils14

Each Ministers’ Council is composed of
(a) ministers appointed by the State President to administer departments of
state for own affairs;
(b) any minister who is a member of the population group concerned and
is appointed to the Council to perform tasks other than the administration
of a state department;
(c) any deputy minister15 appointed to act on behalf of any minister referred
to in (a) above;
(d) any Cabinet minister who is a member of the population group concerned
and has been co-opted by the Ministers’ Council, whether for a fixed or in
determinate period or for a specific purpose. '
It has already been mentioned16 that section 21(2) provides that the State
President must appoint a Chairman of the Ministers’ Council from the ranks
11 See ch 17 below at 330.

12 See s 88 and fn 7 above.
13 Even so, it is conceivable, as Booysen and Van Wyk point out, that the State Presi
dent may find that there is no need for a particular Ministers’ Council to be constitut
ed, since own affairs are so limited in scope that until own-affairs legislation is in
existence there is nothing for a Ministers’ Council to administer
14 S 21.
15 Note that there is no analogous provision that deputy ministers are members of the
Cabinet. See the discussion on deputy ministers below.
16 In ch 15 above at 313.
The Executive 327
of Ministers, and that such Chairman must, in the opinion of the State Presi
dent, enjoy the support of the majority in the House concerned. According
to the strict letter of the Constitution, therefore, the Westminster conven
tion that the leader of the majority party is asked to form a government,
and that he is the one who selects the other ministers, has been turned inside-
out. In practice, however, it would appear that the convention is observed
in its original form.
Whereas the only formal requirement which is imposed in regard to Cabi
net ministers is that they must be members of Parliament or become mem
bers within twelve months, there are additional requirements prescribed for
members of Ministers’ Councils:17 they must be members of the population
group concerned; they must be or become members of that particular House
(within twelve months); and they must enjoy the support of the majority in
their own House.18 Again there is no limit on the number of ministers who
may be appointed. Like the provision which enables a member of a Ministers’
Council to be a member of the Cabinet as well, the provision enabling a
Ministers’ Council to co-opt a Cabinet Minister to serve on the Council is
aimed at ensuring that the lines of communication between the Cabinet and
the Ministers’ Councils remain open.
The Constitution does not differentiate between members of the Cabinet
and members of Ministers’ Councils: all are simply termed ‘ministers’. There
is no doubt, however, that Cabinet ministers enjoy a more exalted status than
members of Ministers’ Councils, since general affairs are clearly more im
portant than own affairs.
Members of the Cabinet and the Ministers’ Councils alike must take the
same oath before assuming office.19 Whereas Cabinet Ministers are respon
sible to Parliament as a whole, members of Ministers’ Councils’ first respon
sibility is to their own House.
IV DEPUTY MINISTERS
The State President may, in terms of section 27, appoint as many deputy
ministers as he deems necessary, whether to administer a state department
on behalf of a minister, to assist a minister with the administration of a state
department or to act as a deputy minister of any other description. Like a
minister, a deputy minister may not remain in office for longer than twelve
months without becoming a member of Parliament20 and must take the oath
of loyalty to the Republic.21 A deputy minister who is appointed to act on
behalf of or to assist a minister for own affairs, must belong to the same
population group as the minister and must, like the minister himself, enjoy
the support of the majority in his House.22
On the other hand, a person who is appointed as a deputy to a Cabinet
minister, need not belong to the same population group as the minister.
Moreover, there is no provision that such a deputy must necessarily enjoy
17 See s 24(3)(a) and (b).

18 An enacted convention, therefore.
19 S 24(4).
20 S 27(2)(a).
21 S 27(3).
22 S 27(2)(b), read with s 24(3)(b).
the support of his own House. This is in keeping with the idea that general
affairs are administered on a basis of consensus rather than party politics,
that the Cabinet is responsible not to a particular House but to Parliament
as a whole (and to the State President himself) and that the ethnic lines are
blurred - hence the multi-party and multi-racial Cabinet.
The appointment of deputy ministers is a function which the State Presi
dent performs, not on the advice of the executive, but on his own.23 Obvi
ously the appointment of a deputy to a Cabinet minister falls into the same
category as the appointment of Cabinet ministers themselves — this is a matter
for the State President to decide, and the fact that he may consult his senior
ministers informally does not affect the legal position. The appointment of
deputies to members of Ministers’ Councils is another matter.24 Since the
„..M^riikeUke teverrig.waar
^ llemeturinering. monddrooflheW.
basic structure of the Westminster system is preserved almost intact in regard

to own affairs, it would seem appropriate, both in theory and in practice,
for the State President to consult the chairman of the Ministers’ Council con
cerned, or even to act on his advice, when appointing deputy ministers (as
indeed it would be appropriate in the appointment of all members of
Ministers’ Councils).
V THE TRANSFER OF FUNCTIONS

The transfer of functions from one minister to another is, to a certain ex
tent, linked with the appointment of deputy ministers. Both are practical
measures aimed at the smoother functioning of the state administration.
Section 26 provides for the assignation of the functions of one minister
to another or their performance by or on behalf of the State President.25
The Constitution also provides for the duties of one minister to be per
formed by another if the former is unable to perform his duties or the post
is vacant and no successor has been appointed.26 Similar provision exists for
the transfer of a deputy minister’s powers and duties.27 The same principles
outlined above in regard to the assignment of powers in terms of section 26
should apply here. Ideally, as Booysen and Van Wyk point out,28 assigna
tion should take place with due regard to existing structures: in other words,
Cabinet ministers should be appointed in the place of other Cabinet ministers,
and so on.
VI CABINET COMMITTEES
Just as parliamentary committees play a vital role in the legislative sphere
under the new dispensation, so Cabinet committees are an important part
of the executive. Cabinet committees are, of course, nothing new: they are
23 See s 19(2), which specifically mentions s 27 as an exception to the general rule that
the State President acts either in consultation with the Cabinet or on the advice of
a Ministers’ Council.
24 See Basson and Viljoen op cit at 93.
26 S 25.
27 S 27(3).
28 At 84.
The Executive 329
very much part of the Westminster system.29 In South Africa there are at
present, four permanent Cabinet committees: they deal respectively with na
tional security, constitutional affairs, economic affairs and community af
fairs.30 The importance which state security has assumed in present-day South
Africa manifests itself in the fact that the State Security Council, a Cabinet
committee chaired by the State President himself, is the only such commit
tee which has a statutory basis.31 This Cabinet committee is composed of
the State President, the most senior Cabinet minister (if he is not already
a member), the Ministers of Defence, Foreign Affairs, Justice and Law and
Order, other ministers co-opted by the State President, Directors-General
of the National Intelligence Service and the Department of Foreign Affairs
and Justice, the Commandant-General of the South African Defence Force,
the Commissioner of Police, and such other heads of state departments as
may be co-opted by the State President from time to time.
The function of the committee is to advise the State President on security
matters. In practice the Cabinet itself, which takes the final decisions, will
endorse the Committee’s findings.
29 Cf eg the phenomenon of the ‘inner Cabinet’ or group of senior cabinet ministers

in the British system: see Mackintosh Cabinet Government (3 ed) at 332-344; De Smith
Constitutional and Administrative Law (4 ed) at 181.
30 See the detailed discussion of the Cabinet committee system in South Africa by Bas
son and Viljoen op cit at 94.
31 It was instituted by the Security Information and State Security Council Act 64 of 1972.
CHAPTER SEVENTEEN
The Legislature
I INTRODUCTION
Section 30 of the Constitution provides that the legislative authority of the
Republic vests in the State President and Parliament, and that the legisla
ture, as the sovereign legislative authority, has the power to make laws for
“peace, order and good government” within the Republic. The section reflects
a structural change when compared with section 24 of the 1961 Constitu
tion: Parliament, in the Westminster system, is composed of the monarch,
the House of Lords and the House of Commons. In South Africa this meant
the State President, the Senate (until 1980) and the House of Assembly. At
present, the State President is still part of the legislative authority, but is
no longer an element of Parliament as such.1 The change does not appear
to have any startling practical implications. As is pointed out by Venter,2
however, it does mean that one should no longer, strictly speaking, refer to
parliamentary sovereignty in the South African context, but to legislative
supremacy or sovereignty.
The reference to Parliament as the ‘sovereign’ legislative authority also
harks back to the 1961 Constitution, which contained a similar provision.
In this context sovereignty would appear to refer, not to legislative (as op
posed to judicial) supremacy as much as to Parliament’s position as the
supreme law-making body in the Republic - no other body can make laws
for the peace, order and good government of the Republic. In fact, Parlia
ment would have been the supreme law-making body in South Africa even
if this provision had not been enacted - to this extent, therefore, the provi
sion is superfluous.
The question also arises whether the tricameral Parliament remains sover
eign in the sense in which the word is used in the Westminster system. In
this very specific sense sovereignty is said to be indivisible — thus excluding,
inter alia, federal legislatures. The South African Parliament, consisting as
it does of three lower Houses, each sovereign in its own sphere to the exclu
sion of the others (in matters which are deemed to be own affairs) therefore
cannot be termed ‘sovereign’ in this very restricted sense.3
II COMPOSITION OF PARLIAMENT
Parliament now has three Houses: the House of Assembly (Whites); the
House of Representatives (Coloureds); and the House of Delegates (Indians).4
1 This structural change would appear to have been inspired by the idea that an execu
tive head of state should not form part of Parliament even though the State President
is not in the same position as the President of the USA, for example.
2 F Venter ‘Die Grondwet van die Tweede Republiek van Suid-Afrika’ 1985 THRHR
253 at 275.
330
I
The Legislature 331
1 The House of Assembly

The House of Assembly has 178 members, of whom 166 are the directly elect
ed representatives of voters in single constituencies (76 from the Transvaal,
56 from the Cape Province,5 20 from Natal and 14 from the Orange Free
State).6 In addition, there are four members appointed by the State Presi
dent (one for each province)78and eight elected by the directly elected mem
bers in accordance with the principle of proportional representation.
*
2 The House of Representatives

This House has 80 directly elected members (60 from the Cape Province,
five each from Natal and the Orange Free State and ten from the Transvaal),9
two members who are appointed by the State President10 and three members
elected by the directly elected members,11 thus 85 in all.
3 The House of Delegates

The House of Delegates has a total of 45 members: 40 are directly elected
(29 from Natal, eight from the Transvaal and three from the Cape Province),12
two appointed by the State President13 and three chosen by the directly elected
members.1415
The State President’s appointments must be made in consultation with the
Cabinet or on the advice of the Ministers’ Council concerned.13 The ques
tion is whether the appointment of members of Parliament is a general af
fair or an own affair of each individual House. Booysen and Van Wyk point
out16 that there is no indication that such appointments fall into the category
of own affairs, which means that the State President must act in consulta
tion with the Cabinet, although it would be desirable for him to consult the
Ministers’ Councils as well, even if he is not, in this case, bound to act on
their advice. It could certainly be argued, however, that the appointment of
members to a particular House falls within the ambit of the own affairs of
the population group concerned.
5 This includes Walvis Bay, which forms part of one of the constituencies in the Cape
Province - s 49(4)(a).
6 S 41(2).
7 S 41(l)(b).
8 S 41 (1 )(c).
9 S 42(1 )(a) and s 42(2).
10 S 42(l)(b).
11 S42(l)(c).
12 S 43(l)(a) and s 43(2). The repeal of the legislation which prohibited Indians from
residing in the Orange Free State (see Wetboek van den Oranjevrijstaat 1891 ch xxxiii)
during 1986 has not yet had any impact in practice.
13 S 43(l)(b).
14 S 43(l)(c).
15 In terms of s 19(2), the State President acts in consultation with the Cabinet or on
the advice of a Ministers’ Council except where this mode of action is excluded expressly
or by necessary implication. Sections 41 (1 )(b), 42( 1 )(b) and 43(l)(b) are not excluded
expressly, but it could conceivably be argued that this is a legislative function which
does not require the co-operation of the executive. In practice, however, it appears
that he does not act on his own initiative here - see H Booysen & DH van Wyk Die
'83-grondwet (1984) at 96 and ch 15 above.
16 Loc cit.
The indirectly elected members are elected in accordance with the princi
ple of proportional representation, each voter possessing a single transfer
able vote. It is pointed out by Basson and Viljoen17 that the inclusion of
indirectly elected members in this way does not, as election by proportional
representation is intended to do, serve to ensure a fairer reflection of all po
litical views in Parliament, but rather to entrench the disproportionate ef
fect of the majority vote system in single-member constituencies. They criticize
the inclusion of nominated and indirectly elected members most strongly,
averring that the practice cannot be justified on either historical or juridical
grounds, and that even practical considerations militate against such an ar
tificial enlargement of the numbers of parliamentarians.18 These additional
seats were evidently introduced (originally) to accommodate former Sena
tors when the Senate had been abolished and, presumably, to act as a kind
of ‘senatorial’ influence within the elected House.
Like the South Africa Act,19 the 1983 Constitution contains a provision
that the number of directly elected members in each province will remain
unchanged for a certain minimum period.20 This provision is not entrenched,
however, and is therefore “at the mercy of Parliament” as Stratford AC J
would have put it.21 It must therefore be seen as nothing more or less than
a declaration of intent.22
If the State President dissolves Parliament (or a single House), a general
election must be held (whether for Parliament as a whole or for the particu
lar House) within 180 days.23 He sets the date for a general election.24
4 The Speaker of Parliament and the Chairmen of the Houses

The Speaker
Under the 1961 Constitution, the House of Assembly had a Speaker and the
Senate a President.25 Under the 1983 Constitution, there is one Speaker, the
Speaker of Parliament as a whole, who is elected by the same electoral col
lege which elects the State President, immediately after a new State Presi
dent has been elected.26 A candidate for the office must be a member of one
of the Houses27 and ceases to hold office if his membership of Parliament
17 DA Basson and H P Viljoen Studentehandboek vir die Suid-Afrikaanse Staatsreg (1986)
18 See H Rudolph ‘Nominated members of Parliament and the Demise of the Entrenched
Sections’ 1981 SALJ 346.
19 S 24 of the South Africa Act 1909.
20 Ten years in the case of the Coloured and Indian Houses, five in the case of the House
of Assembly - s 45 of Act 110 of 1983.
21 See Ndlwana v Hofmeyr 1936 AD 229 at 238.
22 See Booysen & Van Wyk op cit at 97.
23 S 47(3).
24 As to whether he is bound to act in co-operation with the executive, see ch 15 above
at 306.
25 Ss 48(1) and 35 of Act 32 of 1961 respectively. See ch 12 above
M SXM tachâK" AC‘ °f *’“• Th‘ °f ‘he Zaorał colkga is
27 S 58(1).
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is terminated, for whatever reason. He may also submit his resignation to

the Chief Justice in writing,28 and his removal from office takes place in the
same way as that of the State President.29
If the Speaker is unable to perform the duties of the office, he himself
may appoint an acting Speaker.30 If the office is vacant, or the Speaker is
not in a position to nominate a substitute, the State President may designate
a member of Parliament as Acting Speaker.31 If the office of Speaker is va
cant, however, the person appointed as acting Speaker may not act as such
for longer than a month, except during the last session before Parliament
is dissolved or if Parliament has been reconvened by the State President af
ter having been dissolved.32
The main function of the Speaker of the House of Assembly under the
1961 Constitution was to maintain order in the House and to act as arbiter
or referee in matters of procedure. The ‘new’ Speaker retains essentially the
same function, but now as regards Parliament as a whole; he has, in addi
tion, the task of organizing and co-ordinating the work of Parliament. He
needs a sound knowledge of parliamentary procedure and custom, and acts
as a vital link between the Houses.
Under the 1961 Constitution the Speaker did not possess a deliberative
vote, but only a casting vote.33 The 1983 Constitution makes no mention
of this long-standing rule, and merely provides that the Speaker may take
the chair in any of the three Houses, but may vote only in the House of which
he is a member.34 The Speaker also presides at any joint sitting of the
Houses.35
The Chairmen of the Houses

When it meets for the first time, each House must elect a Chairman,36 who
remains in office as long as he is a member of that House.37 Each House
also appoints a deputy Chairman whose main function is to act as Chair
man of Committees when the House goes into the committee stage in the
adoption of legislation.38 If the Chairman is unable to act, the House itself
appoints an acting Chairman.39
The function of each Chairman is essentially that performed by the Speaker
of the House of Assembly under the 1961 Constitution; the three Chairmen
may therefore be seen as ethnic ‘Speakers’. When the Speaker of Parliament
presides in any one House, he is vested with all the powers of the Chairman
28 S 58(3)(b).
29 S 58(3)(c) and see ch 15 above at 297-299.
30 S 58(4)(a).
31 S 58(4)(b).
32 S 58(4)(c) read with s 40(c).
34 S 59(1).
35 S 67(3).
36 S 60(1).
37 S 60(1) and (2). A new chairman is elected only when the office becomes vacant, whether
by reason of the death or resignation of the chairman or his defeat in an election.
38 See DH van Wyk ‘Parliament’ 19 LA WSA at 185.
39 S 60(3).
of that House, with the proviso that such powers must be consistent with
functions entrusted to him by the Joint Standing Orders of the three Houses.40
Ill QUORUMS AND PROVISIONS AIMED AT PREVENTING

DEADLOCKS
Section 61 prescribes the quorum for each House: 50 members for the House
of Assembly, 25 for the House of Representatives and 13 for the House of
Delegates.41 It must be noted, however, that provision is made for Parlia
ment to function even when one or more of the Houses is unable to function
as a result of a boycott action by its members.42 In theory, then, the business
of Parliament could be dealt with by 13 members of the House of Delegates,
who could pass general-affairs legislation binding the entire country, by a
majority of seven votes to six!
As far as the entrenched provisions43 are concerned, however, the quo
rums change; for example, any amendment of the language provision (sec
tion 89) requires a two-thirds majority of all members (thus 118 in the House
of Assembly, 57 in the House of Representatives and 30 in the House of
Delegates). Amendment of all the other entrenched provisions requires only
a simple majority, but again of all members of each House (90, 43 and 23
in the three respective Houses).
IV FRANCHISE AND QUALIFICATIONS

Whereas only white persons were qualified to vote in parliamentary elections
prior to 1983, every white, coloured and Indian44 adult (18 years) who is a
South African citizen and who is not subject to any of the disqualifications
stated in section 4(1) and (2) of the Electoral Act45 now has the franchise.46
Citizens who are entitled to vote must register as voters in terms of the Elec
toral Act.47
A candidate for election to Parliament must be qualified to vote in a general
election and must, in addition, have resided within the Republic for five
years.48 Only persons who are members of the population group served by
a particular House may vote for candidates standing for election to that House
40 S 59(2).
41 Interestingly, the same number of members as is prescribed for the electoral college.
42 S 37(2).
43 See the discussion later in this chapter.
44 In terms of the Population Registration Act. Note that there is no reference to, for
example, persons of Chinese or Japanese descent. The Chinese population group was
specifically included when the President’s Council was first instituted in 1980, but in
terms of the 1983 Constitution, persons who cannot be classified as White, Coloured,
Indian or Black, presumably do not exist, constitutionally speaking!
45 45 of 1979. Persons who have been convicted of offences such as treason, murder and
offences under the Internal Security Act are absolutely disqualified, while unrehabili
tated insolvents, persons who have been certified insane, or have been committed to
a reformatory or drug rehabilitation centre or who are not in possession of an iden
tification document are disqualified only while the reason for their disqualification
lasts. See J A Faris ‘Elections’ 8 LA WSA 287, VerLoren van Themaat op cit at 300-301;
Basson and Viljoen op cit at 169-171.
46 S 52 of the Constitution.
47 See s 9 of the Electoral Act, and Faris op cit at 314.
_______________________________________________ The Legislature 335
or stand for election to that House. Section 54 lists a number of circumstances

which render a candidate for a parliamentary election ineligible for election;
for example, conviction of certain offences, insolvency, insanity, or the hold
ing of a remunerative post under the Republic.49 It is an offence to take one’s
seat in Parliament knowing that one is not competent to do so.50 A sitting
member who becomes disqualified vacates his seat automatically. The seat
is also vacated when the sitting member dies, resigns, is absent for an entire
ordinary session of Parliament without special leave, or becomes a member
of the President’s Council.5'
V THE ELECTORAL SYSTEM - DELIMITATION

As has been mentioned above,52 the principle of regional representation is
a cardinal feature of the Westminster system. There has been no substantial
deviation from this system in South Africa since Union: the members of the
House of Assembly have always been elected on a regional basis in single
member constituencies.
The delimitation of electoral divisions in the Republic is undertaken by
a commission of three judges appointed by the State President with the co
operation of the executive.53 Because the system of provincial government
has been so integral a part of the South African constitutional system, it is
logical that no constituency can fall partly in one province and partly in
another.54
The delimitation of constituencies revolves around the determination of
a quota for each electoral division. The quota for constituencies in each of
the provinces is determined by dividing the number of registered voters in
that province by the number of constituencies allocated to the province.55
The commission may in general deviate from this quota by as much as fifteen
per cent either way, and a constituency with an area of 2 500 square kilo
meters (or more) may have only seventy per cent of the quota of voters for that
province. Factors to which the delimitation commission must pay due regard
when deciding whether to deviate from the quota in a particular case, are
the following: community or diversity of interests; means of transport; natural
(geographical) features; the boundaries of existing divisions; population den-
—sity; the probability that the population density will increase or decrease; and
the boundaries of local authorities and magisterial districts.56 (The principle
that constituencies may vary in size was established at the time of the Na
tional Convention in 1909. It was accepted at the insistence of those who
49 S 53(e) lists a number of exceptions: ministers of the Republic, pensioners, members

of certain statutory boards or committees, etc.
50 S 57.
51 Ss 55(l)(c) and 55(2).
52 See ch 8 above.
53 S 48 is not one of the provisions enumerated in s 19(2).
54 S 48(1) of the Constitution. The provincial system was of greater importance while
the Senate was still in existence, but even under the 1983 Constitution there is one
nominated member of Parliament for each province.
55 S 49(1).
56 S 49(3).
represented the interest of the rural voters, who felt even then that the rural
vote should carry more weight than the urban vote. It is a source of con
siderable dissatisfaction in certain quarters that each vote for a member of
Parliament does not carry the same weight as every other but there has been
no real move towards change in this regard.)57
When the delimitation has been completed, the commission submits a map
with full details of the boundaries and names of the electoral divisions to
the State President for proclamation.58
VI THE ELECTORAL PROCESS

The electoral process is governed by the Electoral Act.59 Aspects which re
quire further attention are the following: registration of political parties, the
conduct of election campaigns, the conduct of the election itself and elec
tion petitions.
1 Registration of Political Parties

Before any political party may participate in an election as a party, it must
apply to the Chief Electoral Officer for registration.60 Among the particu
lars which must be furnished, are the name and the abbreviated name of
the party; the full names and signatures of the national leader, the chief ex
ecutive officer and the provincial leader (if any) of the party; and the busi
ness and postal address of the party’s head office and provincial head office.
A political party which had no representative in the House of Assembly
a Provincial Council on 19 January 1979, must submit, together with its
lication, a deed of foundation adopted at a meeting of at least 50 voters
have signed the deed. This deed must contain: a statement that it was
jted at a meeting as described above; the full names of the voters who
ied the deed; the residential address and the names of the electoral divi-
jns in which these voters are registered.61
The Chief Electoral Officer must register the applicant party if he is satis
fied about the object of the political party (to promote the election of its
members to one of the Houses of Parliament), if the application is accom
panied by the prescribed registration fee and the party’s deed of foundation
57 See the American case of Baker v Carr 309 US 1186 (1962) in which the court held
that a delimitation of electoral districts which discriminates against voters in a partic
ular constituency because it has the effect of rendering their vote less valuable is a
violation of the ‘equal protection’ provision in the Constitution.
58 S 50(1).
59 45 of 1979. See Faris op cit at 285 et seq for a detailed discussion, and Basson and
Viljoen op cit at 162-191 and Mota v Moloantoa 1984 4 SA 761 (O).
60 See ss 33-39 of the Electoral Act.
61 See ss 36-40 of the Electoral Act and the case of Herstigte Nasionale Party v Sekretaris
van Binnelandse Sake en Immigrasie 1979 4 SA 274 (T). These provisions have been
criticized as an encroachment on the democratic principles of freedom of association.
VerLoren van Themaat Staatsreg 3 ed at 303 defends them on the ground that they
would prevent the proliferation of fringe parties and serve to protect the voting pub
lic. It may be asked, however, whether such ‘mushroom’ parties would not die a natural
death anyway, without serious harm to the voting public, if their policies are not suffi
ciently attractive to ensure future support.
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(where applicable) and if the party’s name does not disqualify it for regis
tration.62
The party’s registration is cancelled if it is dissolved by the members them- -
selves, or if its annual registration fee has not been paid and all the steps
taken by the Chief Officer to have matters set to rights have failed.
2 Election Campaigns
The Electoral Act contains a number of provisions governing the expenses
which a candidate may legitimately incur as ‘election expenses’,63 how they
are to be paid, who may incur them, how they are to be taxed, and so on.
In addition, conduct which constitutes a corrupt or illegal practice is defined
and rendered punishable.64 ‘Corrupt practices’ include treating, undue in
fluence, bribery and personation, and imply the presence of a corrupt inten
tion.65 Illegal practices, on the other hand, are not marked by the presence
of a corrupt intention. These include, amongst other things, the making of
illegal payments; the incurring of prohibited expenses; the provision of money
for an illegal payment; the corrupt procurement or withdrawal of a candida
ture; the obstruction of a voter; the conduct of an opinion poll during an
election; and the act of voting by a disqualified person.66
3 The Conduct of the Election

When the State President dissolves Parliament or a single House of Parlia
ment, both the nomination day and the polling day are set down by procla
mation. Nomination day must be not less than 21 days and not more than
28 days after the publication of the proclamation.67 Polling day must be not
less than 35 days and not more than 45 days after nomination day,68 and
not more than 180 days after the dissolution of Parliament or the House
in question.69 In a general election, polling day is on the same day for all
the electoral districts of Parliament or the House concerned.70
On nomination day the candidates are introduced and nominated by voters
in the constituency in which they are to stand.71 Candidates must accept
62 The name of the party may not resemble that of another political party, nor may it
be obscene, blasphemous, offensive to any section of the inhabitants of the country
or prejudicial to the safety of the state. See s 35C(2) of the Electoral Act.
63 See Faris op cit at 353-354.
64 Ss 129-154 of the Electoral Act. Also see DeKlerk vNaude 1937 TPD 180; R v Boon-
zaaier 1952 1 SA 91 (C); R v Rayner-Dean 1955 1 SA 321 (SWA); R v Walker 1959
1 SA 678 (C); Van Rhyn v Du Plessis 1974 3 SA 605 (A).
65 See Faris op cit at 350, and again at 356-360.
66 See the discussion of illegal practices by Faris op cit at 360-364.
67 S 35(3) of the Electoral Act.
68 S 35(4).
69 S 47(3) of the Constitution.
70 S 47(1) and (2).
71 Although the candidate need not necessarily possess all the required qualifications on
nomination day itself, he must possess them on polling day: Van Deventer v Dost 1925
TPD 32; Garment Workers’ Union v De Vries 1949 1 SA 110 (W); if it becomes clear
that he will not be able to qualify, the court may be approached for his immediate
disqualification: Lewis v Culwick 1966 3 SA 52 (D).
nomination in writing. Where the candidate is to represent a party which

possesses representation in Parliament, the nomination must be confirmed
by the party concerned. If the candidate is to represent a party which does
not yet enjoy representation, or is to stand as an independent, his nomina
tion requires the endorsement of at least three hundred voters of his constit
uency.72 In addition, each candidate must pay a deposit which is forfeited
if he does not poll at least one-fifth of the votes cast for the winning candi
date. If only one candidate is nominated, he is declared elected unopposed,
from the date of the polling day.
Provision is made for persons who will be unable to cast their votes on
election day (whether by reason of physical disability or because they will
be away from their polling area) to make use of special or postal votes. Such
votes must be cast in strict accordance with the procedure laid down, which
is aimed at ensuring that no opportunity exists for irregularities and abuses
to occur, and must be cast before the appointed polling day, not on that day.73
Most voters cast their votes on polling day at the appointed polling sta
tion in their constituency. Voting is done by secret ballot: each ballot paper
contains the names of all the candidates for that constituency, with refer
ences to the political parties they represent or to the fact that they are in
dependent candidates. Voters are required to place an ‘X’ in the space
provided next to the name of the candidate of their choice. Any other mark,
comment, signature or the like, will mean that the ballot paper will be treat
ed as a spoilt vote.74 Great care is taken to ensure that secrecy is maintained
and that no irregularities occur (such as a voter voting in two constituencies,
or someone voting in the name of someone who is deceased but whose name
has not been removed from the voters’ roll). After the polling stations close,
the sealed votes are received and checked by the polling official and then
counted in the presence of the candidates and their agents. Special and postal
votes are added to the total and the result announced immediately. If two
or more candidates receive the same number of votes, the election has to
be conducted ab initio as if a vacancy had arisen.
The Electoral Act contains strict prohibitions on corrupt and unlawful elec
tion practices, such as bribery, the improper influencing of voters and ex
cessive expenditure on electioneering.75 Even the holding of opinion polls
is prohibited between nomination day and polling day,76 presumably because
72 S 41(4) of the Electoral Act 1979. Like ss 36-40, discussed above, this provision is aimed
at streamlining election procedure, eliminating candidates who enjoy no real support
in their community, and keeping electioneering costs under control.
73 See ss 47-93 of the Electoral Act, and the detailed discussion by J A Faris op cit at
293. Cf further Martin v Kiesbeampte Newcastle-afdeling 1958 2 SA 649 (D); De Vil
liers v Louw 1931 AD 241; Vorster v Backeberg 1949 1 SA 1057 (T); Gerdener v Return
ing Officer 1979 2 SA 663 (N).
74 There are invariably, a considerable number of such ‘spoilt papers’. Very few of these
are the result of ignorance on the part of the voter: a spoilt vote is in fact a generally
accepted means of showing that one does not support the candidature of any of the
candidates, and is a stronger indication than merely abstaining from voting, which
may be construed as apathy.
75 Ss 129-154 of the Electoral Act. See De Klerk v Naude 1937 TPD 180; R v Boonzaaier
1952 1 SA 91 (C); R v Walker 1959 1 SA 678 (C); R v Rayner-Dean 1955 1 SA 321
(SWA) and Faris op cit at 350-367.
76 S 143 of the Electoral Act.
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such polls are unreliable and may influence gullible voters. However, since
gullible voters are equally likely to be influenced by the utterances of friends
and the media, the restriction would seem to be an unnecessary one. A can
didate who is found guilty of corrupt or unlawful practices is liable to be
disqualified both as regards the election at which he was elected and as regards
elections for Parliament or public office for the following five years.
4 Election Petitions
Any registered voter in a constituency, any person qualified to stand for elec
tion, and any candidate may challenge the validity of an election result.77
Such election petitions are heard by three judges and the court may confirm
the election, declare another candidate duly elected or declare the seat va
cant. If an allegation of corrupt or unlawful practice has been made, the
court must report this to the Speaker and if the allegation is found to be
true, the matter must be referred to the Attorney-General.
VII THE LEGISLATIVE PROCESS

1 Introduction
It has already been pointed out78 that the distinction between own affairs
and general affairs is central to the system of government created by the Con
stitution Act, and the State President’s role in the determination of what
are own affairs and what are general affairs has also been dealt with in de
tail.79 The legislative process varies somewhat according to whether the legis
lation submitted to Parliament has been endorsed as own-affairs legislation
or not.
2 Own-affairs Legislation
Own-affairs legislation is adopted by the House concerned and is thereafter
submitted to the State President for approval. The bill in question must be
accompanied by or endorsed with the State President’s certificate that the
subject of that legislation is an own affair of the population group concerned;
such a bill may not be introduced or in any way dealt with by either of the
other Houses.80 If the bill is amended in any way during the course of the
legislative process, the State President may issue a certificate stating that the
amendment introduces issues which are not the own affairs of the popula
tion group concerned. This certificate may be issued even after the House
has adopted the legislation and it has been submitted to the State President
77 Usually within 42 days after the election. See ss 155-182 of the Electoral Act; Faris
op cit at 438 and the cases of Ex parte Wilkie 1920 OPD 139; Petterson v Burnside
1940 NPD 403; Olufsen v Klisser 1959 3 SA 351 (N); Tighy v Putter 1949 1 SA 1087
(T); Marais v Macintosh 1978 3 SA 414 (N).
78 In ch 14 at 285-286.
79 In ch 15 at 301 et seq. Note that it has become customary for the question whether any
particular matter is an own affair to be referred to the state’s legal advisers before the
State President is approached for his endorsement - see Malherbe 1986 THRHR 1 at 6.
for his approval. The bill is then returned to the House and may not be sub
mitted (or resubmitted) to the State President unless the amendment is with
drawn or rejected by the House or is reconsidered by the House and replaced
by another amendment which is not in conflict with the State President’s
certificate.81
As a rule, however, own-affairs legislation will follow the normal course,
which is virtually identical to that followed prior to the commencement of
the 1983 Constitution, namely, first reading,82 second reading (discussion
of general principles); committee stage (detailed discussion by House sitting
as committee and followed by a report to the House); third reading.83
After an own-affairs bill has been passed by the House concerned, the
Chairman of the House must issue a certificate stating that the bill has been
duly passed before submitting the bill to the State President for his approval.84
The State President is thereupon obliged to approve the legislation unless
he is satisfied that it has not been adopted in accordance with the provisions
of the Constitution.85 Any bill which has been approved by the State Presi
dent in this way is deemed to be an Act of Parliament just like a bill passed
by all three Houses.86 The Constitution makes no provision for the possibi
lity that own-affairs legislation may conflict with existing general-affairs legis
lation.87
3 General-affairs Legislation
The Constitution itself makes little specific provision for the way in which
general-affairs legislation is to be adopted in the new system. It was clear
that the intention was that parliamentary standing committees were to play
an important role88 but the precise nature of this role remained uncertain
until the new parliamentary standing orders had been drafted.89
Public bills dealing with general affairs (money bills excluded) are in
troduced by way of their submission to the Speaker together with a memoran
dum setting out the objectives of the legislation.90 If Parliament is in session,
the Speaker tables the bill and memorandum in each of the three Houses.
The bill is then deemed to have been read for the first time in each House
and to have been referred to the appropriate standing committee, unless each
81 S 31(2). Here, too, the practice has evolved that the state’s legal advisers are consult
ed before the State President will issue a certificate stating that the amendment does
not relate to the own affairs of the population group concerned — see Malherbe op
cit at 7.
82 The first reading now takes place by way of submission of the bill to the Speaker,
who tables it. It is then deemed to have been read for the first time — Standing Order
(SO) 51. See Malherbe op cit at 7.
83 See the discussion of this procedure in ch 12.
84 SO 96 and s 31(3).
85 S 33(1). See Booysen and Van Wyk op cit at 107.
86 S 34(1).
87 See the discussion later in this chapter at 347-349.
88 See s 64.
89 Joint Standing Rules and Orders (JSRO) issued in terms of s 102(6)(b) of the Consti
tution.
90 JSRO 23(l)(a).
I
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of the Houses decides to refer it to a joint or other standing committee.91

If Parliament is not in session, the Speaker refers the bill and memorandum
direct to the appropriate standing committee. In such a case it is deemed
to have been referred by the Houses themselves.92 The principle is that there
is nothing to prevent standing committees from continuing with their work
while Parliament is in recess.
The standing committee has an extensive mandate to examine the bill as
regards both principle and detail.93 There is a permanent standing commit
tee for each ministerial portfolio, as well as standing committees for accounts,
private members’ motions, constitutional affairs and domestic parliamen
tary affairs. Each standing committee consists of three standing select com
mittees (one for each House). The parties in the standing select committees
of the Houses are represented in proportion to their numerical strength in
Parliament, as before. Decisions of the standing committee are taken when
the majority of the members of each select committee making up the stand
ing committee supports the bill and reports to this effect to its House. When
a particular select committee does not accept the report or bill and submit
it to its House, the Speaker must place the report of another of the select
committees on that House’s agenda for consideration, thus ensuring that every
House has the opportunity to examine the results of a standing committee’s
negotiations, whether consensus is achieved or not.94
In the majority of cases, the joint standing committee will reach consen
sus, but even if it does not, the next stage of the legislative process is the
second reading of the bill. After the standing committee has reported back
to the Houses, the member responsible for the bill (it will usually be a minister,
as before) may request that the second reading of the bill be proposed at
a joint sitting of the Houses. The other possibility is that the member may
propose the bill in each House, but give his second reading address only in
one House and table it in the others.95 In both cases the second reading de
bate is conducted in each of the Houses sitting separately.96
Although the joint standing committee will have discussed the principles
underlying the bill and will have eliminated the possibility of conflict between
the Houses to a major extent, the Houses themselves are not precluded from
debating the bill fully: amendments may be proposed signifying opposition
to the bill, or requesting that the bill be referred or referred back to a joint
or standing committee, or the proposal may be made that the bill be read
in six months’ time, signifying total rejection of the bill.97 If two Houses
adopt the amendment that the bill be referred to a committee and the third
accepts the bill as it stands, the amendment is deemed to have been approved
by all three Houses;98 but if two of the Houses read the bill as it stands for
a second time, and the third adopts an amendment referring the bill to a
committee, this House is deemed to have rejected the bill.99
91 JSRO 23(2)(a). See Malherbe op cit at 8 et seq.

92 JSRO 23(3)(a).
93 The function of parliamentary committees will be examined in greater detail below.
94 JSRO 14(2). See Malherbe op cit at 4.
95 JSRO 27(1).
96 JSRO 28.
97 JSRO 30(l)(a).
98 JSRO 30(2).
99 JSRO 30(3).
If all three Houses have read the bill a second time, the legislation is sub
mitted to the State President for his assent.100 The traditional committee stage
and the third reading therefore fall away altogether. However, any member
may, within three days after the bill has been read a second time in his House,
propose that the legislation be referred to the appropriate joint standing com
mittee or to a committee of the whole House with a view to considering
amendments.101 Two of the Houses must be in favour of such a referral for
it to take place.102 If, after consideration by the committee, no amendments
have been proposed after all, the bill is presented to the State President for
his assent;103 but if the bill is amended, the amended version of the legisla
tion must go through the third-reading process in each house before being
transmitted to the State President.104
The above procedure applies to all public general-affairs bills other than
i,ketaketeverrio.waar
money bills, which follow a somewhat different procedure. Like other bills,
money bills are introduced by way of submission to the Speaker, who tables
the bill in each House (first reading).105 The minister responsible for the bill
then proposes the second reading in a joint sitting of Parliament.106 The bill
is not immediately referred to a standing committee;107 the minister first
r
delivers his traditional budget speech, and the legislation is referred to the
standing committee afterwards.108
A standing committee may adopt a report, but need not: if it does, the
report must be submitted to the House concerned when the seven-day peri
od expires.109 Provision is made for an optional report because the standing
committee does not, at this stage, have the power to propose amendments.110
Next, the second reading debate takes place in each House,111 and when
the bill has been read in all the Houses, it must be referred to the committee
of the whole House in every House, to the appropriate budget committee
of each House or to the appropriate joint or standing committee.112 In the
first two cases, the procedure is the same as for other bills, but if the bill
is referred to a joint or standing committee, each committee which forms
part of the joint committee must adopt a report, and this report is dealt with
in the same way as any other general-affairs legislation.113
100 JSRO 32.

101 JSRO 33(1). Only those clauses in respect of which amendments are proposed, are
considered by the committee - JSRO 33(2).
102 JSRO 33(4).
103 JSRO 35.
104 JSRO 36(1).
105 JSRO 41.
106 JSRO 42(1).
107 The consideration of an appropriation bill by a standing committee prior to the
minister’s budget speech could lead to such committees having a greater influence
on the budget — see Malherbe op cit at 9.
108 In the case of the main budget speech, to the standing committee on Finance, which
may devote seven consecutive sitting days to the consideration of the bill -
JSRO 43(1).
109 JSRO 43(2).
110 This rule is aimed at preventing the situation where a money bill may be technically
rejected by Parliament, leading to the fall of the government in terms of s 39(2)(b)(ii).
See Malherbe op cit at 10 and the discussion in ch 15 above.
Ill JSRO 44.
112 JSRO 49.
113 JSRO 49(4).
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Finally, the bill is read for the third time and transmitted to the State Presi
dent for his assent.
The distinction between own-affairs and general-affairs legislation is a novel
feature of the 1983 Constitution, but the traditional distinction between public
and private bills has not disappeared in consequence.114 Both own-affairs
and general-affairs bills may be public, private or hybrid bills. The proce
dure which public bills must follow, has been discussed in full; the proce
dure relating to private and hybrid bills (whether they deal with own or general
affairs) will remain as it was under the 1961 Constitution, until Parliament
as a whole issues Joint Standing Rules and Orders in this context, or a par
ticular House issues its own Standing Orders.115
4 Procedure in the Event of Conflict among the Houses

When, despite all efforts to achieve consensus via the committee system, the
Houses do not all adopt the same version of legislation at the third reading,
a conflict is said to exist among the Houses. Section 32 of the Constitution
defines the various forms which such a conflict may take:
(i) one or two of the Houses may approve a bill and the other(s) may reject
it or be deemed to have rejected it;116
(ii) two of the Houses may approve different versions of the bill and the
third House may reject it or be deemed to have rejected it;
(iii) two of the Houses may adopt a similar version of a bill and the third
a different version; and.
(iv) each of the Houses may adopt a different version of the bill.
If such a conflict is said to exist, the State President may refer the bill
or the various versions of the bill to the President’s Council for its decision.117
(If he decides not to refer the bill to the Council, the legislation simply dies
a natural death.) Such a reference must take place within the same session
of Parliament, and the State President is at liberty to withdraw the reference
at any time before the Council has given its decision. Here, again, the legis
lation would fall away.
The President’s Council’s powers are set out in section 78(4) and (5). When
a bill is referred to it in terms of section 32, the Council may refer the bill
to a committee of the Council for its consideration118 and before the Coun
cil takes a final decision about which version of the bill should be submitted
to the State President for his assent, it may, from time to time, advise the
State President in regard to the bill.119
114 See ch 12 at 249.

116 In terms of s 32(2), when a House fails to deal with a bill within a certain time, as
requested by the State President. This provision is clearly intended to prevent any
one House from adopting delaying tactics.
117 S 32(1).
118 S78(4)(a).
119 S 78(4)(b).
Section 78(5) spells out precisely the options which the President’s Coun
cil has when it has to resolve a legislative conflict: where one or two Houses
have approved a bill and the other House (or Houses) rejected it, the Coun
cil must decide whether the bill should be submitted to the State President
for his assent;120 where two Houses have approved different versions of a
bill and the other House has rejected it, the Council must decide which of
the approved versions must be submitted to the State President, or that neither
of those versions should be submitted to him;121 where two Houses approve
one version of the bill and the other a different version, or where all three
Houses approve different versions of the bill, the Council must decide which
version is to be submitted to the State President.122 If the President’s Coun
cil decides, in terms of section 78(4), to ‘advise’ the State President rather
than to ‘decide’ about the legislation, its recommendation or advice must
. ...^-.^rtiketakeWvertiQ.waw
.oeitemeturinenno.monddrooghud.
be put before Parliament123 within 14 days to be dealt with by the Houses.124

If the Houses accept the recommendations of the Council, the bill will be
submitted to the State President for his assent in the usual manner; if con
sensus cannot be reached, the conflict persists and the President’s Council
will have to take a final decision before the end of that session of Parlia
ment, unless the State President decides to withdraw the reference of the bill
to the Council.125
If, on the other hand, the President’s Council opts to decide about a bill
in terms of section 78(5) rather than to advise Parliament in terms of sec
tion 78(4), its decision must also be tabled in all three Houses of Parliament
within 14 days.126 In such a case the tabling would appear to be a mere for
mality since the bill is deemed to have been approved by Parliament itself
if the Council decides, within the same session as that within which the refer
ence was made, that a particular version of the bill should be submitted to
the State President for his assent.127 The bill is then endorsed by the Speaker
as having been submitted in terms of a decision of the President’s Council.128
It must be emphasized that the President’s Council possesses no final power
of decision in respect of legislation affecting any of the so-called entrenched
provisions.129
120 S 78(5)(a), read with s 32(l)(a).

121 S 78(5)(b), read with s 32(l)(b).
122 S 78(5)(c), read with s 32(l)(c) and (d).
123 S 78(8), read with s 32(3).
124 Under the 1961 Constitution the State President did, in theory, have the power to
return a bill to Parliament with suggested emendations. As Booysen and Van Wyk
op cit point out at 111, this new arrangement appears to have some merit.
125 This is in keeping with the general rule of parliamentary procure that unfinished busi
ness falls away at the end of each parliamentary session unless Parliament decides
otherwise - see Van Wyk ‘Parliament’ 19 LA WSA at 230.
126 S 78(8).
127 S 32(4).
128 S 32(5).
129 S 99(4). The entrenched provisions will be dealt with more fully later on in this chapter.
The Legislature 345
VIII THE ROLE OF PARLIAMENTARY COMMITTEES UNDER THE

1983 CONSTITUTION130
1 The Various Committees of the Tricameral Parliament
(i) Standing committees
A standing committee is appointed in respect of each ministerial portfolio
for general affairs;131 in addition, there are standing committees for accounts,
private members’ motions, constitutional affairs, the accounts of the South
African Transport Services and Posts and Telecommunications, and domestic
parliamentary affairs.132 These committees are appointed for the life of Parlia
ment,133 and may continue with their work while Parliament is in recess.134
Each standing committee is composed of three standing select commit
tees, one for each House of Parliament.135 These standing select committees
are appointed for the life of the House concerned. If a standing select com
mittee which should form part of a standing committee is not appointed or
does not function at a particular stage, the standing committee is deemed
to be composed of such select committees as are operative.136 Select com
mittees function primarily as part of a standing committee, but may func
tion on their own as well.137 It has been agreed among the Houses that
standing committees will normally have 23 members: eleven comprising the
standing select committee from the House of Assembly, seven from the House
of Representatives and five from the House of Delegates.
The parties are represented in the standing select committee of each House
in proportion to their numerical strength in the House. If a party does not
have enough representatives to qualify for membership of all the commit
tees, the leader of the party must indicate the committees on which the party
wishes to serve.138 The chairman of each standing committee, who need not
be a member of the committee, is appointed by the Speaker.139
Decisions of standing committees are taken by way of concurrent majori
ty - which means that the majority of members present from each standing
select committee constituting the standing committee are in agreement.140
Each standing select committee forming part of a standing committee must
adopt a resolution (this may include a bill) and submit it to the House con
cerned.141 When a particular standing select committee does not approve a
report or bill and submit it to the House, the Speaker must place the report
130 See Malherbe op cit 1 for a full discussion of this topic.

