HARRIS v MINISTER OF THE INTERIOR - JOASA

1 1 HARRIS AND OTHERS v MINISTER OF THE INTERIOR AND ANOTHER 1952 (2) SA 428(A)1952 (2) SA p428 Citation1952 (2) SA 428 (A)CourtAppellate DivisionJudgeCentlivresCJ, Greenberg JA , Schreiner JA , Van den Heever JA , and Hoexter JAHeardFebruary 20, 1952 ; February 21, 1952 ; February 22, 1952 ; February 23, 1952 ;February 25, 1952 ; February 26, 1952 JudgmentMarch 20, 1952 AFlynote : SleutelwoordeB Parliament-Meaning of-Means Parliament functioning in accordance with SA Act-Entrenched clauses of SA Act left intact by Statute of Westminster-Act passed bicamerallywhich SA Act required to be passed unicamerally-Jurisdiction of Court to declare such Actinvalid-Power C of Parliament to amend Constitution-Election law-Registration of voters-Separate Representation of Voters Act, 46 of 1951-Such Act 'disqualifies' voters on ground ofrace or colour within meaning of sec.

2 35 of SA Act-Such Act not passed in conformity withsecs. 35(1) and 152 of SA Act-Such Act null and void-International law-Union of D SA nowan autonomous (sovereign) State-Statute-Interpretation-Court having regard to events leadingup to passing of Statute as throwing light on meaning of such Statute-Validity-Not possible toseparate good from bad-Whole Act invalid-Court- appellate Division-Court departing fromprevious : KopnotaE The Statute of Westminster has left the entrenched clauses of the South Africa Act intact;2accordingly the Courts have thepower to declare an Act invalid on the ground that it was notpassed in conformity with the provisions of sections 35 and 152 of the South Africa Rex v Ndobe ,1930 AD 484, applied; Ndlwana v Hofmeyr, , 1937 AD 289, of 1951, which provides for the separate representation of European and non-Europeanvoters in the Province of the Cape of Good Hope, disqualifies both European and non-Europeanvoters and potential voters on the ground of their race or colour within the meaning of G section35 of the South Africa Act.

3 Accordingly, as it was passed by the House of Assembly and theSenate sitting separately and not in conformity with the provisions of sections 35(1) and 152 ofthe South Africa Act, and as it is not possible to separate the good from the bad, it is invalid, nulland void and of no legal force and order to understand the reasons for passing a constitutional Act like H the Statute ofWestminster, it is permissible to refer to the events which ledup to such Act being passed, whichevents may throw a light on the meaning of the to the passing of the Statute of Westminster the Union Parliament had unrestricted power toamend the South Africa Act (including section 35(2), provided only that on certain subjects itfunctioned in accordance with the requirements of sections 35 and (2) SA p429'Parliament of a Dominion' in the Statute of Westminster means, in relation to the Union of SouthAfrica, Parliament sitting either bicamerally or unicamerally in accordance with the provisions ofthe South Africa Union is (now) an autonomous (sovereign) state in no way subordinate to any other countryin the to when the appellate Division will depart from a previous decision discussed.)

4 A3[zCIz] Case InformationAppeal from a decision of the Cape Provincial Division (DE VILLIERS, , NEWTONTHOMPSON and STEYN, JJ.). The facts appear from the judgment of CENTLIVRES, Graeme Duncan, . (with him H. Snitcher, . and D. B. Molteno) , for the appelllants: IfAct 46 of 1951 had been passed immediately prior to the coming into operation of the Statute ofWestminster it would have been invalid and not a law by reason of the injunction in sec. 152 ofthe South Africa Act. The Statute of Westminster did not expressly repeal such injunction nor,upon a true construction, did it impliedly C repeal it. The whole of sec. 152 is therefore still partof the law of the Union and consequently Act 46 of 1951 is invalid and not a law. Appellants arepersons in the Cape Province who, under the laws existing in the Colony of the Cape of GoodHope at the establishment of Union, are capable of being registered as voters; see sec.