131 JSRO 10(1).
132 JSRO 10(2), (3) and (4).
133 S 64 and JSRO 9(l)(d).
134 S 64 and JSRO 22. These duties need not be performed in Cape Town: See the Pow
ers and Privileges of Parliament and Constitution Amendment Act 99 of 1985.
135 JSRO 9(l)(d).
136 JSRO 9(l)(e).
137 JSRO 9(l)(b).
138 SO 163(5).
139 JSRO 12.
140 JSRO 13(1).
141 JSRO 14(1).
of another standing select committee on that House’s agenda for considera

tion.142 This is to ensure that each House has the benefit of a standing com
mittee’s deliberations even where consensus is not achieved.
(ii) Ad Hoc committees

Although the standing committees are probably the most important of the
committees of the tricameral Parliament, there are various committees of
a temporary nature as well.
(a) Joint committees consisting of three select committees (one from each
House) may be appointed for the duration of a single session to consider
or investigate a particular matter.143
(b) Select committees may be appointed in each House to deal exclusively
with that House’s own affairs.144
(c) Committees of the whole House. These, too, are a throw-back to the
committee stage of the previous Parliament and for the most part function
only in the adoption of own-affairs legislation.145
(d) Appropriation committees may be appointed, to which a budget vote
for a particular House may be referred.146 The main purpose of such com
mittees is to save time.
2 The Part played by the Committees of the Tricameral Parliament147

The role of joint standing committees in the legislative process has been dis
cussed above. It is of some importance, however, to consider the general
principles underlying the system of parliamentary committees in order to
evaluate their contribution.
The main functions of the committees of the South African Parliament
may be briefly summarized as follows:
(i) They serve to lighten the parliamentary work-load by streamlining the
legislative process.
(ii) Parliamentary committees afford greater opportunities for participation
by individual members in the decision-making process.
(iii) Members are given a greater opportunity to specialize in a particular field.
(iv) Committees can promote more effective communication between mem
bers of the various Houses, and, potentially, between individual members
and the executive, and between parliamentarians and the public.
142 JSRO 14(2).

143 JSRO 9(l)(c). An example of this kind of committee is the joint committee which
enquired into and reported on the Prohibition of Mixed Marriages Act and s 16 of
the Immorality Act.
144 These function in exactly the same way was the select committees of the 1961 Parlia
ment: SO 160-175.
145 See the discussion in ch 12 at 251, and above in this chapter at 342; JSRO 49.
146 Appropriation committees consisting of not more than 30 members are appointed
by the Standing Orders Committee of the House concerned — SO 77.
147 See Malherbe op cit at 12-19.
The Legislature 347
(v) Interest groups have a better chance of success in putting their point of
view across if they deal with a relatively small committee than with Parlia
ment as a whole.
(vi) Committees offer more appropriate and useful forums for negotiation.
The success rate in the South African Parliament has been remarkably high:
conflict between the Houses has been eliminated at the committee stage in
all but the most controversial legislative matters.
(vii) Committees offer a better chance of achieving consensus than do large,
unwieldy bodies.
Although the new committee system has proved fairly successful in South
Africa during its short period of existence, there are a number of factors
which should be kept in mind. Here the experience of such systems in other
countries may prove useful.
It has been observed, for example, that parliamentary committees func
tion more creatively and independently where the separation between legis
lature and executive is more marked than it is in the Westminster system.
It is significant that ministers do not, as a rule, attend meetings of standing
committees, and that only two committees, (constitutional affairs and pri
vate members’ motions) are chaired by ministers.
The influence of party discipline tends to be less strong in committees,
a factor which is conducive to co-operation and consensus. The Westmin
ster tradition of strict party discipline has, however, remained prominent in
South Africa, particularly where members of the House of Assembly are con
cerned.
If there are too many different committees, this can lead to fragmenta
tion, which, in turn, means reduced efficiency. This is a real danger in a sys
tem with more than one chamber or with a large number of members. Another
problem is that where members have to serve in a number of committees
(usually because their party is poorly represented in Parliament) they do not
have the opportunity to specialize that they would otherwise have enjoyed.
Smaller committees lend themselves to co-operation among members, great
er informality and greater esprit de corps, thus producing a better chance
of achieving consensus. Consensus will also be more likely if the committees
themselves feel that they possess real influence and power, that they are not
merely going through the motions of deliberating and negotiating. The fact
that proceedings are held in camera also encourages members to negotiate
more freely and openly.
The greatest potential drawback to the system of parliamentary commit
tees lies in the ideological differences which exist between the Whites and
the other population groups. Such differences must necessarily militate against
the achievement of consensus, particularly where contentious legislation is
involved.
IX THE LEGAL FORCE OF ACTS OF PARLIAMENT

Section 34(1) of the Constitution merely provides that a bill which has been
assented to by the State President is an Act of Parliament. Specific reference
is made to section 33(1), so that ‘bill’ in this sense includes general-affairs
legislation approved by all three Houses, general-affairs legislation approved

by the President’s Council after a conflict among the Houses, and own-affairs
legislation approved by the House concerned.
In terms of section 34(2), the Supreme Court has jurisdiction to enquire
whether the provisions of the Constitution have indeed been complied with
in respect of any enactment purporting to be an Act of the State President
and Parliament (or a single House). The rules and orders of any House, and
the Joint Standing Rules of Parliament are not, however, regarded as part
of the Constitution for the purposes of judicial control.148
The section does confer on the courts a power it did not have before, name
ly to test legislation for procedural correctness — whether the procedure laid
down is entrenched or not. The problems which arose in connection with
the interpretation of provisions such as section 114 of the 1961 Constitution
have therefore been eliminated.149
One question arising in connection with the legal force of Acts of Parlia
ment, is whether an enactment adopted in conflict with a procedural provi
sion of the Constitution would be void ab initio or merely voidable until
declared invalid by the court. As Booysen and Van Wyk point out,150 although
the Harris cases seem to point to the former construction, the matter is by
no means clear.
The possibility of conflict between own-affairs and general-affairs legis
lation raises real difficulty of both a practical and a theoretical nature. Apart
from the provision in the first schedule to the Constitution that own-affairs
laws will be subordinate to certain general-affairs laws,151 the Constitution
does not provide a clear answer: all laws are, in terms of sections 33 and
34, Acts of Parliament, whether they have been approved by all three Houses,
by one House or by the President’s Council. It cannot be concluded, there
fore, that own-affairs legislation will in all cases automatically enjoy inferi
or status to general-affairs legislation. It is therefore conceivable that a later
148 S 34(2)(b). This is no new rule, but merely a restatement of the common-law rule
that Parliament is master of its own procedure. The principle has been narrowed down
somewhat, since any matter of procedure which forms part of the Constitution itself
(eg whether a quorum was present) will be justiciable. See the discussion in ch 18,
Booysen and Van Wyk op cit at 113 and JD van der Vyver ‘Judicial Review under
the new Constitution’ 1986 SALJ 236.
149 See the discussion in ch 12 above. Prior to the Harris decisions, it was not settled
law that the courts had any testing power at all, even in regard to the so-called
‘entrenched’ provisions. The Harris cases then acknowledged a power to test ‘manner-
and-form’ provisions, but, since only the entrenched sections were in issue, there was
no authority as regards other procedural provisions. S 59(2) of the 1961 Constitu
tion expressly confined the courts’ jurisdiction to the entrenched sections (108 and
118) and the courts held on several occasions that Parliament was not bound by non
entrenched provisions such as s 114 (eg in Mpangele v Botha 1982 3 SA 633 (C);
1982 3 SA 638 (C)). S 34(3) is a restatement of s 59(2) of the 1961 Constitution, provid
ing that the courts will have no testing power except as stated in s 34(2).
150 Op cit at 114.
151 Eg that community development (an own affair) is subject to the provisions of the
Group Areas Act of 1966. Thus own-affairs legislation having the effect of amend
ing the Group Areas Act will have to give way in the event of a conflict. See Booysen
and Van Wyk op cit at 115.
The Legislature 349
own-affairs law may have the effect of amending or repealing an earlier law
(whether passed before or after the commencement of the 1983 Constitu
tion) by virtue of the rule of statutory interpretation that lex posterior derogat
priori. There are, however, cogent arguments in favour of the conclusion
that such an own-affairs law will amend or repeal the earlier law pro tanto
only; that is, it will change the legal position only so far as members of the
relevant population group are concerned.152
X AMENDMENT OF THE CONSTITUTION

1 Introduction
Until the advent of the Statute of Westminster, little attention was devoted
to amendment of the South Africa Act. It was only when the justiciability
of the entrenched sections arose in the Harris cases that the question whether
legislative supremacy was reconcilable with enforceable procedural provisions
began to be examined.153 Today it is generally accepted that procedural pro
visions do not derogate from the sovereignty of Parliament (or the suprema
cy of the legislature, if you will).
Under the 1961 Constitution there was no doubt that the courts had the
power to test observance of the two entrenched sections.154 The position of
unentrenched procedural provisions gave rise to a good deal of academic155
and judicial156 speculation, but in the end the conclusion arrived at was that
non-compliance with the provisions of section 114 (the main focus of atten
tion) did not render any Act of Parliament invalid, and, moreover, that Parlia
ment could not only amend or repeal section 114 expressly, but could amend
it by implication merely by adopting legislation in conflict with the pro
vision.157
2 The 1983 Constitution

Whereas both the South Africa Act and the 1961 Constitution contained only
a very limited number of judicially enforceable procedural provisions, the
1983 Constitution boasts a large number of entrenched sections. Further
more, there are now two different forms of entrenchment,158 and unen
trenched procedural provisions have expressly been rendered justiciable. It
may well be asked whether the sheer number of enforceable procedural pro
visions, a phenomenon unknown to the Westminster system, does not in ef
fect derogate from the supremacy of the South African Parliament after all.
It must be concluded, however, that the critical phrase here is ‘duly
passed’: the courts have jurisdiction only where legislation has not been duly
152 See Booysen and Van Wyk opcitat 116-117, where they examine the concept‘Parlia
ment’ in the 1983 Constitution, and come to the conclusion that the answer to the
question remains the same, whether the approach adopted is conceptual or functional.
153 See chs 3, 6 and 12 above.
154 S 59(2).
155 See the discussion in ch 6 at 149 fn 94 above.
156 Cowburn v Nasopie (Edms) Bpk 1980 2 SA 547 (NC) at 554 (per Van den Heever J).
157 Mpangele v Botha, above.
158 Van der Vyver 1986 SALJ at 252-253, distinguishes between ‘hard’ and ‘soft’
entrenchments.
approved. The only change is that the factors affecting due approval have
been spelt out more expressly, namely in section 99 of the Constitution.
Section 99(1)
This subsection merely provides that, subject to the provisions of subsec
tions (2) and (3), Parliament may repeal or amend any provision of the Con
stitution. ‘Parliament’ in this context must mean all three Houses, since the
Constitution cannot but fall into the category of general affairs. It is, of
course, conceivable that the amendment or repeal could be effected by one
of the Houses, where the other Houses refuse to participate in the parliamen
tary process, or where a conflict arises among the Houses and the President’s
Council is called upon to act as final arbiter.
Section 99(2)
This provision is the successor to section 118 of the 1961 Constitution, which
provided that any provision affecting the status of the official languages had
to be amended or repealed with the approval of two-thirds of all the mem
bers of the House of Assembly and the Senate sitting jointly (after the aboli
tion of the Senate, two-thirds of all the members of the House of Assembly).
Section 99(2) provides that any repeal or amendment of section 89 or of sec
tion 99 itself must be approved by at least two-thirds of the total number
of members in each House. Section 89(1) provides that English and Afrikaans
are the official languages and enjoy equal freedom, rights and privileges,15’
and section 89(3) provides for the possibility that a black language may be
recognized as an additional official language within a particular self-governing
black territory within South Africa.
The protection afforded by the entrenchment in the 1983 Constitution is
more effective than that provided under the South Africa Act and the 1961
Constitution, since no provision is made for joint sittings; this means that
a shortfall in one House cannot be made good by a surplus of votes in another,
and also that there can be no repetition of the situation that arose in the
1950s when the Constitution was manipulated, via the enlargement of the
Senate, in order to achieve the required majority.159 160 It could also be argued
that, as section 99(2) no longer requires specifically that the two-thirds majori
ty must be obtained in the third reading, the necessary majority must be ob
tained throughout the legislative process.161
Section 99(3)
A large number of provisions of the Constitution are enumerated in this sub
section: it is provided that any amendment or repeal of these must be ap
proved by a majority of the total number of members of each House. Even
though the required majority is not as high as the traditional two-thirds
159 One could quibble with this wording: it is impossible to conceive of a language as
having rights or privileges; it would be more correct to speak of equal status. Cer
tainly individuals may have rights in regard to language — see the discussion in ch 5.
160 The constitutional crisis is dealt with in ch 6 above.
The Legislature 351
majority laid down for the language provisions, there is no doubt that the
protection afforded by the entrenchment is substantial: each House must vote
in favour of the amendment (again a shortfall in the House of Delegates,
for example, cannot be made good by a surplus of votes in the House of
Assembly); again there must be a majority of all members (not of members
present); finally, section 99(4) provides expressly that a bill which amends
a provision mentioned in section 99(2) or (3) shall not, in the circumstances
envisaged in section 32(1) (disagreement among the Houses) be referred to
the President’s Council for its decision. As far as the entrenched sections
are concerned, therefore, each of the three Houses possesses an effective veto.
An intriguing question comes to mind here: what would the position be~iF
— one or two of the Houses was not functioning, for example, because of a
decision _to boycott the system altogether? Would an absolute majority in
the House of Assembly be able to abolish either or both of the other Houses,
for the sake of argument?162 Even though this is not stated in the Constitu-
tion, it would seem to be implied that such a step would bemvalijh
The following provisions are covered by section 99(3):
• section 7(l)(b) — the composition of the electoral college for the election
of the State President and the Speaker;
• section 7(5) — the requirement that the State President must meet the re
quirements for membership of one of the Houses of Parliament;
• section 7(6) — the requirement that the State President must relinquish
other offices of profit on being elected;
• section 8(5) — the provision that the election of the State President is by
secret ballot and that the successful candidate must poll a majority of all
the votes cast;
• section 9(1) — the term of office of the State President and his eligibility
for re-election;
• section 9(3)(a) — removal of the State President;
• section 14 — the definition of own affairs;
• section 15 — the definition of general affairs;
• section 16(1) — the State President’s power to decide about own and gener
al affairs and the criteria to be employed;
• section 19 — the executive in general;
• section 20 — the Cabinet;
• section 21 — the Ministers’ Councils;
• section 23(2) — countersigning of instruments by ministers;
• section 30 — composition and powers of the legislature;
• section 31(1) — endorsement of own-affairs legislation;
• section 31(2) — endorsement of amendments to such legislation;
162 See WHB Dean ‘A New Constitution for South Africa?’ Jahrbuch des Óffentliches
Rechts der Gegenwort (1984) 459 at 506; Van der Vyver 1986 SALJ st 254, as regards
the effect of ’failsafe’ provisions in this context.
• section 32(1) - conflicts between Houses with regard to general-affairs

legislation and referral to the President’s Council;
• section 32(2) - bills deemed to have been rejected by a House;
• section 32(3) - the provision that the Houses may deal with a recom
mendation of the President’s Council;
• section 32(4) — a bill is deemed to have been approved after the decision
of the President’s Council;
• section 33 - assent to legislation;
• section 34(2)(a) - the Supreme Court’s power to test legislation;
• section 37(1) — the three Houses of Parliament;
...^„.„MthkeUketevenig.waat
• section 38(2) - Parliament must sit at least once a year;

„emeturinerino.monddroooheid.
• section 39(1) - the life of Parliament is five years;

• section 39(2) — the dissolution of Parliament;
• section 41(1) - the composition of the House of Assembly;
• section 42(1) — the composition of the House of Representatives;
• section 43(1) — the composition of the House of Delegates;
• section 52 — the franchise;
• section 53 — qualifications for members of Houses;
• section 54 - disqualifications for members of Houses;
• section 64(3) - the joint rules and orders of the Houses must provide
for at least one standing committee on general-affairs legislation;
• section 70(1) - the composition of the President’s Council;
• section 71(1) — qualifications for members of the President’s Council;
• section 71(3)(b) — if a member of the President’s Council becomes dis
qualified to be elected or nominated as a member of a House, he vacates
his office;
• section 71(3)(c) — if a member of the President’s Council becomes a mem
ber of Parliament, he ceases to be a member of the Council;
• section ’ll — the life of the President’s Council;
• section 78(5) - the decision of the President’s Council regarding legisla
tion referred to it in consequence of a disagreement between the Houses;
• section 99(3) - the section entrenching the procedure to be followed in
all the abovementioned provisions;
• section 99(4) — disputes about laws amending or repealing provisions
enumerated in section 99(3) are not referred to the President’s Council
for its decision;
• first schedule - the list of own affairs and general affairs.
So much for the provisions of the Constitution which are entrenched and
cannot be amended or repealed without the co-operation of all three Houses.
These are arguably the most important provisions in the Constitution; an
examination of the other provisions shows, however, that there are poten
tially vital provisions among the ‘ordinary’ sections as well: as Booysen and
The Legislature 353
Van Wyk point out,163 legislation may be adopted which amends the pre
amble to the constitution, changes the boundaries of the Republic, replaces
the national flag and anthem, abolishes provincial boundaries, replaces the
State President as Commander-in-Chief of the South African Defence Force,
changes or even abolishes the State President’s powers, alters the structure
of the Supreme Court, and so on. In addition, there is no restriction what
soever on Parliament’s general legislative power - it may still make laws
dealing with law and order generally, encroach upon individual rights, govern
the affairs of Blacks within the Republic, change the citizenship laws, and
so on. Such legislation may in effect be approved by one House, since the
opposition of the other Houses can be overruled by the President’s Council.164
XI POWERS AND PRIVILEGES OF PARLIAMENT

The British Parliament has always guarded its privileges jealously, particu
larly after the constitutional struggle between King and Parliament in the
seventeenth century,165 and severely punished anyone who breached these
privileges.
The powers and privileges of the Union Parliament, as taken over in Act
19 of 1911, correspond to a major extent with those of the British Parlia
ment, but are not identical to the latter in all respects.166 Perhaps the most
important parliamentary privilege is that of freedom of speech. Then, as now,
members of Parliament enjoyed complete freedom of speech within the
House, subject to the requirement that the rules of debate have to be ob
served. While freedom of speech means that nothing said by a member to
or about another person in the House can found an action for defamation,167
it does not mean that members are free to be as rude and offensive as they
please. The rules of debate have to be obeyed — these govern the time and
manner of speaking, the contents of speeches, the behaviour of members
and the powers of the chair to enforce order. Members are not permitted
to use unparliamentary language168 and a refusal to withdraw a remark judged
to be unparliamentary by the Speaker (as, indeed, any refusal to obey an
order given by the Speaker) may result in the member’s expulsion from the
chamber and even in his suspension.
Freedom of speech also means freedom to vote in accordance with the dic
tates of one’s conscience. A member who casts his vote in a manner which
163 Op cit at 144.

164 The controversial Public Safety Act of 1986 was eventually passed by the President’s
Council even though more members of Parliament voted against the bill than in favour
of it.
166 The Powers and Privileges of Parliament Act 19 of 1911. Before this legislation was
adopted, the Union Parliament enjoyed the same privileges as the lower House of
the Cape Parliament had enjoyed prior to Union. The 1911 Act was repealed by the
Powers and Privileges of Parliament Act 91 of 1963, which contains substantially
the same provisions as the 1911 Act, except for the changes necessitated by the change-
over to a republican form of government.
167 S 2 of the 1963 Act. The privilege may be claimed only by members and officials
of Parliament and not, for example, by a person testifying before Parliament or a
parliamentary committee.
168 For examples of unparliamentary language see Van Wyk op cit at 217 fn 10.
is not consistent with his party’s policy may certainly expect the party cau
cus to take disciplinary steps against him; but as far as Parliament is con
cerned, he is free to vote as he wishes.169
A further privilege enjoyed by members of Parliament is that no member
can incur civil or criminal liability for anything said or broached in Parlia
ment.170 Members of Parliament and parliamentary officials were also ex
empt from jury service while they were rendering parliamentary service.171
Members and officials of one House are neither permitted nor obliged to
appear before another House, except with the consent or upon the order of
their own House.172
Members are under obligation not to vote in any matter in which they have
a financial interest, • and any member who contravenes this rule may be
charged with contempt of Parliament.173 Any matter relating to privilege
which is not covered by the Act, is decided by the Speaker in accordance
with parliamentary procedure in other countries.174
Our courts have always taken judicial notice of the privileges enjoyed by
the House of Commons, and the privileges, powers and immunities of mem
bers and officials of Parliament are regarded as part of the law of the coun
try. They need therefore not be pleaded in any court of law.175 The internal
procedure of the lower House falls beyond the jurisdiction of the courts.176
Parliament, or any committee of a House authorized to do so, may sub
poena any person to testify or produce documents and may examine wit
nesses under oath except, as mentioned above, members or officials of the
other Houses. The rules of the Supreme Court of South Africa applicable
to privileged evidence have to be observed whenever witnesses appear be
fore Parliament or any parliamentary committee. Any witness testifying be
fore Parliament who fears that he may incur criminal or civil liability as a
result, is entitled to a certificate exempting him from such liability.177
Parliament can also act as a court in the fullest sense of the word, and
has the power to try individuals on a number of charges, the most important
being that of contempt of Parliament. The various acts which constitute con
tempt of Parliament are enumerated in section 10 of the Powers and Privileges
of Parliament Act 91 of 1963; other offences include, for example, a refusal
by a witness to appear before Parliament, bribery or acceptance of a bribe,
and so on. The Act also enumerates further offences which may be tried by
169 Although the influence of the party system is growing ever stronger, the principle
of regional representation is still decisive. See the discussion in ch 8.
170 Ss 8 and 9 of the Act.
171 S 7. The jury system was abolished by Act 34 of 1969.
172 S 6. This rule was originally aimed at the case where a conflict could arise between
the Houses.
173 S 11. Parliamentary allowances do not fall within the scope of the prohibition.
174 See VerLoren van Themaat Staatsreg 1 ed (1956) at 283.
175 See VerLoren van Themaat Staatsreg 3 ed at 275-276.
176 See Van Wyk op cit at 168. This is in line with the position in Britain: see Bradlaugh
v Gossett 1884 12 QBD 271; Burdett v Abbott 1811 14 East 150. The question of
what precisely constitutes internal procedure and when Parliament is deemed to have
‘spoken’, is discussed in ch 6 at 142 et seq.
177 See ss 17-24.
The Legislature 355
Parliament, and which include the giving of false testimony178 (which can
be punished as perjury) and the acceptance by an attorney, legal agent or
parliamentary agent of any remuneration or reward for supporting or op
posing a bill serving before Parliament.179
Parliament acts as a court in hearing charges under Act 91 of 1963 and
possesses all the necessary powers in this regard, such as the power to issue
warrants for the arrest of the person concerned and to impose penalties such
as fines or even imprisonment.180
178 S 21.
179 S 26.
180 S 4. See Kilpin Parliamentary Procedure in South Africa 3 ed (1955), Erskine May
The Law, Privileges and Usage of Parliament 19 ed by Lidderdale (1976); Van Wyk
op cit at 238.
CHAPTER EIGHTEEN
The Judiciary
I INTRODUCTION
Like the 1961 Constitution, the 1983 Constitution contains only two provi
sions dealing with the judiciary: section 68 provides that the judicial authority
in the Republic vests in the Supreme Court of South Africa, which consists
of an Appellate Division situate in Bloemfontein, as well as Provincial and
Local Divisions, while section 69 provides that all administrative powers,
duties and activities relating to the administration of justice fall under the
control of the Minister of Justice.
As Booysen and Van Wyk point out,1 this should not lead one to con
clude either that the judiciary is not of major constitutional importance or
that there are no other statutory provisions governing the administration of
justice. For many years, however, the generally accepted view was that the
role of the judiciary in the Westminster system is relatively unimportant
because of the domination of the legislature — the fundamental principle
of legislative supremacy or parliamentary sovereignty.23In South Africa the
judiciary played a starring role for the first time during the constitutional
crisis of the 1950s and it has never really left the limelight ever since. It may
be said that the constitutional role of the judiciary is the topic which has,
more than any other, attracted attention in the constitutional sphere in the
past few years.4
The constitutional role of the judiciary, the organization of the judiciary
in South Africa, the appointment of judges, and the principle of the indepen
dence of the judiciary, are all dealt with in Chapter 13 of this work. The
1983 Constitution has not brought about any material changes to these fun
damental principles: legislative supremacy has been retained (with some adap
tations), judges are still independent, are still appointed by the State President,
but now presumably in consultation with the Minister of Justice rather than
on his advice — perhaps the existing convention is exceptionally strong here,
after all.
II THE JUDICIARY UNDER THE 1983 CONSTITUTION5

There are a number of important changes which have been brought about
to the role of the judiciary nevertheless. The judiciary is specifically
1 Die ’83 Grondwet at 132.

2 See ch 6 above.
3 See the account in chapters 6 and 13 above, where the Harris cases and their after
math are dealt with in detail.
4 Particularly in the sphere of the protection of individual rights — see the discussion
in ch 5 above.
5 For a general discussion of the role of the judiciary in the 1983 Constitution, see JD
van der Vyver ‘Judicial Review under the New Constitution’ 1986 SALJ 236.
356
The Judiciary 357
mentioned in the preamble to the Constitution for the first time: one of the
stated aims of the Constitution is to uphold the independence of the judiciary
and the principle of equality before the law. Now it is trite law that state
ments and declarations in preambles have very little constitutional sig
nificance; at most, the preamble may be employed in statutory interpretation
when the statute is ambiguous.6
1 Judicial Control over the State President7

The basic principle of the Westminster system in this regard, is that ‘the King
can do no wrong’: in other words, the monarch cannot be sued in the courts,
whether for his own actions or those of his ministers. The same applied to
the State President under the 1961 Constitution, but his position under the
1983 Constitution is complicated by the fact that he is both head of state,
as before, and head of government (Prime Minister). In theory it should be
possible to demarcate his legal position accordingly, so that he remains im
mune when acting as symbolic head of state but not when acting in the ca
pacity of Prime Minister. While this dichotomy may provide a practical
solution in some cases, it will not always serve; in any case, it is not feasible
to have to analyse the nature of the State President’s actions every time the
question of his legal responsibility arises. In general terms, however, it may
be said that the State President’s ‘prime ministerial’ role is far more impor
tant than his symbolic role under the new Constitution; that he is, as head
of government, an ordinary citizen, unlike the 1961 State President, who was
not only immune to all legal action but whose dignity was protected by a
specific provision of the Constitution.8 It is significant that no such provi
sion has been included in the 1983 Constitution.9
The Constitution makes provision for judicial control over the State Presi
dent in a limited number of cases. Section 17(2) requires that, before the
State President issues a certificate in respect of own-affairs legislation,10 he
shall consult the Speaker of Parliament and the chairmen of the three Houses.
The use of the word ‘shall’ indicates that the provision is peremptory,11 and
section 18(1) empowers the Supreme Court to enquire into, and decide upon,
the question whether the requirements of section 17(2) have been complied
with. This is ‘manner-and-form’ control pure and simple, as can be seen from
section 18(2), which spells out the position: except as provided in section 18(1),
no court of law is competent to impugn the validity of a decision of the State
President that matters which form the subject of a decision taken by the
State President in terms of section 16 are the own affairs of a particular
6 LC Steyn Die Uitleg van Wette 5 ed (1981) at 146.

8 S 13 of Act 32 of 1961.
9 The question here is whether the common-law rules relating to crimen laesae majesta
tu and crimen laesae venerationis still apply — in other words, whether someone who
offends the dignity of the State President (but only while he is acting in his capacity
as symbolic head of state, presumably) may be charged under the common law. See
C R Snyman Criminal Law at 257 et seq and 289.
10 See the discussion in ch 14 at 286 and ch 15 at 303.
11 See Steyn op cit at 196 and M Wiechers Administrative Law (1985) at 197.
population group or not. In other words, only the formal correctness of the
decision is subject to judicial control — the merits of the decision are not.12
The practical implications of section 18(1) are that if the State President issues
the relevant certificate in terms of section 16 and legislation is subsequently
adopted, an individual affected by the legislation may challenge its validity,
either directly or indirectly (for example, by way of a defence to a criminal
charge). Booysen and Van Wyk13 raise the question whether the court would
be obliged to accept the State President’s ipse dixit that consultation did in
deed take place or whether a certificate or statement by the Speaker con
firming that consultation did take place, should be required. One must agree
with the authors that the latter approach is preferable.
There are also other provisions of the Constitution from which it may be
inferred that the State President’s actions will be subject to judicial control,
although this is not expressly stated: for example, it may be argued that the
court is competent to declare that the State President has ceased to hold office
if he becomes disqualified to do so, or to grant an interdict or mandamus
against the State President.14
A further question relates to the justiciability of conventions. At common
law conventions could not be enforced by the courts, although the courts
did take cognizance of the existence of conventions.15 A number of the most
important conventions have been specifically enacted in the Constitution,16
thus conferring on them the status of statutory legal rules. In addition, sec
tion 88 provides that existing conventions will remain in force in so far as
they are not inconsistent with the other provisions of the Constitution.
In general, conventions may be classified, in terms of the 1983 Constitu
tion, into two categories: those which determine the State President’s pow
ers and obligations, and those which govern the parliamentary process. As
regards the first of these categories, Booysen and Van Wyk17 are of the opin
ion that those conventions which were recognized at common law and which
have been specifically enacted in the Constitution should be justiciable. This
would mean that the courts could enforce compliance with section 19(l)(a),
which provides that, in regard to own affairs, the State President acts on
the advice of the Ministers’ Council concerned, but would have no say where
he fails to act in consultation with the Cabinet (in regard to general affairs),
since the principle that the head of state acts in consultation with his ministers
is not one of the recognized conventions of the Westminster system. Presum
ably, too, the courts could compel the State President to assent to a bill duly
approved by Parliament, since section 33(1) provides that the State Presi
dent may assent to legislation or withhold his assent, but may not withhold
his assent unless he is satisfied that the bill has not been dealt with in accor
dance with the provisions of the Constitution. Section 39(2) and (3) governs
the circumstances under which the State President must or may dissolve
12 See Booysen & Van Wyk op cit (1984) at 137.

13 Op cit at 137-138.
15 See VerLoren van Themaat Staatsreg 3 ed (1981) at 174 et seq, and the discussion in
ch 9 above at 176.
16 Eg in ss 19(l)(a), 21(2), 33(1), 39(2) and (3).
17 Op cit at 62-63.
The Judiciary 359
Parliament or one particular House:18 here, too, the courts would have juris
diction to order a dissolution where the provision is peremptory, but not where
the State President has a discretion in terms of the Constitution - even if
there is a recognized convention that Parliament should be dissolved in the
circumstances in question. Section 21(2) raises an interesting issue, since it
contains a convention in adapted form. The State President is required to
designate a member of each Ministers’ Council as Chairman of the Council
in accordance with the principle that such a person must enjoy the support
of the majority in the House concerned. The original convention requires
the head of state to appoint as Prime Minister a person who enjoys the sup
port of the lower House; this person then chooses his ministers.19 Section
21(2) may therefore be seen as lying on the border between an established
convention and a new rule.
It is submitted that a wilful refusal on the part of the State President to
act in accordance with a specifically enacted convention may render him guilty
of misconduct and therefore liable to be removed from office.20 Misconduct
is not defined anywhere in the Constitution, but wilfully unconstitutional
conduct whould certainly fall within the definition.
On the other hand, it would seem that any breach by the State President
of an unenacted convention will not be justiciable and will not constitute
misconduct for the purposes of removal from office - despite the presence
of section 88, which accords a measure of formal recognition to existing con
ventions. The question of the justiciability of conventions (both enacted and
unenacted) did not arise under the 1961 Constitution, even though that Con
stitution contained a provision similar to section 8821 and a number of enacted
conventions.22 It has never been seriously argued that section 7(5) of the 1961
Constitution or section 88 of the 1983 Constitution converted all existing and
acknowledged conventions into formal rules.
2 Judicial Control over the Legislative Process

The position of the second group of conventions (those which relate to the
legislative process) is complicated by the presence of section 34(2)(a), which
provides that the Supreme Court is competent to enquire into and pronounce
upon the question whether the provisions of the Constitution were complied
with in connection with any law purporting to have been enacted by the State
President and Parliament or the State President and any House. The ques
tion arising here is whether this section can be so construed as to cover all
procedures that lead up to or form part of legislation.23
Since the resolution of the constitutional crisis of the 1950s, it has been
accepted law that, although the South African legislature is sovereign, it is
18 See ch 15 at 306-307.
19 See the discussion of conventions in chapters 9 and 16 above. It appears that the con
vention has survived in its original form in practice.
20 In terms of s 9(3)(a).
21 S 7(5).
22 Eg ss 16(1) and 64.
23 See JD van der Vyver 1986 SALJ236 at 242.
nevertheless bound by its own procedural provisions. Under the 1961 Con
stitution this applied to entrenched provisions only. It is clear from section
34(2)(a) of the 1983 Constitution that it was not the intention of the legisla
ture to confine the courts’ power of review to the entrenched sections, but
it is not altogether clear whether the section should be interpreted restric
tively (to confine the courts to an examination of provisions expressly enacted
in the Constitution itself) or extensively (to include, for example, conven
tional parliamentary procedures). The Rules and Orders of the Houses and
the Joint Standing Rules and Orders of Parliament have been expressly ex
cluded from judicial scrutiny24 and the rules of procedure contained in the
Powers and Privileges of Parliament Act25 have been excluded by implica
tion. According to Booysen and Van Wyk26 the common-law rules govern
ing parliamentary procedure have also been excluded by implication. Van
der Vyver,27 however, shows that it is possible to argue that
s 88 incorporated the conventional parliamentary procedures into the Consti
tution as ‘provisions of this Act’ within the meaning of s 34(2)(a).
He concedes that there are cogent reasons for taking the opposite view, but
is of the opinion that the Supreme Court should, if given the opportunity,
strive to extend rather than reduce the ambit of judicial review under the
Constitution.
In practical terms, it would seem that the courts will be able to determine
whether the State President and Speaker have been duly elected, whether the
requirements relating to quorums have been met, whether the rules govern
ing reference of legislation to the President’s Council have been complied
with, and so on — since these matters are specifically provided for in the
Constitution itself.
On the other hand, any procedure governed by the Joint Standing Rules
and Orders will not be justiciable, while procedures governed purely by con
vention remain a twilight zone which the courts will probably be reluctant
to enter.
Above all, the courts still, as before, have no testing power whatsoever
in respect of ‘ordinary’ legislation, that is, legislation which does not pur
port to amend or repeal any provision of the Constitution. All the courts
can do, is to interpret such legislation in accordance with the generally ac
cepted principles of our law.28
In conclusion: even though the number of entrenched sections has been
greatly increased, and even though ordinary (that is, unentrenched) procedural
provisions have also been brought within the purview of the courts’ jurisdic
tion, judicial control over parliamentary enactments remains very restricted
indeed. It must be emphasized, however, that no such restrictions apply to
subordinate legislation, which is fully subject to judicial control;29 and that
24 S 34(2)(b).
25 91 of 1963. See the discussion in ch 17.
26 Op cit at 139-140.
27 Op cit at 249.
28 See Steyn op cit at 14-16.
29 See Wiechers op cit at 92 and the cases of Sekretaris van Binnelandse Sake v Jawoo-
dien 1969 3 SA 413 (A) at 423G-F; Government of the Republic of South Africa v
Government of KwaZulu 1983 1 SA 164 (A).
The Judiciary 361
subordinate legislation includes State President’s proclamations, such as the

proclamation of a state of emergency and the promulgation of regulations
in terms thereof.3031
A further possibility is that the general rule of administrative law that the
courts always have jurisdiction to exercise control over administrative ac
tion if mala fides is present, may find equal application in constitutional law.
But, as Booysen and Van Wyk point out,30 even if one accepts, in principle,
that the State President or the Cabinet or a Ministers’ Council may act mala
fide and that the courts would, in principle, be competent to invalidate any
action taken by them on proof of mala fides, in practice the possibility sim
ply does not exist. It may be said, in fact, that the bona fides of the State
President, Parliament (and the executive) is irrebuttably presumed. For ex
ample, it is quite inconceivable that any court would entertain an action in
which it is alleged that a parliamentary enactment is ultra vires on the ground
that Parliament is required to make laws for the peace, order and good
government of the Republic,32 and that a particular law has not had this
effect! If such claims were to be heard by the courts, it would have the effect
of subjecting political decisions to judicial scrutiny.
3 Judicial Control over the Executive

The Constitution itself contains little or nothing relating to judicial control
over the executive. This is a matter which is traditionally governed by ad
ministrative law.33 The courts have always had an inherent power to review
administrative action34 and are, in general, loath to concede that their pow
ers have been excluded by the legislature. The courts will review acts of the
executive where there is mala fides or gross excess of power despite the
presence of an ouster clause expressly excluding their jurisdiction.
On the other hand, the courts will not enquire into the merits of executive
action, even where no ouster clause is present, and will not substitute their
opinion for that of the administrative organ that took the decision. As long
as the administrative act has been validly performed and no irregularities
are present, the courts will decline to enquire into its desirability or efficacy.
Applied to the exercise of prerogative powers (whether statutory or common
law) this means that the court will enquire whether, for example, the rule
against delegation has been breached, whether the rules of natural justice
have been observed (where they are applicable), whether an ulterior purpose
has been served — in short, whether the administrative organ (be this the
30 The regulations promulgated in terms of the state of emergency proclaimed on 12 June

1986 have been challenged on a number of occasions: see eg the cases of Nkwinti v
Commissioner of Police 1986 2 SA 421 (E); Monomial and Naidoo v Minister of Law
and Order 1986 2 SA 264 (W); Omar v Minister of Law and Order 1986 3 SA 306 (C).
31 Op cit at 141-142.
32 Van der Vyver 1986 SALJ 236 at 238-239 also holds the view that the arguments against
reading a power of substantive judicial review into s 34(2)(a) of the Constitution are
rather stronger than those in favour.
33 See Wiechers op cit ch 6 (at 259-304).
34 See Wiechers op cit at 266; Johannesburg Consolidated Investment Co v Johannes
burg Town Council 1903 TS 111.
State President, a member of the Cabinet or a Ministers’ Council, a statutory

body, and so on) has duly applied its mind to the matter in good faith: if
it has, there is no more to be said.
The role of the judiciary in controlling acts of the executive is a vital one
when it is considered that this is the sphere in which the rights of the in
dividual are often encroached upon. It is no accident that Dicey regarded
administrative law as irreconcilable with the rule of law. While it cannot be
denied that sophisticated modern systems of administrative law do provide
for more protection against bureaucratic encroachment than Dicey perhaps
gave them credit for, it must be admitted that in the relationship between
the executive and the individual, the scales are all too often tipped in favour
of the executive.
CHAPTER NINETEEN
The President’s Council
I INTRODUCTION: COMMISSIONS1
One of the prerogatives which the State President ‘inherited’ from the Brit
ish monarch is the power to appoint commissions of enquiry. The State Presi
dent is, of course, not the only person who may appoint commissions -
any body or organization may appoint a commission to perform certain func
tions or undertake an investigation, for example. There are a large number
of statutory commissions in South Africa: for example, the Commission for
Administration, the National Transport Commission and so on. These com
missions, unlike those appointed by the State President, normally possess
real decision-making powers.
Although the Commissions Act2 is, as a rule, rendered applicable to a State
President’s commission, this is done after the commission has been appoint
ed; the commission itself is appointed, not in terms of the Commissions Act,
but by virtue of prerogative, governed by common law. This is not to say
that the Commissions Act is irrelevant: it provides for the conferment of
certain powers on commissions for the purpose of investigating matters of
public concern. Furthermore, State President’s commissions are often (but
by no means invariably3 headed by a judge. These so-called ‘judicial’ com
missions are not, however, judicial bodies. They possess exactly the same
status and powers as any other commissions — they are simply commissions
of enquiry, not judicial bodies with judicial powers.4
II THE PRESIDENT’S COUNCIL

The President’s Council first made its appearance in 1980, after the aboli
tion of the Senate. As is explained above,5 this was a purely advisory body
chaired by the Vice State President. It had no real power, and, since it was
nothing more or less than a statutory commission, it did not change the con
stitutional structure of South Africa in any way.
1 Composition of the Council

Whereas all the members of the 1980 President’s Council were nominated
by the State President on the advice of the Executive Council (Cabinet), the
1 See Van Wyk ‘Commissions’ LA WSA vol 2; Burger "n Kommissie van Ondersoek
en die Kommissiewet’ 1980 TR W 56; Bray *’n Paar Gedagtes Rakende die Getuie voor
’n Kommissie van Ondersoek’ 1982 THRHR 390; De Kock Gemeenregtelike Kom-
missies van Ondersoek in die Suid-Afrikaanse Reg LLM dissertation UNISA (1983).
2 8 of 1947.
3 The Theron Commission into matters affecting the coloured population, and the
Schlebusch Commission, which enquired into constitutional matters, are two exam
ples of important commissions not chaired by judges.
4 See Wiechers Administrative Law (1985) at 93-104 for a discussion of the nature of
judicial acts.
5 In ch 11, at 238-239.
363
1983 President’s Council is constituted as follows:6 there are 60 members

altogether, 20 of whom are designated by resolution of the House of Assem
bly, 10 by the House of Representatives, 5 by the House of Delegates, and
25 appointed by the State President. If any of the Houses does not elect its
quota of nominees, the Council will consist of such “smaller number of mem
bers, if any, as may have been so designated by the House in question”.7
Since section 70 is not one of the provisions mentioned in section 19(2), the
State President’s appointments must be made in co-operation with the ex
ecutive. The question, as always, is whether the appointment of a member
of the Council is an own affair of the population group to which he belongs,
or a general affair. Since the President’s Council’s functions fall almost ex
clusively within the realm of general affairs, it seems clear-cut that the State
President’s appointments should be made in consultation with the Cabinet.
But that is not the end of the matter: of the 25 members appointed by the
State President, ten are not appointed by him at all, but are nominated by
opposition members in the three Houses in the ratio 6:3:1.8 As a rule, there
fore, he will appoint only 15 members; it is conceivable, however, that there
may be no opposition members in a particular House, or that the opposition
in one of the Houses may refuse to appoint members, or that one House
may not be functioning at all — and in such a case the State President will
be entitled to appoint the members himself.9 In the normal course of events,
however, the State President will appoint 15 of the 60 members.
The process of election of members by opposition parties is governed by
section 70(2)(b) and (c). The members are elected in accordance with the prin
ciple of proportional representation, each member of Parliament having one
transferable vote. The parties may come to an informal agreement before
hand about who is to be nominated10 but the actual election takes place un
der the chairmanship of the Speaker or the Chairman of the House.11
The provision which is made for ten members of the President’s Council
to be nominees of opposition parties may be seen as an endorsement of the
principle of the Westminster system that ‘His Majesty’s Loyal Opposition’
has an important part to play within the parliamentary process and the process
of government as a whole.
2 Qualifications and Tenure

To qualify for membership of the President’s Council, a candidate must be:
at least thirty years of age;12 a member of a particular House or qualified
to be elected or nominated as such, in the case of a person designated by
that House;13 in the case of a member appointed by the State President, a
member of one of the Houses or qualified to be elected or nominated as
6 S 70(1) of the Constitution.

7 Ibid.
8 S 70(2).
9 S 70(2)(f).
10 See the proviso to S 70(2)(b).
11 S 70(2)(c).
12 S 71(l)(a).
13 S 71(l)(b).
The President’s Council 365
such.14 It must be noted, however, that the provisions of section 54(e) do

not apply to a candidate for membership of the Council.15 The effect of sec
tion 71(1 )(b) is that the nominees of the various Houses must belong to the
same population group as the House electing them, and the effect of sec
tion 71 (l)(c) is that the State President’s appointees may be Whites, Indians
or Coloureds, but not Blacks, for example.16 Nothing is prescribed in regard
to opposition appointees in terms of section 70(2)(b) and (c): on a strict in
terpretation it could be argued that the opposition could nominate members
of a different population group, but not Blacks or non-citizens, since sec
tion 71(3)(b) provides that a member of the council vacates his seat
if he becomes disqualified to be elected or nominated and take his seat as a
member of any House.
In general, members of the Council hold office until the next dissolution
of the Council in terms of section 77,17 which provides that the Council is
to be dissolved by the first dissolution of Parliament following the constitu
tion of that Council. The dissolution only takes effect, however, on the day
on which the next State President assumes office after the dissolution in ques
tion. Councillors are eligible for redesignation or reappointment.
The provision contained in section 71(2), that members hold office until
the dissolution of the Council, is repeated in section 71 (3)(a), which provides
that a member shall vacate his office on the dissolution of the Council. The
reason for the duplication is obscure.18 As mentioned above, members also
cease to hold office on becoming disqualified to be elected or nominated as
members of Parliament;19 likewise, on becoming a member of one of the
Houses.20 Where a member has been designated by one of the Houses and
only that House is dissolved, that House may, by resolution, retract the
appointment of members of the President’s Council who were elected by the
previous House, within seven days after the first meeting of the reconsti
tuted House.21 If Parliament as a whole is dissolved, however, the resolu
tion to retract the membership of persons elected in terms of section 70(l)(a),
(b) or (c), (that is, by the Houses themselves) must be taken before the Council
itself is dissolved.22 Members appointed by the State President (but exclud
ing the appointees of the opposition parties) also cease to hold office when
the State President resigns, dies or is removed from office, or if the appoint
ment of such members is withdrawn by the newly elected State President
within seven days after he has taken office.23 The ten members who are
designated by the opposition parties cease to hold office as soon as those
14 S 71(l)(c).
15 S 54(e) provides that, barring certain exceptions, no one who holds any office of profit
under the Republic may be elected or nominated as a member of any House.
16 Or Chinese — who were specifically included in the original (1980) President’s Council.
17 S 71(2).
18 See Booysen and Van Wyk Die ‘83 Grondwet (1984) at 124 fn 17.
19 S 71 (3)(b). The disqualifications are enumerated in s 54.
20 S 71(3)(c) - or, prior to the abolition of the Provincial Councils, on becoming a member
of one of the latter.
21 S 71(3)(d)(ii).
22 S 71(3)(d)(i).
23 S 7l(2)(e).
persons who are nominated in the place of the original members are appointed
by the State President. The nomination of the new members is governed by
section 70(2)(ii), which refers to the case where the House (and not Parlia
ment as a whole) has been dissolved and at least two opposition members
of the newly constituted House have requested the Speaker in writing to con
vene a meeting for the election of such members.24 Since such a meeting must
be held within 14 days after the first meeting of the newly-constituted House,
and since the persons elected must still be formally appointed by the State
President (and the Constitution does not state a period within which the State
President must make these appointments), it could happen that the opposi
tion representatives take office somewhat later than the persons nominated
by the majority of the House in terms of section 70(l)(a), (b) or (c). Thus
where only one House has been dissolved, the composition of the President’s
Council may not accurately reflect the position of the parties for some time.25
There are a number of further questions of interpretation which could con
ceivably arise in connection with the change-over from one President’s Coun
cil to the next. For example, if Parliament is dissolved, the current members
of the President’s Council retain their seats until the new State President
assumes office; but a newly-constituted House may retract the appointment
of persons by the previous House even before the new State President takes
office.26 The new appointments take effect when the old President’s Coun
cil is dissolved.27 The question, as Booysen and Van Wyk point out,28 is
whether the new members may or must be elected during this interim period,
namely, after the Houses have been reconstituted, but before the new State
President takes office. The authors conclude that the only sensible conclu
sion is that the election may take place during this period, but need not.
Furthermore, the Constitution contains no provision stating the period
within which the appointment of new members must be made either by the
Houses or by the State President when the Council has been dissolved in
consequence of the dissolution of Parliament. If one of the Houses does not
make its appointments in terms of section 70(l)(b) or (c), the Council can
function without such members,29 but no similar provision exists for the case
where the State President fails to appoint the remaining 25 members. It is
true that the opposition parties must nominate their ten members within 14
days after the new State President has taken office, but, as is pointed out
above, there is no provision obliging the President to appoint these persons
within a specific time.
It is noteworthy that there are two cases in which an existing appointment
must be retracted within seven days if it is to be retracted: first, when a new
State President takes office otherwise than in consequence of a general elec
tion (that is, if the former incumbent died, resigned or was removed from
office) he must terminate the membership of the fifteen members which he
24 S 71(2)(f).
25 See Booysen and Van Wyk op cit at 125, esp fn 24.
26 S 71(3)(d)(i).
27 S 71(5).
28 Op cit at 125.
29 See s 70(1).
appoints in terms of section 71 (3)(d) (excluding the ten opposition represen

tatives) within seven days of his assuming office;30 secondly, where only one
House is dissolved, that House must terminate the membership of its exist
ing nominees within seven days after the first meeting of the reconstituted
House.31
Members of the Council may submit their resignation to the State Presi
dent in writing.32 Casual vacancies in the Council are filled by the designa
tion or appointment of a new member, which takes place in the same manner
as that in which the original member was designated or appointed.33
The President’s Council which was instituted in 1980 was chaired by the
Vice State President.34 The 1983 Constitution makes no provision for the
office of Vice State President,35 and the Chairman of the President’s Coun
cil is simply elected from its members at the first meeting of the Council after
being constituted. This meeting is chaired by a person designated by the State
President.36 The Chairman holds office until the dissolution of the Council37
unless he ceases to be a member of the Council, resigns by lodging his resig
nation in writing with the State President or is removed from office by reso
lution of the Council.38 A Deputy Chairman is also elected at the first meeting
of the Council.39
Thirty members of the Council constitute a quorum,40 and all matters are
decided by a majority of votes of the members present other than the presid
ing member, who has a casting vote.41 The Council may make its own rules
and orders to govern the conduct of its business and proceedings, the estab
lishment, constitution and powers of committees of the Council, and the order
and conduct of their business and proceedings.42 Ministers and deputy
ministers may sit and even speak in the Council, but have no vote.43
3 Powers and Functions of the President’s Council

The functions of the President’s Council may be divided into four categories:
(■) To advise the State President in the executive sphere

The Council must advise the State President on any matter referred to it.44
Although the provision does not state expressly that this is an ‘executive’
30 S 71(3)(e).
31 S 71(3)(d)(ii).
32 S 71(4).
33 S 70(3).
34 See ch 11 above at 238.
35 See ch 15 above at 299.
36 S 72(1).
37 In terms of s 77, on the day on which the new State President takes office after a dis
solution of Parliament.
38 S 72(2).
39 S 72(3).
40 S 74.
41 S 75.
42 S 76(1).
43 S 76(2).
44 S 78(1).
function, the administration of the country is the chief focus of the Presi
dent’s Council’s activities in this sphere. The Council may also take the in
itiative and advise the State President on any matter which it deems to be
in the public interest — excluding draft legislation.45
When performing this advisory function, the Council may refer the mat
ter in hand to a committee, and transmit the recommendations of the com
mittee to the State President as the advice of the Council.46 When the
Council’s advice is received by the State President, he must table it in every
House that has an interest in the matter.47 Since it is the State President who
decides whether any particular matter is a general affair or the own affair
of one of the Houses, he is probably also the one who decides which Houses
have an interest in a matter on which the President’s Council has advised
him.48
(ii) To advise the State President in legislative matters
Before the State President classifies any matter as an own affair or a general
affair, he must consult the Speaker and the Chairman of the Houses,49 but
he may also refer the question to the President’s Council for its advice.50
In more general terms, the State President may also request the Council to
advise him on a legislative issue in terms of section 78(1), even though the
latter section specifically excludes draft legislation as a matter on which the
Council may take the initiative in advising the President.
An important function of the Council is to advise on general-affairs bills
which have given rise to a conflict among the Houses.51 The reference of
such a bill to the Council raises one or two tricky legal issues, since sec
tion 32(1) provides that the legislation may be referred to the President’s
Council for its decision, but section 78(4)(b) makes provision for the Coun
cil to advise the State President that “bills so referred to it, be amended or
otherwise dealt with in the manner recommended by the President’s Coun
cil”. In terms of this section the Council may conceivably advise the State
President to withdraw his reference and allow the bill to lapse, thus relieving
the Council from its obligation to decide finally which version of the bill
is to become law. Presumably, too, the Council could advise the President
to make further efforts to achieve consensus among the Houses, and could
make recommendations (such as proposed amendments) to this effect.52
If the President’s Council’s advice entails recommended amendments to
the draft legislation in terms of section 78(8), the State President must, if
he accepts the advice, table it in each House within 14 days of receiving it.
If he does not accept the advice, this presumably means either that he may
45 Ibid.
46 S 78(2) and (3).
47 S 78(7).
49 S 17(2); see the discussion above at 302-303.
50 S 17(1).
51 S 32(1); see the discussion in ch 17 above at 341 et seq.
52 See Booysen and Van Wyk op cit at 128, who put forward a number of possibilities
in this regard.
i.
withdraw the reference (something he may do at any time) or that he may

insist that the Council make a decision in terms of section 32(1). After the
advice has been tabled, the Houses may deal with the Council’s recommen
dations,53 but may not withdraw the reference to the Council.54 Presumably
the State President will withdraw the reference if it appears that the Coun
cil’s recommendations are acceptable to all the Houses and therefore that
consensus will be achieved after all.
The question also arises whether the President’s Council must give its de
cision within the same session of Parliament as that in which the conflict
was referred to it: section 32(4) states that a bill which is referred to the Coun
cil under section 32(1) and which, in terms of a decision of the Council dur
ing the session of Parliament in which it was referred, is to be presented to
the State President for his assent, is deemed to have been passed by Parlia
ment. This implies that a bill must be referred to the Council within the same
session of Parliament as that in which the dispute arose. In theory the Council
may delay the passing of the legislation simply by not dealing with it within
the same session, but Booysen and Van Wyk suggest that intentional delay
ing tactics on the part of the Council would be unconstitutional. The State
President would then be obliged to resolve the stalemate by dissolving Parlia
ment so that a new President’s Council can be elected by the reconstituted
Parliament.55
Booysen and Van Wyk also conclude that the Council cannot advise the
President that legislation referred to it deals with the own affairs of one popu
lation group, since the Council’s powers under this head are based on the
assumption that the referred legislation is general-affairs legislation.56 Advice
that the bill should have been classified as own-affairs legislation would
amount to a denial by the Council of the basis of its own powers.
As is mentioned above,57 when a bill is referred to the President’s Council
in terms of section 32, it may refer the bill to a committee58 which is to
investigate and report on the legislation. When the Council makes its recom
mendations it may take the committee’s report into consideration.
(iii) To decide in legislative issues

Although the President’s Council’s most important function, quantitatively
speaking, is to act as a commission of enquiry and to report to and advise
the State President on a variety of issues, the conferment of legislative authori
ty on the Council is the most important aspect from the doctrinal and
jurisprudential point of view. When the Council acts as a purely advisory
body, particularly in the executive sphere, it really does nothing which is
strange to the Westminster system. When it acts as final arbiter in disputes
among the three Houses of Parliament, however, the Council performs a
function which is traditionally entrusted to a representative body.59 Not only
53 S 32(3).
54 Booysen and Van Wyk op cit at 128.
55 Op cit at 129.
56 Ibid.
57 In ch 17 at 341 et seq.
58 See s 76.
59 For the theoretical basis of representation, see ch 8 above.
does this constitute an encroachment on the principle of parliamentary

sovereignty: it is in direct conflict with accepted democratic principles to con
fer final legislative authority on a body whose members are partly appoint
ed and partly indirectly elected. If the introduction of a handful of indirectly
elected and nominated members of Parliament is open to criticism, the con
ferment of legislative power on a body such as the President’s Council is
indefensible, and the fact that the entrenched provisions are excluded from
its jurisdiction is small consolation.60 It may, of course, be argued that some
provision has to be made for the resolution of deadlocks in the parliamen
tary process, to eliminate the possibility that one of the Houses of Parlia
ment may hold the others to ransom indefinitely by using its power of veto.
In fact, the majority party in the House of Assembly holds all the trumps:
it effectively elects the State President, provides the majority of Cabinet mem
bers and appoints the majority of the members of the President’s Council.
It is only in regard to the entrenched sections that the House of Representa
tives and the House of Delegates have an effective veto.
There are other ways in which deadlocks could have been resolved: for
example, by a simple (or two-thirds?) majority in a joint sitting of all three
Houses, or even a provision that if two Houses are in agreement about draft
legislation, their view will prevail over that of the dissenting House. It is ob
vious that this latter solution, in particular, would not have been acceptable
to white voters. Any device for resolving deadlocks should, however, have
Parliament itself as its basis.
When the President’s Council decides rather than advises in legislative mat
ters, it has no authority to initiate legislation or even to amend the draft legis
lation which forms the subject of the dispute among the Houses. It merely
exercises a choice among a number of options:61 if one or two Houses pass
the bill and the other rejects it, whether to present the bill for assent or not;
if two Houses pass different versions of the bill and the other rejects it,
whether to present one of the two different versions of the bill to the State
President for assent, or to present none of them for assent; if two Houses
pass one version of a bill and the other a different version, or if all three
Houses pass different versions, which is to be presented to the State Presi
dent for his assent.
The bill which is presented in consequence of the choice offered by sec
tion 78(5) is deemed to have been duly passed by Parliament62 and the State
President has no other option but to give his assent, unless he is convinced
that the bill has not been dealt with in accordance with the Constitution63
— in other words, that the bill has not been duly, passed.
The issue of parliamentary sovereignty is fully canvassed in Chapters 6
and 17. There is no question that the 1983 Constitution deviates from the
Westminster concept of parliamentary sovereignty in several respects, of
which the vesting of legislative power in the President’s Council is the most

61 S 78(5).
62 S 32(4).
63 S 33(1).
important. In a major sense legislative supremacy is nevertheless retained,

since there is no other authority (including the courts, the State President
and the President’s Council) which is competent to overthrow any duly enact
ed Act of Parliament.
(iv) To act in a consultative capacity

The President’s Council can not only investigate any matter of public in
terest (barring draft legislation) and advise the State President accordingly:
the Council or any of its committees may also consult with any person or
state institution on any matter.64 For this purpose it may establish consulta
tive committees consisting of members of the Council and any other council
instituted by the State President. While the basis of consultation is couched
in very wide terms, its scope is narrowed considerably by the requirement
that the committee established in terms of this section is restricted as regards
membership.
4 Constitutional Role of the President’s Council

In the relatively short space of time since the creation of the President’s Coun
cil in 1980, it has already played an important part in the constitutional de
velopments of the 1980s. Unfortunately it cannot be said that the Council
enjoys any real independence from the government of the day - it is to a
major extent, an extension of the executive arm of the government. The 1983
Council is certainly more representative of public opinion than its predeces
sor, which was wholly nominated by the State President; but the present
Council’s legislative role, in particular, must necessarily confirm the percep
tion that the Council is simply another tool of the governing party. To date
the Council has not produced any advice which differs radically from offi
cial government policy. It is nevertheless possible, as VerLoren van Themaat65
puts it, that the President’s Council may prove to be a catalyst in the process
of constitutional reform in South Africa.
64 S 78(6).
65 Staatsreg 3 ed (1981) at 245.
CHAPTER TWENTY
Citizenship
I INTRODUCTION
The terms ‘citizenship’ and ‘nationality’ are often used as if they are syn
onymous, even in legal parlance. There is, however, a subtle difference which
is of importance in the South African situation.
The most general view is that ‘nationality’ has an international and ‘citizen
ship’ a national or municipal connotation. Wiechers1 distinguishes between
nationality (‘Staatsangehorigkeit') which relates to the bond between state
and citizen in the international context, and citizenship (‘Biirgerschaft') which
indicates the citizen’s status, his position and capacity to participate in the
public life of his state.
Olivier2 takes much the same line, defining nationality as the international
facet of citizenship, signifying the public-law bond between state and citizen
in terms of which the status of membership of that state is conferred on the
individual.3 In the narrower sense, nationality connotes citizenship, which
indicates that the individual belongs to a particular political community.
Olivier is at pains to point out that citizenship as such confers no rights on
the citizen within the state, although it may serve as a starting-point for the
conferment of such rights.4
Booysen,5 too, regards nationality as the basis of the individual’s status
at international law, while citizenship confers a particular status on the
individual within the municipal legal system of a particular state and deter
mines the aggregate of the individual’s political and civil rights within the
state.
The dualism between nationality and citizenship is also recognized by
Heyne,6 who states succinctly that citizenship stresses the municipal aspect
and nationality the international aspect of the same notion.
If the view is taken that citizenship implies the presence of full civil and
political rights, it follows that Blacks must be seen as South African nationals
but not as South African citizens. There is, however, no indication in the
legislation that persons other than Whites are not regarded as citizens. In
fact, section 2(4) of Act 26 of 1970 states expressly that citizens of National
States are not aliens in South Africa and remain for all purposes citizens
1 M Wiechers ‘Kleurlingburgerskap in Suid-Afrika’ 1972 THRHR 1.

2 W H Olivier Aspekte van Burgerskap- en Nasionaliteitsreelings unpublished LLD thesis
RAU 1977; ‘ ’n Juridiese Evaluasie van Burgerskap’ 1979 TSAR 212; 1980 TSAR 22
and 127; ‘Die Staatsregtelike en Volkeregtelike Omvang van Tuislandburgerskap’ 1975
Acta Juridica 273.
3 See J P VerLoren van Themaat Staatsreg 3 ed (1981) at 346.
4 Staatsreg loc cit.
5 H Booysen Volkereg - ’n Inleiding (1980) at 108 et seq.
6 J F Heyne ‘A Transkeian Citizen of South African Nationality?’ 1963 THRHR 44 45.
372
Citizenship 373
of the Republic. Another problem is that Blacks living outside the indepen
dent TBVC countries must then be categorized as South African nationals,
but as citizens of one of the so-called National States.7 This approach brings
with it the doctrinal objection that the National States are self-governing ter
ritories but not ‘states’ in the technical sense.8
Venter9 bases his approach largely on the work of the German writer
Makarov10 and works with a unified concept of citizenship which operates
both nationally and internationally. He nevertheless fails to escape from the
dualism inherent in the concept of citizenship. He sees citizenship in the wide
sense as denoting a bond between the individual and the state and citizen
ship in the narrow sense as denoting a belonging to part of the state, such
as a province within a federation or a territory such as one of the National
States.
Vorster11 attempts to construe a unified concept of citizenship that does
away with the need to distinguish between citizenship and nationality. He
postulates a concept of citizenship with an internal and external aspect or
component, the two aspects being simply opposite sides of the same coin,
or, as he puts it, the external aspect being merely a ‘reflex’ of the internal.
The problem which arises when citizenship is construed as a single concept,
is that black South Africans are seen to be both South African citizens and
citizens of one of the National States. Citizenship of a National State is logi
cally feasible only if the National States are seen as states in the full con
stitutional sense of the word, and not as ‘states’ in the sense of one of the
United States of America, for example. Vorster solves this problem by ap
proaching the National States as ‘nasciturus states’ or states in the process
of coming into being, thus enabling him to work with a single concept of
citizenship. The external aspect would then relate to the South African citizen
ship of black South Africans, the internal aspect of their citizenship of one
of the National States.
In truth, however, the constitutional position of South African Blacks re
mains anomalous.12 Prior to the commencement of the 1983 Constitution,
which extended the franchise to Coloureds and Indians, the position of these
groups was even more anomalous than that of Blacks: they were South Afri
can citizens, but possessed none of the political rights normally concomitant
with citizenship. Furthermore, unlike the Blacks, they could not be said to
possess ‘citizenship’ of a particular territory such as a National State.13
7 See the discussion later in this chapter.

8 See D A Basson and H P Viljoen Studentehandboek vir die Suid-Afrikaanse Staats-
reg (1985) at 483. Vorster dubs the National States “nasciturus states” - see ‘The
International Legal Personality of Nasciturus States’ 1978 SAYIL 1.
9 See F Venter Die Staatsreg van Afsonderlike Ontwikkeling (1981) at 210 et seq.
10 A N Makarov Allgemeine Lehren des Staatsangehbrigheitsrechts (1962).
11 M P Vorster Lectures on Constitutional Law, University of Pretoria, quoted by Bas
son & Viljoen op cit at 485-487.
12 The fallacies inherent in the popular distinction between Blacks as nationals of South
Africa and as citizens of National States, are convincingly exposed by H A Strydom
‘The Theory of Citizenship: a Reappraisal’ 1985 CILSA 103.
13 Marinus Wiechers raises the possibility that one may work with the concept of ‘Coloured
citizenship’, i e ‘citizenship’ or membership of a particular racial group (see ‘Kleurling-
burgerskap in Suid-Afrika’ 1972 THRHR) but it is a somewhat novel idea to conceive
of a brand of citizenship which has no geographical or residential component.
II THE LEGAL BASIS OF CITIZENSHIP

Citizenship is seen by some authorities as a status,14 by others as a relation
ship,15 and by yet others as a condition or as a factor which affects or deter
mines the individual’s status.16 The traditional approach is that citizenship
denotes a particular status, but it has gradually become recognized that this
leaves a number of questions unanswered, particularly in the South African
context.
In his study of status in South African public law, Van Wyk17 comes to
the conclusion that citizenship is not a status with a given content. It should,
instead, be seen as a factor which affects the public-law status of the individu
al. Logically, citizenship cannot be a status in South Africa unless one takes
the view that Blacks are not South African citizens but merely South Afri
can nationals. As is pointed out above, this construction gives rise to
difficulty. If, on the other hand, one takes the view that citizenship (like race)
is a factor which affects the individual’s status, the anomaly disappears: not
all citizens enjoy equal status (some do not possess full political rights, for
example). The individual’s personal status may be affected by a number of
factors (sex, race, age, marital state, mental capacity and so on) of which
citizenship is only one.
In his doctoral thesis, Venter18 examines Makarov’s combined theory,
agrees that citizenship does constitute a relationship between state and in
dividual but feels that this construction fails to address the problem of the
legal nature of the concept of citizenship. He concludes19 that citizenship is
a legal condition which determines status; it depends on the fulfilment of
legal requirements laid down by a particular state; it gives rise to a legal rela
tionship from which reciprocal rights and duties arise; these rights and duties
have a bearing on the fact that a legal bond exists between the state and the
individual.
To conclude, then, the most satisfactory and logical construction of the
concept of citizenship seems to be that it is one of several factors which govern
the status of the individual; each state may decide for itself whom it shall
regard as its citizens for both international and municipal purposes, and may
distinguish between various categories of citizens for the purpose of confer
ring political or civil rights on its citizens.
Ill HISTORICAL BACKGROUND

English common law did not concern itself unduly with the concepts of na
tionality and citizenship. The important dividing line was, instead, drawn
between subjects and aliens. Subjects of the King were all those persons who
14 E g Wiechers 1972 THRHR 1.

15 See Makarov op cit at 19-28, who sees citizenship as both a relationship between the
state and the individual and a legal status.
16 F Venter ‘Bantoeburgerskap en Tuislandburgerskap’ 1975 THRHR 241 sees nation
ality and citizenship as juridical conditions which occur when certain requirements
of positive law have been met.
17 D H van Wyk Persoonlike Status in die Suid-Afrikaanse Publiekreg unpublished LLD
thesis UNISA (1979) at 269.
18 Die Suid-Afrikaanse Bantoestaatsreg unpublished LLD thesis PU for CHE (1978).
19 Op cit at 215.
Citizenship 375
owed him allegiance in accordance with feudal principles and concepts.20 The
basic principle was that of the jus soli - whoever is born within the realm
is a subject of the King, irrespective of the person’s descent.21
The personal bond between the King and his subjects played a very import
ant role here. This is illustrated by the well-known Calvin’s Case.22 John Cal
vin was born in Scotland in 1606, three years after Scotland and England
had become one kingdom under James I. A dispute arose when property was
bought in England on Calvin’s behalf, since there was a rule that only sub
jects of the English King, and not aliens, could own immovable property in
England. The question was whether Calvin was an alien in England despite
the fact that he was a subject of James I; in other words, whether England
and Scotland were two separate realms that were fortuitously ruled over by
the same king. Sir Edward Coke and his colleagues held that subjects owed
allegiance, not to the realm, but to the King. Thus any person who was bom
before the union of the two kingdoms (a so-called antenatus) would indeed
be an alien in the ‘other’ kingdom. Postnati, on the other hand (those born
after the union of England and Scotland) were all subjects of the King and
could therefore not be aliens in any of the King’s other realms.
The implications of the judgment in Calvin’s Case were that all subjects
of the King acquired equal status; that fixed rules were laid down for the
acquisition of the status of subject; and that any person who was born within
the realm remained a subject of the King even if that king were to lose the
kingdom and it were to gain another ruler.23 The significance of the bond
between King and subject was retained during the expansion of the British
Empire and the development of colonies towards independent status.
As was explained in chapter 3, the relationship of allegience was initially
forged by means of an oath of allegiance sworn by the liegeman to the King.24
Gradually, however, the idea that all persons born within the kingdom au
tomatically became subjects of the King and, therefore, subjects within the
allegiance relationship, became established. While aliens could, in the very
early period of English history, become subjects of the King by swearing the
oath of allegiance, this possibility gradually disappeared, and the concept
of naturalization in the modern sense gained recognition in Britain only in
1870.25
The importance of these developments for South African law lies in the
fact that all four provinces of the Union had been British colonies, so that
all the inhabitants born after Britain took over a particular colony, auto
matically became British subjects. Difficulties arose in regard to persons bom
before the colony became part of the British Empire. Another problem was
20 The allegiance relationship is discussed in ch 3 above.

21 Roman citizenship, on the other hand, was initially based on descent (the principle
of the jus sanguinis): see Basson and Viljoen op cit at 491.
22 (1608) 7 Coke’s Reports 1; Eng Rep 1608 KB 377.
23 This last-mentioned doctrine had to be abandoned in the nineteenth century when it
became apparent that it could give rise to anomalous results e g after the USA became
independent — see VerLoren van Themaat op cit at 351 fn 38.
25 The Naturalisation Act 1870. Previously, aliens could become subjects only by means
of a private Act of Parliament — see VerLoren van Themaat op cit at 351.
that most of the colonies had a form of ‘local nationality’ as well.2627

At the
imperial conference held in 1911 Canada requested that naturalized Canadians
be recognized as British subjects even though only two years’ residence was
required in Canada, but five in Britain. As a compromise, it was agreed that
a form of imperial nationality would be created, but that each dominion could
make such provision for citizenship as that dominion saw fit.26
The negotiations at the imperial conference led to the adoption of the Brit
ish Nationality and Status of Aliens Act of 1914, a British statute which ap
plied to the Empire as a whole. It provided for the acquisition of British
subjecthood by birth, marriage, descent (to the first foreign-born generation);
and naturalization.
Even though the various dominions were firmly on the road to full con
stitutional autonomy soon after the First World War, Britain itself failed
to see that the 1914 Act had become an anachronism. Nationals of the
dominions could hardly still be regarded as nationals or citizens of the Brit
ish Empire, although they remained British subjects. The reason for the
anomalous situation is to be found in Britain’s adherence to the idea that
the allegiance relationship formed the basis of nationality. In fact it formed
the basis of British subjecthood only — citizenship and nationality are rather
different concepts, as has been pointed out above. Eventually, in 1948, the
British Nationality Act was adopted; for the first time a distinction was made
between British nationals and nationals of the dominions: it was provided
that any dominion national who had resided in the United Kingdom for twelve
months, could become a British national.28
The dominions themselves took the view, soon after the First World War,
that nationality and subjecthood based on allegiance to the King were not
synonymous. Canada adopted its own citizenship law in 1921, Ireland in 1922
and South Africa in 1927.29 Before the 1927 Act could be passed, however,
South Africa had first to eliminate some doubts about the applicability of
the British Nationality and Status of Aliens Act of 1914. The British Na
tionality in the Union and Naturalization and Status of Aliens Act30 was there
fore adopted to clarify the matter. Since there was some uncertainty whether
naturalizations which had taken place in terms of the Naturalization of Aliens
Act31 and the British Nationality Act were valid, the 1926 Act made provi
sion for persons previously naturalized to apply for certificates of naturali
zation which placed the issue beyond doubt.32 All such persons were now
British subjects.
26 In Canada, for example, legislative provision was made for Canadian (as opposed
to British) citizenship, as early as 1910: see A B Keith Constitutional Law of the Brit
ish Dominions (1930) at 120.
28 S 6(1). Five years’ residence is now required: cf s 12 of the Commonwealth Immigrants
Act 1962 and the Immigration Act 1971.
29 The Union Nationality and Flags Act 40 of 1927.
30 18 of 1926.
31 4 of 1910.
32 As VerLoren van Themaat op cit, points out at 358, there was still a good deal of
conceptual confusion here. In fact the 1926 Act did not deal with nationality at all,
but with allegiance.
Citizenship 377
The 1927 Act provided that the following persons were Union nationals
(‘Uniestaatsburgers’):
(i) persons born within the Union;
(ii) British subjects who had been domiciled within the Union for two years;
(iii) persons who had been naturalized as British subjects in one of the col
onies which formed the Union, provided they had been domiciled in the Un
ion for three years;
(iv) the children of persons who were Union nationals, or would have been
Union nationals if Act 40 of 1927 had been in force when the child was born.
The problems relating to British subjecthood and dominion nationality were
dealt with at the conference of experts of 1929. The conference came to the
conclusion that nationality can mean different things, and that some confu
sion had arisen because the word ‘nationality’ had been used to denote both
the individual’s link with a particular state and the relationship of allegiance.
It was recognized that the common status which all British subjects possessed
as such, should be distinguished from nationality of an individual domin
ion. It was agreed that each dominion should be able to determine its own
requirements for nationality of that dominion, but that this nationality
should, as far as possible, be conferred on persons possessing the common
status. The question of who was to qualify as a British subject, on the other
hand, could not be decided by one particular dominion in the absence of
an agreement with the rest of the Commonwealth.33
The Union adopted two legislative measures whereby a person could be
come a British citizen and a Union national, even though such a person would
not be recognized as a British subject elsewhere in the Commonwealth.
The first was the South West Africa Naturalisation of Aliens Act,34 which
provided that enemy aliens who had been domiciled in South West Africa
on 1 January 1924 would become British subjects within six months, unless
they signed a declaration that they did not wish to be naturalized. This
naturalization was recognized neither in Germany, where such persons were
still regarded as German nationals, nor in Britain.35
The second was the Nationalization and Amnesty Act36 which conferred
Union nationality on citizens of the erstwhile ‘Boer’ republics who had re
mained in the territory after conquest by the British but had never taken the
oath of allegiance.37 Such persons, too, were not regarded as British sub
jects in Britain or in the other dominions.
33 These recommendations were approved at the imperial conference held in 1930.

34 30 of 1924.
35 This mass naturalization gave rise to so many problems that the effects of the 1924
Act were ‘undone
* by Act 35 of 1942, which declared all such previously naturalized
persons to be aliens, barring those who had served in the Union Defence Force as
volunteers.
36 14 of 1932.
37 According to English common law, the inhabitants of conquered territories did not
automatically become British subjects: Campbell v Hall 98 Eng Rep (1774) 1045. Citizens
of the ‘Boer
* republics therefore became British subjects only if they had taken the
oath of allegiance or acquiesced in the conquest - Maarburger v Minister of Finance
1918 CPD 183; Loewenstein v Custodian of Enemy Property 1921 TPD 606. If such
persons had left the country after the Anglo-Boer War and then returned without tak
ing the oath, they would not have become British citizens.
Commonwealth citizenship after 1948

After 1948 the concept of a ‘British subject’ was superseded by that of ‘Com
monwealth citizen’. The basic principle was that each dominion was free to
make its own arrangements regarding citizenship of that dominion but that
all members of the Commonwealth would recognize the status of all Com
monwealth citizens. Although countries such as Pakistan, Ceylon and South
Africa,38 did not incorporate this ‘common clause’ into their legislation, the
citizens of other Commonwealth countries were not treated as aliens in these
countries. There has never been a uniform definition of ‘Commonwealth
citizen’ throughout the Commonwealth, because each country has its own
citizenship laws. The status of ‘Commonwealth citizen’ has nevertheless had
important implications for the individual, since citizens of Commonwealth
countries are, as said before, not regarded as aliens in other Commonwealth
countries, and also generally enjoy preference when they wish to become
citizens of other Commonwealth countries.39
IV THE SOUTH AFRICAN CITIZENSHIP ACT 44 OF 1949

1 General
The Citizenship Act repealed all previous citizenship legislation and consoli
dated the South African law on the topic. It introduced several changes, in
cluding a change in terminology: ‘Union national’ was replaced by ‘South
African citizen’, while ‘British subject’ was replaced by ‘citizen of a Com
monwealth country or of the Republic of Ireland’.40 Secondly, married wom
en no longer automatically took the citizenship of their husbands, but
acquired and lost South African citizenship in the same way as men or un
married women.
2 Acquisition of South African Citizenship

(a) By birth
Persons born in South Africa before 2 September 1949 are South African
citizens if they were, or were presumed to be,41 Union nationals immediately
prior to that date.
Any person born in South Africa on or after 2 September 1949 will be
a South African citizen by birth unless one of the following applies to him:
(i) if his father42 enjoyed diplomatic immunity in South Africa, was not a
South African citizen or had not been legally admitted into South Africa
38 While South Africa was a member of the Commonwealth, an alien was defined as
anyone who was not a national of the Union, a Commonwealth country or Ireland.
The situation changed with the adoption of the Commonwealth Relations Act 64 of
1962.
40 S 38.
41 Persons were presumed to be Union nationals if they had become ‘denationalized’
in terms of Act 35 of 1942, or if they were married women who had lost their citizen
ship by virtue of their marriage. Persons born in South West Africa on or after 1 July
1926 were South African citizens if they were resident in the Union or in South West
Africa on 2 September 1949 or had been granted permanent residence — s 2(2) of the
Citizenship Act.
42 The mother of an illegitimate child is deemed to be the ‘father’ for the purposes of
citizenship: see s 1(1) and Hamid v Minister of the Interior 1954 4 SA 241 (T).
Citizenship 379
as a permanent resident, and his mother was not a South African citizen;43
(ii) if his father was an enemy subject not entitled to permanent residence
in South Africa and had been interned or held in custody and his mother
was not a South African citizen;44
(iii) if the father was an enemy subject and the child had been born at a place
which was occupied by the enemy and the mother was not a South African
citizen;4546
(iv) if, at the time of the child’s birth, the father was a prohibited immigrant44
or had no right of permanent residence in South Africa and his mother was
not a South African citizen;47
(v) if the person himself is a prohibited person48 - in this case the mother’s
citizenship is irrelevant;
(vi) if the person concerned is born on a ship or aircraft registered in another
state.49
In certain circumstances a person is deemed to be a South African citizen
by birth even if he was born outside the Republic: such a person must quali
fy for citizenship by descent, and his father must, at the time of his birth,
have been in the service of the South African government, a South African
employer or an international organization of which the Republic is a
member.50
(b) By descent
The citizenship of the father (in the case of illegitimate children, the mother51)
is decisive. Again a distinction is made between persons born before or after
2 September 1949.
Any person born outside the Union of South Africa52 before 2 September
1949 will be a South African citizen by descent if his father, being a British
subject —
(i) had been born in the Union; or
(ii) had, at the time of the child’s birth, been in possession of a certificate
of naturalization issued in the Union; or
(iii) had possessed British nationality by virtue of the annexation of the form
er ‘Boer’ republics; or
(iv) had been in the service of the government of the Union at the time of
the child’s birth; or
43 S 3(2)(a) of the Act; see also the Diplomatic Privileges Act 71 of 1951; the Aliens Act
1 of 1937; the Admission of Persons to the Republic Regulation Act 59 of 1972 and
Hamid v Minister of the Interior supra.
44 S 3(2)(c) of the principal Act.
45 S 3(2)(b).
46 The term used today is ‘prohibited person’: see Y M Burns and G Carpenter ‘Immi
gration and Emigration’ LAWSA vol 11 at 65-66.
47 S 3(2)(d) as amended by s 3(6) of Act 64 of 1961.
48 S 3(1) of the Citizenship Act.
49 Such a person is deemed to have been born in the state in which the ship or aircraft
is registered - see s l(2)(a).
50 S 4(1 )(b), read with ss 5 and 6.
51 According to s l(iii) ‘father’ means ‘mother’ if the child is illegitimate. See fn 41 above.
52 This does not include the territory of South West Africa/Namibia.
(v) had been domiciled in the Union or in South West Africa at the time
of the birth.53
Adopted children are included within the ambit of this provision; they will
be South African citizens by descent if they were born outside South Africa
and subsequently adopted by South African citizens.54 An adopted child will
be a South African citizen as if he were the natural child of his adoptive
father.55
Special provision had to be made for persons who had become Union na
tionals by descent in terms of Act 40 of 1927 even though their fathers had
not been British subjects at birth. Act 18 of 1926, which provided for per
sons to become British subjects by descent, limited the acquisition of British
subjecthood to one generation, but the 1927 Act provided that a person could
become a Union national by descent if his father would have been a Union
national had Act 40 of 1927 been in force at the time — provided the father
had not been in the employ of any enemy state at the time. This was not
restricted to one generation. Such a person will be a South African citizen
if he meets the other requirements of citizenship by descent that are con
tained in section 5(1) of the Citizenship Act,56 while a person who became
a Union national in terms of either Act 18 of 1926 or Act 40 of 1927, but
who does not qualify for South African citizenship in terms of section 5(1)
of Act 44 of 1949, may still acquire South African citizenship, provided he
was admitted to South Africa or South West Africa for permanent residence
prior to 2 September 1949 or was, on 2 September 1949, the holder of a valid
South African passport or the child of such a holder.57
A person born outside South Africa on or after 2 September 1949 is a South
African citizen by descent if his father was a South African citizen at the
time of the child’s birth. (Adopted children, too, are included here.) In all
cases the child’s birth must be registered at a South African consulate or
other prescribed place within one year.58 Provision is also made for the case
where the child’s responsible parent59 resumed South African citizenship and
returned to South Africa permanently. The child will qualify as a citizen by
descent provided his birth is registered within a year after the issue of the
certificate of resumption of citizenship.
The Act does, however, list a number of cases in which persons born out
side South Africa or South West Africa cannot become South African citizens
by descent:60
(i) where the person would be a prohibited person in South Africa; or
(ii) where the person’s father or mother was a prohibited person in South
Africa at the time of his birth;
53 S 5(1), read with s 5(2) and 5(4).

54 S 5(6); Cohen v Minister of the Interior 1942 TPD 151 and Dubowitz v Minister of
the Interior 1942 CPD 504.
56 See s 5(2).
57 S 5(3).
58 S 6(l)(b) and (c) read with s 25bis.
59 I e the father of the child; but if the child is illegitimate, or custody has been awarded
to the mother, or the father is deceased, the mother of the child.
60 S 6.
Citizenship 381
(iii) where the person was not a Union national or British subject immedi
ately prior to 2 September 1949.
Furthermore, any person who was a South African citizen by descent and
lost or renounced such citizenship, cannot on resumption acquire citizen
ship by descent once again. He will be a naturalized citizen or (prior to 1962)
a citizen by registration.61
Until the repeal of the Prohibition of Mixed Marriages Act 44 of 1949,62
a person was also precluded from acquiring South African citizenship by
descent if a marriage between his natural parents would have been prohibited
in terms of the Act.
(b) By naturalization
(1) British subjects prior to 2 September 1949
Persons who were British subjects by naturalization immediately prior to 2
September 1949 are deemed to be South African citizens by naturalization. 63
(2) Naturalization by way of application

Aliens may become naturalized South African citizens on application in the
prescribed form. The Minister of Home Affairs (who has an enormously wide
discretion here, as in many other aspects of the Act) may issue a certificate
of naturalization if he is convinced that the applicant -
(i) is not a minor;
(ii) has been lawfully admitted to the Republic for permanent residence,64
(iii) is ordinarily resident in the Republic, and has been resident for an unin
terrupted period of at least one year prior to the application, and for a fur
ther period of four years during the eight years immediately preceding the
date of application. ‘Ordinarily resident’ in this context is not affected by
temporary absences, as on holiday or on business, but ‘resident’ refers to
actual physical presence. An applicant must therefore be ordinarily resident
in the Republic at the time of his application and have been so resident for
a year immediately prior to application — absence for a period on holiday
during this period will not affect his application. In addition, he must have
been physically present in the Republic for a further period of four out of
the eight years immediately preceding his application.65 The minister has a
discretion to dispense with this requirement and to issue a certificate of
naturalization after only three years’ residence (instead of four) if the appli
cant can read both official languages and may even dispense with the four-
year requirement altogether in the case of former South African citizens or
Union nationals;66
61 Prior to South Africa’s becoming a Republic, citizens of Commonwealth countries

and the Republic of Ireland acquired South African citizenship by registration rather
than naturalization. See VerLoren van Themaat Staatsreg 1 ed (1956) at 344 and
348-350.
62 By s 7(1) of Act 72 of 1985.
63 S 11(2).
64 See Burns & Carpenter op cit at 82-83 and the discussion below at 390 and 392.
65 S 10(l)(a)-(d). See the case of Biro v Minister of the Interior 1957 1 SA 234 (T) at
239-240, and also VerLoren van Themaat op cit at 369 fn 37.
66 S 10(3) ter.
(iv) is of good character;

(v) intends to remain resident in the Republic or to be in the employ of the
South African government, of an international organization of which South
Africa is a member, or of a person or organization resident or established
within the Republic;
(vi) is able to read either of the official languages of the Republic to the satis
faction of the minister;67 and
(vii) has a satisfactory knowledge of the responsibilities and privileges of
South African citizenship.68
An unmarried minor whose responsible parent or guardian has applied for
naturalization on his behalf need only be permanently and lawfully resident
in the Republic to qualify for a certificate of naturalization.69 Likewise, a
descendant of a person born before 1 September 1900 in any of the former
colonies or ‘Boer’ republics which subsequently joined to form the Union
of South Africa, need not meet any of the requirements for naturalization
other than that of lawful permanent residence.70 A married woman may quali
fy for naturalization on the grounds that she is the wife or widow of a South
African citizen, has been lawfully admitted to the Republic for permanent
residence, and has been resident in South Africa for at least two years prior
to her application and after her marriage to a South African citizen.71 A mar
ried woman who is the wife (but not the widow) of a South African citizen,
may qualify if she has been lawfully admitted for permanent residence and
has lived with her husband in the Republic (or outside it, if he was in the
service of the South African government) for a period of at least two years.72
Applicants over the age of fourteen years must swear an oath of allegiance
to the Republic before the certificate of naturalization will be issued.73
The date of issue of the certificate is the date on which the applicant ac
quires South African citizenship.74
The minister’s decision whether to issue a certificate of naturalization is
final, and is not subject to appeal.75 He is not obliged to furnish reasons
for a refusal to issue a certificate,76 nor is he obliged to consider a reappli
cation until one year has elapsed from the date on which notice of the refusal
is given.77 He may — but need not78 — require any applicant to appear per
sonally before him or before any official designated by him.79
67 S 10(g).
68 S 10(l)(h) read with S 11(1).
69 S 10(4) read with s 11(1).
70 S 10(4)6/5.
71 S 10(6)(a), read with s 10(1).
72 S 10(6)(b), read with s 10(1).
73 S 10(11).
74 S 11(1).
75 This does not mean, however, that the court’s inherent common-law power of review
is excluded: see Wiechers Administrative Law (1985) at 262.
76 S 10(14).
77 Ibid.
78 The audi alteram partem rule (the rule that a person affected by an administrative
decision must be heard) is not applicable here, since the applicant has no existing or
vested right which may be affected by the minister’s decision - see Wiechers op cit
at 262.
79 S 10(12).
Citizenship 383
(3) Automatic naturalization based on permanent residence

Section 11A was inserted into the Citizenship Act by Act 53 of 1978. It made
provision for the automatic ex lege naturalization of aliens who -
(i) were not older than 23 years on 19 April 1978;
(ii) were entitled to permanent residence in the Republic by virtue of a per
mit issued after 19 April 1978 in terms of the Aliens Act;80
(iii) had been ordinarily resident in the Republic for two years; and
(iv) had not been convicted of offences in terms of sections 43 and 44A of
the Admission of Persons to the Republic Act.81
The ratio behind the provision was manifestly clear: that young immigrants
(specifically males) who had been permanently resident in the Republic for
some time, should be compelled to assume the duties of South African citizen
ship (such as military service) or lose the status of permanent residents.
Section 11A was amended by Act 43 of 1984, and now makes provision
for the automatic naturalization of persons who became entitled to perma
nent residence before 19 April 1978 as well. The position is complicated by
the fact that the period of residence required by the amended provision has
been extended from two years to five. Persons naturalized in terms of the
original provision have not been affected by the amendment.
Three periods may be distinguished:
(i) The period prior to 19 April 197882

Persons who obtained a permit for permanent residence prior to 19 April
1978 and who are not subject to any of the disqualifications mentioned above,
automatically became South African citizens on 11 October 1984 (six months
after the commencement of Act 43 of 1984) if they had been ordinarily resi
dent in the Republic for five years, provided they were not younger than
15 years or older than 24 years and six months on 11 April 1984.83 Persons
who were younger than 15 years on 11 April 1984 will become South Afri
can citizens on attaining the age of 15 years and six months.
(ii) The period between 19 April 1978 and 11 April 198284

Any person who became entitled to permanent residence during this period
and who fell within the statutory age groups was automatically naturalized
after two years under the old section 11 A. Such persons remain South Afri
can citizens and are not affected by the amendment.
(iii) The period since 11 April 198285

Persons who obtain permanent residence permits ‘after the date two years
before the commencement of the Amendment Act’ (ie 11 April 1982) acquire
80 1 of 1937.
81 59 of 1972.
82 S 1 lA(l)(i).
83 In other words, these persons become citizens (six months later) at between 15 years
six months and 25 years. The reason for the inclusion of the six-months clause is obscure.
84 Two years before the commencement of the Amendment Act - see s 11 A(l)(ii).
85 S 1 lA(l)(ii).
South African citizenship after five years’ ordinary residence, provided they
fall within the statutory age limit. Immigrants who are under the age of 15
years and six months after five years’ residence are naturalized when they
reach that age.
Any person to whom section 11A applies (or, if he is a minor, his respon
sible parent) may make a declaration in the prescribed form to the effect
that he does not wish to become a South African citizen. This declaration
must be made before the date on which the person concerned becomes a South
African citizen. The making of such a declaration has certain serious conse
quences: the person concerned is immediately deemed to be an alien who
is not in possession of a permit for either temporary or permanent residence
in the Republic; no permit for permanent residence may be issued to such
a person; such a person may not subsequently acquire South African citizen
ship by any means; and his name is published in a list appearing in the Govern
ment Gazette.86 The minister does, however, have a discretion to exclude
individuals or categories of persons from the provisions of section 11A(1).87
Furthermore, where the declaration has been made on behalf of a minor,
the latter may, within three months of attaining his majority, retract the state
ment and thus acquire South African citizenship. In terms of section 11 A(3A),
which was inserted in the Act in 1986, any person who has previously made
a declaration that he does not wish to become a South African citizen, may
retract it with the consent of the minister.
The question may be asked whether section 11A must be read with sec
tion 10 - in other words, whether a candidate for automatic naturalization
must be able to read one of the official languages, have a satisfactory
knowledge of the responsibilities and privileges of South African citizenship,
and swear an oath of allegiance to the Republic. It seems hardly likely that
all those aliens who fall within the purview of the section will turn up in droves
to swear the oath of allegiance unless they are formally called upon to do
so. Those who do not feel sufficiently strongly about not becoming South
African citizens (and who therefore do not make the relevant declaration
of intent) will probably simply accept the fact of naturalization. As Van Wyk88
points out, however, dual nationality cannot be excluded unless the oath of
allegiance is taken. An immigrant from Britain who becomes a South Afri
can citizen in terms of section 11A will therefore (in all probability) remain
a British citizen as well.
3 Loss of South African Citizenship

South African citizenship may be lost in a number of ways.
(i) By renunciation
A South African citizen who possesses dual citizenship may make a declar
ation in the prescribed form in which he renounces his South African citizen
ship. If the Republic is at war with any state, however, the minister may refuse
to register such a declaration.89 The minor children of such a person will
86 S 1 lA(3)-(5).
87 S HA(2)(a) and (b).
88 ‘The Ebb and Flow of South African Citizenship Law’ 1978 SAYIL 148.
89 S 16. On registration of the declaration, the person concerned loses not only his citizen
ship but his right to permanent residence as well - s 21(4)(b).
Citizenship 385
also cease to be South African citizens unless the other parent is and remains
a South African citizen.90
(ii) By the acquisition of the citizenship or nationality of another state

A South African citizen who, not being a minor, voluntarily adopts the
citizenship of another state by means of some formal act performed while
he is outside the Republic of South Africa, ceases to be a South African
citizen, unless the minister directs otherwise.91 (Marriage is not regarded as
such an act.) Again the minister may refuse to recognize the renunciation
of South African citizenship if the Republic is in a state of war.
(ill) Service in a foreign defence force

A South African citizen who also possesses the citizenship of another state
and serves in the defence force of that state while the latter is at war with
the Republic, automatically forfeits his South African citizenship.92 If,
however, he acquires the citizenship of a foreign state while that state is at
war with the Republic, he will not automatically forfeit his South African
citizenship, but may be deprived of it by order of the minister.93
(iv) Prohibited persons

A South African citizen will lose his citizenship if he becomes a prohibited
person for the purposes of entry to the Republic.94
(v) Residence abroad

A South African citizen by naturalization or registration automatically for
feits his citizenship after seven years’ uninterrupted residence abroad.95
Periods spent abroad in service of the South African government, or of a
person or company resident or registered in South Africa, or of an inter
national organization of which the Republic is a member, are not included.
The wife or child of such a person is likewise deemed not to have been resi
dent outside the Republic during such a period of service; the same applies
to the wives and children of South African citizens by birth or descent (and
who therefore cannot lose their citizenship in this way). British subjects who
became Union nationals by domicile rather than naturalization, as well as
citizens of the former ‘Boer’ republics, do not lose their citizenship (citizen
ship by registration) as a result of residence abroad. The wife of a British
subject by naturalization who acquired South African citizenship solely by
virtue of her marriage, will, however, lose her South African citizenship if
she resides abroad for longer than seven years.96 Finally, the minister may
exclude any period spent abroad for the purposes of this provision.
90 S 16(3); the children may resume their citizenship on attaining their majority - s 16(4).
91 S 15( l)(a). The original s 15 was the subject of the case of Ebrahim v Minister of the
Interior 1976 1 SA 878 (D) and 1977 1 SA 665 (A), in which the phrase “outside the
Republic” was in issue. See the discussions by W H Olivier of the first Ebrahim case
in 1976 De Jure 355 and of the Appellate Division case in 1977 TSAR 250.
92 S 15(l)(b).
93 S 15(2).
94 S 15(l)(c), which uses the phrase “prohibited immigrant”. Entry to the Republic is
now governed by Act 59 of 1972: see Burns & Carpenter op cit at 64 et seq.
95 S 17(1).
96 S 17(4) read with s 9(2) and (3).
(vi) Lapse of passport

Certain persons born before 2 September 1949 are dependent on a valid South
African passport for the retention of their citizenship.97 Such persons lose
their citizenship when their passports lapse unless they are admitted to the
Republic for permanent residence before their passports lapse. Their chil
dren, too, will lose their citizenship within a year of obtaining their majority
unless they have been lawfully admitted to the Republic for permanent resi
dence, even if their fathers retain their valid passports.
(vii) Deprivation9899
A South African citizen by naturalization or registration" may be deprived
of his citizenship by order of the minister if —
• his certificate of registration or naturalization was obtained by fraud, false
pretences or the concealment of a material fact; or
• he displays disloyalty or an unfavourable attitude towards the Republic
by his speech or action, while outside the Republic; or
• he is convicted in the Republic of treason, crimen laesae majestatis, sed
ition or public violence; or
• during a war in which the Republic is involved, he assists the enemy by
illegally trading with the enemy or assists the enemy in any way; or
• within five years of his naturalization or registration, he is sentenced to
twelve months’ imprisonment or a fine of R200 in any state;100 or
• he is also a citizen by naturalization of any Commonwealth country or
the Republic of Ireland, and is deprived of that citizenship on grounds which,
in the opinion of the minister, are substantially the same as those mentioned
above. The minister must be satisfied that it would not be in the public in
terest for the person concerned to remain a South African citizen.
Any of the above may be referred by the minister to an enquiry101 but must
be so referred if the deprivation is based on the first, second or fourth of
the abovementioned grounds, and the person concerned demands such an
enquiry within six months after notice by the minister that he intends depriving
the former of his citizenship.
Any South African citizen (except a minor) may be deprived of his citizen
ship if -
• at any time after 2 September 1949 he acquired the citizenship or nation
ality of another state by a formal act (other than marriage) performed in
the Republic; or
• at any time after 2 September 1949, whether inside or outside the Republic,
he took an oath of allegiance to a foreign state or made a declaration renounc
ing South African citizenship with the intention of acquiring the citizenship
or nationality of a foreign state; or
97 See above at 378 and cf s 55(3) of the Act.