5 35 of theSouth D Africa Act; Constitution Ordinance (Cape) 1853, sec. 8; Rex v Ndobe , 1930 AD at Act 46 of 1951 provides for the disqualification of the appellants from being registered asvoters at the election of members of the House of Assembly by reason of their race or colouronly, within the meaning of sec. 35 of the South Africa Act; see secs. 2, 4(2) E (a) , 4(3) (a) , 5,6, 9 of Act 46 of 1951; Ndlwana v Hofmeyr, and Others , 1937 AD at pp. 231-2. If aperson referred to in sec. 35 is excluded from any voters' roll in the Cape by reason of his race orcolour only, by virtue of a law, that law 'disqualifies' him from being registered as a voter byreason of his race or colour. The fact that F other rights are given is irrelevant. The 'members ofthe House of Assembly' referredto in sec. 35 are all the members in the Cape, not some of then a person referred to in sec.

6 35 is precluded by reason of his race or colour from beingregistered as a voter at the election of any member in the Cape by virtue of a law, that law Gdisqualifies him by reason of his race or colour only, from being registered as a voter; see Rex vNdobe, supra at pp. 490-3. Under the Cape laws power or capacity to acquire franchisequalifications was not in any way conditioned by or dependent on race or colour. It lay in thepower of certain persons, without distinction of race or colour to H acquire the qualifications tobe registered as a voter and to vote at the election of any member of Parliament. It was thispower which was safeguarded by (1). Moreover, if the right to vote is regarded, under theCape laws, race or colour were not factors in such right. The expressed intention of theLegislature in enacting41952 (2) SA p430sec.

7 35 was to ensure that a qualification based on race or colour should not become part of thecomplex title of the right to vote at the election of members of the House of Assembly in the caseof such persons who would have had a right to such vote in the Cape at Union. It follows,therefore, that if Act 46 of 1951 had been passed prior to the A Statute of Westminster it wouldnot have been duly passed, could not have been a law and would have afforded no defence toanyone acting in pursuance of it to the prejudice of the appellants. It has been suggested that theonly reason for this was the existence of the Colonial Laws Validity Act; see LegislativeCompetence of the Union B Parliament , 1931 at pp. 277, 282-3. This is not so,because just as the Colonial Laws Validity Act was part of the law of the Union so was the SouthAfrica Act.

8 There is no justification for the contention that secs. 35 and 152 of the South AfricaAct have no legal effect standing alone and that they would cease to be part of the law of C theUnion if the Colonial Laws Validity Actdisappeared; see Colonial Laws Validity Act 28 and 29 Vict. 63; Wheare Statute of Westminster (4th ed., p. 304); Rex v Ndobe, supra at pp. 492-3, 495-7; Rex v McChlery , 1912 AD at pp. 206, 218-9; A-G. Ontario v A-G. Canada , 1947 (1) atp. 141; 1947 at pp. 145-6; Cowen, Parliamentary Sovereignty , pp. 3-4; and cf .1931 D at pp. 273, 281-2. Indeed, the South Africa Act, as the particular Statutecreating the Parliament of the Union, in empowering Parliament to repeal or amend provisions ofthat Act, has resulted in the Colonial Laws Validity Act having a very limited effect, if any, inrelation to E the South Africa Act.

9 For the law of the Union relevant to the present matter,immediately prior to the passing of the Statute of Westminster, see the Preamble of the SouthAfrica Act (9 Edw. VII), the law as laid down in Rex v Ndobe, supra , and Rex v McChlery,supra , which law was primarily to be sought in the South Africa Act but was also to be sought Fin any other Statute of the Imperial Parliament having the force of law in the Union, such as theColonial Laws Validity Act, secs. 19, 30, 31, 49, 50 and 59 of the South Africa Act and the rulesexpressly enacted in this Act to ascertain the will of the Legislature, such rules being requiredwhenever the Legislature consists of more than one individual; see Dicey, Law of theConstitution (9th ed., p. xxxviii, Wade's G Introduction). Also, as legislative power was vested inParliament, consisting of the three elements prescribed in sec.

10 19, it followed that, unlessotherwise provided by law, a Bill could only become law if agreed to by each of such general whether the Senate had H agreed would depend upon whether a quorum was presentand whether a majority of themembers present had agreed and similarly with the House of5 Assembly. On such matters the Court would, no doubt, as a matter of evidence, accept the termsof the certificates of the Speaker and the President of the Senate as being conclusive of what wasdone in their1952 (2) SA p431respective Houses; see Wigmore, Evidence , secs. 1350 et seq . Moreover, in the case of mattersof a certain kind the mere consent of a majority of members of the Senate and of the House ofAssembly was not sufficient to make a law. The consent of those two constituent elements had tobe expressed in another prescribed manner.