98 S 19 of the Citizenship Act.
99 Excluding citizens by registration who were citizens of the ‘Boer
* republics and citizens
of Commonwealth countries.
100 An offence carrying a fine of only R200 hardly seems to warrant the deprivation
of a person’s citizenship!
101 Either by the supreme court or by a commission of enquiry — see s 19(4)-(10).
Citizenship 387
• he is a citizen or national of another state as well and, at any time after

30 May 1963, performed some voluntary act which, in the opinion of the
minister, indicates that he is making use of the citizenship of that state; or
• he is a citizen or national of another state as well, and the minister is of
the opinion that it is in the public interest that such a person be deprived
of his South African citizenship.
The minister’s decision is final and he is not obliged to furnish reasons for
his decision.102
A minor born outside the Republic or South West Africa whose responsi
ble parent is deprived of his citizenship also ceases to be a citizen, but may
resume his South African citizenship within a year of attaining his majority.103104
A person who has been deprived of his citizenship is not thereby released
from any duty or liability incurred by him while he was a citizen. This pro
vision relates to duties or liabilities arising from a positive act, not to obli
gations such as military service, which arise ex lege.'04
A former citizen who has been deprived of his citizenship in terms of the
Act, is immediately deemed to be an alien who is not in possession of a tem
porary or permanent residence permit.
(viii) Transfer of sovereignty

Large numbers of black South African citizens automatically lost their citizen
ship on the independence of Transkei, Bophuthatswana, Venda and Ciskei
respectively. This citizenship has been restored in certain circumstances.105
4 Resumption of South African citizenship

The Citizenship Act makes provision for the resumption of South African
citizenship in certain cases:
(i) A minor who lost his South African citizenship because his parents lost,
renounced or were deprived of their South African citizenship, may resume
South African citizenship within one year after attaining his majority, provid
ed he is resident in the Republic;106
(ii) A former South African citizen who has voluntarily renounced his citizen
ship in order to acquire the citizenship of any state or territory in Africa or
to qualify for citizenship of any state by virtue of residence in a state or ter
ritory in Africa, may resume his South African citizenship provided he be
comes permanently resident in the Republic and is not a prohibited person.107
Resumption is not automatic: it is within the absolute discretion of the
minister and the applicant must, if successful, take the oath of allegiance
once again;108
102 S 19d/s(l)(b) and (1A).

103 S 16(4) read with s 17(3) and s 20Ws(2).
104 S 22. See the case of Keeley v Minister of Defence 1980 4 SA 695 (T) and 1981 3
SA 904 (A).
106 See ss 16(4), 17(3), and 20bis(2).
107 S 25W$(1).
108 S 25bis(2'), read with s 10(11), 10(ll)6/s and 10(14).
(iii) A person who has been deprived of his South African citizenship by
the minister on the strength of his acquisition of the citizenship of another
state109 is automatically reinstated if the minister retracts the deprivation ord
er.110
(iv) Former South African citizens who lost their citizenship when the TBVC
states (Transkei, Bophuthatswana, Venda, Ciskei) became independent, may,
in certain circumstances, regain their citizenship in terms of the Restoration
of South African Citizenship Act.111 The Act makes provision for citizen
ship by birth, descent, registration and naturalization.
South African citizenship by birth is restored to all citizens of TBVC states
who were born in the Republic before the commencement of the relevant
Status Act112 and who lost their South African citizenship in terms of that
Act, provided they were permanently resident in the Republic immediately
prior to the commencement of Act 73 of 1986 and have been so resident ever
since becoming a citizen of the state in question.113 Likewise, citizens of TBVC
states born in the Republic after the commencement of the Status Act con
cerned will be South African citizens by birth if they were permanently resi
dent in the Republic immediately before the commencement of Act 73 of
1986 and have been so resident since birth.114
Citizenship by descent is conferred on persons who —
(a) are the minor children of persons who became South African citizens
in terms of section 2(a);
(b) were born outside the Republic after the commencement of the relevant
Status Act;
(c) entered the Republic before the commencement of Act 73 of 1986; and
(d) were lawfully and permanently resident in the Republic immediately be
fore the commencement of Act 73 of 1986.115
Citizens of TBVC states who were South African citizens immediately be
fore the commencement of the relevant Status Act may apply to the Director-
General for registration as South African citizens116 if they entered the Repub
lic after the commencement of the Status Act but before the commencement
of Act 73 of 1986; are lawfully and permanently resident in the Republic,
have been so resident for a continuous period of not less than one year preced
ing their application for registration, and, in addition, have been lawfully
and permanently resident in the Republic for a further period of at least four
of the eight years preceding their application; and are not under the age of
sixteen at the date of application.117 The Director-General may also
109 See the discussion earlier in this chapter.

110S19M3).
Ill 73 of 1986.
112 The Status of Transkei Act 100 of 1976; the Status of Bophuthatswana Act 89 of
1977; the Status of Venda Act 107 of 1979; the Status of Ciskei Act 110 of 1981.
113 S 2(a) of Act 73 of 1986. Such persons must inform the Director General of their
desire to resume South African citizenship.
114 S 2(b).
115 S3.
116 Note that they are entitled to be registered as such.
117 S 4(1).
Citizenship 389
register as a South African citizen any minor who is a citizen of a TBVC

state whose mother or father is or has become a South African citizen in
terms of section 2 or section 4(1) of Act 73 of 1986, provided that the
Director-General is satisfied that the minor concerned is lawfully and per
manently resident in the Republic.118
A certificate of naturalization may be granted to a citizen of an indepen
dent (TBVC) state in terms of section 10 of the Citizenship Act119 if he: was
born in the Republic before the commencement of the relevant Status Act
or in the state concerned after the commencement of the Status Act or if
his mother or father was born in the Republic or in that independent state
as aforementioned; entered the Republic after the commencement of Act 73
of 1986; and complies with the requirements of section IO.120 The Director-
General may also, on written application, issue a certificate of naturalization
to a woman who is a citizen of a TBVC state who can convince the Director-
General that she is the wife or widow of a South African citizen, that she
is lawfully and permanently resident in the Republic and that she has been
so resident for a continuous period of at least two years immediately prior
to her application and after her marriage to the citizen concerned.121
No person born in the Republic after the commencement of Act 73 of 1986
is affected by the provisions of the Act, nor can it be construed as depriving
such a person of his South African citizenship.122
Citizens of TBVC states who resume their South African citizenship in
terms of Act 73 of 1986 cease to hold the citizenship of the independent state
concerned.123 Provision is therefore not made for dual citizenship in this case.
5 Special Cases
(i) Adopted children
The position of adopted children has been touched on above. In brief, any
person born outside South Africa before 2 September 1949 will acquire South
African citizenship if he is adopted by a South African citizen in terms of
the Child Care Act 74 of 1983 and if he would have been a South African
citizen had he been the natural child of his adoptive father.124 It is of interest
that the territory of South West Africa is excluded for the purposes of this
provision, but that a child born in South Africa or South West Africa on
or after 2 September 1949 will be a South African citizen if he is adopted
by a South African citizen in terms of the Child Care Act and if his birth
is registered within one year after his adoption.125
118 S 4(3).
119 44 of 1949.
120 S 5(1) of Act 73 of 1986.
121 S 5(2).
122 S 6(1).
123 S 6(2).
124 S 5(6) of the Citizenship Act 44 of 1949.
125 S 6(l)(c) read with s 6(l)(a); see K Steinberg ‘The Nationality of Adopted Children
under South African Law’ 1958 SALJ 318. Also see s 3(3) in terms of which an illegit
imate child whose mother is not a South African citizen and has no right to perma
nent residence, will not be a South African citizen unless he is adopted by a South
African citizen.
(ii) Married women

The citizenship of married women is not automatically affected by the fact
of their marriage: they may acquire and lose citizenship as if they were un
married, and no married woman acquires or loses South African citizenship
purely by virtue of her marriage. A woman who is married to a South Afri
can citizen may, however, acquire South African citizenship by naturaliza
tion after a shorter period than that which is normally prescribed.126
Some married women lost their status as Union nationals or British sub
jects in consequence of their marriage prior to 2 September 1949. Such per
sons are deemed to be citizens if they would have qualified as Union nationals
or British subjects but for their marriage.127 On the other hand, women who
acquired Union nationality prior to 2 September 1949 by virtue of their mar
riage to Union nationals retain their South African citizenship.128
V SPECIFIC RULES GOVERNING THE CITIZENSHIP OF NON-WHITES

1 ‘Citizenship’ of Black Territories within South Africa
When South Africa became a Union in 1910, all the inhabitants of the coun
try became British subjects.129 The Citizenship Act itself likewise introduced
no differentiation between white and non-white South African citizens. Not
much attention was devoted to the fact that, though non-Whites were tech
nically speaking, South African citizens, they did not enjoy the status of
citizens in every respect and were disadvantaged in spheres such as those of
land tenure, participation in government and so on.
When the policy of apartheid began to give way to the concept of separate
development,130 it was inevitable that some arrangement would have to be
made for the enjoyment of political rights by the inhabitants of the newly
created territories which had been set on the road to self-government and,
ultimately, full independence.
The citizenship arrangements as they relate to the four fully independent
black states (the so-called TBVC states) are relatively straightforward: all
those people who possessed ‘citizenship’ of that self-governing state prior
to independence, automatically became citizens of the newly independent state
and lost their South African citizenship.131 Despite the technical loss of South
African citizenship, former citizens who became citizens of one of the TBVC

127 Ss 13 and 14. As VerLoren van Themaat op cit at 374 fn 62 points out, the wording
of s 14 is somewhat obscure.
128 S 14.
129 For a detailed discussion of the constitutional position of Blacks in general, see Francois
Venter Die Suid-Afrikaanse Bantoestaatsreg, unpublished LLD thesis PU for CHE
(1978), and more specifically as regards citizenship ‘Bantoeburgerskap en Tuisland-
burgerskap’ 1975 THRHR 1.
130 These developments will be discussed in the final chapter of this work.
131 As provided for both in the Constitutions of the states themselves, and in the various
Status Acts passed by the South African Parliament. As seen above, such persons
may now resume South African citizenship in certain cases.
Citizenship 391
states retained various rights and privileges which they had enjoyed as South
African citizens, such as rights of residence, employment, and so on.132
It is of interest that it is technically possible for South African citizens
other than Blacks to qualify for citizenship of one of the TBVC states if they
speak the language of the inhabitants, for example, or are ‘otherwise associat
ed’ with members of the population.133 It should also be observed that all
the TBVC states have their own citizenship laws, which do not necessarily
tally in every respect with the South African laws. It is clear that conflict
may arise in this regard: the problem is referred to a statutory citizenship
board established as agreed upon by the South African government and the
government of the independent state concerned — a most unusual means
of determining issues of citizenship and nationality.134
The determination of local or municipal citizenship of the various self-
governing black states is governed mainly by the National States Citizenship
Act135 which was based, in essence, on the provisions contained in the pre
independence Transkeian Constitution of 1963. The Act of 1970 makes pro
vision for citizenship and concomitant competences, rights and obligations
(such as the right to vote) in respect of every black regional authority creat
ed in terms of the Black Authorities Act of 1951 and in respect of any terri
tory possessing a legislative assembly in terms of the National States
Constitution Act 21 of 1971.
Every black citizen of the Republic is therefore deemed to possess, in ad
dition, the citizenship of a National State; responsibly governed territory;
self-governing territory or black homeland. (By 1986 all these territories quali
fied as ‘National States’.) The links which must exist between a specific black
person and the territory of which he is a citizen are defined as follows in
section 3 of Act 26 of 1970:
The person must —
(a) have been born in the territory from parents at least one of whom is a
citizen of that territory; or
(b) have been granted citizenship of the territory on the strength of at least
five years’ lawful domicile or be a former citizen of one of the TVBC states
who is likewise, a former South African citizen and ‘homeland’ citizen on
whom citizenship of the territory has been conferred;136 or
(c) if neither (a) nor (b) above is applicable to him, be able to speak the
language popularly used by the inhabitants of the territory; or
(d) if (a), (b) or (c) above is not applicable, identify or be associated with
a section of the black population of the territory.
Any person who is dissatisfied with the citizenship allocated to him by the
territorial authority may appeal to the minister, whose decision is final.137
132 See the discussion in ch 21 at 410 et seq.

133 See W H Olivier ‘Statelessness and Transkeian Nationality’ 1976 SAYIL 143;
‘Bophuthatswana Nationality’ 1977 SAYIL 108.
134 See H Booysen ‘Transkei Citizenship - A Statutory Body as International Adjudi
cator’ 1976 SAYIL 201.
135 26 of 1970.
136 S 3(3) of Act 26 of 1970. See VerLoren van Themaat op cit at 372-373.
137 S 9.
Citizenship of a territory is lost when the person concerned acquires the

‘citizenship’ of another homeland, of an independent black (TBVC) state
or of another state.138
The word ‘citizenship’ is used reservedly in respect of the black territories
which remain, constitutionally speaking, part of the Republic of South Africa.
This limited form of citizenship is not true citizenship, since the territories
of which they are ‘citizens’ are not states in the full sense of the word. At
most they are ‘nasciturus states’139 or states in the process of coming into
being. It is, for this reason, not theoretically and jurisprudentially sound to
refer to black persons who are not citizens of the TBVC states as South Afri
can nationals but citizens of KwaZulu, Gazankulu, and so on. The consti
tutional position of such persons remains anomalous.
2 The Naturalization of Non-Whites140

At first glance, there would appear to be no reason why persons other than
Whites should not be able to acquire South African citizenship in exactly
the same way as Whites, provided they meet the requirements of the Citizen
ship Act.141 One of these requirements is that an applicant for a certificate
of naturalization must have been lawfully admitted to the Republic for per
manent residence, and this is where the difficulty lies. Section 4(3)(b) of the
Aliens Act 1 of 1937 formerly required that an applicant for permanent resi
dence must show that he is likely to become readily assimilated with the Eu
ropean (white) inhabitants of the Republic within a reasonable period of his
entering the country. This provision was amended in 1986142 and the refer
ence to European or white inhabitants deleted. A would-be immigrant need
now show only that he is likely to become assimilated with the inhabitants
of the Republic in general. The technical obstacle standing in the way of
naturalization of non-Whites has therefore been removed.
There is another problem, however, which remains: section 4(3) of the
Aliens Act still requires that an applicant for a permanent residence permit
must not pursue an occupation in which a sufficient number of persons is
already engaged in the Republic. This is a requirement one is likely to en
counter in the immigration laws of every country in the world: the fact re
mains that, as far as Blacks, in particular, are concerned, it could well
constitute a form of hidden discrimination, in view of the fact that so many
black people are educationally disadvantaged and would therefore be quali
fied only to do unskilled work.143
It has been shown above144 that provision is made for the resumption of
South African citizenship by former South African citizens who have since
become citizens of another African state, and also more specifically for
138 S 4.
139 The term coined by M P Vorster. See above at 371.
140 For a detailed discussion of this topic, see L C Blaauw ‘The Naturalisation of Blacks
in the Republic of South Africa’ 1982 SAYIL 106.
142 By s 2 of Act 53 of 1986.
143 Certainly such provisions may be construed as discriminating against the education
ally disadvantaged in whichever country they may occur.
144 At 385-387.
Citizenship 393
resumption of citizenship by persons who automatically forfeited their South

African citizenship when the ‘homeland’ of which they were citizens (in the
narrow sense) became independent: the latter group will not, however, be
naturalized South African citizens but citizens by birth. The requirement of
lawful entry for permanent residence therefore does not arise.
Not all citizens of the TBVC states will, however, qualify under this head
ing, as there are a number of requirements to be met. The descendants of
former citizens of the Republic may, for example, be excluded, and if such
persons wish to acquire South African citizenship they would have to meet
the requirements of section 10(1) or section 11A of the Citizenship Act; one
of the requirements of the latter is that the person concerned must be in pos
session of a permanent residence permit, and one of the requirements of sec
tion 10(1) is that the applicant must have been lawfully admitted for
permanent residence.
The permanent residence requirement would seem to remain a real obstacle
to many non-Whites wishing to become naturalized South African citizens,
whether they hail from a country on the African continent or from elsewhere.
VI MISCELLANEOUS TOPICS CONNECTED WITH CITIZENSHIP

1 Entry to the Republic145
Entry to the Republic of South Africa is governed mainly by the Admission
of Persons to the Republic Regulation Act146 and the Aliens Act.147
(a) The Admission of Persons to the Republic Regulation Act

Although the concept of domicile is one which has an essentially private-law
connotation,148 it nevertheless plays an important part in the issue of entry
into the sojourn in the Republic.149 The most important concept in the Act,
however, is that of the ‘prohibited person’, which is provided for in sec
tion 13. The following persons are deemed to fall into the prohibited category:
(i) any person deemed by the minister on economic grounds or on account
of his standard of living or way of life, to be unsuited to the requirements
of the Republic;150
. (ii) any person unable to read and write any European language;
(iii) any person who is likely to become a public charge because of an infirm
ity of mind or body or because of insufficient financial means;
(iv) any person deemed by the minister to be an undesirable inhabitant or
visitor to the Republic;
(v) any prostitute;
145 See Burns & Carpenter op cit at 64 et seq for a detailed discussion.
146 59 of 1972.
147 1 of 1937.
148 One would expect the important concept in this sphere to be that of ‘residence’ or
‘permanent residence’ rather than ‘domicile’.
149 See s 1 of the Act.
150 Or, in the case of a person lawfully resident in one province who enters another
province, of that province.
(vi) any person convicted in any country of a contravention of exchange con

trol laws who is deemed by the minister to be an undesirable inhabitant or
visitor;
(vii) any mentally ill person or any person physically afflicted, unless secur
ity is provided for his support;
(viii) any person afflicted with any contagious or communicable disease;
(ix) any person previously deported from the Republic, unless he has authori
ty to return;
(x) any person convicted of an offence who is, as a result, deemed to be an
undesirable inhabitant or visitor.
Section 14 enumerates the persons or categories of persons who are not pro
hibited persons for the purposes of section 13.151152
156
155
154
153
The Act also contains provisions governing the duties of persons entering
the Republic, the powers and duties of passport control and other officers,
and offences in terms of the Act.
(b) The Aliens Act

An alien is any person who is not a South African citizen. Aliens may enter
the Republic for the purpose of permanent residence or for the purpose of
temporary sojourn. In both cases permits are required. An applicant for a
permanent residence permit must persuade the immigration selection board
that he is of good character; is likely to become readily assimilated with the
inhabitants of the Republic within a reasonable period; is not likely to prove
harmful to the welfare of the Republic; and does not pursue an occupation
in which a sufficient number of persons is already engaged in the Repub
lic.132 The wife, minor child or aged or destitute parent or grandparent of
a person already lawfully and permanently resident in the Republic also quali
fies for a permanent residence permit if the relative who is resident under
takes to maintain the applicant.133
An alien wishing to remain temporarily in the Republic must also obtain
a permit, which may be issued by a passport control officer if the applicant
has complied with all the requirements prescribed by regulation.134 A person
who is in possession of a temporary residence permit may apply for a per
manent residence permit.
The Minister of Home Affairs may exempt certain persons from the re
quirements of the Aliens Act, extend the period of a temporary permit, vary
its conditions,133 or cancel it.136 The Act also makes provision for a large
number of varied offences.
151 These include members of a foreign military force who have permission to enter the
Republic, diplomatic personnel, persons who lawfully enter the Republic for the pur
pose of employment, and persons whose parents were domiciled in the Republic at
the time of their birth.
152 S 4.
153 S 4(3).
154 S 5.
155 Ss 5(3) and Ibis.
156 S 8.
Citizenship 395
2 Departure from the Republic

(a) Voluntary departure - exit permits and passports
Departure from the Republic is governed mainly by the Departure from the
Union Act.157158In general, a person leaving the Republic may do so only at
159
certain places, and must be in possession of a valid passport or exit permit.138
A passport is defined as any passport, tourist passport or other travel docu
ment by or under the authority of the government of the Republic, by the
government of another state to a national of that state who is not also a South
African citizen or by an international organization to a person who is not
a South African citizen. An exit or departure permit, on the other hand, is
a permit issued under section 5 of the Act, and does not confer the same
rights as a valid passport.
At common law the position as regards passports and the right to leave
the country was ill-defined, though there were some exceptions to the rule
that a person could leave the country (but not return) at will.139 Act 34 of
1955 made provision for departure permits but did not change the common
law position as regards passports. There is in fact no statutory authority
regulating the power to issue passports, which is still based on the royal
prerogative.160
When the case of Sachs v Donges'61 was decided, passports did not, as
they do today, contain any reference to withdrawal or cancellation except
where the passport had been mutilated or illegally endorsed. Watermeyer
CJ held that the concept of any power to cancel or withdraw a passport at
will was negatived by the absence of an endorsement to that effect.162 The
implication is therefore that an endorsement stating the conditions on which
a passport is issued would in fact confer on the executive the power to with
draw the passport. This is further strengthened by the approach adopted by
the court that the issue of a passport is based on a contract between the state
and the individual. Presumably the individual must be deemed to have ac
cepted the state’s ‘offer’ to issue a passport subject to the conditions printed
on it. This construction is clearly untenable: the granting of a passport is
a unilateral administrative act which does not require the co-operation of
the individual in the way that a collective labour agreement does, for example.
The state and the individual do not ‘contract’ on a basis of equality at all.163
(Another point to be considered is that at the time when the Sachs judgment
was given, a passport or departure permit was not required by anyone wish
ing to leave the country. The withdrawal of a passport would therefore have
constituted a less serious encroachment on the liberty of the individual than
it does today.)
157 34 of 1955.
158 S 2.
159 See Burns & Carpenter op cit at 91 fn 3, and the case of Sobukwe v Minister ofJustice
1972 1 SA 693 (A).
160 See Burns & Carpenter op cit at 75; Sachs v Donges NO 1950 2 SA 265 (A); Sasseen
v Minister of the Interior 1942 CPD 546.
161 Supra.
162 At 277.
163 As regards the nature of such executive acts see M Wiechers Administrative Law (1985)
at 116 fn 82, 169 fn 292, 338-339 fn 129.
H J May,164 too, takes the view that the conditions of issue printed on a
passport give rise to a contract between the state and the holder of the pass
port and that the cancellation of passports is regulated by the inclusion of
the conditions of issue in the passport. These conditions read as follows:
This passport remains the property of the Government of the Republic of South
Africa and may be amended, withdrawn or cancelled at any time at the pleasure
of the Minister of Home Affairs on behalf of the said Government . . .
The question now arises: if the conditions do not indicate the existence of
a contract, what is their significance? Does the inclusion of such conditions
in fact confer on the minister a power to withdraw the passport at will? There
is no authority for the contention that the printing of conditions on a pass
port confers any power on the executive which it does not have at common
law.165
It must therefore be asked whether a power of withdrawal without the giv
ing of notice or reasons is recognized at common law. According to
Wiechers166 the withdrawal of a passport is a quasi-judicial act, since it in
volves the exercise of a considerable discretion affecting existing rights or
privileges.167 The so-called rules of natural justice 168 apply to all quasi-judicial
acts unless they have been statutorily excluded either expressly or by necess
ary implication. The observance of these rules implies that the individual must
be given an opportunity to state his case, that the administrative organ deal
ing with the matter must be unbiased, that all considerations counting against
him must be communicated to him, and that reasons should be furnished
for any action taken against him.169 Applied to the passport question, this
would mean that the executive may not withdraw a passport at will, since
the holder of a passport has an existing right or privilege in that regard.
The granting of a passport is slightly different. There is still a consider
able discretion which is exercised, but there are those who will argue that
the citizen has no existing right to a passport, and that a passport is aprivilege
conferred by the executive. It could, of course, be contended that every in
dividual has a basic right to freedom of movement170 and therefore that the
denial of a passport constitutes an infringement of this right, since it is im
possible to travel abroad without such a document. The approach of the South
African courts to such ‘fundamental’ rights has, however, tended to be
conservative171 and it would appear unlikely that any court will insist on the
observance of the rules of natural justice where the executive refuses to issue
a passport.

165 See Burns & Carpenter op cit at 75.
166 Op cit at 131.
167 Also see Cassem v Oos-Kaapse Komitee van die Groepsgebiederaad 1959 3 SA 651
(A) at 659.
168 For a detailed discussion see Wiechers op cit at 208 et seq.
169 This last requirement is not always adhered to in practice; see Wiechers op cit at
212-214.
170 See Bhadra Ranchod ‘Passports — the Need for Reform’ 1986 THRHR 82.
171 See the discussion in ch 5 above at 103-105, in particular.
r
Citizenship 397
English law, too, is not particularly helpful in this regard. No distinction

appears to be made between the issue and the withdrawal of passports, and
it is generally accepted that the courts have no jurisdiction to interfere with
the exercise of the prerogative as long as no question of ultra vires arises.172
It must be pointed out, however, that denials or withdrawals of passports
are extremely rare in Britain.173174175
If the English-law approach is adopted, the individual will therefore have
little or no redress if his application for a passport is refused or his existing
passport withdrawn. On the other hand, if Wiechers’s approach is followed,
he is entitled to insist that the rules of natural justice be observed.
In Tutu v Minister of Internal Affairs™ the applicant’s passport had been
revoked by the minister. The questions before the court were whether the
minister may revoke a passport without showing good cause, whether in casu,
good cause had been shown (presuming this is required to be shown), and
whether, if the minister may revoke a passport without furnishing reasons
for the revocation, the minister had in fact revoked the applicant’s passport
for an improper purpose. The court held that the judgment in the case of
Sachs v Dónges™ had to be distinguished, since the ‘extract from Passport
Regulations’ in Sachs’s passport did not constitute conditions of issue in that
case, whereas the ‘Conditions of Issue’ printed on the applicant’s passport
did. The court took the view that, as in Britain, the issue and refusal of pass
ports, as well as the revocation of passports prior to expiry, are matters fall
ing within the discretion of the executive,176 and that, in consequence, the
minister has an unchallenged right to revoke the passport without giving any
reasons for his action.177178
The question of the issue and revocation of passports under the 1983 Con
stitution arose in Boesak v The Minister of Home Affairs.™ The applicant
argued that this matter fell into the category of prerogatives of the State Presi
dent who acts, in own affairs, on the advice of the Ministers’ Council con
cerned, and in general affairs, in consultation with the Cabinet.179 He
contended that only the State President possesses this power and that there
was no evidence that it had been properly delegated to the minister. Whereas
the minister himself could have exercised this power under the 1961 Consti
tution, the position had changed: it was contended180 that the issue and revo
cation of passports (like the other prerogative powers) was a general affair
and that the matter should have been dealt with by the State President act
ing in consultation with the Cabinet. The court rejected this contention, hold
ing that prerogative powers cannot be classified as either own or general
affairs and must be exercised in the same manner as before. Furthermore,
172 See S A de Smith Judicial Review of Administrative Action 2 ed (1968) at 10, 41,
162, 166 and 272.
173 De Smith op cit at 10: “The Foreign Secretary may refuse a citizen a passport (but
very rarely does so)”.
174 1982 4 SA 571 (T).
175 Supra.
176 At 576B.
177 At 576H.
178 This case is as yet unreported.
179 See the discussion in ch 15 above at 308 et seq.
180 With reference to H Booysen and D H van Wyk Die ’83-grondwet (1984) at 59.
even if it is accepted that the withdrawal of passports is a general affair, there

was no need for the State President to have acted personally rather than
through the appropriate minister.
The court’s creation of a third category of matters in addition to own and
general affairs would appear to be unjustifiable.181 As regards the applicant’s
other contention, namely that the power must be exercised by the State Presi
dent personally, there appears to be no reason why he should not delegate
any of his powers to a minister: but there should be an actual delegation,
which should be alleged in the pleadings.
The need for reform in the law governing passports in South Africa has
been touched on at various intervals,182 but to date no concrete proposals
have been formulated. Statutory regulation of the granting and revocation
of passports would obviously be conducive to greater certainty. Whether the
end result would be more satisfactory from the individual’s point of view,
however, is another matter.
(b) Deportation
Aliens may be deported or removed from the Republic in terms of the Aliens
Registration Act183 and the Aliens Act.184185
Persons who are not South Afri
can citizens by birth or descent may also be removed from the Republic in
terms of the Admission of Persons to the Republic Regulation Act.183 Per
sons who are to be deported may be detained pending their removal, and
a warrant issued for the removal of a person who is the head of a family
may include any dependent member of the family who is not a South Afri
can citizen.186
VII SUMMARY
Citizenship and nationality are terms which relate to the relationship between
an individual and the state to which he belongs, but are not synonymous:
citizenship denotes the national and nationality the international aspect of
that relationship.
Citizenship is probably best described not as a status in itself, but as a
factor determining status. Although citizenship of a state normally confers
full political and civil rights on the individual, this is not the case in South
Africa, where Blacks do not have the franchise except in the National States.
This does not mean, however, that they are not South African citizens.
South African citizenship is governed by the South African Citizenship
Act 44 of 1949 as amended. Citizenship may be acquired by birth, descent
181 See the criticism expressed by G Erasmus ‘Die Wei en Wee van ’n Paspoort ingevolge
die Nuwe Grondwet’ 1986 THRHR 330 and M P Olivier ‘The Withdrawal of a Pass
port: an Own or General Affair or a Residual Category?’ 1986 SA Public Law 115.
Also see C W van Wyk ‘The South African Passport’ 1976 SAYIL 212.
182 See e g Ranchod 1986 THRHR 82.
183 S 18 of Act 26 of 1939. See Bums & Carpenter op cit at 95.
184 1 of 1937. See ss 5(4) and 5&/s(l).
185 59 of 1972. See Burns & Carpenter op cit at 92-94.
186 Ibid.
Citizenship 399
or naturalization. Citizenship by naturalization may be acquired by appli

cation or ex lege by virtue of permanent residence. Citizenship is lost by
renunciation, declaration as a prohibited person, prolonged residence abroad,
the expiry of a valid South African passport, deprivation and the transfer
of sovereignty. Citizenship which has been lost may be resumed in certain
cases.
Specific rules apply to Blacks, who possess local citizenship of one of the
National States as well as South African citizenship or nationality in the wider
sense.
Entry into and departure from the Republic are governed mainly by stat
utes such as Admission of Persons to the Republic Regulation Act, the Depar
ture from the Union Regulation Act and the Aliens Act. The issue, renewal
and revocation of passports is, however, governed by common law. In this
regard all powers vest in the executive by virtue of prerogative.
CHAPTER TWENTY-ONE
Devolution and Deconcentration

of Powers
I INTRODUCTION
Devolution is a concept which has become very current in recent years, par
ticularly in relation to constitutional developments in Britain, where there
has been a considerable delegation of authority to Scotland and Wales. It
is, however, necessary to determine the meaning of devolution and to see
the term in the context of other concepts such as ‘decentralization’, ‘decon
centration’, and ‘delegation’.1 The Concise Oxford Dictionary defines devol
ution as: “Deputing, delegation of work or power (especially) by House of
Parliament to bodies appointed by and responsible to it, or by central govern
ment to local or regional administration).” Unfortunately, this definition
does not tell the whole story, since it does not distinguish between the nature
of the autonomy conferred in the process of devolution and that conferred
in the process of deconcentration.
The decentralization of governmental authority lies at the heart of any sys
tem of provincial, regional or local government.2 It can take the form of
either deconcentration or devolution, depending on the extent to which
authority is transferred and the amount of discretion conferred on the sub
ordinate body by the central government.
Deconcentration (or bureaucratic decentralization) is a weak form of decen
tralization which results in a system of local administration rather than local
government. It implies a delegation of authority to implement policies laid
down by the central government rather than a transfer of real autonomy and
discretionary decision-making power.3
Devolution (or political decentralization), on the other hand, refers to a
real transfer of power, leading to a system of local government. It implies
substantial autonomy and discretionary decision-making power, whereas
deconcentration implies a limited delegation of authority to an agency whose
responsibility is to carry out the mandate of its principal (the central
government).
1 Also see M Wiechers Administrative Law (1985) at 51 et seq.

2 U Kumar ‘Decentralisation, Local Government and Development: the Lesotho
Experience’, paper read at a Workshop on Local Government, University of South
Africa April 1987.
3 See S Bekker ‘Devolution and the State’s Programme of Reform’ Workshop on Local
Government, above.
400
Devolution and Deconcentration of Powers 401
The devolution of political power is acknowledged by all Western democ

racies to be a desirable phenomenon, for the following reasons:
it promotes the dispersal of political power, thus avoiding an undue
concentration of power;
it permits a wider degree of local participation and involvement in the
democratic process;
it leads to greater efficiency because of greater sensitivity to local needs
and conditions.
Devolution is, however, not achieved without difficulty. There are a num
ber of basic requirements which must be met if it is to be successful:
First of all, the local or regional authorities to which power is transferred,
must have an adequate revenue-base if the devolution is to have any mean
ing at all. Secondly, the local bodies must enjoy political legitimacy or accept
ance. (This is of particular importance in the South African context, where
a great deal of difficulty has ensued in regard to black local authorities, where
the bodies have not been accepted as legitimate by the communities con
cerned.) Finally, fiscal policy will determine the extent of effective devol
ution. While it is inevitable that the central government will play a key role
in the maintenance of monetary stability (without which no decentralization
is possible) and in the distribution of revenue on a country-wide basis, the
allocation of services, for example, should be left largely in the discretion
of the local authorities who have a greater knowledge of local conditions
and are directly accountable to the local electorate.
In short, the central government is in a position either to limit or to pro
mote devolution. The success of the process of decentralization will depend
heavily on the approach and attitude of the central government.
A distinction may also be made between legislative and executive devol
ution. Legislative devolution implies the transfer of a substantial degree of
legislative autonomy to the legislative authority concerned (for example, the
legislative assemblies of the National States or South-West Africa/Namibia).
Where the subordinate legislature cannot make laws which conflict with or
amend the enactments of the central legislature, this is not devolution in the
proper sense.4*Executive devolution, on the other hand, implies that the cent
ral executive leaves it to the executive organs concerned (such as the execu
tive committees or councils of subordinate authorities) to make their own
decisions on executive matters and even to determine policy. Where these
organs merely implement the policy of the central government, this is not
devolution. It is possible that a particular authority may possess full execu
tive powers, for example, but not full legislative autonomy. In such a case,
the legal position will be on the border-line between deconcentration and
devolution proper.
Both devolution and deconcentration are to be found in the South African
system: devolution manifests itself in the development of South West
4 This distinction is clearly manifested in the difference between the legislative powers
of the National States (whose legislatures may validly adopt laws which conflict with
legislation of the central Parliament) and those of the erstwhile Provincial Councils,
which did not possess this power. See the discussion later in this chapter.
of Parliament’.14 It must be emphasized, however, that such proclamations

are subordinate legislation and, as such, subject to all the usual rules defining
the validity of subordinate legislation, and to the scrutiny of the courts unless
the courts’ power of review has been expressly excluded by Parliament. One
must therefore agree with Devenish15 that the dictum in Maharaj is ‘an unfor
tunate exaggeration’. This does not, however, detract from the fact that the
Act placed black administration squarely in the hands of the executive.
The first statutory measure to provide for black opinion to be heard, was
the Native Representation Act 12 of 1936, in terms of which a native represen
tative council was established and provision made for the representation of
Blacks by Whites in the Senate, and of Cape Blacks in the House of Assembly
and the Cape Provincial Council. In truth the native representative council
was a misnomer: it was an advisory and not a representative body. The council
had no legislative powers and could only consider and report to the Minister
on matters of concern to Blacks. It was not a success. Relations between
the council and the government were never particularly good, and pass laws
proved a constant thorn in the flesh.16
One interesting development which occurred during this period, was the
establishment of the Transkeian Bunga or General Council in 1930. The
Transkei had enjoyed a certain independent status even in the nineteenth cen
tury, and the Bunga proved reasonably successful. VerLoren van Themaat17
is of the opinion that this success was probably responsible in some measure
for the government’s decision, in 1931, to place the organization of black
affairs on a traditional tribal footing rather than on a centralized basis.
2 The Black Authorities Act 68 of 1951

The year 1948 saw the National Party come to power and the introduction
of apartheid as a philosophy or ideology rather than simply a practical state
of affairs. The policy was one of strict segregation between Whites and other
population groups, and the further division of Blacks into different national
groups on traditional and historical grounds.18
The 1951 Act was based to some extent on earlier legislation which had
accorded recognition to traditional tribal authorities.19 Tribal chiefs and their
councillors were vested with certain executive powers in local matters. Two
conditions were laid down — the institution of these powers had to take place
with due regard for black law and custom, and the Minister was obliged to
consult the Blacks in the territory for which a local authority was being estab
lished.20
14 See Wiechers op cit at 92 and S v Naicker 1965 3 SA 413 (A) at 423C-F.

15 See Race and the Law in South Africa (ed Rycroft) (1987) at 28.
16 For a general discussion of this period of constitutional development, see JP verLoren
van Themaat ‘Die Deelname van Verskillende Dele van die Bevolking van die Unie
aan sy Staatsregtelike Instellings’ 1960 THRHR 154.
17 Staatsreg at 436-437.
18 For a detailed discussion of the historical background see Venter op cit.
19 For example, see s 2(7) of the Black Administration Act 38 of 1927, which empowered
the Governor-General to appoint and dismiss captains and headmen and to define their
authority.
20 See DA Basson and HP Viljoen Studentehandboek vir die Suid-Afrikaanse Staatsreg
(1985) at 457-458.
The authorities created in the Act were structured as follows:

(a) At the lowest level there were tribal authorities which possessed powers
of local management; in effect this meant that they assisted the captain and
advised government authorities. It was clearly provided that they had to exer
cise their powers in accordance with the rules of black customary law.21
(b) Next there were regional authorities, instituted in respect of two or
more territories for which tribal authorities had already been instituted.22
Their function was to advise the central government in matters affecting the
general interests of Blacks within the territories concerned. They also per
formed certain executive functions23 and were empowered to promulgate by
laws and levy taxes.24 These by-laws were subject to the Governor-General’s
approval.
(c) Finally, there were territorial authorities established in respect of two
or more territories for which regional authorities existed. These authorities
also had legislative powers, and could promulgate by-laws and levy taxes.
They also advised tribal and regional authorities in their territories and acted
in general to guide the territories concerned towards a greater measure of
self-government.
At this stage the central government retained a large degree of control over
the various black authorities, so that it would be incorrect to refer to even
a limited measure of self-government at this stage. Furthermore, the con
cept of separate homelands and even of rigidly demarcated ethnic groups
had not yet been devised. This was to follow only in 1959, with the Pro
motion of Black Self-government Act, which may be said to mark the tran
sition from the policy of apartheid pure and simple to that of separate
development.
3 The Promotion of Black Self-government Act 46 of 1959

The Commission of Enquiry into the Socio-economic Development of Bantu
Areas within the Union of South Africa presented its report to the govern
ment (the so-called Tomlinson Report). It identified seven so-called ‘heart
lands’ for the various ethnic groups and proposed that these should serve
as the bases on which the black groups should, to an increasing extent, achieve
self-goverment.
The government accepted the Commission’s proposals, which found their
way into the Act. The Act divided the black people of South Africa into eight
groups: the Northern Sotho, Southern Sotho, Swazi, Tsonga, Tswana, Venda,
Xhosa and Zulu. A geographical area was set aside for each of these groups
and the office of Commissioner-General instituted for each unit. The
Commissioner-General was a kind of diplomatic representative of the Union
government,25 whose function it was to liaise with the black authorities in
his territory, to advise them and to keep the central government informed
about the needs of the territory.
21 S 4 of the Act.
22 S 2.
23 In respect of roads, hospitals, education, etc - s 5.
24 S 6.
25 See Basson and Viljoen op cit at 461.
4 Self-government for Transkei

For historical reasons the development of Transkei did not follow the same
course as that of the other black territories. It had for many years been
regarded as a separate ethnic unit, and its Bunga functioned successfully where
other black institutions did not. In fact, the Black Authorities Act did not,
at first, apply to Transkei. It was only in 1956 that the Governor-General
issued a proclamation disbanding the Bunga and bringing Transkei under
the aegis of the Act.
Some five years later a motion was introduced into the Transkeian ter
ritorial authority requesting the South African government to declare Transkei
a self-governing territory. It is not clear whether what was being demanded
was independence or merely a greater measure of autonomy, but the upshot
was that the Transkeian Constitution was passed by the South African Parlia
ment in 1963. This Constitution conferred automomy rather than full-blown
independence, even though it made provision for a flag, anthem and three
official languages (English, Afrikaans and Xhosa).26
The importance of the Transkeian Constitution of 1963 lies in the fact that
it served as a model for the National States Constitution Act of 1971, on
which the constitutional development of all the black territories within South
Africa was based.
5 The National States Constitution Act 21 of 1971

The National States Constitution Act,27 which created a framework for the
constitutional development of all the black territories within South Africa
other than Transkei, was in fact based on the Transkeian Constitution of
1963. Instead of adopting a constitution for each of the territories as they
reached the relevant stage of development, the ‘standard’ constitution was
made applicable to that territory by way of proclamation. As VerLoren van
Themaat28 puts it, the South African Parliament prepared for the mass
production of constitutions for the so-called black homelands.
The Act makes provision for three stages of autonomy. Homelands could
progress from territorial authority status as sketched above, in which no legis
lative power was conferred on the territory, to responsible government (the
second stage) and from there to self-government (the third stage). The final
stage (full independence) is not catered for in the Act.
Responsible Government29
A territory with responsible government status may be compared with a
province prior to the abolition of the Provincial Councils. At this stage none
26 The validity of the provision conferring official status on the Xhosa language is open
to serious doubts, since Transkei was still part of the Republic, and the two official
languages were entrenched in the Constitution. Technically the addition of another
language required a two-thirds majority vote in a joint sitting of Parliament - s 108
of Act 32 of 1961.
27 21 of 1971.
28 Op cit at 439.
29 The Act itself does not refer to ‘responsible government’ but only to ‘self-government’.
This term is confusing, as is pointed out by Venter op cit at 165, because two stages
of constitutional development are provided for in the Act. Venter uses the term ‘respon
sible government’ to distinguish it from the next stage in the process, an approach
which appears to be both useful and sensible.
of the black territories remaining part of the Republic (Lebowa, KwaZulu,

QwaQwa, Gazankulu, KwaNdebele and KaNgwane) are self-governing. It
is nevertheless appropriate to sketch the constitutional position of such
territories in brief.
The Act makes provision for a legislative assembly and an executive council
with considerable executive powers. The territorial authority established in
terms of the Black Authorities Act of 1951 was abolished.
The legislative assembly may make laws on any matter listed in Schedule
1 of the Act. This includes matters such as the regulation and control of road
traffic, agriculture, black education, welfare, labour, health services, and
so on.
The assembly may amend or repeal any South African law other than an
Act of Parliament (in other words, provincial ordinances and municipal by
laws). The legislation must be assented to by the State President, and this
assent is no mere formality.
The State President and the Minister have a major say in the executive
sphere as well.
Self-government30
This is the most important aspect of the Act, since it marks the stage which
most of the black territories within South Africa have reached. It is the final
stage before full and formal constitutional independence, and is marked by
a considerable degree of autonomy. Any National State which is self-
governing is entitled to ask for full independence from the Republic.
Self-governing National States have their own symbols of state such as
a national flag, anthem, and official languages. The topics on which the legis
lative assemblies may legislate remain the same as in the case of responsibly
governed territories: these topics are listed in Schedule 1. Matters which can
not be dealt with by the National States are: defence, foreign affairs31, inter
nal security, posts and telecommunications, railways, national roads and
harbours, immigration, currency, public loans, banking, customs and excise,
police, and so on.
In matters listed in the first Schedule to the Act, the legislative assemblies
of the National States possess plenary legislative powers. Like the erstwhile
Provincial Councils, they are said to possess original legislative powers, which
means that their laws are not classified as subordinate legislation and there
fore cannot be challenged in a court of law on the grounds of unreasonable
ness or inefficacy.32 Unlike the Provincial councils, however, the legislative
assemblies may validly adopt legislation which conflicts with or has the effect
30 Chapter 2 of Act 21 of 1971.

31 Except for the conclusion of treaties and agreements with the government of the Repub
lic; for a discussion of the legal status of such agreements, see MP Vorster ‘The Inter
national Legal Personality of Nasciturus States’ 1978 SAYIL 1; TB Floyd
‘Pre-Independence Agreements between South Africa and the Black Homelands’ 1980
SAYIL 78; H Booysen ‘The South African Homelands and their Capacity to Con
clude Treaties’ 1982 SAYIL 58.
32 Unlike Acts of Parliament, though, such legislation may be declared invalid by the
Supreme Court if it is ultra vires.
__________________ Devolution and Deconcentration of Powers AM
of amending Acts of the South African Parliament - provided they do not

impinge on areas outside their sphere of competence. The National States
Constitution Act itself and the proclamation by which it is made applicable
to a particular National State, cannot be amended or repealed by the legisla
tive assembly of the latter.
The legislation passed by a self-governing state is subject to the State Presi
dent’s approval. Again this is not a mere formality, there being no conven
tion that the State President is bound to give his assent to legislation which
has been duly passed. The legislation is transmitted to the State President
via the office of the Commissioner-General and Minister of Constitutional
Development and Planning.
The executive authority is vested in a Chief Minister and a Cabinet of
ministers, but here again the State President and the Minister play a dominant
role.
As far as the judiciary is concerned, the Act merely provides that the State
President may institute a supreme court for the territory. This was in fact
done in Transkei prior to independence.
A problem which arose at one stage concerned the applicability of new
South African legislation in the spheres covered by the Schedule. Section 30(3)
of the Act (like Section 37(3) of the Transkeian Constitution of 1963) pro
vides that no law made after the commencement of the Act (including an
Act of Parliament) which relates to any matter referred to in the Schedule,
will apply in the territory concerned.
This provision appears at first glance to be perfectly straightforward, but
it gave rise to difficulties of interpretation all the same.33 The matter was
eventually settled by the Appellate Division in S v Heavyside.3* The issue
revolved around Act 80 of 1973, which amended Act 41 of 1971, the Abuse
of Dependence-producing Substances and Rehabilitation Centres Act. One
of the topics specifically entrusted to the Transkeian legislative assembly was
‘health matters’. The question was whether the amending Act, which con
tained certain procedural provisions, was applicable in Transkei. The court
held that once Transkei had been empowered to make laws on health matters,
no Act of the South African parliament which dealt with such matters (and
Act 41 of 1971 fell into this category) was applicable in Transkei.35 Further
more, the power to legislate on any matter listed in the first Schedule neces
sarily included the power to create procedures for the purpose of enforcing
the law in question.36 The contention that section 3 of Act 80 of 1973, though
purporting to amend Act 41 of 1971, in effect amended a provision of the
33 See eg the cases of S v Dlanga 1968 1 SA 5 (E); S v Xesi 1969 1 SA 1 (E); S v Ndewanana
1966 3 SA 312 (E); S v Zitudeza 1970 2 SA 773 (E); Sv Moagesi 1974 1 SA 137 (NC)
(the only one of these cases which dealt with Bophuthatswana and not Transkei); S
v Quma 1974 3 SA 772 (E); S v Semke; S v Mavruso 1976 4 SA 817 (E). Also see
DH van Wyk ‘Die Posisie m b t Wetgewing in die Bantoetuislande’ 1974 THRHR 1
and 1976 THRHR 172; FG Richings ‘The Applicability of South African Legislation
in the Self-governing Bantu Territories’ 1976 SALJ 119.
34 1976 1 SA 584 (A).
35 At 587F.
36 At 589E-F.
Criminal Procedure Act 56 of 1955 (an Act in respect of which the Trans-
keian legislature possessed no legislative competence) was rejected by the
court.
Although the legislatures of the National States are said to possess ple
nary competence to make laws in the spheres entrusted to them and may
therefore be said to constitute the supreme legislative authority in those
spheres, the South African Parliament remains, in general terms, the supreme
legislative authority in the Republic, of which the National States are still
a part. This implies that Parliament remains fully competent to amend or
repeal section 30(3) of the National States Constitution Act, or, indeed, the
entire Act itself.37 The Act is not constitutionally entrenched; thus there is
not even a special procedure which would have to be followed. For obvious
practical reasons, however, it is most improbable that Parliament would ever
take such a step.
A question that did in fact come before the courts is whether the State
President’s power to legislate by proclamation for the black territories3’
remains unimpaired. Even before the issue arose in Government of the Repub
lic of South Africa v Government of KwaZulu39 VerLoren van Themaat40
took the view that the State President loses his legislative powers as soon
as a legislative assembly is instituted for a particular National State, at any
rate, as far as the scheduled topics are concerned. Although he may amend
the proclamation instituting self-government, he has no authority to amend
the provisions of the National States Constitution Act itself.41
The question in the KwaZulu case was whether the State President pos
sessed the authority to issue a proclamation altering the boundaries of the
territory controlled by the KwaZulu government by exercising the powers
conferred on him in terms of section 1(2) of Act 21 of 1971, and, secondly,
whether KwaZulu is an organ of the state and, therefore, whether the National
State has locus standi to institute proceedings against another organ of state,
namely, the South African government.
The court held, as regards the first question, that the powers conferred
on the State President by section 25(1) of Act 38 of 1927 (in terms of which
the proclamation in question had been promulgated) were not consistent with
those conferred by Act 21 of 1971 (which required that any amendment to
an area for which a legislative assembly has been established must be preceded
by consultation by the Minister with the Cabinet of the territory concerned);
and that the provisions of the two Acts could not be construed in such a
way as to remove the inconsistency. It was therefore compelled to conclude
37 In spite of the dictum in Ndlwana v Hofmeyr 1937 AD 229: “Freedom, once con
ferred, cannot be revoked.” See ch 6 for a discussion of the question whether a sovereign
parliament can bind its successors.
38 In terms of s 25(1) of the Black Administration Act 38 of 1927.
39 1983 1 SA 164 (A).
41 See Richings 1976 SALJ 119 at 126; F Venter ‘Die Staatspresident se Posisie in die
Bantoestaatsreg’ 1972 THRHR 330 at 348; VerLoren van Themaat Staatsreg at 240-242,
where he discusses the State President’s powers vis-a-vis the black inhabitants of the
Republic; DH van Wyk ‘Owerheidsinstellings vir Nie-blankes in die Suid-Afrikaanse
Staatsreg’ 1975 THRHR 1 at 14.
Devolution and Deconcenlralloii of Powers bb
that the 1971 Act had by implication amended the 1927 Act in so far as
latter made no provision for any requirement of prior consultation, 'I he
President had therefore acted ultra vires when issuing Proclamation 121 of
1982 and the proclamation itself was null and void.
As regards the question of locus standi, the court took the view that
although it is a general principle of our law that one organ of the state cannot
sue another, and that it is apparent from the provisions of Act 21 of 1971
that KwaZulu is not an entity entirely severed from South Africa, there ń
nevertheless sufficient separation in identity between the governments of
South Africa and KwaZulu to entitle the latter to approach the court for
relief. The fact that self-governing territories are entitled to have their own
anthem and flag, and that they are able to conclude treaties, conventions
and agreements with the South African government, indicates that Parlia
ment does not regard such territories as mere instruments or representatives
of the state.
The stages of constitutional development of the black territories within
South Africa may be summarized as follows:
(i) Territorial Authority Status
No legislative powers.
All South African laws apply.
(ii) Responsible Government Status

Legislative powers: any law relating to a Schedule 1 matter may be amended,
but not an Act of Parliament; no South African laws relating to Schedule
1 matters apply in the territory after the first Executive Council has been
instituted (excluding Acts of Parliament and proclamations of the State
President).
South African laws apply as at the date on which responsible government
status is conferred; after that, the territory itself legislates about Schedule
1 matters; South African laws continue to apply in all spheres not covered
by the Schedule.
(iii) Self-governing Status

Legislative powers are the same as in the case of self-governing status except
that the legislature may repeal or amend any Schedule 1 law, including Acts
of the South African Parliament dealing with such matters.
No new South African law relating to Schedule 1 matters is applicable once
the territory has become self-governing; this includes Acts of Parliament but
excludes laws made by the State President or any section 6(2)(a)(l 1) and (111)
Act or ordinance. South African laws remain fully applicable in matters not
listed in Schedule 1.
(iv) Independent Status

The legislature may pass laws on any topic; the South African Parliament
has no residual powers whatsoever. All South African laws as received at
the time of independence remain applicable until repealed or amended; sub
sequent amendments to such laws have no effect in the independent state.
III FULLY INDEPENDENT BLACK STATES WHICH FORMERLY

FORMED PART OF THE REPUBLIC OF SOUTH AFRICA
1 Introduction
It is of interest to note that, whereas the process of South Africa’s ‘emanci
pation’ from Great Britain was a gradual one, in which convention rather
than formal legislation (except for the Statute of Westminster) played a major
role, the decolonization or emancipation of black territories within South
Africa has taken place at a relatively rapid pace, and has been marked by
formal legislative steps at every stage.
Strictly speaking, the constitutions of the four former South African ter
ritories that opted for full independence from South Africa (Transkei,
Bophuthatswana, Venda, Ciskei) do not belong in a discussion of South
African constitutional law. Because of their extremely close links with South
African law, however, a very brief description will be given of each of the
four constitutions.
2 Transkei42
The Republic of Transkei came into being on 26 October 1976. It is of interest
that, whereas the South Africa Act was an Act of the British Parliament,
the Republic of Transkei Constitution Act was an enactment of the
Transkeian Parliament. To pave the way for the independence of the territory,
the South African Parliament had to pass legislation empowering the
Transkeian legislature to take this step.43 The legislative assembly then
adopted a motion requesting independence and establishing a recess com
mittee and a working committee of experts to negotiate independence and
to devise an independence constitution.44
The independence of Transkei was recognized by South Africa in the Status
of Transkei Act 100 of 1976. It contained two provisions of major constitu
tional importance: the first was that the Republic of South Africa would cease
to exercise sovereignty over Transkei after a certain date; the second, that
the legislative assembly of the territory would be empowered to adopt its
own independence constitution. (VerLoren van Themaat45 takes the view that
this latter fact renders the Transkeian Constitution autochthonous.) The
Status Act further provided for the continued existence of treaties, conven
tions and agreements applicable to Transkei, for the validity of agreements
42 For a full discussion of the Transkeian Constitution, see VerLoren van Themaat Staats-
reg at 512 et seq; IM Rautenbach ‘The Constitution of Transkei’ 1977 TSAR 199;
H Booysen, DH van Wyk, M Wiechers and W Breytenbach ‘Comments on the Indepen
dence and Constitution of Transkei’ 1976 5/1YIL 1; F Venter “The Constitutions of
the Republics of Transkei, Bophuthatswana and Venda in Comparative Perspective”
1980 Afrika Recht und Wirtschaft 9 and Bantoestaatsreg at 597; MP Vorster, M
Wiechers and DJ van Vuuren (ed) Constitutions of Transkei, Bophuthatswana, Venda
and Ciskei (1985) ch 1 and 2.
43 The Constitution of the Transkei Amendment Act 3 of 1976.
44 See VerLoren van Themaat Staatsreg at 513; Newell Stultz Transkei’s Half Loaf (1980);
and WB Harvey and WHB Dean “The Independence of Transkei — a Largely
Constitutional Inquiry” 1978 Journal of Modern African Studies 189.
45 Op cit at 513.
entered into between South Africa and the territory prior to independence,
and for the change-over from South African to Transkeian citizenship.4647
The Transkeian Constitution

The Constitution of the Republic of Transkei may be said to be a typical
Westminster constitution in many respects. It was in fact based solidly on
the South African Constitution of 1961.
The Transkeian President is elected by the National Assembly for a period
of seven years (like the erstwhile South African State President) and may
be removed from office by the Assembly on the grounds of misconduct or
inability to perform the duties of his office. When performing executive func
tions, he acts on the advice of his ministers: the Constitution expressly pro
vides that he possesses the same powers by virtue of prerogative as the South
African State President possessed at the time when the Constitution came
into operation, and that the same conventions which applied in South African
law, continue to apply.48 He may assent to legislation or withhold assent,
but is bound by convention to assent to any bill duly passed by the National
Assembly.49 Money bills and bills which impose taxes must be recommended
by the President before they may be introduced.50 The President is also
empowered to issue proclamations governing representation on local and
traditional authorities.51
The Transkeian executive is headed by the President; he appoints the mem
bers of the Executive Council on the advice of the Prime Minister, who is
the leader of the majority party in the National Assembly. All ministers and
deputy ministers must be members of the National Assembly.
The Transkeian legislature is composed of the President and the National
Assembly. The latter body is not wholly elected: half of the members are
elected and the rest are traditional headmen and captains.52 The Assembly
has a life of five years and must convene at least once a year.
The legislature is supreme: no court of law may impugn the validity of
an enactment of the National Assembly.53
As in South Africa, judges arę appointed by the President on the advice
of the Minister of Justice. A judge may also be dismissed by the President,
but only at the request of the National Assembly. The Appellate Division
of the Supreme Court of South Africa was the final court of appeal in
46 See the discussion in ch 20, as well as WHB Dean “A Citizen of Transkei” 1978 CILSA
57, and WH Olivier “Statelessness and Transkeian Nationality” 1976 SAYIL 143.
47 A great deal has been written about the independence Constitution of Transkei; see
the works referred to in fn 42 and 44 above, as well as MP Vorster “The Transkeian
Constitution: Manifestation of Diffusion and Rediffusion of Constitutional Technology
or Westminster Transplanted?” 1976 Politikon 103.
48 S 2(4)(a) and (b) of the Transkeian Constitution.
49 S 40(1).
50 S 39(2)(a) and (b).
51 S 63, read with s 66(1). As will be seen below, half of the members of the National
Assembly are drawn from traditional authorities.
52 This is an obvious attempt to combine the features of an upper and a lower chamber
within a single body.
53 S 25.
Transkei until 1978, when the Transkeian Appellate Division was instituted.34
Special provision is made for the applicability of indigenous law. The court
may decide that the legal system of the defendant will prevail where there
is no agreement in this regard between the parties.53
In form the Transkeian Constitution is pure Westminster (South African
variety). Many of the provisions were taken verbatim from the South African
Constitution of 1961. Experience has shown, however, that the Westminster
system does not always survive direct transplantation to African soil very
well, and it should come as no surprise if the Transkeian Constitution were
to depart from Westminster principles in favour of more ‘African’ charac
teristics.
3 Bophuthatswana
Bophuthatswana was the second of the former South African black
‘homelands’ to become an independent republic. The process leading to
independence closely resembled that of Transkei, except that Bophuthatswana
had acquired self-governing status in terms of the National States Constitution
Act 21 of 1971 and not via an enactment which was applicable only to
Bophuthatswana. An unusual (if not unique) feature of this state is that it
is composed, geographically speaking, of six ‘islands’ situated fairly far apart
and separated by South African soil.
The Constitution of Bophuthatswana54

56
55
The Constitution of Bophuthatswana, which came into operation on 6
December 1977, and which was accorded recognition in South African law
by the Status of Bophuthatswana Act 89 of 1977, is, unlike that of Trans
kei, an inflexible constitution with an entrenched declaration of rights -
a complete deviation from the Westminster system.57
The Constitution is inflexible, first of all, in that it requires a two-thirds
majority vote of members present in the National Assembly for amendment.58
Secondly, section 7 of the Constitution declares that it embodies the supreme
law of Bophuthatswana, and that any law adopted after the commencement
of the Constitution which is inconsistent with the latter will be invalid.
The Declaration of Rights (sections 8-18) may be regarded as the corner
stone of the Constitution. It is modelled largely on the European Declaration
of Human Rights and provides for equality before the law, the protection
of the right to life, liberty and property, privacy and family life, freedom
54 By Act 11 of 1978 (Transkei).

55 S 53.
56 Act 18 of 1977 (B); see the Status of Bophuthatswana Act 89 of 1977.
57 See M Wiechers and DH van Wyk ‘The Republic of Bophuthatswana Constitution
1977’ 1977 SA YIL 85; and the contribution by GE Devenish in Vorster et al (ed) cited
in fn 42 above. VerLoren van Themaat Staatsreg at 517 contends that this constitution
may be described as autochthonous, since it was adopted by a body which had been
wholly reconstituted; the National Assembly of the self-governing state had reformed
itself as a national convention in order to adopt the inflexible constitution, which
departed radically from the existing regime and therefore constituted a distinct break
with the past.
58 Only the first ten chapters of the Constitution are thus entrenched.
Devolution and Dcconccntration of Power# 413
of conscience, thought and religion, of speech and assembly, and forbids

the imposition of cruel and humiliating punishments.
The courts are expressly empowered to protect these fundamental rights,
and they may be curtailed only by a legislative enactment which is of general
application. Moreover, no fundamental right or freedom may be abolished
altogether or encroached upon in its essence.59
The Constitution makes provision for a President, an Executive Council,
a National Assembly and the judiciary.
The President is elected for a period of five years by the National Assembly,
of which he is a member. He may be removed from office by the Assembly
on the grounds of treason, bribery or other serious misdemeanours. His
removal must be supported by a majority of both the elected and the nomi
nated members of the legislature.60
The Executive Council consists of ministers appointed by the president
from the ranks of the members of the National Assembly. The President
acts on the advice of his ministers, but is not obliged to follow this advice.
Since both he and his executive are members of the legislature, however, he
must obviously take cognizance of the wishes of this body.61
The National Assembly has 48 elected and 48 nominated members, plus
three further members who are appointed by the President by virtue of their
knowledge and experience. These three additional members do not, however,
possess a vote in the Assembly. As in Transkei, therefore, traditional auth
orities are accommodated together with elected members in a unicameral sys
tem. As is mentioned above, the President is a member of the National
Assembly; he must nevertheless still assent to legislation passed by the
Assembly before it becomes law.
Judges are appointed by the President and dismissed by him at the request
of the National Assembly. The Appellate Division of the Supreme Court of
South Africa acted as the final court of appeal for Bophuthatswana until 1982.
The interpretation of the Bophuthatswanan Constitution and, in particular,
the Declaration of Rights, has given rise to a number of important cases.
Among these62 are S v Marwane6364 and Smith v Attorney-General, Bophutha
tswana.M
In Marwane the main issue before the eleven-man constitutional court was
whether certain laws ‘inherited’ from South African law (relating to the
offences of sabotage and terrorism) conflicted irreconcilably with the Con
stitution of Bophuthatswana, and, if so, whether they were invalid despite
59 This provision owes its origin to the Constitution of the Federal Republic of Germany,
which contains a similar rule. See the discussion of the cases of S v Marwane and Smith
v Attorney-General Bophuthatswana later in this chapter.
60 See the discussion of the composition of the legislature below.
61 VerLoren van Themaat Staatsreg at 520 points out that the Constitution of Bophutha
tswana represents a combination of presidential and parliamentary principles of
government.
62 See the discussion in ch 5 at 127.
63 1982 3 SA 717 (A).
64 1984 1 SA 196 (BSC).
the presence of ‘retaining’ provisions in the Constitution. The two provisions

which were subjected to close scrutiny were sections 7 and 93(1).
Section 7(1) provides that the Constitution is the supreme law of
Bophutshatswana and section 7(2) that any law passed after the commence
ment of the Constitution which is inconsistent with its provisions will be void
to the extent of the inconsistency. Section 93(1) provides that, subject to the
provisions of the Constitution, all laws which were in operation in Bophutha-
tswana immediately prior to the commencement of the Constitution, remain
in force until repealed or amended.
The minority judgment (per Rumpff CJ) took the view that the provisions
should be taken at face value: the legislation in question was not passed after
the commencement of the Constitution and had not been repealed or
amended. It therefore remained in force.
The majority judgment (per Miller JA) held that such received legislation
as conflicted irreconcilably with the Constitution was no longer applicable,
since the Constitution should take “pride of place over all other laws”.65
That this approach may lead to uncertainty about the validity of other received
legislation, is unquestionably true. Miller JA pointed out, however, that such
uncertainty is inevitable in any system which has an entrenched declaration
of rights.66 The court took the view that section 93(1) provides for the con
tinued operation of existing laws save those in conflict with the Constitution
(“subject to the provisions of this Constitution . . .”), seeking support in
the analogy provided by article 23 of the Constitution of the Federal Repub
lic of Germany.67
Unlike Marwane, Smith was not a case with political overtones. The appel
lant was being held on charges of fraud and theft, and the question was
whether section 61A of the South African Criminal Procedure Act, which
had been inserted into the Bophuthatswanan Act by Act 33 of 1980 (B), was
inconsistent with the provisions of the Declaration of Fundamental Rights.
Section 61(A) empowered the Attorney-General to refuse bail for a period
of 90 days. The court had to determine, first of all, whether this provision
encroached on the constitutional safeguard of personal freedom contained
in section 12(3)(b) of the Bophuthatswanan Constitution, and secondly,
whether it was covered by section 18, which contains a derogation clause.
In his judgment Hiemstra CJ applied the German principle of proportion
ality (Verhaltnismassigkeit) to the matter and came to the conclusion that
the measure contained in section 61A is “quite disproportionate in its rigour
to attain the purpose aimed at”68 and also emphasized the importance of
the observance of the audi alteram partem as part of the principle of due
process.69 He concluded that section 61A did in fact conflict with the guaran
tee contained in section 12(3)(b). In regard to the question whether section
65 At 753.
66 At 750B.
67 The court cited with approval the approach in Maunz-Diirig-Herzog Grundgesetz-
Kommentar: “[T]he new legal order confirming the validity and the applicability of
the old laws ‘en bloc’ at least in so far as the old laws do not contradict the new Con
stitution and the basic principles contained therein” (75 IE).
68 At 201F.
69 At 202B.
18 of the Constitution disposes of the matter, the court found that section
61A is of such a nature that it “encroached upon the essence” of a fundamen
tal right. Again the court relied on German law, applying the concept of
Wesensgehalt to the question of ‘essence’, and finding that when a law appears
to encroach upon the essence of a fundamental right, the court must apply
the principle of Wechselwirkung or interplay of forces in deciding whether
to strike down the law or not.20 The court came to the conclusion that the
elimination of due process unquestionably encroached upon the essence of
a fundamental right and that reliance could not be placed on section 18 in
this instance.
In a sense, of course, this judgment did not give rise to the same problems
of interpretation as Marwane, since the law which was being challenged was
not ‘inherited’, but ‘new’, having been incorporated into the law of
Bophuthatswana after the commencement of the Constitution.
Unlike the other black states which formerly constituted part of the Repub
lic of South Africa, Bophuthatswana has also seen fit to introduce the office
of ombudsman — an official appointed by the legislature to hear complaints
from individuals about executive action and vested with powers to advise,
but not to overrule or compel, the executive.70 71
4 Venda
The Republic of Venda became independent on 13 September 1979 after the
territory had attained self-governing status in terms of the National States
Constitution Act in 1971. As in the case of Transkei and Bophuthatswana,
the independence constitution was adopted by the Vendan National Assembly,
and the South African Parliament passed the Status of Venda Act 107 of
1979 to bring South African law into line.
The Constitution of Venda72

The Constitution of Venda is structurally somewhat simpler than that of either
Transkei or Bophuthatswana: it is neither a Westminster-type constitution
like that of Transkei nor a rigid constitution with an entrenched bill of rights
like that of Bophuthatswana. Oddly enough, however, apart from the absence
of a bill of rights, the Vendan Constitution contains many provisions which
are identical to provisions in the Bophuthatswana Constitution.
The President is the executive head of Venda. He is, like the President
of Bophuthatswana, elected and subject to removal by the National Assembly,
of which he is a member. He possesses powers which are very similar to those
possessed by the South African State President (under both the 1961 and
the 1983 Constitutions) by virtue of ‘inherited’ royal prerogative. He exer
cises these, not on the advice of his ministers, as is the convention in the
Westminister system, but in consultation with them73 - like the South African
State President acting in the sphere of general affairs in terms of the 1983
70 AT 202F.
72 See VerLoren van Themaat Staatsreg at 522 et seq; G Carpenter ‘The Independence
of Venda’ 1979 SAYIL 40; GN Barrie in Vorster et al (ed) at 149 et seq.
73 S 19(1) of the Constitution of Venda.
Constitution. The Executive Council is composed of ministers appointed by

the President from the ranks of members of the National Assembly. The
Vendan executive is therefore directly responsible to the legislature.
The legislature is composed of the President and the National Assembly,
which is, like the legislatures of Transkei and Bophuthatswana, not a wholly
elected body. Another interesting feature is that Venda does not have single
member electoral districts - some constituencies are entitled to elect as many
as seven members of the Assembly.74
There are no entrenched provisions in the Constitution: all legislation may
be passed by a simple majority of votes of members present, and no court
of law is competent to impugn the validity of any law of the National
Assembly. Once a bill has been passed by the legislature, it is presented to
the President for his assent. Unlike his South African and Transkeian
counterparts, he has a real right of veto: he may withhold assent or return
the bill to the Assembly with his recommendations.75 If the amended bill is
not acceptable to the Assembly, however, it will nevertheless become law
if it is passed by a two-thirds majority of members present — in such a case
the signature of the Speaker replaces that of the President.76
The judicial authority is vested in the Supreme Court, which consists of
the Chief Justice and other judges appointed by the President. The South
African Appellate Division remains the final court of appeal.
5 Ciskei
The Republic of Ciskei became independent on 4 December 1981 after having
resisted the lure of independence for some time. Ciskeian independence was
recognized by South Africa in the Status of Ciskei Act 110 of 1981. The
announcement that Ciskei was to opt for independence after all came as a
surprise to many, even though independence was accepted on somewhat
unusual terms: Ciskei’s membership of a future confederation of Southern
African states is one of these, and the citizenship issue was dealt with in not
quite the same way as with Ciskei’s predecessors.
The Constitution of Ciskei77
The Ciskeian Constitution bears a greater resemblance to the constitutions
of Bophuthatswana and Venda than to that of its close neighbour (in both
the geographical and the ethnic sense) — Transkei. Like the Bophuthatswanan
Constitution, it has a Declaration of Fundamental Rights, but, although a
two-thirds majority vote is required for its amendment or repeal, no provision
is made for any judicial enforcement of the rights contained in the
Declaration. No sanction of invalidity attaches to legislation which conflicts
with the Declaration of Rights. The only hint of potential rigidity is to be
found in section 2, which provides that the Constitution is the supreme law
of Ciskei and that it binds the legislature, executive and judiciary. This would
appear to mean that any repeal or amendment of the Constitution which
74 S 25(4).
75 S 39(2).
76 S 39(4).
77 See G Carpenter ‘Variation on a Theme — the Independence of Ciskei’ 1981 SAYIL
83; AC Cilliers in Vorster et al (ed) at 197.
is not approved by two-thirds of the total number of members of the National

Assembly is invalid and may be declared so by the Supreme Court.78
Another unusual provision is contained in section 3(1), which states that
the general rules of public international law form an integral part of the law
of Ciskei and, moreover, take precedence over the laws of Ciskei, subject
to the provisions of the Constitution.79
The Declaration of Fundamental Rights which is to be found in the third
chapter of the Constitution, contains an impressive list of individual rights;
but section 19 contains an equally comprehensive list of circumstances in
which the rights and freedoms enumerated in the Declaration may be
restricted, and section 19(3) states unequivocally that no law of the National
Assembly shall be declared invalid by a court of law because it conflicts with
the provisions of Chapter III.80
The President is elected by the National Assembly and must be a member
of that body. While the Constitution of Bophuthatswana makes provision
for the impeachment of the President for treason, bribery or other high
crimes, the President of Ciskei may be removed in much the same way and
on much the same grounds as the South African State President under the
1961 Constitution.81 He is, moreover, subject to arraignment before the
ordinary courts of the land like any other citizen.82
The Constitution also makes provision for the appointment of a Vice-
President83 whose function is defined very widely and vaguely — he would
seem to be simply a permanent understudy to the President.
The executive authority is vested in the President acting on the advice of
the Vice-President and the ministers of the Executive Council.84 Both the
President and the Vice-President are members of the Council. The ministers
are appointed by the President; while no minister may hold office for longer
than three months before becoming a member of the National Assembly,85
there is no express requirement that ministers must enjoy the support of the
majority in the Assembly.
The legislative authority of Ciskei vests in the National Assembly. Both
the President and the Paramount Chief are members of this body, but legis
lation passed by the Assembly must nevertheless be assented to by the
78 See Carpenter 1981 SAYIL at 85; contra Cilliers op cit.

79 The Grundgesetz of the Federal Republic of Germany contains a similar provision
(art 25). For the position of international law vis-a-vis South African law, see CJR
Dugard ‘International Law is Part of our Law’ 1971 SALJ908; and H Booysen Volkereg
— ’n Inleiding (1980), who holds that international law is not part of our law perse.
80 See the discussion of unentrenched bills of rights and their efficacy in ch 5 above.
81 S 26 of the Ciskeian Constitution — a petition signed by at least fifty members of
the National Assembly leads to the appointment of a committee of enquiry, whose
report is considered and voted upon by the members of the National Assembly.
82 It is nevertheless an offence to commit an act calculated to violate the personal dig
nity or to injure the reputation or office of the President (or Vice President) s 29.
83 S 27(2).
84 s 32.
85 There is an exception, created by s 34(4), in terms of which not more than five persons,
who need not be members of the legislature and who need not even be Ciskeian citizens,
may be appointed as ministers by virtue of their special knowledge and experience
of affairs of state.
President. As in the case of Transkei, Bophuthatswana and Venda, provi

sion is made for both elected and nominated members (traditional chiefs and
headmen). There is no maximum laid down as regards the number of chiefs
who may serve: it is therefore conceivable that they may outnumber the elected
members. A maximum of five members may be nominated by the President
by virtue of their special knowledge, qualifications or experience, but they
have no vote in the Assembly. Elected members represent single-member
constituencies, as in the Westminster system. All legislative matters are
decided by a simple majority of members present, except that the Consti
tution itself may be amended only with the approval of two-thirds of the
total number of members of the Assembly who are entitled to vote.86
Legislation which has been passed by the Assembly is presented to the Presi
dent for his assent.87 If he withholds assent, the Assembly may reconsider
the bill (and any amendments suggested by the President) and if the bill is
then accepted by a two-thirds majority of members present, it will become
law, the signature of the Speaker replacing that of the President.88
The judicial authority is vested in the Supreme Court of Ciskei, which con
sists of the Chief Justice and other judges appointed by the President.
Unlike the other three independent states, Ciskei did not prescribe exactly
who would be Ciskeian citizens, but merely provided in the Constitution that
citizenship may be acquired by birth, descent and naturalization in the manner
prescribed by an Act of the National Assembly.89
IV THE CONSTITUTIONAL DEVELOPMENT OF SOUTH WEST

AFRICA/NAMIBIA90
1 Introduction
The constitutional status of South West Africa/Namibia has been the focal
point of a long-standing international wrangle which started after the First
World War, when the territory was classified as a ‘C’ mandate and its
administration entrusted to the Union of South Africa.
The mandate was carried out, first by the Governor-General, and there
after by an Administrator.91 In 1925 a constitution was drafted92 which made
provision for a certain measure of self-government. The outbreak of the
Second World War gave rise to political and constitutional complications
in the territory, and its status in international law received attention even
earlier. The main question was whether the sovereign authority over the ter
ritory vested in the League of Nations, which had established the mandate
86 S 84(1), read with s 46(2).

87 S 50(1).
88 S 50(2), (3) and (4).
89 S 67(1).
90 For a detailed discussion of the constitutional development of this territory, see Ver-
Loren van Themaat Staatsreg at 445-502; A du Pisani SWA/Namibia: The Politics
of Continuity and Change (1985); L Kruger ‘n Volkeregtelike Ondersoek na die Onaf-
hanklikheidswording van Suidwes-Afrika unpublished LLD thesis (Unisa) (1986).
91 In terms of Proc 1 of 1921.
92 As Act 42 of 1942.
------------------------Devolution and Deconcentration of Powers 419
!Mhe KJng and his 8°vernment in the Union. It was held in R

n5' f'Jl°n. that the maJestas m respect of the territory vested in the King
and the Union government. Unfortunately, as VerLoren van Themaat93 94 points
out, majestas is not synonymous with- sovereignty, so that the position
remained unclear.
2 The International Status of South West Africa

nhefêMU^ °f Nations was dissolved after the Second World War. The
united Nations Organization, which was established in 1945, is not the suc
cessor in aw to the League of Nations and this fact underlies the long-standing
1Sfote ®etween South Africa and the United Nations about the legal
status of South West Africa.
>.?ê êileraI Assembly of the United Nations adopted a resolution that,
th n* • ac.t^v*t*es ê League had come to an end, the Charter of
w 6 . Hnited ,ât*ons contained similar principles and that the mandatories
vou continue to administer the mandated territories in the same spirit as
e ore, until the United Nations and the mandatories could come to some
permanent arrangement.95
. atdtu<ê adopted by the Union government in 1946 was that the man-
a e had fallen away, that there was no obligation on South Africa to enter
in o any trusteeship agreement with the United Nations and that South Africa
was at liberty to incorporate the territory into the Union. This claim was
roundly rejected by the United Nations. A series of advisory opinions of the
nternational Court of Justice followed.96 The general tenor of these 1950
opinions, which were not binding on the Union, was that the mandate con-
inued to exist, that the Union was bound to adhere to it, and that the United
ma^cPt WaS b°dy wîch would supervise the proper execution of the
The finding of the International Court of Justice was adopted by a resol

ution of the General Assembly, but the Union remained adamant that it would
not be subjected to the supervision of the United Nations; it was, however,
prepared to negotiate with the major World War I powers (Britain, France
and the United States of America). Agreement could not be reached, and
the dispute dragged on.
In 1960 Ethiopia and Liberia sued South Africa in the International Court
of Justice, requesting the court to adjudge and declare that the mandate
remained valid, that the court possessed compulsory jurisdiction and that
South Africa was still bound by the terms of the original mandate. The main
reason for all this international interest in the fate of South West Africa was
the implementation of the South African government’s policy of apartheid
m the territory. The case was dismissed primarily because the applicants were
found not to have locus standi in the matter. No finality was reached about
the status of the mandate.
93 1924 AD 101. Also see 7? vNeumann 19493 ca 1238 (D,

10.0 i SA (T)‘ S v Twala 1979 3 SA 864 (T).
94 Op cit at 451. Doints out at 578, these statements
95 As Kelsen The Law of the United Nations (1950) point
were juridically meaningless.
96 In 1950, 1955 and 1956.
Eventually, in 1971, the International Court of Justice handed down

another advisory opinion in which it was decided that the continued South
African presence in South West Africa was unlawful and South Africa was
called upon to terminate its administration of the territory forthwith. The
main juridical problem, that the General Assembly was vested with recom
mendatory powers only, remained unsolved.
3 Constitutional Developments in the Territory after 1946

(a) The 1949 Constitution
The first major enactment was the South West African Affairs Amendment
Act 23 of 1949, in terms of which the territory was allocated six (white) mem
bers of the House of Assembly as well as two nominated and two elected
senators. One of the nominated senators was appointed on the strength of
his knowledge of the needs and wishes of the coloured races in the territory.”
A Legislative Assembly was established in the territory, but the supreme
legislative power still vested in the South African Parliament, since it could
adopt legislation for the territory or declare any ordinance of the Legislative
Assembly invalid. The power of the Governor-General to legislate by procla
mation was abolished in 1951; however, the Governor-General (later the State
President) could make South African laws dealing with topics in respect of
which the Legislative Assembly had no legislative competence applicable to
the territory by proclamation.97 98 Ordinances of the Assembly had to be sub
mitted to the Administrator, who could approve them or reserve them for
the approval of the Governor-General. Before doing so, he could suggest
certain amendments to the legislature. The Administrator had no discretion
to withhold assent altogether - this could be done only by the Governor-
General.99
Under the 1949 Act the South West African executive consisted of the
Governor-General (State President), the Administrator and a number of
ministers. The Administrator was the chief executive official and had, if
possible, to be an inhabitant of the territory.100
The judicial authority was vested in the High Court of South West Africa,
which had been instituted in terms of Proclamation 21 of 1919, and the Appel
late Division of the Supreme Court of South Africa.
During 1962-1963 a commission of enquiry was appointed into the affairs
of the territory. Its recommendations, which were implemented only in 1968,
were that ten separate homelands be created for the indigenous peoples of
the territory on the same pattern as that envisaged for South Africa in
accordance with the policy of separate development. The proposals engen
dered very strong opposition and disapproval in international circles.101
97 S 7 of Act 23 of 1949.
98 See ss 1 and 2 of Act 55 of 1951.
99 Until 1985, the Administrator of a province served purely as a conduit and transmit
ted ordinances to the State President. Under the new provincial dispensation, the
Administrator is the bearer of legislative authority in provincial matters. See below
at 431.
100 S 1 bis of Act 42 of 1925.
101 See eg CJR Dugard The SWA/Namibia Dispute (1973) at 236.
-------------------------- Devolution and Deconcentration of Powers 421
(b) The 1968 Constitution
The Constitution of South West Africa Act 39 of 1968, read with the Matters
e ating to South West Africa Act 25 of 1969, placed the territory in much
“ posit.ion as the Provinces of the Republic.102 Section 37(1) of the
ct provided expressly that the provisions of the Act were not to be
interpreted in such a way as to derogate from the full powers of adminis-
ra ion and legislation which the Republic possessed over the territory as an
integral part of the Republic.
The main change brought about in the legislative sphere was that the topics
°n. Wj* j Legislative Assembly was competent to makes laws were
extended.
(c) Moves towards Independence
bee? *nêrnational pressure on South Africa to recognize the right
se - etermination of the inhabitants of South West Africa for more than
wen y years, as has been mentioned above. From the early 1970s, however,
in erna political groups began to exert pressure on the South African govern
ment to such an extent that it became clear that the territory could not be
AladePendence indefinitely. Of these internal pressure groups, the South
es. African People’s Organization (SWAPO) is one of the most important,
parhcularly in view of the special status accorded to the organization by the
mted Nations, which recognizes SWAPO as the only representative of the
People of the territory.
The next important step was the creation of the Tumhalle Council in 1975,
at which a constitutional conference of the representatives of the various
population groups took place with a view to negotiating a constitutional future
or the territory. In 1977 a constitution based on consensus was accepted
and the South African government began to prepare for the territory’s
independence. As before, though, complications arose on the international
ront and the independence plans could not be implemented.103
The draft constitution produced by the Turnhalle Conference is of con
siderable importance to South African constitutional development in general,
if only because it was the first attempt at constitutional reform which grew
from co-operation and consensus between different racial groups. As Ver-
Loren van Themaat points out,104 this constitution contained consociative
concepts in terms of which three tiers of government are recognized: in the
first tier all the population groups are represented; at the second tier there
is representative government for the individual groups;105 the third tier com
prises a variety of regional authorities, from traditional tribal authorities to
„ Dugard op cit at 431; F Venter Suidwes-Afnka.

102 See -j . Af-rjun- ’n Dominium van die Repu-
bliek?’ 1970 Speculum Juris 70. South West Africa/Namibia:
103 See JA Faris ‘The Western Proposals and E* ect Western proposals were based
a Summary of the events for 1978
* 1978 SAYIL 9 • 1976 anj were aimed at
on Resolution 385 of the Security Council of 30 Janua ,
the holding of internationally recognized elections.
104 Staatsreg at 495. „ . „ _ see the discussion in ch 1.
105 A kind of segmental autonomy or “own atiai
municipalities. An important point is that the concept of separate geographi

cal areas for the various population groups as envisaged by the Odendaal
Report and the 1968 Act was rejected. Even more significant was the adop
tion of a bill of rights and the appointment of an ombudsman (government
commissioner). The proposed bill of rights was not, however, to be enforced
by the ordinary courts: legislation which was in conflict with the bill of rights
would be referred to a constitutional court which could advise the legislature
but not overrule it.106
The Tumhalle Constitution was never implemented as such, but it neverthe
less marks a point at which the ultimate independence of South West
Africa/Namibia was no longer open to debate.107 The process of indepen
dence was initiated by the South African Parliament in the following stages:
(i) In terms of the Constitution of South West Africa Amendment Act
95 of 1977, which amended section 38 of Act 39 of 1968, the State President
was empowered to amend any Act of Parliament, including the South West
African Constitution, with a view to the achievement of independence by
South West Africa/Namibia. It was provided that the State President must
table such proclamations in Parliament, and that if he instituted a legislature
for the territory, he must approve its legislation himself.108
(ii) The office of Administrator-General for the territory of South West
Africa was instituted by the State President on 1 September 1977. He was
vested with considerable legislative powers in respect of the territory, but,
unlike those of the State President, they were not absolute.
(iii) Proclamation 249 of 28 September 1977 terminated South West
Africa’s representation in the South African Parliament.
(iv) The office of Administrator was abolished and provision made for
a chairman of the executive committee (an official elected by the legislature,
but possessing no real powers); the power to assent to ordinances or to with
hold assent was transferred to the Administrator-General, although he had
to reserve legislation for the approval of the State President if instructed to
do so by the latter.109
(v) The control and administration of Walvis Bay was returned to the Cape
Provincial authorities.110
(vi) The powers and functions of all officials in the territory were deter
mined by proclamation, and provision was made for further arrangements
to be made by the Administrator-General by proclamation as well.111

107 On the Constitution itself, see LJ Boulle ‘The Tumhalle Testimony’ 1978 SALJ 49;
DS Prinsloo ‘SWA/Namibie: Interim Rule to Freedom’ 1976 SA YIL 155; M Wiechers
* ’n Kritiese Ontleding van die Turnhalle-grondwet vir ’n Tussentydse Regering’ 1977
(2) Codicillus 4; JP Fegbeutel Die Staatkundige Betekenis van die Turnhalle-beraad
vir die Proses van Onafhanklikheidswording van SWA/Namibie unpublished MA
dissertation UP (1979).
108 S 38(2), (6) and (7) of Act 39 of 1968 as amended by s 1(a) of Act 95 of 1977.
109 Proc R264 of 30 September 1977.
110 See VerLoren van Themaat Staatsreg at 497-498 fn 61 for the historical background.
Ill Proc R251 of 28 September 1977.
____________________ Devolution and Deconcentration of Powers 423
(vii) The Administrator-General immediately began to revise existing legis
lation, particularly controversial South African legislation such as the Pro
hibition of Mixed Marriages Act and section 16 of the Immorality Act. He
also made provision for the election of a constitutive assembly. This elec
tion, which was held in December 1978, constituted a radical departure from
traditional South African electoral practice in that it was conducted, not
according to a system of regional representation, but in accordance with one
of proportional representation: each political party was entitled to represen
tation in the fifty-member Assembly in proportion to the votes received by
it in the election.
The election was not internationally recognized, but the constitutive
assembly was nevertheless converted into a National Assembly which could
make laws for the territory.112 The Assembly was vested with wide legislative
powers but not with the power to amend or repeal Proclamation AG 21 or
section 38 of the 1968 Constitution. Nothing was said about the
Administrator-General’s power to refuse to assent to legislation passed by
the Assembly, but, as VerLoren van Themaat points out,113 there can be no
doubt that this power was retained.
One of the most important consequences of the creation of the National
Assembly of 1979 was that it gave rise to two important cases. In Du Plessis
NO v Skrywer NO'14 the issue was whether a member who had been elected
to the Assembly on the strength of his political affiliation was entitled to
change this political affiliation and nevertheless retain his seat. The Appel
late Division held that he was, thus tacitly endorsing the free mandate theory
of representation.115
In Du Plessis v Administrateur-Generaal vir die Gebied van Suidwes-
Afrika"6 it was contended that the institution of a National Assembly by
the Administrator-General constituted an unauthorized delegation of legis
lative power. The court held that the Administrator-General had merely
created legislative machinery which remained wholly under his control and
that it was not necessary for the State President to have approved the creation
of the Assembly. No unauthorized delegation had therefore taken place. The
State President nevertheless issued a proclamation to remove all doubt about
the legal position.117 VerLoren van Themaat118 agrees with the decision, see
ing the creation of the National Assembly as an act which was in keeping
with the avowed intention to set in motion the process leading to full
autonomy for the territory.
112 Proc AG21 of 14 May 1979.

114 1980 2 SA 52 (SWA); 1980 3 SA 863 (A). .
115 This is of some interest: it is generally accepted, where a system of regional represen
tation operates, that a member technically represents his constituency and not his
party. Here, though, the member was unquestionably representing his party. See the
discussion in ch 8 above, and, in particular, DA Basson’s treatment of the free man
date theory of representation in Verteenwoordiging in die Staatsreg unpublished LLD
thesis UNISA (1981) at 181 et seq and 319 et seq.
116 1980 2 SA 35 (SWA); also see Beukes v Administrateur-Generaal Suidwes-Afnka
1980 2 SA 664 (SWA).
117 Proc R175 of 28 January 1980.
118 Staatsreg at 499-500.
By the end of 1980 the constitutional position in South West Africa was
that, although a certain measure of autonomy had been conferred on the
territory, the South African Parliament retained full legislative supremacy;
it could, therefore, adopt legislation for the territory at any time and could
retract the wide powers of the State President and the Administrator-General
in respect of the territory. Furthermore, though plenary executive powers
had been conferred on the Administrator-General, the State President (act
ing on the advice of his South African ministers) could retract these powers
as well. In reality, however, all powers of government were assigned to the
Administrator-General, who instituted a central government comprising a
Ministers’ Council (the executive), and a National Assembly (the legislature).
An important innovation was that provision was made for a system of
representative authorities at the second-tier level of government. This was
a development flowing from the Turnhalle Conference and involved the insti
tution of segmental autonomy in certain spheres. Each of the recognized
eleven population groups119 was given legislative autonomy in spheres such
as agriculture, primary and secondary education, social welfare and so on.
It is of interest that this autonomy was protected against interference by the
central legislature (the National Assembly). The legislation adopted at this
level was, however, subordinate legislation, and was therefore subject to
judicial scrutiny.
The level of constitutional autonomy of the territory at this stage was it
must be emphasized, still very ‘low’, measured on the traditional scale of
representative/responsible/self-governing.
On 17 June 1985 a Transitional Government of National Unity was estab
lished in South West Africa/Namibia following a request by the Multi-Party
Conference (MPC) for ‘home rule’.120 The MPC is a tactical alliance involv
ing six major political organizations in the territory121 whose stated objec
tives are to bring about peace and reconciliation in the territory; to devise
a constitutional and political system which is acceptable to the people as a
whole; and to find an internationally acceptable settlement leading to the
independence of the territory.
The MPC referred to internationally recognized independence but did not
explicitly acknowledge that Security Council Resolution 435, which has
formed the basis of international thinking on the Namibian independence
issue for so long, is the only route whereby independence can be achieved.
It must be assumed that the MPC wanted to ensure that SWAPO would not
be able to claim any special status in any negotiations with the group.
119 Classification as a member of a particular group was rather more informal than under
the South African system of race classification — see VerLoren van Themaat Stoats-
reg at 501.
120 See A du Pisani ‘Namibia: a New Transitional Government’ 1985 South Africa Inter
national 66.
121 The Democratic Turnhalle Alliance (DTA), the Labour Party of South West Africa,
the National Party of South West Africa, the ‘Rehoboth Bevryde Demokratiese Party’,
the ‘South West African National Union’ (SWANU) and the SWAPO Democrats
(SWAPO-D).
Two important policy statements were issued by the MPC: these were the
Windhoek Declaration of Basic Principles and the Bill of Fundamental Rights
and Objectives. The Bill of Rights, which was approved in 1984, accords
recognition to such generally recognized basic rights as the right to life, liberty
and property, to security of person, to privacy, to freedom of expression
and association, to equality before the law, and so on.122
The MPC engaged in talks with SWAPO in 1984, but consensus could
not be reached and SWAPO refused to sign the proposed joint communique.
It should also be emphasized that there were grave differences even between
the members of the MPC; despite these, however, the group persevered with
its efforts to involve both SWAPO and the international community in its
search for a constitutional solution for the territory. Eventually the MPC
formulated a set of proposals which were put to the South African govern
ment and incorporated in Proclamation 101 of 17 June 1985.
The proclamation makes provision for a legislative and an executive
authority in the territory, as well as for a Constitutional Council to which
was assigned the task of drafting a constitution for the country within eight
een months.
The office of Administrator-General has been retained, but he now acts
on the advice of the Cabinet of the transitional government, so that it may
be said that his executive powers have effectively been transferred to that
body. Bills passed by the legislature must be presented to him for assent,
which may be withheld if the Administrator-General believes that the bi
conflicts with the provisions of Proclamation 101. The South African State
President retains the competence to veto or amend any bill which has been
approved by the Administrator-General.
The executive authority is composed of a Cabinet of eight members, nomi-
nated by the legislature. Members of the executive must be members of the
legislature. Each of the parties in the National Assembly is entitled to one
representative in the Cabinet, except for the DTA, which has “êe. e
Cabinet itself may appoint deputy ministers. The chairmanship o t e a i
net rotates every three months in alphabetical order.
Legislative authority is vested in the National Assembly, which comprises
62 members nominated on a proportional basis by the six parties participa ng
in the MPC. Provision is made for eight standing committees whose function
is to consider proposed legislation, and a ninth committee w ic examines
all legislation which was in force before the first meeting of t e ssem y
and which may have the effect of abolishing, diminishing or derogating from
any fundamental right and reports any such infringements to t e a ion
Assembly.
The judicial authority vests in the Supreme Court of Namibia, which_is
competent to enquire into the validity of any legislation passe
Assembly and any act of the executive, and to pronounce upon its validity.
The new dispensation has given rise to a number of interest11^
problems, particularly where the Bill of Rights is concerned. ong
122 See the discussion of fundamental rights in ch 5.

which have come before the courts are S v Angula,'23 S v Heita'2* and
Akweenda v Cabinet for the Transitional Government for South West
Africa.123
124
125
Angula concerned the validity of certain provisions of the South African
Teirorism Act and Internal Security Act in the light of the fact that the Bill
of Rights endorses the presumption of innocence and outlaws any criminal
sanction which has a retrospective effect. The court found that the provisions
concerned were valid even though they unquestionably conflict with the Bill
of Rights. The court reasoned as follows: first of all, Proclamation 101 is
not the sole source of the territory’s constitutional law, and South African
laws recognizing the sovereignty of the South African Parliament are still
applicable. There was therefore no valid analogy to be drawn from the
decision in Marwane, since the legislature of South West Africa is not on
all fours constitutionally with that of Bophuthatswana. Secondly, the court
extrapolated from the provisions of Proclamation 101 itself a clear inten
tion on the part of the executive legislator (the State President) to leave the
legislative reform programme in the hands of the newly constituted tran
sitional government: in other words, to allow laws which are repugnant to
the Bill of Rights to survive until repealed or amended by the territory’s legis
lature.
The judgment inylngw/a was, however, not followed in Heita, even though
the issues were identical. Here the judge took the view that, while Procla
mation 101 cannot be regarded as a self-contained constitution in itself, it
is nevertheless the corner-stone of the Namibian constitutional dispensation;
the court adopted the same line of reasoning as the majority of the court
in Marwane. While the approach in Heita was certainly courageous, one can
not but conclude that the judgment in Angula was more correct. If the judg
ment in Marwane is open to criticism on technical grounds, then that in Heita
is more so. By no stretch of the imagination can Proclamation 101 be seen
as a ‘supreme law’: if matters are to be set to rights, it is the Namibian legis
lature which must perform this task.
In Akweenda the court held that where no mention had been made of the
audi alteram partem rule in the detention order, the rule had to be observed.
V PROVINCIAL GOVERNMENT
1 Introduction126
When the four former British colonies merged to form the Union of South
Africa in 1910, the existing boundaries were retained and the four colonies
became the four provinces of the Union.127 The form of provincial govern
ment which was adopted, for once had no British origins, and may be
123 1986 2 SA 540 (SWA).

124 1987 1 SA 311 (SWA).
125 1986 2 SA 548 (SWA).
126 For a detailed discussion of provincial government in South Africa prior to the
abolition of the Provincial Councils in 1986, see G Carpenter ‘Provincial Govern
ment’ 21 LA WSA at 208 et seq.
127 The boundaries remained virtually unchanged until the advent of independence for
black territories which formerly formed part of the Republic.
regarded as a departure from the Westminster system.128 It is, however, gener

ally agreed that HJ May129 somewhat overstated the case when he referred
to the South African provincial system as “a compromise between federal
and union ideas”,130 since the ‘federal’ characteristics in the system were of
minor importance.
2 Provincial Government prior to 1986

Perhaps the most striking feature of the system of provincial government
was that the executive, which consisted of the Administrator and the Execu
tive Committee, was not directly responsible to the Provincial Council in the
way that the executive is responsible to the legislature in the Westminster
system. For example, though the Executive Committee was drawn from the
members of the Council, it did not have to act as a unit in the manner of
a cabinet, and the Executive Committee was under no obligation to resign
even if faced with a motion of no confidence in the Council. Furthermore,
the Administrator was responsible to the central government and not to the
Council. In other words, the Administrator, the Executive Committee and
the Provincial Council were to a large extent independent of one another.
(i) The Administrator
The Administrator was the chief executive official of the province. He was
the representative of the central government and was responsible to it and
not to the Provincial Council, although it was customary for him to be a
resident of the province concerned. He was appointed by the State President
on the advice of his ministers, and could be dismissed only by the State Presi
dent. He possessed wide-ranging powers in his capacity as the representative
of central government policy,131 head of the provincial executive132 and part
of the provincial legislature — even though he possessed no vote in the
Council.
(ii) The Executive Committee
The Executive Committee consisted of the Administrator and four other mem
bers chosen by the Councillors by majority vote. Before 1962, the members
of the Executive Committee were appointed in accordance with the principle
of proportional representation. Although it was customary for members of
the Committee to be members of the Council, it was not obligatory. Execu
tive Committee members who were not members of the Provincial Council
could participate in the proceedings but had no vote.
The function of a member of an Executive Committee was similar to that
of a Cabinet member, but, because he was not responsible to the Council,
not identical.

129 The South African Constitution (1955).
130 At 359.
131 Which meant that he did not necessarily share the political views of the majority party
in the Provincial Council.
132 In certain spheres he acted personally, as the representative of the State President;
in others via the Executive Committee.
(iii) The Provincial Council133

The life of the Provincial Councils was five years, but could be extended
by the State President to fit in with the life of Parliament, for the sake of
convenience. In the Cape, Transvaal and Natal, the number of members was
the same for the House of Assembly and the Provincial Councils; the bound
aries of the electoral districts were therefore the same for both bodies. In
the Orange Free State, on the other hand, there were twice as many Provin
cial Councillors as parliamentarians. The qualifications for election and the
election procedure were the same as for the House of Assembly.
The legislative powers of the Councils were set out, not only in the Con
stitution, but in a number of other statutes as well, such as the Financial
Relations Act. These powers were, on a number of occasions, extended by
parliamentary enactments, but were also curtailed in certain cases. Although
section 149 of the South Africa Act and section 114(6) of the 1961 Consti
tution required that any derogation from the powers of the Provincial Coun
cils and any alterations to the boundaries of the provinces had to be preceded
by a petition from the province concerned, no such alteration or derogation
was ever successfully impugned on the ground of the absence of such a peti
tion.134
The legislative powers of the Councils were said to be ‘original and not
delegated’.135 In other words, provincial legislation, unlike municipal by-laws
and presidential proclamations, did not constitute subordinate legislation
which could be declared invalid on the ground that it was unreasonable,
vague, of retrospective effect or discriminatory. It could, however, be declared
invalid (but only by the Supreme Court) on the ground of ultra vires, which
parliamentary legislation in a unitary state cannot be.
Although it is not altogether clear, it would seem that provincial ordinances
could not interfere with the jurisdiction or procedure of the courts, unless
it would otherwise have been impossible for the Provincial Council to have
exercised its powers.136
The legislative powers of the Councils were limited in the sense that
ordinances had to deal with matters entrusted to the provincial authorities;137
that ordinances could not conflict with Acts of Parliament; and that
ordinances had to be approved by the State President, who acted on the advice
of his executive and was not bound by convention to assent to any ordinance
which had been duly passed.
3 Provincial Government under the Provincial Government Act 69 of

1986
There had been speculation about the possible abolition of the Provincial
Councils for some years before this actually came to pass. Once the 1983
133 For matters such as procedure, privileges and powers, see Carpenter op cit passim.
134 See the discussion in ch 6 at 148-149 and in Carpenter op cit at 230-232.
135 See Johannesburg Consolidated Investment Co v Marshall’s Township Syndicate 1917
AD 662 at 666 (per Innes CJ); Middelburg Municipality v Gertzen 1914 SA 554 at
550; Pretoria City Council v SA Organ Builders (Pty) Ltd 1953 3 SA 400 (T); Theunis-
sen Town Council v Du Plessis 1954 4 SA 419 (O) at 422.
136 See VerLoren van Themaat Staatsreg at 417-418 and Carpenter op cit at 228.
137 Extensive rules of interpretation were applied here to determine whether certain powers
had in fact been conferred by implication: see LC Steyn Uitleg van Wette (1978)
s v ‘verswee bevoegdhede’ esp at 289 et seq; Carpenter op cit at 229-230.
Constitution had been adopted, however, it was clear that major changes
in the system of provincial government were envisaged. For one thing, there
was a marked degree of correspondence between the topics scheduled as ‘own
affairs’ in the Constitution and the topics in respect of which the provinces
possessed legislative power. In addition, there was section 98(2) and (3) of
the Constitution, which (read with section 26) makes provision for the possi
bility that any power exercised in terms of a provincial ordinance may be
assigned to a minister after the State President, acting in consultation with
the Executive Committee of the province concerned as well as the Cabinet,
has declared that the ordinance deals with own affairs. In terms of section
98(3)(c), moreover, the State President acquired the power to amend or adapt
any such law or ordinance by proclamation or regulation if necessary for
the execution of the assignment.
The Provincial Government Act came into operation on 1 July 1986 and
there has therefore not yet been much opportunity to assess the success of
the new system. Be that as it may: the Act has had the following effects on
the provincial system:
(i) The Provincial Councils were abolished on 1 July 1986.
(ii) All provincial ordinances in force on 1 July 1986 remain in force until
amended or repealed.
(iii) The boundaries of the provinces remain as they were on 1 July 1986.
The State President may, however, after consulting the Administrator or
Administrators concerned—
• declare a portion of a province to be a new province;
• divide an existing province into two or more new provinces and deter
mine the boundaries of such new provinces;
• combine any two or more provinces into one;
• include in any province any other territory or include any portion of a
province in any other province;
• allocate a name and seat to every such province or change its name or seat;
• provide for transitional arrangements with regard to the disposal of assets,
liabilities, rights or obligations and the legal force of provincial legislation
in the new province.138
When acting in terms of section 5(1), the State President must take into
account existing provincial and administrative boundaries, the size of areas,
community of interests, natural and geographical features, density and com
position of the population, cost effectiveness and efficiency in the rendering
of services and socio-economic development potential.139 Before taking the
action envisaged, he must publish a draft of the proposed legislation in the
Gazette together with a notice calling on all interested parties to lodge objec
tions and representations within 21 days.140
138 S 5(1).
139 S 21(2).
140 S 21(3).
Provincial Executives
The State President appoints the Administrator (as before) as well as the mem
bers of the Executive Committee.141 It must be presumed that he will act in
consultation with the Cabinet, since the appointment of an Administrator
can only be a general affair. The Administrator is the chairman of the Com
mittee, as before. The Administrator and the other members constitute the
executive authority in the province.142 In the appointment of the provincial
executive the State President must, as far as is practical, give preference to
persons resident in the province concerned.143
The Act also makes provision for the appointment of an acting Adminis
trator by the State President, for the taking of an oath by the Administrator
and the other members of the Executive Committee144 and for the fixing of
salaries and allowances by the State President.145146
The Administrator and other members hold office at the State President’s
pleasure, for a maximum of five years and are eligible for reappointment.
Casual vacancies are filled by the State President.147 It is of importance to
note that persons other than Whites may now, for the first time, serve on
a provincial executive.
In terms of section 13, all decisions of an Executive Committee are taken
by the Administrator. Section l(i) defines ‘Administrator’ as the Adminis
trator acting in consultation with the other members of the Executive Com
mittee. Any decision of the Administrator must therefore be taken in the
name of the Executive Committee.
The powers and duties of the Administrator and Executive Committee are
set out in section 14. Unfortunately both legislative and executive powers
are lumped together in one provision. As far as executive function is con
cerned, section 14(1) provides that the Administrator “shall attend to provin
cial matters”, which are said to include matters which have been assigned
to the Executive Committee of the province by an Act of Parliament, or are
declared by the State President by proclamation to be of a provincial nature
or of a regional, local or private nature within the province, while section
14(3) provides that in regard to all matters in respect of which the Executive
Committee of a province has no powers, the Administrator must act on behalf
of the State President when required to do so; here he acts without reference
to the other members of the Executive Committee.
Section 15, which deals with the assignment of functions and the delegation
of powers, is of major importance. The State President may assign the
administration of any provision in any law which entrusts any power, duty
or function to a minister148 to the Administrator of a province either specifi
cally (by way of the general assignment of a laws or laws) or generally (in
141 S 7(1).
142 S 7(2).
143 S 7(3).
144 S 8.
145 S 9.
146 S 10.
147 S 11.
148 Whether a Cabinet Minister or a member of a Ministers’ Council.
so far as such law or laws relate to a matter mentioned in the assignment).149

The State President may, however, amend, adapt or modify the assignment
as he thinks fit.150 The Administrator may, likewise, delegate to members
of the Executive Committee, the Provincial Secretary, or any person employed
by the provincial administration, or even to municipal bodies, divisional coun
cils or other local authorities, any power except the power to issue procla
mations or make regulations.151
The Legislative Authority
The legislative power that previously vested in the Provincial Councils has
been transferred to the four Administrators. The Administrator may by
proclamation amend, repeal or replace any provision of an existing
ordinance152 or legislate by regulation.153 He may, further, recommend to
a competent authority the passing of any law which he regards as desirable
or essential for the province concerned.154 Before issuing a proclamation as
referred to in section 14(2)(tz), the Administrator must give interested per
sons an opportunity to state their views.155 Exactly how he is to deal with
objections is not clear. Presumably the normal rules of administrative law
will apply: in other words, he must apply his mind to the matter, not act
mala fide, not take into account irrelevant considerations, and so on.
It is of importance to note that, unlike the ordinances previously adopted
by the Provincial Councils, the proclamations issued by the Administrator
constitute subordinate legislation which is subject to judicial scrutiny. Such
enactments may be declared invalid by the Supreme Court, not only on the
ground of ultra vires, but also if they are ambiguous, unreasonable or dis
criminatory. The Administrator therefore does not possess original legislative
powers. Whereas the ordinances of the old Provincial Councils were subject
to the approval of the State President, the proclamations of the Adminis
trators must be approved by a joint committee of Parliament (not a stand
ing committee, as one may have expected).156
An interesting feature of the new Provincial Government Act is that pro
vision is made for co-operation between provincial administrations and ‘self-
governing territories’ (National States). The State President may, on the
recommendation of an Administrator and the Chief Minister of a National
State, provide by proclamation for the joint or co-ordinated exercise of
powers by the respective authorities.157 Provision is even made for the per
formance of provincial functions by an Administrator outside the province
concerned. This takes place with the approval of the State President and after
agreement or arrangement with the government of a foreign state, the
Administrator of another province or the government of a National State.158
149 S 15(l)(a) and (b).

150 S 15(l)(c).
151 S 15(2).
152 S 14(2)(a)(i).
153 S 14(2)(a)(ii).
154 S 14(2)(c).
155 S 16.
157 S 17^ The first example of this is to be found in the Joint Executive Authority (JEA)
established for KwaZulu and Natal.
158 For a detailed treatment of the topic, see J Meyer Local Government Law (1978).
One important development has occurred) already, via the so-called

KwaZulu/Natal Indaba, in which negotiations' took place between represen
tatives of various interest groups in Natal and KwaZulu, with the aim of
drafting a constitution for provincial and local government in the province.
The discussions have thus far yielded a bill of rights, an agreement about
a joint executive authority (culminating in the Joint Executive Authority for
KwaZulu and Natal Act 80 of 1986) and, most recently, a draft constitu
tion. At this stage co-operation can take place in the executive sphere only.
Any joint legislative authority will have to receive parliamentary approval
before it can be put into operation.
The most important feature of the new provincial dispensation is unques
tionably the abolition of representative government at the second-tier level.
It should also be noted that although section 114 of the 1961 Constitution
remains on the statute book, the requirement of consultation has been trans
ferred to the executive level: the possibility of a petition from a Provincial
Council has fallen away; the power to alter provincial boundaries is now
vested in the State President acting after consultation with the Adminis
trator (s) concerned.
VI LOCAL AND REGIONAL GOVERNMENT

Local government158 (sometimes referred to as third-tier government) may
be described as government by local democratic159 authorities vested with
powers which are exercised in a strictly prescribed and controlled manner.
Such authorities are therefore subordinate bodies. Their main function is
to provide and regulate local services and to promote the interests of the
communities they serve.
Representative local authorities have been part of the South African scene
for many years. We have had town councils, village boards, divisional coun
cils, peri-urban boards and the like, all providing services under the control
of the provincial authorities (second tier of government) and ultimately that
of the central government (first tier of government).
Local government authorities are typical examples of deconcentration of
authority.160 There is no real transfer of autonomy to the subordinate body.
The powers of local bodies to regulate by means of by-laws and
regulations161 will depend on the topics in respect of which they render ser
vices and, of course, on the legislation in terms of which the powers are con
ferred. Examples of topics in respect to which local authorities render services,
are ambulance and fire services, the supply of electricity, parks and gardens,
recreation, civil defence, traffic regulation and so on. The regulations and
by-laws are implemented and enforced by officials such as traffic officers
and health inspectors. The Administrator of a province invariably possesses
major powers in local matters such as town planning.
159 This implies “representative”.

160 See the discussion of the concept of deconcentration and decentralization at the begin
ning of this chapter.
161 Such legislation may not conflict with either parliamentary or provincial legislation,
and, being subordinate legislation, may be impugned by the courts if it is unreason
able, vague, discriminatory or of retrospective effect.
The rules of administrative law are of cardinal importance in matters affect

ing local government. These are the rules which determine the validity of
both the legislative and the executive acts of local bodies and the powers of
the organs performing such acts.
Until the adoption of the Regional Services Councils Act 109 of 1985, local
and regional government in South Africa was conducted on strictly separated
racial lines: there were no multi-racial bodies co-ordinating the operations
of authorities functioning parallel to one another. The concept of regional
services councils was introduced to create authoritative policy-making bodies
to serve a particular geographically demarcated area without regard to race;
to provide services at the local government level in such a way that Whites,
Blacks, Indians and Coloureds would be represented on these bodies on a
proportional basis.
Once again the key figure is the Administrator. He is the one who may
institute a Regional Services Council after consulting the local bodies con
cerned and any other interested party, having delimited the region for which
the council is to be established. He exercises these powers in concurrence
with the Minister of Constitutional Development and Planning, the Minister
responsible for black local government matters, the Minister of Finance and
the members of the Ministers’ Councils responsible for local government.162
The local authorities within the region in question must make recommen
dations to the Administrator in regard to which of the services listed in Sched
ule 2 of the Act are to be supplied by the proposed RSC. This, too, is subject
to the approval of the Minister of Constitutional Development and Plan
ning. Among the services listed are: water and electricity supplies, sewage
works, traffic matters, environmental control, libraries, museums and
tourism. It must be emphasized that the list is not exhaustive.
When the Administrator defines the region to be served by a particular
RSC, he must take into account the interdependence and community of
interests between the communities to be served.
The powers of an RSC are said to be those powers, rights and duties which
normally vest in local authorities and which may be conferred on the RSC
by the Administrator.163 The RSCs do not, however, have the power to levy
property tax, although they may impose a regional services levy.164
The members of each RSC are the representatives nominated by each local
authority or management body and appointed by the Administrator on the
basis of one member for every 10% or part thereof of the total number of
votes to which the body in question is entitled. The number of votes is calcu
lated in accordance with the relative contribution made by a particular body
to the total income of the Council from services rendered.165 If there are more
than two local authorities in a region, however, no one authority may have
more than 50% of the total number of votes. Another provision which is
aimed at preventing one body dominating the rest, is section 11, which
requires that all decisions of a Council be taken by a two-thirds majority
vote of members present.166
162 Ss 2 and 3.
163 S 4(l)(a).
164 S 4(l)(b).
165 S 9(1).
166 SI 1(1).
The chairman of the Council is appointed by the Administrator in consul

tation with the four ministers responsible for local government.167 The RSC
itself appoints a deputy chairman.
The RSCs derive their revenue from the provision of services, a payroll
tax and a turnover tax on businesses. In the allocation of funds to a particu
lar authority within a region, preference is given to the establishment,
improvement and maintenance of facilities where there is the greatest need
for them.
Any local authority which is represented on an RSC and which feels
aggrieved by any decision taken by the Council, may appeal to an appeal
board constituted by the Administrator and the four ministers of local
government.168
It is not possible, at this stage, to comment on the success achieved by
Regional Services Councils.169 There has been a great deal of criticism voiced
against the legislation from various quarters.170 The local authorities estab
lished in terms of the Black Urban Councils Act 79 of 1961 and the Develop
ment Councils Act 4 of 1984 have also received a very unenthusiastic response
from the black community. It remains to be seen, therefore, whether the RSCs
will ultimately achieve the stated objective of rationalizing services at the local
level of government and creating opportunities for co-operation and co
ordination on a non-racial (or multi-racial) basis.
167 S 7(1).
168 SI 1(3).
169 Only one RSC had, at the time of writing, been established.
170 The KwaZulu government eg has come out very strongly against the scheme.
Table of Cases
a Page
AG v Jonathan Cape 1975 3 WLR 606 234
cting President Rhodesia v Deary 1979 4 SA 39 (ZRA) ........ 176
Akweenda v Cabinet for the Transitional Government for South West Africa
1986 2 SA 548 (SWA) 426
Ambard v Attorney-General for Trinidad and Tobago (1936) 1 All ER 704 258
Ames, In re 1841 3 Moore PC 409
Attorney-General v Jonathan Cape Ltd [1976] QB 752 ...................... ™
Attorney-General for Canada v Attorney-General for Ontario 1937 AC 326 228
Attorney-General for New South Wales v Trethowan 1932 AC 526; ...
f°r Ontario v Attorney-General for Canada 1947 AC 127 211

Aznff n Ark Racing Club Ltd, P^te 1918 TPD 37 23
Uon Commercial Bank, Re (1954) 1 All ER 947 (Ch D) 23
B
Baker v Carr 369 US 186 1962 .... 125 126 336
Bam v Minister of Justice 1976 4 SA 643 (Tk) ....... ......... .......... 172 230
Beckmann v Minister of the Interior 1962 2 SA 223 ( J..... . .......... 172 230
Bell v Van Rensburg NO 1971 3 SA 693 (C) ••••••• 7TTrÓ (A)....... ................ 237
Bestuursraad van Sebokeng, Die v Tlelima 1968 1 305
Beukes v Administrateur-Generaal Suidwes-Afrtka
1980 2 SA 664 (SWA) ......... 322 423
Binda v Colonial Government (1887) 5 SC 284 358 (A) .. 20 21 22 24 .
Bindura Town Management Board v Desai & Co 104
Biro v Minister of the Interior 1957 1 SA 234 (1).......... • ............... 381
Blackburn v AG 1971 1 WLR 1037 ..... ............ 151
Boesak v Minister of Home Affairs 1987 3 SA •• .............. ...... 309 397
Bonham’s Case (1610) 8 Coke’s Reports •••••••’• . 138 259 267
Botha v Marais 1974 1 SA 44 (A) ....................... ............. 192
Bowditch v Balchun (1850) 5 Ex 378 ......................... ............ 109
Bowles v Bank of England 1973 1 Ch1 57 Johannesburg ............ 267
Bozzoli v Station Commander, John Vorster q
. 21 101 103
1972 3 SA 934 (W) ................... ........... 354
Bradlaugh v Gossett 1884 12 QBD 271 ................... .. ............................
........... 201
Brassard v Smith 1925 AC 371 Xie ap
’ '172
.... 151 267
Bribery Commissioner v Ranasinghe 1965 A ••............................. 110 111 270
Brink v Commissioner of Police I960 3 S ’ ,pQ 141 150 176
British Coal Corporation v The King [193 J 202 211 212
£VI
British Railways Board v Pickin 1974 AC .................... JZg
Brown v Board of Education of Topeka 347 US 483 >................... 71 139 258
Brown v Leyds NO (1897) 4 OR 17 "••”’"''""'t'07and Attorney-General
Buissinne, Insolvent Estate of, In re v S q
1828 1 Menz 318 ..........................................
Burdett v Abbott 1811 14 East 150
C 24
Cachet, In re 8 CTR 9 "... 103
Cakijanas, In re v Tobela 1908 NLR 193 18 25 29 37 220
Calvin’s Case (1608) 7 Coke’s Reports 1; 2 St tr □
435
The chairman of the Council is appointed by the Administrator in consul

tation with the four ministers responsible for local government,167 The RSC
itself appoints a deputy chairman.
The RSCs derive their revenue from the provision of services, a payroll
tax and a turnover tax on businesses. In the allocation of funds to a particu
lar authority within a region, preference is given to the establishment,
improvement and maintenance of facilities where there is the greatest need
for them.
Any local authority which is represented on an RSC and which feels
aggrieved by any decision taken by the Council, may appeal to an appeal
board constituted by the Administrator and the four ministers of local
government.168
It is not possible, at this stage, to comment on the success achieved by
Regional Services Councils.169 There has been a great deal of criticism voiced
against the legislation from various quarters.170 The local authorities estab
lished in terms of the Black Urban Councils Act 79 of 1961 and the Develop
ment Councils Act 4 of 1984 have also received a very unenthusiastic response
from the black community. It remains to be seen, therefore, whether the RSCs
will ultimately achieve the stated objective of rationalizing services at the local
level of government and creating opportunities for co-operation and co
ordination on a non-racial (or multi-racial) basis.
167 S 7(1).
168 SI 1(3).
169 Only one RSC had, at the time of writing, been established.
170 The KwaZulu government eg has come out very strongly against the scheme.
Table of Cases
Page
AG v Jonathan Cape 1975 3 WLR 606 234
cting President Rhodesia v Deary 1979 4 SA 39 (ZRA) 176
Akweenda v Cabinet for the Transitional Government for South West Africa
1986 2 SA 548 (SWA) 426
Ambard v Attorney-General for Trinidad and Tobago (1936) 1 All ER 704 258
Ames, In re 1841 3 Moore PC 409 215
Attorney-General v Jonathan Cape Ltd [1976] QB 752 176
Attorney-General for Canada v Attorney-General for Ontario 1937 AC 326 228
Attorney-General for New South Wales v Trethowan 1932 AC 526;
44 CLR 394 139 141 151 211
Attorney-General for Ontario v Attorney-General for Canada 1947 AC 127 211
Auckland Park Racing Club Ltd, Ex parte 1918 TPD 37 23
Azoff-Don Commercial Bank, Re (1954) 1 All ER 947 (Ch D) 23
B
Baker v Carr 369 US 186 1962 125 126 336
Bam v Minister of Justice 1976 4 SA 643 (Tk) 172 230
Beckmann v Minister of the Interior 1962 2 SA 223 (E) 172 230
Bell v Van Rensburg NO 1971 3 SA 693 (C).................................... 237
Bestuursraad van Sebokeng, Die v Tlelima 1968 1 SA 680 (A)....... 305
Beukes v Administrateur-Generaal Suidwes-Afrika
1980 2 SA 664 (SWA) ..... 322 423
Binda v Colonial Government (1887) 5 SC 284 20 21 22 24
Bindura Town Management Board v Desai & Co 1953 1 SA 358 (A) 104
Biro v Minister of the Interior 1957 1 SA 234 (T)............................ ............ 381
Blackburn v AG 1971 1 WLR 1037 .................................................... ............ 151
Boesak v Minister of Home Affairs 1987 3 SA 665 (C) ..... 309 397
Bonham’s Case (1610) 8 Coke’s Reports 114 138 259 267
Botha v Marais 1974 1 SA 44 (A)....................................................... ......... 192
Bowditch v Balchun (1850) 5 Ex 378 .................................................. 109
Bowles v Bank of England 1973 1 Ch 57............................................ 267
Bozzoli v Station Commander, John Vorster Square Johannesburg
1972 3 SA 934 (W) 21 101 103
Bradlaugh v Gossett 1884 12 QBD 271 ................................................ 354
......... 201
Brassard v Smith 1925 AC 371 .............................................................
Bribery Commissioner v Ranasinghe 1965 AC 172.............................. ... 151 267
Brink v Commissioner of Police 1960 3 SA 65 (T) . 110 111 270
British Coal Corporation v The King [1935] AC 500 (PC) 141 150 176
202 211 212
British Railways Board v Pickin 1974 AC 765 ............................. 7'
Brown v Board of Education of Topeka 347 US 483 (1954) . 125 126
Brown v Leyds NO (1897) 4 OR 17 . - 71 139 258
Buissinne, Insolvent Estate of, In re v Sequestrator and Attorney-General
1828 1 Menz 318 ................................................................................................... £
Burdett v Abbott 1811 14 East 150 354
C
Cachet, In re 8 CTR 9 ................................................................. ini
Cakijanas, In re v Tobela 1908 NLR 193 iś oś oo i-7 oon
Calvin’s Case (1608) 7 Coke’s Reports 1; 2 St Tr 559 18 25 29 37 220
435
436 Table of Cases
Page
Calvin’s Case (1608) 7 Coke’s Reports 1; Eng Rep 1608 KB 377 375
Campbell v Hall 1774 1 Cowper 204; 98 ER 1045 18 20 25 54 377
Cape Divisional Council, The v The Colonial Government 1903 SC 87 24
Carltona Ltd v Commissioners of Works (1943) 2 All ER 560 176
Case of Commendams, Hobart 140 37
Case of Monopolies 1602 Coke’s Reports 85 36
Case of Proclamations (1611) 12 Coke’s Reports 74;
77 ER 1352 37 106 229 270
Case of Prohibitions (1607) 12 Coke’s Reports 63 37
Case Shipmoney (Hampden’s Case) 1637 3 St Tr 825 39 138 173 267
Cassem v Oos-Kaapse Komitee van die Groepsgebiederaad
1959 3 SA 651 (A) 396
Cassim & Solomon v The State (1892) 9 Cape LJ 58 65
Cebekulu v Pepler 1947 4 SA 580 (W) 101
Central Judicial Commission v Fass & Co 1903 TS 825 24
Chikerema v The UANC 1979 4 SA 258 (ZRA) 167
Cohen v Minister of the Interior 1942 TPD 151 380
Collins v Minister of the Interior 1957 1 SA 552 (A) 147 243 265 266
Colt and Glover v Bishop of Coventry, Hobart 140 37
Consolidated Diamond Mines of SWA Ltd v Administrator SWA
1958 4 SA 572 (A) ................................................................................................ 23
Cook v Sir James Gordon Sprigge 1899 AC 572 20
Cowburn v Nasopie (Edms) Bpk 1980 2 SA 547 (NC) 149 268 269 349
Danby’s case 40 44
Darcy v Allein II 1602 Coke’s Reports 85 36
Day v Savadge 1615 Hob 85 138
Dedlow v Minister of Defence and Provost Marshall
1915 TPD 543 107 108 109 270
De Jager v Attorney-General of Natal 1907 AC 326 24
De Klerk v Naude 1937 TPD 180 337 338
De Klerk v Union Government 1958 4 SA 496 (T) 192
De Villiers v Louw 1931 AD 241 338
De Villiers v Minister of Justice 1916 TPD 403 258
Dorn’s Trustee v Bok NO (1887) 2 SAR 189 71
Donegani v Donegani 3 Knapp 63; 12 ER 571 22
Du Plessis NO v Skrywer NO 1980 2 SA 52 (SWA); 1980 3 SA 863 (A) .... 168 423 •
Du Plessis v Administrateur-Generaal van die Gebied van Suidwes-Afrika
1980 2 SA 35 (SWA) 322 423
Dubowitz v Minister of the Interior 1942 CPD 504 380
Ebrahim v Minister of the Interior 1976 1 SA 878 (D); 1977 1 SA 665 (A) 385
Ebrahim v Minister of the Interior 1977 1 SA 294 (A) 98
Edinburgh and Dalkeith Railway Co v Wanchope 1842 8 Cl & F 710 267
Engel v Vitale 370 US 421 (1962) 125
Erasmus v SA Associated Newspapers Ltd 1979 3 SA 447 (W) 237 258
Fourie, In re 1900 SC 173 101 109

Freeman v Union Government 1926 TPD 63 8 230
Table of Cases 437
Page
Garment Workers’ Union v De Vries 1949 1 SA 110 (W) 337

Gerdener v Returning Officer 1979 2 SA 663 (N) 338
Godden v Hales (1686) 11 St Tr 1165 40 172 267
Goldberg v Minister of Prisons 1979 1 SA 14 (A) 98
Government of KwaZulu v Government of the Republic of South Africa
1982 4 SA 387 (D) 231
Government of the Republic of South Africa v Government
of KwaZulu 1983 1 SA 164 (A) 6 160 231 305 322 360 408
Government, The, Ex parte 1914 TPD 596 23
Greeff v Raubenheimer 1976 3 SA 37 (A) 192
Halder v Minister of Defence and Provost Marshall of Pretoria

1915 TPD 622 109 270
Halpin v AG for Irish Free State 1936 IR 267
Hamid v Minister of the Interior 1954 4 SA 241 (T) 378 379
Harris v Minister of the Interior 1952 2 SA 428 (A) 25 139 142 144 145
146 147 148 151 154 211 219 260 262 263 267 268 348 349 356
Henley & Co, In re 1878 9 Ch 409 24
Herstigte Nasionale Party van Suid-Afrika v Sekretaris van Binnelandse

Sake en Immigrasie 1979 4 SA 274 (T) 191 336
Hess v The State (1895) 2 OR 112 71
Hinds v The Queen 1977 AC 195 157
Hoop, The 1977 1 C Rob 196 214
Hurley v Minister of Law and Order 1985 4 SA 709 (D) 98 101 118
Huyser v Die Voortrekker Pers Beperk 1954 3 SA 75 (W)
Indian Investment Co v Borax 1920 1 KB 539

Inter-Science Research and Development Services (Pty) p.
Popular de Mocambique 1980 2 SA 111
101
Jacobs, In re 1885 HCG 294 .............. ................. 17
707
* ................ L..........'.”'
214
Janson v Driefontein Consolidated Mines 1902 AC ....................
Johannesburg Consolidated Investment Co v Johannes urg
361
Town Council 1903 TS 111 717
*i
*** ’»7TnwnVhin
Johannesburg Consolidated Investment Co v Mars
428
Syndicate 1917 AD 662 •••""" 65g 24
Joyce and McGregor Ltd v Cape Provincial Adminis r
Katofa v Administrator-General for SWA 1985 4 SA 211 -A)

98 101 117
Keeley v Minister of Defence 1980 4 SA 695 (T I 1981 3 SA 904 (A) 387
. 214 229
King, The v Bottrill: Ex parte Kuechenmeister 1947 Kb ........... ....... 101
Kok, Willem, In re 1879 Buch 45 7"
**
7 ’i‘ó7ń'7 ć a 44Ś (A) .. ....... 104
Komani v Bantu Affairs Administration Board
438 Table of Cases
Page
Krohn v The Minister for Defence 1915 AD 191 ................. 100 107 108 109 228 270
Labrador v The Queen 1893 AC 104 ............................................................................ 267

Labuschagne v Maarburger 1915 CPD 425 ................................................................ 110
Lee v Bude and Torrington Railway Co 1871 LR 6 CP 576 .................................. 267
Leeuw, Ex parte 1905 SC 340 ...................... ................................................................... 23
Lewis v Culwick 1966 3 SA 52 (D) ................................................................................ 337
Li Kui Yu v Superintendent of Labourers 1906 TS 181 .......................................... 101
Liversidge v Anderson [1942] AC 206 ............................................................ 109 176 270
Liyanage v R 1967 1 AC 259 ......................................................................................... 151
Lockhat v Minister of the Interior 1960 3 SA 765 (D) ......................................... . 98
Loewenstein v Custodian of Enemy Property 1921 TPD 606 ................................ 377
Maarburger v Minister of Finance 1918 CPD 183 ................. . ................................. 377

Macleod v Attorney-General for New South Wales 1891 AC 455 (PC)....... 201 208
Major, Abner v John Makettra 1880 EDC 47 ....................... .................................... 101
Marais v General Officer Commanding (Ex parte DF Marais)
1902 AC 109 .................................................. . ................................ 106 107 108 109 270
Marais v Macintosh 1978 3 SA 414 (N) ...................... ....... . ................................ . 339
Marbury v Madison 1803 1 Cranch 137 (US) ..................................... . 65 125 140 265
Marechane, In re 1882 SAR 27 ...................... ........................... ................................... 101
Martin v Hunter’s Lessee 1 Wheat 394 (1816) ........................................................... 125
Martin v Kiesbeampte Newcastle-afdeling 1958 2 SA 649 (D) ............................... 338
Mawo v Pepler NO; Mbadlanyna v Pepler NO 1960 4 SA 291 (C) ............... . Ill
May v Udwin 1981 1 SA 1 (A) ....................................................................................... 258
Mbadlanyna v Pepler 1961 4 SA 806 (C) ............................................................. 101 110
McConnell v The Queen ........................................................................................... ....... 262
Metal and Allied Workers Union v Minister of Manpower
1983 3 SA 238 (N) ........................................................................................................ 104
Middelburg Municipality v Gertzen 1814 SA 554 ...................................................... 428
Minister of Community Development v Salojee 1963 4 SA 65 (T) ....................... 234
Minister of Finance v Barberton Municipality 1914 AD 335 .................................. 322
Minister of Justice v Alexander 1975 4 SA 530 (A) .................................................... 98
Minister of Posts and Telegraphs v Rasool 1934 AD 167 ................................ 104 126
148 151 154 159 219 259 261 263 264 265 267 268 348 349 356
Minister van Justisie v Alexander 1975 4 SA 530 (A) ............. ..................... ........... H2
Minister van Landbou v Venter 1975 3 SA 59 (A) .......................................... ........... 24
Mkhize v Minister of Law and Order 1985 4 SA 147 (N) ......................................... 98
Mkhize v Swemmer 1967 1 SA 186 (D) ........................................................................ 101
Monomat and Naidoo v Minister of Law and Order 1986 2 SA 264 (W)........... 361
Montrose Exploration Co Ltd, Ex parte 1918 TPD 179 ........................................... 23
Moolman, Ex parte 1903 TS 159 ...................................................................................... 24
Moore v Attorney-General for the Irish Free State 1935 AC 484 .................. 141 211
Mota v Moloantoa 1984 4 SA 761 (O) .......................................................................... 336
Mpangele v Botha (1) 1982 3 SA 633 (C);
Mtima v Bantu Affairs Administration Board, Peninsula Area

1977 4 SA 920 (A) ................................................................................................... 98 104
Mtoba v Sebe 1975 4 SA 413 (E)...................................................................................... 21
Municipality of French Hoek v Hugo 1883 2 Juta 230 ........................................ 22 23
Mustapha v Receiver of Revenue Lichtenburg 1958 3 SA 343 (A) ....................... 104
Table of Cases 439
N
Page
Nadan v The King 1926 AC 482 202
Nasopie (Edms) Bpk v Minister van Justisie (2) 1979 4 SA’ 438 (NC) 77.7. 149 268
Natal Provincial Administration v South African Railways and Harbours
1936 NPD 643 6
Ndlwana v Hofmeyr 1937 AD 229 *014 141 143 144 151
211 232 260 332 402 408
New South Wales Taxation Commissioners v Palmer 1907 AC 179 24
Nicol v Lawrie 1950 3 SA 151 (A) 24
Nissan v AG 1970 AC 179 .77777777 229
Nkondo and Others; Gumede v Minister
of Law and Order; Minister of Law and Order v Gumede 1986 2 SA 756 (A) 98 101 118
Nkwinti v Commissioner of Police 1986 2 SA 421 (E) 361
Nxasana v Minister of Justice 1976 3 SA 745 (D) 98
Nyangeni v Minister of Bantu Administration and Development
1961 1 SA 547 (E) 234
Olufsen v Klisser 1959 3 SA 351 (N) 339

Omar v Minister of Law and Order 1986 3 SA 306 (C) 361
Osborne v Amalgamated Society of Railway Servants (1909) 1 Ch 163 167
Pass v British Tobacco Co (Australia) Ltd 42 TLR 771 (1926) 201

Patriotic Front-ZAPU v Minister of Justice, Legal and Parliamentary
Affairs 1986 1 SA 532 (ZSC) 172 173 230
Penrice v Dickinson 1945 AD 6 258
Petterson v Burnside 1940 NPD 403 339
Pillay and Sons Ltd, Ex parte 1951 1 SA 229 (T) 23
Postmaster-General v Taute 1905 TS 582 20
Pretoria City Council v SA Organ Builders (Pvt) Ltd 1953 3 SA 400 (T) 428
Principal Immigration Officer v Narayansamy 1916 TPD 274 101
Q v Bekker 1900 SC 340 107 108 110
R v Abdurahman 1950 3 SA 136 (A) ........... 104 126

R v Bekker 1900 SC 340 ........................... 270
R V Boonzaaier 1952 1 SA 91 (C) ........... 337 338
R V Botha 1 Searle 149.............................. 24
R V Christian 1924 AD 101 ....................... 419
R V Harrison and Dryburgh 1922 AD 320 19
R V Lusu 1953 2 SA 484 (A).................... 104
R V Maharaj 1950 3 SA 187 (A) 231 305 402 403
R V Manthutle 1960 4 SA 827 (C) .......... 110 111
R V McClery 1912 AD 199 ....................... . 268
R V Miller 1946 TPD 306 ......................... 258
R V Ndobe 1930 AD 484 ............................ ... 140 211 260
R V Neumann 1949 3 SA 1238 (T) . ................ 419
440 Table of Cases
Page
RV Offen 1934 SWA 73 201
Rv Rayner-Dean 1955 1 SA 321 (SWA) 337 338
Rv Roux 1936 AD 271 24 192
Rv Secretary of State for Home Department ex parte Hosenball
[1977] 1 WLR 776 (CA) 176
R v Walker 1959 1 SA 678 (C) 337 338
R v Werner 1947 2 SA 828 (A) 110
Ras Behari Lal v King-Emperor (1933) 60 1 A 354 89
Regering van die Republiek van Suid-Afrika, Die v Santam
Versekeringsmaatskappy Bpk 1964 1 SA 546 (W) 5 6
Rhodesia Railways v Commissioner of Taxes 1925 AD 438 201
Richards v McBride 1881 QBD 119 267
Rikhoto v East Rand Administration Board 1982 1 SA 257 (W) 98 104
R (O’Brien) v Military Governor, NDU Internment Camp 1924 1 IR 32 139
Rossouw v Sachs 1964 2 SA 551 (A) 98
S v Adams; S v Werner 1981 1 SA 187 (A) 98

S v Angula 1986 2 SA 540 (SWA) 426
S v Baleka 1986 1 SA 361 (T) 98 118
S v Beyleveld 1964 1 SA 269 (T) 224
S v Devoy 1971 1 SA 359 (N); 1971 3 SA 899 (A) 229 230
S v Dlanga 1968 1 SA 5 (E) 407
S v Eliasov 1967 4 SA 583 (A) 228
S v ffrench-Beytagh 1972 3 SA 430 (A) 98
S v Gibson NO 1979 4 SA 115 (N) 98
S v Heavyside 1976 1 SA 584 (A) 407
S v Heita 1987 1 SA 311 (SWA) 426
S v Hotel and Liquor Trader’s Association of the Transvaal
1978 1 SA 1006 (W) 231
S v Mandela 1972 3 SA 231 (A) 98
S v Marwane 1982 3 SA 717 (A) 127 216 283 413 414 415 426
S v Meer 1981 1 SA 739 (N) 98
S v Moagesi 1974 1 SA 137 (NC) 407
S v Moroney 1978 4 SA 389 (A) 98
S v Mulder 1980 1 SA 113 (T) 225 237
S v Naicker 1963 4 SA 610 (N) 104
S v Naicker 1965 3 SA 413 (A) 403
S v Naude 1975 1 SA 681 (A); 1977 1 SA 46 (T) 98 237 309
S v Ndewanana 1966 3 SA 312 (E) 407
S v Ndou 1970 1 SA 668 (A) 98
S v Quma 1974 3 SA 772 (E) 407
S v Ramgobin 1985 4 SA 130 (N); 1985 3 SA 587 (N) (full bench) 98 117 118
S v Russell 1980 2 SA 459 (C) 98
S v Semke; S v Mavruso 1976 4 SA 817 (E) 407
S v Sparks 1980 3 SA 952 (T) 258
S v Tuhadeleni 1969 1 SA 153 (A) 268
S v Twala 1979 3 SA 864 (T) 21 24 419
S v Van Niekerk 1970 3 SA 655 (T) 258
S v Van Niekerk 1973 3 SA 711 (A) 98
S v Weinberg 1979 3 SA 89 (A) 112
S v Wood 1976 1 SA 703 (A) 98
S v Xesi 1969 1 SA 1 (E) 407
S v Zigqolo 1980 1 SA 49 (A) 112
S v Zitudeza 1979 2 SA 773 (E) 407
Sachs v Dbnges 1950 2 SA 265 (A) 21 22 25 106 225 229 270 309 395 397
Salaman v Secretary of State for India (1906) 1 KB 613 (CA) 229
Sammut v Strickland 1938 AC 67 22
Table of Cases 441
Page
Sasseen v Minister of the Interior 1942 CPD 546 395
Schermbrucker v Klindt NO 1965 4 SA 606 (A) 98
Schierhout v Union Government 1927 AD 94 234
Sekretaris van Binnelandse Sake v Jawoodien 1969 3 SA 413 (A) 231 360
Shingler v Union Government (Minister of Mines) 1925 AD 556 20
Skinner v East India Company 1666 6 St Tr 710 40
Slovo v Superintendent Johannesburg Gaol 1960 4 SA 230 (W) HI
Smalberger v Cape Times Ltd 1979 3 SA 457 (C) 237
Smith v Attorney-General Bophuthatswana 1984 1 SA 196 (BSC) 127 413 414
Smith v Union Government 1933 AD 363 258
Sobukwe v Minister of Justice 1972 1 SA 693 (A) 98 395
South African Associated Newspapers v Estate Pelser 1975 4 SA 797 (A) .... 98 192
South African Defence and Aid Fund v Minister of Justice
1967 1 SA 263 (A) 98 112
South African Railways v Kemp 1916 TPD 174 6
Spiller v Turner 1897 1 Ch 911 201
Spoorbond, Die v South African Railways 1946 AD 999 6
Sprawson (in re Hebron Diamond Mining Syndicate Ltd), Ex parte
1914 TPD 458 23
Stadsraad van Pretoria v Van Wyk 1973 2 SA 779 (A) 23
Stanton v Minister of Justice 1960 3 SA 353 (T) 110 111 270
State, The v Gibson (1898) 15 Cape LJ 1 ^5
Stockdale v Hansard 1839 8 LJ (QB) 294 2°Z
Swarts v Minister of Justice 1941 AD 181 258
Theunissen Town Council v Du Plessis 1954 4 SA 419 (O).......... 428

Tighy v Putter 1949 1 SA 1087 ................ 339
Tole v Director of Prisons 1914 TPD 20 108 147 262 270
Tonge v Governor of Johannesburg Gaol 1903 1 •••••••••" 101
Triimpelmann v Minister for Justice and Minister
107 108 109 270
1940 tpd 242 .......................... ......... cTTii'm............. ... 229 309 397
Tutu v Minister of Internal Affairs 1982 4 SA 5 I 1 ••
U
Union Government (Minister of Lands) v Whittaker 1916 AD 194
337
Van Deventer v Oost 1925 TPD 32 m 24
Van Marseveen v Union Government (Minister of Lands) 1918 A - 337
Van Rhyn v Du Plessis 1974 3 SA 605 (A) 338
Vorster v Backeberg 1949 1 SA 1057 .........................................................
W
24
Webb and Co Ltd, In re 1921 2 Ch 276 339
104
WilliamsEx
Wilkie, parte
and 1920 OPD
Adendorff 139
v Johannesburg Municipality 19 TPD
T 106
98 101 102 103
Wood v Ondangwa Tribal Authority 1975 2 SA 294 (A)
Table of Statutes
SOUTH AFRICA 1911 - Act 19 of 1911

1909 - South Africa Act 353
140 145 174 180 198 257 259 - Act 21 of 1911
222
263 281 282 283
si - 199 1913 - Act 27 of 1913
S12 - 221 402
S14 - 201 221 222 1921 - Act 15 of 1921
S15 - 221 249
S16 - 221 1924 - Act 30 of 1924
sl7 - 221 377
sl9 - 240 1925 - Act 9 of 1925
s24 - 140 332 si - 199
s33 - 200 245 - Act 42 of 1925
s34 - 200 245 si bis 420
s35 - 80 140 198 200 259 260 1926 - Act 18 of 1926
263 265 402 376 380
s37 - 198 - Act 32 of 1926
s40 - 197 249
s41 - 221 - Act 40 of 1926
s44 - 246 380
s45 - 246 - Act 54 of 1926
s46 - 246 187 241 244 255 265
s47 - 246 1927 - Act 38 of 1927
s48 - 246 222
s52 - 246 s2 - 403
s53 - 246 s25 - 36 402 408
s54 - 246 - Act 40 of 1927
s56 - 246 376 377
s63 - 242 252 253 1930 - Act 13 of 1930
s65 - 208 249
s68 - 222 - Act 18 of 1930
s85 - 140 200 222 254
s92 - 222 1931 - Act 41 of 1931
ss95-116 - 256 254
s98 - 259
slOO - 222 1932 - Act 14 of 1932
S106 - 256 377
si32 - 222 1933 - Act 17 of 1933
S134 - 222 s2 - 246
S137 -80 140 148 198 200 259 1934 - Act 69 of 1934
263 17 208 214
S141 - 222 - Act 70 of 1934
S142 - 222 220
S147 - 222 402 s7 - 214
S149 - 199 428
S152 -80 140 148 198 200 208 1935 - Act 21 of 1935
209 259 263 264 265 23
1910 - Act 1 of 1910 1936 - Act 12 of 1936
24 322 140 254 402 403
- Act 4 of 1910 s6 - 254
376 s7 - 254
442
Table of Statutes 443
1936 - Act 18 of 1936 1949 - Act 44 of 1949

402 s!9 - 386 387
- Act 26 of 1936 slObis - 387
S18 - 398 s21 - 384
1937 - Act 1 of 1937 s22 - 387
379 383 393 399 s25bis - 380 387
s4 - 392 394 s38 - 378
s5 - 394 398 . - Act 55 of 1949
s5bis - 398 105 123 346 381
si bis — 394 1950 - Act 16 of 1950
s8 - 394 216 256
- Act 21 of 1937 - Act 19 of 1950
245 249
1940 - Act 13 of 1940 - Act 30 of 1950
17 104 287 334
108 109
- Act 44 of 1950
1942 - Act 30 of 1942 192 254 256
245 s2 - 112
- Act 35 of 1942 s9 - 112
377 378 s!2B - 113
- Act 42 of 1942
418 1951 - Act 46 of 1951
144 145 147 260 261 265
1945 - Act 25 of 1945 S13 - 254
17 - Act 55 of 1951
slO - 104 si - 420
1946 - Act 28 of 1946 s2 - 420
254 274 - Act 68 of 1951
- Act 46 of 1946 391 403 406
191 246 255 s2 - 404
SS175-176 - 246 s4 — 404
1947 - Act 8 of 1947 s5 - 404
237 363 s6 - 404
- Act 71 of 1951
1948 - Act 4 of 1948 379
249
- Act 47 of 1948 1952 - Act 35 of 1952
254 274 146 261 262 263 264
- Act 55 of 1952
1949 - Act 15 of 1949 si - 221
249
- Act 21 of 1949 1953 - Act 3 of 1953
249 110-112
- Act 23 of 1949 1955 - Act 27 of 1955
s7 - 420 265
- Act 44 of 1949 - Act 34 of 1955
17 378 et seq 398 399
si - 378 s2 - 395
s2 - 378 s5 - 395
s3 - 379 389 - Act 53 of 1955
s4 - 379 147 242 252 253 265
s5 - 379 380 386 389 si - 244 245
s6 - 379 380 389 — Act 56 of 1955
slO - 381 382 389 387 393 113 408
sll - 381 382 s61A - 414 415
sllA - 383 384 393 1956 - Act 9 of 1956
S12 - 379 147 254 265
sl3 - 390 - Act 16 of 1956
s!4 - 390 112
sl5 - 385 - Act 17 of 1956
sl6 - 384 385 387 113
S17 - 385 387
444 Table of Statutes
1957 - Act 20 of 1957 1961 — Act 32 of 1961 (Continued)

24 322 s59 - 148 219 267 268 348
- Act 23 of 1957 349
sl6 - 105 346 s60 - 187 253
- Act 33 of 1957 s62 - 250
slO - 236 s63 - 187
S16 - 236 s64 - 241 250 301 304 359
sl7 - 236 s94 - 257
- Act 44 of 1957 s95 - 257
ss90-103 - 111 112 s98 - 259
S136 - 228 ssl02-106 - 238
- Act 56 of 1957 S108 - 80 148 219 243 267
s3 - 250 268 348 405
sill - 304
1958 - Act 7 of 1958 si 14 - 119 148 199 268 348
112 349 428 432
- Act 30 of 1958 si 15 - 234
254 si 18 - 80 148 219 243 267
1959 - Act 45 of 1949 268 348 350
105 - Act 61 of 1961
- Act 46 of 1959 111
242 254 404 - Act 64 of 1961
- Act 59 of 1959 s3 - 379
S10 - 257 - Act 79 of 1961
434
1960 - Act 34 of 1960 1962 - Act 64 of 1962
113 378
1961 - Act 32 of 1961 (Republican - Act 76 of 1962
Constitution) 113
17 23 147 175 178 180 218 219 1963 - Act 37 of 1963
257 278 282 283 289 293 297 113
298 300 301 304 305 308 319 — Act 49 of 1963
330 332 333 343 360 405 411 273
412 417 - Act 91 of 1963
s7 - 174 180 223 225 226 228 s2 - 353
284 308 359 s4 - 355
s8 - 224 278 295 297 ss6-9 - 354
s9 - 224 278 slO - 354
S10 - 224 225 296 297 298 ss 17-24 - 354
slOA - 225 233 s21 - 355
si 1 - 225 233 299 s26 - 355
S12 - 224 1965 - Act 83 of 1965
si3 - 25 224 292 294 320 357 245
S14 - 225 1966 - Act 36 of 1966
S15 - 225 17 104 123 348
S16 - 178 180 184 223 226 - Act 62 of 1966
227 241 284 309 359 113
sl7 - 181 223 233 1967 - Act 83 of 1967
sl9 - 227 113 254
s20 - 181 233 234 235 236 1968 - Act 31 of 1968
s20A - 314 274
s21 - 223 224 235 236 - Act 39 of 1968
s24 - 184 330 s37 - 421
s25 - 226 s38 - 305 422 423
s29 - 184 - Act 50 of 1968
s33 - 244 243 273
s35 - 332 - Act 51 of 1968
s46 - 224 246 105 123 191 289
s47 - 226 246 1969 - Act 25 of 1969
s48 - 332 421
s54 - 234 - Act 34 of 1969
s56 - 246 354
1970 Act 26 of 1970 1979 — Act 45 of 1979 (Continued)

s2 - 372 SS188-198 - 246
s3 - 391 392 - Act 107 of 1979
s4 - 392 17 105 388 415
s9 - 391 1980 - Act 70 of 1980
1971 Act 21 of 1971 234
17 305 391 405 et seq 412 415 - Act 74 of 1980
si - 408 243
s30 - 407 408 - Act 101 of 1980
Act 41 of 1971 314
407 s5 - 233 299
1972 S3 - 295
Act 59 of 1972
s6 - 225 299
379 385 398 399 s!3 - 243 276
si - 393
s34 - 238
S13 - 393 394
sl4 - 394 1981 - Act 110 of 1981
s43 - 383 17 105 388 416
s44A - 383 1982 - Act 71 of 1972
Act 64 of 1972 114
113 329 - Act 72 of 1972
114
1973 Act 79 of 1973 - Act 74 of 1982
245 254
Act 80 of 1973 s4 - 114
407 s5 - 114
1974 Act 31 of 1974 s6 - 114
113 s7 - 114
Act 42 of 1974 slO - 114 1983
113 sll - 114
1976 Act 3 of 1976 s!5 - 115
410 s!6 - 115
Act 100 of 1976 S17 - 115
17 105 388 410 $18 - 115 116
sl9 - 115 116
1977 Act 13 of 1977 $20 - 115 116
111 113 s21 - 115
Act 89 of 1977 s22 - 115
17 105 388 412 s23 - 115
Act 95 of 1977 s25 - 115
si - 422 s26 - 115
1978 Act 45 of 1978 $28 - 115 116 118
SS188-189 - 246 s29 - 115 116 118
Act 53 of 1978 $30 - 115 117 118
383 s31 - 115
Act 91 of 1978 s33 — H5
257 $34 - 115
s35 - 115
1979 Act 5 of 1979 $38 - 115 116
243 $41 - 116
Act 45 of 1979 s43 - H6
17 $44 — 116
ss3-4 - 255 334 $45 - 116
s9 - 334 $46 — 116
ss33-39 - 336 $47 - 116
s35 - 336 337 $48 - 116
SS36-40 - 336 338 $49 - 116
s41 - 338 $50 - 116
SS47-93 - 338 s52 - 116
SS129-154 - 337 338 s53 - 116
S143 - 338 $54 — 116 117
SS155-182 - 339
1982 - Act 74 of 1982 (continued) 1983 - Act 110 of 1983 (Continued)

s55 - 117 s38 - 184 305 310 352
s66 - 117 s39 - 178 182 306 307 312
s69 - 117 316 319 321 342 352
- Act 74 of 1983 358
389 s41 - 295 307 310 331 352
- Act 110 of 1983 (Republican s42 - 295 307 310 331 352
Constitution) s43 - 295 307 310 331 352
17 80 81 104 109 152 170 174 s45 - 332
s46 - 307
175 178 179 180 183 186 239 s47 - 310 332 337
248 273 et seq 280 282 283 287 s48 - 307 310 335
289 291 293 298 301 305 307 s49 - 331 335
308 322 343 349 371 373 s50 - 336
s6 - 21 23 106 174 293 308 s52 - 334 352
309 310 311 s53 - 334 352
s7 - 288 294 295 296 297 s54 - 295 297 335 352 365
299 300 321 326 351 s55 - 335
s8 - 288 294 295 296 300 s56 - 295
351 s57 - 295 335
s9 - 295 296 297 298 319 s58 - 332 333
321 351 359 s59 - 333 334
S10 - 299 300 s60 - 333
sll - 296 s61 - 334
S14 - 285 286 315 351 s64 - 299 340 345 352
S15 -- 286 351 s65 - 307
S16 -- 286 302 303 310 315 s66 - 307 312 316
316 351 357 358 s67 - 307 310 333
s68 - 356
S17 -- 303 310 317 320 351 s69 - 356
357 368 s70 - 310 317 352 364 365
sl8 -- 286 321 357 358 366 367
sl9 -- 180 182 293 303 304 s71 - 352 364 365 366 367
306 309 310 312 314 s72 - 367
315 316 318 319 323 s74 - 367
324 326 328 331 335 s75 - 367
351 358 364 s76 - 367 369
s20 -- 180 312 315 324 351 s77 - 352 365 367
s21 -- 178 180 311 312 313 s78 - 317 318 343 344 352
314 315 326 351 358 367 368 370 371
359 s80 - 293
s22 - 319 s83 - 180
s23 - 319 351 s86 - 308
s24 - 178 180 288 312 313 s88 - 284 298 309 326 359 360
314 324 325 326 s89 - 334 350
s25 - 312 313 325 328 s93 - 304
s98 - 286 311 312 315 316 429
s26 - 312 314 315 316 328 s99 - 283 303 304 344 350
429 351 352
s27 - 312 314 327 328 S100 - 287
s28 - 311 S101 - 274
s30 - 133 288 301 330 351 S102 - 293 311 340
s31 - 185 302 304 310 320
339 340 351 1984 - Act 4 of 1984
s32 - 304 317 318 343 344 434
351 352 368 369 370 - Act 43 of 1984
s33 - 178 304 312 316 327 383
347 348 352 358 370 - Act 105 of 1984
s34 - 321 347 348 352 359 s3 - 313
s4 - 315
360 361
s37 - 182 300 301 304 309 1985 - Act 72 of 1985
330 334 352 s7 - 105 381
1985 - Act 99 of 1985 Cape (Colony)

345
- Act 104 of 1985 1834 - Constitution
59
105 191
- Act 109 of 1985 1853 - Constitution
s2 - 433 60
s3 - 433 1883 - Powers and Privileges of
s4 - 433 Parliament Act
s7 - 434 61
s9 - 433
sll - 433 434 Ciskei
1986 - Act 53 of 1986 1981 - Constitution
s2 - 392 130 281 416 et seq
- Act 69 of 1986 s2 - 416
428 et seq s3 - 417
si - 430 sl9 - 417
s5 - 429 s26 - 417
s7 - 430 s27 - 417
s8 - 430 s29 - 417
s9 - 430 s32 - 417
S10 - 430 s34 - 417
sll - 430 s46 - 418
S13 - 430 s50 - 418
sl4 - 430 431 s54 - 257
sl5 - 430 431 s67 - 418
S16 - 431 s84 - 418
S17 - 431
s21 - 429 Natal (Colony)
- Act 72 of 1986
287 1856 - Carter
- Act 73 of 1986 63
105 1893 - Constitution
s2 - 388 389 63-64
s3 - 388 — Act 11 of 1865
s4 - 388 389 254
s5 - 389
s6 - 389 Orange Free State (Republic)
- Act 80 of 1986 Constitution
432 64 254
- Act 84 of 1986
104 Transkei
FOREIGN LEGISLATION 1963 - Constitution
391 405 407
African Statutes 1976 - Constitution
Bophuthatswana 281 411 et seq
s2 - 411
1977 - Constitution s25 - 411
18 126-127 281 412 et seq s39 - 411
s7 - 412 414 $40 - 411
ss8-18 - 412 s53 - 412
sl2 - 414 s54 - 257
sl8 - 414 s63 - 411
s91 - 257 281 s66 - 411
s93 _ 414
1978 - Act 11 of 1978
1980 - Act 33 of 1980
412
414
Transvaal (Republic) 1869 - Colonial Prisoners Removal

Act
Grondwet
200
57 et seq
1870 - Extradition Act
Venda 200
1979 - Constitution 1870 - Foreign Enlistment Act
281 415 et seq 200
sl9 - 415 1870 - Naturalisation Act
s25 - 416 375
s39 - 416 1873 - Extradition Act
s51 - 257 281 200
1876 - Appellate Jurisdiction Act
262
OTHER STATUTES
1886 - International Copyright Act
Britain 200
1894 - Colonial Prisoners removal
1215 - Magna Carta Act
18 31 38 84 101 200
1628 - Petition of Right 1890 - Colonial Courts of Admiralty
18 36 38 42 106 Act
1641 - Triennial Act 200
39 1894 - Merchant Shipping Act
1641 - Act for the Regulating of the 200
Privy Council and for 1895 - Colonial Boundaries Act
Taking Away the Court 200
Commonly Called the 1900 - Commonwealth of Australia
Star Chamber Constitution Act
39 59
1650 - Dependency Act 1911 - Geneva Convention Act
53 200
1666 - Navigation Act 1911 - Official Secrets Act
53 200
1689 - Bill of Rights 1911 - Parliament Act
18 41 46 50 51 187
art 9 - 267
1914 - Bankruptcy Act
1707 - Act of Settlement 200
18 42 45 77 172 257
1914 - British Nationality and Status
1707 - Act of Union with Scotland of Aliens Act
43 376
1716 - Septennial Act 1920 - Indemnity Act
46 200
1774 - Quebec Act 1920 - Official Secrets Act
55 200
1811 - Fugitive Offenders Act 1923 - Public Safety (Emergency
200 Powers) Act
139
1832 - Reform Act
42 47 50 51 77 164 189 1925 - Trustee Act
200
1865 - Colonial Laws Validity Act
18 57 et seq 141 144 et seq 199 1931 - Statute of Westminster
200 206 207 208 et seq 211 18 140 et seq 144 150-153 186
210 et seq 221 259
1867 - British North America Act s2 - 153 209 262
57 59 63 s3 - 153
1867 - Reform Act s4 - 153
49 50 51 77 s8 - 214
1948 - British Nationality Act Federal Republic of Germany

s6 - 376 Grundgesetz
1949 - Parliament Act 126 129 203 413
s23 - 414
51 253 s25 - 417
1962 - Commonwealth Immigrants
France
Act Constitution
S12 - 376 130
1965 - Race Relations Act India
122 Constitution
1966 - Race Relations Act 121
122 New Zealand
1971 - Immigration Act Constitution
376 130
1972 - European Communities Act Republic of Ireland
153 154 Constitution
141 169
Australia Union of Soviet Socialist Republics
1900 - Constitution Constitution
59 13 121
United States of America
Canada Constitution
1867 - Constitution 13 31 56 65 66 72 125 129 135
57 59 63 159 280 281
Index
A Page
Act of Parliament
what constitutes (1983 Constitution) ...................................................................... 291
Act of Settlement........................................................................................ 18 42 45 77 172
Act of Union ...................................................................................................................... 43
Acting State President (1983) .................................................................................. 299-301
actio popularis ........................................................................................................... 102-103
acts of attainder (also see bills of attainder) ............................................................... 261
acts of state ......................................................................................... 172-173 220 229-230
and revocation of passport ...................................................................................... 270
administration .................................................................................................................... 6-7
and government ............................................................................................................ 7
administration of justice
as a prerogative power ............................................................................................. 172
administrative law ............................................................................................................ 160
and constitutional law............................................................................................... 7-8
relationship between judiciary and executive....................................................... 269
rules applicable to local government...................................................................... 433
administrative state..................... ................................................................................ 85 160
Administrator
after 1986 ........................................................................................................ 430 et seq
appointment ............................................................................................................... 430
before 1986 ................................................................................................................ 427
executive powers......................................................................................................... 430
legislative powers ............................................................................................... 431-432
proclamations approved by Committee of Parliament....................................... 431
proclamations subordinate legislation .................................................................... 431
Administrator-General SWA ........................................................................ 117 422 et seq
adopted children
citizenship of ...................................................................................................... 380 389
affirmative action ...................................................................................................... 121-122
African National Congress ........................................................................................ 191 192
aliens
deportation of............................................................................................................. 398
law applicable to.......................................................................................................... 23
powers of Minister of Home Affairs ..................................................................... 394
allegiance
and citizenship ........................................................................................................... 375
and feudal system ....................................................................................................... 30
and prerogatives.................................................................................................... 23 172
to state ............................................................................................................................ 6
allegiance relationship................................................................... 23 27 et seq 54 305 375
allochthonous constitutions (also see autochthonous constitutions) ..................... 10-11
South Africa Act........................................................................................................ 281
American War of Independence ........................................................................... 46 54 281
Anglo-Boer War........................................................................................ 50 68 72 197 377
Anglo-Saxon period ................................................................................................. 29 et seq
representation in ......................................................................................................... 163
antenati (also see postnati) .............................................................................................. 375
area of power................................................................................................................ 81 154
Aristotle....................................................................................................................... 134 156
armed conflict ............................................................................................................. 107 111
Asiatics (also see Indians) ......................................................................................... 272-274
constitutional position under 1961 Constitution ................................................... 287
in Natal ......................................................................................................................... 64
in OFS ........................................................................................................................... 65
State President’s powers (1961) ............................................................................... 231
450
_________________ _____________________________________ Index 451
assembly, freedom of - see freedom of assembly P°8e

Assembly, House of - see House of Assembly
assent to legislation ................................................................................... lg4
by Governor-General ....................................... 240
assignment of functions/powers
in provincial sphere ........................................................................................ 429 430
under 1961 Constitution........ ........................................................... 236
association, freedom of — see freedom of association
Attorney-General .................................................................................................... 116 117
in Bophuthatswana ..........................................................................’...... "....... 127
audi alteram partem ................................................................................ *’’*** 160 414 426
Auditor-General
and ombudsman .................................................................................................... 132
control function ........ . .................... ..................................................................... 236
Au«tralia .................. ......................................................................... 59 60 78 197 200 205
autochthonous constitutions (also see allochthonous constitutions)................... 10-11
Constitution Act of 1961 .................................................................................... 291
Constitution Act of 1983 .............................................................................. 280-282
Constitution of the USA ............................................................................. 280-281
Constitutions of the TBVC states as................................................................ 281
B
bail, refusal of under Internal Security Act............................................................. 117
under Bophuthatswanan Constitution............................................................... 127
banning orders ............ . .................................................................................... 112 et seq
basic rights (also see fundamental rights, rights)...................................................... 84
in Germany ..................................................................................................... 97 126
Belgium
protection of minority rights............................................................................. 121
bicameral parliament ......... . ........................... . ........................................................... 75
Bill of Rights (1689) ............................................................................... 18 41-42 77 171
bills of attainder (also see acts of attainder).......... .............. ............................ 34 261
bills .................. .......... ............................................ . .............. ............................ 248 et seq
hybrid ............................................................................................................. 249-250
private .................. ............................................................. ............. ............. 249-250
procedure (1961)....................................................................................... 249 et seq
procedure (1983) ....................................................................................... 339 et seq
public ............................ ........................................................................................ 249
bills of rights (also see declarations of fundamental rights)
and parliamentary sovereignty..... .................................................................... 130
and South Africa ............ .............................. ..................................................... 130
Bophuthatswana.................................................................................................. 126
Britain ....................... .................................................................................... 127 130
constitutionally entrenched .......... ........ ................................................ 125 et seq
derogation clauses in ........................... .............................................. ........ 128-129
Federal Republic of Germany.......................................................................... 126
in 1982 proposals ............................................................................................... 279
unentrenched ........ . ..................... ........................................................... 129 et seq
United States of America ............. .......... . ........ ......... ............................. ....... 125
black affairs
State President’s powers (1961)................... ........... . ......... ....................... 231-232
State President’s powers (1983)......... ............. ................................. • 304-305 402
black authorities
regional ............. .................................................................................................
territorial ............... ........................ . ......... ........... ............................................. 404
tribal ............... ............. ............. .........................................................................
Black Sash .................................................................................................................. 192
Blacks
and South African citizenship........................................................ 372 390 et seq
black affairs a general affair......... ................................................................. 305
452 Index
Page
Blacks (continued)
constitutional development ........................................................................... 402 et seq
constitutional position prior to 1977 ...................................................................... 273
excluded from Cabinet ............................................................................................. 325
excluded from President’s Council ......................................................................... 365
franchise ...................................................................................................................... 254
in President’s Council’s proposals........................................................................... 277
members of provincial executive ............................................................................. 430
members of Regional Services Councils ................................................................ 433
State President’s powers in respect of.................................................... 304-305 402
Blackstone.............................................................................................................. 54 138 171
Bloemfontein Convention ............................................................................................. 62 64
board of review (also see detainees)
under Internal Security Act ............................................................................... 115-116
Bodin ............................................................................................................ 36 54 136 et seq
Boer Republics (also see Trekker Republics) ................................................................ 135
and citizenship ............................................................................. 377 379 382 385 386
bona fides
presumed in parliamentary process
bona vacantia....................................................................................................................... 23
Bonner Grundgesetz........................................................................................................... 126
Bophuthatswana ............................................................................................. 105 412 et seq
autochthonous Constitution or not? ....................................................................... 413
Constitution ..................................................................................................... 412 er seq
constitutional interpretation .............................................................................. 413-415
Declaration of Rights .......................................................................... 126-127 216 412
departure from Westminster System ....................................................................... 412
executive ...................................................................................................................... 413
judiciary ...................................................................................................................... 413
loss of South African citizenship ............................................................................. 387
National Assembly...................................................................................................... 413
Ombudsman ................................................................................................. 131 237 415
South African Appellate Division as final court of appeal ............................... 257
Boston Tea Party ................................................................................................................. 54
Botha, Louis ......................................................................................................................... 72
Botha, PW
Minister of Defence ................................................................................................... 274
Prime Minister ............................................................................................................ 278
Britain
Bill of Rights (1689) ............................................................................ 18 41-42 77 141
bills of rights ....................................................................................................... 127 130
Constitution ................................................................................................................... 74
Empire - see British Empire
Parliament - see British Parliament
Petition of Right ................................................................................................... 38 106
protection of minority rights ............................................................................. 121-122
race relations legislation ............................................................................................. 122
rule of law in .................................................................................................... 86 et seq
British Commonwealth — see Commonwealth
British Constitution ...................................................................................................... 74 281
British Empire
history.................................................................................. 52 et seq 109 203 204 205
relations with dominions ........................................................................................... 203
British North America Act ........................................................................................... 57 59
British Parliament
and American colonies ................................................................................................. 53
and Commonwealth ................................................................................................... 186
and dominions ................................................................................................ 206 et seq
and Union Parliament .................................................................... 144 et seq 201-207
legislative powers of................................................................................................... 209
British subjecthood ............................................................................................................. 376
Bundesverfassungsgericht .................................................................................................. 126
Index 453
Page
Cabal ....................................................................................................................................
Cabinet (also see executive, government, ministers, Ministers’ Councils)
and concept of grand coalition .................................................................... 291-292
and prerogatives ..................................................................................... ......... 397
appointment (1961) .......................................... 266
appointment (1983) .................................................. 312 324-326
Blacks excluded ...................................................................................................... 325
collective responsibility ............................................................................ 46 183 327
committees ....................................................................................................... 328-329
composition (1983) ............................................................................... .......7....... 324
conventional obligation to appoint ..................................................................... 324
early development ........................................................................................ 45 et seq
executive authority in general affairs ................................................................. 323
individual responsibility ................................................................................ 183-184
members responsible to Parliament as a whole......................................... 326 327
origin of term ......................................................................................................... 44
responsibility under Westminster System........................................................ 75-76
role in administration of black affairs.............................................................. 305
role in determination of own affairs ..-.............................................................. 303
solidarity ................................................................................................................ 325
under 1961 Constitution ................................................................... 222 233 et seq
vis-a-vis State President (1961) ............................................................... 227 et seq
vis-a-vis State President (1983 Constitution).......................................... 307 et seq
Cabinet Council .............................................................................................................. 44
cabinet government
development of........................................................................................... 43 et seq
Calvin’s Case ................................................................................................................ 375
Canada ................................................... 53 54 55 56 58 60 78 197 200 202 203 204 205
and Lord Durham ............................................................................................... 158
as federation .......................................................................................................... 13
competence of Parliament................................................................................. 141
Cape Colony ............................................................................................................. 58-59
Case of Proclamations................................................................................................ 270
centralization ................................................................................................................. 79
Chairman of Committees
House of Assembly ..................................................................................... 247 251
Chairmen of Houses
“ethnic Speakers” .............................................................................................. 333
function in legislative process............................................................................ 340
role in determination of own affairs......................................................... 303 357
Chairmen of Ministers’ Councils
appointment.................................................................................................. 312 327
“ethnic Prime Ministers” .......................................................................... 312 313
replacement ......................................................................................................... 313
Chamberlain, Neville .............................................................••••••.............................
Charter of the United Nations — see United Nations Organization
checks and balances..................................................................................................... 79
and separation of powers ................................................................................. 137
in Westminster System...................................................................................... 137
Chief Justice
and election of State President........................................................................ 294
role under Internal Security Act...................................................................... 114
Chinese
constitutional position under 1983 Constitution............................................. 287
in President’s Council ...................................................................................... 275
Christian justice.................................................................................................... . 9Z
Churchill, Sir Winston ............................................................................ 206
Ciskei ........................................................................................................ 1°5 416 « seq
characteristics of Constitution......................................................................... 416
citizenship .......................................................................................................... ^18
454 Index
Page
Ciskei (continued)
confederation of states ..............................................................................................416
Constitution ................................................................................................................ 130
Declaration of Fundamental Rights ............................................................. 416 et seq
executive ...................................................................................................................... 417
judiciary ...................................................................................................................... 418
loss of South African citizenship ............................................................................ 389
National Assembly .............................................................................................. 417-418
public international law ............................................................................................ 417
President...................................................................................................................... 417
South African Appellate Division as final court of appeal ............................... 257
Vice President............................................................................................................. 417
citizenship (also see nationality, aliens) .............................................................. 372 et seq
acquisition of................................................................................................... 378 et seq
acquisition of foreign citizenship ............................................................................. 385
adopted children......................................................................................................... 397
and allegiance ............................................................................................................. 375
and British subjecthood...................................................................................... 376-377
and nationality ..................................................................................................... 372-373
and TBVC states.................................................................................................. 387-389
and the Commonwealth ..................................................................................... 376-377
automatic forfeiture ................................................................................................... 385
automatic naturalization..................................................................................... 383-384
Blacks........................................................................................................ 372 390 et seq
by birth................................................................................................................. 377-379
by descent ............................................................................................................ 379-381
by naturalization...................................................................................... 381 et seq 386
Coloureds .................................................................................................................... 373
deprivation ........................................................................................................... 386-387
diplomatic personnel .................................................................................................. 378
enemy subjects ............................................................................................................ 379
historical development .................................................................................... 374 et seq
Indians ......................................................................................................................... 373
lapse of passport......................................................................................................... 386
legal basis .................................................................................................................... 374
loss of....................................................................................................... 105 384 et seq
married women ........................................................................................................... 390
naturalization by application ............................................................................. 381-382
naturalization of non-Whites ............................................................................. 392-393
prohibited immigrants......................................................................................... 379 385
renunciation .......................................................................................................... 384-385
residence abroad.......................................................................................................... 385
responsibilities and privileges .................................................................................... 384
resumption of.................................................................................................. 387 et seq
service in foreign defence force ................................................................................ 385
South West Africa................................. .................................................................... 377
transfer of sovereignty................................................................................................ 387
Union nationality ........................................................................................................ 377
civil rights (also see fundamental rights, rights)................................................... 83 et seq
Civil War (Britain) ............................................................................................................... 40
Charles I ...................................................................................................................... 38-40 53
coalition government............ ,................................................................. 80 223 313-314
Coke, Lord Edward................................................................. 37 38 138 220 259 267 375
collective responsibility (also see Cabinet)................................................. 46 183 235 326
Colonial Laws Validity Act................ 18 57 et seq 144 et seq 200 206 207 208 et seq
Coloured Persons Representative Council ............................................................... 273-274
Coloureds
as group .................................... ........................ 119 et seq
definition in 1983 Constitution .................................... 287
franchise rights......................... 141 et seq 254 260 et seq
Index 455
Coloureds (continued)
in South African constitutional law after 1983 273-274
members of Regional Services Councils 433
commission 81
as control measure 237
not judicial bodies 258 363
President’s Council as 363
committee of Parliament (also see parliamentary committees)
removal of State President (1961) 298
removal of State President (1983) 299
committee stage of bill
1961 Constitution 251
1983 Constitution (own affairs)
(general affairs) 342
common law
as source 18 et seq
constitutional privileges in 19
English 18
prerogatives 171
Roman-Dutch 18
Commons, House of — see House of Commons
Commonwealth ^1
after Second World War ^6
and citizenship .................................................................
and conventions 17^
as confederation J?
South Africa’s departure from “17
terminology .
Communism ................................................................................................ et se<7
Communist Party
in South Africa ........... 192
community law ... 33 48 54
and peace ............. 28
and taxation ............. 28
community relationship ............. 28
competences ,. 83 et seq
concentration of powers ............ 79
concilium regis ............ 43
13
confederalism .....................................................................
............ 13
confederations
13
and federations ........................................................... 207 et seq
Conference of Experts 1929 ............... :k‘A',"^”^7;7ńłińń .. 343-344
conflict among Houses of Parliament 1983 on . ’
conflict between Houses of Parliament 1961 .. 252-253
277
consensus politics ............................................................. ........ 288
State President’s role
consent
as element of representative government 164
in BritainParty
Conservative (also see Tories) 45
consociational democracy .................................................................................... 14-16
in President’s Council’s proposals 277
consociative principles
in SWA’s draft Constitution 421 424
Constitution 7 130
amendment of (1983) 349-383
and consociational democracy........................................................................... 14
and “grondwet” ........................................................................ 8
as a consequence of constitutionalism 9
as a dialectical process 9
as embodiment of the system of government....................................................... 9
456 Index
Page
Constitution {continued)
as expression of the will of the people....................................................................... 8
British .............................................................................................................................. 8
classifications of ...................................................................................................... 10-11
definitions of....................................................................................................... 8 et seq
evolutionary development of...................................................................................... 80
flexible........................................................................................................................... 77
in terms of constitutional reality.................................................................................. 9
constitutional crisis
in South Africa............................................................................................... 260 et seq
in Transvaal Republic .................................................................................................. 71
constitutional guarantees
in South Africa Act ................................................................................................... 263
constitutional law
and administrative law ............................................................................................... 7-8
and political science ....................................................................................................... 8
definition....................................................................................................................... 7-8
constitutional modal juridical principles .......................................................................... 95
constitutional monarchy....................................................................................... 74 121 223
1961 Constitution as .................................................................................................. 282
constitutional proposals
1977 .............................................................................................................................. 275
1982 ................................................................................................................... 278 et seq
constitutional rights ........................................................................................................... 165
constitutionalism ............................................................. ..................................................... 83
consultation
meaning of................................................................................................................... 323
State President and Cabinet...................................................................................... 323
with National States ............................................................................................ 408-409
contempt of court............................................................................................................... 258
“Convention” Parliament.................................................................................................... 41
conventions ....................................................... . ........................... 20 25 56 173 175 et seq
adaptation of in 1983 Constitution ................................................................... 311-312
and Cabinet (1983) ..................................................................................................... 325
and commonwealth ............................................................................................. 178 181
and element of consent ............................................................................................... 175
and exercise of prerogative........................................................................................ 180
and Houses of Parliament ......................................................................................... 187
and law.................................................................................................................. 175-177
and Minister’s Councils ............................................................................................. 326
and parliamentary procedure .................................................................................... 186
and party system ......................................................................................................... 178
and prerogatives .......................................................................................................... 178
appointment of ministers ........................................................................................... 180
appointment of Prime Minister ................................................................................ 180
as feature of Westminster System ........................................................................ 76 82
assent to legislation..................................................................................................... 304
definition ...................................................................................................................... 175
enacted .................................................................................................................. 178 241
enacted, in 1983 Constitution.................................................................................... 311
establishment of........................................................................................................... 179
government’s duty to resign in the event of motion of no confidence........... 181
head of state acts on advice of ministers ................................................................ 181
holding of referendum ................................................................................................ 179
in South African law................................................................................................... 179
justiciability (1983) ..................................................................................................... 358
mandate from electorate ............................................................................................ 185
ministers must be Members of Parliament............................................................. 181
purpose of .................................................................................................................... 177
recognition in 1983 Constitution ....................................................................... 283-284
Index 457
conventions (continued) Page

reserve power ...
scope and operation of.................................................. *' ......................... 178
State President’s powers under 1983 Constitution..... .................. 177-178
under 1961 Constitution ................................................... ........................ 181
corporation sole............................................................................. ............. 226 et seq
courts (also see judiciary) .................... 5 220
and State President’s proclamations ................................
characteristics of................................................................... ....................... 303
constitutional guarantees ..................................................... ................ 263-265
-................... 145
power to declare legislation of National States invalid ..
power to review security legislation.................................. ...................... 406
power to test legislation ...................................................... .......... 112 et seq
79 110 259 et seq
power to test subordinate legislation................................ ...... 268 305 403
powers in respect of Administrators’ proclamations...... .................... 431
role during emergency..........................................................
.............. 110-111
role during martial law ........................................................
Covenant of the League of Nations — see League of Nations ............. 108-110
crimen laesae majestatis................................................................
......... 25 66 357
crimen laesae venerationis ............................................................
Cromwell, Oliver ............................................................................ ................... 357
curia regis.......................................................................................... . ............... 39-40
........ 31 43 173
President’s Council compared with ..................................... ................... 238
custom as source of constitutional law...................................... .................... 25
SSiS‘urra............................................ 334 369-™

and devolution ........................................................................................... 400 et seq
bureaucratic .......................................................................................... 400
political ...... . ........ e...................... ............................................... 400
Declaration of Independence, American colonies...................................................... 54
Declaration of Right (1689)......................................................................................... 41
eclarations of fundamental rights (also see bills of rights)
Bophuthatswana.......................................................................... 126-127 412 et seq
n ,Clskei........................................................................................................... 416e/^
Declaratory Act ............................................................................................................. 54
deconcentration
and devolution ............................................................................................. 400-401
local authorities................................................................................................... 432
Defence Force (also see martial law)................................................................. 111-112
State President as Commander-in-Chief of..................................................... 228
delictual liability of state....................................................................................... 22 24
delimitation .......................................................................................................... 335-336
commission appointed by State President................................................ 307 335
factors to be considered.................................................................................... 335
quotas ................................................................................................................... 335
democracy ................................................................................................................ 83 88
and conventions ................................................................................................. 178
and freedom of association .............................................................................. 122
and Parliament ..................................................................................................... 12
and rule of law..................................................................................................... 12
and separation of powers ................................................................................... 12
and Westminster System..................................................................................... 76
definition............................................................................................................... 12
parliamentary ....................................................................................................... 90
De Montfort, Simon ........................................................................................... 32 163
departure from the Republic.................................................................................... 395
458 Index
Page
Dependency Act (1650) ............. ................. ............................................ 53
deportation of aliens (also see aliens) ...... .......................................... 398
deputy ministers
under 1961 Constitution...................... ........................................... 235
appointment under 1983 Constitution ................................... 313 328
derogation clauses
in bills of rights.................................... ............................... 128 et seq
detainees
inspectors (also see board of review) . ................................... 115-116
role of ombudsman............................. ........................................... 132
detention without trial ................................ ............................... 112 et seq
devolution of powers................................... 12 80 82 153 273 400 et seq
and deconcentration ............................ ................................... 400-401
executive ................................................. . ......................................... 401
legislative ............................................... . ......................................... 401
Dicey, AV...................................................... ........................... 77 83 88 90
on prerogatives and conventions ....... ................................... 175-178
on rule of law...................................... ................................. 85 et seq
on sovereignty of Parliament ............. . ......................................... 133
ding ................................................................ . ......................................... 134
disallowance of legislation .......................... . ............... 58 200 207 et seq
dispensation, power of King ....................... . ............................ 40 143 172
Disraeli, Sir Benjamin................................. .................................. 47 48-50
doctrine of repugnancy................................ .................................... 57 144
dominions
legal position of............................................................................................... 204 et seq
dooms ............................................................................................................................... 27 30
draft constitutions
1979 ................................................................................................................... 275 et seq
1982 ................................................................................................................... 278 et seq
droit administratif................................................................................................................. 85
due process ....................................................................................................... 31 94 414 415
Duncan, Sir Patrick ............................................................................................... 48 182 215
Durham, Lord................................................................................................................ 55 158
report .................................................................................................................. 55 et seq
D’Urban, Sir Benjamin ........................................................................................................ 59
Dutch East India Company.................................................................................................. 59
Dutch language...................................................................................................................... 61
election of King .................................................... ................................................................ 30

elections..................................................................................................................... 253 et seq
calling of.......................... .............................................................................................. 48
campaigns ..................................................................................................................... 337
conduct of............................................................................................................. 337-339
“free and fair” ............................................................................................................. 165
in early times................................................................................................................ 164
nominations ........................................................................................................... 337-338
offences ......................................................................................................................... 337
petitions......................................................................................................................... 339
polling ...................................... ..................................................................................... 338
under Westminster System ...................................................................................... 78-79
electoral college
removal of State President (1983) ............................................................................. 299
under 1961 Constitution.............................................................................................. 224
under 1983 Constitution.............................................................................................. 294
electoral process (also see elections).......................................... . .................. 336 et seq
Elizabeth I .................................................................................................................... 164
1
I
Index 459
Elizabeth II Page
emergency 48
state of no et seq
State President s powers o-m
English law ..........................................................
common law as source .....................................................................
powers derived from .......................................................................... 58
entrenched provisions 228-229
1983 Constitution ............................................................................... .... 259 et seq
in South Africa Act .... 349 et seq
140 et seq 198
in Westminster System ......................................................................
entry into the Republic ............................................................................. ............ 78 80
.... 393 et seq
equality before the law...............................................................................
ethnicity ................. 85
basis of 1983 Constitution 287
European Convention of Human Rights 82 120 126 128
influence on Bophuthatswanan Constitution ................................. 412
European Economic Community............................................................. .... 80 153-154
as confederation .................................................................................. 13
evolutionary constitutional law
feature of 1983 Constitution 282
feature of Westminster system ........................ . 77
executive (also see Cabinet, government, ministers, Ministers’ Council)
1910-1983 220 et seq
1983- ........................................................................................................ 323 et seq
Executive Council (also see Cabinet)
under 1961 Constitution 233 et seq
under Union ........................................................................................... ......... 222
exit permits .. 395-396
expropriation
power of 24
extra-territorial legislation .............................................. 57 58 201 208
failsafe provisions (also see deadlock procedures)

original proposals 279
Falklands War 107 215
Federal Republic of Germany (also see Germany)
Grundrechtskatalog 126
federalism
characteristics in 1983 Constitution 285
federation 13
and confederation 13
Canada as 13 124
Czechoslovakia 124
definition 13
Federal Republic of Germany as 13
in public international law............................................................................
Switzerland as I3 124
United States of America as 13
USSR as 13
Yugoslavia as l2^
feudal system 2° et seQ
and representation ............................................................................................ 1°3
and the allegiance principle 30
first reading of bill
1961 Constitution 250-251
1983 Constitution 340
460 Index
Page
First World War........................................................................................... 107 120 203-204
flexible constitutions
1983 Constitution ....................................................................................................... 283
Westminster System ...................................................................................................... 77
folk-moot................................................................................................................ 27 134 163
foreign relations
prerogative relating to (also see act of state) ......................................................... 172
France
Constitution ................................................................................................................ 130
separation of powers .................................................................................................. 156
franchise................................................................................................................... 253 et seq
Coloureds .................................................................................................................... 141
in Cape Colony ............................................................................................................. 60
in Natal .......................................................................................................................... 63
in Orange Free State..................................................................................................... 64
in Transvaal ................................................................................................................... 68
in Westminster System ................................................................................................. 81
non-White, under Union......................................................................... 140 et seq 206
qualifications ........................................................................................................ 254-255
registration ................................................................................................................... 255
under 1983 Constitution ...................................................................................... 334-335
universal, as feature of Westminster System ........................................................... 78
universal, re legitimacy ............................................................................................... 165
free mandate theory of representation ............................................................................ 167
freedom of assembly
and representative government........................................................................... 164 165
as fundamental right................................................................................................... 117
freedom of association.................................................................................................... 84 94
and registration of political parties .......................................................................... 334
and representative government .................................................................................. 165
freedom of movement ........................................................................................................ 396
freedom of speech
and representative government .................................................................................. 165
in Cape Parliament ....................................................................................................... 60
in South African Parliament.................................................................... 35 353 et seq
freedoms ..................................................................................................................... 83 et seq
curtailment under security legislation ........................................................... 114 et seq
political ......................................................................................................................... 192
fundamental juridical principles .......................................................................................... 95
fundamental rights (also see rights)......................................................................... 83 et seq
G
gekoren recht ......................................................................................................................... 28
general affairs (also see own/general affairs)
definition ....................................................................................................................... 286
Germany (also see Federal Republic of Germany) ........................................................ 203
Bundesverfassingsgericht ............................................................................................. 126
constitutional approach ................................................................................... 77 99 127
constitutional court .............................................................................................. 126 128
derogation clause.......................................................................................................... 129
Grundgesetz ........................................................................................................... 126 417
Grundrechtskatalog ...................................................................................................... 126
protection of individual rights ................................................................................... 126
Gladstone, WE.................................................................................................................. 47 49
Glorious Revolution.................................................................................................. 41 85 171
as grundnorm .................................................................................................................. 41
government (also see administration, Cabinet, ministers, executive)
and state............................................................................................................................ 5
definition......................................................................................................................... 5-6
Index 461
. ru^c
government (continued)
legal personality 6
resignation in event of motion of no confidence 182
Westminster System of 74 et seq
Governor-General
and South-West Africa 420
appointment of 186 201
appointment of ministers 222
as representative of King 240
assent to legislation 184 201
executive role under Union 221-222
power to dissolve Parliament 182 215
power to sign documents 214
subordination to British executive 200
grand coalition
and consociational democracy 277
as a feature of the 1983 Constitution 291-292
Greece, ancient
concept of sovereignty
“grondwet”
and “constitution”
of Natal ......................................................................................................................
of OFS
of Transvaal .............................................................................................................
Grotius, Hugo
on authority of state
group rights (also see minority rights)
.......................................................................
development •••••••••••••••••••••••••••••••••••••••••••••**********• yg
in Westminster System 123-124
practical implications ................................................................................. j’2i et seq
protection .................................................................................................... 222
theoretical basis
Grundnorm
in Britain
South Africa Act as 1
1983 Constitution as
“guillotine” rule
parliamentary procedure
habeas corpus 21
101 et seq
application in South Africa ..
........................................................................... 110
in state of emergency ....................................................... 36 232 301 402
Henry VIII clause ................................................ 48 182 185 214-215
Hertzog, JBM
heterotochthonous constitutions - see allochthonous constitutions
High Court of Parliament 146 259 et seq
in Britain 146 et seq 262 et seq
in South Africa ............. 36 135 137
Hobbes, Thomas 149 402 et seq
homelands (also see National States)
House of Assembly .................. 245-246
composition 1910-1983 ......................... 331
composition 1983- 187
conflict with Senate .................. 81
in Westminster System .............. ........................ 245
nominated members ...................
462 Index
Page
House of Assembly (continued)
officers and office-bearers ................................................................................. 246-247
powers and privileges ................................................................................................. 248
powers of State President under 1961 Constitution ............................................ 226
procedure..................................................................................................................... 248
qualifications ............................................................................................................... 246
representatives from South-West Africa ................................................................. 420
role in election of State President (1983) ................................................................ 294
role in removal of State President (1961) .............................................................. 298
term .............................................................................................................................. 246
vis-a-vis other Houses in 1983 Constitution.................................................... 289-290
House of Commons ............................................................................................................ 33
conflict with House of Lords .................................................................... 40 50 et seq
no judicial function .............................................................................................. 34 147
original meaning ........................................................................................................... 32
part of 1295 Parliament .............................................................................................. 32
separate sittings ............................................................................................................. 33
House of Delegates ............................................................................................................. 290
appointment of Chairman of Ministers’ Council .......................................... 312-314
composition .................................................................................................................. 331
vis-a-vis the other Houses ......................................................................................... 290
House of Lords
as court.................................................................................................... 34 158 259 261
as final court of appeal ...................................................................... 256 259 261-262
conflict with Commons.............................................................................................. 187
possible abolition of.................................................................................... 149 152 153
separate sittings from House of Commons.............................................................. 33
“swamping” .................................................................................................................. 50
House of Representatives ................................................................................................... 290
appointment of Chairman of Ministers’ Council .......................................... 312-314
composition .................................................................................................................. 331
vis-a-vis the other Houses ......................................................................................... 290
Houses of Parliament (also see Parliament) .................................................................... 75
and conventions .......................................................................................................... 187
procedure in event of conflict (1983) ............................................... 317-318 341-342
regulation of conflicts ................................................................................................ 187
humanism.......................................................................................................................... 85 96
human rights (also see fundamental rights, rights)
in Bophuthatswana............................................................................................... 413-415
in Ciskei ....................................................................................................................... 417
in SWA/Namibia................................................................................................. 422 426
immigration laws ......................................................................................................... 392-393

impeachment ............................................................................................... 39 40 44 225 261
and removal of State President ................................................................................ 298
imperative mandate theory of representation.................................................................. 167
Imperial Conferences.............................................................................................. 202 et seq
Indaba
KwaZulu/Natal ............................................................................................................ 432
Indemnity Acts
martial law.................................................................................................................... 110
state of emergency....................................................................................................... Ill
independence
constitutional, of dominions ...................................................................................... 203
of black homelands......................................................................................... 410 et seq
independence of judiciary................................................................................. 42 77 92 258
feature of Westminster System.................................................................................. 256
Index 463
independent MP’s
independent states
, status of ...................................................................................................................... 409
India
protection of minorities 121
Indians (also see Asiatics)
constitutional position 273-274
in Natal ............. ........
in OFS .... 64
members of Regional Services Councils ........................................... 65
qualified franchise .......................................................... ....................................... 433
State President’s powers under 1961 Constitution ... 254
individual responsibility of ministers (also see ministerial ....................................... 231
individual rights — see fundamental rights, rights responsibility) 183-184
Information Scandal
Inkatha........................................................................................ .............................. 183 235
Inner Cabinet ........................................................................... ..................................... 191
interdict (also see mandamus) 46 234
against State President
interdictum de homine libero exhibendo............................ .................................... 358
21
application in South Africa............................................ 101 et seq
under security legislation ................................... 117
International Commission of Jurists ................................... 87
definition of rule of law................................................ 91
Ireland .......... ............... 50 139 141 169
John, King 84 183

judge-made law 85
judges
appointment .................................................................. 257
dismissal 257-258
liability for incorrect judgment 258
judicial precedent
as source 25
judiciary (also see courts)
1910-1983 256 et seq
1983 356 et seq
and conventions 358-359
and Westminster System 256
as safeguard of individual rights 90
criticism of role 97-98
control over executive (1961) 269-270
control over executive (1983) 361-362
control over legislative process (1983) 359 et seq
control over State President.................................................... 320-321 357 et seq
control over State President’s proclamations 361
criticism of 258
in OFS 66
in Transvaal ....................................................................................... "^"--"„Z1'72
independence of ^2 77 ^2 258
no control over political decisions................................................................... 361
organization ....................................................................................... """ 25^’257
power to test legislation 77 258 et seq
role in removal of State President (1983)...................................... ••••••• 2^7
vis-d-vis executive 2°® J^l et sed
vis-a-vis legislature up to 1961 ’■ji’/’-jL"”' 2^
vis-a-vis legislature after 1961 266 359 et seq
464 Index
page
jurisdictional facts
in security legislation................................................................................................. 118
jus soli................................................................................................................................ 375
King
and judiciary .............................................................................................................. 172
as feudal liege, liege-lord ............................................................................. 27 106 172
as head of legislature under Union ........................................................................ 240
as head of state in South Africa.............................................................................. 240
as sovereign ................................................................................................................. 133
conflict with Parliament......................................................................... 85-86 164 171
dispensing power ........................................................................................................ 172
exercise of prerogative................................................................................ 106 171-174
power to veto legislation ........................................................................ 35 46 200 201
prerogative powers ............................................................................................. 172-173
relationship with dominions ......................................................................... 206 et seq
relationship with subjects .................................................................................... 28 375
role under Union ................................................................................................ 220-221
“the King can do no wrong” ............................................................. 44 320 322 357
Kotze CJ ................................................................................................................ 71 139-140
Kruger, Paul ................................................................................. ................... 71 72 139-140
KwaZulu
Joint Executive Authority .................................................................................. 431 432
organ of state or not? ........................................................................................ 408-409
visa-vis central government ............................................................................... 408-409
Labour Party
in Britain........................................................................................................................ 47
laissez-faire ........................................................................................................................... 85
language provisions .................................................................................................... 266 283
(1983) ............................................................................................................................ 350
Xhosa .......................................................................................................................... 405
language rights ............................................................................................................ 100 148
lawfulness
and legality .................................................................................................................... 89
leader of opposition ....................................................................................................... 47 48
as conventional figure ............................................................................................... 176
office bearer under 1961 Constitution..................................................................... 247
recognition of ............................................................................................................. 189
League of Nations ............................................................................................................. 120
and SWA/Namibia .................................................................................................... 418
Covenant of......................................................................................................... 203 204
legal certainty................................................................................................................... 89-91
legal representation............................................................................................................... 90
legality .................................................................................................................................... 83
and lawfulness ............................................................................................................... 89
Beinart’s approach ....................................................................................................... 89
Mathews’s approach .................................................................................................... 91
Van der Vyver’s approach .......................................................................................... 94
Wiechers’s approach .................................................................................................... 93
leges imperfectae ................................................................................................................ 222
legislative process
1961 .................................................................................................................. 248 et seq
1983 .................................................................................................................. 339 et seq
Index 465
Page
legislative supremacy (also see parliamentary sovereignty,
sovereignty)
of Union Parliament ...................................................... ........... 262
legislature (also see Parliament)
1910-1983 ............................ 240 el seq
1983 ....................................................... 330 el seq
composed of State President and Parliament (1983) . .......... 330
enrolled bill rule............................................................... .......... 267
procedure (1961) ............................................................... 248 et seq
procedure (1983) ............................................................... 339 et seq
unentrenched procedural provisions............................. ......... 269
vis-a-vis judiciary to 1961 .............................................. 258 et seq
vis-a-vis judiciary after 1961 ......................................... 266 et seq
vis-a-vis judiciary after 1983 .......................................... 359 et seq
legitimacy
and principles of representation.................................... ......... 165
of constitution .................................................................. .. 280-281
lex posterior derogat priori.......................................................................................... 269
lex suprema est ................................................................................................................. 89
Liberal Party
in Britain ................................................................................................................... 45
in South Africa ...................................................................................................... 191
Whigs ......................................................................................................................... 45
liege lord/liegeman (also see King) ............................................................................. 27
King as ............................................................................................................. 214 227
Lijphart, Arend ............................................................................................................. 124
limited government ......................................................................................................... 83
local government ............................................................................................... 432 et seq
Locke, John ..................................................................................................... 135 138 156
locus standi
of National State to sue government........................ -.................................... 6 409
to challenge decision of State President on own affairs.................................. 303
to institute habeas corpus or interdictum.................................................. 102-103
Lords, House of — see House of Lords
M
Magna Carta ................................................................................................. 18 31 38 8^
as basis of habeas corpus..................................................................................
as basis of rule of law................................................................................. 84
magnum consilium ............................................................................................ 31-33 43
majestas, 4.,1 n
y
and sovereignty .................................................................................................. . Q
in SWA/Namibia .............................................................................................. 41 y
majoritarianism
as democratic concept ................ .. 120
in Westminster System ................ 78 79
mala fides — see bona fides
mandamus (also see interdict)
against State President or not? ... ........................ 358
81 148 268-269 357
manner and form ................................. ........................ 360
unentrenched provisions...............
married women ....................... 390
citizenship of................................. ............ 105 er seq
martial law ............................................ ......................... 70
in OFS ............................................ ...................... 270
judicial control .............................. ...................... 228
State President’s power to declare
........................ 75
Members of Parliament ........................
...................... 307
nominated ......................................
466 Index
Page
military authorities — see Defence Force, martial law
military service
and ex lege naturalization ........................................................................................ 383
and renunciation of citizenship .......................................................... ..................... 387
minimum standards of justice ..................................................................................... 90 91
Minister of Constitutional Development and Planning ............................................... 280
and National States.................................................................................................... 407
and Regional Services Councils ............................................................................... 433
Minister of Finance
Minister of Home Affairs
powers in citizenship matters ....................................................................... 381 et seq
Minister of Justice
appointment of judges ....................................................................................... 257 356
powers during state of emergency........................................................................... 110
powers under Internal Security Act............................................................ 114 et seq
Minister of Law and Order
powers under Internal Security Act............................................................ 114 et seq
ministerial responsibility ..................................................................................................... 20
collective .............................................................................................................. 183 235
development ................................................................................................. 35 44 et seq
effectiveness ................................................................................................................ 160
in 1983 Constitution ........................................................................................... 326 327
in Westminster System ..................................................................................... 75 79 81
individual ............................................................................................................. 184 235
Information Scandal ........................................................................................... 235 237
ministers (also see Cabinet, Executive, Ministers’ Councils)
appointment under 1983 Constitution ...................................................... 312-314 324
appointment under common law .............................................................. 180-181 226
assignment of powers......................................................................................... 314-316
control over State President .............................................................................. 319-320
Members of Parliament...................................................................................... 181 325
role in exercise of prerogative.................................................................................. 181
under 1961 Constitution............................................................................... 234 et seq
Ministers’ Councils ................................................................................................ 326 et seq
appointment of Chairmen ........................................................................................ 327
appointment of members .......................................................................................... 326
Cabinet minister co-opted ........................................................................................ 326
composition ................................................................................................................. 326
executive authority in own affairs ........................................................................... 326
exercise of prerogatives .............................................................................................. 309
member of Cabinet .................................................................................................... 324
reconstitution by State President ............................................................................. 307
responsible to own House ........................................................................................ 327
State President acts on advice of............................................................................. 326
State President not conventionally obliged to appoint .........;.............................. 326
vis-a-vis State President ............................................................................................. 309
minority rights (also see group rights) .................................................... 14 78 118 et seq
misconduct by State President
definition ...................................................................................................................... 359
monarch (also see King, Queen)
assent to legislation..................................................................................................... 184
monarchy
constitutional - see constitutional monarchy ......................................................... 76
monism, territorial ...................................................................................................... 290-291
Monopolies, Case of............................................................................................................. 36
Montesquieu .................................................................................................. 56 135 136 258
motion of no confidence ............................................................................................... 47 48
1983 Constitution ................................................................................................ 306 307
as parliamentary control over State President ...................................................... 319
Index 467
Page
mutual veto (also see veto)
as feature of consociational democracy . 277
NATO
as confederation ....................................................................................... j3
Namibia — see South-West Africa/Namibia
nasciturus states ................................................................................................ 373 392 406
Natal
as colony ......................................................................................................... 6I e( seq
referendum in ......................................................................................................... 216
National Assembly
as precursor of Parliament .................................................................. 32 162 et seq
Bophuthatswana .............................................................................................. 412-413
Ciskei ........................................................................................................................ l30
Transkei ................................................................................................................... 407
Venda ....................................................................................................................... 415
National Convention
leading to Union ................................................................................................... 281
National Party
in South Africa ...................................................................................................... 403
National States .................................................................................................... 402 et seq
alteration of provincial boundaries.................................................................... 268
and citizenship ................................................................................................ 372-373
and the process of devolution...................................................................... 401-402
applicability of South African laws ........................................................... 407-408
as “states” ............................................................................................................. 373
“citizenship” of........................................................................................ 390 et seq
compared with provinces............................................................................. 405 406
competence to enter into treaties ...................................................................... 406
Constitution based on Transkeian Constitution (1963)................................... 405
Constitution not entrenched............................................................................... 408
constitutional status of...................................................................................... 409
executive ................................................................................................................ 407
legislation assented to by State President........................................................ 406
legislative powers ..................................................................................... 406 et seq
locus standi to sue government .............................................................. 6 408-409
responsible government stage .................................................................... 405 409
self-governing stage ................................................................................. 406 et seq
nationalism
in Scotland and Wales...................................................................................... 189
nationality
contrasted with citizenship..................................................................... 372 et seq
natural justice
rules of ................................................................................................................. 90
natural law .................................................................................................................. 91
naturalization ...................................................................................................... 375 376
of non-Whites ............................................................................................ 392-393
nemo judex in sua causa .......................................................................... 263
New England colonies................................................................................................ 53
New Zealand
and British Empire .......................................................................................... 205
Constitution ...................................................................................................... 130
ombudsman ................................................................................................ 131 237
non-Whites (also see Blacks, Coloureds, Indians)
constitutional development ................................................................... 402 et seq
in South African constitutional law................................... 273 et seq 402 et seq
Norman period ............................................................................................... 30 et seq
468 Index
Page
nullum crimen sine lege................................................................................................ 110
nullum poena sine lege.............................................................................................. 90 95
official opposition ..................................................................................................... 75 189

ombudsman.......................................................................................... 131 et seq 236-237
Bophuthatswana...................................................................................................... 415
SWA/Namibia ......................................................................................................... 422
one-party states ................................................................................................... 11 75 192
opposition, leader of - see leader of the opposition
opposition parties ...................................................................................................... 76 192
in 1983 Constitution .............. ........................................................................ 289-290
in Westminster System .......................................................................................... 189
represented in President’s Council ..................................................................... 364
Orange Free State ............................................................................................................. 64
before Union.................................................................................................. 57 et seq
Orange River Colony............................................................................................ 62 72-73
original powers
meaning of term ..................................................................................................... 406
Provincial Councils ................................................................................................. 428
provincial proclamations after 1986 .................................................................. 431
own/general affairs
and provincial matters ........................................................................................... 429
appointment of Administrator ............................................................................ 430
appointment of members of President’s Council ........................................... 364
consultation with Cabinet .................................................................................... 303
consultation with Speaker and Chairmen of Houses .................................... 303
court’s power to review State President’s decision ....................................... 303
definition ................................................................................................................... 285
determination by State President ........................................................... 301 et seq
endorsement by Chairman of House ................................................................. 302
examples .................................................................................................................... 286
x executive powers ..................................................................................................... 311
feature of 1983 Constitution................................................................................ 285
issue and withdrawal of passport................................................................ 397-398
judicial control over determination by State President ................................ 357
legislative procedure ................................................................................... 339 et seq
prerogatives as ......................................................................................... 309 397-398
reference to President’s Council ......................................................................... 304
pactum union is ................................................................................................................ 198

paradox of omnicompetence ......................................................................................... 155
Parliament (also see legislature, House of Assembly, House of Commons,
House of Delegates, House of Lords, House of Representatives,
Houses of Parliament) ................................................................................................. 95
and democracy ........................................................................................................... 12
appointment of members by State President................................................... 331
as court in full sense ...................................................................................... 354-355
as representative body.................................................................................... 162-164
bicameral and unicameral ......................................................................... 141 et seq
committees .................................................................................................... 345 et seq
composition (1983) .......................................................................................... 330-331
conflict with Kings ......................................................................... 38 et seq 86 164
consent needed for declaration of war...................................................... 172 185
control over executive ....................................................................... 178 236 et seq
Index 469
Parliament (continued) s
control over State President ................................................................. 319
dissolution of prior to election ......................... ................................................... 337
division into House of Commons and House of Lords""”.”"”"....”....... 164
elements of ......................................................................................................... 141-142
failsafe provisions ........................................................................... 334
High Court of, in Britain ....................................................................... 259
in Westminster system .......................................................................... . 75
indirectly elected members .................................................................................... 332
joint sittings ............................................................................................... 307
judicial functions, in Britain ............................................................................... 261
master of own procedure ..................................................................................... 260
meaning of (1983) .................................................................................................. 350
motion of no confidence in Cabinet.................................................................. 306
powers and privileges ................................................................................ 353 et seq
promulgation of emergency regulations ............................................................. 110
qualifications for membership ..................................................................... 334-335
quorums (1983) ...................................................................................................... 334
restraints on sovereign authority ......................................................................... 88
South African, as Westminster model .................................................... 261 et seq
scope of legislative competence ................................................................... 352-353
State President no longer part of....................................................................... 330
State President’s legislative role (1983)................................................... 300 et seq
State President’s power to dissolve (1983)................................................. 306-307
State President’s powers (1961)................................................................... 226-227
static and dynamic .................................................................................... 141 et seq
statutory powers of State President .................................................................. 310
use of word ............................................................................................................ 29
Parliamentary Commissioner .............................................................................. 236-237
parliamentary committees
ad hoc .................................................................................................................... 346
approval of provincial proclamations .............................................................. 431
joint ................................................................................................................ 346-347
role in 1983 Constitution........................................................................ 343 et seq
standing ......................................................................................................... 345-346
parliamentary procedure
and conventions ................................................................................................. 186
“guillotine” rule ................................................................................................ 280
judicial interference........................................................................................... 267
not subject to judicial scrutiny........................................................................ 360
parliamentary sovereignty (also see sovereignty)
1983 Constitution ........................................ ........................... 330
and democracy ............................................ ............................ 12
and devolution of powers .......................... ................... 212-213
and legislative supremacy........................... ......................... 133
and President’s Council .............................. ......................... 370
and the tricameral Parliament.................... ............ 288 301 330
Dicey’s views ............................................... ......................... 133
effect of the Statute of Westminster on .... ......................... 212
in Britain ...................................................... ..................... 20 43
in the Westminster System.......................... 76-77 79 80 133 330
parliamentary system
1983 Constitution as ....... ....... 288
and separation of powers . ....... 160
development of, in Britain 29 et seq
......... 28
gekoren recht ...................
party system 289-290
and 1983 Constitution ......
and regional representation .... 166
470 Index
Page
party system (continued)
development ................................................................................... 48 et seq 188 et seq
in Britain.............................................................................................................. 188-190
in South Africa....................................................................................... 166 190 et seq
in the Westminster System ....................................................................... 76 80 82 189
whips ........................................................................................................................... 247
passports .......................................................................................................... 231 395 et seq
common-law position ................................................................................................ 395
conditions of issue............................................................................................. 396 397
“contract” or not? .................................................................................................... 395
definition ..................................................................................................................... 395
English law ................................................................................................................. 397
own/general affairs? ........................................................................................... 397-398
power to issue or withdraw............................................................................... 395-396
prerogative act .................................................................................................... 270 395
State President’s powers ........................................................................................... 397
withdrawal a quasi-judicial act ................................................................................ 396
paterfamilias ......................................................................................................................... 27
personality principle
in 1983 Constitution ........................................................................................... 285-287
Petition of Right ........................................................................................................... 38 106
plebiscite - see referendum
pluralism
governmental (also see territorial monism)............................................................. 290
pocket boroughs .................................................................................................... 42 164 189
police
emergency powers....................................................................................................... 112
political parties
1983 Constitution ................................................................................................ 289-290
freedom of association .............................................................................................. 336
registration .............................................................................................................. 336-337
polling day
elections ................................................................................................................ 337-339
positivism ............................................................................................................................... 98
postnati ................................................................................................................................ 375
preamble to Constitution .................................................................................................. 198
legal significance ........................................................................................................... 219
prerogatives ........................................................................................... 21 et seq 171 et seq
1983 Constitution ......................................................................................... 308-309 311
and allegiance relationship......................................................................................... 220
and conventions ......................................................................... ......................... 177-178
definition ...................................................................................................................... 171
exercised by Governor-General ......................................................................... 220-221
exercised by State President (1961) .................................................................. 228-229
extent of judicial control............................................................................................ 361
general affairs? ............................................................................................. 309 397-398
in English law ...................................................................................................... 171-174
in Natal .......................................................................................................................... 62
in South Africa .................................................................................................... 174-175
State President’s position ................................................................................. 22-23 29
to appoint commissions of enquiry.................................................................. 237 363
President
of Boer Republics........................................................................................................ 223
of Natal .......................................................................................................................... 61
of OFS ...................................................................................................................... 66-67
of Senate ...................................................................................................................... 232
of Transvaal ........................................................................................................ 69 et seq
of USA ......................................................................................................................... 261
presidential systems ............................................................................................................. 160
1983 Constitution as ............................................................................................ 288-289
Index 471
Page
President’s Council (1983) 81 131 363 et seq
1961 Constitution ...... ........ 232 238-239
advisory function in executive sphere............ .................... 367-368
advisory function in legislative sphere........... .................... 368-369
and Westminster System ................................... ........................... 369
arbiter in legislative dispute.............................. 276 277 315 369-371
as permanent commission ................................. . .................. 276 363
Blacks excluded .................................................... .......................... 365
Chairman ................................................................ .......................... 367
composition (1980) ............................................... .......................... 317
composition (1983) ............................................. .................. 363-364
constitutional proposals ..................................... .............. 277 et seq
consultative function .......................................... ......................... 371
dissolution ............................................................. ......................... 365
first proposed ....................................................... ......................... 275
functions ................................................................. . ............ 317 et seq
institution of ........................................................ ........................ 216
no role in respect of entrenchment sections .. ........................ 351
nomination of members by opposition parties ........................ 364
powers and functions ......................................... ............. 367 et seq
powers of State President in regard to........... ........................ 310
qualifications and tenure ........................... ....... ................. 364-367
role in determination of own/general affairs .. . ...................... 303
State President’s role in appointment ............. ....................... 364
Vice State President as chairman (1980)......... ....................... 367
presumption
against discrimination ........................................................................................... 104
of innocence ....................................................................................................... 90 104
under Internal Security Act ................................................................................ 1
Prime Minister
1961 Constitution ...................................................................................... 233 et seq
appointment of Cabinet ............................................................................... 180-181
as conventional figure ................................................................................... ^26 180
choice of................................................................................................................. 170
development of office ................................................................................ 46 et seq
“ethnic” ................................................................................................................. 512
equivalent in 1983 Constitution..................................................................
in Westminster System ............................................................................... 76
member of lower House ................................................................................. *
merged with office of State President.......................................................
privileges
of individual .......................................................................................................... 83
n • ofPariiament............................................................................................ 353 et seq
Privy Council .................................................................................................... 44 53 173
appeal to ................................................................................................ 106-107 207
as final court of appeal for colonies...................... 202 213-214 215-216 256-257
decisions of......................................................................................................... 141
procedural (human) rights (also see fundamental rights, rights)............................. 94
Prohibited persons .............................................................................................. 393-394
proportional representation ........................................................................... 169 et seq
and minority rights ........................................................................................... 124
free mandate theory in SWA/Namibia.......................................................... 423
in President’s Council ...................................................................................... 364
proportionality 15 170 277

and consociational democracy...................... .......... 414
in German law............................................... .......... 226
Provincial Councils ............................................... ......... 429
abolition .......................................................... ... 405 406
compared with legislatures of National States ......... 421
compared with legislature of SWA/Namibia .
472 Index
Page
Provincial Councils (continued)
curtailment of powers ....................................................................................... 148 199
effect of s 114 of 1961 Const .......................................................................... 268-269
powers......................................................................................................................... 428
State President’s powers under 1961 Constitution.............................................. 230
provincial government .......................................................................................... 426 et seq
Administrator after 1986 .............................................................................. 430 et seq
Administrator before 1986 ....................................................................................... 427
as exception to Westminster System ......................................................... 81 199 427
co-operation with National States .......................................................................... 431
deconcentration of powers ....................................................................................... 401
executive after 1986 ........................................................................................... 430-431
executive before 1986 ............................................................................................... 427
federal characteristics ............................................................................................... 427
historical background ........................................................................................ 426-428
powers of State President to alter provincial boundaries .................................. 429
provincial ordinances remain in force .................................................................... 429
public international law
as part of law of Ciskei............................................................................................ 417
as part of SA law ...................................................................................................... 417
public-law competences ................................................................................................. 96-97
public-law rights ............................................................................................................. 84 96
public-law status .................................................................................................................. 96
Q
quamdiu se bene gesserint..................................................................................... 39 42 257
Queen Victoria ..................................................................................................................... 47
Rabie Commission ..................................................................................................... 113-114

race
basis of 1983 Constitution ........................................................................................ 287
basis of South African constitutional system ................................................ 104-105
classification .......................................................................................................... 98 104
race classification in SWA/Namibia............................................................................... 424
race federation
development .............................................................................................. 48 162 et seq
feature of Westminster System ..................................................... 28 et seq 75 80 82
free mandate theory .................................................................................................. 423
Regional Services Councils ........................................ . .............................................. 433-434
aims of......................................................................................................................... 433
application of revenue ............................................................................................... 434
chairman ..................................................................................................................... 434
composition ................................................................................................................. 433
multiracial bodies ...................................................................................................... 433
powers of..................................................................................................................... 433
role of Administrator ................................................................................................ 433
registration of voters
1983 Constitution ....................................................................................................... 334
historical background ................................................................................................... 49
regulative modal juridical principles ................................................................................. 95
report stage of bill
1961 Constitution ................................................................................................ 251-252
representation (also see regional representation) ............................................... 162 et seq
and legislative role of President’s Council ............................................................ 370
free mandate theory ........................................................................................... 167 423
__________________ ____________ ___________ __ _________ Index 473
Page
representation (continued)
imperative mandate theory ............................................................................. 176
in SWA/Namibia ........................................................422
of Blacks .......................................................................... 403
representative government
British colonies .................................................................................................. 55
Republic of South Africa (also see South Africa, Union of South Africa)
creation of............................................................................................. 216 et seq
definition .............................................................................................................. 7
Republican Constitution 1961
characteristics ............................................................................................. 218-219
repugnancy, doctrine of................................................................................... 200 206
reservation of legislation ................................................................ 58 199 200 206 208
reserve power ..................................................................................................... 201 240
residence
ordinary ............................................................................................................ 381
permanent ...................................................................................... 381 383 392-393
responsible government
British colonies ................................................................................................... 55
definition .................................................................................................... 405-406
South African territories............................................................................ 405-406
restriction orders ............................................................................................ 112 et seq
Rhodesia
Southern ................................................................................................ 151-152 257
rights (also see freedoms, fundamental rights, privileges)
basic ...................................................................................................................... 83
civil ....................................................................................................................... 83
common-law protection of.............................................................................. 104
constitutional ..................................................................................................... 165
curtailment of in South African law...................................................... 105 et seq
fundamental .............................................................................................. 83 et seq
group ....................................................................................................... 118 et seq
human .................................................................................................... 83 92 93 97
individual, protection of.......................................................................... 92 94 97
minority ................................................................................................... 118 et seq
Roman-Dutch law
as source of South African constitutional law....................................... 18 et seq
in Cape Colony .................................................................................................. 59
tradition ............................................................................................................... 98
rotten boroughs ....................................................... .. ................................... 42 164 189
royal prerogative - see prerogative
rule of law ........................................................................................................ 83 et seq
and democracy .................................................................................................... 12
and representative government ......................................................................... 164
and Westminster System .......................................................................... 77 79 82
influence of natural law.................................................................................... 135
role of Magna Carta............................................................................................ 31
role in exercise of prerogatives ......................................................................... 181
under 1961 Constitution......................................................................... 234 et seq
sabotage ...................................................................................................................... 113

saving clauses — see derogation clauses
seal, royal great ......................................................................................................... 214
seals, doctrine of.................................................................................................... 35 44
second reading of bill
under 1961 Constitution..................................................................................... 251
Second World War........................................................ 86 107 119 185 205 214 et seq
474 Index
Page
security legislation.................................................................................................. 112 et seq
sedition ................................................................................................................................. 12
segmental autonomy ........................................................................................................... 15
as feature of consociational democracy ................................................................. 277
in 1979 draft Constitution ........................................................................................ 276
in 1983 Constitution .......................................................................................... 285-286
in President’s Council’s proposals.......................................................................... 277
in SWA/Namibia ...................................................................................................... 424
self-government
in black territories ..................................................................................................... 406
Senate .................................................................................................................................... 81
abolition of ........................................................................................................ 243 276
compared with President’s Council ........................................................................ 238
composition under 1961 Constitution ......................................................... 242 et seq
composition under South Africa Act ............................... ....................... 199 241-242
conflict with House of Assembly ............................................................. 187 241-242
dissolution of...................................................................................................... 244-245
enlargement of during constitutional crisis ..................................... 147 242 265-266
procedure .................................................................................................................... 244
qualifications for ............................................................................................... 243-244
separation of powers ....................................................................................... 91 156 et seq
and democracy ............................................................................................................. 12
as requirement for Rechtsstaat.................................................................................. 95
in Britain .................................................................................................................... 158
in colonies ......................................................... ........................................................... 55
in OFS ........................................................................................................................... 64
in second Harris case ................................................................................................ 264
in South Africa .............................................................................................. 159 et seq
in USA ........................................................................................................................ 159
under South Africa Act ............................................................................................ 199
shadow cabinet
as feature of Westminster System............................................................................. 76
shire moots ................................................................................................................... 30 163
signet, royal ....................................................................................................................... 214
Smith, Sir Thomas ................................................................................................. 36 54 137
Smuts, Jan Christiaan..................................................... 48 72 168 182 185 206 214-215
sources ....................................................................................................................... 17 et seq
Act of Settlement ......................................................................................................... 18
Bill of Rights (1689) .................................................................................................... 18
Colonial Laws Validity Act........................................................................................ 18
Constitution Act 1961 ................................................................................................. 17
Constitution Act 1983 ................................................................................................. 17
English common law ........................................................................................ 18 et seq
Magna Carta................................................................................................................. 18
Roman-Dutch common law ............................................................................ 18 et seq
South Africa Act ......................................................................................................... 18
Statute of Westminster................................................................................................ 18
statute law ................................................................................................................ 17-18
South Africa (also see Republic of South Africa and Union of South Africa)
and Westminster System ............................................................................................. 80
minority rule in .......................................................................................................... 121
South Africa Act 1909
as Grundnorm ..................................................................................................... 142 145
as Westminster constitution ..................................................................................... 199
characteristics of ........................................................................................................ 199
entrenched sections ........................................................................................ 141 et seq
South African Indian Council ......................................................................................... 274
South African Parliament (also see Parliament)
legislative supremacy vis-a-vis SWA/Namiba ...................................................... 424
South African Republic —see Transvaal Republic
_____________________________ _________________________ Index 475
Pqpq
South African writers
on fundamental rights ............................................................................ 92 et sea
South-West Africa/Namibia........................................................ ... 418 et seq
Administrator-General ................................ 422 et seq
Administrator’s role ......................................... 420
Bill of Fundamental Rights and Objectives................................................... 425
Bill of Rights .............................................................................. 422
citizenship .................................................................................. 377
compared with provinces................................................................................. 421
Constitutional Council..................................................................................... 425
constitutional development ............................................................................. 420
creation of National Assembly ....................................................................... 423
High Court ....................................................................................................... 420
international status .................................................................................... 419-420
interpretation of bill of rights........................................................................ 426
League of Nations ........................................................................................... 418
legislative competence...................................................................................... 424
Multi-Party Conference (MPC) ...................................................................... 424
Security Council Resolution ..................................................................... 424 435
State President’s powers of administration............................... 231 232 422 424
SWAPO ................................................................................................ 420 424 425
Transitional Government of National Unity.................................................. 424
South-West African People’s Organization (SWAPO)......................................... 421
sovereignty (also see parliamentary sovereignty)
abdication of..................................................................................................... 154
area of power ................................................................................................... 154
as characteristic of Westminster System........................................................... 87
continuing .......................................................................................................... 15
derogation of, under EEC law.................................................................. 152-
development in English law.................................................................. 137 et
early views..........................................................................................................
Germanic concept ............................. ...............................................................
Greek concept ................................................................................................... i
in Middle Ages ................................................................................................. 13-
in South Africa after 1961 .................................................................... 147 et seq
indivisibility....................................................................................................... 150
manner and form ............................................................................................. 154
of the Almighty ................................................................................................ 199
of the law..................................................................................................... 83 136
origins of the doctrine...................................................................................... 134
paradox of omnicompetence............................................................................ 132
Roman concept ................................................................................................. 134
self-embracing .................................................................................................... 152
various meanings ............................................................................................... 133
Speaker 1910-1983
function and powers ......................................................................................... 247
House of Assembly.................................................................................... 247-248
Speaker under 1983 Constitution
acting Speaker ................................................................................................... 333
and freedom of speech in Parliament.............................................................. 353
compared with Speaker (1961) and President of Senate.................................. 332
election ................................................................................................................ 332
powers and functions ........................................................................................ 333
qualifications ............................................................................................... 332-333
removal ......... -............................. ...................................................................... 333
role in determination of own affairs.......................................................... 303 357
Star Chamber, Court of......................................................................................... 38 39
state
and government ...................................................................................................... 5
and the Republic of South Africa......................................................................... 4
476 Index
Page
state (continued)
authority, theories .......................................................................................... 134 et seq
corporation sole ............................................................................................................. 5
definition ...................................................................................................................... 3-5
federal ........................................................................................................................... 13
legal personality of ....................................................................................................... 5
security of....................................................................................................... 112 et seq
unitary ........................................................................................................................... 12
state authority
Germanic concept ....................................................................................................... 27
theories ............................................................................................................ 134 et seq
state liability
ex delicto ................................................................................................................ 22 24
in time of emergency................................................................................................. Ill
state of emergency - see emergency
State President
acts in consultation with Cabinet in general affairs ............................................ 323
acts on advice of Ministers’ Council in own affairs ............................................. 326
advised by President’s Council in executive sphere ..................................... 367-368
advised by President’s Council in legislative matters .................................. 368-369
and President’s Council ................................................................................ 317 et seq
appointment of Acting State President ................................................................. 300
appointment of delimitation commission .............................................................. 307
appointment of ministers (1961) ............................................................................. 233
appointment of ministers (1983) ....................................................................... 312-314
appointment of President’s Council (1980) .......................................................... 238
appointment of President’s Council (1983) .......................................................... 364
as Commander-in-Chief Defence Force ......................................................... 174 228
as head of legislature (1961) ......................................................................... 240 et seq
as “Prime Minister” .......................................................................... 293 316 322 357
as successor to British monarchs ..................................................................... 218-219
as Westminster head of state................................................................................ 80-82
assent to legislation .................................................................................... 241 301 304
assent to legislation of National States ................................................................. 407
assignment of powers......................................................................................... 314-316
chairman of Cabinet ................................................................................................. 324
common-law powers (1961).......................................................................... 225 et seq
compared with Administrator-General of SWA .................................................. 422
control over................................................................................................................. 318
determination of own/general affairs .................................................................... 301
discretionary powers (1983) ........................................................................... 312 et seq
effect of Act 21 of 1971 on powers........................................................................ 408
election (1961) ............................................................................................................. 224
election (1983) ..................................................................................................... 294-296
executive role (1983)...................................................................................... 308 et seq
head of executive ............................................................................................ 323 et seq
hybrid nature of office ............................................................................................. 293
in Transvaal ...................................................................................................... 71 et seq
joint sittings of Parliament ....................................................................................... 307
judicial control over...................................................................................... 357 et seq
legislative role ................................................................................................. 301 et seq
miscellaneous legislative powers (1983) ........................................................... 305-306
no longer part of Parliament ................................................................................... 301
nomination of MPs .................................................................................................... 331
office of Prime Minister subsumed ........................................................................ 323
power to legislate by proclamation .......................................... 301 304-305 402-403
powers in respect of passports ................................................................................ 397
powers in respect of SWA/Namibia ............................................................... 422 424
powers under emergency ............................................................................... 110 et seq
prerogative powers .......................................................................... 22-23 174 308-309
Index 477
State President {continued)

proclamations subject to judicial control...................................................... 361
qualifications for candidacy ....................................... .............. ............295-296
reference of legislation to President’s Council.............................. . 304 369
removal (1961) ........................................................................... 224-225
removal (1983) ..............................................................................297-298
role of court in removal ................................................................................. 297
statutory executive powers (1983) ........................................................ 310 et seq
statutory powers (1961) ......................................................................... 230 et seq
supreme chief of Blacks.................................................................................. 402
term of office (1961) ....................................................................................... 224
term of office (1983) ................................................................................ 296-297
violation of dignity .......................................................................................... 294
state security ................................................................................................... 112e/se<z
State Security Council ............................................................................................. 329
Statute of Westminster............................................................... 150 151 210 et seq 221
and entrenched sections......................................................................... 140 et seq
and sovereignty of British Parliament..................................................... 152 153
effect of............................................................................................. 211 et seq 217
effect on entrenched sections................................................................. 259 et seq
statutory conventions .............................................................................................. 178
Stuart Kings ................................................................................ 36 et seq 52 et seq 143
subjektiewe regte............................................................................................. 83 93 103
subordinate legislation
judicial control over .................................................................................. 160 403
provincial proclamations as ............................................................................. 431
substantive rights ....................................................................................................... 94
Switzerland
as federation ....................................................................................................... 13
protection of minority rights........................................................................... 121
TBVC states ................................................................................................... 410 et seq

taxation
in American colonies .................................................................................... 53-54
levied by Witanagemot ....................................................................................... 30
not within King’s powers................................................................................... 30
territorial representation - see regional representation
terrorism ................................................................................................. Ul H3 116-117
Tomlinson Report..................................................................................................... 404
Tories
as forerunner of Conservative Party in Britain......................................... 45 188
trade unions
and group rights................................................................................................ ^3
transfer of functions — see assignment of functions
Transkei .....................................................................................................................
1963 Constitution .............................................................................................. 391
and South African Appellate Division....................................................... 25 405
and South African citizenship .......................................................................... 387
and Westminster System ............................................................................. 411 4,2
applicability of SA legislation .................................................................... 407-408
autochthonous constitution or not? .................................................................. 410
establishment of Bunga...................................................................................... 403
executive (Executive Council) ............................................................................ 411
independence Constitution ...................................................................... 411 et seq
judiciary ........................................................................................................ 411-412
legislature (National Assembly) ........................................................................ 411
President............................................................................................................... 411
self-government ................................................................................................... 405
478 Index
Page
Transvaal Republic.................................................................................................. 57 et seq
treason .................................................................................................................................. 24
treaties
powers of State President ......................................................................................... 228
Treaty of Vereeniging ........................................................................................................ 72
Treaty of Versailles ................................................................................................... 203 204
Trekker Republics (also see Boer Republics) ........................................................... 61 135
trias politico ......................................................................................................... 77 258 264
tricameral Parliament (also see Parliament) .................................................... 81 186 187
1983 Constitution ............................................................................................... 287-288
and parliamentary sovereignty ......................................................................... 288 330
Turnhalle Conference ....................................................................................................... 421
consociative concepts in draft Constitution .......................................................... 421
typical juridical principles .................................................................................................. 95
Union executive
vis-a-vis British executive ......................................................................................... 200
vis-a-vis British Parliament .............................................................................. 200-202
Union judiciary
vis-a-vis Britain .......................................................................................................... 202
Union of South Africa....................................................................................................... 59
creation of ...................................................................................................... 197 et seq
Union of Soviet Socialist Republics
as federation ................................................................................................................ 13
protection of group rights ........................................................................................ 121
Union Parliament
vis-a-vis British executive ............................ . ........................................................... 200
vis-a-vis British Parliament...................................................................................... 200
unitary state
1983 Constitution as ................................................................................................. 285
definition....................................................................................................................... 12
South Africa as .......................................................................................................... 199
Westminster characteristic .............................................................................. 77 80 82
United Democratic Front.......................................................................................... 191 192
United Kingdom — see Britain
United Nations Organization
Charter ......................................................................................................................... 120
United States of America ........................................ ................................................ 107 120
and British Empire ................................................................................................... 204
and social contract theory ........................................................................................ 135
as federation ................................................................................................................. 13
autochthony of Constitution ....................................................... . ................... 280-281
compared with Westminster System.................................................................... 75 79
Congress ...................................................................................................................... 159
Constitution ................................................................................. 56 65 66 72 125 129
derogation of fundamental rights............................................................................ 129
House of Representatives ......................................................................................... 159
impeachment of President ........................................................................................ 261
nature of presidency .................................................................................................. 293
political parties .......................................................................................................... 189
President ...................................................................................................................... 159
protection of individual rights ................................................................................. 128
protection of minorities ..................................................................................... 121-122
separation of powers ................................................................................................. 159
Universal Declaration of Human Rights ................................................................. 86 120
universities
establishment .............................................................................................................. 249
Index 479
Page
and South African Appellate Division......................................................... 257

Executive Council ................................................................ .J....".".".......... 416
judiciary ....................................................... 416
loss of South African citizenship .................................................................. 387
National Assembly ............................................................................... .... 415-416
nature of Constitution .................................................................................... 415
President ........................................................................................... '.'. 415-416
Vereeniging, Treaty of............................................................................................. 72
Verhaltnismassigkeit
in German law ........................................................................................... 127 414
Versailles, Treaty of......................................................................................... 203 204
Verwoerd, Dr HF........................................................................................ 148 216 217
veto
in consociational democracy............................................................................. 14
in OFS ................................................................................................................. 67
King’s, of legislation ....................................................................... 35 46 200 201
Vice State President....................................................................... 232-233 238 276 299
Chairman of President’s Council (1980)........................................................ 363
Volksraad (also see House of Assembly)
in Transvaal ................................................................................................... 67-70
Voortrekker Republics - see Boer Republics and Trekker Republics
Vorster, BJ ............................................................................................ 183 224 235 298
vote of no confidence — see motion of no confidence
voting
in elections ........................................................................................................ 338
Waivis Bay ................................................................................................................ 422

war
concept of............................................................................................... 107 et seq
declaration of, prerogative........................................................................ 172 185
Wechselwirkung
in German law.................................................................................................. 415
Wesensgehalt
in German law........................................................................................... 127 415
Westminster System of government ......................................................... 20 74 et seq
adaptation of, in 1983 Constitution..................................................... 306 et seq
and 1983 Cabinet ............................................................................................. 325
and 1983 Constitution ...................................................................................... 282
and government by grand coalition................................................................. 291
and minority rights ........................................................................................... 124
and nominated/indirectly elected MPs.............................................. 245 276 332
and the party system......................................................................................... 189
characteristics of............................................................................................. 75-78
historical development......................................................................................... 26
majoritarianism .............................................................................................. 78-80
South Africa Act as.......................................................................................... 199
Witenagemot .................................................................................................... 27 30 162
World War I - see First World War
World War II — see Second World War
Zimbabwe
ombudsman ......................................................................................................... 131
Zuid Afrika Wet — see South Africa Act

Introduction Do South African Constitutional Law

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Introduction Do South African Constitutional Law

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Introduction to South African

Associate Professor in the Faculty of Law University of South Africa

ISBN 0 409 01785 X

THE BUTTERWORTH GROUP

United States of America

Typeset in 10 on 11 pt Times Roman

PART A: BACKGROUND AND GENERAL PRINCIPLES

Chapter Four The Westminster System of Government

Chapter Six The Sovereignty of Parliament

Chapter Seven The Doctrine of Separation of Powers

Chapter Eight Representation

Chapter Nine Prerogatives, Conventions and the Party System

PART B: THE HISTORICAL DEVELOPMENT OF SOUTH AFRICAN

Chapter Eleven The Executive 1910 to 1983

Chapter Twelve The Legislature 1910 to 1983

PART C: SOUTH AFRICAN CONSTITUTIONAL LAW TODAY

Chapter Fourteen General Features of the Republic of South Africa

Chapter Fifteen The State President

IV THE STATE PRESIDENT’S ROLE IN THE LEGISLATIVE SPHERE 300

Chapter Eighteen The Judiciary

Chapter Nineteen The President’s Council

Chapter Twenty Citizenship

II BASIC CONCEPTS AND DEFINITIONS

There are many definitions of ‘state’, each emphasizing different aspects

living within a specific area under a definite authority in accordance with

17 Administrative Law (1985) at 66.

as constitutional law in the broader sense includes administrative law, so too

4 ‘The Republic of South Africa’

20 See Wiechers op cit at 6.

judiciary; the distinction is drawn on traditional lines between, on the one

The constitution as an expression of the will of the people

27 See Wiechers op cit at 1-8.

constituted authority (the government). Modern democratic theory has

The constitution as a consequence of the idea of constitutionalism

The constitution in terms of constitutional reality

The constitution as an all-embracing organizational embodiment of the sys­

The constitution as a continuous dialectical process

29 Constitutionalism and the Changing World (1939) at 290.

The British writer KC Wheare31 is responsible for the idea of autochthonous

31 The Constitutional Structure of the Commonwealth (1960), referred to by Vorster at

34 See VerLoren van Themaat op cit at 38.

(i) Government by a grand coalition of al! significant political leaders in the

fii) The existence of a right of veto

(iii) The principle of proportionality in representation, appointments, finan­

The Sources of South African

1 The Republic of South Africa Constitution Act 110 of 1983

2 Other South African Statutes

Ill COMMON LAW

21 See the discussion of sovereignty in ch 6.

There is some authority for the view that Roman-Dutch ——

whether recourse should be had to English or Roman-Dutch law to decide

allegiance relationship, and entail the exercise of authority, are indeed

63 Section 13 of the 1961 Constitution Act.

The Historical Development of

A The Germanic Background to the British Parliamentary

II THE ALLEGIANCE RELATIONSHIP

Ill THE COMMUNITY RELATIONSHIP

B The Development of the Parliamentary System in

II THE ANGLO-SAXON PERIOD

Ill THE NORMAN PERIOD

22 Pollock & Maitland op cit at 203; Jolliffe op cit at 107.

31 See Stubbs op cit I at 289.

originally intended, it is of major importance because it laid the foundation

The constitution as an all-embracing organizational embodiment of the sys

(iii) The principle of proportionality in representation, appointments, finan

had to be confirmed by the ‘Raad’, which sat at Pietermaritzburg. The sys

provision — relationship to another member. Father and son, brothers, un

House, whose representatives are directly elected by the voters. A govern

Ill THE ADVANTAGES AND DISADVANTAGES OF THE WESTMIN

4 Boulle points out28 that single-party cabinets based on clear parliamen

Parliament conventions of the Constitution (some enacted in the Constitu